I. THE GCC'S MECHANISMS FOR CO-OPERATION AND THE PEACEFUL SETTLEMENT OF DISPUTES

The GCC was established in May 1981 by six sovereign states: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the UAE. The creation of the GCC was motivated by the unprecedented threats posed to regional security by, inter alia, the Iranian Revolution of 1979, the Soviet invasion of Afghanistan in 1979, and the Iran-Iraq war in the 1980s.Footnote ²³ The key motivation was the Iran-Iraq war, in which GCC Member States were allegedly involved as protagonists of Iraq's invasion of Iran to counter purported Iranian hegemony following the 1979 Revolution.Footnote ²⁴ Consequently, the Member States acknowledged that it was in their collective national security interests to co-operate. It is argued that this pushed Member States to create the GCC too abruptly, leaving it with an unclear purpose (Is it an economic organization or a security organization or both?) and with processes that lacked efficacy in matters of co-operation and dispute settlement.Footnote ²⁵ Commenting on the hasty formation of the GCC, Abdulla said:

Despite its origins, the GCC has now been operating for four decades and its Member States have gradually realized the value of regulated co-operation and legal interactions. According to Peterson, the Gulf states have endured because of the GCC's roles in comprising a common identity, co-ordination between different states’ entities, and economic integration, albeit slow.Footnote ²⁷ Hence, current GCC legal texts and processes warrant assessment. The founding Charter stipulates the GCC's objectives, and the composition and procedures of the GCC's Cooperation Council which comprises: “1.The Supreme Council to which shall be attached the Commission for Settlement of Disputes, 2. The Ministerial Council, and 3. The Secretariat General [and] each of these organizations may establish sub-agencies as may be necessary.”Footnote ²⁸ The emphasis of the Charter is upon economic co-operation, and it is presumed that security co-operation is included in the Cooperation Council's primary function of effecting “coordination, integration and inter-connection between Member States in all fields”.Footnote ²⁹ However, it is noteworthy that the GCC Charter does not mention security explicitly, although the GCC since its establishment has been primarily seeking to achieve full and effective co-operation in terms of security.Footnote ³⁰ In fact, of the GCC's eight co-operation strategies, security co-operation is the strongest in terms of early concrete achievements, due to the above geopolitical reasons.

Modelled on the processes of law for international organizations, and empowered by its rules and decisions, the GCC and its Member States have sought full co-operation in the following areas:

1. (1) Economic co-operation,

2. (2) Co-operation in the field of human and [environmental] affairs,

3. (3) Security co-operation,

4. (4) Media co-operation,

5. (5) Legal and judicial co-operation,

6. (6) Political affairs,

7. (7) Regional co-operation with other countries and [groups], and

8. (8) Strategic dialogues with countries and regional groups.Footnote ³¹

Listed under each of these strategies on the GCC official website are decisions and agreements the GCC Member States have accomplished over the last thirty-nine years since its inception.Footnote ³² In terms of security, the GCC listed seventeen strategies jointly created and endorsed by representatives of GCC Member States.Footnote ³³

The milestone achievements of the GCC in terms of security co-operation since 1981 are:

1. (1) On 24 May 1982 the GCC states’ interior ministers declared full security co-operation and agreed to establish different security committees to strengthen security co-ordination and co-operation. The ministers also agreed to hold annual security meetings, including emergency meetings when required.Footnote ³⁴

2. (2) On 15 February 1987 the GCC interior ministers signed the GCC Overall Security Strategy to jointly work inter alia to fight cross-border crimes.Footnote ³⁵

3. (3) The GCC states’ ministers drafted and signed the GCC's counter-terrorism strategy in 2002, a Counterterrorism Agreement in 2004, and established in 2006 the GCC Permanent Committee for Countering Terrorism.Footnote ³⁶

4. (4) On 13 February 2013 the GCC states drafted the GCC Security Agreement, which comes into force once it is signed and ratified by two-third of the GCC membership.Footnote ³⁷

5. (5) In 2015 the GCC launched the GCC Police Force, headquartered in the UAE capital, Abu Dhabi.Footnote ³⁸

Overall, the seventeen wide-ranging GCC security achievements demonstrate strong security co-operation between the GCC Member States. Furthermore, there were bilateral security collaborations between those states, facilitated and endorsed by the GCC Supreme Council. For example, Saudi Arabia and Qatar held five high-level meetings under the Saudi-Qatari Coordination Council (the last meeting was on 2 May 2017, one month before the start of the 2017 Gulf Crisis).Footnote ³⁹ The GCC Ministerial Council endorsed the results of this Council's meetings twice, in 2010 and 2011, to improve the relations between the two states, and to serve the GCC's interests.Footnote ⁴⁰ At its last meeting in May 2017, the two governments issued a joint statement outlining that there was an international responsibility to fight terrorism, and calling for wisdom “in dealing with the various development in Arab and Muslim countries to ensure the preservation of the safety and stability of these countries, and the prosperity of their people”.Footnote ⁴¹

Moreover, the GCC's Supreme and Ministerial Councils have together been very instrumental in facilitating co-operation, as well as in averting security crises; for instance, by referring disputes to specialized committees for investigation, presenting settlement recommendations, and engaging in regular monitoring of these committees’ work.Footnote ⁴² As will be shown later, these functions have proven constructive when settling some disputes involving GCC Member States. Nevertheless, it is noteworthy that co-operation between GCC Member States has persisted during times of both peace and crises. For example, GCC defence co-operation, which is linked to security, has proven its resilience to crises within the GCC, including the 2017 Gulf Crisis. A month after the 2017 crisis erupted, Qatari forces in the Saudi-led coalition fighting in the war in Yemen were ordered home.Footnote ⁴³ However, Qatari military forces, along with other GCC Member States’ armies, have continued to conduct joint military exercises as part of the Peninsula Shield Force, a GCC force founded in 1982 to protect the GCC states.Footnote ⁴⁴

For example, military generals from the GCC states met in April 2018 at the GCC General Secretariat to plan the 10th Peninsula Shield Drill, which was accomplished in March 2019.Footnote ⁴⁵ This compromise can best be explained by the fact that GCC Member States greatly value defence co-operation, since they jointly deployed the Peninsula Shield Force three times: to help liberate Kuwait after it was invaded by Iraq in 1990; to protect Kuwait after the 2003 Iraq invasion; and to assist Bahrain during an uprising in 2011.Footnote ⁴⁶ Hence, the protection provided by the Peninsula Shield Force cannot be undervalued, and it is anticipated that defence co-operation in the GCC will deepen further. In addition to the GCC's 2004 Counter-terrorism Agreement, the US and the GCC Member States launched the Terrorist Financing Targeting Centre [TFTC] in May 2017 to co-ordinate and provide technical assistance to combat terrorism.Footnote ⁴⁷ The GCC states appear to have participated in all TFTC meetings, providing further evidence of their continuing security co-operation.Footnote ⁴⁸ Finally, in relation to health co-operation, the GCC Member States continue to share experiences and to co-ordinate their response to health crises; for example, in March 2020 all the GCC Ministers of Health and their undersecretaries met three times to co-ordinate activities to combat the coronavirus Covid-19 global pandemic.Footnote ⁴⁹

In terms of the peaceful settlement of disputes, the GCC has a number of mechanisms, chief among these are, first, Article 10 of the GCC Charter on the Commission for the Settlement of Disputes [CSD], which reads:

The Basic Law of the CSD specifies, inter alia, that the CSD shall be composed of a sufficient number of citizens from the non-disputing GCC states. The CSD can draw on the GCC Charter, the rules and customs of international law, and the principles of Islamic law, and request the Supreme Council to indicate provisional measures. Its work concludes when its recommendations are submitted to the Supreme Council.Footnote ⁵¹ However, in cases where there is not a majority decision, or alternatively no decision, the dissenting members of the CSD have the right to report their opinions to the Supreme Council, which has discretion about whether to publicize them.Footnote ⁵² The reference to Islamic law reflects the general desire among Member States to apply this law, regarded as a shared domestic source of law, compatible with the GCC Charter, and historically supportive of arbitration.Footnote ⁵³ Since the establishment of the GCC, the Supreme Council has not utilized the CSD, but has preferred to refer to “ad hoc committees”, which primarily comprise government officials acting as mediators and applying the same procedures to settle disputes involving the GCC states; as in, for example, the 1996 Qatar crisis. There are two possible reasons for this: either the Supreme Council has not encountered a dispute requiring resolution by the CSD, or the GCC legal texts do not adequately differentiate between the CSD and ad hoc committees.

Second, there is a three-stage dispute settlement procedure governing the economic conduct of the GCC Member States, as stipulated in Article 27 of the GCC 2001 Economic Agreement, as follows:

1. 1. The Secretariat General shall hear and seek to amicably settle any claims brought by any GCC citizen or official entity, regarding non-implementation of the provisions of this Agreement …

2. 2. If the Secretariat General could not settle a claim amicably, it shall be referred, with the consent of the two parties, to the GCC Commercial Arbitration Center to hear the dispute according to its Charter. Should the two parties not agree to refer the dispute to arbitration, or should the dispute be beyond the competence of the Center, it shall be referred to the judicial body set forth in Paragraph 3 of this Article.

3. 3. A specialized judicial commission shall be formed, when deemed necessary, to adjudicate disputes arising from the implementation of this Agreement or resolutions for its implementation …

4. 4. Until the charter of the commission referred to in Paragraph (3) above comes into force, all disputes which the two parties do not agree to settle through [arbitration] and which could not be amicably settled by the Secretariat General, shall be referred to the competent GCC committees for settlement.Footnote ⁵⁴

It is notable, however, that, unlike other regional economic agreements, the GCC Economic Agreement failed to mention that, in cases of conflict of laws, the primacy of the WTO law should be upheld (all GCC states are members of the WTO).Footnote ⁵⁵ The WTO law was referenced as the supreme law in the GCC's two external economic agreements, namely, the 1998 Cooperation Agreement between the GCC and the European Economic Community [ECC], and the 2013 GCC Free Trade Agreement [FTA] with Singapore.Footnote ⁵⁶ Nevertheless, the 1993 Charter of the Commercial Arbitration Centre and the Arbitral Rules of the GCC empower the Centre to settle commercial disputes between GCC parties or between them and non-GCC parties, including disputes relating to the implementation of the 2001 Economic Agreement.Footnote ⁵⁷ According to Article 2 of the 1993 Charter, the Centre can only adjudicate in cases where “the two parties agree in a written contract or in a subsequent agreement on arbitration within the framework of this Centre”.Footnote ⁵⁸

However, the law of the judicial commission with regard to settling economic disputes, as referred to in Article 27(4) of the Economic Agreement, was approved by the GCC Supreme Council in 2016, and ratified by the GCC states.Footnote ⁵⁹ The Basic Law of the Economic Judicial Commission [EJC], as it is named, stipulates the rules and procedures of settlement, including rules concerning the selection of twelve judges from all the GCC Member States, who shall decide any case relating to the Economic Agreement on an ad hoc basis.Footnote ⁶⁰ Article 7 of the Basic Law of the EJC reaffirms the procedures in Article 27 of the Economic Agreement, which demonstrate how the Secretariat General might first try to settle the dispute, or refer it to the GCC Commercial Arbitration Centre, or as a last resort to the EJC for a final judgment.Footnote ⁶¹ It is noteworthy that the Basic Law of the EJC did not reference WTO law (supposedly echoing the Economic Agreement's error in not doing so), and it is unclear whether trade disputes caused by the 2017 Gulf Crisis had been legally or diplomatically adjudicated in accordance with Article 27.

In terms of regional procedures, the Arab League Charter includes the brief Article V, which stipulates that, in cases not concerning the “state's independence, sovereignty, and territorial integrity”, the Arab League Council, comprising representatives from the twenty-two Member States, shall settle disputes by either reconciliation and mediation, or arbitration, in which case the Council's decision by a majority vote “shall then be enforceable and obligatory”.Footnote ⁶² Similarly, there is no record to date of the 2017 Gulf Crisis disputing states invoking these procedures, and the fact that Article V excluded disputes relating to sovereignty means that it is expected that the quartet, who rely on national security exceptions, regard these procedures as inapplicable.

II. THE GCC's MEDIATION FUNCTION

It is common legal practice for the GCC to establish ad hoc committees to work with the Supreme Council as a way to mediate between disputing states. The use of ad hoc committees is recognized under international law. For example, Article 33(1) of the UN Charter maintains that parties shall first seek conventional methods of alternative dispute resolution, or judicial settlement, or “resort to regional agencies or arrangements, or other peaceful means of their own choice”.Footnote ⁶³ Whether this practice has consistently proven successful is a different question, but the use of these committees is frequent, potentially explaining the weakness inherent in the above dispute settlement mechanisms, as these have not been formally invoked for GCC disputes. An example of an ad hoc committee that has not been successful concerns the dispute between the UAE and Iran over the alleged Iranian occupation of three UAE islands.

Following the Iranian president's visit to Saudi Arabia and Qatar in 1999, the GCC established in July 1999 a ministerial committee with representatives from Oman, Qatar, and Saudi Arabia, intended to negotiate the settlement of disputes with Iran.Footnote ⁶⁴ However, the Closing Statement from the 21st Session of the GCC Supreme Council stated:

Although this dispute remains legally unsettled, throughout the 1990s the GCC states had peaceful relations with Iran as a result of diplomacy and negotiations, including the UAE, which has continued to maintain its relations with Iran overtly unaffected by this dispute.Footnote ⁶⁶ According to Ulrichsen, UAE-Iranian relations were affected by the international economic sanctions against Iran's nuclear programme, though the two states preserved their diplomatic and trade relations.Footnote ⁶⁷ Nevertheless, the UAE keeps reiterating its sovereignty claims over the islands, requesting a resolution by negotiation or referral to the ICJ.Footnote ⁶⁸ However, some of the GCC disputes that were initially settled by ad hoc committees have recurred, casting doubt on their settlements, and deepening frictions between the GCC states. An example of unsuccessful settlement concerns GCC-Qatar relations, which have their own historical legal context.

It is valuable here to reflect on the historical legal context that preceded the 2017 Gulf Crisis, since this crisis should be examined in the light of previous crises between the GCC Member States and Qatar. For instance, three crises stand out: the first was the 1990s border disputes between Qatar and Saudi Arabia, and Qatar and Bahrain.Footnote ⁶⁹ Although Qatar v. Saudi resulted in three casualties due to a military confrontation, it was settled diplomatically in 1996 with a border demarcation agreement.Footnote ⁷⁰ In June 1996, the GCC Ministerial Council endorsed this settlement agreement, and the resumption of Joint Technical Committee work to complete the demarcation process, which was accomplished in June 1999.Footnote ⁷¹ The second border dispute with Bahrain was settled with an ICJ judgment in March 2001.Footnote ⁷² However, the second crisis followed a so-called “palace coup” in 1995, in which the Emir of Qatar was allegedly deposed by his son, and then involved other GCC states purportedly to seek a counter-coup.Footnote ⁷³ The third most recent diplomatic dispute occurred in 2014, when Bahrain, Saudi Arabia, and the UAE recalled their ambassadors to Qatar, accusing it of breaching the so-called “Riyadh Agreements”.Footnote ⁷⁴ As will be detailed below, this dispute triggered the 2017 Gulf Crisis, wherein the quartet accused Qatar of breaching a number of provisions relating to the internal security and foreign policy of the GCC Member States.

However, the legal history of GCC mediation affords examples of both successes and setbacks. A successful precedent of GCC-led reconciliation and mediation followed the alleged 1996 counter-coup attempt in Qatar. As alluded to above, the “palace coup” happened in late 1995, and the military counter-coup attempt only took place in early 1996, with Bahrain and the UAE implicated as the main instigators.Footnote ⁷⁵ If this counter-coup had succeeded, it would have violated the Basic Law of the CSD, which references international law rules and customs, and these prohibit the use of force or the threat thereof.Footnote ⁷⁶ News of the foiled counter-coup became public when Qatar arrested the plotters in February 1996. The attempt was then communicated to the media and the then GCC Secretary General, who condemned it, as did Oman, Britain, and France.Footnote ⁷⁷ Moreover, Qatar requested an emergency meeting with the other GCC Member States to discuss the situation.Footnote ⁷⁸ These discussions in early 1996 led the Emir of Qatar to extend an invitation to host the next GCC Summit in December 1996, which the GCC leaders then attended.Footnote ⁷⁹

Hosting a GCC Summit by invitation is a customary norm, and that Qatar managed to host the 1996 Summit (just a few months after discovering the counter-coup attempt) over three days shows the value of the co-operation function of the GCC. Furthermore, Kuwait came to the rescue as mediator, successfully hosting the 1997 GCC Summit. In the closing statement for this Summit, there was no mention of a crisis, and the Supreme Council chose to endorse ongoing GCC security co-operation, announcing the establishment of an advisory board composed of qualified and experienced GCC citizens, intended to advise it on promoting the goals of the GCC.Footnote ⁸⁰ Nevertheless, the Press Release from the 62nd Session of the GCC Ministerial Council, which met on 26 March 1997, endorsed, in exuberant words, communications between Qatar and Bahrain's leaders which restored diplomatic and consular relations by establishing embassies in each country.Footnote ⁸¹ The Press Release also thanked “the quartet committee” for mediating between Qatar and Bahrain.Footnote ⁸² It is the only GCC document of the period which mentions the quartet committee, and it was apparently established by GCC state leaders to improve relations between the two states.Footnote ⁸³

Moreover, the GCC Ministerial Council, which met in April 2000, expressed its satisfaction with the results of fraternal meetings between the Emir of Qatar and Emir of Bahrain, which included setting up a high-level committee for co-ordination.Footnote ⁸⁴ Although the 1996–97 GCC documents regarding the GCC-led resolution between Qatar and the UAE are lacking, the closing statement of the 1998 GCC Summit reveals the outcomes of mediation. The 1998 Summit was held by invitation in the UAE in December, and its closing statement reads:

It appears that the 1996 Qatar crisis was resolved in 1998, and that diplomatic and economic co-operation between the three GCC states has since continued and deepened. For example, the Closing Statement of the 23rd Session of the GCC Supreme Council 2002 Summit, which was held in Qatar, “welcomed the agreement to form [a] Common Higher Council” for consular and diplomatic co-operation between Qatar and the UAE.Footnote ⁸⁶ Economic co-operation between the three states expanded substantially in the late 1990s, as exemplified by two large oil and gas projects involving Qatar and the UAE: the Dolphin Gas Pipeline between Qatar, the UAE, and Oman, established in 1999,Footnote ⁸⁷and the Al-Bunduq Oil field, which had been jointly operated by Qatar and the UAE with a Japanese investor since 1970.Footnote ⁸⁸

These major projects, and similar profitable undertakings between Qatar and the other GCC states, are at risk of termination due to the 2017 Gulf Crisis; however, it is expected that they will endure because they are highly financially valued by the host states.Footnote ⁸⁹ These investment projects have not been the subject of any dispute resulting from the 2017 Gulf Crisis, and it is unlikely that, when WTO rulings are finally rendered, they will have a negative effect on them. The above list of disputes involving Qatar is non-exhaustive, although it shows that the GCC performed an important role in facilitating dispute settlement and maintaining co-operation.

III. THE 2017 GULF CRISIS AND THE GCC's CO-OPERATION FUNCTION

The 2017 Gulf Crisis apparently began because of Qatar's alleged non-compliance with three security agreements between the GCC states, signed in 2013 and 2014, and called the Riyadh Agreements.Footnote ⁹⁰ The GCC has no public record of these agreements, and neither the GCC Supreme Council nor the Ministerial Council discussed them in their regular meetings in either 2013 or 2014. The Riyadh Agreements are only publicly available in an annex to a 2018 ICJ pending case concerning the quartet's appeal regarding the scope of the ICAO Council's jurisdiction.Footnote ⁹¹

The First Riyadh Agreement is a short document initially signed by Kuwaiti, Qatari, and Saudi leaders on 23 November 2013. It agreed upon: “no interference in the internal affairs of the Council [GCC] states … no support to the Muslim Brotherhood or any of the organizations, groups or individuals that threaten … the Council states … not to present any support to any faction in Yemen.”Footnote ⁹² A day later, this First Riyadh Agreement was annexed with a brief statement from the leaders of Bahrain and the UAE, who stated: “we hereby support the conclusions reached in the agreement.”Footnote ⁹³ However, the Mechanism Implementing the Riyadh Agreement was signed in 2014 by foreign ministers from all six GCC states, and it was stipulated in bold that “if any country of the GCC Countries failed to comply with this mechanism, the other GCC Countries shall have the right to take any appropriate action to protect their security and stability”.Footnote ⁹⁴ The Riyadh Agreements do not set out a formal dispute settlement procedure, nor do they reference any of the GCC's dispute settlement mechanisms; rather, they utilize review committees to monitor compliance.Footnote ⁹⁵

While the 2014 Supplementary Riyadh Agreement stated that “all countries are committed” to the GCC offering security, stability, and financial support to Egypt, Egypt is not party to the Riyadh Agreements.Footnote ⁹⁶ However, the quartet has asserted that, because Qatar did not comply with these Agreements, they have a legal right to sever diplomatic and economic relations, and close air and sea routes to Qatar. Subsequently, they issued a list of thirteen demands for Qatar to address, including:

1. (1) Curb diplomatic ties with Iran …

2. (8) End interference in sovereign countries’ internal affairs. Stop granting citizenship to wanted nationals from Saudi Arabia, the UAE, Egypt, and Bahrain. Revoke Qatari citizenship for existing nationals where such citizenship violates those countries’ laws …

3. (10) Pay reparations and compensation for loss of life and other, financial losses caused by Qatar's policies in recent years …

4. (11) Consent to monthly audits for the first year after agreeing to the demands, then once per quarter during the second year. For the following ten years, Qatar would be monitored annually for compliance.

5. (12) Align itself with the other Gulf and Arab countries militarily, politically, socially, and economically, as well as on economic matters, in line with an agreement reached with Saudi Arabia in 2014.

6. (13) Agree to all the demands within ten days of it being submitted to Qatar, or the list becomes invalid.Footnote ⁹⁷

Some of these demands mirror the Riyadh Agreements’ provisions, and have long concerned the GCC; for example, issues associated with granting citizenship. For instance, the 1997 Closing Statement of the 18th Session of the GCC Supreme Council stated that “the Council expressed its regret over the shelter provided by some states to extremist terrorist elements under the banner of human rights protection”.Footnote ⁹⁸ Nonetheless, these demands show that the quartet is working as a new alliance or as part of an intergovernmental organization intended to monitor Qatar's international relations. The quartet insisted that Qatar comply with these demands “within ten days of it being submitted to Qatar”, but the time for this has long lapsed, and Qatar remains, publicly at least, non-compliant.

However, since the crisis began in June 2017, the GCC Supreme Council has continued to hold annual Summits with Qatar participating. It issued three closing statements (the last one was in the 40th GCC Summit in December 2019) and two declarations in Kuwait and Riyadh, which only re-emphasized the GCC objectives and co-operation.Footnote ⁹⁹ The GCC Ministerial Council also avoided mentioning the crisis, and the GCC interestingly continues working on regional and international economics, security, and political co-operation with the participation of all Member States’ representatives.Footnote ¹⁰⁰ Some analysts suggested the possibility of fragmentation or an end to co-operation within the GCC because of the 2017 crisis.Footnote ¹⁰¹ However, setting up bilateral co-ordination councils, such as the Saudi-Emirate Coordination Council (established in May 2016, i.e. one year prior to the 2017 crisis) has been a common legal practice between Member States and co-operation within the GCC continues, albeit slowly.Footnote ¹⁰² More than two years have passed, and the ongoing active participation of the Member States demonstrates that the GCC has effectively navigated the 2017 Gulf Crisis, regardless of the lack of a GCC-led resolution. A number of international lawyers have persuasively argued that states’ ongoing legal interactions have proven constructive for upholding international legal obligations, and amicably settling inter-state disputes.Footnote ¹⁰³

GCC legal history is illustrative of this point; for instance, the 1996 Qatar crisis did not endanger international peace and security because it was settled by the GCC's early and consistent mediation, which normalized relations for the economic and diplomatic benefits of all GCC Member States. Thus, the view that, because of the 2017 Gulf Crisis, the GCC “has outlived its usefulness”Footnote ¹⁰⁴ is erroneous, as the GCC functions with the interactions of all its Member States in different legal and non-legal fora. This crisis; however, has resulted in a number of international disputes, raising two important and interrelated international law issues, namely, the justiciability of interstate disputes, and the adjudication of national security exceptions.

IV. THE JUSTICIABILITY OF DISPUTES IN INTERNATIONAL LAW

The issues raised by the 2017 Gulf Crisis are not novel in the arena of international law. A number of national and international disputes have involved national security, and some disputes to date have been rendered non-justiciable because they were inapt for settlement by either judicial or quasi-judicial means.Footnote ¹⁰⁵ Additionally, the GCC represents a disturbing trend in public international law concerning divergence from regional mechanisms set out for security co-operation and the settlement of disputes. For instance, the Charter of the Association of Southeast Asian Nations [ASEAN], and its six FTAs with their external “dialogue partners”, apply different dispute settlement mechanisms.Footnote ¹⁰⁶ However, there has been no trade dispute under the ASEAN or its FTAs, and ASEAN Member States have become embroiled in multiple costly disputes under the WTO DSB; both against one another and against their FTA partners, concerning multilateral trade agreements.Footnote ¹⁰⁷ However, unlike the GCC, these disputes involving ASEAN Member States do not pose a serious threat to international peace and security, and to date the WTO DSB has effectively achieved peaceful settlements. Furthermore, international organizations of states, especially those that have facilitated beneficial legal interactions, such as the GCC and ASEAN, are in some instances subject to setbacks and weaknesses, but despite this they will always remain relevant and reformable.Footnote ¹⁰⁸

Although the non-justiciability of disputes and the national security exceptions appear to be two different topics, they overlap; for example, when there is a demand that the executive decision concerning a national security measure should not be restricted or invalidated by the judiciary. The two issues manifest in the 2017 crisis, when the quartet did not invoke the GCC and the Arab League's mechanisms, arguably because the boycott decision is non-justiciable, as it has a right to national security exceptions under international law. However, non-justiciability is a broader term, and one that can encompass issues unrelated to national security, but still fall under the prerogative power of the sovereign. Thus, for the sake of clarity, justiciability will be discussed below as separate from national security exceptions, and the details of the 2017 Gulf Crisis will be briefly mentioned where appropriate.

In his seminal 1933 study of the doctrine of non-justiciable disputes in international law, Lauterpacht identified four conceptions of justiciable disputes [Lauterpacht Conceptions]:

1. (a) Legal disputes are such differences between States as are capable of judicial settlement by the application of existing and ascertainable rules of international law.

2. (b) Legal disputes are those in which the subject-matter of the claim relates to questions of minor and secondary importance not affecting the vital interests of States, or their external independence, or internal sovereignty, or territorial integrity, or honour, or any other of the important interests covered by the “restrictive clauses”—the reservations—contained in treation of obligatory arbitral or judicial settlement.

3. (c) Legal disputes are those in regard to which the application of existing rules of international law is sufficient to ensure a result which is not incompatible with the demands of justice and with a progressive development of international relations.

4. (d) Legal disputes are those in which the controversy concerns a claim of legal right as distinguished from a claim admittedly aiming at a change of the existing law.Footnote ¹⁰⁹

Invoking non-justiciability as an exception explaining non-fulfilment of Lauterbacht Conceptions has become a rarity in international law, precisely because the law is constantly evolving to govern almost all acts of the state, influencing state and non-state actors. This was a sentiment strongly espoused by a number of international judges who adjudicated The Prosecutor v. Dule in 1995 at the International Criminal Tribunal for the former Yugoslavia.Footnote ¹¹⁰ In answering the question “Is the question at issue political and as such non-justiciable?”, the Tribunal asserted:

Thus, it becomes apparent that the international law position on justiciability is conditional upon the availability of a settlement by application of international law rules, and a claim of legal right. However, the following three points can arise when applying Lauterpacht Conceptions to the rules and dispute settlement procedures set out by the GCC. First, neither the GCC Charter, nor the Riyadh Agreements, reference “existing and ascertainable rules of international law”. The only reference to international law concerns the GCC CSD, stating that, when it is established by the Supreme Council, it shall rely on, inter alia, international rules of law and customs. This is insufficient for the CSD to determine a dispute involving claims to the national security exceptions, especially as the constitutive elements of these exceptions are still unclear in international law.Footnote ¹¹²

Nonetheless, the Riyadh Agreements are the only documents of relevance to the 2017 Gulf Crisis, referencing national security exceptions, and more importantly, have compliance procedure. Furthermore, public international law remains applicable, even without this reference and procedure, as, according to Article 2:1(a) of the 1969 Vienna Convention on the Law of Treaties [VCLT], “an international agreement concluded between States in written form [is] governed by international law, whether embodied in a single instrument or in two more related instruments and whatever its particular designation”.Footnote ¹¹³ Hence, the Riyadh Agreements can be regarded as an international agreement, and the CSD can adjudicate its disputes according to international law.

Second, and the most challenging of the Lauterpacht Conceptions, is that a legal dispute should not hinder the sovereign rights of any disputing states. The Arab League Charter recognizes this exception in Article V by excluding from its purview any dispute concerning a “state's independence, sovereignty, and territorial integrity”.Footnote ¹¹⁴Although Qatar appears to have agreed to constrain its sovereignty and political independence by signing the Riyadh Agreements, its actions raise an unprecedented justiciability issue.Footnote ¹¹⁵ Debatably, there is a conflict of rights issue in this instance, namely whether Qatar's signing of the Riyadh Agreements can be regarded as a binding constraint on its exercise of sovereign rights under international law.

However, despite this, the quartet, especially the UAE, has made repeated references to the Riyadh Agreements’ commitments. Moreover, to date, the ICJ has chosen not to adjudicate on the legality of these agreements in its provisional measures order in the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (Qatar v. UAE).Footnote ¹¹⁶ It is unclear whether the ICJ will do the same in a second set of appeal cases concerning the jurisdiction of the ICAO Council.Footnote ¹¹⁷

A further point that might be relevant to this conception relates to whether the responsibility of the state of Qatar under international law is pertinent to determining these disputes, especially as the quartet is publicly accusing it of a set of serious wrongful acts known to be detrimental to international peace and security; for example, funding and supporting terrorism. Applicable international rules for consideration in this regard are the UN Draft Articles on Responsibility of States for Internationally Wrongful Acts, which have been cited by some international adjudicators as close to earning the status of customary international law.Footnote ¹¹⁸

Third, with regard to the last of the Lauterpacht Conceptions, namely whether the “controversy concerns a claim of legal right”, the GCC acquis and the Arab League Charter do not contain a legal right to justify the quartet's boycott; the only provision of relevance is in the Mechanism Implementing the Riyadh Agreement, which reads “if any country of the GCC Countries failed to comply with this mechanism, the other GCC Countries shall have the right to take any appropriate action to protect their security and stability”.Footnote ¹¹⁹

This must still be adjudicated in the light of the second point raised above concerning the primacy of international law obligations. Formulated differently, we might ask, “Does Qatar's acceptance of this provision suspend (out of necessity) its legal rights of sovereignty, political independence, and territorial integrity?” Currently, it seems most apt for the ICJ to answer this question, since it has broad jurisdiction to adjudicate on “any question of international law”.Footnote ¹²⁰ Nonetheless, a claim of non-justiciability was raised in one ICJ case relating to this crisis, namely Qatar v. the UAE concerning the application of CERD.Footnote ¹²¹ Qatar alleged that the UAE had discriminated against its nationals, and consequently requested provisional measures to hold the UAE accountable for its violations of its obligations under the CERD. The UAE contended that its actions were not discriminatory, and were rather implemented only to protect its national security.Footnote ¹²² In its July 2018 Order, the ICJ stated, concerning the existence of a legal right under the CERD:

After citing those CERD Articles pertinent to the case, the ICJ affirmed the justiciability of this dispute, and its jurisdiction to adjudicate it.Footnote ¹²⁴ At present two more cases resulting from the 2017 Gulf Crisis are pending before the ICJ, in which the quartet argued that they had boycotted Qatar for failing to comply with its commitments under the Riyadh Agreements.Footnote ¹²⁵ The claim influencing the national security exception was also raised in the four WTO cases brought by Qatar against Bahrain, Saudi Arabia, and the UAE.Footnote ¹²⁶ The defendant states have expectedly cited Article XXI of the General Agreements on Tariffs and Trade [GATT] as justification for their restrictive trade measures. This Article reads: “Nothing in this Agreement shall be construed … b. to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interest.”Footnote ¹²⁷ Article XXI(b) went on to detail three circumstances for exercising this exception, which include: “III. taking in time of war or other emergency in international relations.”Footnote ¹²⁸

After analyzing national security exceptions in international economic law, Desierto concluded that:

The key point to take from Desierto's analysis is that the security exception in GATT Article XXI is not “a self-judged matter that takes a governmental measure out of the ambit of WTO law”.Footnote ¹³⁰ This point has been the subject of a number of disputes, including the WTO case between Qatar and the UAE, in which the former is seeking a review of the UAE's assertion of national security under GATT Article XXI.Footnote ¹³¹ Nevertheless, the quartet objected to Qatar's request to establish a Panel, stating that the measures “in this dispute are not trade issues, the WTO's dispute system was not equipped to hear them, and clear language existed in the agreements excluding such disputes from the WTO [citing Article XXI of the GATT, Article XIVbis of the GATS and Article 73 of the TRIPS Agreement]”.Footnote ¹³² The quartet's objection was supported by the US, which determined that: “the national security issues were political and not appropriate for the WTO dispute system. If the parties are unable to resolve the issue bilaterally, the US suggested they ask for assistance from the Director-General or another WTO member.”Footnote ¹³³

However, Erasmus arrived at the conclusion reported by Desierto regarding the justiciability of measures taken in accordance with GATT Article XXI(b), citing the recent WTO case Russia-Measures Concerning Traffic in Transit.Footnote ¹³⁴ This case was brought by the Ukraine, alleging that the transit measures taken by Russia during its military takeover of the Crimea in 2014 contravened its obligations under the GATT and the Protocol of Accession.Footnote ¹³⁵ The Panel asserted with regard to GATT XXI(b)(iii):

The Panel then reviewed the Russian measures, concluding that they were in compliance with GATT Article XXI(b)(iii), and also satisfied the Chapeau of GATT Article XXI(b).Footnote ¹³⁷ However, as noted earlier, the Panels resulting from the 2017 Gulf Crisis in the two WTO cases had not rendered their rulings; in fact, in the case against the UAE there was a significant delay, as it was composed on 3 September 2018.Footnote ¹³⁸ It is unclear whether the WTO took the US advice that the dispute should be settled diplomatically by the WTO Director General in accordance with Article 5(6) of the WTO Dispute Settlement Understanding, which stipulates: “The Director-General may, acting in an ex officio capacity, offer good offices, conciliation or mediation with the view to assisting Members to settle a dispute.”Footnote ¹³⁹ Moreover, with regard to the WTO dispute brought by the UAE against Qatar, the UAE Foreign Ministry announced on 8 August 2019 that it had concluded proceedings against Qatar, following its withdrawal of discriminatory measures.Footnote ¹⁴⁰ This happened prior to the composition of the WTO Panel, and afforded the first indication of the possibility of an amicable settlement that might lead to a reciprocal action from Qatar.

Overall, the GCC does not possess the legal capacity to adjudicate these kinds of trade disputes involving Member States, because, inter alia, the 2001 Economic Agreement can be found in conflict with WTO law, since it did not recognize the supremacy of GATT obligations, especially the requirements of Article XXIV on custom unions and free trade areas.Footnote ¹⁴¹ Furthermore, the GCC Supreme Council did not show willingness to establish the CSD or the EJC (presumably because of the national security exceptions), and it is reasonable then to assume that the GCC is diplomatically seeking to settle the 2017 Gulf Crisis using ad hoc committees working in private. If no amicable settlement is under way, then the GCC will continue co-operation in all domains, eventually placating the crisis, and strengthening the GCC resolve to reform its dispute settlement mechanisms. The regional crises should have taught the GCC a number of lessons relating to textual and institutional legal design, specified in the following section.

V. THE FINDINGS AND RECOMMENDATIONS FOR REFORMING THE GCC

Legal issues arising from the Riyadh Agreements, namely, the justiciability of national security measures, and primacy of international law rules, are commonplace, and unlike the WTO DSB, with its limited jurisdiction and delayed rulings, highly anticipated ICJ rulings aim to clarify these issues and finalize disputes. Nevertheless, the fact that the GCC has not yet been able to handle this crisis politically or legally is worrisome for two reasons. First, it is concerning because the GCC is vitally important to the political, economic, and social securities and interests of all GCC countries, including their citizens. By preventing the GCC from resolving this crisis, it has, in effect, stripped it of its authority and legitimacy to promote and protect these securities and interests under the law. The Member States have invested heavily in financing and providing human resources to build and maintain the GCC to facilitate co-operation and to prevent disputes. Second, this crisis could lead to foreign investment disputes, and if the canal project were to be implemented, it could become a border dispute before the ICJ.

Therefore, the GCC should address the following institutional and textual deficiencies: first, the GCC should always ensure and assert its political and legal independence as a regional intergovernmental organization governed by public international law. The GCC is proud to promote full co-operation in almost all domains that are relevant for the security and stability of its Member States, including the wellbeing of their citizens. However, an organization aspiring to this goal should have clear legal rules for regulated co-operation and sanctioning deviation, which can then also be enforced by an independent and impartial dispute settlement body. The GCC should uphold its purpose of regulated co-operation, and processes of law, by legally safeguarding its autonomy, emphasizing its institutional responsibility. In this regard, the GCC can find guidance and model rules in the common law and practice of international organizations, the VCLT, and the 2011 Draft Articles on the Responsibility of International Organizations.

Second, GCC dispute settlement mechanisms should not be conditional upon the Supreme Council's approval or the voluntary invocation of a jurisdiction. The GCC mediation has been fruitful in some cases, and should always be made available and enhanced if necessary, to make timely and effective settlements. In addition, the GCC Charter should be amended, affording rules about the rights and obligations of Member States, and making the jurisdiction of the CSD compulsory, and able to be invoked by any concerned Member State. The GCC can adopt the three-stage dispute settlement procedure in Article 27 of the 2001 Economic Agreement, identifying this as binding for any dispute pertaining to the GCC rules.

Third, the 2001 Economic Agreement should also be amended to avoid conflict with WTO law, as the power this agreement confers on the EJC to adjudicate is imprecise with regard to the supremacy of WTO law. It is perplexing that the GCC clarified this crucial point of legal drafting as early as 1998 in its agreement with the ECC, and in 2013 in its FTA with Singapore, but not in its own customs union agreement. The GCC can utilize similar rules to those set out in the GCC-Singapore FTA Articles 1.5 and 9.1, which reaffirm the parties’ rights under WTO law, and set forth settlement procedures that explicate the role of this FTA Joint Committee when settling disputes amicably through good office, conciliation, or mediation, and when providing rules concerning the parties’ right to resort to the WTO DSB.