I. PRIMA FACIE JURISDICTION

II. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE MEASURES REQUESTED

43. The power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights of the parties in a case, pending its decision on the merits thereof. It follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party. Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible (see, for example, 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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 126, para. 63).

44. At this stage of the proceedings, the Court, however, is not called upon to determine definitively whether the rights which Qatar wishes to see protected exist; it need only decide whether the rights claimed by Qatar on the merits, and for which it is seeking protection, are plausible. Moreover, a link must exist between the rights whose protection is sought and the provisional measures being requested (ibid., para. 64).

*  *

45. In its Application, Qatar asserts rights under Articles 2, 4, 5, 6 and 7 of CERD. In its Request for the indication of provisional measures, in order to identify the rights which it seeks to protect pending a decision on the merits, Qatar refers to Articles 2, 4, 5 and 6 of the Convention and, in the course of the oral proceedings on its Request, it also referred to Article 7 of the Convention. In those hearings, Qatar asserted that the UAE was violating the Convention's prohibition on collective expulsion, interfering with Qataris’ basic human rights under Articles 2 and 5, inciting and failing to condemn racial hatred and prejudice under Articles 4 and 7, and denying effective protection and remedies against acts of racial discrimination under Article 6.

46. Qatar states that the alleged rights are plausible in so far as they are “grounded in a possible interpretation” of the treaty invoked. For Qatar, the definition of racial discrimination under Article 1, paragraph 1, of the Convention “is a question of plausibility of the rights asserted”. Qatar submits that “the measures imposed by the UAE on 5 June 2017 and thereafter make clear their purpose: racial discrimination based on national origin”. In the second round of oral observations, Qatar added that “the Convention cannot be read to exclude discriminatory conduct based on Qatari national origin or nationality”. Qatar argues that its “claims that the UAE is singling out Qataris and only Qataris en masse for discriminatory treatment raise plausible rights supporting an indication of provisional measures”.

47. With regard to evidence adduced to demonstrate the plausibility of the rights it claims, Qatar refers in particular to the December 2017 report of the Technical Mission despatched by the Office of the United Nations High Commissioner for Human Rights (hereinafter “OHCHR”) which concluded that the measures put in place by the UAE had “a potentially durable effect on the enjoyment of the human rights and fundamental freedoms of those affected”. Qatar argues, in conclusion, that the rights it claims clearly fulfil the condition of plausibility.

*

48. The UAE, for its part, contends that in making its claim, and in attempting to provide a basis for the measures requested, Qatar seeks to give an unacceptably broad interpretation to a number of the obligations enumerated in Article 5 of the Convention, and that, as a consequence, the rights on which it seeks to rely are not plausible. It submits that the definition of “racial discrimination” in Article 1, paragraph 1, of CERD does not apply to differences of treatment on the basis of “present nationality” (see paragraph 24 above).

49. The UAE also argues that the lack of evidence supporting Qatar's claims calls into question the plausibility of the rights asserted by Qatar. In particular, it maintains that the report of the Technical Mission of the OHCHR relates to events which occurred over seven months earlier and that its relevance to the circumstances prevailing at this moment is highly questionable.

*  *

50. The Court notes that CERD imposes a number of obligations on States parties with regard to the elimination of racial discrimination in all its forms and manifestations. Article 1 of CERD defines racial discrimination in the following terms:

Articles 2, 4, 5, 6 and 7 of the Convention, invoked by Qatar, read as follows:

Article 2

1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

1. (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

2. (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;

3. (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

4. (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

5. (e) Each State Party undertakes to encourage, where appropriate, integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

Article 4

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

1. (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

2. (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

3. (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

1. (a) The right to equal treatment before the tribunals and all other organs administering justice;

2. (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;

3. (c) Political rights, in particular the right to participate in elections — to vote and to stand for election — on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

4. (d) Other civil rights, in particular:

   1. (i) The right to freedom of movement and residence within the border of the State;

   2. (ii) The right to leave any country, including one's own, and to return to one's country;

   3. (iii) The right to nationality;

   4. (iv) The right to marriage and choice of spouse;

   5. (v) The right to own property alone as well as in association with others;

   6. (vi) The right to inherit;

   7. (vii) The right to freedom of thought, conscience and religion;

   8. (viii) The right to freedom of opinion and expression;

   9. (ix) The right to freedom of peaceful assembly and association;

5. (e) Economic, social and cultural rights, in particular:

   1. (i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

   2. (ii) The right to form and join trade unions;

   3. (iii) The right to housing;

   4. (iv) The right to public health, medical care, social security and social services;

   5. (v) The right to education and training;

   6. (vi) The right to equal participation in cultural activities;

6. (f) The right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafés, theatres and parks.

Article 6

States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.

Article 7

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.”

51. The Court recalls, as it did in past cases in which CERD was at issue, that there is a correlation between respect for individual rights, the obligations of States parties under CERD and the right of States parties to seek compliance therewith (see 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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 135, para. 81).

52. The Court notes that Articles 2, 4, 5, 6 and 7 of CERD are intended to protect individuals from racial discrimination. Consequently, in the context of a request for the indication of provisional measures, a State party to CERD may avail itself of the rights under the above-mentioned Articles only if the acts complained of appear to constitute acts of racial discrimination as defined in Article 1 of the Convention.

53. In this regard, the Court recalls its conclusion that it need not decide at this stage of the proceedings between the divergent views of the Parties on whether the expression “national . . . origin” in Article 1, paragraph 1, of CERD encompasses discrimination based on “present nationality” (see paragraph 27 above).

54. In the present case, the Court notes, on the basis of the evidence presented to it by the Parties, that the measures adopted by the UAE on 5 June 2017 appear to have targeted only Qataris and not other non-citizens residing in the UAE. Furthermore, the measures were directed to all Qataris residing in the UAE, regardless of individual circumstances. Therefore, it appears that some of the acts of which Qatar complains may constitute acts of racial discrimination as defined by the Convention. Consequently, the Court finds that at least some of the rights asserted by Qatar under Article 5 of CERD are plausible. This is the case, for example, with respect to the alleged racial discrimination in the enjoyment of rights such as the right to marriage and to choice of spouse, the right to education, as well as freedom of movement, and access to justice.

* *

55. The Court now turns to the issue of the link between the rights claimed and the provisional measures requested.

*  *

56. Qatar contends that there is clearly a link between all the measures requested and the various rights arising out of CERD whose protection it seeks, including the general prohibition of racial discrimination, the prohibition of hate speech, and the enjoyment of civil and political rights, as well as economic, social and cultural rights referred to in Article 5 of the Convention.

*

57. The UAE, for its part, contends that the requisite link between the rights relied upon and the measures sought is not present. In particular, it argues that the principal aim of the provisional measures being requested is the overturning of the alleged limitations on the entry of Qatari nationals to the UAE; however, according to the UAE, the measures sought are as such insufficiently linked to the rights which Qatar asserts are at issue.

*  *

58. The Court has already found (see paragraph 54 above) that at least some of the rights asserted by Qatar under Article 5 of CERD are plausible. It recalls that Article 5 prohibits discrimination in the enjoyment of a variety of civil and political rights and economic, social and cultural rights. The Court considers that the measures requested by Qatar (see paragraph 11 above) are aimed not only at ending any collective expulsion of Qataris from the territory of the UAE, but also at protecting other specific rights contained in Article 5.

59. The Court concludes, therefore, that a link exists between the rights whose protection is being sought and the provisional measures being requested by Qatar.

III. RISK OF IRREPARABLE PREJUDICE AND URGENCY

60. The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings (see, for example, Jadhav (India v. Pakistan), Provisional Measures, Order of 18 May 2017, I.C.J. Reports 2017, p. 243, para. 49; 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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 136, para. 88).

61. However, the power of the Court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights in dispute before the Court gives its final decision (Jadhav (India v. Pakistan), Provisional Measures, Order of 18 May 2017, I.C.J. Reports 2017, p. 243, para. 50; 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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 136, para. 89). The condition of urgency is met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the Court rules on the merits (Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1169, para. 90). The Court must therefore consider whether such a risk exists at this stage of the proceedings.

62. The Court is not called upon, for the purposes of its decision on the request for the indication of provisional measures, to establish the existence of breaches of CERD, but to determine whether the circumstances require the indication of provisional measures for the protection of rights under this instrument. It cannot at this stage make definitive findings of fact, and the right of each Party to submit arguments in respect of the merits remains unaffected by the Court's decision on the request for the indication of provisional measures.

*  *

63. Qatar submits that irreparable prejudice is the natural consequence of violations of the rights before the Court in this case and that no decision of the Court on the merits — whenever it is rendered — could “wipe out” all of this damage and “restore” the status quo ante. Qatar is of the view that, in the present case, the Court does not need to determine whether there is a risk of irreparable prejudice to those rights, since the evidence shows that this type of prejudice exists today and continues to be manifest, as a result of the UAE's refusal to comply with CERD. Qatar thus emphasizes the continuous nature of the violations of the fundamental rights alleged, namely the rights to movement and residence, family reunification, education, work, freedom of opinion and expression, health, freedom of religious practice, private property and the right to access courts in the UAE to protect Qatari property and assets or to challenge any discriminatory measures. Qatar stresses that the “durable consequences” of the continuous violation of the right to movement and residence on the right to work and to access property, as well as on the right to family reunification, was acknowledged in the report of the Technical Mission despatched by the OHCHR and, therefore, “cannot be questioned”. Citing a report of Amnesty International dated 5 June 2018, Qatar asserts that, a year on, the situation has not improved and that residents of the region are still left facing uncertain futures. Qatar concludes that, since the damage is present and ongoing, the condition of imminence is also plainly fulfilled.

64. Qatar claims that the UAE has resisted all requests to terminate the discriminatory measures. It refers in particular to the issuance by the UAE of thirteen demands on 23 June 2017, supplemented by six demands on 5 July 2017, requesting, inter alia, that Qatar align itself with the other Gulf and Arab countries militarily, politically, socially, and economically, as a precondition for the lifting of the discriminatory measures. Qatar submits that, in doing so, the UAE has aggravated the dispute. Qatar contends that, in light of the UAE's refusal to suspend or withdraw its illegal acts, the people of Qatar could see an indefinite violation of their rights and would suffer damage and distress as a result. Accordingly, it considers that provisional measures are “urgently required to compel the UAE to abide by its international obligations under the CERD”.

*

65. The UAE denies that there exists a risk of irreparable prejudice to the rights of the Applicant under CERD. Challenging the reliance and independence of the evidence submitted to the Court by Qatar, it asserts that Qataris continue to enjoy the full rights granted by law to all residents of or visitors to the UAE. Although the UAE does not deny that it has severed relations with Qatar due to national security concerns, in particular its alleged support for terrorism and extremism, it asserts that the statement of 5 June 2017, whereby its Ministry of Foreign Affairs announced that Qataris were to leave the UAE within 14 days and that they would be prevented from entry, was carefully measured to have the least possible impact on the people of Qatar. The UAE asserts that there were in fact no legal steps taken by its Government to deport Qataris who remained after the 14-day period; restrictions were only imposed on Qataris wishing to enter the UAE, who were required to seek prior permission, which was almost always granted. The UAE adds that measures have been taken to deal with the problem of separation of families that include Qataris. Thus, a presidential directive, issued on 6 June 2017, instructed the authorities to take into account the humanitarian circumstances of UAE-Qatari mixed families, and a special telephone line was established to deal with such cases and to ensure that appropriate action was taken. The UAE argues that, even if the Court were to find that there is a risk of prejudice caused to the rights alleged by Qatar as a result of the actions of the UAE, the prejudice would not be irreparable.

66. The UAE further asserts that the situation is not urgent as alleged by Qatar. In addition to referring to the remedial measures already taken, as described in paragraph 65 above, it observes that the Request for provisional measures was filed by Qatar on 11 June 2018, i.e. more than a year after the Ministry of Foreign Affairs of the UAE made a statement asking Qatari nationals to leave the country within 14 days.

*  *

67. The Court considers that certain rights in question in these proceedings — in particular, several of the rights stipulated in Article 5, paragraphs (a), (d) and (e), of CERD — are of such a nature that prejudice to them is capable of causing irreparable harm (see 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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 138, para. 96). On the basis of the evidence presented to it by the Parties, the Court is of the opinion that the situation of Qataris residing in the UAE prior to 5 June 2017 appears to remain vulnerable with regard to their rights under Article 5 of the Convention.

68. In this regard, the Court observes that, following the statement of 5 June 2017, whereby the Ministry of Foreign Affairs of the UAE announced that Qataris were to leave the territory within 14 days and that they would be prevented from entry, many Qataris residing in the UAE at that time appeared to have been forced to leave their place of residence without the possibility of return. The Court notes that a number of consequences apparently resulted from this situation and that the impact on those affected seem to persist to this date: UAE-Qatari mixed families have been separated; Qatari students have been deprived of the opportunity to complete their education in the UAE and to continue their studies elsewhere since UAE universities have refused to provide them with their educational records; and Qataris have been denied equal access to tribunals and other judicial organs in the UAE.

69. As the Court has already observed, individuals forced to leave their own place of residence without the possibility of return could, depending on the circumstances, be subject to a serious risk of irreparable prejudice (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, p. 396, para. 142). The Court is of the view that a prejudice can be considered as irreparable when individuals are subject to temporary or potentially ongoing separation from their families and suffer from psychological distress; when students are prevented from taking their exams due to enforced absence or from pursuing their studies due to a refusal by academic institutions to provide educational records; or when the persons concerned are impeded from being able to physically appear in any proceedings or to challenge any measure they find discriminatory.

70. The Court notes that the UAE stated, in response to a question posed by a Member of the Court at the end of the oral proceedings, that, following the statement of 5 June 2017 by its Ministry of Foreign Affairs, no administrative orders have been issued under the Immigration Law to expel Qataris. The Court nonetheless notes that it appears from the evidence before it that, as a result of this statement, Qataris felt obliged to leave the UAE resulting in the specific prejudices to their rights described above. Moreover, in view of the fact that the UAE has not taken any official steps to rescind the measures of 5 June 2017, the situation affecting the enjoyment of their above-mentioned rights in the UAE remains unchanged.

71. The Court thus finds that there is an imminent risk that the measures adopted by the UAE, as set out above, could lead to irreparable prejudice to the rights invoked by Qatar, as specified by the Court (see paragraph 54 above).

IV. CONCLUSION AND MEASURES TO BE ADOPTED

72. The Court concludes from all of the above considerations that the conditions required by its Statute for it to indicate provisional measures are met. It is therefore necessary, pending its final decision, for the Court to indicate certain measures in order to protect the rights claimed by Qatar, as identified above (see paragraph 54 above).

73. The Court recalls that it has the power, under its Statute, when a request for provisional measures has been made, to indicate measures that are, in whole or in part, other than those requested. Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the Court. The Court has already exercised this power on several occasions in the past (see, for example, 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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 139, para. 100).

74. In the present case, having considered the terms of the provisional measures requested by Qatar and the circumstances of the case, the Court finds that the measures to be indicated need not be identical to those requested.

75. Reminding the UAE of its duty to comply with its obligations under CERD, the Court considers that, with regard to the situation described above, the UAE must, pending the final decision in the case and in accordance with its obligations under CERD, ensure that families that include a Qatari, separated by the measures adopted by the UAE on 5 June 2017, are reunited, that Qatari students affected by those measures are given the opportunity to complete their education in the UAE or to obtain their educational records if they wish to continue their studies elsewhere, and that Qataris affected by those measures are allowed access to tribunals and other judicial organs of the UAE.

76. The Court recalls that Qatar has requested it to indicate measures aimed at ensuring the non-aggravation of the dispute with the UAE. When it is indicating provisional measures for the purpose of preserving specific rights, the Court may also indicate provisional measures with a view to preventing the aggravation or extension of a dispute whenever it considers that the circumstances so require (see 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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 139, para. 103). In this case, having considered all the circumstances, in addition to the specific measures it has decided to take, the Court deems it necessary to indicate an additional measure directed to both Parties and aimed at ensuring the non-aggravation of their dispute.

*

*  *

77. The Court reaffirms that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party to whom the provisional measures are addressed.

*

*  *

78. The Court further reaffirms that the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves. It leaves unaffected the right of the Governments of Qatar and the UAE to submit arguments in respect of those questions.

*

*  *

79. For these reasons,

THE COURT,

Indicates the following provisional measures:

(1) By eight votes to seven,

The United Arab Emirates must ensure that

1. (i) families that include a Qatari, separated by the measures adopted by the United Arab Emirates on 5 June 2017, are reunited;

2. (ii) Qatari students affected by the measures adopted by the United Arab Emirates on 5 June 2017 are given the opportunity to complete their education in the United Arab Emirates or to obtain their educational records if they wish to continue their studies elsewhere; and

3. (iii) Qataris affected by the measures adopted by the United Arab Emirates on 5 June 2017 are allowed access to tribunals and other judicial organs of the United Arab Emirates;

IN FAVOUR: President Yusuf; Vice-President Xue; Judges Abraham, Bennouna, Cançado Trindade, Sebutinde, Robinson; Judge ad hoc Daudet;

AGAINST: Judges Tomka, Gaja, Bhandari, Crawford, Gevorgian, Salam; Judge ad hoc Cot;

(2) By eleven votes to four,

Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Gaja, Sebutinde, Bhandari, Robinson; Judge ad hoc Daudet;

AGAINST: Judges Crawford, Gevorgian, Salam; Judge ad hoc Cot.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-third day of July, two thousand and eighteen, 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 COUVREUR, Registrar.

Judges TOMKA, GAJA and GEVORGIAN append a joint declaration to the Order of the Court; Judge CANÇADO TRINDADE appends a separate opinion to the Order of the Court; Judges BHANDARI, CRAWFORD and SALAM append dissenting opinions to the Order of the Court; Judge ad hoc COT appends a dissenting opinion to the Order of the Court.

(Initialled) A.A.Y.

(Initialled) Ph.C.

______________

JOINT DECLARATION OF JUDGES TOMKA, GAJA AND GEVORGIAN

Dispute should prima facie fall within the scope of the treaty containing the compromissory clause — Factors to be taken into account for the purposes of the prohibition of racial discrimination — “National origin” not identical to “nationality” — Discrimination based on nationality does not prima facie fall within the scope of CERD.

We have not been able to support the Court's Order for the reasons explained below. Our vote, however, does not imply that we have no understanding for the humanitarian considerations underlying a call that the mixed Qatari–Emirati families remain united or, if they were separated, be able to reunite, that Qatari students be able to continue their studies in the United Arab Emirates (hereinafter “UAE”) or elsewhere and that Qataris have access, in case of need, to tribunals and other judicial organs in the UAE. We do hope that the rights of these people are respected. However, we believe that certain legal requirements for the Court to indicate provisional measures are not met in the present case.

1. When assessing prima facie its jurisdiction and the plausibility of the rights invoked by the requesting Party in view of the adoption of provisional measures, the Court has to ascertain that prima facie the dispute falls within the scope of the treaty that contains the compromissory clause conferring jurisdiction on the Court and that the claimed rights are plausibly based on that treaty. Thus, for instance, in Immunities and Criminal Proceedings (Equatorial Guinea v. France) the Court found that “prima facie, a dispute capable of falling within the provisions of the Convention against Transnational Organized Crime and therefore concerning the interpretation or the application of Article 4 of that Convention d[id] not exist” (Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1160, para. 50). Similarly, in 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 concluded that “the conditions required for the indication of provisional measures in respect of the rights alleged by Ukraine on the basis of the ICSFT are not met” (Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 132, para. 76).

2. In the present case, Qatar alleges certain violations by the UAE of obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “CERD”), which contains in Article 22 a compromissory clause with respect to disputes concerning the interpretation or application of CERD.

3. The basis of the alleged discrimination in the treatment of individuals by the UAE of which Qatar has complained consists in the Qatari nationality of the persons concerned. However, CERD only applies to some specific factors of discrimination: “race, colour, descent, or national or ethnic origin”. Nationality is not listed in Article 1, paragraph 1, among the bases of discrimination to which CERD applies.

4. When the Convention considers “national origin” as one of the prohibited bases for discrimination, it does not refer to nationality. In our view, the two terms are not identical and should not be understood as synonymous. The travaux préparatoires support this view and indicate that States sought to exclude distinction on the basis of nationality from the scope of CERD. In the discussions of the draft Convention in the Third Committee of the General Assembly, an amendment specifying that “the expression ‘national origin’ does not mean ‘nationality’ or ‘citizenship’” was withdrawn by their sponsors, but this was done only in favour of the final text of Article 1, which evidently was considered to make matters equally clear (United Nations, doc. A/6181, pp. 12–13). The omission of a reference to nationality may be easily explained. Should CERD be considered as covering also discrimination based on nationality, the Convention would be a far-reaching instrument, that contains a clause providing that, with regard to the wide array of civil rights that are protected under CERD, all foreigners must be treated by the host State in the same way as nationals of the State who enjoy the most favourable treatment.

5. The CERD Committee has taken the view — in particular, in paragraph 4 of its General Recommendation No. XXX on discrimination against non-citizens — that the Convention should be interpreted as covering also differences of treatment on the basis of nationality. However, the CERD Committee has not stated in as many words that nationality is equivalent to national origin. It has rather identified certain conditions for the prohibition of discrimination that are specific to nationality and immigration and do not apply when the bases of discrimination listed in Article 1, paragraph 1, are in question. It would be difficult to give weight to this view of the CERD Committee since it gives no reason for its interpretation that different treatment based on nationality constitutes racial discrimination under CERD, albeit only to a certain extent.

6. It is true that, when Article 1, paragraph 2, sets forth that CERD does not apply to differences of treatment between citizens and non-citizens, it does not exclude that the Convention applies to differences between a group of foreigners and another group of foreigners. However, even in that case, in order to be relevant under CERD, discrimination must rest on one of the bases listed in Article 1, paragraph 1. Differences 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, but this possibility has not been suggested by Qatar.

7. These remarks lead to the conclusion that the dispute of which the Court is seised does not fall prima facie within the scope of CERD and that the rights that are invoked under CERD are not plausible. This does not mean that the conduct of the UAE could not be viewed as inconsistent with other rules of international law, but in the present case the Court is called to examine only the claims put forward under CERD.

(Signed) Peter TOMKA.

(Signed) Giorgio GAJA.

(Signed) Kirill GEVORGIAN.

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SEPARATE OPINION OF JUDGE CANÇADO TRINDADE

Table of Contents

Paragraphs

1. I. Prolegomena…………996

2. II. A New Era of International Adjudication of Human Rights Cases by the ICJ…………997

3. III. The Relevance of the Fundamental Principle of Equality and Non-Discrimination…………998

4. IV. Non-Discrimination and the Prohibition of Arbitrariness…………1000

5. V. Arguments of the Parties in the Public Hearings before the Court…………1001

6. VI. Questions Put to the Parties in the Public Hearings before the Court…………1002

   1. 1. Questions and Answers…………1002

   2. 2. General Assessment: Rationale of the Local Remedies Rule in International Human Rights Protection…………1004

   3. 3. General Assessment: Implications of a Continuing Situation…………1005

7. VII. The Correct Understanding of Compromissory Clauses under Human Rights Conventions…………1005

8. VIII. Vulnerability of Segments of the Population…………1006

9. IX. Towards the Consolidation of the Autonomous Legal Regime of Provisional Measures of Protection…………1007

10. X. International Law and the Temporal Dimension…………1008

11. XI. Provisional Measures of Protection in Continuing Situations…………1008

12. XII. Epilogue: A Recapitulation…………1010

I. PROLEGOMENA

1. I have concurred, with my vote, for the adoption today, 23 July 2018, by the International Court of Justice (ICJ), of the present Order indicating Provisional Measures of Protection in the case of the International Convention on the Elimination of All Forms of Racial Discrimination [CERD] (Qatar versus United Arab Emirates - UAE). The ICJ has rightly ordered today, with my support, provisional measures of protection, under the CERD Convention. Additionally, as I attribute great importance to some related issues in the cas d'espèce, that in my perception underlie the present decision of the ICJ but are left out of the Court's reasoning, I feel obliged to leave on the records, in the present Separate Opinion, the identification of such issues and the foundations of my own personal position thereon.

2. I do so, under the merciless pressure of time, moved by a sense of duty in the exercise of the international judicial function, even more so as some of the lessons I extract from the matter forming the object of the present decision of the Court are not explicitly dealt with in the Court's reasoning in the present Order. This grows in importance in a case, like the present one (and two other cases before - cf. infra), lodged with the ICJ under a core human rights treaty like the CERD Convention.

3. This being so, I shall develop my reflections, initially, in the following sequence: a) a new era of international adjudication of human rights cases by the ICJ; b) the relevance of the fundamental principle of equality and non-discrimination; and c) non-discrimination and the prohibition of arbitrariness. I shall then examine the arguments made by the contending Parties in the public hearings before the ICJ, and the written responses they presented to the questions that I have deemed it fit to put to them; following that, I shall provide my general assessment as to the rationale of the local remedies rule in international human rights protection, and as to implications of a continuing situation.

4. Following that, I shall develop my further reflections on the remaining points to consider, namely: a) the correct understanding of compromissory clauses under human rights Conventions; b) vulnerability of segments of the population; c) towards the consolidation of the autonomous legal regime of provisional measures of protection; d) international law and the temporal dimension; and e) provisional measures of protection in continuing situations. Last but not least, in an epilogue, I shall conclude with a recapitulation of the key points of the position I sustain in the present Separate Opinion.

5. To start with, may I recall that, in a relatively brief period of time (2011–2018), the cas d'espèce on Application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD Convention - Qatar versus UAE) is the third case lodged with the International Court of Justice (ICJ) under the United Nations CERD Convention: the present Order follows chronologically the Court's decisions in the cases of Georgia versus Russian Federation (preliminary objections, 2011)Footnote ¹ and of Ukraine versus Russian Federation (provisional measures of protection, 2017)Footnote ².

6. In addition to those three cases under the CERD Convention, there have been other cases brought before the ICJ, and decided by it, along the last eight years, concerning also other human rights treaties. May I recall, in this respect, the case on questions relating to the Obligation to Prosecute or Extradite (merits, 2012), under the U.N. Convention against Torture. Another example is provided by the case of A.S. Diallo (merits, 2010, and reparations, 2012), in respect of, inter alia, the U.N. Covenant on Civil and Political Rights (cf. infra).

II. A NEW ERA OF INTERNATIONAL ADJUDICATION OF HUMAN RIGHTS CASES BY THE ICJ

7. To the ICJ's Judgment on the merits (of 30.11.2010) on the case of A.S. Diallo, opposing Guinea to D.R. Congo, I appended a Separate Opinion, wherein, inter alia, I deemed it fit to draw attention to the advent of a new era of international adjudication of human rights cases by the ICJ (paras. 232–245). In particular, - I singled out, - that was the first time in its history that “the World Court has expressly taken into account the contribution of the case-law of two international human rights tribunals, the European and the Inter-American Courts, to the perennial struggle of human beings against arbitrariness”. In effect, - I added, - paragraph 65 of its Judgment referred to “the protection of the human person against arbitrary treatment, encompassing the prohibition of arbitrary expulsionFootnote ³” (para. 237). I then concluded that

8. In the light of the aforementioned, and bearing in mind all that has been happening here at the Grande Salle de Justice in the Peace Palace at The Hague in the last nine years, one is to acknowledge that we are already within the new era of international adjudication of human rights cases by the ICJ. The present case of Application of the CERD Convention (Qatar versus UAE) bears witness of that. Having pointed this out, I can now move to the next point to consider in this Separate Opinion, namely, the relevance of the fundamental principle of equality and non-discrimination.

III. THE RELEVANCE OF THE FUNDAMENTAL PRINCIPLE OF EQUALITY AND NON-DISCRIMINATION

9. In the cas d'espèce, Qatar's Request for the Indication of Provisional Measures of Protection (of 11.06.2018) identifies the rights it seeks to protect against discriminatory measures that “violate the customary international law principle of non-discrimination as well as the specific obligations enumerated in CERD [Convention] Articles 2, 4, 5, 6, 7” (p. 8, para. 12)Footnote ⁴. The principle of equality and non-discrimination lies indeed in the foundations of the protected rights under the CERD Convention. This is a point which should have been attentively addressed by the contending parties in the course of the current proceedingsFootnote ⁵, which were largely consumed by diverting attention to points with no bearing at all on the consideration of provisional measures of protection under a human rights Convention.

10. This being so, I feel obliged to fill the gap, as I nourish the hope that this unfortunate diversion does not happen again in cases of the kind before the ICJ, where the applicable law is a human rights Convention, and not at all diplomatic protection rules. It is the principle of equality and non-discrimination which here calls for attention, there being no place for devising or imagining new “preconditions” for the consideration of provisional measures of protection under a human rights Convention; it makes no sense to intermingle at this stage the consideration of provisional measures with so-called “plausible admissibility” (cf. section VI, infra).

11. In focusing attention, thus, on the principle of equality and non-discrimination, it should not pass unnoticed, to start with, that the idea of human equality marked presence already in the origins of the law of nations (droit des gens), well before finding expression in the international instruments which conform its corpus juris gentium, as known in our times. The idea of human equality was underlying the original conception of the unity of human kind (present, for example, in the pioneering thinking of Francisco de Vitoria and Bartolomé de Las Casas in the XVIth century).

12. The fundamental principle of equality and non-discrimination is nowadays a basic pillar of the U.N. CERD Convention, and of the whole corpus juris of the International Law of Human Rights. The expression of such principle emanated from human conscience, and projected itself in the evolving law of nations from the XVIIth to the XXIst centuries. The principle of equality and non-discrimination has a long history, accompanying the historical formation and evolution of the law of nations itself.

13. By the mid-XXth century, the 1948 Universal Declaration of Human Rights proclaimed that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” (Article 1). It added that “[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination” (Article 7).

14. And the 1945 Charter of the United Nations began by asserting the determination of “the peoples of the United Nations” to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small” (second preambular paragraph). Nowadays, the fundamental principle of equality and non-discrimination lies also in the foundations of the Law of the United Nations itself.

15. The gradual consolidation of the mechanisms of international protection of human rights, moreover, has much contributed to a growing awareness of the importance of the prevalence of the basic principle of equality and non-discrimination. Certain expressions were to emerge (e.g., “equality before the law” and “equal protection of the law”), on the basis of human values, and associated to the corresponding obligations of States Parties to human rights treaties.

16. Supervisory organs of such treaties have been giving their constant contribution - of growing importance - to the prohibition of the discrimination de facto or de jure, in their faithful exercise of their functions of protection of the human personFootnote ⁶. The obligation of non-discrimination as related to the substantive rights protected under those treaties draws attention to the positive obligations of the States Parties to secure the protection of the human beings under their jurisdiction against the discrimination in all ambits of human relationsFootnote ⁷.

17. For its part, the Committee on the Elimination of Racial Discrimination, for example, has in this respect issued General Recommendations orienting its own interpretation of the relevant provisions of the CERD Convention. Among them, there are those which have an incidence in the consideration of the present case of Application of the CERD Convention (Qatar versus UAE), namely: General Recommendation n. 30 (of 19.08.2004), on discrimination against non-citizens; General Recommendation n. 35 (of 26.09.2013), on combatting racist hate speech; General Recommendation n. 25 (of 20.03.2000), on gender-related dimensions of racial discrimination; General Recommendation n. 22 (of 23.08.1996), on Article 5 of the CERD Convention in relation to refugees and displaced persons.

18. The advances in respect of the basic principle of equality and non-discrimination at normative and jurisprudential levelsFootnote ⁸, have not, however, been accompanied by the international legal doctrine, which so far has not dedicated sufficient attention to that fundamental principle; it stands far from guarding proportion to its importance both in theory and practice of Law. This is one of the rare examples of international case-law preceding international legal doctrine, and requiring from it due and greater attention.

19. A significant jurisprudential advance is found in the ground-breaking Advisory Opinion n. 18 (of 17.09.2003) of the IACtHR, on the Juridical Condition and Rights of Undocumented Migrants, upholding the view that the fundamental principle of equality and non-discrimination had entered the realm of jus cogens, thus enlarging its material content (paras. 97–101 and 110–111)Footnote ⁹. In the IACtHR's understanding, States cannot discriminate, nor tolerate discriminatory situations to the detriment of those persons; they had a duty to guarantee them the due process of law, irrespective of their migratory status. States can no longer subordinate or condition the observance of the principle of equality before the law and non-discrimination to the objectives of their migratory or other policies.

20. For my part, I focused on this significant jurisprudential advance in my Concurring Opinion appended to the aforementioned Advisory Opinion n. 18 of the IACtHR, wherein I stressed, in support of the Court's position, the relevance of the basic principle of equality and non-discrimination, enlarging the material content of jus cogens, and permeating, - together with other general principles of law, - the whole juridical order itself, conforming its substratum (paras. 44–46, 52–58, 65 and 72)Footnote ¹⁰. Without such principles, there is ultimately no legal order at all. I developed my whole reasoning in the line of jusnaturalist thinking, - which marked the origins and historical evolution of the law of nations (droit des gens), - in the framework of the civitas maxima gentium and of the universality of the human kind.

21. The path was then paved for jurisprudential developments also in the international adjudication of contentious cases pertaining to the basic principle of equality and non-discriminationFootnote ¹¹. In effect, this fundamental principle has been addressed - in Judgments on contentious cases as well as in Advisory Opinions - in face of social marginalization (IACtHR, cases of Servellón-García and Others, 2006, and of Indigenous Community Sawhoyamaxa, 2006); of prohibition of arbitrariness (ICJ, case of A.S. Diallo, merits, 2010, and reparations, 2012; Advisory Opinion on the Declaration of Independence of Kosovo, 2010; and case concerning the CERD Convention, 2011), as well as in face of procedural equality (IACtHR, case Loayza Tamayo, 1997; and ICJ, Advisory Opinion on Judgment of the ILO Administrative Tribunal on a Complaint against IFAD, 2012).

IV. NON-DISCRIMINATION AND THE PROHIBITION OF ARBITRARINESS

22. The protection being sought before the ICJ in the cas d'espèce, under the CERD Convention, is furthermore against arbitrary measures, against arbitrariness. Brief references were made to this in the course of the present oral pleadings before the ICJFootnote ¹². This point has not escaped the attention of other international tribunals, under other human rights Conventions: for example, inter alia, in its Judgment (merits, of 03.07.2014) on the case of Georgia versus Russia, the European Court of Human Rights (ECtHR) singled out the duty under the European Convention on Human Rights (ECHR) “to protect the individual from arbitrariness”, and found that the arrests and detentions that preceded “collective” expulsions (of nationals of the applicant State) amounted to “an administrative practice” in breach of Article 5(1) and (4) of the ECHR (paras. 182 and 186–188).

23. Subsequently, in its Judgment (merits, of 23.08.2016) on the case of J.K. and Others versus Sweden, concerning expulsion of non-citizens (the applicants being Iraqi nationals), the ECtHR held that, if deported, they would face a risk of being subjected to treatment in breach of Article 3 of the ECHR (para. 123) in the destination country. In effect, non-discrimination and the prohibition of arbitrariness are a point which cannot be overlooked, also in a wider framework, in time and space. After all, in the relations between human beings and public power, arbitrariness is an issue which has marked presence everywhere along the history of humankind. It has been a source of concern along the centuries. This is why the tragedies written and performed in ancient Greece remain so contemporary in our days, after so many centuries.

24. Suffice it here to recall, e.g., in Sophocles's Antigone (441 b.C.), the arbitrariness of the ruler Creon's decree prohibiting Antigone to bury the corpse of one of her deceased brothers (Polynices), and her determination nevertheless to do so in pursuance of justice; or else further to recall, some years later, e.g., in Euripides's Suppliant Women (424–419 b.C.), the arbitrariness that led to the grief and lamentation of the women whose deceased children had been separated from them, and their corpses then needed to be buried.

25. Sophocles's Antigone, in particular, has been rewritten, in successive centuries, by several other authors, bearing in mind their respective contemporary manifestations of arbitrariness. Although the ancient Greeks had eyes mainly for justice rather than law (and only later on, Romans of the ancient Empire began to distinguish between law and justice), there are those who seek to associate the tragedy of Sophocles with the seeds or origins of the distinction between natural law and positive law.

26. In any case, arbitrariness, as history shows, is unfortunately part of human nature, and the discrimination that ensues therefrom is both de facto and de jure. If we look at the world nowadays, marked by a serious crisis of values, we can see, in all continents, the inhumane split of families in frontiers, in particular those of migrants or non-citizens. Positive law alone cannot solve the problems created at times by itself, to the detriment of human beings in situations of vulnerability (cf. infra). Law and justice go together, they are indissociable, in the line of the more lucid jusnaturalist thinking.

27. It is important to keep those ancient Greek tragedies in mind also to face the so-called “globalization”, - a misleading and false neologism en vogue in the XXIst century. Such neologism hides the marginalization and social exclusion of increasingly greater segments of the population (including migrants). Frontiers have been opened to capitals and goods, but are sadly being closed down to human beings (with split of families, and new walls, fences and detention centres, in distinct continents).

28. The material progress of some has been accompanied by the exploitation of many (including undocumented migrants). Some human beings (especially power-holders) have placed most fellow human beings in a scale of priority inferior to that attributed to capitals and goods. Nothing has been learned from sufferings of past generations; hence the need to remain attached to the goal of the realization of justice, bearing in mind that law and justice go indissociably together. The ICJ has a mission to keep on endeavouring to contribute to a humanized law of nations, in the dehumanized world of our days.

29. In my aforementioned Separate Opinion appended to the ICJ's Judgment on the case of A.S. Diallo (merits, of 30.11.2010), - concerning the arbitrary detentions followed by expulsion of a foreigner from his country of residence, - I devoted an entire section (VI) of it to “The Prohibition of Arbitrariness in the International Law of Human Rights” (paras. 107–142), wherein I examined the doctrinal development and the jurisprudential construction on the matter. I pondered, inter alia, that, as human rights treaties

30. Such has in fact been the understanding of international tribunals entrusted with the interpretation and application of human rights treaties, - like the ICJ in the present case of the Application of the CERD Convention (Qatar versus UAE). As I pointed out in that Separate Opinion in the case of A.S. Diallo, the case-law of international human rights tribunals is quite clear in this respect. No one can be deprived of liberty in an arbitrary way (cf. e.g., ECtHR, case of Amuur versus France, Judgment of 25.06.1996). No one can be detained or arrested, even when this is considered as “legal”, when it is incompatible with the provisions of human rights treaties and carried out with arbitrariness (e.g., IACtHR, case of the “Street Children” - Villagrán Morales and Others versus Guatemala, merits, Judgment of 19.11.1999; cases of Bámaca Velásquez and of Maritza Urrutia versus Guatemala, Judgments of 25.11.2000 and of 27.11.2003, respectively).

31. The prohibition of arbitrariness, - I proceeded, - stands not only in respect of the right to personal liberty, but also in relation to all other rights protected under human rights treatiesFootnote ¹³, so as to secure the prevalence of the rule of law (la prééminence du droit). Epistemologically, this is the correct posture in this respect, given the universally acknowledged interrelatedness and indivisibility of all human rights. Arbitrariness amounts, in effect, to an abus de pouvoir on the part of the State agents. Accordingly, a domestic law or an administrative act, concerning migrants or non-citizens, cannot be applied when incompatible with the provisions of human rights treaties.

32. And in that Separate Opinion, I concluded, on the extent of the prohibition of arbitrariness, that

V. ARGUMENTS OF THE PARTIES IN THE PUBLIC HEARINGS BEFORE THE COURT

33. The prohibition of arbitrariness brings to the fore the issue of the vulnerability of those affected by discriminatory measures. Before examining this point (cf. section VII, infra), may I now turn to the arguments of the parties during the oral pleadings which have just taken place before the ICJ. In the course of the public hearings (first round) before the Court, the applicant State presented (on 27.06.2018) its own understanding of the factual context of the cas d'espèce within a temporal dimension.

34. Qatar argued that the “collective expulsion” of Qataris from the UAE as a discriminatory measure was ongoing, affecting continuously some of their rights under the CERD Convention (e.g., with the separation of families and loss of work); this was leading to the prolongation and indefinite durationFootnote ¹⁴ of harm or damage, in the human tragedyFootnote ¹⁵ of the numerous and vulnerable victimsFootnote ¹⁶. There was need for urgent regard to human suffering; the continuing vulnerability of segments of the population required urgently, in its view, provisional measures of protection.

35. In the following public hearings before the Court (still first round, on 28.06.2018), the respondent State did not address such issue of a continuing situation raised by Qatar; the UAE focused instead on other aspects, attempting to minimize and dismiss the request for provisional measures of protectionFootnote ¹⁷. It consumed much of the time of those public hearings raising the point (responded by the applicant State - infra), inter alia, of the rule of exhaustion of local remediesFootnote ¹⁸.

36. In the second and last round of public hearings before the Court (on 29.06.2018) the local remedies rule continued to be addressed, this time by both the applicant State, in response to the argument of the respondent State, and by this latter once againFootnote ¹⁹. The applicant State, furthermore, consistently reiterated its understanding of a continuing situation of ongoing alleged violations of human rights requiring “humanitarian considerations”Footnote ²⁰.

VI. QUESTIONS PUT TO THE PARTIES IN THE PUBLIC HEARINGS BEFORE THE COURT

VII. THE CORRECT UNDERSTANDING OF COMPROMISSORY CLAUSES UNDER HUMAN RIGHTS CONVENTIONS

62. I have dwelt upon this particular point in depth in my lengthy Dissenting Opinion in the earlier case on Application of the CERD Convention (Georgia versus Russian Federation, Judgment of 01.04.2011), where the Court upheld the second preliminary objection and found itself without jurisdiction to examine the case. In my Dissenting Opinion (paras. 1–214), I warned at first that the punctum pruriens judicii was the proper understanding of the compromissory clause (Article 22) of the CERD Convention, for which it is necessary to be attentive to the nature and substance of a human rights treaty like the CERD Convention.

63. Regrettably, in that Judgment of 2011, the Court's majority set a very high threshold (as to the requirement of prior negotiations) for the exercise of jurisdiction on the basis of that human rights treaty, the CERD Convention, losing sight of the nature of this important U.N. human rights treaty, endowed with universality. It advanced the view that Article 22 of the CERD Convention establishes “preconditions” to be fulfilled by a State Party before it may have recourse to this  Court, thus rendering access to the ICJ particularly difficult. I added, in my Dissenting Opinion, that this was not in accordance with the Court's (PCIJ and ICJ) own earlier jurisprudence constante, which had never ascribed to that factual element the character of a “precondition” that would have to be fully satisfied, for the exercise of its jurisdictionFootnote ⁴³.

64. It was necessary, - I proceeded, - to turn attention to the sufferings and needs of protection of the affected segments of the population; yet, the Court's majority pursued unfortunately an essentially inter-State, and mostly bilateral, outlook, on the basis of allegedly unfulfilled “preconditions” of its own construction; instead of setting up a higher standard of protection, under the CERD Convention, of individuals in a continuing situation of great vulnerability, it applied, contrariwise, a higher standard of State consent for the exercise of its jurisdiction.

65. One cannot erect, in pursuance of a strictly textual or grammatical reasoning relating to the compromissory clause (Article 22) of the CERD Convention, a mandatory “precondition” for the exercise of the Court's jurisdiction (such as that of prior negotiations), as this amounts to erecting a groundless and most regrettable obstacle to justice. This “precondition”, - I proceeded, - finds no support in the Court's own earlier jurisprudence constante, nor in the legislative history of the CERD Convention.

66. I then pointed out, in my aforementioned Dissenting Opinion, that, already at the time that the CERD Convention was being elaborated there were those who supported the compulsory settlement of disputes by the Court. Underlying the general rule of treaty interpretation is the principle ut res magis valeat quam pereat (the so-called effet utile), of much importance in respect of human rights treaties, amongst which the CERD Convention. This latter is a pioneering human rights Convention, endowed with universality, occupying a prominent place in the Law of the United Nations itself. It cannot be a hostage of State consent or discretion (as in the entirely distinct domain of diplomatic protection), in its interpretation and application.

67. Before moving to the next point, may I here add that all obligations under the CERD Convention (including those of providing redress by means of effective local remedies, and of dispute-settlement in inter-State cases thereunder) have a rationale of their own, proper of human rights treaties. There was awareness of that since the time of the travaux préparatoires of the CERD ConventionFootnote ⁴⁴, so as to secure its effectiveness, and safeguard it from attempts at conceptual deconstruction (such as the devising of additional so-called “preconditions”)Footnote ⁴⁵.

VIII. VULNERABILITY OF SEGMENTS OF THE POPULATION

68. In the present Order that the ICJ has just adopted today, in the case of Application of the CERD Convention (Qatar versus UAE), the Court has correctly granted provisional measures of protection under the CERD Convention, to ensure that families including a Qatari, separated by the measures adopted by the UAE on 05.06.2017, are reunited; that Qatari students, affected by the same measures, complete their education in the UAE, or, if they wish, obtain their educational records to continue their studies elsewhere; and that Qataris, affected by the same measures, have access to national tribunals in the UAE. The CERD Convention itself determines that States Parties are to assure to everyone within their jurisdiction “effective protection and remedies” before national tribunals against any acts of discrimination (Article 6). The provisional measures, as requested in the cas d'espèce, become necessary for the protection of persons in a situation of vulnerability.

69. I have already addressed the principle of non-discrimination and the prohibition of arbitrariness (section III, supra), and my reflections thereon lead me to the next related point to be here considered. Cases as the present one of Application of the CERD Convention (Qatar versus UAE), like the aforementioned previous cases before the ICJ also under the CERD Convention (as well as under other human rights treaties), disclose the centrality of the position of the human person in the overcoming of the inter-State paradigm in contemporary international law. The request of provisional measures of protection is here intended to put an end to the alleged vulnerability of the affected persons (potential victims).

70. Human beings in vulnerability are the ultimate beneficiaries of compliance with the ordered provisional measures of protection. However vulnerable, they are subjects of international law. We are here before the new paradigm of the humanized international law, the new jus gentium of our times, sensitive and attentive to the needs of protection of the human person in any circumstances of vulnerability. This is a point which I have been making in successive Individual Opinions in previous decisions of the ICJ; I feel it sufficient only to refer to them now, with no need to extend further thereon in the present Separate Opinion.

71. To summarize it, in my previous Separate Opinion appended to the ICJ's recent Order (of 19.04.2017) on provisional measures of protection - also under the CERD Convention - in the case of Ukraine versus Russian Federation, I pondered:

72. Anticipatory in nature, provisional measures of protection are intended to prevent and avoid irreparable harm in situations of gravity (probability of irreparable harm) and urgency. The extreme vulnerability of the affected persons is an aggravating circumstance, rendering such provisional measures imperative. These latter, in my perception, are not “mesures conservatoires” (as in traditional, old-fashioned and unsatisfactory language), as they do require change, as in the cas d'espèce, so as to put an end to a continuing situation (cf. infra) affecting the rights of persons in utter vulnerability, if not defencelessness.

73. For years I have been sustaining that provisional measures of protection, needed by human beings (under human rights treaties, like the CERD Convention in the cas d'espèce), may become even more than precautionary, being in effect tutelary, particularly for vulnerable persons (potential victims), and directly related to realization of justice itself. Obligations emanating from such ordered measures are not necessarily the same as those ensuing from a Judgment as to the merits (and reparations), they may be entirely distinct (cf. infra). Particularly attentive to human beings in situations of vulnerability, provisional measures of protection, endowed with a tutelary character, appear as true jurisdictional guarantees with a preventive dimension.

IX. TOWARDS THE CONSOLIDATION OF THE AUTONOMOUS LEGAL REGIME OF PROVISIONAL MEASURES OF PROTECTION

74. This is one of the aspects, and a significant one, of what I have been calling, - in several (more than twenty) of my Individual Opinions, successively within two international jurisdictions, in the period 2000–2018Footnote ⁴⁶, - the needed conformation of the autonomous legal regime of provisional measures of protection Footnote ⁴⁷. As I pointed out in my Dissenting Opinion in an ICJ's Order (of 16.07.2013), - at an early stage of the handling of two merged cases opposing two Central American States, - even

75. I am confident that we are at last moving towards the consolidation of the autonomous legal regime of provisional measures of protection, thus enhancing the preventive dimension of international law. After all, contemporary international tribunals have an important contribution to give to the avoidance or prevention of irreparable harm in situations of urgency, to the ultimate benefit of human beings, and to secure due compliance with the ordered provisional measures of protectionFootnote ⁵⁰.

76. The component elements of this autonomous legal regime are: the rights to be protected; the corresponding obligations; the prompt determination of responsibility (in case of non-compliance), with its legal consequences, encompassing the duty of reparation for damages. Rights and obligations concerning provisional measures of protection are not the same as those pertaining to the merits of the cases, and the configuration of responsibility with all its legal consequences is prompt, without waiting for the decision on the merits. The notion of victim (or potential victim) itself – may I stress this point - marks presence already at this stage, irrespective of the decision as to the merits (cf. supra).

77. Provisional measures have, in recent years, been protecting growing numbers of persons in situations of vulnerability, transformed into a true jurisdictional guarantee of preventive characterFootnote ⁵¹. Hence the autonomy of the international responsibility that non-compliance with them promptly generates. A study of the matter encompasses the general principles of law, always of great relevanceFootnote ⁵². Attention is to be focused on the common mission of contemporary international tribunals of realization of justiceFootnote ⁵³ as from an essentially humanist outlookFootnote ⁵⁴.

X. INTERNATIONAL LAW AND THE TEMPORAL DIMENSION

78. A consideration of the aforementioned preventive dimension, furthermore, brings to the fore the time factor, and in particular the relationship between international law and the temporal dimension. Such relationship is an ineluctable one, requiring far more attention than the one dispensed to it by international legal doctrine so far. In effect, the temporal dimension underlies the whole domain of international law, being interpreted and applied within time.

79. It ineluctably encompasses provisional measures of protection. In my Dissenting Opinion appended to the ICJ's Order of 28.05.2009 in the case of the Obligation to Prosecute or Extradite (Belgium versus Senegal), I warned inter alia that “[i]t is imperative to reduce or bridge the décalage between the time of victimized human beings and the time of human justice” (para. 49). Subsequently, I devote the whole of my Separate Opinion (paras. 1–117) appended to the ICJ's Order of 18.07.2011 in the case of the Temple of Préah Vihéar (Cambodia versus Thailand) to distinct aspects of the temporal dimension in international law and its incidence on the granting of provisional measures of protectionFootnote ⁵⁵.

80. After all, it is in the nature of Law to accompany the regulatory function in society undergoing changes, - contrary to what legal positivists assume in their static view of the legal order. The evolution of international law - acknowledged by the ICJ in an obiter dictum of its célèbre Advisory Opinion on Namibia (of 21.06.1971, para. 53) - responds to the changing needs of all subjects of international law (including individuals) and of the international community as a whole.

81. The evolving international law is permeated by a major enigma, which, for its part, also permeates the existence of all subjects of law (including individuals): the passage of time. International law, emerging ultimately from human conscience, - the universal juridical conscience, - also has a protective function endowed with a preventive dimension, as illustrated by the significant expansion of provisional measures of protection in recent yearsFootnote ⁵⁶. Keeping the passage of time in mind, it is important to prevent or avoid harm that may occur in the future (hence the acknowledgment of potential or prospective victims), as well as to put an end to continuing situations already affecting individual rights. Past, present and future come and go together.

XI. PROVISIONAL MEASURES OF PROTECTION IN CONTINUING SITUATIONS

82. In the present case of Application of the CERD Convention (Qatar versus UAE), at this stage of request of provisional measures of protection, there are some other considerations that I deem it fit to present, in this Separate Opinion, with regard to the alleged continuing situation in breach of human rights, in addition to those I have already made (cf. section VI.3, supra). Even if the evidence already presented to the ICJ so far may appear insufficient, there are sources of it that may be regarded relevant to the consideration of such continuing situation at this stage.

83. In this respect, for example, the Report of the United Nations Office of the High Commissioner for Human Rights (OHCHR - of December 2017)Footnote ⁵⁷, - brought to the attention of the ICJ in the present proceedings, - gave an account of a continuing situation (an “ongoing crisis on human rights”, with “continuing implications”, and “cases of temporary or potentially durable separation of families”, among other “long-standing human rights issues”, to the detriment, e.g., of “migrant workers”)Footnote ⁵⁸.

84. The OHCHR, having decided to monitor in loco the consequences on human rights of the UAE's decision or announcement of 05.06.2017, reported, one semester later, on the suspension and “considerable restrictions” on freedom of movement “to and from Qatar” (paras. 23 and 26), with “continuing implications to date”; such restrictions disrupted family life, affected the right to education, as Qatari students were prevented from pursuing their studies where they were (paras. 26 and 50). The aforementioned OHCHR Report (of December 2017) referred to “cases of temporary or potentially durable separation of families”, with all their consequences (para. 32).

85. There was also an impact on the right to health, with humanitarian consequences (para. 43), as some people had to travel abroad to receive their medical treatment or to undergo surgery (para. 44). As to the restrictions on freedom of expression, the OHCHR reported that the unilateral measures have been accompanied by a “widespread defamation and hatred campaign against Qatar and Qataris in various media” (paras. 14 and 19). The Report, furthermore, addressed another long-standing human rights issue, affecting the rights of migrant workers and non-citizens (paras. 54–58). The Report at last considered the restrictive unilateral measures as arbitrary (para. 60).

86. Likewise, a Joint Communication from the U.N. Special Procedures Mandate Holders of the U.N. Human Rights Council to the UAEFootnote ⁵⁹, of 18.08.2017, the Special Rapporteurs warned that the decision announced by the UAE on 05.06.2017 “has threatened the most vulnerable groups, including women, children, persons with disabilities and older persons” (p. 1). It has, furthermore, - it continued, - led to the separation of families, the interruption of studies in schools or universities, and has also affected the right to health (pp. 2–3 and 5), among others. The Special Rapporteurs then drew attention to “the urgency of the matter” and the “extreme gravity” of the situation, and urged that “all necessary interim measures be taken to halt the alleged violations and prevent their reoccurrence” (p. 7).

87. Among other reports referred to in the course of the present proceedings before the ICJ, were those of non-governmental organizations (NGOs) with much experience at international level, such as, inter alia, Amnesty International and Human Rights Watch. In its very recent Report (of 05.06.2018), Amnesty International referred to the situation of continuity harming separated families, and individuals (among whom migrant workers, children and students)Footnote ⁶⁰. Accordingly, it called upon the States concernedFootnote ⁶¹ to “immediately lift all arbitrary restrictions” imposed on Qatari nationals, and to respect human rightsFootnote ⁶².

88. For its part, Human Rights Watch, in its earlier Report (of 12.07.2017), likewise warned against “human rights violations” in the separation of families, the deprivation of migrant workers, the discrimination against women, the interruption of medical treatment, and the interruption of educationFootnote ⁶³. Both Human Rights Watch and Amnesty International have provided accounts, in their respective reports, of information obtained from interviews with those victimized in loco.

89. In effect, the continuing situation in breach of human rights is a point which has had an incidence in other cases before the ICJ as well, at distinct stages of the proceedings. May I briefly recall here three examples, along the last decade. In the case concerning the Obligation to Prosecute or Extradite (Belgium versus Senegal), as the ICJ in its Order of 28.05.2009 decided not to indicate provisional measures, I appended thereto a Dissenting Opinion, wherein - as already pointed out (para. 79, supra) - I drew attention to the décalage to be bridged between the time of human beings and the time of human justice (paras. 35–64).

90. Urgency and probability of irreparable damage, - I proceeded, - were quite clear, in the continuing situation of lack of access to justice of the victims of the Hissène Habré regime (1982–1990) in Chad. This right of access to justice assumed a “paramount importance” (paras. 29 and 74–77), - I added, - in the cas d'espèce, under the U.N. Convention against Torture; furthermore, I dwelt upon the component elements of the autonomous legal regime of provisional measures of protection (paras. 8–14, 26–29 and 65–73). Such measures were necessary for the safeguard of the right to the realization of justice (paras. 78–96 and 101).

91. In the case on Jurisdictional Immunities of the State (Germany versus Italy), as the ICJ, in its Order of 06.07.2010 found the counter-claim of Italy inadmissible, once again I appended thereto a Dissenting Opinion, wherein I examined at depth the notion of “continuing situation” in the factual context of the cas d'espèce, as debated between the contending parties (paras. 55–59 and 92–100). My Dissenting Opinion encompassed the origins of a “continuing situation” in international legal doctrine (paras. 60–64); the configuration of a “continuing situation” in international litigation and case-law (paras. 65–83); the configuration of a “continuing situation” in international legal conceptualization at normative level (paras. 84–91).

92. And, once again, I warned against the pitfalls of State voluntarism (paras. 101–123). Suffice it here only to refer to my lengthy reflections on the notion of “continuing situation” in the case on Jurisdictional Immunities of the State, as I see no need to reiterate them expressis verbis herein. What cannot pass unnoticed is that a continuing situation in breach of human rights has had an incidence at distinct stages of the proceedings before the ICJ: in addition to decisions - as just seen - on provisional measures and counter-claim (supra), it has also been addressed in decision as to the merits.

93. This is illustrated by the aforementioned case of A.S. Diallo (Guinea versus D.R. Congo, merits, Judgment of 30.11.2010). Its factual context disclosed a continuing situation of breaches of Mr. A.S. Diallo's individual rights in the period extending from 1988 to 1996. The griefs suffered by the victim extended in time (the arrests and detentions of 1988–1989 followed by those of 1995–1996, prior to his expulsion from the country of residence), in breach of the relevant provisions of human rights treaties (the U.N. Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights) as well as Article 36(1)(b) of the Vienna Convention on Consular Relations). His griefs were surrounded by arbitrariness on the part of State authoritiesFootnote ⁶⁴, and amounted to a wrongful continuing situation, marked by the prolonged lack of access to justice.

XII. EPILOGUE: A RECAPITULATION

94. This is, as seen, the third case under the CERD Convention in which provisional measures of protection have been rightly ordered by the ICJ, in this new era of its international adjudication of human rights cases. The fact that a case is an inter-State one, characteristic of the contentieux before the ICJ, does not mean that the Court is to reason likewise on a strictly inter-state basis. Not at all. It is the nature of a case that will call for a reasoning, so as to reach a solution. The present case of Application of the CERD Convention (Qatar versus UAE) concerns the rights protected thereunder, which are the rights of human beings, and not rights of States.

95. This has a direct bearing on the consideration of a request for provisional measures of protection under a human rights Convention. Provisional measures, with a preventive dimension, have been undergoing a significant evolution, moving further towards the consolidation of the autonomous legal regime of their own, to the benefit of the titulaires of rights. In another endeavour to keep paving this path, may I, last but not least, proceed to a brief recapitulation of the main points I deemed it fit to make, particularly in respect of such provisional measures, under the CERD Convention, in the course of the present Separate Opinion.

96. Primus: The principle of equality and non-discrimination lies in the foundations of the rights protected under the CERD Convention also by means of provisional measures. The historical formation of the corpus juris of international protection of human rights has much contributed to a growing awareness of the importance of the prevalence of the basic principle of equality and non-discrimination. Secundus: The work of U.N. supervisory organs - among which the CERD Committee - bears witness of such growing awareness.

97. Tertius: It is necessary nowadays that the advances in respect of the basic principle of equality and non-discrimination, at normative and jurisprudential levels, are also accompanied by the international legal doctrine, which so far has not dedicated sufficient attention to that fundamental principle. Quartus: The protection sought under the CERD Convention is also against arbitrariness, as in the cas d'espèce. This point has not escaped the attention of other international tribunals, entrusted with the interpretation and application of distinct human rights Conventions.

98. Quintus: Human rights treaties, - including the CERD Convention, conform a Law of protection (a droit de protection), oriented towards the safeguard of the ostensibly weaker party (the real or potential victim), and the prohibition of arbitrary measures, so as also to secure the prevalence of the rule of law (la prééminence du droit). Sextus: As to the points discussed in the present proceedings of the cas d'espèce, there are two of them that require clarification: the rationale of the local remedies rule in the international protection of human rights, and the implications of a continuing situation affecting or breaching human rights.

99. Septimus: The local remedies rule, as a condition of admissibility of international claims, cannot be invoked as a “precondition” for the consideration of urgent requests of provisional measures of protection. Octavus: The rationale of the local remedies rule in human rights protection is entirely distinct from that of its application in the practice of diplomatic protection of nationals abroad: in human rights protection the rule is focused on effectiveness of local remedies and redress, while in diplomatic protection it is focused on the process of exhaustion of such remedies.

100. Nonus: The CERD Committee itself has underlined the components of effectiveness of local remedies and redress. Human rights protection is victim-oriented, it is a Law of protection of the weaker party (droit de protection), as upheld by international human rights tribunals; discretionary diplomatic protection, for its part, remains State-oriented. Decimus: There is no ground for attempting to add, to the so-called “plausibility” of rights, the so-called “plausibility” of admissibility, as an additional “precondition” for provisional measures of protection.

101. Undecimus: In a continuing situation, the rights requiring protection are clearly known, their being no sense to wonder whether they are “plausible”. Duodecimus: The proper understanding of compromissory clauses under human rights Conventions is necessarily attentive to the nature and substance of those Conventions, as well as to their object and purpose; such clauses cannot be interpreted attempting to find “preconditions”, rendering access to justice under human rights Conventions particularly difficult.

102. Tertius decimus: The aforementioned prohibition of arbitrariness brings to the fore the issue of the vulnerability of those affected by discriminatory measures; requests of provisional measures of protection, in cases like the present, are intended to put an end to a continuing situation of vulnerability of the affected persons (potential victims). Quartus decimus: Human vulnerability is a test more compelling than so-called ‘plausibility’ of rights for the ordering of provisional measures of protection under human rights treaties.

103. Quintus decimus: There has been an advance towards the consolidation of what I have been calling, along the years, the autonomous legal regime of provisional measures of protection. Sextus decimus: Provisional measures of protection have, in recent years, been protecting growing numbers of persons in situations of vulnerability; they have thus been transformed into a true jurisdictional guarantee of preventive character. Septimus decimus: Such preventive character brings to the fore the temporal dimension in the application of the provisional measures of protection, e.g., when they are intended, as in the present case, to put an end to a continuing situation affecting individual rights.

104. Duodevicesimus: In respect of the present case, there have been U.N. reports and other documents giving accounts of a continuing situation affecting human rights under the CERD Convention. Undevicesimus: The continuing situation in breach of human rights is a point which has had an incidence in earlier cases before the ICJ as well, at distinct stages of the proceedings. Vicesimus: The determination and ordering of provisional measures of protection under human rights Conventions can only be properly undertaken from a humanist perspective, necessarily avoiding the pitfalls of an outdated and impertinent State voluntarism.

(Signed) Antônio Augusto CANÇADO TRINDADE.

I. THE PRESENT PROCEEDINGS MUST NOT PREJUDGE THE QUESTION ON THE MERITS

2. In provisional measures proceedings, the applicant must not prejudge the question on the merits (A). Nor should the request for the indication of provisional measures itself prejudge the question relating to the merits (B).

II. THE EXISTENCE OF IRREPARABLE PREJUDICE

13. In light of its jurisprudence, the Court should have found that there was no imminent risk of irreparable prejudice in this case.

14. According to the Court's jurisprudence,

15. Regarding the rights referred to in the Convention, the Court has noted, in particular, that the political, civil, economic, social and cultural rights mentioned in Article 5, paragraphs (b), (c), (d) and (e), of the Convention are of such a nature that prejudice to them is capable of causing irreparable harm (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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 138, para. 96; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, p. 396, para. 142).

16. On another occasion, the Court found that there was a real risk of irreparable prejudice to the right in question if it were “not . . . possible to restore the situation to the status quo ante” (Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1169, para. 90).

17. I am inclined to think that, even if the underlying facts were duly established, the following rights in respect of which Qatar has sought provisional measures are not of such a nature that prejudice to them is capable of causing irreparable harm.

18. As regards the right not to be subject to racial discrimination (Arts. 2 and 4) and the right to freedom of opinion and expression (Art. 5 (d) (viii)), the status quo ante, in which Qatari nationals residing in the UAE were not the subject of hatred, and “sympathy” towards Qataris was not a crime, can, at least in theory, be restored. It is also noted that the Respondent contests this claim, contending that “[t]he statement of the Attorney General is . . . not a law” (CR 2018/13, p. 65, para. 35 (Shaw)).

19. Concerning the right to work (Art. 5 (e) (i)) and the right to own property (Art. 5 (d) (v)), the status quo ante, in which Qatari nationals residing in the UAE could work and enjoy their property, can, theoretically, be restored, if the measure prohibiting Qataris entry to the UAE is lifted.

20. With respect to the right to equal treatment before tribunals (Art. 5 (a)) and the right to effective protection and remedies (Art. 6), while their absence may cause prejudice to other rights capable of causing irreparable harm, the right of Qatari nationals in the UAE to effective protection and remedies through UAE courts can, as such, theoretically be restored.

21. However, the Court has found today that prejudice to those rights before tribunals, as well as to the right to family and the right to education and training, may be irreparable (para. 69 of the Order). I do not agree with this finding; moreover, the Court's reasoning fails to consider whether such prejudice, even if it were irreparable, is “imminent”.

III. IMMINENT RISK

22. It goes without saying that the irreparable nature of the prejudice caused to these rights is not on a par with the harm caused by the execution of the death penalty or the performance of a nuclear test. Furthermore, examining the other aspect of the third condition for the indication of provisional measures may lead the Court to conclude that the alleged risk is not imminent.

23. With regard to the lives of UAE-Qatari mixed families, although the long-term separation of a family may have an irreparable effect on its unity and integrity, that effect is unlikely to become permanent in the few years before the Court renders its final decision. In other words, it can be concluded that the risk of prejudice to this right, even if it were irreparable, is not imminent.

24. As regards the right to education and training, it is to be noted that the Respondent has presented evidence that the Emirati authorities have asked all post-secondary institutions in the UAE to monitor the situation of Qatari students (CR 2018/13, p. 69, para. 51 (Shaw)). Since the UAE authorities have taken measures to remedy the situation, it may be concluded or at least presumed that, even if it existed, the risk of irreparable prejudice to students is not imminent.

25. Lastly, regarding the right to public health and medical care (Art. 5 (e) (iv)), the evidence adduced by Qatar (OHCHR Technical Mission Report, Ann. 16 to the Application, paras. 43-44) shows that patients who were forced to leave the UAE subsequently received medical treatment in other countries, such as Germany, Turkey and Kuwait. Although some inconvenience may have been caused to those patients, this account suggests that, even if it existed, the risk of irreparable prejudice to them is not imminent.

IV. THE ORDER IS UNNECESSARY