By: Daria Stanculescu, Junior Research Associate, PILPG-NL
On February 4, 2021, the International Court of Justice (ICJ, the Court) issued its judgment in the case Qatar v. United Arab Emirates. Qatar brought proceedings against the United Arab Emirates (UAE) for alleged breaches of the Convention on the Elimination of All Forms of Racial Discrimination (CERD). In parallel, Qatar also brought proceedings regarding the same issue before the CERD Committee, the specialized body that oversees the implementation of the CERD. While the Committee held that it had jurisdiction in this case, the Court determined that it did not have jurisdiction over the subject matter of the dispute, thus upholding UAE’s first objection on admissibility. This blog post will examine the differing conclusions of the ICJ and the CERD Committee.
Background of the Case
In 2017, during the Qatar diplomatic crisis, the UAE adopted several measures directed at Qatari nationals. These included travel bans, expulsions, and suppression of Qatari media outlets. In response, Qatar instituted proceedings before both the CERD Committee and the ICJ, claiming that the measures discriminated against Qataris based on their nationality. Qatar argued that the term “national origin”, which is one of the prohibited grounds of discrimination in Article 1 of the CERD, encompasses the concept of nationality. The UAE, on the other hand, argued that national origin and nationality are two different concepts, and the latter is not covered by the CERD.
In Qatar v. UAE, the CERD Committee referred to its General Recommendation XXX, in which it asserted that differential treatment based on nationality may constitute discrimination. It also made reference to its practice of calling on states to address discrimination against non-citizens on the basis of their nationality. Ultimately, the CERD Committee concluded that it had jurisdiction to examine cases “when confronted with differences of treatment based on nationality”. The ICJ did not follow the Committee’s interpretation in this case, concluding that it did not have jurisdiction, as current nationality is not covered by the term “national origin” in Article 1(1) CERD.
Differing Interpretations
While the Court is not bound by the decisions of international human rights mechanisms, it has previously emphasized the importance of the interpretations provided by these mechanisms. In Diallo, the Court interpreted the provisions of the International Covenant on Civil and Political Rights (ICCPR). In that case, the Court emphasized that it “should ascribe great weight” to the interpretation given to the ICCPR by the Human Rights Committee, the international human rights mechanism that monitors the implementation of that instrument. The Court asserted that the independent mechanism was established “specifically to supervise the treaty” and that considering the interpretation of human rights mechanisms helps achieve “the necessary clarity and essential consistency of international law”.
In Qatar v. UAE, the Court diverged from the interpretation provided by the CERD Committee without providing a clear explanation for its differing interpretation. As pointed out by dissenting Judge Bhandari, the fact that the Court “should ascribe great weight” to the interpretation of the CERD Committee was not taken into account in this case. Also, dissenting Judge Robinson observed that the Court did not provide an adequate explanation for not following General Recommendation XXX. The differing interpretation and the lack of an explanation by the ICJ may affect the clarity and consistency of international law that the Court referred to in Diallo.
Conclusion
In Qatar v. UAE, the ICJ came to a different conclusion than the CERD Committee. This is generally unproblematic since the Court is not bound by the decisions of treaty mechanisms. However, the ICJ did not provide a clear and sufficient explanation for this differing interpretation. It remains to be seen whether the Court will provide a more detailed explanation in similar future decisions.