On July 23, the International Court of Justice (the Court) rendered an order for provisional measures with interesting facets. The post looks at the background of the decision and analyses two unique features present in the order: a. the analysis of prima facie jurisdiction b. the risk of irreparable harm justified by the Court.
Qatar filed an application before the Court basing its jurisdiction on Article 22 of the Convention for All Forms of Racial Discrimination (CERD) against the UAE. It claimed that the UAE had issued a statement on 5 June 2017 made by its Ministry for Foreign affairs (the Statement) ordering Qataris living in the UAE to leave. Thus, in Qatar’s view UAE had expelled Qatari citizens present in the UAE and violated several human rights of the Qatari citizens in the UAE e.g. rights to freedom of speech, education, judicial remedies, marriage, property, work, etc. Thus, it asked the Court to order provisional measures requiring UAE to cease and desist from racial discrimination, suspend the expulsion of Qatari citizens and protect the fundamental rights alleged to be breached. In addition, it asked the Court for an order ensuring non-aggravation of the dispute, and any other order as it deemed fit. UAE requested the Court to reject the Qatari application. (Order, para 19)
The Court has on several occasions noted the elements which need to be proven for it to allow provisional measures namely: prima faciejurisdiction, the plausibility of rights asserted, irreparable harm and prejudice, and the link between the measures requested and the rights claimed (Judge Bhandari, Declaration, Jadhav Casepara 10).
Prima facie Jurisdiction and Plausibility of Rights
To ascertain prima faciejurisdiction, the Court looks at two elements: the existence of a dispute under the CERD and the procedural preconditions under the CERD. In the first part the Court holds that “elements are sufficient at this stage to establish the existence of a dispute between the Parties” (para 28). To reach this conclusion, the Court notes that the parties differ on both, the effect of the Statement, and whether it concerns the application of the CERD. The Court notes that in Qatar’s subjective characterization of the dispute, the dispute pertained to the application of Articles 2, 4, 5, 6 and 7 of the CERD. Further it notes that UAE’s acts “are capable of falling within the scope of CERD ratione materiae” (para 27). The point of controversy arises rather where it recognises that the parties disagree on whether the CERD which refers to ‘national origin’ applies to the ‘present nationality’ of the citizens; but notes that the determination is for a subsequent stage (para 27).
Judges Tomka, Gadja and Gevorgian in their declaration (Declaration, para 4) and Judge Salam in his dissenting opinion (Dissenting Opinion, paras 2, 3) note that the question of nationality or national origin ought to have been decided by the Court. In their view, this determination goes to the scope of the CERD. They argue based on the traveauxthat for the CERD to cover nationality would significantly broaden the scope of the rights therein. In their view, this was specifically what was sought to be excluded by the negotiating states (Declaration, para 4; Dissenting Opinion para 3). Judge Crawford also notes that there is a distinction between national origin (equating it to racial discrimination) and nationality (Dissenting Opinion, para 1). Thus, they argue that the dispute would not prima faciefall in the jurisdiction of the Court.
Comparing the two views, the question which needs to be asked is whether the scope of the Convention is a matter for the assertion of prima facie jurisdiction. A similar question had arisen with respect to the scope of the CERD in the Georgia v Russiacase. There the Court noted that the parties disagreed with the territorial scope of the CERD. It went on to resolve this disagreement by stating that the “CERD does not include any limitation on its territorial application” (Georgia v Russia, Provisional Measures, para 108). Similarly, in the recent decision of Ukraine v Russiathe Court looked at the definition of “funds” under Article 1 of the ICSFT and the obligation to prohibit the transfer of funds under Articles 2 and 18 of the ICSFT. It concluded that Ukraine’s allegations of bombing, attacks etc did not demonstrate knowledge or intention as required by Article 2 and was thus beyond the scope of the ICSFT (Ukraine v Russia, Provisional Measures, paras 74, 75). Thus, it could be argued that the Court opted for a cursory consideration of its prima facie jurisdiction than it has done in prior cases.
Irreparable Harm & Prejudice and Link Between the Measures Requested & the Rights Claimed
The issue whether there is irreparable harm is factual in nature and hangs on the evidence produced by the parties. The Court considers that certain rights by their very nature are such that their violation would amount to irreparable harm. In deciding that the measure undertaken by the UAE was linked to the rights claimed to be violated by Qatar the Court notes: “as a result of this statement, Qataris felt obliged to leave the UAE resulting in the specific prejudices to their rights” (para 70). On this basis, the Court evaluates the satisfaction of the need for irreparable harm.
In their respective dissenting opinions both Judge Crawford and Judge Bhandari highlight the evidentiary difficulties in accepting the proposition. Judge Crawford notes that there is no evidence to support the fact that any legislative measures were enacted to enforce the Statement challenged by Qatar (Dissenting Opinion, para 4). He further notes that Qatar raised no objection to the proposition made by the UAE that no Qataris were expelled pursuant to the Statement. Judge Crawford relies on the evidence of the UAE stating that Qatari nationals living in the UAE have been permitted to enter the UAE 8000 times since the enactment of the measure (Dissenting Opinion para 7). On 5 July 2018, UAE issued a further statement clarifying that Qataris resident in the UAE do not need to apply for permission. Judge Crawford relies on this evidence to note that there is no irreparable prejudice (Dissenting Opinion, para 17).
Judge Bhandari also relies on the statement of 5 July 2018. He relies on the fact that unilateral declarations before the Court create binding obligations on the States. Judge Bhandari considers three precedents: Belgium v Senegal, where Senegal made an unqualified statement guaranteeing that it would not allow Mr Habré to leave; Timor-Leste v Australia, where Australia stated that it would not use the confiscated documents for any purpose other than national security; and Singapore v Malaysia decided by the ITLOS where the Singapore made a commitment to re-evaluate its position, if it found Malaysia’s evidence compelling (Dissenting Opinion, paras 4, 5, 6). Based on this he notes “in order to remove the risk of irreparable prejudice, an undertaking or commitment must be unqualified” (Dissenting Opinion, para 7). He finds that UAE’s statement is unqualified and has no exceptions. Thus, in his view it is binding and it precludes any possibility of irreparable harm (Dissenting Opinion, para 8).
The argument of the dissenting judges is compelling. The basis of the majority in holding irreparable prejudice is the assertion that “Qataris felt obliged to leave the UAE” (para 70). The Court provides no basis for the evaluation of the emotions or intentions of the Qatari citizens. Such a subjective evaluation of the feelings of Qatari citizens would be premature. In effect, the Court has used a subjective standard of the emotions of the Qataris rather than any legislative or administrative measure, to ascertain the plausibility of the breach of the CERD as well as to recognise irreparable harm.
The Court does not refer on a single occasion to the statement of 5 July 2018, allowing Qatari citizens to continue staying in the UAE. They do not consider the binding value of the communication in making that decision. In the Bosnian Genocidecase the Court noted that the weightage to evidence would be determined by: a. its source b. the process of procurement and c. its quality (Judgment, para 227) None of the three factors are triggered where an official statement is made by the Ministry. It could be surmised that the Court was under an obligation to at least consider the statement of 5 July 2018.
The Court seems to have relaxed the standards required to be met to allow the Court the power to grant provisional measures. Potentially, this could be because of the involvement of human rights violations. The Court has continued its trend to tread lightly against a finding of irreparable harm when human rights issues have been involved. From the Tehran Hostages case, La Grand, Avena etc. the Court has shown willingness to order provisional measures when human rights considerations have been cited. In the present case, the Court has made a very strong affirmation of the fact, potentially at the cost of evidentiary considerations.