On February 4, 2021, the International Court of Justice (ICJ) issued its judgment on preliminary objections concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates). By eleven to six votes, the ICJ upheld the objection to the Court's jurisdiction raised by the United Arab Emirates, finding that it does not have jurisdiction to hear the application filed by Qatar in June 2018. As explained in a press release from the Court, Qatar launched proceedings against the United Arab Emirates, alleging violations of the Convention and arguing that "the United Arab Emirates ha[d] enacted and implemented a series of discriminatory measures [an expulsion order and travel bans] directed at Qataris based expressly on their national origin" in violation of several articles in the Convention. A summary of the judgment explains the Court's reasoning. As a first step, the Court had to determine whether the term "national origin" in Article 1, paragraph 1 of the Convention encompasses current nationality. In concluding that it does not, the Court considered the ordinary meaning of the term "national origin," its context in the Convention, the object and purpose of the Convention, the Convention's travaux préparatoires, and the practice of the CERD Committee. It also considered the practice of regional human rights courts, but concluded that they were of little help in this case. The Court also had to examine whether the measures at issue, as they applied to certain Qatari media corporations, fell within the scope of the Convention. The Court concluded that the Convention concerns individuals or groups of individuals, as opposed to institutions, such as the media corporations, which represent individuals or groups of individuals. Finally, the Court considered whether an expulsion order and travel ban, measures that Qatar considered as being indirectly discriminatory against Qatari nationals, fell within the scope of the Convention. Again, in finding that they do not fall within the scope of the Convention, the Court held: "the various measures of which Qatar complains do not, either by their purpose or by their effect, give rise to racial discrimination against Qataris as a distinct social group on the basis of their national origin. The Court further observes that declarations criticizing a State or its policies cannot be characterized as racial discrimination within the meaning of CERD" (para 112).
President Yusuf filed a declaration disagreeing "with the conclusions of the Court and the reasoning of the majority on two interrelated issues dealt with in the Judgment: (a) the determination of the subject-matter of the dispute; and (b) the jurisdiction ratione materiae of the Court with regard to what is referred to as 'indirect discrimination'."
Judge Sebutinde filed a dissenting opinion, arguing that Qatar's preliminary objection "does not . . . have an exclusively preliminary character and should be joined to the merits," as permitted under Article 79ter, paragraph 4, of the Rules of Conduct.
Judge Bhandari filed a dissenting opinion, disagreeing with the majority’s finding that the discriminatory measures at issue do not fall within the scope of the Convention.
Judge Robinson dissented on the same basis as Judge Bhandari.
Judge Iwasawa’s separate opinion agrees with the majority’s determination regarding the term “national origin,” but disagrees with the majority concerning Qatar’s indirect discrimination claim.
Judge ad hoc Daudet filed a declaration (in French only) arguing that Qatar’s two preliminary objections were independent of each other, and that because the Court accepted Qatar’s first preliminary objection, it did consider it necessary to examine Qatar’s second objection, relating to the procedure in Article 22 of the Convention. Article 22 states that disputes between parties concerning the interpretation or application of the Convention that cannot be settled by negotiation or the procedures set forth in the Convention, shall be referred to the ICJ. In Judge ad hoc Daudet’s view, negotiations had failed, thus establishing the jurisdiction of the ICJ.