Memorial of the State of Qatar

INTERNATIONAL COURT OF JUSTICE
______________________________________________________________________________

INTERPRETATION AND APPLICATION OF
THE INTERNATIONAL CONVENTION ON THE ELIMINATION
OF ALL FORMS OF RACIAL DISCRIMINATION

(THE STATE OF QATAR v. THE UNITED ARAB EMIRATES)

MEMORIAL OF THE STATE OF QATAR

VOLUME I
25 APRIL 2019

TABLE OF CONTENTS

CHAPTER I INTRODUCTION ............................................................................. 1
Section I. Overview of the Case.................................................................. 1 Section II. Structure of the Memorial........................................................ 13

CHAPTER II THE FACTS UNDERLYING QATAR’S CLAIMS ..................... 17
Section I. The Context of the Dispute....................................................... 18 Section II. The Imposition of the UAE’s Discriminatory Measures......... 22

A. THE 5 JUNE DIRECTIVE AND COLLECTIVE EXPULSION OF

QATARIS ...................................................................................... 22

B. THE TRAVEL BAN AND RESTRICTIONS ON MOVEMENT ................ 33 C. THE ATTACK ON FREEDOM OF EXPRESSION AND

INCITEMENT OF ANTI-QATARI SENTIMENT.................................. 41
1. The Criminalization of “Sympathizing” with Qatar...... 41 2. The Suppression of Qatari Media.................................. 45 3. The UAE’s Campaign of Misinformation and Anti-
Qatari Hate Speech ....................................................... 48

Section III. The UAE’s Escalation of the Crisis and Qatar’s Response.... 59 Section IV. The International Condemnation of the Discriminatory
Measures ............................................................................................ 67

CHAPTER III JURISDICTION............................................................................ 75
Section I. The UAE’s Discrimination Against Qataris Falls Within the
Scope Ratione Materiae of the CERD............................................... 77

A. THE CERD’S PROTECTIVE SCOPE ENCOMPASSES ALL

FORMS OF RACIAL DISCRIMINATION ........................................... 78

B. THE ACTS COMPLAINED OF BY QATAR FALL WITHIN THE

CERD’S PROTECTIVE SCOPE....................................................... 85
1. The UAE’s Measures Explicitly Targeting “Qatari
Residents and Visitors” and “Qatari Nationals” Fall within CERD’s Scope Ratione Materiae Based on their Discriminatory Purpose........................................ 88

i
2. The Discriminatory Measures Fall Within the
CERD’s Scope Ratione Materiae Based on Their Discriminatory Effect on Qataris................................ 126

Section II. The Dispute “Is Not Settled” for the Purposes of Article 22. 141

A. ARTICLE 22 ESTABLISHES ALTERNATIVE, NOT

CUMULATIVE, REQUIREMENTS .................................................. 142
1. Article 22’s Requirements Cannot Be Cumulative
When Read in Light of the “Logic and Purpose” of CERD and in Context with its Other Provisions ........ 142

2. The Preparatory Works of CERD Confirm that
Article 22’s Requirements are Alternative ................. 150

3. None of the UAE’s Reasons Why Article 22’s
Requirements Should Be Read Cumulatively Has Merit............................................................................ 155

B. THE NEGOTIATION REQUIREMENT HAS BEEN SATISFIED ........... 165

CHAPTER IV QATAR’S CLAIMS ARE ADMISSIBLE ................................. 183

SECTION I. THE LOCAL REMEDIES RULE DOES NOT BAR QATAR’S

CLAIMS ............................................................................................. 184

A. THE LOCAL REMEDIES RULE DOES NOT APPLY TO QATAR’S

CLAIMS...................................................................................... 184
1. The Local Remedies Rule Does Not Apply in
Circumstances of Widespread Harm or Generalized State Policies and Practices......................................... 187

2. The Local Remedies Rule Does Not Apply in View of Qatar’s Claims of Direct Injury to Its Own Interests under the CERD ........................................... 192

B. THE UAE HAS FAILED TO PROVE THE EXISTENCE OF ANY
EFFECTIVE AND REASONABLY AVAILABLE REMEDIES THAT

HAVE NOT BEEN EXHAUSTED ................................................... 201
1. The “Hotline” Is Not a Legal Remedy........................ 206 2. The UAE’s Courts Are Neither Effective nor
Reasonably Available ................................................. 216

Section II. Qatar’s Recourse to the CERD Procedure Does Not
Constitute a Bar to the Admissibility of Qatar’s Claims.................. 227

ii
CHAPTER V THE UAE HAS VIOLATED THE CERD .................................. 235
Section I. The UAE Violated Article 2(1), Article 5(a) and Article 6 of the CERD by Collectively Expelling Qataris................................... 236

A. THE CERD REQUIRES STATES PARTIES TO ENSURE THAT
THEY DO NOT EXPEL NON-NATIONALS FROM THEIR

TERRITORY ON A COLLECTIVE BASIS ........................................ 237

B. THE UAE COLLECTIVELY EXPELLED QATARIS FROM ITS

TERRITORY IN VIOLATION OF ARTICLE 2(1).............................. 245
1. The Purpose of the Expulsion Order and Absolute
Travel Ban Was to Collectively Expel Qataris from the UAE ...................................................................... 246

2. The Expulsion Order and Absolute Travel Ban Had the Effect of Expelling Qataris on a Collective Basis 254

C. THE COLLECTIVE EXPULSION OF QATARIS ALSO VIOLATED

ARTICLE 5(A) AND ARTICLE 6 OF THE CERD............................ 265
Section II. The UAE’s Maintenance of the Absolute Travel Ban
Violated and the Modified Travel Ban Continues to Violate Articles 2(1), 5(a), 5(d)(iv), 5(d)(v), 5(e)(i), 5(e)(v) and 6 of the CERD............................................................................................... 268

A. THE ABSOLUTE TRAVEL BAN WAS NEITHER LEGITIMATE

NOR PROPORTIONAL .................................................................. 269

B. THE MODIFIED TRAVEL BAN IS NEITHER LEGITIMATE NOR

PROPORTIONAL.......................................................................... 272

C. THE UAE’S ABSOLUTE TRAVEL BAN VIOLATED AND ITS
MAINTENANCE OF THE MODIFIED TRAVEL BAN CONTINUES

TO VIOLATE ARTICLES 2(1), 5, AND 6 OF THE CERD ................ 289
1. Interference with the Right to Family Life.................. 292 2. Interference with the Right to Education and
Training....................................................................... 299

3. Interference with the Right to Property....................... 307 4. Interference with the Right to Work............................ 313 5. Interference with Right to Equal Treatment Before
Tribunals ..................................................................... 314

Section III. The UAE’s Interference with Qataris’ Right to Freedom of
Opinion and Expression Violates Articles 2(1), 5(d)(viii) and 6 of the CERD ......................................................................................... 317

iii
Section IV. The UAE’s Propagation and Incitement of Discriminatory
Anti-Qatari Propaganda and Ideas Violate Articles 2, 4, 6 and 7 of the CERD ......................................................................................... 322

A. THE UAE IS VIOLATING THE CERD THROUGH ITS ANTI-

QATARI INCITEMENT CAMPAIGN ............................................... 323

B. THE UAE IS VIOLATING THE CERD BY FAILING TO TAKE
EFFECTIVE MEASURES TO ERADICATE INCITEMENT TO

RACIAL DISCRIMINATION .......................................................... 335
CHAPTER VI THE UAE’S ONGOING VIOLATION OF THE
PROVISIONAL MEASURES ORDER ....................................................... 343

Section I. The Order’s Binding and Autonomous Legal Character ........ 344 Section II. The UAE’s Intransigent and Inadequate Response to the
Order ................................................................................................ 346

CHAPTER VII REMEDIES ............................................................................... 353
Section I. The Applicable Principles....................................................... 353 Section II. The Relief Sought.................................................................. 361

SUBMISSIONS................................................................................................... 367 CERTIFICATION............................................................................................... 371 LIST OF ANNEXES........................................................................................... 373

iv

GLOSSARY OF ACRONYMS, ABBREVIATIONS AND DEFINED
TERMS

African Charter on Human and
ACHPR
Peoples’ Rights

American Convention on Human
ACHR
Rights

AFC

CAT
Asian Football Confederation
Convention against Torture and Other
Cruel, Inhuman or Degrading
Treatment or Punishment

CCC

Compensation Claims Committee

International Convention on the Elimination of All Forms of Racial
Discrimination
CERD

CRC

Convention on the Rights of the Child

International Law Commission Draft Articles on the Expulsion of Aliens
Draft Articles on Expulsion
ECHR ECtHR GCC
European Convention on Human Rights
European Court of Human Rights
Gulf Cooperation Council

v
Member States of the GCC: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the UAE
GCC States IACtHR ICCPR
Inter-American Court of Human Rights International Covenant on Civil and
Political Rights

International Law Commission Draft Articles on Responsibility of States for
Internationally Wrongful Acts
ILC Articles
NAPS NHRC
National ATM and POS Switch system
Qatar National Human Rights
Committee

NOTAM

Notice to Airmen

Request for the Indication of
Provisional Measures, Order of 23 July
2018
Order

PoA

Power of Attorney

The State of Qatar

Qatar

Application Instituting Proceedings of the State of Qatar dated 11 June 2018
Qatar Application vi
Provisional Measures of Protection of the State of Qatar dated 11 June 2018
Qatar RPM
QNA UAE
Qatar News Agency
The United Arab Emirates Request for the Indication of
Provisional Measures to Preserve the United Arab Emirates’ Procedural Rights and to Prevent Qatar from
Aggravating or Extending the Dispute dated 22 March 2019
UAE RPM
Exhibits from Oral Proceedings on the
Provisional Measures of Protection of the State of Qatar dated 11 June 2018
UAE PM Exhibit

UDHR

Universal Declaration of Human Rights

United Nations Educational, Scientific and Cultural Organization
UNESCO
Vienna Convention on Consular
Relations
VCCR VCLT
Vienna Convention on the Law of
Treaties

vii

CHAPTER I
INTRODUCTION

Section I. Overview of the Case

1.1

The State of Qatar (“Qatar”) and the United Arab Emirates (“UAE”) are

both parties to the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (the “CERD”)¹. On 11 June 2018, Qatar instituted proceedings before the Court against the UAE under Article 22 of the CERD. On the same day, in view of the real and imminent risk of irreparable prejudice to its rights and the fundamental rights of Qataris, Qatar requested the indication of Provisional Measures of Protection. On 23 July 2018, the Court delivered its Order indicating provisional measures (the “Order”). Qatar now submits its Memorial pursuant to the Court’s Order of 25 July 2018.

1.2

The CERD embodies a fundamental tenet of human rights law: that racial

discrimination undermines the inherent dignity and equality of human beings. The Court has squarely stated that the right to equality constitutes a “binding customary norm”². The CERD thus requires States parties to pursue “by all

1

See Vol. III, Annex 92, UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series (UNTS) vol. 660, p. 195 (hereinafter “CERD”). The CERD entered into force on 4 January 1969. Qatar acceded to the CERD on 22 July 1976; the UAE on 20 June 1974. See United Nations Treaty Collection, Status of Treaties, International Convention on the Elimination of All Forms of Racial Discrimination, https://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=IV-2&chapter=4&clang=_en.

2

See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion of 21 June 1971, Separate Opinion of Judge Ammoun, I.C.J. Reports 1971, para. 6 (“One right

which must certainly be considered a pre-existing binding customary norm which the Universal Declaration of Human Rights codified is the right to equality, which by common consent has ever since the remotest times been deemed inherent in human nature.”).

1appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races”³, and to ensure that discrimination, including on the basis of national origin, does not interfere with the enjoyment of a broad array of rights and freedoms⁴. Among the wrongs that the CERD aims to prevent is collective punishment: the stripping away or practical denial of rights and privileges from a group of people defined not by their individual conduct, but by some group characteristic such as skin color, ethnicity, or, as in this case, national origin.

1.3

Notwithstanding its obligations under the CERD, in the early morning of

5 June 2017 in the holy month of Ramadan, without any prior warning, the UAE launched a comprehensive campaign of punitive measures, which in both purpose and effect targeted Qataris as a people on a discriminatory basis, in violation of the CERD.

1.4

Specifically, pursuant to a directive from the UAE’s Ministry of Foreign

Affairs (the “5 June Directive”), the UAE announced that it was immediately severing all diplomatic ties with Qatar, expelling Qatari diplomats and recalling its own diplomats within 48 hours.⁵In the same Directive, the UAE further enacted a series of measures to effect a policy and practice of collective punishment aimed at the Qatari people.

3

Vol. III, Annex 92, CERD, Art. 2(1).

4

Vol. III, Annex 92, CERD, Art. 1(1).

5

Vol. II, Annex 1, UAE Ministry of Foreign Affairs, UAE supports statements of Kingdom of Bahrain and Kingdom of Saudi Arabia on Qatar (5 June 2017).

2

1.5

First, in the Directive, the UAE ordered “Qatari residents and visitors”

within the UAE to leave within 14 days for “precautionary security reasons” (the “Expulsion Order”)⁶. The Expulsion Order provided no exceptions, did not allow consideration of individualized circumstances, and identified the sole basis for its coverage as the status of a person as “Qatari”.

1.6

Second, the UAE simultaneously announced the closure of UAE airspace

and seaports to “Qataris” within 24 hours and declared that all “Qatari nationals” would be barred from entering or transiting through the UAE (the “Absolute Travel Ban”)⁷. Like the Expulsion Order, this ban on travel of Qataris in or through the UAE was absolute; there were no exceptions or consideration of individual circumstances. The UAE simultaneously banned UAE nationals from entering or staying in Qatar. While the UAE subsequently announced revisions to the Absolute Travel Ban—largely in the form of a security channel being paraded as a “humanitarian” “hotline” (the “Modified Travel Ban”)—Qataris’ entry into the UAE continues to be impeded on an arbitrary and discriminatory basis.

1.7

Third, in the days that followed the 5 June Directive, the UAE, separately,

and at times surreptitiously, also enacted measures perpetuating, condoning, and encouraging anti-Qatari hate propaganda, while at the same time suppressing Qatari media and speech deemed to support Qatar. In particular, the UAE orchestrated and funded a coordinated anti-Qatari propaganda campaign on various media platforms to inspire prejudice against Qataris, just for being Qatari

6

7

3

(the “Anti-Qatari Incitement Campaign”). Simultaneously, to stifle free

expression, the UAE blocked Al Jazeera and other Qatari media outlets in UAE territory (the “Block on Qatari Media”) and subjected conduct it deemed to be “sympathizing” with Qatar to substantial criminal penalties, including incarceration, under the UAE’s existing cybercrime law (the “Anti-Sympathy

Law”).

1.8

These actions by the UAE (collectively, the “Discriminatory Measures”)

constitute clear violations of the protections against racial discrimination based on national origin in the CERD. They are as vicious in their disregard of fundamental human rights as they are transparent in their political motivation. The UAE made their punitive purpose clear from the outset, explicitly stating in the 5 June Directive that the measures are “based on the insistence of the State of Qatar to continue to undermine the security and stability of the region and its failure to honour international commitments and agreements”⁸. And the UAE has been equally unwavering before the Court, stating plainly that “the present crisis was caused by Qatar’s own unlawful conduct”⁹, which the UAE decided “could not remain without consequences”¹⁰.

1.9

The method the UAE chose to attempt to coerce the Qatari Government—

the collective punishment of the Qatari people—constitutes an impermissible purpose under the CERD, and, as intended, has had and continues to have severe consequences for the rights of individual Qataris. The UAE radically disrupted the

8

9

CR 2018/13, p. 12, para. 8 (Alnowais).

10

CR 2018/15, p. 38, para. 10 (Shaw).

4lives of Qataris, who, prior to the enactment of the Discriminatory Measures, led lives that were deeply intertwined with the UAE and Emiratis. As nationals of the Gulf Cooperation Council (“GCC”), Qataris and Emiratis moved freely between the UAE and Qatar, and within the UAE, Qataris enjoyed many of the same rights and benefits as Emiratis. As a result, many Qataris lived, worked, studied, and owned property in the UAE, some of them with ties going back decades. Mixed families of Qatari and Emirati origin were commonplace, and often spanned the two countries, with individuals travelling between them to work, go to school, manage property and businesses, and visit close relations. All of this changed abruptly and drastically following the imposition of the Discriminatory Measures.

1.10 By these Measures, the UAE violated both the letter and spirit of the CERD. Specifically, the UAE has violated and, in some instances continues to violate, the basic protections against racial discrimination set forth in the CERD, including Articles 2, 4, 5, 6, and 7 of the CERD.

1.11 First, by promulgating its Expulsion Order and Absolute Travel Ban, the UAE has engaged in the collective expulsion of all individuals from Qatar, solely on the basis of their national origin. Qataris living for years—sometimes decades—in the UAE learned overnight that they had only two weeks to leave the UAE and abandon the lives they had built there, leaving behind family, educational opportunities, and property. The Expulsion Order and Absolute Travel Ban collectively expelled Qataris on the basis of their national origin without the provision of basic due process, and thereby, constituted racial discrimination on the basis of national origin under Article 1(1) of the CERD and prohibited under Article 2(1), Article 5(a) and Article 6. In particular, the UAE’s collective expulsion of Qataris violated the CERD in two ways: first, based on the UAE’s discriminatory purpose of expelling all Qatari nationals as a group, evidenced on
5the face of the Expulsion Order and Absolute Travel Ban; and second, based on the discriminatory effect of nullifying or impairing the fundamental human right of Qataris to due process.