Qatari Cases before International Dispute Settlement Fora
On January 27, 2020, Mohammed Abdulaziz Al-Khulaifi, Dean of the College of Law at Qatar University, presented a talk at CIRS, Qatari Cases before International Dispute Settlement Fora, concerning legal actions following the blockade against Qatar that began on June 5, 2017. On that date, the Kingdom of Saudi Arabia (KSA), the United Arab Emirates (UAE), the Kingdom of Bahrain, and Egypt severed diplomatic relations and cut off direct communications with Qatar. Al-Khulaifi outlined the ways in which the four countries have taken coercive measures against Qatar and Qataris that are in contravention of their obligations under international treaties to which they are parties.
Al-Khulaifi said the State of Qatar has sought legal remedies and instituted proceedings against the four states using various international dispute settlement mechanisms. Three of the major cases currently pending are at the International Court of Justice (ICJ), and are based on: the International Convention on the Elimination of All Forms Racial Discrimination (CERD), the Convention on International Civil Aviation, and International Air Services Transit Agreement. In addition, there are two inter-state complaints before the CERD Committee. Additionally, there are two cases concerning trade that are currently pending before the World Trade Organization (WTO).
The first case that Al-Khulaifi discussed was filed by Qatar against the UAE under the CERD Convention, which deals with matters of human rights. Qatar brought the case against only the UAE because of the four blockading states, only the UAE recognizes the jurisdiction of the ICJ under this Convention. In this case, Qatar alleges that the UAE’s actions—for example, expelling Qatari citizens from the UAE—were based on national origin and therefore the UAE violated its obligations under the CERD. The Convention protects a number of rights including: prohibition on collective expulsion, the obligation to condemn racial hatred and incitement, the right to equal treatment before tribunals, the right to marriage and choice of spouse, and the right to own private property. These rights are outlined in Article 5 of the Convention, and Al-Khulaifi said, “We believe strongly that the UAE has clearly violated those rights.”
“Never has a country decided to submit a complaint in front of a United Nations human-rights treaty body against another state,” he said. “And I am glad that the case Qatar v. KSA is number one in history; and number two is Qatar v. UAE.”
Additionally, Qatar requested provisional measures before the ICJ on June 5, 2018, to receive an urgent order from the court “to preserve the rights of its nationals or the rights of the country itself.” The legal team successfully received the court’s approval for the provisional measures that ensured that families separated by the UAE’s measures were reunited; gave Qatari students the option of completing their education in the UAE, or at least access their necessary records; and allowed Qataris to access UAE courts and tribunals. A fourth measure required “both parties must refrain from any action that may aggravate the dispute during the proceedings of the case.” That the court found in favor of Qatar on these measures was a “clear rebuke of the unlawful discriminatory measures adopted by the UAE,” Al-Khulaifi said.
In March 2019, the UAE submitted its own request for provisional measures, which was an unconventional step and served to delay the process. However, the UAE’s request was rejected by the court in June 2019, Al-Khulaifi said.
The cases that are before the CERD Committee are conciliation procedures and concern racial discrimination. Qatar has filed two communications against the UAE and KSA. It is worth noting that the case against KSA could not be sent to the ICJ, Al-Khulaifi said, “Because Saudi Arabia decided, purposefully, to make a reservation to Article 22 of the CERD, so we could not follow that path.” He noted that this is the first filing of its kind in history. “Never has a country decided to submit a complaint in front of a United Nations human-rights treaty body against another state,” he said. “And I am glad that the case Qatar v. KSA is number one in history; and number two is Qatar v. UAE.” In August 2019, the CERD Committee decided to accept the jurisdiction and look at the two communications submitted by the State of Qatar; the cases is still pending.
Concerning the matter of civil aviation, the four blockading states have prevented Qatari airlines from flying over their territories, and also landing and taking off from their airports. “Those are clear violations of the Convention on International Civil Aviation,” he said. After receiving decisions from the ICAO Council confirming that it has jurisdiction to examine the merits of the cases, the four blockading states decided to appeal those decisions before the ICJ, “which will soon decide on these matters, and hopefully, will send the cases back to the ICAO Council. Then, the ICAO Council will examine the merits of our complaints,” he said.
In conclusion, Al-Khulaifi addressed the trade violations within the framework of the World Trade Organization (WTO). “Part of those coercive measures adopted by the four states—but more specifically the three neighboring states—is to simply prevent import, export, sale, purchase, license, transfer, and all types of commercial deals with the State of Qatar,” he said. Qatar filed complaints against Bahrain, KSA, and UAE arguing violations related to the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS), and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). An additional separate case was filed against the KSA over intellectual property rights violations concerning copyright infringement, and more specifically, piracy of the content of beIN Sport.
As far as the case against the UAE before the ICJ is concerned, hearings on preliminary objections will take place soon. Al-Khulaifi said the hearings would be broadcast on the UNTV website. “We expect that a few months after the hearings, the Court will make its final decision on the jurisdiction of the case.
Mohammed Abdulaziz Al-Khulaifi is Dean of the College of Law and Associate Professor of commercial law at Qatar University. He is a member of several academic and professional committees in Qatar, including the Permanent Legislative Committee of the Council of Ministers. He has received numerous awards and fellowships, including His Highness Sheikh Tamim bin Hamad Al Thani, The Emir of Qatar, Ph.D. Award (Education Excellence Award, 2012). In parallel with his academic activities, Al-Khulaifi is a lawyer at Abdulaziz Al-Khulaifi law firm and serves as an independent adjudicator at the Qatar Financial Center, in Regulatory Authority. He acts as legal counsel to HE the Deputy Prime Minister and Minister of Foreign Affairs of the State of Qatar, and he was appointed as the Agent of the State of Qatar before the International Court of Justice. His research and practice focus on commercial law, and he has authored numerous articles and books on bankruptcy, mergers and acquisitions, commercial law, banking transactions, and arbitration.
Article by Chaïmaa Benkermi (Class of 2021), CURA Publications Fellow