Lingering Gulf Dispute Gives Rise to Multi-Forum Legal Proceedings

Accusations of foreign interference in domestic affairs was a dominant theme throughout the 2010s. This was no less true in the Persian Gulf. Beginning in 2013, Saudi Arabia, the United Arab Emirates, Egypt, and Bahrain charged neighboring Qatar with meddling in their internal affairs and other infractions to their sovereignty. But what began as a quiet disagreement among allies burst onto global headlines when in 2017 the four countries abruptly terminated their diplomatic and economic relations with Qatar. This Insight analyzes the remarkable, multidimensional dispute resolution process that has unfolded before several international fora as the boycott approaches the three-year mark.

Background of the Dispute

The seeds of the dispute began in November 2013 when members of the Gulf Cooperation Council (GCC) met in Riyadh to discuss what some GCC member states characterized as Qatar’s meddling in their internal affairs. That summit produced the First Riyadh Agreement: a succinct undertaking in which Qatar pledged “[n]o interference in the internal affairs of the Council’s states” and other similar regional security guarantees.[1] Despite these undertakings, the relationship between the two sides remained fractious.

On June 5, 2017, Saudi Arabia, the United Arab Emirates, Egypt, and Bahrain (the Quartet) dramatically ruptured their diplomatic and economic relations with Qatar and instituted a broad-based boycott.[2] The Quartet publicly leveled a number of charges against Qatar, including its allegedly close relationship with Iran, its alleged continuing support of opposition groups within its neighbors, and Qatari media organization Al Jazeera’s freewheeling criticisms of other regional governments. The Quartet further issued a list of demands to be met in order to normalize relations.[3]

Qatar denied the allegations and refused to accede to the demands. After a period of stabilization, Qatar vowed to pursue arbitration in response without specifying the legal basis or forum.[4] Despite signs of an impending rapprochement, the boycott continues to this day.[5]

Two of the most significant acts by the Quartet—the repatriation of Qatari nationals from their territories (and in some cases the recall of their nationals from Qatar) and the closure of their airspace to Qatari civil aviation—have formed the basis for international legal proceedings. This Insight provides an introduction to these proceedings, specifically:

1. a contentious dispute before the International Court of Justice on the basis of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD);
2. novel inter-state communications and ad hoc Conciliation Commission proceedings before the U.N. Committee on Elimination of Racial Discrimination (CERD or the “Committee”);
3. two proceedings before the International Civil Aviation Organization (ICAO), which were later appealed to the ICJ; and
4. several actions before the World Trade Organization.

The ICJ Proceeding

To advance its claims concerning the treatment of its nationals, Qatar turned to the oldest of the core human rights treaties—the ICERD. While each member of the Quartet is a party to the ICERD, Saudi Arabia, Egypt, and Bahrain each notified reservations to the ICJ’s jurisdiction under that treaty. The case could therefore only proceed against the UAE. In its Application, Qatar highlighted the effect of measures “collectively expelling Qataris from UAE territory . . . [and] prohibiting Qataris from entering into or passing through UAE territory.”[6] Qatar claims that these measures have interfered with those individuals’ rights to marriage, free expression, medical care, education, work, and property—all putative violations of the ICERD, which the UAE denies.

The parties submitted dueling Requests for the Indication of Provisional Measures, which raised two important legal questions—one substantive and one procedural. The Court declined to settle these questions at the preliminary stage, so they will likely figure in the Court’s final judgment. 

First, although the ICERD defines racial discrimination to include any distinction based on “national or ethnic origin,”[7] its text does not prohibit distinctions between “citizens and non-citizens,” nor does it reach domestic regulations on “nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.”[8] Qatar relies on the Committee’s Recommendation No. 30, which holds that those definitional carve-outs “must be construed so as to avoid undermining the basic prohibition of discrimination” and would seem to include nationality within the ICERD meaning of national origin.[9] The Court majority avoided ruling on the issue dispositively. However, several judges wrote separately to disagree with or otherwise question the majority’s apparent conflation of national origin and nationality under the ICERD. The Court’s eventual judgment should offer a definitive pronouncement on that debate.

Second, the ICERD contains several modalities of dispute resolution. Article 22, which contains the ICJ jurisdictional clause, is arguably unclear whether the other procedures mentioned by the ICERD—that is, inter-state communications and individual complaints—are a precondition for invoking the ICJ’s jurisdiction or operate as a fork in the road, allowing states to pursue either an ICJ case or to engage in these alternative dispute settlement processes, but not both. The majority also declined to answer this question dispositively at the preliminary stage of the proceeding. 

In an Order dated July 23, 2018, the Court granted Qatar limited provisional relief in the form of ordering the UAE to reunite families that had been separated, to allow Qatari students to finish their education in the UAE, and to permit Qataris access to Emirati tribunals and other judicial institutions.[10] On the procedural jurisdictional issue, the Court later declined the UAE’s request to order that Qatar withdraw its CERD inter-state communication, among other measures of non-aggravation of the dispute.[11] Having disposed of both Parties’ Requests for Provisional Measures, the plenary case remains pending before the Court.

The U.N. CERD Proceedings

On March 8, 2018, Qatar submitted inter-state communications to the Committee overseeing the ICERD, against Saudi Arabia and the UAE respectively—the first two in the fifty-year history of the U.N. human rights treaty bodies.[12]

The ICERD permits an aggrieved party to bring a matter to the attention of the Committee, which is then tasked with facilitating a discussion between the disputants. Failing resolution of the dispute, either disputant can then notify the Committee a second time, which would then convene an ad hoc Conciliation Commission—a step that Qatar took against both Saudi Arabia and the UAE on October 29, 2018. The Conciliation Commissions will eventually produce a report “embodying its findings on all questions of fact . . . and containing such recommendations as it may think proper.”[13]

In convening the Conciliation Commissions, the CERD issued reports in 2019 assuring itself of jurisdiction over the communications and that the communications were otherwise admissible. Whereas the ICJ avoided, for the moment, the question of cumulative versus alternative remedies under the ICERD, the Committee read the convention as affording multiple, non-exclusive avenues of dispute resolution, thus allowing the Conciliation Commission and ICJ proceedings to advance in parallel.[14]

The ICAO Proceedings

In the proceedings arising under the ICERD, Qatar emphasized the effect of the boycott on its nationals. An equally consequential aspect of the boycott was the Quartet’s closure of its airspace to Qatari aircraft and other measures against the Qatari aviation sector. Qatar turned to the ICAO Council to challenge the airspace restrictions, filing two applications under the Convention on International Civil Aviation (the Chicago Convention) and the International Air Services Transit Agreement (IASTA), respectively. Both instruments give the Council authority to decide disputes on their interpretation or application.

The Quartet objected to both ICAO proceedings on the basis that the dispute would require the Council to determine issues outside of its jurisdiction, i.e., the lawfulness of countermeasures under the Riyadh Agreements, and that Qatar failed to satisfy the necessary precondition of attempting the resolve the dispute through negotiations. The ICAO Council denied the Quartet’s objections, and the Quartet appealed that to the ICJ. The parties argued the case in December 2019 and are now awaiting the ICJ’s judgment.

The WTO Proceedings

On July 31, 2017, Qatar requested consultations with the UAE (DS526), Bahrain (DS527), and Saudi Arabia (DS528). The complaints are substantially similar, asserting that each respondent state’s closure of its land and maritime borders, prohibition on flights operated by aircraft registered in Qatar, closure of Qatari service suppliers’ offices, prohibition and restrictions on broadcasting by Qatar media outlets, among others, violate various articles of the GATT, the GATS, and the TRIPS Agreement. 

The proceedings against Bahrain (DS527) and Saudi Arabia (DS528) do not appear to have progressed; however, on October 6, 2017, Qatar requested the establishment of a panel against the UAE (DS526). While the parties’ arguments to date are not public, the panel report is expected in the second half of 2020, which will be made public and provide a detailed overview of the arguments.

Qatar brought a separate proceeding against Saudi Arabia on October 1, 2018, on the basis of Saudi Arabia’s alleged failure to protect Qatari intellectual property rights (DS567). In particular, Qatar claimed that Saudi Arabia, in violation of the TRIPS Agreement, failed to take action against “a sophisticated broadcast pirate [network] named ‘beoutQ,’” which allegedly pirated and broadcast content owned by Qatar’s beIN Media Group.[15] The parties argued the case before a panel and the final report is expected in the first quarter of 2020. This dispute is also the subject of an investment arbitration under the auspices of the Investment Agreement of the Organisation for Islamic Cooperation (OIC).[16]

Finally, on January 28, 2019, the UAE requested consultations with Qatar concerning Qatari measures relating to the import, distribution, and sale of Emirati goods (DS 576). The UAE asserted that these measures violated the GATT and the WTO Dispute Settlement Understanding. A panel was established in May 2019, but the UAE later withdrew its complaint, citing Qatar’s withdrawal of the contested measures.[17]

Conclusion

Although recent reports suggest that Qatar and certain members of the Quartet might soon reconcile, the legal proceedings to date have created, and will continue to create, important pronouncements of international law. Irrespective of the final outcomes, the legal aspects of the dispute as a whole warrant close analysis as decisions begin to emerge. It is also a remarkable illustration of how a wide range of international legal proceedings may be brought to bear in a diplomatic fallout.

About the Author: Craig Gaver has practiced law in Washington, DC and the Persian Gulf. He is presently an LL.M. candidate at Columbia Law School.