{"id":3931,"date":"2018-10-05T00:00:00","date_gmt":"2018-10-05T14:46:53","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/the-urgent-the-plausible-and-the-irreparable\/"},"modified":"2020-12-09T13:07:17","modified_gmt":"2020-12-09T12:07:17","slug":"the-urgent-the-plausible-and-the-irreparable","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-urgent-the-plausible-and-the-irreparable\/","title":{"rendered":"The urgent, the plausible and the irreparable"},"content":{"rendered":"

The ICJ\u2019s decision on Iran\u2019s application for provisional measures<\/a> in its high-profile proceedings against the United States of America for alleged violations of their 1955 Treaty of Amity<\/a> was handed down on Wednesday. This tightly constrained and circumscribed stage of the proceedings, though only a precursor to the far more significant jurisdictional and merits stages\u2014each of which has the potential to ask questions with lasting significance for international law and international relations (for discussion see here<\/a>)\u2014has already produced fireworks. The US Secretary of State, Mike Pompeo, has already announced that the US intends to withdraw from the Treaty of Amity in response to the Court\u2019s order, and John Bolton has declared that all agreements which could form a jurisdictional basis for an ICJ case will be reviewed (see report on BBC News<\/a>). Nevertheless, the Court\u2019s provisional measures decision has a significance drawn not only from the geopolitical situation, but also as a result of timing: it comes hard on the heels of the Court\u2019s decision on provisional measures in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v UAE)<\/em><\/a>, in which the Court appeared significantly to lower the threshold for the indication of provisional measures. Aside from its innate interest, the decision on provisional measures in Iran v USA has given the Court an opportunity, just weeks after this first foray, either to confirm its new approach or to draw back. This short contribution will not attempt to give a comprehensive overview of these two cases\u2014there are many issues worthy of discussion contained within each of the Court\u2019s provisional measures orders\u2014but rather will focus on what they reveal about the changing nature of provisional measures.<\/p>\n

Qatar v UAE: The Background<\/strong><\/p>\n

The background to the dispute between Qatar and the UAE is convoluted to the point of confusion, and remarkable almost to the point of absurdity. In a sequence of events that would be darkly comic if not for their deeply damaging consequences for the prospects for stability in the region and for the lives of the individuals in the States concerned, there has been a fundamental breakdown of relations between Qatar and several of its neighbours, who have imposed a swinging sanctions regime on the grounds of its alleged support (financial and otherwise) for terrorism (See here<\/a>, here<\/a>, and here<\/a>).<\/p>\n

Under the 2013-14 Riyadh Agreements<\/a>, Qatar committed \u201cto cease supporting, financing or harbouring persons or groups presenting a danger to national security, in particular terrorist groups\u201d. Nevertheless, following that agreement a number of huge payments were made by Qatar to various groups in the region. According to the Financial Times<\/a>, after the Riyadh Agreements Qatar paid around $1bn to such organisations: $700 million to Shi\u2019a irregular forces in Iraq, $140 million to al-Qaeda in Syria, and $80 million to Ahrar al-Sham. The New York Times<\/a> reported an additional 500 million euro payment to Kata\u2019ib Hezbollah, listed as a terrorist organisation by the US State Department. Indeed, this may not be all: there were unsuccessful attempts. In a truly bizarre incident, on 15 April 2017, fifteen Qatari men told security at the VIP terminal at Baghdad airport that they didn\u2019t wish to have their luggage inspected. The Iraqis insisted, prompting the Qataris to leave their luggage at the airport and drive away. Security opened the 23 identical black duffel bags, and found $360 million in cash, weighing 1,200 kilos. Qatar explains these payments as ransom for a group of 28 hunters, including members of the ruling royal house of Thani, kidnapped in December 2015.<\/p>\n

Adding to the tension caused by these revelations, in May 2017, statements of support for Iran, Hamas, Hezbollah and Israel appeared on the Qatar News Agency\u2019s website, attributed to the Emir of Qatar. Qatar disavowed the statements and blamed hackers, a conclusion in which the FBI (who assisted with the investigation) apparently concurs<\/a>. Nevertheless, and citing Qatar\u2019s failure to honour the Riyadh Agreements, on 5 June 2017 thirteen states, including the UAE, Bahrain, Saudi Arabia, and Egypt (the quartet), severed or downgraded diplomatic relations, imposed sanctions, and blocked Qatar\u2019s airspace and sea routes.<\/p>\n

Hampered by the lack of an Article 36(2) declaration<\/a> and absent any prospect of a joint referral, Qatar has been left without a legal means to challenge the sanctions regime in toto<\/em>. Instead, it has pursued a clever (if high risk) strategy of seeking to subsume various aspects of the sanctions regime under, variously, the WTO, the ICAO, and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).<\/p>\n

On 11 June 2018 Qatar initiated ICJ proceedings against the UAE<\/a>\u2014the only member of the quartet that has accepted the jurisdiction of the ICJ under CERD\u2014under Articles 2 and 4-7 of that convention for encouraging racial hatred against Qatar and Qataris, and violating Qataris\u2019 human rights to marriage and choice of spouse, freedom of opinion and expression, public health and medical care, education and training, property, work, participation in cultural activities, and equal treatment before tribunals. Under Article 41 of the Statute of the Court, Qatar asked for provisional measures \u201cto protect against further, irreparable harm to the rights of Qataris and their families under CERD, and to prevent aggravation or extension of the dispute\u201d.<\/p>\n

The Court\u2019s Provisional Measures Order in <\/strong>Qatar v UAE<\/strong><\/em><\/p>\n

In its 23 July Order<\/a> the ICJ ruled that there are plausible human rights violations causing irreparable harm, and imposed provisional measures. Of Qatar\u2019s nine requests they granted three: concerning mixed families, students, and access to UAE courts. This was a knife-edge decision. The ICJ granted provisional measures by 8:7, the first vote so narrow in a contentious case since the 1962 decision to claim jurisdiction in the South West Africa Cases<\/a>. Moreover, eight of the fifteen judges registered disagreement: the stage produced four Dissenting Opinions (of Judges Bhandari<\/a>, Crawford<\/a>, Salam<\/a>, and Judge ad hoc Cot<\/a>), a Joint Declaration (though in effect a dissent by another name) of Judges Tomka, Gaja, and Gevorgian<\/a>, and a somewhat critical Separate Opinion by Judge Can\u00e7ado Trindade<\/a> who, though he agreed with the ICJ\u2019s decision criticised it lightly, and the UAE legal team heavily, for an \u201cunfortunate diversion\u201d in not addressing human rights head-on.<\/p>\n

The most prominent objection concerned CERD\u2019s scope. The UAE team (as well as Judges Crawford, Tomka, Gaja, Gevorgian, Salam, and Cot) argued that CERD, as defined by Article 1(1-3)<\/a>, applies only to \u201crace, colour, descent, or national or ethnic origin,\u201d none of which cover present nationality. It was also pointed out that while in other CERD cases the ICJ relied on the CERD Committee\u2019s report concerning human rights violations, in this case the Committee has not even started its investigation \u2013 this despite that Article 22 of CERD<\/a> appears to permit recourse to the ICJ only after a failure of the Convention\u2019s organs to resolve a dispute. The Court decided that it had prima facie jurisdiction to order provisional measures without addressing either issue [27, 39] and without considering whether Qatar has exhausted local remedies [42].<\/p>\n

Provisional measures can be granted if the ICJ finds a plausible risk of irreparable and urgent prejudice to State rights. A great deal could be said about each of these criteria and their application in this case, but the focus of this short contribution will be the Court\u2019s interpretation of the requirement of plausibility \u2013 a matter which has already had implications for the oral arguments in Iran v USA.<\/p>\n

Interpretation of \u201cPlausibility\u201d in Provisional Measures<\/strong><\/p>\n

The criterion that the right claimed by a State must, to some small extent consistent with the obligation of the Court not to prejudice the Merits phase, be substantiated was first discussed by the Court in the Great Belt case [21-22]<\/a>. Its modern case-law on the subject (see, for example, its 2011 Order on provisional Measures in Costa Rica v Nicaragua [53-54]<\/a>) refers rather to its discussion in Obligation to Prosecute or Extradite<\/a>. Paragraph 57 of that Order declared that \u201cthe power of the Court to indicate provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible\u201d. The rationale for such a rule is clear: As Karin Oellers-Frahm notes in her Commentary on Article 41 of the Court\u2019s Statute<\/a>, where there is little to suggest that the right claimed could actually apply to the matter in the merits phase, \u201cthere would not be any necessity to indicate provisional measures\u201d (p.938).<\/p>\n

Plausibility is already a low threshold for a Party seeking provisional measures to reach, and it is therefore surprising that the Court seemed, in Qatar v UAE to lower it further. Having first repeated, in paragraphs 43 and 44, that the standard of plausibility applies, it gave little or no apparent consideration to what \u201cplausibility\u201d entails. Instead, the Court appeared to accept Qatar\u2019s reasoning that \u201cthe alleged rights are plausible in so far as they are \u2018grounded in a possible interpretation\u2019 of\u201d CERD [46]. After citing the Convention\u2019s terms extensively, the Court made a brief statement that \u201csome of the acts of which Qatar complains may constitute acts of racial discrimination as defined by the Convention\u201d [54], a level of analysis which seems entirely suited to the \u201cpossibility\u201d test advanced by Qatar, but entirely insufficient to demonstrate that the higher standard of plausibility has been met.<\/p>\n

Act Two: <\/strong>Iran v USA<\/strong><\/em> at the ICJ<\/strong><\/p>\n

The background to the Iran v USA<\/em> proceedings is well known, and will not be repeated (it has already been discussed here<\/a>, here<\/a> and here<\/a>). Iran contends that the re-imposition of the sanctions regime following the American disavowal of the JCPOA is in violation of the two countries\u2019 1955 Treaty of Amity, and sought five provisional measures. In a victory for Iran that is likely to be of greater symbolic than practical relevance, the ICJ granted certain of Iran\u2019s provisional measures requests. It ruled that it had prima facie jurisdiction to hear the case [24-52], that Iran had a plausible claim to certain rights under the 1955 Treaty [53-76, and that there was an urgent risk of irreparable prejudice to those rights [77-94]. It ordered, in its first operative paragraph, that<\/p>\n

The United States of America, in accordance with its obligations under the 1955 Treaty of Amity, Economic Relations, and Consular Rights, shall remove, by means of its choosing, any impediments arising from the measures announced on 8 May 2018 to the free exportation to the territory of the Islamic Republic of Iran of<\/p>\n