                      157

                                   SEPARATE OPINION OF JUDGE IWASAWA

                         Non‑citizens are entitled to human rights under international law — The
                      jurisdiction of the Court is limited to disputes with respect to the interpretation or
                      application of CERD — For the Court to have jurisdiction, the measures of which
                      the Applicant complains must be capable of constituting racial discrimination
                      within the meaning of CERD — The term “national origin” in Article 1,
                      paragraph 1, of CERD does not encompass current nationality — If differentiation
                      of treatment based on nationality has the “purpose or effect” of discrimination
                      based on “national origin”, it is capable of constituting racial discrimination within
                      the meaning of CERD — International human rights courts and bodies have
                      embraced and developed the notion of indirect discrimination — The Court does
                      not have all the facts necessary to make determinations on the Applicant’s claim of
                      indirect discrimination — The issues raised constitute the very subject‑matter of
                      the dispute on the merits — The Court should have declared that the first
                      preliminary objection does not possess an exclusively preliminary character.

                         1. The Court finds that the term “national origin” in Article 1, para-
                      graph 1, of the International Convention on the Elimination of All Forms
                      of Racial Discrimination (hereinafter “CERD” or the “Convention”)
                      does not encompass current nationality (Judgment, para. 105). The Court
                      also examines whether the measures taken by the UAE discriminate indi-
                      rectly against Qataris on the basis of their “national origin”, and holds
                      that “even if the measures of which Qatar complains in support of its
                      ‘indirect discrimination’ claim were to be proven on the facts, they are not
                      capable of constituting racial discrimination within the meaning of the
                      Convention” (ibid., para. 112). Accordingly, the Court concludes that the
                      first preliminary objection raised by the UAE, that the dispute falls out-
                      side the scope ratione materiae of CERD, must be upheld (ibid., para. 114).

                        2. I agree that the term “national origin” in Article 1, paragraph 1, of
                      CERD does not encompass current nationality. However, I do not agree
                      with the Court’s analysis and its conclusion regarding Qatar’s claim of
                      indirect discrimination. The UAE’s objection, inasmuch as it relates to
                      Qatar’s claim of indirect discrimination, raises issues that require a
                      detailed examination by the Court at the merits stage. The Court there-
                      fore should have declared that the first preliminary objection of the UAE
                      does not possess an exclusively preliminary character.

                        3. This opinion is structured as follows. I shall first review the position
                      of non‑citizens under international law. I will explain that since human

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                      rights are inalienable rights of everyone, non‑citizens are also entitled to
                      human rights under international law. In the second Section, I will first
                      show that, because the jurisdiction of the Court in the present case is
                      limited to the interpretation or application of CERD, in order for the
                      Court to have jurisdiction, the measures taken by the UAE must be capa-
                      ble of constituting “racial discrimination” under CERD. Secondly, I shall
                      explain the reasoning for my view that current nationality is not encom-
                      passed within the term “national origin” in Article 1, paragraph 1, of
                      CERD. Thirdly, I shall discuss the notion of indirect discrimination and
                      describe how differentiation of treatment based on current nationality can
                      have the “purpose or effect” of discriminating on the basis of a prohibited
                      ground listed in Article 1, paragraph 1, of CERD. Finally, I shall explain
                      the reasons why the Court should have declared that the first preliminary
                      objection of the UAE does not possess an exclusively preliminary charac-
                      ter.

                                         I. Human Rights of Non‑Citizens
                                             under International Law

                         4. The protection of the rights of non‑citizens has a long history in
                      international law, which pre-dates the protections accorded to States’
                      own nationals. In the nineteenth and early twentieth centuries, an inter-
                      national minimum standard of treatment of aliens developed in interna-
                      tional law. By contrast, international law at that time contained few rules
                      regulating States’ treatment of their own nationals, which was tradition-
                      ally considered to be part of the internal affairs of States.

                         5. At the Paris Peace Conference held in 1919‑1920, proposals were
                      made to include in the Covenant of the League of Nations clauses on
                      freedom of religion and racial equality. These proposals were ultimately
                      defeated, and the Covenant failed to stipulate even minimum rules con-
                      cerning human rights. Instead, a number of mostly Central and Eastern
                      European States concluded treaties or made declarations committing
                      themselves to protect minorities within their territories. In addition, the
                      International Labour Organization, which was established in 1919, began
                      adopting conventions on the rights of workers. Thus, while some efforts
                      were made in the interwar period to protect human rights under interna-
                      tional law, this protection was extended only to certain rights or covered
                      only a limited number of States.

                        6. In 1945, this situation changed dramatically with the adoption of the
                      Charter of the United Nations. The Charter was revolutionary in that it

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                      not only included the promotion and encouragement of respect for human
                      rights as one of the purposes of the Organization, but also declared that
                      human rights were guaranteed for “all without distinction” (Art. 1,
                      para. 3, and Art. 55 (c)). The adoption of the Charter marked the begin-
                      ning of a process of continual expansion of international human rights
                      law.
                         7. In 1948, the General Assembly of the United Nations adopted the
                      Universal Declaration of Human Rights (hereinafter the “UDHR”),
                      which set out a catalogue of human rights to be protected by States under
                      the Charter. Influenced by the idea of natural rights, it provided that
                      “[a]ll human beings are born free and equal in dignity and rights”
                      (Art. 1; emphasis added) and that “[e]veryone is entitled to all the rights
                      and freedoms set forth in this Declaration, without distinction of any kind,
                      such as race, colour, sex, language, religion, political or other opinion,
                      national or social origin, property, birth or other status” (Art. 2; emphasis
                      added). From the phrase “such as”, it is clear that the list of prohibited
                      grounds of discrimination in Article 2 of the UDHR is illustrative, and
                      not exhaustive. Moreover, the list includes the catch‑all term “other sta-
                      tus”. Thus, even though nationality is not expressly mentioned in the list
                      of prohibited grounds, it may be concluded that discrimination based on
                      nationality is prohibited by the UDHR and that non‑citizens are also
                      entitled to the human rights enshrined therein.

                        8. In 1966, the General Assembly adopted the International Covenant
                      on Economic, Social and Cultural Rights (hereinafter the “ICESCR”)
                      and the International Covenant on Civil and Political Rights (hereinafter
                      the “ICCPR”). The ICCPR provides in Article 2, paragraph 1, that
                           “[e]ach State Party . . . undertakes to respect and to ensure to all
                           individuals . . . the rights recognized in the present Covenant, without
                           distinction of any kind, such as race, colour, sex, language, religion,
                           political or other opinion, national or social origin, property, birth or
                           other status” (emphasis added).

                      Article 26 of the ICCPR, a self‑standing non‑discrimination clause, con-
                      tains comparable language. As with the UDHR, it may be concluded
                      that, in principle, non‑citizens are entitled to the human rights provided
                      for in the ICCPR, and that the States parties are prohibited from dis-
                      criminating on the basis of nationality.

                        9. The wording used by the ICESCR is slightly different. Article 2,
                      paragraph 2, provides that the States parties “undertake to guarantee
                      that the rights enunciated in the present Covenant will be exercised with-
                      out discrimination of any kind as to race, colour, sex, language, religion,

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                      political or other opinion, national or social origin, property, birth or
                      other status” (emphasis added). The words “as to” are more restrictive
                      than the words “such as” used in the UDHR and the ICCPR. Neverthe-
                      less, because the list of prohibited grounds of discrimination, like those in
                      the UDHR and the ICCPR, contains the catch‑all term “other status”, it
                      may be concluded that this list is also illustrative, and not exhaustive.
                      Moreover, Article 2, paragraph 3, provides that “[d]eveloping coun-
                      tries . . . may determine to what extent they would guarantee the eco-
                      nomic rights recognized in the present Covenant to non‑nationals”.
                      Interpreting this clause a contrario, it may be concluded that the human
                      rights provided for in the ICESCR are also guaranteed in principle to
                      non‑nationals.

                         10. Regional conventions on human rights likewise contain non‑
                      discrimination clauses, such as Article 14 of the European Convention
                      on Human Rights and Articles 1 and 24 of the American Convention
                      on Human Rights. The lists of prohibited grounds of discrimination in
                      these clauses also contain catch‑all terms: “other status” in Article 14 of
                      the European Convention and “other social condition” in Article 1 of the
                      American Convention. Thus, these lists of prohibited grounds are equally
                      considered to be illustrative, and not exhaustive. Accordingly, like the
                      international conventions discussed above, regional conventions are
                      understood to protect the rights of non‑citizens.

                        11. The international human rights bodies and courts established by
                      these treaties to monitor their implementation by States have confirmed
                      that non‑citizens are entitled to the human rights provided for therein and
                      that discrimination based on nationality is prohibited.

                         12. With regard to the ICCPR, in 1986 the Human Rights Committee
                      adopted General Comment No. 15 on the position of aliens under the Cov-
                      enant, in which it affirmed that “[i]n general, the rights set forth in the
                      Covenant apply to everyone . . . irrespective of his or her nationality”,
                      and that “the general rule is that each one of the rights of the Covenant
                      must be guaranteed without discrimination between citizens and aliens” 1.

                         13. Subsequently, in a number of individual communication cases, the
                      Human Rights Committee has held that discrimination based on nation-
                      ality is prohibited by Article 26 of the ICCPR. In Gueye et al. v. France,

                         1 Human Rights Committee, General Comment No. 15 on the position of aliens under

                      the Covenant, 22 July 1986, paras. 1‑2.

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                      retired soldiers of Senegalese nationality who had served in the French
                      Army prior to the independence of Senegal claimed that France was in
                      breach of Article 26 because the pensions they received were inferior to
                      those enjoyed by retired soldiers of French nationality. The Committee
                      considered that this practice constituted discrimination based on nation-
                      ality in violation of Article 26 2. The Committee also found violations of
                      Article 26 in a number of cases brought against the Czech Republic.
                      These cases concerned Czech nationals who had fled Czechoslovakia
                      under communist pressure and had their property confiscated under the
                      legislation then applicable. The Czech Restitution Act of 1991 provided
                      for restitution of property or compensation, but only if a person was a
                      citizen of the Czech and Slovak Republic and was a permanent resident
                      in its territory. Persons who lost Czech citizenship after leaving the coun-
                      try submitted communications to the Committee, claiming that they had
                      been discriminated against because of their lack of citizenship. The Com-
                      mittee found the condition of citizenship unreasonable and discrimina-
                      tory, in violation of Article 26 of the ICCPR 3.

                         14. The Committee on Economic, Social and Cultural Rights (hereinaf-
                      ter the “CESCR”) has similarly confirmed that the ICESCR applies to
                      non‑citizens. In General Comment No. 20 of 2009, the CESCR declared
                      that “[t]he ground of nationality should not bar access to Covenant
                      rights”, while noting that this was “without prejudice to the application
                      of art. 2, para. 3, of the Covenant”. It confirmed that “[t]he Covenant
                      rights apply to everyone including non‑nationals” 4.
                         15. The monitoring bodies established by regional conventions on
                      human rights have taken the same position. The European Court of
                      Human Rights (hereinafter the “ECtHR”) has held that discrimination
                      based on nationality is prohibited by the European Convention on

                         2 Human Rights Committee, Gueye et al. v. France, 3 April 1989, Communication

                      No. 196/1985, para. 9.4.
                         3 E.g. Human Rights Committee, Simunek et al. v. Czech Republic, 19 July 1995,

                      Communication No. 516/1992, para. 11.6; Adam v. Czech Republic, 23 July 1996, Commu-
                      nication No. 586/1994, para. 12.6; Blazek et al. v. Czech Republic, 12 July 2001, Commu-
                      nication No. 857/1999, para. 5.8; Des Fours Walderode v. Czech Republic, 30 October
                      2001, Communication No. 747/1997, para. 8.4. See also Human Rights Committee, Kara-
                      kurt v. Austria, 4 April 2002, Communication No. 965/2000, para. 8.4 (finding a distinc-
                      tion between aliens made solely on the basis of their different nationalities concerning
                      their capacity to stand for election to a works council to be discrimination in violation of
                      Article 26).
                         4 CESCR, General Comment No. 20 on non‑discrimination in economic, social and

                      cultural rights (Art. 2, para. 2, of the International Covenant on Economic, Social and
                      Cultural Rights), 18 May 2009, para. 30.

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                      Human Rights 5. So has the Inter‑American Court of Human Rights
                      (hereinafter the “IACtHR”) with regard to the American Convention on
                      Human Rights 6.
                         16. Furthermore, the General Assembly of the United Nations adopted
                      in 1985 the Declaration on the Human Rights of Individuals Who Are
                      not Nationals of the Country in which They Live (resolution 40/144),
                      which lists rights applicable to individuals present in States of which they
                      are not nationals. A substantial number of the rights mentioned therein
                      replicate provisions contained in the International Bill of Human Rights
                      (the UDHR, the ICESCR and the ICCPR), emphasizing their applicabil-
                      ity to non‑citizens, albeit using somewhat different wording. This declara-
                      tion provides further evidence that non‑citizens are entitled to most of the
                      human rights contained in these instruments.

                         17. While it is clear that non‑citizens are entitled to human rights under
                      international law, international law does allow States to draw distinctions
                      between citizens and non‑citizens in respect of certain rights, such as
                      political rights and the right to enter a country. For example, Article 25
                      of the ICCPR provides that “[e]very citizen” shall have the right to take
                      part in the conduct of public affairs, to vote and to be elected, and to
                      have access to public service; and Article 12, paragraph 4, states that no
                      one shall be arbitrarily deprived of the right to enter “his own country”.
                      In General Comment No. 15 of 1986, the Human Rights Committee
                      acknowledged that “some of the rights recognized in the Covenant are
                      expressly applicable only to citizens” 7.

                         18. In addition, international law allows States to draw distinctions
                      between citizens and non‑citizens in time of public emergency. Article 4,
                      paragraph 1, of the ICCPR permits States, in time of public emergency,
                      to take measures derogating from their obligations under the Covenant,
                      provided such measures do not involve discrimination on the ground of
                      “race, colour, sex, language, religion or social origin”. Neither “national-
                      ity” nor “other status” is included in this list. Since Article 4, paragraph 2,
                      makes certain rights non‑derogable even in time of public emergency, no
                      one, including non‑citizens, can be deprived of these non‑derogable rights.
                      With regard to the other rights, however, States are not prohibited from

                         5 E.g. ECtHR, Andrejeva v. Latvia, Grand Chamber, judgment of 18 February 2009,

                      No. 55707/00, para. 87; Biao v. Denmark, Grand Chamber, judgment of 24 May 2016,
                      No. 38590/10, para. 93.
                         6 E.g. IACtHR, Juridical Condition and Rights of Undocumented Migrants, advisory

                      opinion of 17 September 2003, OC‑18/03, para. 118; Rights and Guarantees of Children in
                      the Context of Migration and/or in Need of International Protection, advisory opinion of
                      19 August 2014, OC‑21/14, para. 53.
                         7 Human Rights Committee, General Comment No. 15, supra note 1, para. 2.

                      95

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                      introducing restrictions that apply only to non‑citizens in time of public
                      emergency.

                          19. Furthermore, even in respect of the rights to which non‑citizens are
                      entitled under international law, States are not prohibited from making
                      certain distinctions based on nationality. The monitoring bodies estab-
                      lished by the international and regional human rights treaties use similar
                      frameworks to determine whether a distinction constitutes discrimina-
                      tion. A differentiation of treatment is considered to constitute discrimina-
                      tion, unless the criteria for such a differentiation are reasonable and
                      objective; in other words, unless it pursues a legitimate aim and there is a
                      reasonable relationship of proportionality between the means employed
                      and the aim sought to be achieved 8. This general framework also applies
                       to the question of whether particular distinctions based on nationality
                       constitute discrimination. Thus, for instance, preferential treatment given
                       to certain groups of non‑citizens by virtue of international agreements
                       may be considered reasonable and objective and therefore would not con-
                      stitute discrimination 9.
                          20. The Committee on the Elimination of Racial Discrimination (here-
                      inafter the “CERD Committee”), in its General Recommendation XXX
                      on discrimination against non-citizens, took note of the aforementioned
                      protections that international law provides to non‑citizens 10. Article 1,
                      paragraph 2, of CERD provides that “[t]his Convention shall not apply
                      to distinctions, exclusions, restrictions or preferences made by a
                      State Party to this Convention between citizens and non‑citizens”. In the
                      General Recommendation, the Committee stressed that “Article 1,
                      paragraph 2 . . . should not be interpreted to detract in any way from
                       the rights and freedoms recognized and enunciated in particular in
                       [the UDHR, the ICESCR and the ICCPR]” 11. Similarly, the Com
                      mittee noted:

                             “Although some of [the rights listed in Article 5 of CERD], such
                           as the right to participate in elections, to vote and to stand for elec-

                         8 E.g. Human Rights Committee, General Comment No. 18 on non‑discrimination,

                      9 November 1989, para. 13; ECtHR, Biao v. Denmark, supra note 5, para. 90; IACtHR,
                      Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica,
                      advisory opinion of 19 January 1984, OC‑4/84, para. 57.
                          9 E.g. Human Rights Committee, van Oord v. Netherlands, 23 July 1997, Commu-

                      nication No. 658/1995, para. 8.5; ECtHR, C. v. Belgium, judgment of 7 August 1996,
                      No. 21794/93, para. 38.
                          10 CERD Committee, General Recommendation XXX on discrimination against

                      non‑citizens, 5 August 2004.
                          11 Ibid., para. 2. This paragraph essentially repeats what the Committee had already

                      affirmed in 1993. CERD Committee, General Recommendation XI on non‑citizens,
                      9 March 1993, para. 3.

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                                tion, may be confined to citizens, human rights are, in principle, to
                                be enjoyed by all persons. States parties are under an obligation to
                                guarantee equality between citizens and non‑citizens in the enjoyment
                                of these rights to the extent recognized under international law.” 12

                         21. As I will explain in more detail below, the present dispute concerns
                      solely “the interpretation and application of [CERD]” and not other rules
                      of international law. The Court has no jurisdiction to make determina-
                      tions as to whether the measures taken by the UAE comply with other
                      rules of international law.

                                               II. “Racial Discrimination”
                                        under the International Convention on the
                                    Elimination of All Forms of Racial Discrimination

                                1. The Court Has Jurisdiction with respect to the Interpretation or
                                 Application of the International Convention on the Elimination of
                                                All Forms of Racial Discrimination
                         22. The present dispute has been brought to the Court pursuant to
                      Article 22 of CERD. According to this clause, the Court’s jurisdiction is
                      limited to disputes “with respect to the interpretation or application of
                      this Convention”. In order to determine whether the present dispute is
                      one with respect to the interpretation or application of CERD, the Court
                      needs to examine whether Qatar’s claims fall within the scope of CERD
                      (Judgment, para. 72). For Qatar’s claims to fall within the scope of
                      CERD, the measures of which it complains must be capable of constitut-
                      ing “racial discrimination” within the meaning of CERD. Accordingly,
                      whether the measures at issue are capable of constituting racial discrimi-
                      nation under CERD is critically important in the present case. If they are
                      not, the Court has no jurisdiction, irrespective of whether the same mea-
                      sures could constitute discrimination based on nationality under other
                      rules of international law.
                         23. Just as it has done before this Court, the UAE raised before the
                      CERD Committee the objection that its dispute with Qatar falls outside
                      the scope ratione materiae of CERD. In accordance with Rule 91 of its
                      Rules of Procedure, the Committee dealt with the preliminary issue of its
                      competence ratione materiae as a question of admissibility 13. For this
                      Court, however, this objection raises an issue of jurisdiction. If the mea-
                      sures taken by the UAE are not capable of constituting racial discrimina-

                           12
                            CERD Committee, General Recommendation XXX, supra note 10, para. 3.
                           13
                            CERD Committee, Decision on the jurisdiction of the inter‑State communica-
                      tion submitted by Qatar against the United Arab Emirates, dated 27 August 2019,
                      UN doc. CERD/C/99/3, para. 57.

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                      tion under CERD, the dispute falls outside the jurisdiction ratione
                      materiae of the Court.

                        24. Article 1, paragraph 1, of CERD defines “racial discrimination” as
                      follows:
                             “In this Convention, the term ‘racial discrimination’ shall mean any
                           distinction, exclusion, restriction or preference based on race, colour,
                           descent, or national or ethnic origin which has the purpose or effect
                           of nullifying or impairing the recognition, enjoyment or exercise, on
                           an equal footing, of human rights and fundamental freedoms in the
                           political, economic, social, cultural or any other field of public life.”

                        25. The definition of “racial discrimination” under this provision has
                      two elements. First, the measures must constitute a distinction, exclusion,
                      restriction or preference which has the purpose or effect of nullifying or
                      impairing the recognition, enjoyment or exercise of human rights. In
                      other words, they must entail differential treatment. Secondly, the differ-
                      ential treatment must be based on one of the prohibited grounds, namely,
                      “race, colour, descent, or national or ethnic origin”.

                         26. As noted by the Court, it is not disputed that the “expulsion order”
                      and the “travel bans”, as well as the “measures to restrict broadcasting
                      and internet programming by certain Qatari media corporations”, consti-
                      tute differential treatment (Judgment, paras. 57 and 59). It is, however,
                      disputed whether these measures are “based on” one of the grounds listed
                      in Article 1, paragraph 1, of CERD and are thus capable of constituting
                      racial discrimination.

                         27. In its first preliminary objection, the UAE maintains that the Court
                      lacks jurisdiction ratione materiae over the present dispute because the
                      alleged acts differentiate on the basis of “current nationality” and do not
                      fall within the scope of CERD. Article 1, paragraph 1, of CERD, unlike
                      the non‑discrimination provisions of the other human rights instruments
                      discussed above, contains neither a phrase like “such as” before the list of
                      prohibited grounds, nor a catch‑all term like “other status”. The wording
                      of Article 1, paragraph 1, therefore clearly indicates that the list of pro-
                      hibited grounds is exhaustive, and not illustrative. In order for differential
                      treatment to constitute “racial discrimination”, it must be based on one
                      of the specified prohibited grounds: “race, colour, descent, or national or
                      ethnic origin”. “Nationality” is not included in the list. Nonetheless,
                      Qatar argues that the term “national origin” encompasses nationality,
                      including present nationality, while the UAE disagrees. The Court exam-
                      ines this issue in detail and concludes that “national origin” does not
                      encompass current nationality (Judgment, paras. 74‑105). I agree with

                      98

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                      166 	         application of the cerd (sep. op. iwasawa)

                      this conclusion of the Court. The next Section of this opinion will explain
                      my reasoning, including additional reasons to those provided by the
                      Court.

                                       2. “Nationality” and “National Origin”
                         28. The prohibited grounds listed in Article 1, paragraph 1 — “race,
                      colour, descent, or national or ethnic origin” — are inherent, immutable
                      and permanent characteristics of individuals. “National origin” is not
                      listed independently, but together with “ethnic origin” as “national or
                      ethnic origin”. Thus, the text indicates a close relationship between the
                      terms “national origin” and “ethnic origin”. Read in its ordinary meaning
                      in this context, “national origin” can be understood as referring to the
                      country or cultural group (nation) from which a person originates.

                         29. “Nationality”, on the other hand, is a legal bond a State creates
                      with certain persons whom it accepts as its nationals. It is a person’s legal
                      status as a citizen of a State. Nationality is an alterable condition and is
                      fundamentally different in nature from the characteristics of individuals
                      listed in Article 1, paragraph 1, which are inherent, immutable and per-
                      manent. This crucial difference suggests that nationality is not encom-
                      passed within any of the prohibited grounds listed in Article 1,
                      paragraph 1, including “national origin”.

                         30. Article 1, paragraph 1, must also be read in the context of the Con-
                      vention’s other provisions. Paragraph 2 of Article 1 provides that “[t]his
                      Convention shall not apply to distinctions, exclusions, restrictions or
                      preferences made by a State Party to this Convention between citizens
                      and non‑citizens”, and paragraph 3 provides that “[n]othing in this Con-
                      vention may be interpreted as affecting in any way the legal provisions of
                      States Parties concerning nationality, citizenship or naturalization, pro-
                      vided that such provisions do not discriminate against any particular nation-
                      ality” (emphasis added). It is reasonable to consider that this proviso was
                      inserted in paragraph 3 because CERD does not otherwise prohibit dis-
                      crimination based on nationality. Furthermore, in Article 5, States parties
                      undertake to guarantee the right of everyone to equality before the law in
                      the enjoyment of the listed rights, which include rights that are typically
                      reserved for citizens, such as political rights.

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                         31. Qatar argues that since paragraphs 2 and 3 of Article 1 are excep-
                      tions to the definition established in paragraph 1, they imply that nation-
                      ality is a prohibited ground under the definition in paragraph 1. However,
                      paragraphs 2 and 3 rather convey the drafters’ intent to exclude differen-
                      tial treatment based on nationality from the scope of the Convention and
                      to make sure that the Convention does not prevent States parties from
                      regulating questions of nationality. They are not exceptions to para-
                      graph 1, but instead clarify that the definition of racial discrimination in
                      paragraph 1 should not be read to encompass distinctions based on
                      nationality.
                         32. Interpreting “national origin” as not encompassing nationality is
                      also consistent with CERD’s object and purpose of eliminating racial dis-
                      crimination “in all its forms and manifestations” (Preamble; see also
                      Arts. 2 and 5). Although nationality is not encompassed within “national
                      origin”, Article 1, paragraph 1, still prohibits differential treatment based
                      on nationality when it has the “purpose or effect” of discriminating on
                      the basis of “national origin” (see Section II (3) below).

                         33. The travaux préparatoires of CERD confirm that the drafters did
                      not intend nationality to constitute a ground of racial discrimination. The
                      Court analyses the travaux préparatoires in detail (Judgment, paras. 89‑97).
                      I would draw attention to the following two points in particular. First,
                      the definition of racial discrimination prepared by the Commission on
                      Human Rights and presented to the Third Committee of the General
                      Assembly in 1964 contained the following sentence: “[In this paragraph
                      the expression ‘national origin’ does not cover the status of any person as
                      a citizen of a given State.]” (See Judgment, para. 94.) Secondly, in the
                      course of the work of the Third Committee, France and the United States
                      of America proposed an amendment that would have provided that “the
                      expression ‘national origin’ does not mean ‘nationality’ or ‘citizenship’”
                      and that the Convention was not applicable to distinctions “based on dif-
                      ferences of nationality or citizenship” 14. In withdrawing this proposal, the
                      French delegate stated that the alternative text, which was eventually
                      adopted as Article 1, was “entirely acceptable” to both France and the
                      United States (see ibid., paras. 90 and 96). The CERD Committee has
                      also accepted that “the travaux préparatoires of the Convention show that
                      in the different stages of the elaboration of the Convention . . . the ground
                      ‘national origin’ was understood as not covering ‘nationality’ or
                      ‘citizenship’” 15.

                         14 United Nations, Official Records of the General Assembly, Twentieth Session, Third

                      Committee, “Draft International Convention on the Elimination of All Forms of Racial
                      Discrimination”, UN doc. A/6181, 18 December 1965, p. 12, para. 32.
                         15 CERD Committee, Decision on the admissibility of the inter‑State communication

                      submitted by Qatar against Saudi Arabia, dated 27 August 2019, UN doc. CERD/C/99/6,
                      para. 12.

                      100

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                         34. An additional reason to distinguish “national origin” from “nation-
                      ality” relates to the different levels of scrutiny that are required in review-
                      ing the lawfulness of differential treatment under each ground. Racial
                      discrimination is one of the most invidious forms of discrimination. Dif-
                      ferentiation of treatment based on a prohibited ground listed in Article 1,
                      paragraph 1, of CERD is inherently suspect and must meet the most rig-
                      orous scrutiny. For example, the ECtHR has held that “[w]here the differ-
                      ence in treatment is based on race, colour or ethnic origin, the notion of
                      objective and reasonable justification must be interpreted as strictly as
                      possible” 16. The ECtHR has gone so far as to affirm that “[n]o difference
                      in treatment based exclusively or to a decisive extent on a person’s ethnic
                      origin is capable of being justified in a contemporary democratic
                      society” 17. In this way, if the difference in treatment is based on “race,
                      colour, descent, or national or ethnic origin”, States bear a very heavy
                      burden in demonstrating that the difference pursues a legitimate aim and
                      that there is a reasonable relationship of proportionality between the
                      means employed and the aim sought to be achieved. The scrutiny must be
                      most rigorous and the threshold must be very high.

                         35. When the difference in treatment is based on nationality, the level
                      of scrutiny required is different. Since non‑citizens normally have no right
                      to vote or be elected, and thus are unable to protect their interests through
                      the political process, rigorous scrutiny is warranted for distinctions based
                      on nationality. However, because States are entitled to make distinctions
                      between citizens and non‑citizens in respect of some rights or in certain
                      circumstances, the level of scrutiny required need not be as rigorous as in
                      cases of distinctions based on “race, colour, descent, or national or ethnic
                      origin”. The ECtHR has declared that “very weighty reasons would have
                      to be put forward before it could regard a difference of treatment based
                      exclusively on the ground of nationality as compatible with the
                      Convention” 18. While that threshold remains high, the scrutiny required
                      by the ECtHR is not as rigorous and the threshold is not as high as for
                      cases of distinctions based on “race, colour, descent, or national or ethnic
                      origin” 19.

                         16 ECtHR, D. H. and Others v. Czech Republic, Grand Chamber, judgment of

                      13 November 2007, No. 57325/00, para. 196.
                         17 ECtHR, Biao v. Denmark, supra note 5, para. 94.
                         18 ECtHR, Andrejeva v. Latvia, supra note 5, para. 87; Biao v. Denmark, supra note 5,

                      para. 93.
                         19 See also ECtHR, Biao v. Denmark, supra note 5, joint dissenting opinion of Judges

                      Villiger, Mahoney and Kjølbro, para. 30 (“a wide margin of appreciation is afforded to
                      member States in relation to differences in treatment on the basis of ‘other status’ [in this
                      case, length of nationality], as opposed to ‘national’ or ‘ethnic’ origin”).

                      101

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                          36. As noted in the Judgment, the Court has taken into account in its
                      jurisprudence the practice of bodies and courts established by interna-
                      tional and regional human rights conventions, in so far as it is relevant
                      for the purposes of interpretation (Judgment, para. 77). In the present
                      case, however, the Court considers the jurisprudence of regional human
                      rights courts to be “of little help for the interpretation of the term
                      ‘national origin’ in CERD”, because the purpose of the regional
                      instruments “is to ensure a wide scope of protection of human rights and
                       fundamental freedoms” (ibid., para. 104). CERD prohibits racial discrim-
                       ination and certainly differs from general human rights conventions,
                       which prohibit many kinds of discrimination. Nevertheless, the general
                       prohibition of discrimination includes the prohibition of racial discrimi-
                       nation and the other human rights conventions also list “national origin”
                       among the prohibited grounds of discrimination. Therefore, the practice
                       of bodies and courts established by international and regional human
                       rights conventions is relevant to the interpretation of Article 1 of CERD.

                         37. Interpreting the term “national origin” in Article 1, paragraph 1, of
                      CERD as not encompassing nationality is consistent with the interpreta-
                      tion of similar language in other human rights conventions by these bod-
                      ies and courts. As noted above (see Section I), international human rights
                      conventions usually contain non‑discrimination provisions with a list of
                      prohibited grounds of discrimination that includes “national origin” but
                      not “nationality”. In interpreting these provisions, these bodies and
                      courts typically distinguish “nationality” from “national origin” and do
                      not consider the former to be encompassed by the latter.

                         38. Non‑discrimination provisions of the core human rights treaties
                      adopted by the United Nations do not contain nationality among the
                      prohibited grounds of discrimination, except for the International Con-
                      vention on the Protection of the Rights of Migrant Workers and Mem-
                      bers of Their Families, which lists “nationality” separately from and in
                      addition to “national origin” as a prohibited ground (Arts. 1 and 7). In
                      interpreting that Convention, the Committee on the Protection of the
                      Rights of All Migrant Workers and Members of Their Families has
                      explicitly treated “national origin” and “citizenship status” as two distinct
                      grounds of discrimination 20.

                         20 E.g. Joint General Comment No. 3 (2017) of the Committee on the Protection of the

                      Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the
                      Committee on the Rights of the Child on the general principles regarding the human rights
                      of children in the context of international migration, 16 November 2017, para. 3.

                      102

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                         39. Similarly, the Human Rights Committee does not view the term
                      “national origin”, as used in the ICCPR, as encompassing nationality.
                      Rather, it has taken the position that nationality falls within the term
                      “other status”, which is listed along with “national origin” among the
                      prohibited grounds of discrimination in Article 26 of the ICCPR. In
                      Gueye et al. v. France, the case concerning the pensions of retired French
                      soldiers of Senegalese nationality (see paragraph 13 above), the Commit-
                      tee held that there was discrimination based on nationality, while finding
                      “no evidence to support the allegation that the State party has engaged in
                      racially discriminatory practices vis‑à‑vis the authors”. In doing so, the
                      Committee expressly stated that a differentiation by reference to national-
                      ity “falls within the reference to ‘other status’ in . . . article 26” 21.

                         40. Karakurt v. Austria, another case before the Human Rights Com-
                      mittee, is even more illuminating. The case involved a claim by a Turkish
                      national that a labour law of Austria which barred non‑Austrian nation-
                      als from holding positions on works councils violated his rights under
                      Article 26 of the ICCPR. Upon its ratification of the ICCPR, Austria
                      entered a reservation that “Article 26 is understood to mean that it does
                      not exclude different treatment of Austrian nationals and aliens, as is also
                      permissible under article 1, paragraph 2, of [CERD]”. The Committee
                      considered that it was precluded by this reservation from examining the
                      claim of the author of the communication in so far as it related to the
                      distinction between Austrian nationals and non‑nationals, but that it was
                      not precluded from examining the author’s claim relating to the distinc-
                      tion made by Austria between nationals of the European Economic Area
                      (EEA) and non‑EEA nationals. Two members disagreed with the first
                      conclusion of the Committee. They maintained that Austria’s intention
                      was to harmonize its obligations under the ICCPR with those under
                      CERD. Hence, in their view, “the Committee [was] precluded from
                      assessing whether a distinction made between Austrian nationals and
                      aliens amounts to such discrimination on grounds of ‘race, colour, descent
                      or national or ethnic origin’”. They contended, however, that nationality
                      was not a ground of racial discrimination under CERD and, therefore,
                      that the Committee was not barred by the Austrian reservation from
                      examining the author’s claim on the distinction between Austrian nation-
                      als and non‑nationals. For them, “Article 1, paragraph 2, of [CERD]
                      makes it clear that citizenship is not covered by the notion of ‘national
                      origin’”. By contrast, “distinctions based on citizenship fall under the
                      notion of ‘other status’ in article 26 and not under any of the grounds of
                      discrimination covered by article 1, paragraph 1, of [CERD]”. They con-

                        21 Human Rights Committee, Gueye et al. v. France, supra note 2, para. 9.4; emphasis

                      added.

                      103

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                      cluded that “the Austrian reservation to article 26 does not affect the
                      Committee’s competence to examine whether a distinction made between
                      citizens and aliens amounts to prohibited discrimination under article 26
                      of the Covenant on other grounds than those covered also by [CERD]” 22.

                         41. The CESCR, like the Human Rights Committee, has taken the
                      view that “national origin”, which is listed among the prohibited grounds
                      of discrimination in Article 2, paragraph 2, of the ICESCR, “refers to a
                      person’s State, nation, or place of origin” 23, and that nationality falls
                      within “other status” 24.

                         42. As previously noted, regional conventions on human rights also
                      contain non‑discrimination provisions with lists of prohibited grounds of
                      discrimination, which are recognized to be illustrative, and the monitor-
                      ing courts and bodies established by these conventions have confirmed
                      that the human rights provided for therein also apply to non‑citizens (see
                      paragraphs 10 and 15 above). These courts and bodies usually do not
                      consider nationality as falling within “national origin”. For example, in
                      Luczak v. Poland, the ECtHR stated that “a difference in treatment on
                      the basis of nationality . . . falls within the non‑exhaustive list of prohib-
                      ited grounds of discrimination in Article 14” 25.

                         43. The CERD Committee has confirmed in its jurisprudence that dif-
                      ferentiation of treatment based on nationality does not per se constitute
                      “racial discrimination” under CERD. In Diop v. France, a Senegalese
                      citizen claimed that France was in violation of CERD because his appli-
                      cation for membership of the Bar of Nice had been rejected for the reason
                      that he was not a French national. The Committee found no violation,
                      stating that “the refusal to admit [the author] to the Bar was based on the
                        22 Human Rights Committee, Karakurt v. Austria, supra note 3, individual opinion by

                      Committee Members Sir Nigel Rodley and Mr. Martin Scheinin (partly dissenting).
                        23 CESCR, General Comment No. 20, supra note 4, para. 24.

                         24  Ibid., paras. 15 and 30.
                         25  ECtHR, Luczak v. Poland, Fourth Section, judgment of 27 November 2007,
                      No. 77782/01, para. 46. See also ECtHR, Andrejeva v. Latvia, supra note 5, paras. 87‑92
                      (examining under Article 14 of the European Convention a distinction based on the “sole
                      criterion” of nationality without any reference to national origin). For the IACtHR, see
                      e.g. Juridical Condition and Rights of Undocumented Migrants, supra note 6, para. 101
                      (listing “nationality” separately from “national . . . origin”).

                      104

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                      fact that he was not of French nationality, not on any of the grounds
                      enumerated in article 1, paragraph 1” 26. Similarly, in Quereshi v. Den-
                      mark, the CERD Committee held that it could not conclude that the
                      Danish authorities had reached an inappropriate conclusion in determin-
                      ing that offensive statements made at a party about “foreigners” did not
                      amount to an act of racial discrimination, because “a general reference to
                      foreigners does not at present single out a group of persons . . . on the
                      basis of a specific race, ethnicity, colour, descent or national or ethnic
                      origin” 27.

                         44. For the reasons given by the Court (Judgment, paras. 74‑105) and
                      the reasons set out above, I am of the view that current nationality is not
                      encompassed within “national origin” under Article 1, paragraph 1, of
                      CERD and, therefore, that differentiation of treatment based on current
                      nationality does not per se constitute “racial discrimination” within the
                      meaning of CERD.
                         45. In accordance with Article 22 of CERD, the Court has jurisdiction
                      only if the challenged measures are capable of constituting “racial dis-
                      crimination” within the meaning of CERD. The next Section turns to
                      examine whether differential treatment based on nationality, although it
                      does not per se constitute racial discrimination under CERD, can none-
                      theless have the purpose or effect of discrimination on the basis of one of
                      the prohibited grounds listed in Article 1, paragraph 1, of CERD and
                      thus constitute racial discrimination indirectly.

                              3. Distinctions Based on “Nationality” Can Have the Purpose
                                 or Effect of Discrimination Based on “National Origin”
                         46. With regard to Qatar’s claim of indirect discrimination, the major-
                      ity of the Court considers that “even if the measures of which Qatar com-
                      plains in support of its ‘indirect discrimination’ claim were to be proven
                      on the facts, they are not capable of constituting racial discrimination”
                      (Judgment, para. 112), and concludes that the first preliminary objection
                      of the UAE must therefore be upheld (ibid., para. 114). I respectfully
                      disagree. Qatar’s claim of indirect discrimination requires a detailed

                      examination at the merits stage. The Court should have declared that the
                      first preliminary objection of the UAE does not possess an exclusively
                      preliminary character.

                         26  CERD Committee, Diop v. France, 18 March 1991, Communication No. 2/1989,

                      para. 6.6.
                         27  CERD Committee, Quereshi v. Denmark, 9 March 2005, Communication

                      No. 33/2003, para. 7.3. See also CERD Committee, P. S. N. v. Denmark, 8 August 2007,
                      Communication No. 36/2006, para. 6.4.

                      105

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                         47. I shall start by examining the notion of indirect discrimination as
                      embraced and developed by international human rights courts and bodies
                      and the role it plays under CERD. Then, in the next Section, I will explain
                      why Qatar’s claim of indirect discrimination should have been examined
                      in detail at the merits stage.

                         48. The definition of racial discrimination in Article 1, paragraph 1, of
                      CERD sets out two conditions. First, there must be a distinction, exclu-
                      sion, restriction or preference “based on race, colour, descent, or national
                      or ethnic origin”. Secondly, the differential treatment must have the “pur-
                      pose or effect” of nullifying or impairing the recognition, enjoyment or
                      exercise, on an equal footing, of human rights and fundamental freedoms
                      in the political, economic, social, cultural or any other field of public life.

                         49. If differentiation of treatment based on nationality has the
                      “purpose or effect” of discrimination based on one of the prohibited
                      grounds listed in Article 1, paragraph 1, it is capable of constituting “racial
                      discrimination” within the meaning of the Convention. The object and
                      purpose of CERD is to eliminate racial discrimination “in all its forms
                      and manifestations” (Preamble; see also Arts. 2 and 5). Ensuring that differ
                      entiation of treatment based on nationality does not have the “purpose
                      or effect” of discriminating based on any of the prohibited grounds in
                      Article 1, paragraph 1, is consistent with, and indeed required by, the
                      object and purpose of the Convention.

                         50. Judge Crawford has acknowledged that “[a restriction] may consti-
                      tute racial discrimination if it has the ‘effect’ of impairing the enjoyment
                      or exercise, on an equal footing, of the rights articulated in CERD” 28.
                      Likewise, Judges Tomka, Gaja and Gevorgian observed in their joint
                      declaration appended to the Court’s first provisional measures Order in
                       the present case that “[d]ifferences of treatment of persons of a specific
                       nationality may target persons who also have a certain ethnic origin and
                       therefore would come under the purview of CERD” 29.

                        51. International human rights courts and bodies, including the CERD
                      Committee, have embraced and developed the notion of indirect discrim-
                      ination. If a rule, measure or policy that is apparently neutral has an
                      unjustifiable disproportionate prejudicial impact on a certain protected

                         28 Application of the International Convention for the Suppression of the Financing of

                      Terrorism and of the International Convention on the Elimination of All Forms of Racial
                      Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April
                      2017, I.C.J. Reports 2017, declaration of Judge Crawford, p. 215, para. 7.
                         29 Application of the International Convention on the Elimination of All Forms of Racial

                      Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July
                      2018, I.C.J. Reports 2018 (II), joint declaration of Judges Tomka, Gaja and Gevorgian,
                      p. 437, para. 6.

                      106

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                      group, it constitutes discrimination notwithstanding that it is not specifi-
                      cally aimed at that group. The analysis of disproportionate impact
                      requires a comparison between different groups. The context and circum-
                      stances in which the differentiation was introduced must be taken into
                      account in determining whether the measure amounts to discrimination.

                        52. The CERD Committee has recognized in its practice the need to
                      address not only direct but also indirect discrimination. In its 1993 Gen-
                      eral Recommendation XIV on article 1, paragraph 1, of the Convention,
                      the Committee stated that “[i]n seeking to determine whether an action
                      has an effect contrary to the Convention, it will look to see whether that
                      action has an unjustifiable disparate impact upon a group distinguished
                      by race, colour, descent, or national or ethnic origin” 30. In L. R. et al. v.
                      Slovakia, it recalled that

                            “the definition of racial discrimination in article 1 expressly extends
                            beyond measures which are explicitly discriminatory, to encompass
                            measures which are not discriminatory at face value but are discrim-
                            inatory in fact and effect, that is, if they amount to indirect discrimi-
                            nation. In assessing such indirect discrimination, the Committee must
                            take full account of the particular context and circumstances of the
                            petition, as by definition indirect discrimination can only be demon-
                            strated circumstantially.” 31

                        53. The other human rights treaty bodies have likewise embraced the
                      notion of indirect discrimination. The Human Rights Committee has
                      recalled that
                            “article 26 prohibits both direct and indirect discrimination, the latter
                            notion being related to a rule or measure that may be neutral on its
                            face without any intent to discriminate but which nevertheless results
                            in discrimination because of its exclusive or disproportionate adverse
                            effect on a certain category of persons” 32.
                      The CESCR has declared that “[b]oth direct and indirect forms of differ-
                      ential treatment can amount to discrimination under article 2, para-

                         30 CERD Committee, General Recommendation XIV on article 1, paragraph 1, of the

                      Convention, 17 March 1993, para. 2.
                         31 CERD Committee, L. R. et al. v. Slovakia, 7 March 2005, Communication

                      No. 31/2003, para. 10.4. See also CERD Committee, General Recommendation XXXII on
                      the meaning and scope of special measures in the International Convention on the Elimina-
                      tion of All Forms Racial Discrimination, August 2009, para. 7.
                         32 Human Rights Committee, Derksen v. Netherlands, 1 April 2004, Communication

                      No. 976/2001, para. 9.3. See also Human Rights Committee, Althammer et al. v. Austria,
                      8 August 2003, Communication No. 998/2001, para. 10.2.

                      107

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                      graph 2, of the Covenant”, defining indirect discrimination as “laws,
                      policies or practices which appear neutral at face value, but have a dis-
                      proportionate impact on the exercise of Covenant rights as distinguished
                      by prohibited grounds of discrimination” 33. Similarly, the Committee on
                      the Elimination of Discrimination against Women has declared that
                      “States parties shall ensure that there is neither direct nor indirect dis-
                      crimination against women”, and explained when indirect discrimination
                      occurs 34.

                        54. Regional human rights courts have accepted the notion of indirect
                      discrimination as well. For example, the ECtHR has stated that “a policy
                      or measure that has disproportionately prejudicial effects on a particular
                      group may be considered discriminatory, regardless of whether the policy
                      or measure is specifically aimed at that group” 35. Similarly, the IACtHR
                      has considered that
                              “a violation of the right to equality and non‑discrimination also
                              occurs in situations and cases of indirect discrimination reflected in
                              the disproportionate impact of norms, actions, policies or other meas-
                              ures that, even when their formulation is or appears to be neutral, or
                              their scope is general and undifferentiated, have negative effects on
                              certain vulnerable groups” 36.
                         55. The CERD Committee has applied the notion of indirect discrimi-
                      nation in the context of the treatment of non‑citizens. In B. M. S. v. Aus-
                      tralia, the Committee examined a quota system introduced by Australia
                      that limited the number of doctors trained abroad who were permitted to
                      pass the first stage of the medical examination process to be registered as
                      a doctor in that country. The Committee held that it could not reach the
                      conclusion that “the system works to the detriment of persons of a
                      particular race or national origin” and therefore found that the facts as
                       submitted did not disclose a violation of CERD. It nonetheless recommen
                       ded to Australia to take measures and improve the transparency of the
                       medical registration procedure to ensure that “the system is in no way
                       discriminatory towards foreign candidates irrespective of their race

                         33   CESCR, General Comment No. 20, supra note 4, para. 10.
                         34 Committee on the Elimination of Discrimination against Women, General Recom-
                      mendation No. 28 on the core obligations of States parties under article 2 of the Conven-
                      tion on the Elimination of All Forms of Discrimination against Women, 19 October 2010,
                      para. 16.
                         35 ECtHR, First Section, J.D. and A v. the United Kingdom, judgment of 24 October

                      2019, Nos. 32949/17 and 34614/17, para. 85.
                         36 IACtHR, Nadege Dorzema et al. v. Dominican Republic, judgment of 24 October

                      2012, para. 235.

                      108

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                      or national or ethnic origin” 37. In addition, the Committee has consis-
                      tently asked States parties to report on the status of non‑citizens, particu-
                      larly migrants and refugees, who often belong to a single ethnic group
                      and are susceptible to racial discrimination based on one of the prohib-
                      ited grounds listed in Article 1, paragraph 1, of CERD. It has rejected an
                      interpretation of Article 1, paragraph 2, that would “absolv[e] States par-
                      ties from any obligation to report on matters relating to legislation on
                      foreigners”, affirming that “States parties are under an obligation to
                      report fully upon legislation on foreigners and its implementation” 38.
                      After considering reports submitted by States parties, the Committee reg-
                      ularly adopts concluding observations that include recommendations on
                      the treatment of non‑citizens. These practices of the CERD Committee
                      can be explained by the notion of indirect discrimination. While differen-
                      tiation of treatment based on nationality does not per se constitute racial
                      discrimination within the meaning of CERD, it constitutes racial discrim-
                      ination if it has the “purpose or effect” of discrimination based on one of
                      the prohibited grounds in Article 1, paragraph 1.

                         56. In September 2001, the World Conference against Racism, Racial
                      Discrimination, Xenophobia and Related Intolerance held in Durban,
                      South Africa, adopted a Declaration against Racism, Racial Discrimina-
                      tion, Xenophobia and Related Intolerance (hereinafter the “Durban Dec-
                      laration”). The Durban Declaration stated that “racism, racial
                      discrimination, xenophobia and related intolerance occur on the grounds of
                      race, colour, descent or national or ethnic origin” (Durban Declaration,
                      para. 2; emphasis added), and that
                            “xenophobia against non‑nationals, particularly migrants, refugees
                            and asylum‑seekers, constitutes one of the main sources of contem-
                            porary racism and . . . human rights violations against members of
                            such groups occur widely in the context of discriminatory, xenopho-
                            bic and racist practices” (ibid., para. 16).
                      The drafters of the Durban Declaration considered that xenophobia
                      against non‑nationals “constitutes one of the main sources of contempo-
                      rary racism”, presumably because it often has the purpose or effect of
                      discrimination based on “race, colour, descent or national or ethnic ori-
                      gin”. Thus, the concern expressed by the Durban Declaration about
                      xenophobia against non‑nationals may also be explained by the notion of
                      indirect discrimination.

                        37 CERD Committee, B. M. S. v. Australia, 12 March 1999, Communication

                      No. 8/1996, paras. 9.2, 10 and 11.1.
                        38 CERD Committee, General Recommendation XI, supra note 11, para. 2.

                      109

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                        57. In 2004, influenced by the Durban Declaration, the CERD Com-
                      mittee adopted General Recommendation XXX on discrimination
                      against non‑citizens 39. In its paragraph 4, the Committee proclaimed:

                                “Under the Convention, differential treatment based on citizenship
                              or immigration status will constitute discrimination if the criteria for
                              such differentiation, judged in the light of the objectives and purposes
                              of the Convention, are not applied pursuant to a legitimate aim, and
                              are not proportional to the achievement of this aim.” 40
                      The phrase “judged in the light of the objectives and purposes of the Con-
                      vention” in this context may be understood as referring to situations
                      where differential treatment based on citizenship has the purpose or effect
                      of discriminating on the basis of a prohibited ground listed in Article 1,
                      paragraph 1, of CERD, that is, indirect discrimination.

                         58. Finally, the notion of indirect discrimination presumably underlies
                      the CERD Committee’s decision on the admissibility of the inter‑State
                      communication brought by Qatar against the UAE pursuant to Article 11
                      of CERD. The Committee concluded that the allegations submitted by
                      Qatar “do not fall outside the scope of competence ratione materiae of the
                      Convention”, relying primarily on its previous practice, in particular
                      paragraph 4 of General Recommendation XXX 41. As noted above, para-
                      graph 4 can be explained by the notion of indirect discrimination. The
                      Committee may have come to the above conclusion precisely because dif-
                      ferentiation based on current nationality is capable of constituting racial
                      discrimination indirectly.

                               4. The Objection of the UAE Does Not Possess an Exclusively
                                                   Preliminary Character
                        59. In accordance with the notion of indirect discrimination explained
                      in the previous Section, if differentiation of treatment based on current
                      nationality has an unjustifiable disproportionate prejudicial impact on an
                      identifiable group distinguished by “race, colour, descent, or national or
                      ethnic origin”, it constitutes racial discrimination within the meaning of
                      Article 1, paragraph 1, of CERD.
                        60. In the present case, Qatar has explicitly acknowledged that “it is on

                         39 CERD Committee, General Recommendation XXX, supra note 10.
                         40 Ibid., para. 4. The Committee thus employed the framework it had used for discrimi-
                      nation under Article 1, paragraph 1, to examine differential treatment based on citizenship.
                      See CERD Committee, General Recommendation XIV, supra note 30, para. 2.
                         41 CERD Committee, Decision on the admissibility of the inter‑State communi

                      cation submitted by Qatar against the United Arab Emirates, dated 27 August 2019,
                      UN doc. CERD/C/99/4, paras. 57‑63.

                      110

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                      ‘national origin’ that [it] bases its claims” 42. It claims that the UAE has
                      engaged in indirect discrimination against persons of Qatari national ori-
                      gin. It does not claim that the measures taken by the UAE were discrimi-
                      natory on the basis of another protected ground — “race, colour, descent,
                      or ethnic origin”. The UAE for its part contends that the measures com-
                      plained of by Qatar do not constitute indirect discrimination on the basis
                      of national origin. It maintains that no measure was taken, in terms of
                      either purpose or effect, against any person other than those belonging to
                      the group defined by Qatari nationality.

                         61. The task of the Court, therefore, is to determine whether the mea-
                      sures taken by the UAE on the basis of current nationality have an unjus-
                      tifiable disproportionate prejudicial effect on an identifiable group
                      distinguished by national origin. In order to make this determination, it is
                      first necessary to identify a group that is distinguished by “national ori-
                      gin” and entitled to protection under CERD. Subsequently, it must be
                      assessed whether the measures have an unjustifiable disproportionate
                      prejudicial impact on that protected group compared to other groups.
                         62. With regard to the first issue, Qatar contends that Qataris can be
                      distinguished by their “national origin” in the historical‑cultural sense,
                      defined by their heritage or descent, family or tribal affiliations, national
                      traditions and culture, and geographic ties to the peninsula of Qatar. It
                      argues that several factors, including dialect or accent, traditional dress
                      and family affiliations, distinguish Qataris from other national communi-
                      ties in the Gulf region. Qatar relies mainly on an expert report in support
                      of this contention 43. The UAE for its part argues that Qatari and Emirati
                      people share geographical ties, as well as a common ancestry, language,
                      heritage, traditions and culture, to such an extent that they are the same
                      people, albeit with different nationalities. However, it submits no evi-
                      dence in support of this contention. The UAE accepts that “[d]isguised
                      discrimination would come within the scope of . . . CERD”, but main-
                      tains that “there is no discrimination, whether open or disguised, direct or
                      indirect, against a CERD protected group” 44. Thus, the very existence of a
                      protected group under CERD is contested by the Parties. Based on the
                      pleadings of the Parties and the evidence submitted, the Court is not in a
                      position to establish whether a CERD protected group can be distin-
                      guished by national origin. The materials before the Court do not provide
                      it with all the facts needed to resolve the first issue.

                        42  CR 2020/9, p. 17, para. 19 (Amirfar).
                        43  Memorial of Qatar (MQ), Vol. VI, Ann. 162, Expert Report of Dr. J. E. Peterson,
                      9 April 2019.
                         44 CR 2020/8, p. 14, para. 10 (Bethlehem); emphasis in the original.

                      111

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                      179 	          application of the cerd (sep. op. iwasawa)

                         63. The second issue is whether the challenged measures have an unjus-
                      tifiable disproportionate prejudicial impact on the protected group com-
                      pared to other groups. Qatar claims that the measures have a
                      “disproportionate impact” on the rights of Qataris 45. The UAE for its
                      part contends that the measures are addressed to Qatari nationals, and
                      not persons of Qatari national origin. It maintains that persons of Qatari
                      national origin but not possessing Qatari nationality were neither
                      addressed nor affected by the measures, and that persons of Qatari
                      nationality but possessing some other national origin were nonetheless
                      addressed and affected by the measures.
                         64. In order for the measures challenged here to constitute indirect dis-
                      crimination, they must have an unjustifiable disproportionate prejudicial
                      impact on the identified protected group in comparison with other groups.
                      Qatar bears the burden of establishing such a disproportionate impact.
                      On the other hand, the UAE has the burden of demonstrating that the
                      measures were based exclusively on nationality. The context and circum-
                      stances in which the differentiation was introduced must be taken into
                      account in determining whether the measures amount to discrimination.
                      The examination of these questions requires extensive factual analysis. In
                      the same way as for the first issue addressed above, the materials before
                      the Court do not provide it with all the facts necessary to address the
                      second issue. Moreover, these issues constitute the very subject‑matter of
                      the dispute on the merits, and as such their determination should be left
                      to the merits stage. The Court should rule on them only after the Parties
                      have presented their arguments and evidence at that stage.

                         65. The majority of the Court considers that “[w]hile in the present case
                      the measures based on current Qatari nationality may have collateral or
                      secondary effects on persons born in Qatar or of Qatari parents, or on
                      family members of Qatari citizens residing in the UAE, this does not con-
                      stitute racial discrimination within the meaning of the Convention”,
                      because they “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”. In its view, “even if the measures of which
                      Qatar complains in support of its ‘indirect discrimination’ claim were to
                      be proven on the facts, they are not capable of constituting racial dis-
                      crimination within the meaning of the Convention” (Judgment, para. 112).
                      Accordingly, it concludes that the Court “does not have jurisdiction rati-
                      one materiae to entertain Qatar’s [claim of indirect discrimination]” (ibid.,
                      para. 113).

                         66. I disagree with the majority’s analysis and its conclusion on Qatar’s
                      claim of indirect discrimination. If it were proven on the facts that the
                      measures have an unjustifiable disproportionate prejudicial impact on an

                        45 MQ, para. 3.109; Written Statement of Qatar on the Preliminary Objections of the

                      United Arab Emirates (WSQ), para. 2.111.

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                      180 	            application of the cerd (sep. op. iwasawa)

                      identifiable group distinguished by national origin and that they were not
                      based exclusively on nationality, the measures would constitute racial dis-
                      crimination within the meaning of the Convention, in accordance with
                      the notion of indirect discrimination. The majority provides little analysis
                      in support of its conclusion that while the measures based on current
                      Qatari nationality may have “collateral or secondary effects” on Qataris,
                      they 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”. By drawing that conclusion, the majority has in
                      effect determined the dispute on the merits at the preliminary objections
                      stage.

                         67. In the case concerning the Application of the International Conven-
                      tion for the Suppression of the Financing of Terrorism and of the Interna-
                      tional Convention on the Elimination of All Forms of Racial Discrimination
                      (Ukraine v. Russian Federation), the Court pointed out that, at the pre-
                      liminary objections stage, it only needs to ascertain whether the chal-
                      lenged measures are capable of affecting the rights protected by CERD,
                      and that it does not need to satisfy itself that the measures actually con-
                      stitute racial discrimination within the meaning of Article 1, paragraph 1,
                      of CERD, or to what extent certain acts may be covered by Article 1,
                      paragraphs 2 and 3, of CERD. The Court explained that “[both of these]
                      determinations concern issues of fact, largely depending on evidence
                      regarding the purpose or effect of the measures alleged . . . and are thus
                      properly a matter for the merits” 46. The same is true for Qatar’s claim of
                      indirect discrimination in the present case.

                         68. It is also a relevant consideration that Qatar developed its claim of
                      indirect discrimination significantly during the preliminary objections
                      stage. In the Court’s first provisional measures Order in the present case,
                      five judges took the view that nationality was not encompassed within the
                      term “national origin” 47. Judges Tomka, Gaja and Gevorgian observed
                      in addition that “[the] possibility [of indirect discrimination] has not been
                      suggested by Qatar” 48. During the oral proceedings on the preliminary
                      objections in the present case, the UAE contended that “nowhere is [the]
                      indirect discrimination claim referred to in Qatar’s Application” and that

                          46  Application of the International Convention for the Suppression of the Financing of

                      Terrorism and of the International Convention on the Elimination of All Forms of Racial
                      Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J.
                      Reports 2019 (II), p. 595, para. 94; emphasis added.
                          47 Application of the International Convention on the Elimination of All Forms of Racial

                      Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July
                      2018, I.C.J. Reports 2018 (II), joint declaration of Judges Tomka, Gaja and Gevorgian,
                      p. 436, paras. 4-5; dissenting opinion of Judge Crawford, p. 475, para. 1; dissenting opinion
                      of Judge Salam, pp. 481‑483, paras. 2‑7.
                          48 Ibid., joint declaration of Judges Tomka, Gaja and Gevorgian, p. 437, para. 6.

                      113

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                      “to try and patch a leaky argument, Qatar’s counsel asserted . . . that
                      Qatar’s is an indirect discrimination claim” 49. It should be noted, how-
                      ever, that in its Application, Qatar did refer to discrimination “de jure or
                      de facto” on the basis of national origin and that in its Request for the
                      indication of provisional measures, it requested that the Court order the
                      UAE to cease and desist from any and all conduct that could result,
                      “directly or indirectly”, in any form of racial discrimination against
                      Qatari individuals and entities 50. In its Memorial, Qatar also contended
                      that the UAE’s measures had a discriminatory “effect” on Qataris 51.
                      Nevertheless, it is true that the Applicant significantly developed its

                      arguments on indirect discrimination at the preliminary objections stage, in
                       its Written Statement 52 and in particular in its oral pleadings. The Court
                      properly points out in this regard that “the subject‑matter of a dispute is
                      not limited by the precise wording that an applicant State uses in its
                      application” (Judgment, para. 61), and that “the Rules of Court do not
                      preclude Qatar from refining the legal arguments presented in its Applica-
                      tion or advancing new arguments” (ibid., paras. 63 and 68).

                         69. It is nonetheless important to keep in mind that in preliminary
                      objection proceedings, the parties have only one chance to exchange writ-
                      ten submissions. After Qatar submitted its Written Statement in response
                      to the UAE’s Preliminary Objections, the UAE had no further opportu-
                      nity to refute in writing the arguments made by the Applicant therein,
                      including those pertaining to the claim of indirect discrimination. During
                      the oral proceedings, the Parties did exchange arguments on indirect dis-
                      crimination, but only to a limited extent and not thoroughly. Qatar’s
                      claim of indirect discrimination should have been examined in detail by
                      the Court at the merits stage, after being fully apprised of the relevant
                      facts, evidence and arguments of the Parties.

                         70. Under Article 79ter, paragraph 4, of the Rules of Court, when it is
                      called upon to rule on a preliminary objection, the Court shall uphold or
                      reject it, or “declare that, in the circumstances of the case, [it] does not
                      possess an exclusively preliminary character”.
                         71. The Court has previously expressed its view on the resolution of
                      preliminary objections as follows:
                               “In principle, a party raising preliminary objections is entitled to
                             have these objections answered at the preliminary stage of the pro-

                        49 CR 2020/8, p. 28, para. 25 (Sheeran).
                        50 Application of Qatar, p. 60, para. 66; Request for the indication of provisional
                      measures of Qatar, para. 19.
                        51 MQ, Chap. III, Sec. I.B.2.
                        52 WSQ, Chap. II, Sec. III.

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                            ceedings unless the Court does not have before it all facts necessary to
                            decide the questions raised or if answering the preliminary objection
                            would determine the dispute, or some elements thereof, on the merits.” 53

                      In the present case, the Court does not have before it all facts necessary
                      to decide the two issues raised in relation to Qatar’s claim of indirect dis-
                      crimination. They are precisely the issues that should be examined in
                      detail by the Court at the merits stage. Furthermore, while the UAE’s
                      objection contains “both preliminary aspects and other aspects relating to
                      the merits”, it is “inextricably interwoven with the merits” 54. Thus, the
                      present case fulfils the criteria laid down by the Court for finding that a
                      preliminary objection does not possess an exclusively preliminary charac-
                      ter.
                         72. For the reasons set out above, the Court should have declared that,
                      in the circumstances of the present case, the first preliminary objection of
                      the UAE does not have an exclusively preliminary character.

                        73. This conclusion is in line with the final submissions that the Appli-
                      cant made at the end of the oral pleadings. It asked the Court to “(a)
                      Reject the Preliminary Objections presented by the UAE; . . . (d) Or, in
                      the alternative, reject the Second Preliminary Objection . . . and hold . . .
                      that the First Preliminary Objection . . . does not possess an exclusively
                      preliminary character” 55. Qatar’s claim of indirect discrimination should
                      have been examined in detail by the Court at the merits stage, on the
                      basis of facts and evidence submitted by the Parties. The conclusion
                      drawn in paragraph 72 above should not be interpreted as prejudging in
                      any way the potential findings of the Court on the merits.

                      (Signed) Iwasawa Yuji.

                         53  Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,

                      Judgment, I.C.J. Reports 2007 (II), p. 852, para. 51; emphasis added.
                         54 See Questions of Interpretation and Application of the 1971 Montreal Convention

                      arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
                      America), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 133‑134, para. 49;
                      Questions of Interpretation and Application of the 1971 Montreal Convention arising from
                      the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary
                      Objections, Judgment, I.C.J. Reports 1998, pp. 28‑29, para. 50.
                         55 CR 2020/9, p. 45, para. 9 (Al-Khulaifi).

                      115

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