International Law
Mahdi Mohebirad; Mehryar Dashab
Abstract
IntroductionFollowing Qatar’s diplomatic crisis in 2017, the UAE implemented a series of measures against Qatar. In response, Qatar filed an application against the UAE at the International Court of Justice (ICJ), citing a violation of the International Convention on the Elimination of All Forms ...
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IntroductionFollowing Qatar’s diplomatic crisis in 2017, the UAE implemented a series of measures against Qatar. In response, Qatar filed an application against the UAE at the International Court of Justice (ICJ), citing a violation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and claiming racial discrimination based on the national origin of Qataris. In its order dated July 23, 2018, the ICJ, in accordance with Article 22 of the ICERD, held primary jurisdiction to handle the case. The Court determined that the dispute between the parties was related to the interpretation or application of the Convention. Previous descriptive–analytical examinations show significant disagreements about the scope of racial discrimination during preliminary negotiations, with the term national origin being the focus of debates. It can be inferred that national origin, as included in paragraph 1 of Article 1 of the ICERD, entails discrimination based on current nationality. In this respect, the present research aimed to investigate the relationship between racial discrimination based on national origin and discrimination based on current nationality as elaborated in the ICERD. Literature ReviewWhile many studies have examined the ICERD and its committee, a conspicuous gap exists in the available literature concerning racial discrimination based on national origin. Moreover, given that ICJ judgment was issued in 2021, there is no serious monograph or article on this specific subject, except a few tangential studies in the legal scholarship. The two articles closely related to the topic are: “Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates): So Far, So Good?” (Owie, 2020) and “The Role of Committee on the Elimination of Racial Discrimination in the Development of Concepts and Provisions of International Convention on the Elimination of all forms of Racial Discrimination” (MirAbbassi & Hassani, 2020). Materials and MethodsThe current study relied on a descriptive–analytical method, using library research to collect the data from various sources.Results and DiscussionResearch indicates significant differences in the scope of racial discrimination between the premilitary negotiations and the eventual inclusion of the term national origin in Paragraph (1) of Article (1) of the Convention. It can be inferred that this term in the Convention includes discrimination based on current nationality, hence an instance of national origin. The ICERD, which is the main international human rights document combating racial discrimination, defines racial discrimination and outlines its scope and instances. The definition comprises two elements. First, it shall involve “any distinction, exclusion, restriction or preference . . . 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” (UN General Assembly resolution 2106, p. 2). In other words, actions must lead to discriminatory behavior. Second, discrimination shall be based on prohibited grounds, including “race, colour, descent, or national or ethnic origin” (UN General Assembly resolution 2106, p. 2). However, ambiguities persist regarding the scope and interpretation of the term national origin, as one of the prohibited grounds in the Convention. Disagreements have actually existed among state representatives since drafting the Convention, leading to the ongoing challenges and ambiguities.The Court’s narrow interpretation of national origin and the necessity to address the impact of measures taken against Qatar have drawn criticism. The measures taken by the UAE against Qatari nationals can be considered unilateral coercive measures, violating their rights such as the right to freedom of movement and freedom of communication. Such adverse and negative effects are deemed illegal, as acknowledged by the international documents and reports by the UN Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights. Moreover, since the Convention aims to eliminate all forms of racial discrimination, confirming that the term national origin encompasses current nationality aligns with the Convention’s overall purpose. Conversely, dissenting interpretations that exclude current nationality from the scope of the Convention contradict and undermine the purpose of the ICERD. 6. ConclusionDespite Qatar’s failure in this case, another legal opportunity remains, that is, the decision of the Committee on the Elimination of Racial Discrimination (CERD). In parallel with similar facts, Qatar filed an application to the CERD. In contrast to the ICJ, the committee upheld its jurisdiction in Qatar’s case against the UAE, which is currently under consideration. The Court’s non-compliance with the CERD’s proposal and the ensuing divergent stances of the two judicial and quasi-judicial bodies introduce a new dimension to the issue. In conclusion, the ICJ shall be recognized as the UN’s primary judicial organ with the authority to settle disputes over the interpretation of the Convention. However, the conflicting views between the ICJ and the CERD, particularly following the Qatar–UAE dispute, necessitate judicial dialogue between the two bodies.
Mehryat Dashab; Sara Davarpour
Abstract
Historically, the framework for the Global Compact on Migration is founded in UN development, in particular Goal 10.7 of the Sustainable Development Agenda 2030. The Global Compact on Migration (2018) as the first attempt to provide international migration governance with a comprehensive framework seeks ...
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Historically, the framework for the Global Compact on Migration is founded in UN development, in particular Goal 10.7 of the Sustainable Development Agenda 2030. The Global Compact on Migration (2018) as the first attempt to provide international migration governance with a comprehensive framework seeks to introduce correctives hereto, and facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well managed migration policies. It insists on realigning state practices with internationally agreed standards. This paper seeks to explain the legal nature of the Compact and analyze the position of first and second generations of human rights in it, at the same time express the proponents and opponents view.s Finally, the main approach of this paper is that, although the compact is non-binding but the emphasis on the rules of different generations of human rights mentioned in other fundamental documents in the form of Global Compact has led to its customary provisions binding to States..
Mehryar Dashab
Abstract
The European Court of Human Rights whose main mission is to consider individual and States petitions in case of the violation of the European Convention on Human Rights and Fundamental Freedoms and its additional protocols, based on the applicant’s request or at its own discretion, tries by indicating ...
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The European Court of Human Rights whose main mission is to consider individual and States petitions in case of the violation of the European Convention on Human Rights and Fundamental Freedoms and its additional protocols, based on the applicant’s request or at its own discretion, tries by indicating interim measures to prevent States actions that might inflict serious and irreparable damage to the applicants. This competence is not specifically enshrined in the Convention, however, it is recognized in article 39 of the rules of the Court. This article, by reviewing the Court’s case-law, investigates to what extent the Court invokes this jurisdiction and whether the interim measures entail enforcement mechanism. The findings of this article show that the Court is using interim measures in an exceptional manner to prevent the violation of articles 2 and 3 of the European Convention on Human Rights. Furthermore, due to the fact that the enforcement of interim measures is not expressly recognized in the Convention or the rules of the Court, the court by its judgments and with referring to article 34 of the European Convention, endeavors to establish an effective enforcement.
Mehryar Dashab; Saeede Mokhtarzade
Abstract
The current refugee and migration crisis in Europe has intensified different forms of vulnerability including different types of sexual and gender- based violence for female refugee as well as asylum seekers. These women, who are travelling to seek refuge in Europe, may be exposed to various kinds of ...
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The current refugee and migration crisis in Europe has intensified different forms of vulnerability including different types of sexual and gender- based violence for female refugee as well as asylum seekers. These women, who are travelling to seek refuge in Europe, may be exposed to various kinds of violence on the route, transit or destination countries. The lack of adequate accommodation or reception facilities in European countries and taking irregular migration paths with smugglers, have amplified the vulnerability of refugee women. Considering the increasing number of refugee single women and unaccompanied children towards Europe since 2016, international organisations and European NGOs expanded working on recognition and providing legal and medical protection for vulnerable women. The UNHCR, according to its supervisory responsibility has emphasised on assisting European countries to fulfill their international obligations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees as well as other European instruments relating to refugee law. This paper has assessed the status of victims of gender violence. Moreover, it has overviewed UNHCR's guidelines and actions to prevent and response to sexual and gender-based violence in crisis situation in Europe.
Mehryar Dashab
Abstract
Over the last decades, the sexual exploitation and abuse of children have been addressed by international organizations. Several instruments, including the Convention on the Rights of the Child and its Optional Protocol on the sale of children, child prostitution and child pornography required the adoption ...
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Over the last decades, the sexual exploitation and abuse of children have been addressed by international organizations. Several instruments, including the Convention on the Rights of the Child and its Optional Protocol on the sale of children, child prostitution and child pornography required the adoption of appropriate measures by States to counter with various forms of sexual exploitation and abuse of children. Considering the increasing number of cases of sexual exploitation and the need for the creation of a joint mechanism, the Council of Europe has approved the Lanzarote Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse on May 25, 2007. Despite the fact that the Council of Europe has been criticized, this Convention has led to the creation of new norms that are innovative in comparison with the previous one. In this article, while analyzing some of the most innovative rules of this Convention, the strengths and weaknesses of these rules are also highlighted. On the other hand, the examined rules wich reflect the new Council of Europe's approach, which, along with criminalization and other legal and judicial measures, emphasizes the need for the protection of child victims and the adoption of preventive and educational measures by governments.
