Game of Thrones: The Qatar Crisis, Forced Expulsions on the Arabian Peninsula

Penn State Journal of Law & International Affairs Penn State Journal of Law & International Affairs

Volume 7 Issue 1

February 2019

Game of Thrones: The Qatar Crisis, Forced Expulsions on the Game of Thrones: The Qatar Crisis, Forced Expulsions on the

Arabian Peninsula Arabian Peninsula

Christopher R. Rossi

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ISSN: 2168-7951

Recommended Citation Recommended Citation

Christopher R. Rossi,

Game of Thrones: The Qatar Crisis, Forced Expulsions on the Arabian Peninsula

, 7

PENN. ST. J.L. & INT'L AFF. 1 (2019).

Available at: https://elibrary.law.psu.edu/jlia/vol7/iss1/17

The Penn State Journal of Law & International Affairs

is a joint publication of Penn State’s School of Law and

School of International Affairs.

Penn State

Journal of Law & International Affairs

2019 VOLUME 7 NO. 1

GAME OF THRONES: THE QATAR CRISIS,

FORCED EXPULSIONS ON THE ARABIAN

PENINSULA

Christopher R. Rossi

ABSTRACT

In an extraordinary move, reflecting the Arabian Peninsula’s worst diplomatic dispute in decades,

the UAE, Saudi Arabia, Bahrain, and Egypt have expelled Qatari nationals and imposed an

air and sea blockade against Qatar because of its alleged support of terrorist organizations. In

June 2018, Qatar filed suit against the UAE at the International Court of Justice, alleging

discrimination in violation the International Convention on the Elimination of All Forms of

Racial Discrimination. This Article explores the problem of forced expulsion and the utility of

formal judicial redress at the level of the ICJ. Borrowing from the frame analysis of Erving

Goffman, this clash portrays the dispute in terms of ceremonial performance (dramaturgy) that

better suggests its removal to softer, more discursive forums for dispute settlement, such as the Gulf

Cooperation Council (“GCC”). Although already described as a major victim of this dispute,

the GCC may better preserve the dynamics of purposeful negotiation involving a situation that

bears resemblance to a family feud as much as a clash of state interests. This dispute highlights

the expanding problem of nationality, migration, and human rights in an age of terror, and the

limits but need of informal international legal means to best frame meaningful solutions to an

expanding problem. The twentieth century’s experience with the problem of forced migration

indicated the need for international legal reforms. The current problem on the Arabian Peninsula

signifies clearly that the project to address the issue continues. This Article explores the problem

of forced expulsion and the utility of formal judicial redress at the level of the ICJ. After reviewing

the history of hospitality and expulsion, this Article factors into the discussion the motivational

fear of terrorism and frames the discussion against the backdrops of competing UAE and Qatari

claims. The utility of litigating this case before the ICJ is then assessed in terms of substance and

dramaturgy, leading to a reconsideration of the value of a soft law solution, perhaps in a way that

can reinvigorate the GCC, which has been badly damaged by the dispute.

Christopher Rossi is an adjunct faculty member at the University of Iowa

College of Law. Ph.D., Johns Hopkins School of Advanced International Studies;

LL.M. University of London; J.D., University of Iowa; B.A., Washington University.

The author thanks Shahram Akbarzadeh and Charlotte Perez.

2019 Penn State Journal of Law & International Affairs 7:1

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................ 2

II. HOSPITALITY AND EXPULSION ....................................................27

A. Expulsion and the Fear of Terrorism ..................................29

i. Collective Expulsion and Countervailing UAE and

Qatari Arguments .............................................................34

ii. Individual Assessment of Circumstance........................36

B. A Minor and Major Problem ................................................39

III. AN ACT OF METAPHORICAL SIGNIFICANCE? .............................42

A. Courtroom Clash as a Reputational Value ..........................43

B. An Opportunity for the GCC? .............................................46

IV. CONCLUSION .......................................................................................49

I. INTRODUCTION

On June 11, 2018, the State of Qatar, located on the

northeastern headland of the Arabian Peninsula and surrounded by

Saudi Arabia and the Persian Gulf, filed suit against the United Arab

Emirates (“UAE”) at the International Court of Justice (“ICJ”).

Article 36 of the Statute of the ICJ provides that the Court’s

jurisdiction comprises “all matters specially provided for . . . in treaties

and conventions in force.”

In its complaint, Qatar alleged that the

UAB had violated the International Convention on the Elimination of

All Forms of Racial Discrimination (“CERD”), to which both parties

belong.

This case again tests the jurisdictional limits of this

See Interpretation and Application of the International Convention on the

Elimination of all Forms of Racial Discrimination (The State of Qatar v. The United

Arab Emirates), Application Instituting Proceedings (June 11, 2018),

https://www.icj-cij.org/files/case-related/172/172-20180611-APP-01-00-EN.pdf

[hereinafter Qatar v. UAE Application]. See also International Court of Justice Press

Release, No. 2018/26 (June 11, 2018), http://www.icj-cij.org/files/case-

related/172/172-20180611-PRE-01-00-EN.pdf [hereinafter Press Release].

Statute of the International Court of Justice, art. 36(1), https://www.icj-

cij.org/en/statute.

Qatar alleged violations of Arts. 2, 4, 5, 6, and 7. See International

Convention on the Elimination of All Forms of Racial Discrimination, opened for

signature Dec. 21, 1965, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) [hereinafter

2019 Game of Thrones: The Qatar Crisis 7:1

convention, which Georgia unsuccessfully invoked against Russia for

its interventions in South Ossetia and Abkhazia,

and Ukraine

currently tests against Russia’s 2014 annexation of Crimea and its

treatment of Ukrainian and Tatar minorities.

In addition to the

individual human rights harms alleged, the Court likely will determine

CERD’s jurisdictional applicability to the travel embargo and media

restriction complaints.

Qatar accused the UAE of targeting Qataris based on their

national origin,

in violation of CERD’s prohibition against racial

CERD]. See also Press Release, supra note 1, at 1. Qatar acceded to the CERD on July

22, 1976 and the UAE on June 20, 1974. See U.N.

TREATY COLLECTION,

https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-

2&chapter=4&clang=_en.

See Application of the International Convention on the Elimination of All

Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary

Objections, Judgment, 2011, I.C.J 70, (Apr. 1), https://www.icj-cij.org/files/case-

related/140/140-20110401-JUD-01-00-EN.pdf (holding the Court had no

jurisdiction to entertain Georgia’s application).

See, e.g., Application of the International Convention for the Suppression

of Terrorism and of the International Convention on the Elimination of All Forms

of Racial Discrimination (Ukraine v. Russian Federation), Pending Cases, I.C.J.,

https://www.icj-cij.org/en/pending-cases. Additionally, Palestine has filed an inter-

state complaint against Israel for breaches of CERD “given the urgency of the

situation in the Occupied Palestinian Territory, including East Jerusalem.” See The

State of Palestine Lodges an Interstate Complaint Against Israel under the Convention on the

Elimination of All Forms of Racial Discrimination, M

INISTRY FOREIGN AFF., ST.

PALESTINE (Apr. 24, 2018), http://www.mofa.pna.ps/en/2018/04/24/the-state-

of-palestine-lodges-an-interstate-complaint-against-israel-under-the-convention-on-

the-elimination-of-all-forms-of-racial-discrimination/. See also Israel Reacts to the

CERD Committee’s Statement, M

ISSION ISR. UNITED NATIONS GENEVA (May 14,

2018),

http://embassies.gov.il/UnGeneva/NewsAndEvents/MediaStatements/Pages/20

180504-Israel-reacts-to-the-CERD-Committee-statement.aspx. Procedures

regarding the inter-state complaint process are handled by the Committee on the

Elimination of Racial Discrimination in accordance with terms of the Convention.

See CERD, supra note 3, at Part II (detailing relevant articles governing the committee

and its procedures).

See Qatar v. UAE Application, supra note 1, ¶ 3; Application of the

International Convention on the Elimination of All Forms of Racial Discrimination

(Qatar v. United Arab Emirates) Request for the Indication of Provisional Measures,

Order, 2018 I.C.J. ¶ 19 (July 23), https://www.icj-cij.org/files/case-

2019 Penn State Journal of Law & International Affairs 7:1

discrimination. CERD Article 1(1) defines racial discrimination as “any

distinction, exclusion, restriction or preference based on race, color,

descent, or national or ethnic origin” which has the purpose or effect

of impairing the exercise of human rights on an equal footing in fields

of public life.

In addition to objecting to Qatar’s factual allegation, the

UAE asserted that Qatar’s claims fall outside the scope of the ratione

materiae of CERD, and that granting preferences to nationals of a

particular country over another, although accenting the individual’s

present nationality, do not discriminate on the basis of the individual’s

national or ethnic origin: “[t]he UAE considers that the term ‘national

origin’ in Article 1, paragraph 1, of CERD is ‘twinned with’ ‘ethnic

origin’ and that ‘national origin’ is not to be read as encompassing

‘present nationality.’”

On June 5, 2017, the UAE severed diplomatic ties with Qatar,

expelled all Qataris within its borders, prohibited them from traveling

through the UAE, closed UAE airspace and seaports to Qatari

nationals, allegedly abridged Qatari rights of protest and free speech,

related/172/172-20180723-ORD-01-00-EN.pdf [hereinafter Qatar v. UAE

Provisional Measures].

CERD, supra note 3, art. 1(1).

Qatar v. UAE Provisional Measures, supra note 6, ¶¶ 23, 24. The UAE also

argued that the measures it adopted in June 2017 imposed requirements on entry or

re-entry into its territory by Qatari nationals and that there has been no mass

expulsion of Qataris. See id. ¶ 24. The Court concluded that Qatar’s claims “are

capable of falling within the scope of CERD ratione materiae” and that the Court need

not decide at this stage of proceedings whether the expression “national origin”

contained in CERD encompasses discrimination based on present nationality. Id. ¶

27. The Court voted in favor of three of nine requested provisional measures: that

separated Qatari families be reunited, that Qatari students resume their education in

the UAE or be given access to their educational records, and that Qataris be allowed

access to tribunals and other judicial organs of the UAE. The Court also ordered the

parties to refrain from actions aggravating the dispute. See ICJ

PRESS RELEASE

(Unofficial), No. 2018/36, July 23, 2018, at 4, https://www.icj-cij.org/files/case-

related/172/172-20180723-PRE-01-00-EN.pdf.

See Patrick Wintour, Gulf Plunged Into Diplomatic Crisis as Countries Cut Ties

with Qatar,

UARDIAN, (June 5, 2017),

https://www.theguardian.com/world/2017/jun/05/saudi-arabia-and-bahrain-

break-diplomatic-ties-with-qatar-over-terrorism (noting the severance in diplomatic

relations among Saudi Arabia, the UAE, Egypt, and Bahrain with Qatar).

2019 Game of Thrones: The Qatar Crisis 7:1

and shut down local Qatari media outlets, including the Qatari-owned

Al Jazeera Media Network.

When announcing its measures, the UAE

accused Qatar of destabilizing the region by supporting terrorist

organizations.

Invoking the doctrine of parens patriae,

Qatar claimed

the UAE’s actions interfered with marriage and choice of spouse

rights, along with rights of free expression, work, property enjoyment,

and equal treatment before tribunals.

In an effort to protect Qatari

nationals, Qatar requested cessation of discriminatory measures,

compliance with CERD obligations, assurance and guarantees of non-

repetition, reparations, and provisional measures of protection

pending final judgment.

Additionally, Qatar explored avenues of

redress with the UN International Civil Aviation Organization

(“ICAO”) in Montreal,

and filed a complaint with the World Trade

See Qatar v. UAE Application, supra note 1, ¶ 3. Qatar also alleged the

UAE directly incited hate speech. See id. ¶ 4. See also S.G. Sreejith, Legality of the Gulf

Ban on Qatari Flights: State Sovereignty at Crossroads 43 A

IR & SPACE L. 191–203 (2018).

See Qatar v. UAE Provisional Measures, Verbatim Record CR 2018/13

Thursday, June 28, 2018, at 10 am ¶ 6, 11 (Mr. Alnowais: alleging that Qatar illegally

funneled one billion dollars “to entities affiliated with terrorist organizations”),

https://www.icj-cij.org/files/case-related/172/172-20180628-ORA-01-00-BI.pdf.

See also Saudi Arabia, Egypt, UAE, Yemen Sever Ties to Qatar over ‘Terrorism’ in Biggest

Regional Crisis in Years, S

TRAITS TIMES (June 5, 2017),

https://www.straitstimes.com/world/middle-east/saudi-arabia-cuts-ties-to-qatar-

cites-terrorism.

A type of wardship originally applied by the court at Common law to

commit the mentally ill to the care of others, or to render service under a feudal

tenurial system. It grew by the early seventeenth century to associate regal power as

the “Parens patriae, the political father of his people.” Lawrence B. Custer, The Origins

of the Doctrine of Parens Patriae, 27 E

MORY L.J. 195, 201 (1978).

See Qatar v. UAE Application, supra note 1, ¶¶ 31–46. During oral

proceedings, Qatar claimed “over 3,600 recorded marriages between Qataris and

Emiratis” had been affected by the measures. Qatar v. UAE Provisional Measures,

Verbatim Record 2018/12, Wed. June 27, 2018, 10 am, ¶ 30, 41 (Ms. Amirfar).

See Interpretation and Application of the International Convention on the

Elimination of all Forms of Racial Discrimination (Qatar v. The United Arab

Emirates), Request for the Indication of Provisional Measures of Protection, I.C.J.

2018 (June 11), https://www.icj-cij.org/files/case-related/172/172-20180611-WRI-

01-00-EN.pdf [hereinafter Qatar v. UAE Provisional Measures]. See also Qatar v.

UAE Application, supra note 1, ¶¶ 65–66.

See Qatar Airways Expected To Access New Flight Routes, AL JAZEERA (July 31,

2017) https://www.aljazeera.com/news/2017/08/qatar-airways-expected-access-

2019 Penn State Journal of Law & International Affairs 7:1

Organization (“WTO”),

which could lead to WTO panel

interpretation of the security exception under the General Agreement

on Tariffs and Trade (“GATT”).

Bahrain, Saudi Arabia, and Egypt—not parties to CERD—

supported the UAE action in a “self-described [a]nti-Terror Quartet,”

and imposed land, sea, and air blockades on Qatar, in concert with the

UAE.

Adding to the economic and diplomatic blockade, Saudi

Arabia recently revealed plans to dig a canal to separate Qatar from the

Arabian mainland—also proposing to construct a nuclear waste site

and military base on the southern shore of the newly created island,

still within the Saudi frontier separating the two countries.

These

measures resurrect legal discussions that classify a blockade as an act

air-corridors-170801020434530.html (detailing closed-door discussions with the

ICAO to establish contingency air corridors for Qatar’s national airline).

See Qatar Files WTO Complaints Against The United Arab Emirates, Bahrain

And Saudi Arabia, W

ORLD TRADE ORG. (Aug. 4, 2017),

https://www.wto.org/english/news_e/news17_e/ds526_7_8rfc_04aug17_e.htm

(requesting dispute consultations).

See General Agreement on Tariffs and Trade (GATT 1947), WORLD TRADE

ORG., art. XXI,

https://www.wto.org/english/docs_e/legal_e/gatt47_02_e.htm#articleXXI. For a

discussion of art. XXI implications, see Johannes Fahner, Qatar Under Siege: Chances for

an Article XXI Case? EJIL:

TALK! (Jan. 9, 2018), https://www.ejiltalk.org/qatar-

under-siege-chances-for-an-article-xxi-case/.

Simon Henderson, A Field Trip to the Front Lines of the Qatar-Saudi Cold War,

OREIGN POL’Y (Sept. 28, 2017), https://foreignpolicy.com/2017/09/28/a-field-

trip-to-the-front-lines-of-the-qatar-saudi-cold-war/.

Frank Jacobs, Saudi Arabia Threatens to Turn Qatar into an Island, BIGTHINK

(Apr. 12, 2018), https://bigthink.com/strange-maps/saudis-threaten-to-turn-qatar-

into-an-island. See also James M. Dorsey, Saudi Arabia Turns Qatar into an Island,

AIROBSERVER (Apr. 16, 2018),

https://www.fairobserver.com/region/middle_east_north_africa/qatar-crisis-

saudi-arabia-gulf-news-khaleej-33094/ (detailing plans for a $750 million, 37.5 mile

(60km) canal, 200 meters wide and 20 meters deep on the Saudi Arabian border of

the Peninsula).

2019 Game of Thrones: The Qatar Crisis 7:1

of war

and breathe life into the disfavored, early twentieth century

idea of the pacific blockade.

Unlike the articulation of human rights in the western tradition,

where abstract and political Enlightenment values of liberty and

equality take on deep significance, personalized and deeply familial

relationships among the Saudis, the Emiratis, and the Qataris

inextricably combine with political questions. Frayed, yet deep kinship

ties, personalized rivalries,

and competing understandings of

Wahhabism

contribute to this regional crisis of royal factionalism.

See generally Quincy Wright, When Does War Exist? 26 AM. J. INT’L L. 362

(1932) (discussing the declaration of war doctrine with multiple references to the

legal significance of a blockade).

See generally Albert H. Washburn, The Legality of the Pacific Blockade I, 21

OLUM. L. Rev. 55 (1921).

See Randeep Ramesh, The Long-Running Family Rivalries Behind the Qatar

Crisis, G

UARDIAN (July 21, 2017),

https://www.theguardian.com/world/2017/jul/21/qatar-crisis-may-be-rooted-in-

old-family-rivalries (noting that political issues in the region often involve family

issues). See also Saudi Arabia Cuts Off Qatar, E

CONOMIST (June 10, 2017),

https://www.economist.com/middle-east-and-africa/2017/06/10/saudi-arabia-

cuts-off-qatar (discussing troubled dynastic relations among the Al Thanis, Al

Khalifas, Al Sabahs and Al Sauds).

Saudi Arabia and Qatar adhere to the legal thought of the ninth-century

Islamic legal scholar, Ahmad ibn Hanbal; the Hanbali school is the most orthodox

of the Sunni law formulations, which developed into the Wahhabism movement,

named after the eighteenth-century theologian Muhammad ibn Abd al-Wahhab

(1703–1792). See Hanbali School of Law, O

XFORD DICTIONARY ISLAM,

http://www.oxfordislamicstudies.com/article/opr/t125/e799 (last visited Dec. 2,

2018). Despite similarities emanating from the same Wahhabi and Hanbali teachings,

Qatar and Saudi Arabia state-religious relations differ in important respects, for

instance the lack of a religious police institution in Qatar to enforce public morality.

See Birol Baskan & Steven Wright, Seeds of Change: Comparing State-Religion Relations in

Qatar and Saudi Arabia, 33 A

RAB STUD. Q. 96, 97 (2011). Qatari Wahhabism is

sometimes said to have formed given Qatar’s outward looking maritime trade

history—a Wahhabism of the sea—as opposed to Saudi Arabia’s more stringent

Wahhabism of the land. See James M. Dorsey, Wahhabism vs. Wahhabism: Qatar

challenges Saudi Arabia 2 (RSIS Working Paper No. 262, 2013),

https://www.rsis.edu.sg/wp-content/uploads/rsis-pubs/WP262.pdf [hereinafter

“Wahhabism v. Wahhabism”]. On Wahhabism’s history, place in the modern state,

relation to Islamic revivalism, and challenges to its peninsular hegemony, see

generally D

AVID COMMINS, THE WAHHABI MISSION AND SAUDI ARABIA (2006).

2019 Penn State Journal of Law & International Affairs 7:1

The dispute intermixes fundamentally autocratic, rentier

regime

structures with questions of political Islam and commercial enterprise.

It contrasts Qatar’s maverick international status and increasingly

autonomous and assertive foreign policy since the Arab Spring,

with

conservative Gulf Sheikdoms and Oman’s Sultanate. It poses

contextual challenges external to the ICJ’s formal dispute settlement

mechanisms, while raising questions and hopes of political

liberalization against a regional backdrop impacted by globalization,

Rentierism “refers to the (relative) dependence of states on rents for their

internal functioning. Rents are understood to be forms of income generated from

the export of natural resources, usually oil and gas.” R

OLF SCHWARZ, WAR AND

STATE BUILDING IN THE MIDDLE EAST 121 n.5 (2012). Extensive research suggests

that rentierist economies impede the formation of strong, legitimate states and give

“life-support” to institutionally weak and politically accountable states. Id. at 2. For

citations to confirming literature, see id. at 4–5. See also A

LLEN J. FROMHERZ, QATAR:

A MODERN HISTORY 111–124 (2017) (on peculiarities associated with Qatar as a

“classic rentier state”).

See generally Mohammed Nuruzzaman, Qatar and the Arap Spring: Down the

Foreign Policy Slope, 8 C

ONTEMP. ARAB AFF. 226 (2015) (on Qatar’s “high profile”

foreign policy); M

ATTHEW GRAY, QATAR: POLITICS AND THE CHALLENGES OF

DEVELOPMENT 207 (2013) (noting Qatar’s “highly activist” international role during

the Arab Spring); K

RISTIAN COATES ULRICHSEN, QATAR AND THE ARAB SPRING 4

(2014) (noting Qatar’s shift in foreign policy in 2011 in favor of the Arab Spring

movement). The Arab Spring refers to the spread of mass opposition movements

across North Africa, the Levant and Persian Gulf States. It resulted in the “rapid

demise of Presidents Ben Ali and Mubarak in Tunisia and Egypt, the eventual ousting

of Colonel Gaddafi and Ali Abdullah Saleh from power in Libya and Yemen,” and

intensified opposition to regimes in Bahrain and Syria, with “mounting tensions” in

the Eastern Province of Saudi Arabia,” tensions in Oman, and political protests in

Kuwait. Interestingly, it sparked a “phenomenal increase in Twitter usage in all GCC

States, with Saudi Arabia registering the world’s fastest rate of growth in Twitter

users throughout 2012.” Id. at 5. Qatar has been described as a hybrid diplomatic

actor among Gulf States. It has worked with the US and Hamas, and with Hezbollah

and Iran. It has mediated behind the scenes with Israel and Lebanon, supported Arab

Spring revolutions in Tunisia, Egypt and Libya, and remained circumspect during the

uprising in Bahrain. See generally Andrew F. Cooper & Bessma Momani, Qatar and

Expanded Contours of Small State Diplomacy, 46 I

NT’L SPECTATOR 113 (2011). Qatar’s

support for the Al Jazeera media complex, which is based in Doha, has drawn huge

audiences throughout the Arab world “for its hard-hitting reporting and provocative

programming,” including reports critical of most Arab governments. J.E. Peterson,

Qatar and the World: Branding for a Micro-State, 60 M

IDDLE EAST J. 732 and

accompanying n.1 (2006).

2019 Game of Thrones: The Qatar Crisis 7:1

ineffective civic institutions, tribal patronage, agnatic seniority,

patrimony, and tremendous wealth and inequality.

Yemen, the Eastern government of Libya, Maldives,

Mauritania, and Comoros, in “brotherly” support of Saudi Arabia, cut

diplomatic ties with Qatar. Further, four other countries downgraded

relations with Qatar.

A thirteen point list of Saudi demands

accompanied what was described as the “Gulf’s worst diplomatic

dispute in decades,”

spawning a propaganda war in Washington, D.C.

and at the United Nations (“UN”).

Mediation efforts facilitated by

See MARC C. THOMPSON & NEIL QUILLIAM, POLICY MAKING IN THE

GCC: STATE, CITIZENS AND INSTITUTIONS 2 (Mark C. Thompson & Neil Quilliam

eds., 2017) (assessing the absence of responsive governance in GCC countries);

Ramesh, supra note 22 (noting the intermix of kinship ties and family relationships as

problems for political dispute settlement). See also Mehran Kamrava, Royal Factionalism

and Political Liberalization in Qatar, 63 M

IDDLE EAST J. 401 (2009) (discounting

meaningful political liberalization in Qatar); and F

ROMHERZ, supra note 24, at 161

(noting that Qatari citizens can only vote if their family has been living on the

Peninsula since before 1930).

Jordan, Djibouti, Chad, and Niger. See Qatar-Gulf Crisis: Your Questions

Answered, A

L JAZEERA (Dec. 5, 1017),

https://www.aljazeera.com/indepth/features/2017/06/qatar-gulf-crisis-questions-

answered-170606103033599.html#blockading-countries.

Patrick Wintour, Qatar Given 10 Days to Meet 13 Sweeping Demands by Saudi

Arabia, G

UARDIAN (June 23, 2017),

https://www.theguardian.com/world/2017/jun/23/close-al-jazeera-saudi-arabia-

issues-qatar-with-13-demands-to-end-blockade (listing the demands as: curbing

diplomatic ties with Iran, severing ties to terrorist organizations, shutting down Al-

Jazeera, shutting down other news outlets such as Arabi21 and Rassd, terminating

Turkey’s military presence in Qatar, stopping funding means for terrorist individuals

and groups, handing over “terrorist figures”, ending interference in other countries’

internal affairs, stopping contact with political opposition forces in Saudi Arabia, the

UAE, Egypt, and Bahrain, compensating blockading powers for associated financial

losses, consenting to monthly external compliance checks, aligning militarily,

politically, socially, and economically with other Gulf and Arab countries, agreeing

to all demands within 10 days).

Bethany Allen-Ebrahimian, Qatar Pulls the Human Rights Card in Washington

PR Blitz, F

OREIGN POL’Y (July 11, 2017)

https://foreignpolicy.com/2017/07/11/qatar-pulls-the-human-rights-card-in-

washington-pr-blitz-saudi-arabia-gulf-blockade/ (noting Qatar’s emphasis on the

blockade’s human rights costs); Gulf Crisis: Qatar FM Meets UN Security Council

Members, A

L JAZEERA (July 1, 2017),

https://www.aljazeera.com/news/2017/07/gulf-crisis-qatar-fm-meets-security-

2019 Penn State Journal of Law & International Affairs 7:1

Kuwait and backed by the United States (“U.S.”), the UN, and

European powers, reduced the demands to six principles around which

resolution of the crisis now revolves.

Even reduced to six principles,

the demands to end the blockade reflect the imprecisions of a pactum

de contrahendo.

Such clauses permit hostile bargaining partners

breathing space to sidestep temporarily nettlesome details or wrongful

acts that could impede negotiations, however they can fruitlessly

contribute to impasse by avoiding or postponing discussion of details

at the heart of the dispute.

A report issued by the human rights organization, Amnesty

International, labeled the one week deadline issued against Qataris by

council-members-170701042724973.html (on Qatar’s UN mission’s efforts to sway

non-permanent members of the Security Council). See also Hassan Hassan, Qatar Won

the Saudi Blockade, F

OREIGN POL’Y (June 4, 2018),

https://foreignpolicy.com/2018/06/04/qatar-won-the-saudi-blockade/

(estimating that Qatar and Saudi Arabia spent about $1.5 billion each on public

relations campaigns and that Qatar seems to be winning in the court of public

opinion).

In a joint statement issued on July 5, 2017, Saudi Arabia, the UAE, Egypt,

and Bahrain listed the six principles as: 1) Commitment to combat extremism and

terrorism in all forms and to prevent their financing or the provision of safe haven;

2) prohibiting acts of incitement; 3) full commitment to Riyadh Agreement 2013 and

Gulf Cooperation Council Supplementary Agreement; 4) commitment to outcomes

of the Arab-Islamic-US summit in Riyadh in May 2017; 5) refraining from interfering

with internal affairs of States; and 6) supporting the responsibility of all states to

confront all forms of extremism and terrorism. See Joint Statement by the Foreign

Ministers of Saudi Arabia, Egypt, the United Arab Emirates and Bahrain, E

MBASSY

KINGDOM SAUDI ARABIA (July 5, 2017),

https://www.saudiembassy.net/statements/joint-statement-foreign-ministers-

saudi-arabia-egypt-united-arab-emirates-and-bahrain. After nine months of

negotiation, Qatar made several concessions; it pledged not to naturalize GCC

citizens and it asked several members of the Muslim Brotherhood who had fled

Egypt to Qatar to leave or not to return. See D

AVID B. ROBERTS, QATAR: SECURING

THE

GLOBAL AMBITIONS OF A CITY-STATE 152 (2017).

An agreement to conclude a future agreement. See Ulrich Beyerlin, Pactum

de Contrahendo, Pactum de Negotiando, in 3 E

NCYCLOPEDIA PUBLIC INTERNATIONAL

LAW 854 (Rudolf Berhardt ed., 1984).

See Stephen L. Kass, Obligatory Negotiations in International Organizations, 3

AN. Y.B. INT’L L. 36, 39 (1965) (breathing space); Antonio Cassese, The Israel-PLO

Agreement and Self-Determination, 4 E

UR. J. INT’L L. 564, 566 n.6 (1993) (quoting

Beyerlin’s view on potential employment to avoid obligation).

2019 Game of Thrones: The Qatar Crisis 7:1

the UAE and the other states across the Gulf as “arbitrary” and

contemptuous of human dignity.

Additionally, the report noted the

banishment extended to mixed-nationality families, placing them at the

“heart of a political crisis.”

The head of Qatar’s National Human

Rights committee estimated that the humanitarian costs of the

blockade would directly affect 19,000 Qataris living in the four

blockading countries and possibly 11,300 individuals from the

blockading countries living in Qatar.

The targeting of Qataris, collectively referred to as

“Discriminatory Measures,”

drew the attention of six special

rapporteurs,

who made an urgent appeal to the UAE of the adverse

situation.

The UAE objected to and dismissed the concerns without

Gulf/Qatar Dispute: Human Dignity Trampled and Families Facing Uncertainty as

Sinister Deadline Passes, A

MNESTY INT’L (June 19, 2017),

https://www.amnesty.org/en/latest/news/2017/06/gulf-qatar-dispute-human-

dignity-trampled-and-families-facing-uncertainty-as-sinister-deadline-passes/.

Id. A Qatari National Human Rights Committee report approximated that

8,254 Saudis, 2,349 Bahrainis, and 784 Emiratis lived in Qatar prior to the crisis and

that 1,927 Qataris lived in these three neighboring countries. See Qatar: Isolation

Causing Rights Abuses, H

UM. RTS. WATCH (July 12, 2017),

https://www.hrw.org/news/2017/07/13/qatar-isolation-causing-rights-abuses.

Krishnadev Calamur, Tillerson Calls Qatar’s Position in Dispute with Arab

States ‘Very Reasonable’, A

TLANTIC (July 11, 2017),

https://www.theatlantic.com/news/archive/2017/07/qatar-tillerson/533259/.

See Qatar v. UAE Application, supra note 1, ¶ 5. The UAE later modified

the deportation decree to exempt Qataris married to Emirati nationals. See UAE

Exempts Qataris Married To Emiratis From Expulsion Order: Paper, R

EUTERS (June 12,

2017), https://www.reuters.com/article/us-gulf-qatar-emirates-idUSKBN1930V8.

Communication to Government of the United Arab Emirates, Mandates

of the Special Rapporteur on the promotion and protection of the right to freedom

of opinion and expression; the Special Rapporteur on the right of everyone to the

enjoyment of the highest attainable standard of physical and mental health; the

Special Rapporteur on the human rights of migrants; the Special Rapporteur on

contemporary forms of racism, racial discrimination, xenophobia and related

intolerance; the Special Rapporteur on the promotion and protection of human

rights while countering terrorism; and the Special Rapporteur on the right to

education, 18 August 2017. See Qatar v. UAE Application, supra note 1, ¶ 14.

Joint Communication from Special Procedures Mandate Holders of the

Human Rights Council to the United Arab Emirates, AU ARE 5/2017 (Aug. 18,

2017), at 1, 4 [hereinafter Joint Communication of Special Procedures Mandate

Holders] (connecting concerns about the right to movement and residence, family

2019 Penn State Journal of Law & International Affairs 7:1

addressing them.

A Human Rights Watch report detailed the human

toll in terms of stranded workers, family separations, and interrupted

medical care and education.

Zeid Ra’ad Al Hussein, the UN High

Commissioner for Human Rights, expressed “alarm” about the human

rights impact caused by the “overly broad” measures.

In addition, the

Office of the United Nations High Commissioner for Human Rights

(“OHCHR”) affirmed the actions as arbitrary and noted in December

2017 that most measures made “no distinction between the

Government of Qatar and its population,” thus they amounted to

unilateral coercions that had a “potentially durable effect on” the

human rights of those affected.

Leading human rights authorities, John Dugard and William

Schabas, concluded the coalition’s actions illegally comprised unilateral

unity, education, work, freedom of expression, health and the right to property in

relation to CERD).

See Qatar v. UAE Application, supra note 1, ¶ 14 (noting that the UAE

registered high displeasure at receiving the Sept. 18, 2017 communication—phrased

as an urgent appeal—and declined to address the asserted violations).

Qatar: Isolation Causing Rights Abuses, HUM. RTS. WATCH (July 12, 2017),

https://www.hrw.org/news/2017/07/13/qatar-isolation-causing-rights-abuses.

Qatar Diplomatic Crisis: Comment by UN High Commissioner for Human Rights

Zeid Ra’ad Al Hussein on Impact on Human Rights,

OFF. U.N. HIGH COMMISSIONER

HUM. RTS. (June 14, 2017),

https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=217

39&LangID=E.

OHCHR Technical Mission to the State of Qatar, 17–24 November 2017,

Rep. on the Impact of the Gulf Crisis on Human Rights, ¶¶ 60 (“durable effect”), 61

(“unilateral”), and 64 (“no distinction”), (2017) http://nhrc-qa.org/en/themencode-

pdf-viewer/?file=http://nhrc-qa.org/wp-content/uploads/2018/01/OHCHR-

TM-REPORT-ENGLISH-1.pdf [hereinafter OHCHR Report]. See also Qatar

Diplomatic Crisis: Comment by UN High Commissioner for Human Rights Zeid Ra’ad Al

Hussein on Impact on Human Rights, O

FF. U.N. HIGH COMMISSIONER HUM. RTS. (June

14, 2017),

https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=217

39&LangID=E (expressing “alarm about the possible impact on many people’s

human rights” given the decision by Saudi Arabia, the UAE, Egypt and Bahrain to

ties with Qatar.); Statement of Dr. Ali Smaikh Al Marri, Chairman, National Human

Rights Committee (Qatar), 10:16 mark [undated], http://nhrc-qa.org/ (affirming

that “the continuation of this crisis will damage the social fabric of the Gulf family.”).

2019 Game of Thrones: The Qatar Crisis 7:1

coercive measures (sanctions).

Under their analysis, the UAE actions

violated the Declaration on Friendly Relations,

the Draft Articles on

Responsibility of States for Internationally Wrongful Acts,

the UN

Charter, and to the extent coalition partners have acceded to them, the

International Covenant on Civil and Political Rights and the

International Covenant on Economic Social and Cultural Rights.

Details may be hard to pin down. Professors Dugard and Schabas

concluded that “Qatar has committed no internationally wrongful

act.”

Unsuccessful interventions at the Human Rights Council,

and

by Kuwait as mediator,

propelled the case to The Hague, a forum

generally and historically eschewed by Arab countries.

The anti-Qatar bloc seeks to pressure Qatar into ending

support for various Islamist groups, including Ahrar al-Sham in

northern Syria, the Muslim Brotherhood in Egypt, religious

insurrectionists in Libya, anti-Saudi and Shia communities in Saudi

Arabia’s fractious eastern Qatif province,

and Saudi-opposed Houthi

rebels in Yemen. Regarding the latter claim, a 2014 war pitting Saudi

See Professor John Dugard & Professor William Schabas, The Blockade of

Qatar One Year On: Violations of Human Rights and Coercive Measures 1-7 (June 5, 2018),

http://tgchambers.com/wp-content/uploads/2018/06/Qatar-report.pdf. See also

OHCHR Report, supra note 42, ¶ 61 (characterizing the UAE measures as

conforming to the definition of unilateral coercive measures).

G.A. Res. 2625 (XXV), Declaration on Principles of International Law

Concerning Friendly Relations and Co-operation among States in Accordance with

the Charter of the United Nations, at Annex, PP 9 (Oct. 24, 1970).

See Int’l Law Comm’n, Rep. on the Work of its Fifty-Third Session, U.N.

Doc. A/56/10, at 128–139 (2001).

See Dugard & Schabas, supra note 43, at 5.

Dugard & Schabas, supra note 43, at 4.

See, e.g., Qatar Ministry of Foreign Affairs, Qatar Calls on Human Rights Council

to Immediately End Siege Countries’ Violations, M

INISTRY FOREIGN AFF. (Feb. 28, 2018),

https://www.mofa.gov.qa/en/all-mofa-news/details/2018/02/28/qatar-calls-on-

human-rights-council-to-immediately-end-siege-countries’-violations (presenting

Qatar’s appeal to the Human Rights Council).

Qatar v. UAE Application, supra note 1, ¶ 17.

See Cesare P.R. Romano, International Judicialization in the Arab World: An

Initial Assessment 33–34 (iCourts Working Paper Series, No. 49, 2016) (noting the

relatively few cases since 1946 where Arab states have been involved as applicant or

respondent before the ICJ).

Wintour, supra note 9.

2019 Penn State Journal of Law & International Affairs 7:1

interests and ground forces (supporting the internationally recognized

Hadi regime, which controls the major Indian Ocean port of Aden)

against the Iranian-backed Houthi Zaydi Shiites (who control Yemen’s

capital city, Sana’a) has turned into the “world’s largest humanitarian

catastrophe” and a deepening security problem for Saudi Arabia.

Qatar, although Sunni-dominated, shares close economic ties and

offshore energy interests with Iran and its Shia population.

An alleged

computer hack of a speech by the Qatari emir in support of Iran

sparked this crisis.

The Saudi-led alliance in Yemen has since

Bruce Riedel, In Yemen, Iran Outsmarts Saudi Arabia Again, BROOKINGS

NST. (Dec. 6, 2017), https://www.brookings.edu/blog/markaz/2017/12/06/in-

yemen-iran-outsmarts-saudi-arabia-again/. See also Yemen, Humanitarian Response Plan

January-December 2018, UNOCHA (Jan. 2018), at 2,

https://reliefweb.int/report/yemen/yemen-humanitarian-response-plan-january-

december-2018-enar (last visited Dec. 2, 2018) (noting 22.2 million people in Yemen

now need humanitarian or protection assistance, including 11.3 million who are in

acute need). See also Helene Cooper, Thomas Gibbons-Neff, & Eric Schmitt, Army

Special Forces Secretly Help Saudis Combat Threat from Yemen Rebels, N.Y.

TIMES (May 3,

2018), https://www.nytimes.com/2018/05/03/us/politics/green-berets-saudi-

yemen-border-houthi.html (discussing the secret movement of U.S. Army Special

Forces to the Yemeni border in support of the Saudi military campaign and the

launching of more than 100 missiles since 2015 into the Saudi kingdom by Houthi

forces).

See Tim Lister, Unraveling the Qatar Crisis: Sunni, Shia, Saudi, Iranian—and

Trump, CNN (June 7, 2017), https://www.cnn.com/2017/06/07/middleeast/qatar-

crisis-analysis/index.html (noting the huge gas field in the Persian Gulf shared by

Qatar and Iran [known in Qatar as the North Field and in Iran as South Pars]);

AWRENCE G. POTTER, The Rise and Fall of Port Cities in the Persian Gulf, in THE

PERSIAN GULF IN MODERN TIMES: PEOPLE, PORTS, AND HISTORY 131, 145

(Lawrence G. Potter ed., 2014) (noting the necessity of Iranian-Qatari cooperation

to develop their shared undersea gas field).

Qatar v. UAE Application, supra note 1, ¶ 21 (noting the “spark that lit

the fuse”). See also Patrick Wintour, Russian Hackers to Blame for Sparking Qatar Crisis,

FBI Inquiry Finds, G

UARDIAN (June 7, 2017),

https://www.theguardian.com/world/2017/jun/07/russian-hackers-qatar-crisis-

fbi-inquiry-saudi-arabia-uae (questioning who would have commissioned the

freelance hackers); Greg Myre, Report: United Arab Emirates Hacked Qatar, Sparking

Gulf Crisis, NPR (June 17, 2017) (quoting unnamed U.S. intelligence officials from a

Washington Post report). The quotations, which appeared on a crawl across T.V.

screens on May 23, 2017 and attributed to the emir of Qatar, Tamim bin Hamad Al

Thani, read: “Iran is an Islamic power in the region that cannot be ignored;” and

“Hamas is the legitimate representative of the Palestinian people.” Dexter Filkins,

Quest to Remake the Middle East, N

EW YORKER (Apr. 9, 2018),

2019 Game of Thrones: The Qatar Crisis 7:1

removed Qatar from its coalition,

and Qatar has restored full

diplomatic ties with Iran.

This removal from the alliance adds to

fissures exposed during a Saudi-Qatar dispute for influence in Syria,

which impeded opposition efforts to topple Bashar al-Assad’s

regime.

Saudi Arabia, the UAE, and Bahrain broke diplomatic

relations with Qatar in 2014,

based on violations of a non-public

security understanding crafted at a Gulf Cooperation Council (GCC)

Riyadh meeting in November 2013.

Omani and Kuwaiti intermediaries provided a pathway for

reconciliation within the GCC that led to the Riyadh Supplemental

Agreement in November 2014, which affirmed norms of non-

interference.

Saudi sources now allege Qatar never fulfilled those

mostly concealed-from-public commitments,

pointedly blaming Al

https://www.newyorker.com/magazine/2018/04/09/a-saudi-princes-quest-to-

remake-the-middle-east.

Qatar Reneged on Its Promises, Documents Reveal, SAUDI GAZETTE (June 11,

2017), http://saudigazette.com.sa/article/512571/SAUDI-ARABIA/Qatar.

See UAE Responds as Qatar Restores Full Diplomatic Ties With Iran, NATIONAL

(Aug. 24, 2017), https://www.thenational.ae/world/gcc/uae-responds-as-qatar-

restores-full-diplomatic-ties-with-iran-1.622417 (eliciting the claim from the UAE

Foreign Minister that Qatar has “escalated its troubles”).

See Saudi-Qatar Crisis Puts Syrian Rebels in Tricky Position, INQUIRER.NET

(June 17, 2017), http://newsinfo.inquirer.net/906325/saudi-qatar-crisis-puts-syrian-

rebels-in-tricky-position. Al-Assad’s regime is likely to prevail over this revolt

stemming from the 2010 Arab Spring, notwithstanding billions of dollars of western

and Gulf state assistance for the opposition, and one of the costliest covert action

programs in the history of the CIA. See Aron Lund, How Assad’s Enemies Gave Up on

the Syrian Opposition, C

ENTURY FOUND. (Oct. 17, 2017),

https://tcf.org/content/report/assads-enemies-gave-syrian-opposition/.

See ROBERTS, supra note 30, at 151 (noting the recall of ambassadors from

Saudi Arabia, the UAE, and Bahrain).

See Islam Khalid Hassan, GCC’s 2014 Crisis: Causes, Issues and Solutions, AL

JAZEERA CTR. STUD. (Mar. 31, 2015),

http://studies.aljazeera.net/en/dossiers/2015/03/201533172623652531.html.

Amira Howeidy, Saudia Arabia, UAE Make Amends With Qatar, AL-

HRAMWEEKLY (Nov. 20–26, 2014), http://weekly.ahram.org.eg/News/7789.aspx

(noting parties variously refer to the Riyadh Consultative Summit document as

“document,” “agreement,” or “supplementary agreement,” and that its contents have

not been disclosed fully).

See, e.g., Qatar Reneged on Its Promises, Documents Reveal, SAUDI GAZETTE (July

11, 2017), http://saudigazette.com.sa/article/512571/SAUDI-ARABIA/Qatar

2019 Penn State Journal of Law & International Affairs 7:1

Jazeera media platforms and professionals for their advancement of an

anti-GCC agenda.

The anti-Qatar coalition, fortified by the

solidification of Egyptian General Abdel Fattah el-Sisi’s 2013 coup d’état

against Mohamed Morsi and the Muslim Brotherhood (which ended

Egypt’s restive thirty-month failed transition to democracy following

President Hosni Mubarak’s forced resignation), provide stout

opposition to a negotiated end to Qatar’s isolation.

This stalemate

may contribute to sub-regional competitions stretching from the Gaza

Strip to the Horn of Africa

and represents the ongoing repercussions

of the tumultuous 2011 Arab Spring.

In May 2018, Bahrain’s Foreign Minister concluded that no

“glimmer of hope for a solution” appears on the horizon.

Employing

an alliterative taxonomy of dysfunctionality, Richard Falk described

the crisis as a multidimensional descent into “chaos, conflict, and

coercion” for the region.

Falk noted “dubious major assumptions”

of the anti-Qatar bloc, including the coalition’s identification of the

Muslim Brotherhood as a terrorist organization and the coalition’s

“own extensive funding of radical madrassas throughout the Muslim

(referring to the Riyadh Agreement of 2013 and the Supplementary Agreement of

2014).

Ben Flanagan, Al Jazeera Bias Under Spotlight Amid GCC Rift, ARABNEWS

(June 13, 2017), http://www.arabnews.com/node/1114206/science-technology.

See ULRICHSEN, supra note 25, at 173–74 (noting the “rollback of the Arab

uprisings in North Africa,” including Egypt’s return to “a military-led status quo

ante,” presented Qatar with immediate foreign policy challenges).

See Robert Malley, What Happens in the Gulf Doesn’t Stay in the Gulf,

TLANTIC (June 7, 2018),

https://www.theatlantic.com/international/archive/2018/06/somalia-gulf-crisis-

vegas-rules/562292/; Matthias Sailer & Stephan Roll, Three Scenarios for the Qatar

Crisis: Regime Change, Resolution or Cold War in the Gulf, SWP

COMMENT 3 (July 2017),

https://www.swp-berlin.org/en/publication/the-qatar-crisis-three-scenarios/.

See generally Silvia Colombo, The GCC and the Arab Spring: A Tale of Double

Standards, 47 I

TALIAN J. INT’L AFF. 110 (2012) (on the difficulties managing cohesive

policy within the GCC since the Arab uprisings in 2011).

No End in Sight to Qatar Row: Bahrain, KHALEEG TIMES (May 27, 2018),

https://www.khaleejtimes.com/region/qatar-crisis/no-end-in-sight-to-qatar-row-

bahrain (quoting Sheikh Khalid bin Ahmed Al Khalifa).

Richard Falk, The Gulf Crisis Reassessed from An International Law Perspective,

LOBAL RES. (Mar. 14, 2018), https://www.globalresearch.ca/the-gulf-crisis-

reassessed-from-an-international-law-perspective/5632113.

2019 Game of Thrones: The Qatar Crisis 7:1

world.”

Falk suggested that invoking terrorist concerns as a basis for

expelling Qataris serves as a pretext for indirectly confronting Iran by

directly disciplining Qatari nationals for their dynastic monarchy’s

deficient foreign policy alignment with the House of Al Saud.

Other

commentators regard the dispute as an attack against Qatar’s

sovereignty with the Saudi intent of turning Qatar into a vassal state.

Still others warn of Qatar’s dangerous practice of playing much larger

opposing forces against each other and moderating difficulties that

arise through recourse to its only unquestioned comparative

advantage—checkbook diplomacy.

The crisis also stirs speculation

about the regime change intentions of the Saudi and Emirati royal

families against the Al Thanis in Doha.

Bad blood dates from leaked

recordings in 2014 involving the former emir of Qatar and his foreign

minister, who contemplated the dissolution and division of Saudi

Arabia based on internal signs of instability in the House of Saud.

Reports further indicate U.S. Secretary of State Rex Tillerson

intervened in June 2017 “to stop a secret Saudi-led, UAE backed plan

Id.

See id.

See Richard Sokolsy & Aaron Miller, Qatar Crisis: Can Rex Tillerson Fix This

Mess? C

ARNEGIE ENDOWMENT INT’L PEACE (July 10, 2017),

https://carnegieendowment.org/2017/07/10/qatar-crisis-can-rex-tillerson-fix-this-

mess-pub-71483 (casting doubt on diplomacy as a solution for Saudi intentions of

turning Qatar into a semi-vassal state); and Hassan, supra note 29 (discussing the goal

of turning Qatar into a vassal state).

See Qatar: A Dangerous Alliance, Qatar: A Dangerous Alliance-Full

Documentary, Y

OUTUBE (Sept. 22, 2017),

https://www.youtube.com/watch?v=kHXXan2CRZQ (interviewing Hussain

Haqqari, Alex Vatanka and Jonathan Schanzer).

Sailer & Roll, supra note 64, at 2 (concluding that a coming Cold War in

the Gulf is the most likely scenario but “not completely excluding” regime change

intentions against the Qatari leadership).

Former Qatari Emir Conspired with Qadaffi Against Saudi Arabia, AL ARABIYA

ENGLISH (June 8, 2017),

http://english.alarabiya.net/en/features/2017/06/08/Former-Qatari-Emir-

conspired-with-Gaddafi-against-Saudi-Arabia.html (discussing leaked audio

recordings leaked in 2014 but dating possible to 2003 allegedly of Qatar emir Hamad

bin Khalifa and foreign minister Hamad bin Jassim with former Libyan Leader

Muammar Qaddafi).

2019 Penn State Journal of Law & International Affairs 7:1

to invade and . . . conquer Qatar.”

Such a take-over would

immediately staunch rapidly depleting Saudi financial reserves, which

have dwindled by one-third since 2015 due to downward pressure on

world oil prices.

More than affecting Qatar’s sovereign independence, the

embargo has added another intractable conflict to the Middle East

landscape. The embargo has dealt a substantial blow to the region’s

premier international cooperation organization, the GCC,

which is

too deeply divided to facilitate policy coordination. It has also

paralyzed the Arab League, which kept the issue off its recent Cairo

agenda and refused to issue visas to Qatar’s delegation.

It has

Alex Emmons, Saudi Arabia Planned to Invade Qatar Last Summer. Rex

Tillerson’s Efforts to Stop it May have Cost him his Job, I

NTERCEPT (Aug. 1, 2018),

https://theintercept.com/2018/08/01/rex-tillerson-qatar-saudi-uae/.

See Bruce Riedel, Kings and Presidents: Whither the Special Relationship with Saudi

Arabia? B

ROOKINGS INST. (Nov. 21, 2017), at 5–6, https://www.brookings.edu/wp-

content/uploads/2017/11/fp_20171121_saudi_us_transcript.pdf. Reidel noted the

Saudi cradle-to-grave social security system is financially unsustainable when oil

prices dip below 80–85 dollars per barrel, id. at 5, in addition to costs associated with

its disastrously expensive war in Yemen (estimated at $700 million per month), id. at

Geoffrey Martin, Is the GCC Dead After the Qatar Crisis? GULF ST.

ANALYTICS (Feb. 5, 2018), https://gulfstateanalytics.com/gcc-dead-qatar-crisis/

(answering yes but questioning whether the GCC was ever alive); Abdullah Al Shayji,

Qatar Crisis Casts a Shadow on GCC Unity, G

ULF NEWS (June 28, 2017),

https://gulfnews.com/opinion/thinkers/qatar-crisis-casts-a-shadow-on-gcc-unity-

1.2050430 (noting the “snowballing crisis . . . could undermine the [GCC] bloc”).

The GCC formed in 1981 as the political and economic alliance of six Gulf States,

Saudi Arabia, Kuwait, the UAE, Qatar, Bahrain, and Oman. See Hasan-Askari Rizvi,

Gulf Cooperation Council, 35 P

AKISTAN HORIZON 29 (1982). A May 2018 GCC summit

hosted by the United States has been postponed until September with the hope that

intermediaries will by then be able to get the disputants back to the GCC. See Warren

Strobel & Jonathan Landay, White House Postpones Planned Trump Summit with Gulf

Leaders: Sources, R

EUTERS (Apr. 3, 2018), https://www.reuters.com/article/us-usa-

gulf-summit/white-house-postpones-planned-trump-summit-with-gulf-leaders-

sources-idUSKCN1HA2H2. For information on the GCC and its Charter, see

generally S

ECRETARIAT GEN. GULF COOPERATION COUNCIL, http://www.gcc-

sg.org/en-us/Pages/default.aspx (last visited Dec. 2, 2018).

Egypt ‘Blocks Qatari Officials’ from Attending Arab League Meeting Amid Gulf

Crisis, T

HENEWARAB (May 10, 2018),

https://www.alaraby.co.uk/english/news/2018/5/9/egypt-blocks-qatari-officials-

from-attending-arab-league-meetings.

2019 Game of Thrones: The Qatar Crisis 7:1

spawned a breakaway Saudi-Emirati Coordination Council, which has

already projected a sixty month Ala’azm (Determination) Strategy to

integrate the two countries in ways that compromise directly the future

of the GCC.

It has splintered the Organization of Islamic

Cooperation (OIC), which formed as a representation of the universal

Muslim sense of unity (Ummah),

but now absorbs criticism as a

financially dependent agency of Saudi hegemony.

Qatar has criticized

the OIC for siding with the anti-Qatar bloc,

drawing key support

See KSA and UAE Announce Joint Vision for Economic, Developmental and

Military Integration Through 44 Strategic Projects, S

AUDI PRESS AGENCY (June 7, 2018),

https://www.spa.gov.sa/viewfullstory.php?lang=en&newsid=1774108

(announcing the Saudi-Emirati Coordination Council’s Ala’azm Strategy). See also

Simon Henderson, New Arab Gulf Council Reflects Shift in Strategy, Leadership, H

ILL (June

10, 2018), http://thehill.com/opinion/international/391431-new-arab-gulf-council-

reflects-shift-in-strategy-leadership (suggesting the death of the GCC in the wake of

the formation of the Saudi-Emerati Coordination Council).

See History, ORGANIZATION OF ISLAMIC COOPERATION,

https://www.oic-oci.org/page/?p_id=52&p_ref=26&lan=en (noting the

organization formed in Rabat in 1969 to “galvanize the [u]mmah into a unified

body”) (last visited Sept. 23, 2018). See also O

LIVER ROY, GLOBALIZED ISLAM: THE

SEARCH FOR A NEW UMMAH 1 (2006) (defining Ummah); Ejaz Akram, Muslim Ummah

and its Link with Transnational Muslim Politics, 46 I

SLAMIC STUD. 381 (2007) (contrasting

the meaning of Ummah with western nation-state notions of peace and security).

See Shahram Akbarzadeh & Zahid Shahab Ahmed, Impacts of Saudi

Hegemony on the Organization of Islamic Cooperation (OIC), __I

NT’L J. POLIT. CULT. SOC’Y

__ (forthcoming; copy on file with author). With 57 members representing 1.6 billion

Muslims, the OIC is the world’s second largest international organization after the

UN. Id.

See Qatar Condemns Statement by OIC General Secretariat, PENINSULA (June 7,

2017), https://www.thepeninsulaqatar.com/article/07/06/2017/Qatar-condemns-

statement-by-OIC-General-Secretariat.

2019 Penn State Journal of Law & International Affairs 7:1

from Turkey, which chairs the OIC

and, along with the United

States,

operates its own military bases in Qatar.

The embargo is now a “slow-motion strategic failure,” having

imprudently discounted Qatar’s small population yet immense

wealth,

its commercial and strategic access to the sea, and the

availability of import substitutes once provided by blockading

powers.

The failure of the embargo exposes cross-purpose messages

and diminished U.S. influence in the region, which formerly

maintained appearances of common interests and regional cohesion

on missile defense needs, counterbalances to Iran’s nuclear program,

See Turkey: Isolation of Qatar Is Not Islamic, AL JAZEERA (June 13, 2017),

https://www.aljazeera.com/news/2017/06/turkey-qatar-isolation-islamic-values-

170613131822995.html (noting Turkish President Ergodan’s denunciation of Qatar’s

isolation).

Qatar hosts more than 10,000 US and coalition military personnel at the

Al Udeid Air Base, which serves as the forward headquarters for the U.S. Air Forces

Central Command and its Combined Air Operations Center (CENTCOM). See Qatar

to Expand US Airbase as Defence Chief Visits DC, A

L JAZEERA (Jan. 29, 2018),

https://www.aljazeera.com/news/2018/01/qatar-expand-airbase-defence-chief-

visits-dc-180129192013144.html. See also Al Udeid Air Base, Qatar,

LOBALSECURITY.ORG,

https://www.globalsecurity.org/military/facility/udeid.htm (noting the base is the

U.S.’ largest in the Middle East) (last visited Sept. 23, 2018).

See Shehab Al-Makahleh, Is Turkey Preparing to Replace US Military Base in

Qatar? A

L ARABIYA ENGLISH (Mar. 18, 2018),

http://english.alarabiya.net/en/views/news/middle-east/2018/03/18/Turkey-

cements-economic-ties-with-military-base-in-Qatar.html (on Turkey’s two military

bases in Qatar and its 2022 military plan to deploy more troops and establish a naval

base in Qatar); Suraj Sharma, ANALYSIS: A Quandary for Qatar, and a Global Crisis

in the Making, M

IDDLE EAST EYE (July 4, 2017),

http://www.middleeasteye.net/news/analysis-qatar-crisis-military-diplomacy-

economy-689636344 (discussing the problematizing significance of Turkish soldiers

in Qatar as a hedge against any attempt to topple the Qatari leadership).

IMF ranks Qatar as the world’s richest country. See Will Martin, Ranked:

The 29 Richest Countries in The World, B

US. INSIDER (May 22, 2018)

http://www.businessinsider.com/the-richest-countries-in-the-world-2018-5 (listing

Qatar as the richest country based on April 2018 IMF data).

Gabriel Collins, Anti-Qatar Embargo Grinds Toward Strategic Failure, Issue

Brief, R

ICE U. BAKER INST. PUB. POL’Y 1–2 (Jan. 22, 2018),

https://scholarship.rice.edu/bitstream/handle/1911/99690/bi-brief-012218-ces-

qatarembargo.pdf?sequence=1&isAllowed=y.

2019 Game of Thrones: The Qatar Crisis 7:1

and coordinated policy responses to interferences in Lebanon, Syria,

Yemen, and Iraq.

While the political context appears frozen, the social,

economic, and security implications remain fluid. Qatar’s diplomatic

dexterity and world-wide investments have circumvented the

economic effects of isolation,

extended relations with Turkey,

adroitly managed affairs with Iran, repaired then strengthened ties to

the U.S., unbalanced Saudi Arabia’s Gulf leadership, and leveraged the

platform of the ICJ to publicize its victimization.

Before the

blockade, Qatar cultivated its role as mediator and outmaneuvered

Saudi Arabia and Turkey to create a diplomatic outpost for the Taliban,

establishing Doha as a safe haven hub for high-level discussions and

peace talks.

Qatar’s projection of a triangulated foreign policy

fundamentally balances Saudi Arabian, Iranian, and the United States

interactions. Qatar has added complexity to its geostrategic station by

discussing the purchase of a Russian missile defense system;

a move

See Qatar: 2018 Article IV Consultation-Press Release; Staff Report; and Statement

by the Executive Director for Qatar, IMF

STAFF COUNTRY REP. (May 30, 2018),

http://www.imf.org/en/Publications/CR/Issues/2018/05/30/Qatar-2018-

Article-IV-Consultation-Press-Release-Staff-Report-and-Statement-by-the-

Executive-45915 (noting Qatar’s economy continues to successfully adjust despite

the diplomatic rift).

On Qatar’s portrayal “as a victim of Saudi perfidy” and the increasing

view in the Arab world that the anti-Qatar quartet represents an autocratic conspiracy

against political change, see Hassan, supra note 29.

The establishment of a diplomatic channel of communication with the

Taliban in Qatar has facilitated the interests of Pakistan and Afghanistan, NATO,

and has assisted in discussions involving Guantanamo Bay prisoner exchanges and

the release of U.S. Sgt. Robert “Bowe” Bergdahl from Taliban captivity. See How

Qatar Came to Host the Taliban, BBC (June 23, 2013),

https://www.bbc.com/news/world-asia-23007401. Bergdahl was released in May

2014 in exchange for five Guantanamo Bay captives released to Qatari

intermediaries. See also Eric Schmitt & Charlie Savage, Bowe Bergdahl, American Soldier,

Freed by Taliban in Prisoner Trade, N.Y.

TIMES (May 31, 2014)

https://www.nytimes.com/2014/06/01/us/bowe-bergdahl-american-soldier-is-

freed-by-taliban.html.

See Qatar In Talks with Russia Over S-400 Missile Defense System Purchase,

ISSILE DEFENSE ADVOC. ALLIANCE (July 10, 2018),

http://missiledefenseadvocacy.org/other-news/qatar-in-talks-with-russia-over-s-

400-missile-defense-system-purchase/ (noting missile purchase discussions between

2019 Penn State Journal of Law & International Affairs 7:1

that would run counter to the interoperable air defense aspirations of

the GCC. Saudi Arabia has threatened a military response.

Long-term implications of this blockade and expulsion extend

beyond the dynamics of regional politics. A central component of the

Gulf economy is its migrant work force.

Migrant workers far

outnumber the indigenous population in the region’s smaller

countries.

Migrant communities and governments such as India that

supply manual and domestic workers to the Gulf States have crucial

interests at stake.

The migrant worker economy is regarded among

the world’s most important global poverty-fighting institutions,

notwithstanding well-known abuses involving visa-trading and human

Qatar’s emir, Sheikh Tamim bin Hamad Al Thani and Russian President, Vladimir

Putin).

See Benjamin Barthe, L’Arabie saoudite menace le Qatar d’une “action militaire”

s’il se dote de missiles S-400, L

E MONDE (June 1, 2018),

https://mobile.lemonde.fr/proche-orient/article/2018/06/01/l-arabie-saoudite-

menace-le-qatar-de-represailles-militaires-s-il-se-dote-de-missiles-s-

400_5308285_3218.html?xtref=.

See generally Andrzej Kapiszewski, Arab Versus Asian Migrant Workers in the

GCC Countries, in S

OUTH ASIAN MIGRATION TO GULF COUNTRIES: HISTORY,

POLICIES, DEVELOPMENT 46–70 (Prakash C. Jain & Gina Zacharia Oommen eds.,

2016) (noting the economic significance of remittances and the general support for

such emigration by Gulf States).

According to the ILO, migrant workers make up the majority of the

population in Bahrain, Oman, Qatar and the UAE, and over 95 percent of the

domestic and construction work forces of Gulf States. Migrant workers account for

more than 80 percent of the population in Qatar and the UAE. See generally Labour

Migration, I

NT’L LABOUR ORG., http://www.ilo.org/beirut/areasofwork/labour-

migration/lang--en/index.htm (last visited Sept. 23, 2018).

See generally Muhammad Azhar, Indian Migrant Workers in GCC Countries, 9

IASPORA STUD. 100–11 (2016) (on the post-1973 oil era influx of millions of Indian

migrants in GCC countries and the impact on the Indian economy). See also Jo

Jakobsen & Marko Valenta, Moving to the Gulf: An Empirical Analysis of the Patterns and

Drivers of Migration to the GCC Countries, 1960–2013, 57 L

ABOR HIST. 627, 630 (2016)

(noting “[a]lmost half of the total emigrant stock from India, which is by far the

largest migrant-sending country in South Asia, is received by the GCC” and that the

GCC hosts over 21 million migrants from the top 25 migrant-sending countries).

See Omar Al-Ubaydli, The Economics of Migrant Workers in the GCC, ARAB

GULF ST. INST. WASH. 3 (2015), https://agsiw.org/wp-

content/uploads/2015/12/Omar-Al-Ubaydli_Economic-Migrants_PDF2.pdf

(citing research from the World Bank and the U.N. Global Commission on

International Migration).

2019 Game of Thrones: The Qatar Crisis 7:1

trafficking.

The International Labor Organization (“ILO”) has

reported that the Arab States region contains among the world’s

highest proportions of manual and domestic migrant communities,

putting pressure on labor supply states to choose sides in the dispute

or disengage by reducing nationals’ exposure to increasing regional

insecurities.

Since the initiation of the blockade, Qatar has moved to

quiet concerns about its treatment of migrant workers and improve its

much criticized kafala (sponsorship) system, which prevented migrant

workers from fleeing abusive employer practices.

Criticisms of the

kafala system are “Gulf wide,” and an array of potential reforms in

Qatar may add significant pressure to ILO attempts to end exploitative

labor systems in the region.

100

Of the legal and human rights violations alleged in this

upcoming dispute at the ICJ, this Article focuses on general issues

See id. at 12–15 (citing visa-trading (where migrants are sponsored for a

specific position but forced to perform a different job on arrival) and other forms of

human smuggling and migrant worker abuse). See also Ali Assareh Mahmood

Monshipouri, Migrant Workers and Their Rights in the United Arab Emirates, in H

UMAN

RIGHTS IN THE MIDDLE EAST: FRAMEWORKS, GOALS, AND STRATEGIES 227–243

(Mahmood Monshipouri ed., 2011) (discussing regional and country-specific

practices and labor conditions affecting migrant workers).

See Labour Migration, supra note 93 (noting in 2015 that there were 32

million international migrants in the Arab States region).

See Naser Al-Tamimi, The Gulf Crisis: Why is India Still Neutral? ARAB NEWS

(July 29, 2017), http://www.arabnews.com/node/1136101/columns (noting that

the GCC was India’s largest trading partner in 2016, with the UAE and Saudi Arabia

among India’s top five partners, and that Qatar provided India with almost 19

percent of its crude energy imports and 62 percent of its natural gas imports); Zahraa

Alkhalisi & Rishi Iyengar, Philippines Stops Sending Workers to Qatar, CNNM

ONEY

(June 6, 2017), http://money.cnn.com/2017/06/06/news/economy/qatar-

migrant-workers-philippines/index.html (assessing reactions of Qatari migrant

worker supply states, including the Philippines, India, Nepal, and Egypt).

See G.B.331/INS/13(Rev.), Governing Body, INT’L LABOR OFF. (Oct. 31,

2017), http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---

relconf/documents/meetingdocument/wcms_586479.pdf (on complaints

concerning non-observance by Qatar of labor standards and general agreements to

be taken to rectify the situation).

100

See Qatar: Implementation Will be Key for Labor Reforms, HUM. RTS. WATCH

(Oct. 27, 2017), https://www.hrw.org/news/2017/10/27/qatar-implementation-

will-be-key-labor-reforms (discussing kafala reforms and the impact for the region).

Bahrain terminated the kafala system in 2009.

2019 Penn State Journal of Law & International Affairs 7:1

surrounding the expulsion of aliens,

101

with specific concentration on

the implications for Gulf State relations regardless of a judgment from

the ICJ. Qatar’s Foreign Minister claimed the suit presented “the first

step in bringing an end” to serious human rights abuses.

102

Even if his

sense of progress prevails through recourse to international law’s most

formal dispute settlement mechanism, the journey likely will be long

and the prospect of a Phyrric victory is high. However, the Emirati

Foreign Minister dismissed the petition as a deceit, adding that it only

escalated tensions.

103

Following this introduction, Part II briefly reviews the general

international law supporting migratory movements as associated with

the principle of hospitality and then discusses the international law

relating to expulsions. Part III assesses the benefits and obstacles of

removing this case from the ICJ’s docket to another, softer law

environment. For purposes here, soft law means “the ability to get

what you want through attraction rather than through coercion or

payments.”

104

Its usage redirects the understanding of influence away

from the formalities and structures of international law, as embodied

by the ICJ itself, toward a culture of decision-making that emphasizes

norm socialization, networks and forms of commitment broadly

101

For purposes here, expulsion is defined in line with the definition

proffered by Art. 2(a) of the International Law Commission’s Draft Articles on the

Expulsion of Aliens, with Commentaries, available at

http://legal.un.org/ilc/texts/instruments/english/commentaries/9_12_2014.pdf

[hereinafter 2014 Report] (“a formal act, or conduct consisting of an action or

omission, attributable to a State by which an alien is compelled to leave the territory

of that state . . . .”).

102

Qatar Says It Files Case Against UAE at UN’s Highest Court, N.Y. TIMES

(June 11, 2018),

https://www.nytimes.com/aponline/2018/06/11/world/middleeast/ap-ml-

qatar.html (quoting Qatar’s Foreign Minister Sheikh Mohammed bin Abdulrahman

Al Thani).

103

See Gargash: We’re Not Surprised by Qatar Lawsuit Given Hajj Lies, NATIONAL

(June 11, 2018), https://www.thenational.ae/world/gcc/gargash-we-re-not-

surprised-by-qatar-lawsuit-given-hajj-lies-1.739057 (quoting Emirati Foreign

Minister Dr. Anwar Gargash).

104

Joseph S. Nye, Jr., Soft Power and American Foreign Policy, 119 POL. SCI. Q.

255, 256 (2004).

2019 Game of Thrones: The Qatar Crisis 7:1

construed.

105

The irony of suggesting a route for dispute de-escalation

through recourse to the failed mechanisms that launched the dispute

onto the docket of the ICJ is obvious. However, soft power works on

multiple levels and often emerges from the “cavities” of

multilateralism to give expression to “power beneath the surface,”

106

particularly when discursive settings can return to a mission-centered

purpose for reestablishing relationships.

Qatar has deployed an array of soft power initiatives that

reform-minded Saudis may quietly envy.

107

It has positioned itself as a

voice of independent news in the Arab world, as a satellite of U.S.

higher education institutions, as a venue for the 2001 Doha Round of

WTO talks, the 2012 United Nations Climate Change Conference

(“COP 18”), the 2006 Asian Games, and the 2022 FIFA World Cup.

108

105

See Francesco Francioni, International ‘Soft Law’: A Contemporary Assessment,

in F

IFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE: ESSAYS IN HONOUR

SIR ROBERT JENNINGS 167, 167–68 (Vaughn Lowe & Malgosia Fitzmaurice eds.,

1996) (noting the operation of soft law outside of the system of formal sources that

are nevertheless capable of producing legal effects); Kenneth W. Abbott & Duncan

Snidal, Hard and Soft Law in International Governance, 54 I

NT’L ORG. 421, 423 (noting

that “soft law facilitates compromise, and thus mutually beneficial cooperation,

between actors with different interests and values, different time horizons and

discount rates, and different degrees of power”).

106

PETER VAN HAM, SOCIAL POWER IN INTERNATIONAL POLITICS 3

(“power beneath the surface”), 70 (“cavities” of multilateralism) (2010).

107

The new Saudi crown prince, Mohammed bin Salman has launched a

series of anti-corruption and moderate Islam reforms that have suggested the crown

prince already has undertaken “[t]he most significant reform process . . . anywhere

in the Middle East today”. Thomas L. Friedman, Saudi Arabia’s Arab Spring, at Last,

N.Y.

TIMES (Nov. 23, 2017),

https://www.nytimes.com/2017/11/23/opinion/saudi-prince-mbs-arab-

spring.html. For criticisms of Friedman’s opinion of bin Salman’s transformative

intent, see Filkins, supra note 54.

108

See ROBERTS, supra note 30, at 1, 3, 11, and ch. 8. On the movement away

from an Egyptian-influenced education system to a more western curricula in the

Gulf region, see Maher Kelifa, Trading Culture: Have Western-Educated Emirati Females

Gone Western? 1 OIDA

INT’L J. SUSTAINABLE DEV. 19 (2010). Georgetown

University, Texas A&M, Northwestern University, Carnegie Mellon University,

University of Calgary, and Virginia Commonwealth University have established

campuses in Qatar. See Education in Doha Qatar, O

NLINEQATAR,

https://www.onlineqatar.com/education/universities-qatar.aspx (last visited Sept.

23, 2018).

2019 Penn State Journal of Law & International Affairs 7:1

A unique and intra-elite sense of cohesion, combined with its geo-

strategic station between competing global interests, shape Qatar into

“its own variety of a developmental state.”

109

Such a distinction adds

complexity in the Arab world, where the world’s only major ruling

monarchs reside.

110

Qatar’s exercise of subtle power and influence might indicate

a shift of the center of gravity in the Arab world toward the Persian

Gulf.

111

However, this crisis is as much a consequential loss of social

cohesion or group feeling (asabîyah) of the Gulf States, as expressed by

the great fourteenth century Berber philosopher, Ibn Khaldûn in the

prolegomena to his meditation on the rise and fall of great dynasties.

112

There, he presented a generational stage theory of development that

explained the rise and fall of the dynastic state.

113

Khaldûn drew

attention to social facts and common circumstances that informed

state creation and interaction in ways that continued to influence

contemporary relations.

114

With adept soft power experience, Qatar

should recognize that any reclamation of constructive discourse is

more likely to follow from informal means of dispute settlement from

within the GCC and its emerging generational leadership change,

115

109

MEHRAN KAMRAVA, QATAR A: SMALL STATE, BIG POLITICS 167 (2013).

110

Lisa Anderson, Absolutism and the Resiliency of Monarchy in the Middle East,

106 P

OL. SCI. Q. 1 (1991).

111

See KAMRAVA, supra note 109, at 165.

112

See IBN KHALDÛN, THE MUQADDIMAH: AN INTRODUCTION TO

HISTORY lxi, 15–68 (Franz Rosenthal trans., Princeton University Press 1967) (1377).

On the translation of asabîyah, see id. at lxi. Khaldûn associated the loss of asabîya with

dynastic decline: “as a rule no dynasty lasts beyond the life (span) of three

generations.” Id. at 343. Transliterated spellings of the term vary, although it also

commonly appears in English as asabiyyah.

113

See id. at 353–55 (discussing stages of success, consolidation of royal

authority, leisure and tranquility, contentment and peacefulness, and waste and

squandering).

114

See Sema Yilmaz Genç, An Evaluation of Ibni Khaldun’s Thoughts of the

Economical World, in

2 GLOBALIZATION DIMENSIONS & IMPACTS: GLOBAL STUDIES,

47 (Hilal Yildiz, Farhang Morady & Ismail Șiriner eds., 2015) (on Khaldûn’s

historiographic and sociological significance).

115

See Becca Wasser & Jeff Martini, The Next Generation of Gulf Leaders,

OREIGN AFF. (Feb. 14, 2016), https://www.foreignaffairs.com/articles/persian-

gulf/2016-02-14/next-generation-gulf-leaders (noting the emergence of Gulf crown

princes and key ministers who are in their 30s, 40, and 50s).

2019 Game of Thrones: The Qatar Crisis 7:1

it is able to reconstitute a bond of asabîyah. Although possible, such a

solution appears remote, except in view of alternatives. Part IV draws

conclusions about how a change of forum may mute the consequences

of an Arab predicament that portages the internecine strife of a region

to a forum likely to render judgment in favor of Qatar.

II. HOSPITALITY AND EXPULSION

The western legal tradition regards migration as a “permanent

feature.”

116

The customary law of nations construed hospitality to

include habituated and recognized rules governing the legal status of

aliens, strangers, and their right of movement and communication.

117

Migration is an equally well-understood feature of Arabia, where the

Haj pilgrimage to Mecca historically supported the frankincense

caravan routes and traditions of nomadic grazing migrations.

118

Pre-

Islamic Bedouins regarded hospitality as “central to a noble character”

and the three great monotheistic religions regard as virtuous the

hospitable treatment of moving populations.

119

Although supported in political and international literature, the

treatment of strangers has become a “social problem on a global

116

Vincent Chetail, Sovereignty and Migration in the Doctrine of the Law of Nations:

An Intellectual History of Hospitality from Vitoria to Vattel, 27 E

UR. J. INT’L L. 901, 902

(2016) (noting the law of nations’ symbiotic relationship with migration “from its

inception.”).

117

See generally id. (canvassing opinions of classical western thinkers,

including Cicero, Vitoria, Grotius, Pufendorf, Wolff, and Vattel). But see Nan

Seuffert, Queering International Law’s Stories of Origin: Hospitality and Homophobia, in

UEERING INTERNATIONAL LAW: POSSIBILITIES, ALLIANCES, COMPLICITIES,

RISKS 213–35 (Dianne Otto ed., 2017) (investigating the allegorical significance of

hospitality as employed by Vitoria and the sixteenth-century Spanish imperial rule of

Mesoamerica). See generally G

EORG CAVALLAR, THE RIGHTS OF STRANGERS:

THEORIES OF INTERNATIONAL HOSPITALITY, THE GLOBAL COMMUNITY, AND

POLITICAL JUSTICE SINCE VITORIA (2002); J. Irizarry y Puente, Exclusion and

Expulsion of Aliens in Latin America, 36 A

M. J. INT’L L. 252 (1942) (detailing the

historical tolerance of domiciled aliens throughout Latin America).

118

See generally Migrant Workers in the Arab Middle East, 4 THIRD WORLD Q.

530 (1982).

119

Mona Siddiqui, Welcoming in God’s Name: Hospitality in Islam and Christianity,

ELIGION & ETHICS (Jan. 5, 2017),

http://www.abc.net.au/religion/articles/2017/01/05/4600525.htm.

2019 Penn State Journal of Law & International Affairs 7:1

scale,”

120

particularly in terms of challenges to refugee law.

121

Hannah

Arendt traced the modern origins of the problem to the massive spatial

disorientation caused by the Great War.

122

The disassociation of

persons from the protective sphere of the state compromised persons’

political status,

123

creating a legal lacauna or rightless anomaly by which,

through expulsion, a country could diminish its “burden of

indésirables.”

124

As Arendt concluded, “[t]he world found nothing

sacred in the abstract nakedness of being human.”

125

Postcolonial theorists, such as Edward Said, assigned to human

migration a supreme importance “attendant upon war, colonialism and

decolonization, economic and political revolution, and such

devastating occurrences as famine, ethnic cleansing, and great power

machinations.”

126

Recent challenges to refugee law among states of the

Mediterranean region and Southeast Europe, has spawned a

reexamination of restrictions on mass migration for reasons of national

120

Nicholas Onuf, Relative Strangers: Reflections on Hospitality, Social Distance and

Diplomacy, in H

OSPITALITY AND WORLD POLITICS 173 (Gideon Baker ed., 2013)

(noting wide-ranging philosophical and political treatments of hospitality from Kant

to Derrida).

121

See, e.g., Filippo Grandi, Protecting Refugees in Europe and Beyond: Can the EU

Rise to the Challenge? U.N.

HUM. RTS. COMMISSION (Dec. 5, 2016),

http://www.unhcr.org/en-us/admin/hcspeeches/58456ec34/protecting-refugees-

europe-beyond-eu-rise-challenge.html (referring to the mass migration influx of

refugees arriving across Europe beginning in 2015 from the Mediterranean Sea or

overland through Southeast Europe); Donald Kerwin, The Faltering US Refugee

Protection System: Legal and Policy Responses to Refugees, Asylum-Seekers, and Others in Need

of Protection, 21 R

EFUGEE SURVEY Q. 1, (2012); Todd Scribner, You Are Not Welcome

here Anymore: Restoring Support for Refugee Resettlement in the Age of Trump, 5 J.

MIG. &

HUM. STUD. 263 (2017) (assessing the Trump Administration’s migration policy).

122

See HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 268–75

(1951) (discussing statelessness as the newest mass phenomenon caused by the

internal disintegration of World War I).

123

See id. at 295 (“Only the loss of a polity itself expels [a person] from

humanity.”).

124

Id. at 281.

125

Id. at 295.

126

EDWARD W. SAID, REFLECTIONS ON EXILE AND OTHER ESSAYS xiv

(2000).

2019 Game of Thrones: The Qatar Crisis 7:1

security in Europe.

127

Migration policy and unsecured borders are now

signature issues in U.S. political and legal discourse, as well.

128

A. Expulsion and the Fear of Terrorism

The circumstances surrounding the Qatari expulsions add

another dimension to debates on international migration. Actions

taken by the UAE against Qatari residents assert no connection to

historical stateless classifications of Heimatlosen or apatrides—persons

who (in the post-World War I millieu of Europe) “would not or could

not assume the nationality of a successor state.”

129

They do not

comport with traditionally understood explanatory economic

migration theories.

130

The UAE’s actions also fall outside the bounds

of belligerent occupation, as the UAE is not an occupying power

within the meaning of Geneva Convention IV relative to the

Protection of Civilians Persons in Time of War.

131

Additionally, they

make no claim connected to refugee status, non-refoulement, illegal entry,

or itemized illegal activity. The sweeping generality of the UAE

127

Migrant Crisis: European Commission Proposes Asylum Reforms, BBC (Apr. 6,

2016), https://www.bbc.com/news/world-europe-35974982 (noting European

Commission response to the mass influx of refugees across Europe beginning in

2015).

128

See generally Trump v. Hawaii, 138 S. Ct. 2392 (2018) (holding constitutional

a presidential proclamation upholding entry restrictions on specific foreign state

aliens into the United States on legitimate national security grounds). See also Sarah

Pierce & Andrew Selee, Immigration Under Trump: A Review of Policy Shifts in the Year

Since the Election, M

IGRATION POL’Y INST. (Dec. 2017),

https://www.migrationpolicy.org/research/immigration-under-trump-review-

policy-shifts (discussing political objectives to cut legal immigration and reshape the

entry of foreign-born workers to the U.S.) (last visited Sept. 23, 2018).

129

MICHAEL R. MARRUS, THE UNWANTED: EUROPEAN REFUGEES IN THE

TWENTIETH CENTURY 70 (1985).

130

See BOGUMIL TERMINSKI, DEVELOPMENT-INDUCED DISPLACEMENT

AND RESETTLEMENT

: THEORETICAL FRAMEWORKS AND CURRENT CHALLENGES 5

(2013) (explaining migration decisions in terms of wage differences (the Hicks

Model), rural-urban dichotomy (the Harris-Todaro Model), stages of development

(the Zelinsky Model), or positive/negative, push-pull factors (Everett Lee’s Push-

Pull theory).

131

See JEAN-MARIE HENCKAERTS, MASS EXPULSION IN MODERN

INTERNATIONAL LAW AND PRACTICE 143–78 (1995) (on Geneva Convention IV

and the issue of deportation of enemy civilians during belligerent occupation).

2019 Penn State Journal of Law & International Affairs 7:1

measures add confusion, if not pretext, to emerging views regarding

possible remediation efforts to combat state-sponsored terrorism, and

call into mind the infamous 1944 United States Supreme Court

decision upholding the internment of United States citizens of mostly

Japanese descent during World War II.

132

Since the events of 9/11, international law has concentrated on

balancing the protection of human rights and the prevention of

terrorism.

133

Liberal state responses to the challenges of terrorism

presented a multipronged intermix of political, law enforcement, and

military actions,

134

which prompted criticisms of the inability of the

liberal state to protect democratic notions of freedom and core secular

values.

135

Important examples in U.S. constitutional history have

upheld national security restrictions on individual liberties, including

the rights of citizens.

136

On balance, “restrictions on individual liberties

. . . have been upheld in the context of national security imperatives

132

See generally Korematsu v. United States, 323 U.S. 214 (1944) (justifying a

presidential executive order to intern Japanese Americans based on national security

notwithstanding application of the Equal Protection Clause’s strict judicial scrutiny

standard for race-based classifications). In Trump v. Hawaii, the majority seemingly

overruled Korematsu, (C.J. Roberts noting the decision “was gravely wrong” and

“has no place in law under the [c]onstitution” even though the majority noted that

“Korematsu ha[d] nothing to do with this case.”). See Trump, 138 S. Ct. at 2423.

133

See Human Rights, Terrorism and Counter-Terrorism, Fact Sheet No. 32, OFF.

U.N.

HIGH COMMISSIONER HUM. RTS., at 19 (2008),

https://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf.

134

See PAUL WILKINSON, TERRORISM VERSUS DEMOCRACY: THE LIBERAL

STATE RESPONSE chs. 4–6 (2d ed. 2006). See generally Cynthia Banham, The Torture of

Citizens After 9/11: Liberal Democracies, Civil Society and the Domestic Context, 20

INT’L J.

HUM. RTS. 914 (2016).

135

See Orlando Patterson, Freedom and 9/11, 21 DEMOCRACY: A JOURNAL

IDEAS (2011), https://democracyjournal.org/magazine/22/freedom-and-911/.

136

See, e.g., Espionage Act of 1917, Pub. L. No. 65–24, 40 State 217 (repealed

1948); Sedition Act of 1918, Pub. L. No. 65–150, 40 Stat. 553 (repealed 1921); Alien

Registration Act of 1940 [Smith Act], Pub. L. 76–670, 54 Stat 670 (repealed 1950);

and various forms of emergency legislation, including, National Emergencies Act of

2000, 50 U.S.C. § 1621; International Emergency Economic Powers Act of 1977

[IEEPA], Pub. L. 95–223, 91 Stat. 1626 (codified as amended at 50 U.S.C. §§ 1701-

1706 (2000)); USA Patriot Act of 2001, Pub. L. No. 107–56, 115 Stat. 272.

2019 Game of Thrones: The Qatar Crisis 7:1

. . . that would likely not have been permitted absent such

justifications.”

137

Responses from the Arab world noted the fitful liberal

reactions, described generically by the former deputy director of the

International Crisis Group’s Middle East branch as the flailing of a

“blinded Cyclops.”

138

The inability of western states to frame a

synthetic and coherent response to terrorism stimulated the subaltern

reorientation within the Arabian Peninsula world toward its own

assessment of threats to security—sectarian conflicts between Shiite

and Sunnis and challenges to monarchic rule stemming from the Arab

Spring.

139

In a continuing display of confused and cross-purpose foreign

policy, the Trump administration initially presented a mixed message

on the Qatari crisis.

140

Secretary of State Tillerson expressed sympathy

for Qatar in the face of the Saudi-led boycott in 2017, whereas

President Trump declared Qatar a “funder of terror at a very high

level.”

141

President Trump then reversed his position and described

137

Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and

the Law of Armed Conflict in the Age of Terror, 153 U. P

ENN. L. REV. 675, 698 (2004)

(reviewing U.S. case law and balancing tests employed by courts to acquiesce, defer,

or steer clear of ripeness or political questions involving executive judgments on

restrictions of liberty during ongoing national security imperatives).

138

Joost Hilterman, Deep Traumas, Fresh Ambitions, in LEGACIES OF THE

IRAN-IRAQ WAR (Middle East Research and Information Project, Spring 2018),

https://www.merip.org/mer/mer257/deep-traumas-fresh-ambitions (specifically

noting U.S. policy since the 2003 invasion of Iraq). See M

ADAWI AL-RASHEED, A

HISTORY OF SAUDI ARABIA xiii (2d ed. 2010) (on the impact of 9/11 and sectarian

concerns in Saudi Arabia).

139

See Borzou Daragahi, 9/11 from Arab Shores, FOR. POL’Y (Sept. 2011),

https://foreignpolicy.com/2011/09/09/911-from-arab-shores/.

140

See Robert Malley & Jon Finer, Fixing Trump’s Blunders on Qatar, WASH.

POST (June 9, 2017), https://www.washingtonpost.com/news/global-

opinions/wp/2017/06/09/fixing-trumps-blunders-on-

qatar/?utm_term=.560f684c8186 (calling U.S. mixed messages “head-spinning”).

141

Peter Baker, Trump Now Sees Qatar as an Ally Against Terrorism, N.Y. TIMES

(Apr. 10, 2018), https://www.nytimes.com/2018/04/10/world/middleeast/trump-

qatar-terrorism.html (quoting President Trump). Conflicting reports have emerged

about whether the Saudis and Emiratis would have launched the blockade without

prior approval from the White House. See Filkins, supra note 54 (quoting a former

2019 Penn State Journal of Law & International Affairs 7:1

Qatar as a partner in the fight against extremism.

142

At the same time,

Qatar announced plans to double its investments in the U.S. to $250

billion.

143

Either display sublimated direct consideration of the

underlying expulsion issue. Executed with due process and mindful of

individual circumstances, the expulsion of aliens is a long and

established, but not absolute, sovereign right of states.

144

The

International Law Commission’s (“ILC”) Draft Articles on the

U.S. intelligence officer who claimed the White House “gave the green light” and a

senior administration official, who denied the claim).

142

See id. (noting the “remarkable turnaround” in US policy toward Qatar).

143

See David A. Patten, Qatar’s Emir Promises To Step Up Ties, Invest $250 Billion

in US, N

EWSMAX (Apr. 13, 2018), https://www.newsmax.com/newsfront/emir-

tamim-qatar-donald-trump-middle-east/2018/04/13/id/854468/ (noting President

Trump more recently called the Qataris “great friends” as its emir promised to

double trade and investment with the US, including a possible $10 billion partnership

with Exxon to develop U.S. shale oil deposits, the purchase of a $300 million guided

missiles system, $18 billion in additional investments in the U.S. by 2020, a $1.7 Qatar

Airways letter of intent to purchase fighter jets from Boeing, and possible investment

projects in Florida, Texas, South Carolina, and Washington, D.C.).

144

See Expulsion of Aliens in International Human Rights Law (OHCHR

Discussion Paper, Sept. 2006),

http://www2.ohchr.org/english/issues/migration/taskforce/docs/Discussion-

paper-expulsions.pdf (recognizing the qualified right of states to regulate the

presence of foreigners on their territory); C-143—Migrant Workers (Supplementary

Provisions) Convention, 1975 (No. 143), adopted June 24, 1975, I

NT’L LABOUR ORG.,

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100

_ILO_CODE:C143#A13 (recognizing expulsion in accordance with individual

safeguards). See also Jorge Bustamante (Special Rapporteur on the Human Rights of

Migrants), Promotion and Protection of All Human Rights, Civil, Political, Economic, Social

and Cultural Rights, Including the Right to Development, ¶ 64, U.N. Doc. A/HRC/7/12

(Feb. 25, 2008) (affirming due process treatment on individual bases for irregular

migrants and those persons involved in interceptions at sea). Doctrinal references to

the right of expulsion abound. See, e.g., Irizarry y Puente, supra note 117, at 257 (noting

in Latin America the right to remain “is a privilege” subject to law); P

ATRICK

DAILLER & ALAIN PELLET, DROIT INTERNATIONAL PUBLIC 664 (Paris: L.G.D.J.

1999) (noting the right is generally recognized); Lawrence Preuss, International Law

and Deprivation of Nationality, 23 G

EO. L.J. 250, 272 (1934) (affirming the right to expel

aliens is not in doubt); H

ENCKAERTS, supra note 131, at 45 (indirectly acknowledging

the right except when violative of “non-discrimination principle”); Lamin Jalamang

Sisi, Expulsion of Aliens in International Law: Some African Case Studies 84-85

(doctoral dissertation, Johns Hopkins, 1975) (confirming the right to expel).

2019 Game of Thrones: The Qatar Crisis 7:1

Expulsion of Aliens (2014), recognized a general right of states to expel

aliens from their territory, but only “in accordance with . . . other

applicable rules of international law, in particular those relating to

human rights.”

145

The Draft Article’s specific reference to human

rights assumed a respect for human rights that necessarily arises from

expulsion cases. This justification, if not derived from treaty law, finds

support in general rules prohibiting arbitrariness, abuse of rights, and

denial of justice.

146

Case law and state practice support consideration

of procedural due regard, as discussed below.

For example, in the Maal Case, an early twentieth century

arbitration between the Netherlands and Venezuela, “large

discretionary powers” inhered in the right of a state to expel “in a

proper and lawful manner” persons “dangerous to the welfare of the

country.”

147

In the 1980s, the Iran-United States Claims Tribunal noted

that international law guaranteed “certain procedural and substantive

minimum standards” even though a state had “wide discretion” to

expel foreigners.

148

Security Council Resolution 1456 (2003) reflected

the mix of legal factors involved in expulsion cases, including

international criminal and humanitarian law, refugee law, and human

rights law, and these considerations stand behind the Council’s

conclusion that “[s]tates must ensure that any measure taken to combat

terrorism comply with all their obligations under international law.”

149

If done en masse, problems arise.

150

145

Art. 3, Draft Articles on the Expulsion of Aliens, with commentaries.

International Law Commission A/69/10 (Nov. 11, 2014),

http://legal.un.org/ilc/texts/instruments/english/commentaries/9_12_2014.pdf.

146

See id. cmt. (2).

147

Maal Case, Mixed Claims Commission, Netherlands-Venezuela, June 1,

1903, X UNRIAA 730, 731.

148

Yeager v. The Islamic Republic of Iran, Iran United States Claims

Tribunal, Award of Nov. 2, 1987, 17 I

RAN-U.S. CLAIMS TRIBUNAL REP. 92, 106.

149

S.C. Res 1456, ¶ 6 (Jan. 23, 2003), https://documents-dds-

ny.un.org/doc/undoc/GEN/N03/216/05/PDF/N0321605.pdf?OpenElement.

150

See JULIA WOJNOWSKA-RADZIŃSKA, THE RIGHT OF AN ALIEN TO BE

PROTECTED AGAINST ARIBITRARY EXPULSION IN INTERNATIONAL LAW 17 (2015)

(citing the UN Special Rapporteur on the Rights of Non-Citizens’ report on

collective expulsion of aliens).

2019 Penn State Journal of Law & International Affairs 7:1

i. Collective Expulsion and Countervailing UAE and Qatari

Arguments

The UAE argued that its case was not about racial

discrimination based on “national origin” but about lawful measures

against the State of Qatar, not its nationals.

151

The UAE objected to

the application of the Convention, arguing that “the preconditions for

the seisin of the Court” were never fulfilled.”

152

Qatar summarized the

UAE’s actions as “measures that purposefully target[ed] and infringe[d]

the rights of Qataris protected under the Convention on the basis of their

national origin.”

153

Article 5 of CERD requires states parties to guarantee

the equal enjoyment of basic human rights to all, regardless of race or

national origin.

154

Article 2 of the Convention obligates states to

eliminate racial discrimination.

155

According to the Convention’s

travaux preparatoires, the articles, taken together, “[e]nsure that non-

citizens are not subject to collective expulsion, in particular situations

where there are insufficient guarantees that the personal circumstance

of each of the persons concerned have been taken into account.”

156

Initially, expulsion related to the forced removal of persons

across a state boundary. The late Cherif Bassiouni, a leading authority

on international criminal law, noted that the prohibition of deportation

now includes forced population transfers applied to the “compulsory

movement of people from one area to another within the same

State.”

157

The International Criminal Court (“ICC”) statute includes

151

Qatar v. UAE, Provisional Measures, Verbatim Record CR 2018/15,

Friday, June 29, 2018, at 4:30 pm, at 3 (Mr. Pellet) https://www.icj-cij.org/files/case-

related/172/172-20180729-ORA-02-01-BI.pdf.

152

Id. at 4.

153

Qatar v. UAE, Provisional Measures, Verbatim Record CR 2018/12,

Wednesday, June 27 2018, at 10 am, at 34 (Ms. Amirfar) (emphasis in original).

154

See CERD, art. 5, supra note 3.

155

See id., art. 2.

156

Committee on the Elimination of Racial Discrimination, General

Recommendation XXX on Discrimination Against Non-Citizens, UN doc.

CERD/C/64/Misc.11/rev.3 (2004), ¶ 26.

157

M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN

INTERNATIONAL CRIMINAL LAW 312 (2d rev. ed, 1999).

2019 Game of Thrones: The Qatar Crisis 7:1

among its definition of crimes against humanity “deportation or

forcible transfer of population.”

158

The ILC Draft Articles define

expulsion to mean “a formal act or conduct attributable to a State by

which an alien is compelled to leave the territory of that State.”

159

Exceptions include extradition, surrender to an international criminal

court or tribunal, or the non-admission of an alien to a state.

160

Distinctions arise with regard to persons unlawfully present in a

territory

161

and to refugees.

162

However, the Draft Articles “move

beyond the national laws of many states and the European Union” by

covering aliens regardless of whether they entered the state legally.

163

158

Rome Statute of the International Criminal Court art 7(1)(d), July 17,

1998, 2187 U.N.T.S. 90, (entered into force July 1, 2002). The Statute defines deportation

or forcible transfer of population to mean “forced displacement of the persons

concerned by expulsion or other coercive acts from the area in which they are

lawfully present, without grounds permitted under international law.” See id. art.

7(2)(d). Unlawful deportations or transfers are also classified as war crimes. See id.

art. 8(2)(a)(vii). The ICC also establishes “persecution” as a separate crime against

humanity—if done against an identifiable national group on grounds impermissible

under international law. See id. art. 7(1)(h). Deportation has been recognized as a

crime against humanity in each of the major international criminal instruments prior

to the ICC, including the Nuremberg Charter, the Tokyo Charter, the Allied Control

Council Law No. 10, and the statutes of the international criminal tribunals for the

former Yugoslavia and Rwanda. The long-standing definition of “deportation” as a

crime against humanity included the crime of forced population transfer within a

state’s borders.

159

Art. 2, 2014 Report, supra note 101, at 4.

160

Id.

161

For various conventional treatments of lawful or irregular aliens, see

International Covenant on Civil and Political Rights art. 13, Dec. 19, 1966, 999

U.N.T.S. 14668 (entered into force Mar. 23, 1976); Convention Relating to the Status of

Refugees art. 32, July 28, 1951,189 U.N.T.S. 150 (entered into force Apr. 22, 1954)

[hereinafter Refugee Convention]; Convention Relating to the Status of Stateless

Persons, adopted on Sept. 28, 1954, 360 U.N.T.S. 117 (entered into force June 6, 1960)

(various declarations and reservations); Convention on the Reduction of

Statelessness art. 31, Aug. 31, 1961, 989 U.N.T.S. 175 (entered into force Dec. 13, 1975).

162

See Refugee Convention, supra note 161.

163

Sean D. Murphy, The Expulsion of Aliens and Other Topics: The Sixty-Fourth

Session of the International Law Commission, 107 A

M. J. INT’L L. 164, 165–66 (2013).

Important human rights conventions do differentiate between lawful aliens and

unlawful aliens on matters of expulsion. See Convention Relating to the Status of

Refugees, Art. 32, July 28, 1951, 189 UNTS 150; International Covenant on Civil and

Political Rights, Art. 13, Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR];

European Convention on Establishment, Art. 3, Dec. 13, 1955, ETS No. 19,

2019 Penn State Journal of Law & International Affairs 7:1

In line with established international law, the Draft Articles preserve

the extraterritorial prohibition of refoulement, which protects refugees

from returning to frontiers of territories where they have a well-

founded fear of persecution based on a limited set of considerations.

164

No contracting state shall return (“refouler”) a refugee to the frontier

territories where life or freedom would be threatened.

165

ii. Individual Assessment of Circumstance

The expulsion of aliens as a group egregiously disregards the

individual assessment of circumstance, as specifically required in

several international human rights treaties and the Draft Articles.

166

available at http://conventions.coe.int/Treaty/en/Treaties/Html/ 019.htm;

American Convention on Human Rights, Art. 22(6), Nov. 22, 1969, 1144 UNTS 123,

9 ILM 673 (1970), as amended by protocols of Nov. 14, 1988, 28 ILM 156, and June

8, 1990, 29 ILM 1447; African Charter on Human and Peoples’ Rights, Art. 12(4),

June 27, 1981, 21 ILM 58 (1982); Arab Charter on Human Rights, Art. 26, May 22,

2004, reprinted in 12 INT’L HUM. RTS. REP. 893 (2005).

164

Art. 6(b), 2014 Report, supra note 101, at 10. See also Refugee Convention,

supra note 161, art. 1(A)(2) (“owing to [a] well-founded fear of being persecuted for

reasons of race, religion, nationality, membership of a particular social group or

political opinion”).

165

Refugee Convention, supra note 161, art. 33(1). See also European

Convention of Human Rights (Protocol 4) art. 3, E.T.S. No. 46 (1963); non-refoulement

is implicit in art. 3 of the European Convention on Human Rights (“no one shall be

subjected to torture or to inhuman or degrading treatment or punishment”). The

Human Rights Committee, likewise, has interpreted art. 7 of the ICCPR as

prohibiting expulsion where there is a risk of torture. See General Comment No.

20/44, ¶ 9, Apr. 3, 1992. The Committee on the Rights of the Child adopted a

General Comment on unaccompanied and separated children outside their country

of origin, noting such children should not be returned “where there are substantial

grounds for believing that there is a real risk of irreparable harm.” See General

Comment No. 6, ¶ 27, Sept. 1, 2005. See also Convention Against Torture art. 3, 1465

U.N.T.S. 85 (entered into force June 26, 1987), (applying to every such person regardless

of threats to public security).

166

See art. 9, 2014 Report, supra note 101, at 14 (Prohibition of collective

expulsion) and cmt. (1) (citing the International Convention on the Protection of the

Rights of All Migrant Workers and Members of their Families (art. 22(1)), the

American Convention on Human Rights (art. 22(9)), the European Convention on

Human Rights (art. 4, Protocol No. 4), the African Charter on Human and Peoples’

Rights (art. 12(5)), and the Arab Charter on Human Rights (art. 26(2)). See also art. 4,

2014 Report, supra note 101, at 6 (holding that “[a]n alien may be expelled only in

pursuance of a decision reached in accordance with law.”).

2019 Game of Thrones: The Qatar Crisis 7:1

Case law before the European Court of Human Rights (“ECHR”) adds

to the well-established definition of collective expulsion; such action

precludes any measure taken by a competent authority to compel aliens

as a group to leave a country, except where taken after and on the basis

of a reasonable and objective examination of the particular cases of

each individual alien of the group.

167

In the ECHR, the term “aliens”

refers to persons lawfully residing, domiciled or merely passing

through a country.

168

The focal point of review in these circumstances

relate generally to a determination that the applicant runs a real risk of

suffering ill-treatment if returned.

169

The UAE’s actions circumvent the persecution trigger

mechanism for the application of the refoulement prohibition. Qataris

express no fear of returning to their own government. However,

assessments relating to persons subject to expulsion (ratione personae)

and to the measures of expulsion (ratione materiae) depend on a

reasonable and objective examination of the particular case of each

individual alien.

170

With no specific allegation of criminality or

wrongdoing, the weight of evidence indicates that international law

prohibits the UAE’s collective expulsions,

171

or that the UAE is

167

See, e.g., Andric v. Sweden, application no. 45917/99, ECtHR (relating to

Art. 4 of Protocol No. 4—Prohibition of Collective Expulsion of Aliens).

168

See Case of Hirsi Jamaa and Others v. Italy, application no. 27765/09,

ECtHR (2012) (involving the interception of Somali and Eritrean nationals and

disembarkation to Libya by Italian naval authorities).

169

See Hilal v. United Kingdom, application no. 45276/99, sec. 60 ECRH

2011-II; See also Irizarry y Puente, supra note 117, at 264–67 (reviewing national

security expulsion factors from Latin American history).

170

See Rep. of the Int’l Law Comm’n, Fifty-Ninth Session (7 May–5 June

and 9 July–10 August 2007), ¶ 199 n. 400, U.N. Doc. A/62/10 (2007) (prohibition

of collective expulsion); ILC Drafting Committee, Progress Report on the topic ‘Expulsion

of Aliens,’ I

NT’L L. COMMISSION (July 24, 2009),

http://legal.un.org/ilc/guide/9_12.shtml.

171

See art. 5(2), 2014 ILC Draft Articles, supra note 101, at 8 (“A State may

only expel an alien on a ground that is provided for by law”); art. 19(1) of the Charter

of Fundamental Rights of the European Union (Collective expulsions are

prohibited); art. 22(9) American Convention on Human Rights; art. 26(2), Arab

Charter on Human Rights; art. 12(5), African Convention on Human and Peoples’

Rights [prohibiting mass expulsions aimed at national, racial, ethnic or religious

groups]; and art. 25, Commonwealth of Independent States Convention on Human

Rights and Fundamental Freedoms.

2019 Penn State Journal of Law & International Affairs 7:1

attempting to fabricate a national emergency shield or derogation from

immigration practices. While the Draft Articles provide for expulsion

“on grounds of national security or public order,”

172

and preclude

collective expulsions except for “enemy aliens in the context of an

armed conflict,”

173

“any form of disguised expulsion of an alien is

prohibited.”

174

Disguised expulsions contemplate constructive

expulsions, which apply to methods of expulsion that shade the

adoption of a decision to expel,

175

or, to actions intended to infringe

the human rights of the alien in question.

176

Furthermore, the Draft

Articles preclude expulsions that are “arbitrary” or “punitive in

nature.”

177

National security derogation clauses tend to hinge on one or a

combination of four factors, including: (1) a sudden and unforeseen

emergency of unknown duration; (2) the potential gravity of the

emergent situation as dangerous or life threatening; (3) the

pronouncement by an official acting under the color of state authority;

and (4) the necessity and immediacy of a response.

178

Sean Murphy

noted that “several major human rights instruments set forth

obligations relating to expulsion, but also allow for derogations from

those obligations in time of emergency.”

179

The Refugee Convention,

for instance, subjects the prohibition against refoulement to exceptions

based on national security or public order.

180

However, even in these

circumstances, which do not apply here, and “[e]xcept where

compelling reasons of national security otherwise require, the refugee

shall be allowed to submit evidence to clear [themselves] and be

172

2014 Report, supra note 101, art.7, at 12.

173

Id. art. 9(4).

174

Id. art. 10(1).

175

Id. art. 10, cmt 1.

176

Id. art. 10, cmt 2.

177

Id. art 19(1)(a).

178

U.S. Congress, Senate Special Committee on the Termination of the

National Emergency, National Emergency, hearings, 93rd Cong., 1st sess., April 11–

12, 1973 (Washington: GPO, 1973), p. 277; See also Matti Pellonpää, Expulsion in

International Law: A Study in International Aliens Law and Human Rights with

Special Reference to Finland 86–93 (doctoral dissertation, Faculty of Law, University

of Helsinki, 1984) (on derogations that threaten the life of the nation).

179

Murphy, supra note 163, at 166.

180

Refugee Convention, supra note 161, at art. 32(1).

2019 Game of Thrones: The Qatar Crisis 7:1

represented before competent authority.”

181

More generally,

comparative international law reveals a variety of procedural measures

and guarantees attaching to the expulsion of aliens.

182

Grounds for

revoking procedural guarantees based on national security or public

order still require precise application in view of individual

circumstances.

183

B. A Minor and Major Problem

The history of expulsions found notable expressions in the

twentieth century with the turmoil and aftermath of two world wars.

184

Although framed in terms of western and central European diasporas,

other examples equally affected the Muslim world. In 1947, millions of

Muslims were expelled from India to Pakistan, while millions of

Hindus and Sikhs trekked in the opposite direction—all a consequence

of partitionment following British colonial rule.

185

Other exoduses

included the flight of 750,000 Palestinian Arabs in 1948,

186

the Algerian

exodus to Morocco and Tunisia in 1956, tribal diffusions due to

decades of war in Sudan, Muslim migrations due to strife in Bosnia in

1992, and other population dispersions due to the Gulf War, the

181

Id. art. 32(2).

182

See Wojnowska-Radzińska, supra note 150, ch. 4 (on the variety of

procedural guarantees against arbitrary expulsion, including issuance by a competent

authority, notice, audi alteram partem (the right to be heard), the right of appeal,

access to counsel).

183

See id. at 136–40.

184

See generally ARENDT, supra note 122; R. M. DOUGLAS, ORDERLY AND

HUMANE: THE EXPULSION OF THE GERMANS AFTER THE SECOND WORLD WAR

(2013). See also H

ENCKAERTS, supra note 131, at 1–2 (noting numerous historical

examples including the expulsion of Jews from England (1290) and Spain (1492),

Muslims from Spain (1610), Huguenots from France (1685), Protestants from

Salzburg (1731), French-Acadians from Nova Scotia (1755), the Cherokee Nation

from Georgia to Oklahoma (1835–1838), Armenians from the Ottoman Empire

(1915–1916), and Jews from Nazi Germany).

185

William Dalrymple, The Great Divide: The Violent Legacy of Indian Partition.,

EW YORKER (June 29, 1015),

https://www.newyorker.com/magazine/2015/06/29/the-great-divide-books-

dalrymple.

186

Dawn Chatty, The Duty to be Generous (Karam): Alternatives to Rights-Based

Asylum in the Middle East, 5 J.

BRIT. ACAD. 177, 183 (2017).

2019 Penn State Journal of Law & International Affairs 7:1

Kurdish diaspora, and the Arab Spring.

187

In 1990, Saudi Arabia

expelled one million Yemenis in response to the Sana’a government’s

support of Saddam Hussein’s invasion of Kuwait.

188

More recently, the

Saudi kingdom launched another expulsion program after years of

consuming migrant labor.

189

Within a four-month period in 2013–

2014, Saudi Arabia expelled more than 160,000 Ethiopians.

190

Saudi

expulsions of Ethiopian and Yemini migrants eclipse significantly the

magnitude of the numbers involved in the Qatari case now before the

187

Khadija Elmadmad, An Arab Convention on Forced Migration: Desirability and

Possibilities, 3 I

NT’L J. REFUGEE L. 461, 462, 464, 480 (1991). Many demographic

separations and large-scale population transfers result as partitionments and remedies

for ethnic war; Ewa Tabeau & Jakub Bijak, War-Related Deaths in the 1992-1995

Conflicts in Bosnia and Herzegovina: A Critique of Previous Estimates and Recent Results, 21

Eur. J. Population 187, 189–90 2005) (noting the “extraordinary migration and ethnic

cleansing of Bosnian muslims by Serbs); Patrick Kingsley, “Arab Spring Prompts

Biggest Migrant Wave Since Second World War,” Guardian (Jan. 3, 2015),

https://www.theguardian.com/world/commentisfree/2015/jan/03/arab-spring-

migrant-wave-instability-war (noting mas migrations across much of the Arab world

due to spiraling instability since the Arab Spring). For an assessment in relation to

the propensity for violence, see generally Chaim D. Kaufmann, When All Else Fails:

Ethnic Population Transfers and Partitions in the Twentieth Century, 23 I

NT’L SECURITY 120

(1998).

188

Ian Black, Saudi Arabia Expels Thousands of Yemeni Workers, GUARDIAN

(Apr. 2, 2013), https://www.theguardian.com/world/2013/apr/02/saudi-arabia-

expels-yemeni-workers.

189

See Felix Horne, Why Saudi Arabia Must Halt the Deportation of Half a Million

Ethiopians, H

UMAN RIGHTS WATCH (Aug. 24, 2017, 8:40 AM),

https://www.hrw.org/news/2017/08/24/why-saudi-arabia-must-halt-deportation-

half-million-ethiopians; Bethan McKernan, Saudi Arabia ‘Deports 40,000 Pakistani

Workers Over Terror Fears’, I

NDEPENDENT (Feb. 13, 2017, 4:59 PM),

https://www.independent.co.uk/news/world/middle-east/saudi-arabia-deports-

40000-pakistan-workers-terror-fears-attacks-counter-terrorism-a7578151.html. The

expulsion of Yemeni workers from Saudi Arabia has been associated with the

recruitment efforts of the Houthi against anti-Saudi forces in the Yemen civil war.

See Bethan McKernan, Yemen Civil War: Saudi Expulsion of Yemeni Workers Swells Houthi

Ranks, I

NDEPENDENT (Mar. 11, 2018, 11:41 PM),

https://www.independent.co.uk/news/world/middle-east/yemen-civil-war-saudi-

arabia-houthi-yemeni-workers-expel-deport-fighters-recruitment-al-qaeda-

a8248506.html.

190

See Marina de Regt & Medareshaw Tafesse, Deported Before Experiencing the

Good Sides Of Migration: Ethiopians Returning From Saudi Arabia, 9 A

FR. & BLACK

DIASPORA: INT’L J. 228, 229 (2015) (attributing the forced return of undocumented

migrants to the indirect destabilizing effects of the Arab Spring).

2019 Game of Thrones: The Qatar Crisis 7:1

Court. Additionally, Human Rights Watch reported that Pakistan

“pushed out nearly 365,000 of [its] 1.5 million registered Afghan

refugees [between 2014–2016], as well as just over 200,000 of the

country’s estimated [one] million undocumented Afghans.”

191

The UN

International Organization for Migration (“IOM”) reported that Iran

expelled 384,506 undocumented Afghans since January 2018.

192

2017–2018, attacks by Myanmar’s armed forces against Rohingya

Muslims pushed approximately 500,000 persons into to Bangladesh,

killing thousands of civilians in the process.

193

Mohammed Abdiker,

IOM director of operations and emergencies, categorically concluded

that, since the beginning of 2018, Saudi Arabia has returned 17,000

Yemenis to their war-torn homeland that Saudi Arabian bombings

forced them to flee.

194

On July 5, 2018, the U.S. Department of

Homeland Security partially extended its 2015 Temporary Protected

Status (“TPS”) for Yemenis based on “ongoing armed conflict” that

“pose[d] a serious threat” to the “personal safety” of returning

nationals.”

195

Nevertheless, the International Rescue Committee

191

Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees,

UMAN RIGHTS WATCH (Feb. 13, 2017),

https://www.hrw.org/report/2017/02/13/pakistan-coercion-un-complicity/mass-

forced-return-afghan-refugees.

192

See Return of Undocumented Afghans, Weekly Situation Report 17-23 June 2018,

U.N.

INT’L ORG. MIGRATION (2018),

https://www.iom.int/sites/default/files/situation_reports/file/iom_afghanistan-

return_of_undocumented_afghans-_sitrep_17-23june2018.pdf.

193

Michael Safi, Myanmar Treatment of Rohingya Looks Like ‘Textbook Ethnic

Cleansing’, Says UN, G

UARDIAN (Sept. 11, 2017), https://perma.cc/7XXL-NVUX

(reporting that U.N. Official deemed Myanmar’s actions “a textbook example of

ethnic cleansing”); Mission Report of OHCHR Rapid Response Mission to Cox’s Bazar,

Bangladesh,

OFF. U.N. HIGH COMMISSIONER HUM. RTS. (Sept. 13–24 2017),

https://www.ohchr.org/Documents/Countries/MM/CXBMissionSummaryFindin

gsOctober2017.pdf.

194

See Stephanie Nebehay, U.N. Urges Saudi Arabia Not to Deport Yemeni

Migrants to War Zone, R

EUTERS (May 9, 2018, 6:45 AM),

https://www.reuters.com/article/us-yemen-security-saudi-migrants/u-n-urges-

saudi-arabia-not-to-deport-yemeni-migrants-to-war-zone-idUSKBN1IA1F7.

195

Designation of the Republic of Yemen for Temporary Protected Status, FED. REG.

(Sept. 3, 2015), https://www.federalregister.gov/documents/2015/09/03/2015-

21881/designation-of-the-republic-of-yemen-for-temporary-protected-status

(announcing TPS status for eligible Yemeni nationals residing in the U.S.). See also

Colin Dwyer, Trump Administration Renews Temporary Protected Status for Some Yemenis,

NPR (July 5, 2018, 8:43 PM),

2019 Penn State Journal of Law & International Affairs 7:1

estimated that the U.S. action “could ultimately result in the forcible

return of an estimated 400 Yemeni citizens”

196

to an active war zone

that the U.S.-supported

197

Saudi-led coalition is invading.

The small number of Qatari expulsions, framed in terms of a

much larger and ongoing problem, support the timely significance of

the application now before the Court.

198

This case focuses attention on

one aspect of a worldwide problem, as topical today as during the

marauding aftermath of WWI, yet still largely beyond the ambit of

international judicial review.

III. AN ACT OF METAPHORICAL SIGNIFICANCE?

Aside from the factual circumstances of the Qatari expulsions,

the metaphorical significance of portaging this regional drama to the

docket of the ICJ may serve the interests and performative behaviors

of multi-layered audiences, both internal to the disputants, and

external, as presented on the stage of public opinion. Construed as an

act of ceremonial profanation, Qatar’s suit conforms to the framework

analysis of sociologist Erving Goffman,

199

who noted the utility of

https://www.npr.org/2018/07/05/626242262/trump-administration-renews-

temporary-protected-status-for-some-yemenis (excluding Yemeni arrivals after

certain dates depending continuous residence and physical presence in the U.S.).

196

IRC Statement on U.S. Decision on Yemen’s Temporary Protected Status, INT’L

RESCUE COMMITTEE (July 5, 2018), https://www.rescue.org/press-release/irc-

statement-us-decision-yemen-and-temporary-protected-status.

197

See Melissa Dalton, Hijab Shah, & Timothy Robbins, U.S. Support for Saudi

Military Operations in Yemen,

CTR. STRATEGIC & INT’L STUD. (Mar. 23, 2018),

https://www.csis.org/analysis/us-support-saudi-military-operations-yemen (noting

the U.S. has provided “intelligence, military advice, and logistical support to the Saudi

Arabia-led military intervention in Yemen”).

198

In discussing the lingering effect of judicial precedent in international

law, one should always be mindful of the debate regarding art. 59 of the ICJ statute,

which holds that “The decision of the Court has no binding force except between

the parties and in respect of that particular case.” Statute of the International Court

of Justice, ICJ, https://www.icj-cij.org/en/statute. A well-regarded presentation of

the discussion can be found in R.Y. Jennings, The Judiciary, International and National,

and the Development of International Law, 45 I

NT’L & COMP. L. Q. 1, 6ff. (1996) (on the

value of international judicial precedent).

199

See generally ERVING GOFFMAN, THE PRESENTATION OF SELF IN

EVERYDAY LIFE (Garden City, N.Y.: Doubleday, 1959) (discussing the sociology of

2019 Game of Thrones: The Qatar Crisis 7:1

interaction rituals used to express both vendetta and victimology,

200

particularly when parties view negotiations as pointless.

201

Expressed

in terms of international law, the weight of the law suggests Qatar’s

suit likely will prevail. Construed by the anti-Terror Quartet as a public

act of shaming or spite, the emotional dynamics of Qatar’s suit may

not go unavenged.

202

A. Courtroom Clash as a Reputational Value

The field of international relations has turned attention to

binary explanations for causes of disputes, certainly since publication

of Samuel Huntington’s immensely influential ‘clash of civilizations’

thesis.

203

The significance of the “clash” metaphor at the level of the

ICJ reinforces the confrontation of countervailing legal principles

dispassionately deconstructed and applied by a disinterested review

body as a definitive resolution to a dispute. Peter Katzenstein and

others have dissected Huntington’s thesis, noting that it undervalues

the discrete, pluralistic and weakly institutionalized underpinnings of

the civilization idea, and that it is factually and empirically incorrect:

“most of the world’s violent clashes occur within rather than between

interaction dynamics and principles of dramaturgy); ERVING GOFFMAN,

INTERACTION RITUAL: ESSAYS IN FACE-TO-FACE BEHAVIOR (1967) (ritualizing

face-work and social interaction encounters).

200

INTERACTION RITUAL, supra note 199, at 86. Counsel for the UAE

alluded to this point in discussions regarding provisional measures. See Qatar v. UAE

Provisional Measures, Verbatim Record 2018/14, June 29, 2018, at 4:30 pm, at 6

(Pellet: “It is sometimes said, Mr. President, that States, some of them at least, exploit

the Court for their own ends. This is a textbook case!”).

201

See Hassan Hassan, There’s No Space for Qatar to Save Face, FOREIGN POL’Y

(June 29, 2017, 11:41 AM), https://foreignpolicy.com/2017/06/29/theres-no-

space-for-qatar-to-save-face/ (suggesting the anti-Qatar quartet is not interested in

negotiating).

202

See Part of Prof. David Des Roches Remarks during GIF Panel on the One Year

Anniversary of the Gulf Crisis, G

ULF INT’L FORUM 2:29 (June 15, 2018),

https://gulfif.com/part-of-prof-david-des-roches-remarks-during-gif-panel-on-the-

one-year-anniversary-of-the-gulf-crisis/ (noting the crisis has degenerated into

prideful spite actions).

203

See generally SAMUEL P. HUNTINGTON, THE CLASS OF CIVILIZATIONS

AND THE

REMAKING OF WORLD ORDER (1996) (portraying civilizations as coherent,

monolithic, and disposed to clash).

2019 Penn State Journal of Law & International Affairs 7:1

different civilizations.”

204

To construe this dispute more as a family

feud than an inter-state rivalry layers complexity onto simplistic binary

classifications. Moreover, international law and relations scholars have

rephrased binary clashes, as for instance between legitimacy and

legality,

205

legitimacy and authority, or globalization/modernization

and traditionalism.

206

These counter-positions only further simplify the

multi-tiered relational aspects involved in this case.

As the most politically liberal of the Gulf States, Qatar’s

confrontations within the region attract comparisons to this latter

binary juxtaposition as a force of modernization against tradition.

Qatar’s lack of an indigenous Ulama class of Islamic legal scholars,

powerfully established in Saudi Arabia, contributes to Qatar’s secular

characterization as more comparable to Turkey than Saudi Arabia.

207

However, presentations of this crisis in terms of the structural forces

of globalization overlook the intramural tensions within Wahhabism

and Saudi Arabia’s projection of its status as the Wahhabist

counterforce to Shi’ism. Qatar’s discomfort with Saudi Arabia’s

foreign policy, which projects a de facto alliance with U.S. and Israeli

interests as against Iran, and possible concerns about Saudi Arabia’s

stability, better account for the rudimentary intramural cause of this

crisis rather than any conclusion of a peninsular turn toward

liberalism.

208

204

Peter J. Katzenstein, A World of Plural and Pluralist Civilizations: Multiple

Actors, Traditions, and Practices, in C

IVILIZATIONS IN WORLD POLITICS: PLURAL AND

PLURALIST PERSPECTIVES 11 (2009).

205

See generally W. Michael Reisman, Kosovo’s Antinomies, 93 AM. J. INT’L L.

860 (1999); Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 E

UR.

J. INT’L L. 1, 3 (1999); Martti Koskenniemi, ‘The Lady Doth Protest Too Much’: Kosovo,

and the Turn to Ethics in International Law, 65 M

OD. L. REV. 159, 162 (2002).

206

See Khaled Fattah & K.M. Fierke, A Clash of Emotions: The Politics of

Humiliation and Political Violence in the Middle East, 15 E

UR. J. INT’L REL. 67, 68 (2009)

(reviewing literature on binary clashes).

207

Birol Baskan & Steven Wright, Seeds of Change: Comparing State-Religion

Relations in Qatar and Saudi Arabia, 33 A

RAB STUD. Q. 96, 100 (2011) (noting the

comparison to Turkey due to the lack of an indigenous Ulama class within Qatar).

208

See Craig Murray, The Qatar Conundrum, CRAIG MURRAY (June 5, 2017),

https://www.craigmurray.org.uk/archives/2017/06/the-qatar-conundrum/

(associating the blockade with the “Saudi Wahhabist mission to spread sectarian war

against the Shia” rather than on Qatar’s embrace of liberalism); Filkins, supra note 54

2019 Game of Thrones: The Qatar Crisis 7:1

The presumption of the clash metaphor is that formalized

court structures are able to dispose of these clashes by rendering a legal

judgment while not necessarily disposing of the underlying tensions.

Soft law forums may downplay the necessity of rendering judgment

while symbolically removing stigmatic spite actions to backchannel

quarters, blunting, but not necessarily disposing of, tensions magnified

by publicity and theatrics. Since 9/11, emotional dynamics associated

with interstate conflict, particularly as related to terrorism, have

received increasing scholarly attention.

209

However, the formal

mechanisms unlocking the jurisdiction of the ICJ present no

mechanism for dealing with the dynamics of spite, humiliation, or

shaming that stand behind the means of resolving this interstate

conflict.

Qatar’s appeal to the ICJ as a means to enforce compliance

with CERD and remedy a broken relationship with Gulf State

counterparts may rely on the international pressure generated by the

reputation costs associated with noncompliance with an ICJ decision.

This courtroom confrontation presents a symbolic form of dramaturgy

that allows Qatar a self-aware and voluble stage to emote before a

world audience that turns a tin ear to the plight of forced expulsions

elsewhere in the region.

210

Costs associated with defiant

noncompliance diminish a country’s reputational commitment to the

(detailing Saudi pressure, with Trump Administration cooperation, to pressure the

Palestinian Authority to agree to the settlement of the status of Jerusalem and the

West Bank on terms “radically favorable to Israel”); Wahhabbism v. Wahhabism, supra

note 23, at 5 (disassociating liberal reforms in Qatar from “freedoms as defined in

Western societies”).

209

See Khaled Fattah & K.M. Fierke, A Clash of Emotions: The Politics of

Humiliation and Political Violence in the Middle East, 15 E

UR. J. INT’L REL. 67, 68 (2009)

(on the collective sense of humiliation uniting Muslims in the post-9/11 geopolitical

climate); Alex Danchev, “Like A Dog!”:Humiliation and Shame in the War on Terror, 31

LTERNATIVES: GLOBAL, LOC., POL. 259, 260 (2006) (noting the reciprocal and self-

perpetuating consequences of invoking a state of exception to justify violations of

the rule of law in the battle against terrorism).

210

See generally THE PRESENTATION OF SELF IN EVERYDAY LIFE, supra note

199 (deriving sociological principles of communication and the art of impression

from principles of dramaturgy).

2019 Penn State Journal of Law & International Affairs 7:1

rule of law and standing in the international community.

211

Little

evidence suggests that characterizing the UAE as outside the rule of

law will serve as an inducement for or prophylactic against preserving

the efficacy of an ICJ judgment.

B. An Opportunity for the GCC?

Soft power forums present discursive environmental

opportunities removed from traditional multilateral rule-making

formats, often encumbered by asymmetrical relationships between

negotiating interests.

212

They rearrange status-conferring expressions

of decision-making by providing more flexible, informal, or hybrid

methods of discourse and agenda setting.

213

Associational groups such

as Troikas, Wise Men, IGAD, and the Arctic 5 represent examples of

intentionally innovative, flexible sub-multilateral soft law structures

designed to facilitate less formal persuasion channels of

communication.

214

The six original members of the GCC created the

organization to resemble the European Union, with the ideal of

establishing a single common market and monetary system.

215

211

Heather L. Jones, Why Comply? An Analysis of Trends in Compliance with

Judgments of the International Court of Justice Since Nicaragua, 12 C

HI.-KENT J. INT’L &

COMP. L. 57, 65 (2012) (discussing reputational costs and international community

pressure associated with circumventions of ICJ judgments).

212

See Richard L. Williamson, Jr., Hard Law, Soft Law, and Non-Law in

Multilateral Arms Control: Some Compliance Hypotheses, 4 C

HI. J. INT’L L. 59, 65 (2003)

(noting problems of asymmetrical negotiations).

213

See VAN HAM, supra note 106, at 70–71 (discussing the advantages of

more informal and smaller group formation for purposes of dispute settlement).

214

See Christopher R. Rossi, Nagorno-Karabakh and the Minsk Group: The

Imperfect Appeal of Soft Law in an Overlapping Neighborhood, 52 T

EX. INT’L L.J. 45, 61

(2017).

215

Mohammed Ahmad Naheem, Legitimacy of the Summer 2017 GCC Crisis

and Qatar’s AML Framework, 20 J. M

ONEY LAUNDERING CONTROL 405, 406 (2017).

The six members of the GCC are Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and

the UAE. See Member States, S

ECRETARIAT GENERAL OF THE GULF COOPERATION

COUNCIL, http://www.gcc-sg.org/en-

us/AboutGCC/MemberStates/pages/Home.aspx (last visited Dec. 20, 2018). An

economic growth projection report concluded that Gulf States economic

consolidation would create the ninth largest economy in the world with the potential

to become the sixth largest economy by 2030. See GCC Could Become the World’s Sixth

Largest Economy by 2030: EY, EY (Mar. 20, 2016),

2019 Game of Thrones: The Qatar Crisis 7:1

Attempts to turn the GCC into a common security organization pre-

date the organization’s formal birth in 1981.

216

Although perceived as

a stable and positive force on the Arabian Peninsula for almost four

decades,

217

key policy-makers have most recently described the

organization as “pretty much finished.”

218

According to Kristian

Ulrichsen, Qatar’s strained relationship with its Gulf neighbors

represents the barometer of post-Arab Spring politics.

219

“Just as the

uprising that ousted President Mubarak from power galvanized

demonstrators across the region, so the reinstatement of military rule

[in Egypt] sent a clear message about the embedded power of counter-

revolutionary forces and vested interests.”

220

Nevertheless, scholars have advocated for a “more insightful

appreciation” of how the sub-state institutional processes of the GCC

have contributed to the complexity of decision making in the Gulf,

221

at a minimum by serving as a forum to sustain diplomatic channels of

communication. The utility of the GCC remains, despite the broad, yet

dysfunctional outlines once oriented toward an economic union or

https://www.ey.com/em/en/newsroom/news-releases/news-ey-gcc-could-

become-the-worlds-sixth-largest-economy-by-2030 (“hovering just below Japan”).

216

See generally Christian Koch, The GCC As a Regional Security Organization,

KAS

INT’L REP. 23 (2010), http://www.kas.de/wf/doc/kas_21076-544-2-

30.pdf?1011101 (discussing the idea of a 1976 defense agreement, as well as the

GCC’s 1990 Doha Declaration on the need for a defense and security arrangement,

Saudi Arabia’s idea of a Peninsula Shield, the 2000 GCC Joint Defense Agreement,

and subsequent intelligence cooperation).

217

See Part of Amb. Anne Patterson Remarks during GIF Panel on the One Year

Anniversary of the Gulf Crisis, G

ULF INT’L FORUM 0:26 (June 15, 2018),

https://gulfif.com/part-of-amb-anne-patterson-remarks-during-gif-panel-on-the-1-

year-anniversary-of-the-gulf-crisis/ (lamenting the demise of the GCC, which

“successive American administrations have looked to . . . as an island of stability in

the Middle East.”).

218

Id. at 0:15; Part of Kristian Ulrichsen Remarks during GIF Panel on the One Year

Anniversary of the Gulf Crisis, G

ULF INT’L FORUM 0:43 (June 15, 2018),

https://gulfif.com/part-of-dr-kristian-ulrichsen-remarks-during-gif-panel-on-the-

one-year-anniversary-of-the-gulf-crisis/ (casting doubt on “any lingering hopes” for

the GCC). But see Statement of David Des Roches, supra note 202, at 0:47 (noting the

GCC may one day re-emerge after a period of dormancy).

219

Ulrichsen, supra note 25, at 182.

220

Id. at 183.

221

Thompson & Quilliam, supra note 26, at 1–2.

2019 Penn State Journal of Law & International Affairs 7:1

collective security organization. Historian Hanna Batatu explored the

deep significance of kinship, more so than professional status or

epistemic discourse, as the crucible for holding together Arab power

structures.

222

Sociologist Ali Al-Wardi distinguished Arabian

Peninsular relations in terms of tension with geographic implications

between sedentary (hadara) and more dominant nomadic (badawa)

social structures.

223

Political Scientist Nazih Ayubi hybridized Al-

Wardi’s distinction to include peninsular political tribal associations

that co-existed with the state.

224

Such expressions of group solidarity

operate well below the high political level that many strategists

envision for the GCC.

Establishing the GCC as an effective security structure to

harmonize the operability of regional security and defense systems, or

to put it again on a wishful path of interdependent economic

coordination overplays an eagerness for such integration among

autocrats and yet unduly diminishes a capacity to informally set

agendas among kith and kin. Despite familial and dynastic conflict,

fundamental and mutual concerns remain. Although they contain five

percent of the world’s population, Arab countries endured one-fourth

of the world’s conflicts between 2010–2013 and eighteen percent of

the world’s conflicts between 1948–2014.

225

Almost forty-five percent

of all terrorist attacks occurred in Arab countries in 2014,

226

contributing to an alarming Arab Gulf arms race that spent $181 billion

in 2014 alone.

227

The perceived need to preserve a stage for discussion

222

See generally Hanna Batatu, Some Observations on the Social Roots of Syria’s

Ruling, Military Group and the Causes for its Dominance, 35

MIDDLE EAST J. 331 (1981).

223

See NAZIH N. AYUBI, OVER-STATING THE ARAB STATE: POLITICS AND

SOCIETY IN THE MIDDLE EAST 50 (2009); HALIM BARAKAT, THE ARAB WORLD:

SOCIETY, CULTURE, AND STATE 49–50, 68 (1993) (discussing Al-Wardi); YOUSSEF

H. ABOUL-ENEIN, IRAQ IN TURMOIL: HISTORICAL PERSPECTIVES OF DR. ALI AL-

ARDI, FROM THE OTTOMAN EMPIRE TO KING FEISAL 3 (2012) (on Al-Wardi’s

interest in the social-psychological tension between tribes and towns and Iraqi

character).

224

See AYUBI, supra note 223, at 51.

225

Arab Human Development Report 2016, U.N. DEV. PROGRAMME 175 (2016),

http://www.arab-hdr.org/reports/2016/english/AHDR2016En.pdf.

226

Id. at 174.

227

Anthony H. Cordesman, Losing in Every Direction: The Arab Game of

Thrones, C

TR. STRATEGIC & INT’L STUD. (Jan. 30, 2018),

2019 Game of Thrones: The Qatar Crisis 7:1

suggests the viability of a soft law forum in the Arabian Peninsula,

within or without the structure of the GCC. Some form of soft law

association will outdistance GCC detractors. It is noteworthy that

throughout the duration of this embargo, “the largest and longest gas

pipeline in the Middle East,” pumping two billion standard cubic feet

per day of refined methane gas from Qatar’s Ras Laffan Industrial City

to the UAE,

228

has remained open and unaffected by the blockade. A

purposeful intent to recapture a dwindling sense of asabîyah may

account less for this uninterrupted flow than the forty-nine percent

interest in the pipeline company held by French and U.S.

conglomerates.

229

At a minimum, however, important common

commercial interests suggest a continuing basis for quiet diplomacy

and the means by which distracted major powers can facilitate de-

escalation of tensions now before the ICJ.

IV. CONCLUSION

Ibn Khaldûn’s generational theory of dynastic decline charted

the fractious, ineffective, and personalized quarrels that detract from

organized growth models and contribute to political instability and

regional upheaval. Despite “rapid economic growth” since 1990, labor

https://www.csis.org/analysis/losing-every-direction-arab-game-thrones. See also

Anthony H. Cordesman & Michael Peacock, Military Spending and Arms Sales in the

Gulf: How the Arab Gulf States Now Dominate the Changes in the Military Balance, C

TR.

STRATEGIC & INT’L STUD. 4, 5 (Apr. 28, 2015), https://csis-

prod.s3.amazonaws.com/s3fs-

public/legacy_files/files/publication/150428_gulfarmssales.pdf (noting massive

Arab Gulf state expenditures but little else to ensure “interoperability, common

training,” and integrated facilities).

228

Subsea Export Pipeline, DOLPHIN ENERGY,

http://www.dolphinenergy.com/operations (detailing the 48-inch, 364-kilometer

subsea export pipeline with a design capacity to 3.2 billion scf/day) (last visited Sept.

23, 2018).

229

The pipeline, part of Dolphin Energy’s gas project, cost $6.2 billion to

build. The Mubadala Development Company, formed by the Government of Abu

Dhabi, owns 51 percent of Dolphin Energy, with the French conglomerate, Total,

and the U.S.-based Occidental Petroleum owning 24.5 percent each. About Us,

OLPHIN ENERGY, http://www.dolphinenergy.com/about (last visited Dec. 16,

2018).

2019 Penn State Journal of Law & International Affairs 7:1

productivity in the Gulf State region continues to decline.

230

The

challenge for a new generation of Gulf leaders will be to break the

inertial bond of rentier development that impedes labor productivity

and entrepreneurialism,

231

and restore the diminished sense of asabîyah

that now results in dynastic factionalism.

Qatar has unique advantages. It has a $320 billion sovereign

wealth fund.

232

It owns more assets in London than the Queen of

England, about ten percent of the Empire State Building, Paris’s Saint-

Germain Football Club, and numerous other global holdings.

233

It is

“the world’s biggest producer of liquefied natural gas” (“LNG”),

234

controls thirty percent of this world market,

235

and dominates the Asia-

Pacific trade, “the world’s largest LNG-importing region.”

236

Qatar

230

Arab Human Development Report 2016, supra note 225, at 80.

231

Id. at 79. See also Steffen Hertog, The Private Sector and Reform in the Gulf

Cooperation Council,

LONDON SCH. ECON. & POL. SCI. KUWAIT PROGRAMME NO. 30

2 (2013), https://eprints.lse.ac.uk/54398/1/Hertog_2013.pdf (noting that “GCC

capitalists remain an appendix to the state”).

232

Mohammed Sergie, Qatar to Curb Transfers to Its Sovereign Fund Until 2022,

LOOMBERG (Mar. 14, 2018, 9:00 AM),

https://www.bloomberg.com/news/articles/2018-03-14/qatar-says-to-curb-

transfers-to-its-sovereign-fund-until-2022.

233

See Uptin Saiidi, Qatar Boasts Massive Global Holdings—Here Are Some of its

Headline Assets, CNBC (July 3, 2017, 10:03 PM),

https://www.cnbc.com/2017/07/03/qatar-boasts-massive-global-holdings--here-

are-some-of-its-headline-assets.html. See also Peter Beaumont, How Qatar Is Taking

On the World, G

UARDIAN (July 7, 2012),

https://www.theguardian.com/world/2012/jul/07/qatar-takes-on-the-world

(noting Qatar’s principal ownership of western Europe’s tallest building (London’s

Shard), Harrod’s department store, and Barclays Bank, among other ventures).

234

Sergie, supra note 232. Qatar pulled out of the Organization of Petroleum

Exporting Countries (“OPEC”) on January 1, 2019, claiming it wanted to focus on

natural gas production. Bill Chappel, Qatar Will Pull Out of OPEC, As Rift With Saudi

Arabia Deepens, NPR (Dec. 3, 2018),

https://www.npr.org/2018/12/03/672839704/qatar-will-pull-out-of-opec-as-rift-

with-saudi-arabia-deepens (announcing the pull out).

235

Frank A. Verrastro & Jon B. Alterman, Qatar Crisis: Turmoil in the GCC,

TR. STRATEGIC & INT’L STUD. (June 14, 2017),

https://www.csis.org/analysis/qatar-crisis-turmoil-gcc.

236

John Calabrese, Global LNG Markets in a State of Flux: Qatar in the

Crosshairs? M

IDDLE EAST INST. (Dec. 12, 2017),

http://www.mei.edu/content/map/global-lng-markets-state-flux-qatar-crosshairs.

2019 Game of Thrones: The Qatar Crisis 7:1

shares the world’s largest gas field with Iran,

237

which necessarily

implies the need to manage a relationship worth potentially trillions of

dollars.

238

Additionally, Qatar insures against a breakdown in that

relationship by subsidizing

239

and hosting the largest U.S. airbase in the

Middle East,

240

which provides Qatar with much needed security

insurance against Iran and increasingly, Saudi Arabia, given its supreme

disadvantage: less than fifteen percent of Qatar’s population of 2.7

million are nationals.

241

With so few citizens and so much wealth, Qatar easily insulates

its domestic population from the popular movements that have

disrupted the Arab street. A change in Saudi Arabia’s succession plan

witnessed on June 21, 2017 the Saudi king’s appointment of his son,

Mohammed bin Salman as crown prince, replacing the king’s nephew,

Mohammed bin Nayef as heir apparent to the throne. Machinations

involving that power consolidation,

242

Saudi Arabia’s badly progressing

237

Robin M. Mills, The World’s Biggest Gas Field Lies Between Qatar and Iran—

and the Race is on, B

USINESSDAY (July 20, 2017),

https://www.businesslive.co.za/bd/opinion/2017-07-20-the-worlds-biggest-gas-

field-lies-between-qatar-and-iran--and-the-race-is-on/.

238

See Harrison Jacobs, The 17 Countries Sitting on the Most Valuable Energy

Reserves,

BUS. INSIDER (AUSTL.) (Feb. 14, 2014, 3:53 AM),

https://www.businessinsider.com.au/countries-with-most-energy-reserves-2014-

2#8-qatar-11 (detailing Qatar’s 885.1 trillion cubic feet of proven natural gas reserves

at an estimated future value at current prices of $16.4 trillion).

239

See Paul McLeary, Can Trump Find a Better Deal Than the U.S. Air Base in

Qatar? F

OREIGN POL’Y (July 20, 2017, 12:23 PM),

https://foreignpolicy.com/2017/07/20/can-trump-find-a-better-deal-than-the-u-s-

air-base-in-qatar/ (noting subsidized operation costs at Al Udeid air base).

240

See Niall McCarthy, Where U.S. Troops Are in The Middle East [Infographic],

ORBES (June 7, 2017, 8:25 AM),

https://www.forbes.com/sites/niallmccarthy/2017/06/07/qatar-hosts-largest-u-s-

base-in-the-middle-east-despite-allegedly-funding-extremism-

infographic/#25e05503dc7e (calling the base the largest in the Middle East).

241

Qatar Population 2018, WORLD POPULATION REV.,

http://worldpopulationreview.com/countries/qatar-population/ (last visited Sept.

23, 2018). On Qatar’s “evasive pretense” of not releasing indigenous population data

to “hide the small size of [its] national population,” see Onn Winckler, How Many

Qatari Nationals Are There? 22 M

IDDLE E. Q. (Mar. 1, 2015),

https://www.meforum.org/articles/2015/how-many-qatari-nationals-are-there.

242

See Dexter Filkins, A Saudi Prince’s Quest to Remake the Middle East, NEW

YORKER (Apr. 9, 2018), https://www.newyorker.com/magazine/2018/04/09/a-

2019 Penn State Journal of Law & International Affairs 7:1

war in Yemen, a distracted if not inconsistent U.S. foreign policy in the

region,

243

which may have contributed to Secretary of State Tillerson’s

abrupt departure,

244

forestall coordinated action and occlude

consideration of the intramural peninsular rivalries that have long

turned the region into a game of thrones.

245

Such distractions

contribute to forms of ceremonial profanation that, on the one hand

threaten to turn Qatar into an island through construction of a moat,

and on the other hand seek an aspirational judicial resolution at the

ICJ. Such are the choices produced on a public stage.

As dysfunctional as the situation may appear, the most likely

means of restoring at least a modicum asabîyah would be to remove the

dispute from the center stage of peninsular politics, which poses a

zero-sum solution for Qatar and Saudi Arabia/UAE. Despite the

sounding death-knell of the GCC, movements off the political and

juridical center stage appear to be taking shape. Qatar should have

good reason to choose a softer route, unless it senses the generational

demise of the House of Al Saud is approaching.

saudi-princes-quest-to-remake-the-middle-east (detailing Mohammed bin Salman’s

“messy battle over succession to the throne, which American security officials

warned might destabilize the kingdom.”); Josh Lederman & Dennis Romero, CIA

Concludes Saudi Crown Prince Mohammed bin Salman Ordered Killing of Khashoggi, NBC

NEWS (Nov. 17, 2018), https://www.nbcnews.com/news/us-news/cia-concludes-

saudi-crown-prince-mohammed-bin-salman-ordered-killing-n937476 (reporting that

the CIA concluded with “high confidence” that the Saudi Crown Prince ordered the

killing of a journalist critic of the regime).

243

See Russell A. Berman, Saudi Arabia or Iran in US Strategy, HOOVER INST.

(June 19, 2018), https://www.hoover.org/research/saudi-arabia-or-iran-us-strategy

(noting the preoccupation with major and shifting strategic differences between the

Obama and Trump administrations involving the Joint Comprehensive Plan of

Action, more familiarly dubbed the “Iran Deal”).

244

See Emmons, supra note 74.

245

See Mohammed Alyahya, The Rift with Qatar as Seen in Riyadh, ATLANTIC

COUNCIL (June 13, 2017), http://www.atlanticcouncil.org/blogs/menasource/the-

rift-with-qatar-as-seen-in-riyadh (on disruptions and deceits in the Qatari royal family

dating to Sheikh Khalifa bin Hamad’s overthrow of his cousin in 1972. Hamad was

then overthrown by his son, Hamad bin Khalifa al-Thani in 1995, who began to take

a more independent tack until pressured by Saudi Arabia to abdicate the emirship to

his son, Tamim in 2013, who, in turn, is viewed with suspicion by Saudi Arabia and

its allies).