This article has been written by Anuja Pethia.

Introduction

Tensions between Qatar and the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates had escalated during the Arab Spring of 2011, when the two sides seemed to have backed different sides. In 2017, Bahrain, Egypt, Saudi Arabia and UAE issued a list of demands to Qatar which included shutting down the TV network Al Jazeera, downgrading diplomatic ties with Iran and to stop its alleged support to certain “terrorist groups”.  

Soon afterward, in June, 2017 Bahrain, Egypt, Saudi Arabia and UAE severed diplomatic ties with Qatar and adopted restrictive measures against it for failing to meet the above demands. As part of the restrictions, all Qatar-registered aircraft were barred from landing or departing from these countries. They were also denied overfly over their territories. Qatar filed an Application before the Council of the International Civil Aviation Organization (“ICAO Council”) stating that the restrictive measures adopted by Bahrain, Egypt, Saudi Arabia and UAE are violative of the Chicago Convention.

The Chicago Convention and the International Court of Justice

The ICAO Council rendered an interim decision on its jurisdiction to decide the Application moved by Qatar on 29.06.2018, ruling that it had jurisdiction to decide the disagreement between the Parties. Dissatisfied by the Decision, Bahrain, Egypt, Saudi Arabia and UAE instituted an Appeal in the International Court of Justice (the “ICJ”) on 04.07.2018, impugning the ICAO Council’s Decision. The Appeal was filed under Article 84 of the Convention on International Civil Aviation (the “Chicago Convention”).

The Chicago Convention establishes rules of airspace, aircraft registration and safety and has been signed by nearly 193 countries. Interestingly the date of the signing of the Chicago Convention i.e 7th December, 1944 is also celebrated as the International Civil Aviation Day.

Article 84 of the Chicago Convention relates to settlement of disagreements between State Parties with regard to interpretation of the Convention. If State Parties disagree on an interpretation and cannot settle the disagreement by negotiation, either of them can apply to the ICAO Council to settle their disagreement. An Appeal from the ICAO Council’s decision lies to an ad hoc arbitral tribunal or to the International Court of Justice.

Proceedings before the ICAO Council

Bahrain, Egypt, Saudi Arabia and UAE objected to Qatar’s Application on two preliminary grounds. First, that the ICAO Council lacked jurisdiction to decide on the Application as the dispute was not one of interpretation of the Chicago Convention but that of countermeasures under international law for Qatar’s persistent breaches of international law. The second objection was that negotiation is a precondition before applying to the ICAO, which Qatar failed to meet. Thus, they argued, Qatar’s Application was inadmissible. The ICAO Council rejected both the above grounds.

Appeal before the ICJ

Could the ICJ hear an Appeal from an interim decision of the ICAO?

The ICJ referred to its decision in Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan). The ICJ in this Appeal had held that the purpose of providing for an appeal to the ICJ in the Chicago Convention, was to promote good functioning of the ICAO Council. Therefore, the validity of a decision by the ICAO as to its own jurisdiction to decide upon a matter is a decision that is critical to ICAO’s good functioning as it relates to the correct implementation of the Convention. Therefore, it must be admissible before the ICJ. 

Relying on this reasoning given in India v. Pakistan, the ICJ ruled that it has a supervising role over the ICAO Council as far as its dispute settlement functions under Article 84 are concerned. 

The ICJ then went on to adjudicate on the substantial questions of law raised by the Appellants.

Whether the measures taken by Bahrain, Egypt, Saudi Arabia and UAE related to civil aviation restrictions or were they lawful countermeasures against Qatar’s breaches of international law?

The Appellants argued that Qatar had breached its counter-terrorism obligations under international law and had interfered in the internal affairs of the Appellant States. They submitted that the “real issue” was Qatar’s persistent violations of its obligations under international law other than the obligations under the Chicago Convention. Therefore, aviation restrictions amounted to lawful countermeasures.

Qatar on the other hand submitted that the ICAO Council has jurisdiction to decide any case that relates to a disagreement regarding interpretation of the Chicago Convention. Qatar’s prayer before the Council was to urge Bahrain, Egypt, Saudi Arabia and UAE to withdraw restrictions imposed on Qatar-registered aircraft, to comply with the Chicago Convention and to cooperate to safeguard international civil aviation, which related to the interpretation of the Chicago Convention. It submitted that there is nothing in Article 84 or the ICAO Rules for the Settlement of Differences that puts any limit on the Council’s jurisdiction under Article 84. 

Thus, the question that the ICJ had to decide was whether the dispute brought by Qatar before the ICAO Council is a disagreement between the Appellants and Qatar relating to the interpretation of the Chicago Convention, as defined in Article 84. 

The ICJ answered this question in the affirmative. The Court agreed that the disagreement had arisen in a “broader context”, but that by itself did not deprive the ICAO Council from exercising its jurisdiction under Article 84. The ICJ noted that legal disputes between States by their very nature occur in political contexts. This by itself doesn’t change the nature of the dispute.

The ICJ summarily rejected Bahrain, Egypt, Saudi Arabia and UAE’s claim that the aviation restrictions were lawful countermeasures, and because of their character as such, could not be raised before the ICAO Council. The ICJ again relied on India v. Pakistan to quote that, “The fact that a defence on the merits is cast in a particular form, cannot affect the competence of the tribunal or other organ concerned, otherwise parties would be in a position themselves to control that competence…”

Can the ICAO Council consider issues falling outside the scope of the Chicago Convention to settle a disagreement?

The Appellants submitted that resolution of Qatar’s claims will necessarily require the ICAO Council to adjudicate upon matters over which it does not possess jurisdiction. This would lead to judicial impropriety, as the States have not consented to the ICAO Council exercising jurisdiction over issues that are not within Article 84 of the Chicago Convention.

The ICJ observed that the ICAO Council is not a judicial body, but a permanent organ responsible to the ICAO Assembly for exercising administrative and executive functions as well. Therefore, “judicial propriety” does not apply to it.

It further held that the integrity of the Council’s judicial function would not be affected if the Council examined issues outside matters of civil aviation for the sole purpose of deciding a disagreement under Article 84 of the Chicago Convention. 

Is it necessary for States to negotiate before applying to the ICAO Council under Article 84?

The ICJ held that the precondition of negotiation must be met in order to establish the ICAO Council’s jurisdiction. The Appellants submitted that Qatar did not make any genuine attempts to settle the dispute. Qatar stated that immediately after aviation restrictions were imposed in June, 2017, it wrote to the ICAO Council to convene a meeting and consider the airspace blockade. Qatar also referred to the ICAO Council’s extraordinary session held in July, 2017, where Qatar had formally requested the Appellants to lift the blockade.

The Court concluded that the above actions taken by Qatar constituted genuine attempts within the ICAO to negotiate the disagreement with Bahrain, Egypt, Saudi Arabia and UAE and determined that when Qatar had filed the Application before the ICAO Council, settlement by negotiation between the Parties was not a realistic possibility.

The ICJ unanimously rejected the Appeal, and by 15 votes to 1 held that the ICAO Council has jurisdiction to entertain Qatar’s Application.

The path ahead

The ICJ’s Judgment has shifted the stage of the legal dispute from the Hague  back to Montreal, where the ICAO headquarters are located. With questions over its jurisdiction now settled by the ICJ, the ICAO Council will proceed to decide Qatar’s Application. The ICAO Council will rule on issues touching upon limits of air blockade that can be imposed by countries, right to overfly, and restrictions related to obtaining prior approval from the civil aviation authorities, which will further evolve the global regulatory framework for the aviation sector. 

The ICAO Council’s decision will have interesting ramifications on the right to lawful countermeasures in international law vis-à-vis international civil passenger aviation. The decision will also be very relevant in the political context of the subcontinent. It may be recalled that India and Pakistan have put restrictions on the overflight of each other’s aircrafts several times in the past decade. In October 2019, the ICAO Council had rejected India’s complaint regarding the denial of use of Pakistan’s Airspace for the Indian Prime Minister’s overflight. The ICAO Council had ruled that the Chicago Convention only applied to Civil Aviation and the aircraft’s carrying heads of government were “state aircraft” and therefore beyond ICAO’s provisions.

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