ICJ judgment on jurisdiction of the ICAO Council: ‘off chocks’, but will it take off?

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Melvin Lum^[1]

WongPartnership

Introduction to the ICAO and its Council

The ICAOcame into being on 4 April 1947, following the ratification of the Chicago Convention by 26 States. It is today one of the largest specialised organisations of the United Nations. Conceived at the tail end of the Second World War, the Chicago Convention has laudable objectives. Thesecan be seen from its preamble, which expressly recognises that international aviation can greatly help to create and preserve friendship and understanding among nations, and yet its abuse can be a threat to the general security. It counts as its aim the avoidance of friction and promotion of cooperation between nations.

The mission of the ICAO is to ‘serve as the global forum of States for international civil aviation’ and to ‘develop policies and Standards, undertake compliance audits, perform studies and analyses, provide assistance and build aviation capacity through other activities and the cooperation of its Member States and stakeholders.’^[3]Its five strategic objectives are in the areas of safety; air navigation capacity and efficiency; security and facilitation; economic development of air transport; and environmental protection.

The sovereign body of the ICAO is the General Assembly (‘the Assembly’), which is composed of all Member States^[4] of the Chicago Convention. The executive body of the ICAO is its Council, composed of 36 States elected by the Assembly for a period of three years. Decisions made by the Council are taken by majority. The Council’s important and usual functions cover the adoption of international Standards and Recommended Practices, administering the finances of ICAO, submitting annual reports to the Assembly, carrying out the directions of the Assembly and discharging the duties and obligations which are laid on it by the Chicago Convention.^[5] One of its lesser-exercised functions, pursuant to Article 84 of the Chicago Convention, is to decide on disagreements relating to the interpretation or application of the Chicago Convention between contracting States. Since the ICAO was established, seven disputes have been referred to its Council under Article 84 of the Convention. To date, none of these seven matters have resulted in the Council issuing a decision on the merits of the case. This is bad for jurisprudence, but may be helpful in terms of clarity and scope of perspective.

The International Court of Justice (ICJ) recently made its decision, following challenges to the jurisdiction of the ICAO Council, to decide on the disagreements between its contracting States. In a judgment in the dispute between Qatar v Bahrain, Egypt, Saudi Arabia and United Arab Emirates (UAE), the ICJ upheld the Council’s decision on its jurisdiction over a disagreement, which concerned the closure of airspace and suspension of flights imposed by the other parties on Qatar.

The dispute

In June 2017, Bahrain, Egypt, Saudi Arabia and UAE (the ‘Four States’) imposed aviation restrictions on Qatar, which included denying all Qatar-registered aircraft the right to overfly the Four States’ respective territories and from landing at or departing from their airports. This was said by the Four States to be in response (they were called ‘lawful countermeasures’) to Qatar’s alleged breaches of obligations arising from the Riyadh Agreements that concerned internal affairs, media, security and stability of the Gulf Cooperation Council countries.

When Qatar initiated proceedings before the Council, claiming that the aviation restrictions were in violation of the Four States’ obligations under the Chicago Convention, the Four States raised the preliminary objection that the Council lacked jurisdiction to determine the dispute as the substantive issues involving matters extending beyond the scope of the convention.

In June 2018, the ICAO Council rejected, by 23 votes to 4, with 6 abstentions^[6], the preliminary objections on jurisdiction. Pursuant to Article 84 of the Chicago Convention, the Four States appealed to the ICJ against the Council’s decision.

ICJ’s decision dated 14 July 2020

Three grounds of appeal were and none were successful, resulting in the ICJ rejecting the appeal brought by the Four States. These three grounds are briefly summarised.

First ground: due process was denied

The Four States argued that they were denied due process in the procedure before the Council. Among others, the Four States’ criticisms were that the Council did not give reasons for its decision; voted on its decision by secret ballot; did not give enough time to the Four States to present their cases; and incorrectly required 19 instead of 17 votes to uphold the preliminary objections.^[7]

This first ground was rejected and the brief reason given by the Court was that the issues posed by the preliminary objections were objective questions of law and that the procedures taken by the Council did not prejudice, in any fundamental way, the requirements of a just procedure. This was especially since the Court had first decided on the second and third grounds of appeal and rejected them.

Second ground: – Council does not have jurisdiction to adjudicate on Qatar’s claims, which necessitated determining issues of international law that goes beyond the scope of the Chicago Convention

The ICJ first determined that Qatar’s submitted claims did concern a disagreement between itself and the Four States, pertaining to a number of provisions of the Chicago Convention and its Annexes. This triggered Article 84 of the convention and by itself was dispositive of the second ground of appeal. The ICJ was also able to adopt the reasoning in an earlier decision where it determined that ‘its competence must depend on the character of the dispute submitted to it and on the issues thus raised – not on those defences on the merits, or other considerations, which would be relevant only after the jurisdictional issues had been settled.’^[8]

Third ground: Council erred in rejecting the preliminary objection that Qatar had failed to satisfy the negotiation pre-condition before submitting its Article 84 application for decision to the Council

The ICJ found that the pre-condition was satisfied as Qatar did make a genuine attempt to negotiate. Such attempts can be made outside of bilateral diplomacy and exchanges that take place in an international organisation are also recognised as established modes of international negotiation.

Where does the Council go from here?

The outcome reached by the Court is seemingly uncontroversial and the path has been cleared for take-off. Whether a determination on the merits of the case eventually materialises from the Council remains to be seen and it would emerge as the first of its kind if so.

One seemingly innocuous comment contained in the ICJ’s Judgment highlights a fundamental issue faced by the Council.^[9]Paragraph 125 of the ICJ’s Judgment contains a remark from the Court that it ‘will be best positioned to act on any future appeal if the decision of the Council contains the reasons of law and fact that led to the ICAO Council’s conclusions.’

The Council’s decision on its jurisdiction over the claims submitted by Qatar was arrived at through a secret ballot. In the appeal, the Court did not have the benefit of being able to examine the reasons for the Council’s decision. Quite apparently, the remarks at paragraph 125 of the judgment were prompted by the Court being concerned that it may, in the future, be faced with an appeal against a decision of the Council on the substantive merits of Qatar’s claim, yet not knowing why or how the decision was reached.

This highlights the awkward position that the Council is put in when it is called to decide on a disagreement between contracting States. Members of the Council are made up of government representatives from the elected contracting states who are grouped in three categories: states of chief importance in air transport; states not otherwise included but which make the largest contribution to the provision of facilities for international civil air navigation; and states not otherwise included whose designation will ensure that all major geographic areas of the world are represented on the Council. The members are not typically selected by their respective states because of their legal training, but instead for their ability to be diplomats, or for their expertise in aviation matters.

Its members represent their own state’s interests, resulting in the Council being more a political than an adjudicatory body. A Council member may exercise his vote being motivated more by his state’s interests than by reasons of justice and fairness. Even the ICJ (at paragraph 60 of the Judgment) recognised that the Council ‘is a permanent organ responsible to the ICAO Assembly, composed of designated representatives of the contracting States elected by the Assembly, rather than of individuals acting independently in their personal capacity as is characteristic of a judicial body.’The Court added that the ICAO Council is not a ‘judicial institution in the proper sense of that term.’

Moreover, given the (easy) option provided by the Standing Rules of Procedure for the Council (that voting can be by secret ballot and the ease of putting that option into effect)^[10], it is difficult to see how the members will jettison this option, since they can legitimately vote without having to worry about justifying their vote or ever having it known how they voted.

It may thus be wishful thinking on the part of the ICJ in expressing its hope to obtain the reasons of law and fact for its decision on the substantive merits of the disagreement. While jurisdiction to entertain Qatar’s claims was rightly found by Council, the decision on the substantive merits of the disagreement is far more complex. It entails the determination of the merits of the defences raised by the Four States: those defences clearly lie outside the parameters of the Chicago Convention. How the Council, given its composition and limitations, will manage this is both intriguing and unenviable.

Some may wait with bated breath for the Council’s decision on the merits of the claims, but it may be apt to first recall the time when the Chicago Convention was conceived and reflect upon whether the Council performing the function of a judicial institution was ever intended. The Council is now beset with a heavy, complex and unfamiliar burden. Perhaps we will not see a formal decision from Council in this dispute, but that may not be a bad thing.

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