ICJ'S ICAO Judgment & Justiciability of Political Aspects in a Dispute

The Bahrain v. Qatar Case: An Overview

In June 2017, the Kingdom of Saudi Arabia, the United Arab Emirates, the Arab Republic of Egypt and the Kingdom of Bahrain [hereinafter referred to as the Four States] had cut diplomatic relations with the State of Qatar (Kerr, 2017), accusing it of supporting and harbouring terrorist and sectarian groups, such as the Muslim Brotherhood, causing instability and extremism in the region. Apart from recalling their diplomatic missions, ordering all Qatari nationals to leave their countries, banning Qatari businesses like the Qatar Airways, blocking their nationals to travel to and fro from Qatar, the Four States also imposed an air and sea blockade on Qatar, blocking Qatari ships from docking at their ports and preventing Qatari aircrafts from entering their airspace.

Qatar rejected the allegations, calling the blockade illegal and violative of the Convention on International Civil Aviation, 1944, also known as the Chicago Convention, which had led to the formation of the International Civil Aviation Organisation (ICAO), the UN’s international aviation agency. Qatar, in October 2017, commenced proceedings against the Four States in the ICAO Council, filing one proceeding under the Chicago Convention, arguing that the airspace restrictions were in direct violation of the Four States’ obligations under the Chicago Convention, and the other proceeding under the International Air Services Agreement, 1944 (IASTA).

The Four States raised two preliminary objections to Qatar’s application and the admissibility of the proceedings commenced by Qatar; firstly, that the ICAO lacked jurisdiction under the Chicago Convention, as the matter involved in the issue was whether the countermeasures taken by the Four States lawfully under the Riyadh Agreement, hence extending beyond the scope of ICAO; and secondly, that Qatar had failed to satisfy the Chicago Convention’s negotiation precondition. In June 2018, the ICAO Council, by a vote of 23-4 (with 6 abstentions), rejected the preliminary objections raised by the Four States, and continued to hear the matter. Aggrieved, the Four States, under Article 84 of the Chicago Convention, appealed the same before the International Court of Justice.

Court’s Judgement

First Ground of Appeal

The Four States had, as per the First ground of appeal, argued that the measures taken by them were in response to Qatar’s repeated and persistent breaches of its obligations towards other States, and international law. According to them, Qatar had repeatedly violated counterterrorism, anti-money laundering and arms funding amongst other international laws and its obligation to not to interfere in the internal matters of the Appellants, amongst other breaches of obligations, especially under the Riyadh Agreement. They argue narrowing down the dispute to just airspace closures and separating it from broader issues cannot be judged in isolation, therefore, the ICAO lacks jurisdiction to adjudicate the case.

The ICJ held that the disagreement between the Parties brought before the ICAO Council involves the interpretation and application of the Chicago Convention and its Annexes, and therefore falls within the scope of Article 84 of the Chicago Convention, and that merely because the dispute arose in a broader conflict, does not deprive the ICAO Council of its powers and jurisdictions under Article 84 of the Convention. The ICJ had in the case of United States Diplomatic and Consular Staff in Tehran (United States of America v. Islamic Republic of Iran) (1980), held that disputes between sovereign nations are very likely to arise in long standing political and regional contexts, and they only form one element in the wider dispute, so as so when they are to be adjudicated by international bodies, the ruling is only for that specific element, and is not a ruling on the entire wider dispute. The ICJ also rejected the contentions of the Four States, that just because they characterize their measures as lawful countermeasures, the ICAO Council loses its right and jurisdiction to hear the aggrieved party [Qatar]. Relying on the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) (1972), the ICJ held that just because a defence based on countermeasures is raised in a proceeding on the merits before the ICAO Council, does not in itself, and of itself, have any effect on the ICAO Council’s jurisdictions as laid down in Article 84 of the Convention. Therefore, the ICJ held that the ICAO Council did indeed have the jurisdiction to adjudicate the case.

Second Ground of Appeal

Coming to the second ground of appeal, as to whether Qatar’s application in the ICAO was inadmissible, and did the ICAO erred in rejecting the Appellant’s preliminary objections, the ICJ found that the appellants did not elaborate and argue on this relief, and instead relied on the same arguments [arguing ICAO lacked jurisdiction]. The ICJ, relying on the Oil Platforms (Islamic Republic of Iran v. the United States of America) 2003, stated that objections to admissibility are only accepted when there exists a legal reason, even when there is jurisdiction, as to why the Court should decline to hear the case. The Court held that even if the ICAO examined issues falling outside matters of civil aviation solely for the exclusive purpose of settling a dispute falling within Article 84 of the Convention, would not harm the integrity of the ICAO Council’s dispute resolution function. That is, the Court found that Qatar’s application was not inadmissible, as there was no legal reason to not to hear the case. Coming to another contention raised by the Appellants, that Qatar did not fulfil the negotiation precondition mentioned in Article 84, the Appellants urged the Court to follow its own findings that States should at least attempt to negotiate in disputes related to treaties, as held in International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) 2011 and urged it to follow the jurisprudence. The Court after examining all the findings found that Qatar did indeed make genuine attempts to negotiate, which failed, it need not examine this argument. The Court held that the ICAO Council did not err in rejecting the preliminary objections raised by the Four States.

Third Ground of Appeal

The final and third ground of appeal was that the ICAO did not grant Due Process to the Appellants and violated its own rules. The Appellants argue that the Decision of the ICAO Council did not state the reasons on which it was based, deliberations were not held before announcing the decision, not being given enough time to present their case and the use of secret ballots for voting, despite being requested [by the Four States] to vote openly violated the principles of equality of parties and the right to be heard.

The ICJ held that, in the judgement of Appeal Relating to the Jurisdiction of the ICAO Council (Republic of India v. Islamic Republic of Pakistan) 1972, the Court had held that the ICAO Council had reached the correct decision and that the procedural irregularities alleged did not prejudice in any fundamental way the requirements of a just procedure. The Court had held that mere procedural irregularities cannot annul a legally correct decision arrived at by the ICAO Council, and the Court had no need to examine whether or not to annul the decision only on the basis of non-fundamentally affecting procedural irregularities.

The ICJ, therefore unanimously rejected the Appeal brought by the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates against the International Civil Aviation Organisation’s Decision by the Council; and

by 15 to 1, held that the ICAO’ Council has the jurisdiction to entertain and adjudicate the application brought by the State of Qatar in October 2017 and that it is admissible.

Dissenting Opinion

The ICJ although unanimously rejected the appeal brought by the Appellants, Justice Franklin Berman dissented. While he agreed with the ICJ on rejecting the Appellant’s appeal, he expressed his disapproval on the Court’s decision that the ICAO Council has the jurisdiction to entertain the application brought by Qatar. Judge Berman protested against the ICJ’s expansive definition and widening ambit and competence of the ICAO. He protested the treatment of the ICAO as some sort of a judicial or quasi-judicial body, which it was not. The Judge took the issue of the Court’s language when it said that it has the ‘jurisdiction to entertain the application’, when it could have said that it can ‘see the Council carrying out [its] high administrative function’. Judge Berman was also not happy with the Court’s treatment of downplaying and ignoring the alleged procedural irregularities during the ICAO Council’shearing and voting process.

Justice Antonio Augusto Cancado Trindade penned a concurring separate opinion, for he did not follow the reasoning the ICJ [majority] used to adjudicate the appeal. Though he agreed with the Court on most aspects, in his Separate Opinion, he argued that the so called ‘countermeasures’, as argued by the Appellants, have a lack of foundation, as while drafting and adopting the Articles of Responsibility, the International Law Commission found that many participants [nations] did not find it in accordance with the law of nations. Similar thing was felt in the debates in the VI Committee of the United Nations General Assembly. Judge Trindadeheld that Courts should not be so blinded in finding the ‘Will’ of the nation, that is losing sight and fails to deliver justice. He held that when a nation ratifies any treaty or convention, it automatically signifies it’s will and that human conscience, principles of natural justice, and legal order of the international community stand well above the ‘Will’ of the states. He stated that the ICJ cannot remain hostage of State’s Consent, and that the present case reveals the importance of awareness of the historical formation of the law of nations, as well as the [ICJ’s] faithfulness for the realization of justice, which prevails over the will of States.

Justice Kirill Gevorgi an appended a Declaration to the Judgement of the Court, disagreeing with the ICJ’s holding that the ICAO Council can ‘go beyond to address and examine matters unrelated to civil aviation as part of its civil aviation function.’ Judge Gevorgian held that the Court went too far and appeared to endorse a widely expanded definition of the Council’s competence. He held that the ICAO Council’s competence should be held as it is clearly defined in Article 84 of the Convention. He stated that while the ICJ in its decision itself accepted that the Council is not a judicial body but is still applied principles like ‘judicial propriety’, which can only be held against a judicial body. In his view, the ICAO Council, under Article 84 of the Convention, and Article 2, Section of IASTA, 1944, has a very narrow mandate, and that is dispute settlement relating solely to the interpretation and application of ICAO Treaties and Rules, and not to ‘consider any question of international law’. He disagreed with the ICJ’s reliance on the United States Diplomatic and Consular Staff in Tehran (United States of America v. Islamic Republic of Iran) (1980). Therefore, Justice Gevorgian protested against the expansion of ICAO Council’s ambit, and its treatment as a judicial body.

Implications

The Bahrain et al v. Qatar case did not contain any new major pronouncement of laws, as it heavily relied on the well-set jurisprudence, and followed the precedent it had set in the India v. Pakistan case, and formed jurisprudence constante, a consistent and reliable direction in which a court leans while dealing with certain issues. However, this judgement laid down a very big change in how international organisations and bodies could function.

The implication of this judgement is that it may have an effect on the dispute resolution mechanisms of international organisations. This judgement, at a minimum, affirmed that an organisation is entitled to examine ancillary and broader matters [of the entire dispute] that may lie outside its jurisdiction so as to decide whether jurisdiction is properly founded(Gaver, 2020). That is, this judgement, implicitly and effectively turns all adjudicative bodies and organisations like the ICAO Council, the WTO Panels and Appellate Bodies, amongst others as ‘Quasi-Judicial bodies.’

This is one of the biggest criticisms of this judgement. The ICJ did expand, willingly or unwillingly, the competency and definition of the Council of ICAO, and of other dispute resolution bodies, and it is very much possible that member states in the future would be highly influenced by their political agendas and non-legal considerations while hearing ‘matters beyond civil aviation’. This judgement has raised apprehensions that the ICAO Council would slip from being a primarily technical and administrative institution to a politically motivated quasi-judicial body, which could de-rail or investigate matters absolutely unrelated to its mandate, and in turn, influence the dispute. This apprehension is the reason Justice Gevorgian & Justice Berman have differed from the ICJ (majority’s) holding.

This apprehension is not unfounded because the Representatives (of Members States) who sit in such tribunals, adjudicative and dispute settlement bodies, such as those on the ITLOS or WTO Panels, are typically not chosen because of their legal acumen, but instead of their ability to be diplomats, and expertise in such matters [such as expertise in aviation, sea and territorial matters]. These members represent their own State’s interests, and thereby, make such bodies more of a political rather than an adjudicatory body (Lum, 2020). By giving them the power to examine issues outside their purview, would give them an easy tool to harass, delay and interfere in the dispute, instead of settling it.

The ICJ’s expansive approach, by increasing the ambit and jurisdiction of international organisations, admittedly stretches the limits of state consent to international dispute settlement (Ventouratou, 2020). This comes at a time when international institutions and organisations are already facing a lot of skepticism and criticism [the WHO for its failures in handling the SARS CoV-2 pandemic; the UN, WTO, WHO, UNHRC, ICC facing flak and stringent measures from the belligerent United States; the ITLOS & UNCLOS from China; OPCW from Russia] and many more. Certain countries like the United States and the United Kingdom are already skeptical of the powers of international adjudicative bodies [US blocked appointments to the WTO Appellate Body due to alleged judicial overreach (Board, 2019)], and therefore, it can only be expected that this decision of the ICJ will only further fuel these sentiments.

References

Kerr, Simeon. 2017. Saudi Arabia, UAE, Bahrain and Egypt cut ties with Qatar. Financial Times. [online] June 5, 2017. [Cited: December 18, 2020.] <https://www.ft.com/content/dc24473c-499e-11e7-a3f4-c742b9791d43>.

Ventouratou, Anna. 2020. Defences and indispensable incidental issues: the limits of subject-matter jurisdiction in view of the recent ICJ ICAO Council judgements. European Journal of International Law. [online] July 23, 2020. [Cited: December 23, 2020.] <https://www.ejiltalk.org/defences-and-indispensable-incidental-issues-the-limits-of-subject-matter-jurisdiction-in-view-of-the-recent-icj-icao-council-judgments/>.

Board, Editorial. 2019. WTO judge blockage could prove 'the beginning of the end'. Duetsche Welle. [online] December 10, 2019. [Cited: December 23, 2020.] <https://www.dw.com/en/wto-judge-blockage-could-prove-the-beginning-of-the-end/a-51613082>.

Lum, Melvin. 2020. ICJ judgement on the jurisdiction of the ICAO Council: 'off chocks', but will it take off? International Bar Association. [online] October 08, 2020. [Cited: December 23, 2020.] <https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=3E25F8E8-0105-4531-B502-F38C27C54C4C>.

Gaver, Craig Daniel. 2020. Deja Vu All Over Again: ICJ Rules on the Jurisdiction of the ICAO Council in Relation to the Gulf Dispute. Opinio Juris. [online] July 29, 2020. [Cited: December 23, 2020.] <http://opiniojuris.org/2020/07/29/deja-vu-all-over-again-icj-rules-on-the-appellate-jurisdiction-of-the-icao-council-in-relation-to-the-gulf-dispute/>.