Pending Case at ICJ: Review of ICAO Decision

Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar)

In 2017, the United Arab Emirates (UAE), Saudi Arabia, Egypt and Bahrain closed their airspace to registered Qatar aircraft because Qatar breached its obligation to stop supporting terrorism in the Riydah  Agreements. 1 In response, Qatar brought proceedings to the ICAO Council by invoking Article 84 of the Convention on International Civil Aviation (Chicago Convention). 2 The ICAO Council decided in Qatar’s favour.

Today, in 2019, Qatar has become Respondent and the UAE, Saudi, Egypt and Bahrain are the Applicants in proceedings before the   International Court of Justice (ICJ). 3 The Applicants +challenge the legality of the ICAO Council decision on the ground it did not take into account their preliminary objections. 4 The ICJ Registry has fixed the dates of 27 May 2019 and 29 July 2019 as the respective time-limits for the filing of the written pleadings. 5 The ICAO is a United Nations (UN) specialised agency. It manages the administration and governance of the Convention on International Civil Aviation (Chicago Convention). The ICJ, established by the 1945 UN Charter, is the principal judicial organ of the UN. Its role is to settle disputes submitted to it by States (contentious cases) and respond to legal  questions referred to it by an authorised UN organ (advisory opinions). The ICJ has jurisdiction in the pending case according to Article 84 of the Chicago Convention alongside Articles 36(1) and 37 of the ICJ Statute. 6

The Applicants have requested the ICJ to adjudge and declare that the procedure adopted by the ICAO Council in rendering its decision was manifestly flawed and violated fundamental principles of due process and the right to be heard. 7 Further, that the ICAO Council is not competent to adjudicate upon the disagreement and that the ICAO Decision is hence null and void without effect. 8

If the ICJ finds in favour of the Applicants, the airspace regions will remain closed to Qatar- registered aircraft. If the ICJ finds in favour of Qatar, it will free the flow of aircraft in and around its borders. While issues pertaining to the dispute relate solely to the judicial competence of the ICAO Council, the ICJ must be careful not to render a decision that has negative implications on the sovereignty of any State concerned.

The airspace of every State is as much their sovereign territory as is their land and sea. The ICJ must be cautious to strike a balance between the sovereignty of Qatar and the freedom of movement of its citizens, against the sovereignty of the airspace of the Applicants.

While all States are sovereignly equal, in the past, where there has been an application in the ICJ by one small State against various other larger States, the latter have prevailed (see, e.g. the application of Marshall Islands against the nuclear weapon States: Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, (Judgment) (2016) I.C.J. Rep 833). This is not due to inequality among the nations, but it may be due to the cumulative impact of the sovereignty of multiple States competing with the sole impact of a single sovereign State. The decision will speak for itself.

Finally, the ICJ must be careful not to adjudicate on the contentious issue that gave rise to the dispute in the first place: Qatar’s breach of the Riyadh Agreements by harbouring terrorism and undermining international law. These substantive issues are extremely  sensitive and controversial, but only relevant to the dispute to the extent that it gave rise to the proceedings concerning the legality of the ICAO Decision.

By: Mikayla Brier-Mills
LL.B (First Class); GDLP (ANU); BCL (LL.M Oxon, pend.), Teaching Fellow, Legal Foundations and Constitutional Law, Bond University Australia, Graduate Law Clerk, International Aerospace Law & Policy Group (IALPG)

Endnotes

  1. Joint Application Instituting Proceedings, Appeal Against a Decision of the ICAO Council Dated 29 June 2019 on Preliminary Objections (Application (A)) (Filed in the Registry of the Court on 4 July 2019) [8].
  2. Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) Art 84.
  3. Application Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and UAE v. Qatar) (2019) ICJ Rep (Pending).
  4. ICAO Decision, On the Preliminary Objection in the Matter: the State of Qatar and the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia and the UAE (2017) – Application A (29 June 2018) (Annex I)
  5. ICJ Press Release, Application Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and UAE v. Qatar); The Court directs the submission of a Reply by the Applicants and a Rejoinder by the Respondent and fixes the time-limits for the filing of these written pleadings (No. 2019/13) (1 April 2019). Accessed: <https://www.icj-cij.org/files/case-related/173/173-20190401-PRE-01-00-EN.pdf>
  6. Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) Art 84; ICJ Statute (1945) Arts 36(1), 37.
  7. Joint Application Instituting Proceedings, Appeal Against a Decision of the ICAO Council Dated 29 June 2019 on Preliminary Objections (Application (A)) (Filed in the Registry of the Court on 4 July 2019) [26], [28]-[31].
  8. Ibid [32].
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