APPEALS RELATING TO THE ICAO COUNCIL'S JURISDICTION UNDER ARTICLE II, SECTION 2, OF THE 1944 INTERNATIONAL AIR SERVICES TRANSIT AGREEMENT AND ARTICLE 84 OF THE CONVENTION ON INTERNATIONAL CIVIL AVIATION.

• Author: O'Kane, Aisling

I INTRODUCTION

In July 2020, the International Court ot Justice ('ICJ') handed down its decisions in Appeal Relating to the Jurisdiction of the ICAO Council under Article II, Section 2, of the 1944 International Air Services Transit Agreement (Bahrain, Egypt and United Arab Emirates v Qatar) (1) and 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) (2) ('the Appeals').

This case note explores the three grounds of appeal raised by Bahrain, Egypt, Saudi Arabia and the United Arab Emirates ('the Appellant States') in the appellate decisions. This case note concludes that the ICJ's broad approach to the ICAO Council's jurisdiction subtly challenges the principle of consent.

II BACKGROUND

In June 2017, diplomatic relations between Qatar and the Appellant States were severed. (3) Specifically, the Appellant States implemented restrictive aviation measures with Qatar, (4) as a result of alleged breaches by Qatar of its international law obligations. (5) Qatar commenced proceedings before the ICAO Council. (6)

In response, the Appellant States raised two preliminary objections. First, that the ICAO Council lacked jurisdiction to hear Qatar's application, as the dispute involved issues beyond the Chicago Convention and the IASTA. (8) Alternatively, the Appellant States argued that Qatar's application was inadmissible. (9) Secondly, that the ICAO Council lacked jurisdiction as Qatar did not satisfy the negotiation preconditions in the Chicago Convention and the IASTA and that Qatar's application was inadmissible because it did not comply with the International Civil Aviation Organisation Rules for the Settlement of Differences ('ICAO RSD'). (10)

The ICAO Council rejected the objections, (11) and the Appellant States appealed to the ICJ, which rejected the Appeals. (12) The ICJ held that the ICAO Council has jurisdiction to decide Qatar's application and that Qatar's application is admissible. (13)

Regarding the ICJ's jurisdiction, if a treaty or convention refers a matter to the Permanent Court of International Justice, the matter is referred to the ICJ. (14) The Chicago Convention provides that ICAO Council decisions can be appealed to the Permanent Court of International Justice. (15) Accordingly, the Appeals are referred to the ICJ. (16)

However, it is unclear from the Chicago Convention whether the ICJ can hear appeals against ICAO Council decisions as to its jurisdiction. (17) In Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan), (18) the Court found that when it comes to supervising the ICAO Council, 'there is no ground for distinguishing between supervision as to jurisdiction, and supervision as to merits'. (19) Therefore, the ICJ was satisfied that it had jurisdiction to hear the Appeals. (20)

Ill RULING

1. First Ground of Appeal

   The Appellant States argued that the ICAO Council's decisions are void ab initio, (21) as the ICAO Council's procedure was 'manifestly flawed and in violation of fundamental principles of due process and the right to be heard'. (22) Specifically, the Appellant States asserted that the procedure prejudiced the requirements of a just procedure, as the ICAO Council required the incorrect voting majority, (23) voted by secret ballot, (24) and did not state reasons in the decisions. (25) The ICJ considered that the issues raised by the preliminary objections are 'objective questions of law'. (26) The ICJ held that the ICAO Council's procedure did not prejudice the requirements of a just procedure. (27) Accordingly, the ICJ rejected the first ground of appeal. (28)

2. Second Ground of Appeal

   The Appellant States argued that the ICAO Council 'erred in fact and in law in rejecting the first preliminary objection... in respect of the competence of the ICAO Council'. (29) Particularly, the Appellant States submitted that if the ICAO Council decided the dispute, it would decide issues including whether Qatar breached its international law obligations and whether the aviation restrictions were lawful countermeasures. (30) These issues are outside of the ICAO Council's jurisdiction, which is limited to deciding disputes relating to the interpretation or application of the Chicago Convention and the IASTA. (31) Alternatively, the Appellant States contended that Qatar's application is inadmissible because of 'judicial propriety'. (32) Conversely, Qatar submitted that the ICAO Council correctly rejected the Appellant States' first preliminary objection.

   1. The ICAO...