Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar [2020] ICJ 173 (Judgment 14 July)
International Court of Justice
Facts
[21] On 5 June 2017, the Governments of Bahrain, Egypt, Saudi Arabia and the United Arab Emirates severed diplomatic relations with Qatar and adopted a series of restrictive measures relating to terrestrial, maritime and aerial lines of communication with Qatar, which included certain aviation restrictions. Pursuant to these restrictions, all Qatar-registered aircraft were barred by the Appellants from landing at or departing from their airports and were denied the right to overfly their respective territories, including the territorial seas within the relevant flight information regions. Certain restrictions also applied to non-Qatar-registered aircraft flying to and from Qatar, which were required to obtain prior approval from the civil aviation authorities of the Appellants. According to the Appellants, the restrictive measures were taken in response to Qatar’s alleged breach of its obligations under certain international agreements to which the Appellants and Qatar are parties, namely the Riyadh Agreement (with Endorsement Agreement) of 23 and 24 November 2013, the Mechanism Implementing the Riyadh Agreement of 17 April 2014 and the Supplementary Riyadh Agreement of 16 November 2014 (hereinafter the “Riyadh Agreements”), and of other obligations under international law.
[22] On 15 June 2017, Qatar submitted to the Office of the ICAO
Secretary-General an application for the purpose of initiating proceedings before the Council, citing as respondents Bahrain, Egypt, Saudi Arabia and the United Arab Emirates, as well as a memorial. Certain deficiencies in the application and the memorial having been identified by
the Secretariat, the Secretary-General, in a letter dated 21 June 2017, requested Qatar to rectify them.[23] On 30 October 2017, pursuant to Article 84 of the Chicago Convention, Qatar filed a new application and memorial with the ICAO Council, in which it claimed that the aviation restrictions adopted by Bahrain, Egypt, Saudi Arabia and the United Arab Emirates violated their obligations under the Chicago Convention.
Issue(s)
[37] The Appellants raise three grounds of appeal against the Decision of the ICAO Council dated 29 June 2018. First, they submit that the Decision “should be set aside on the grounds that the procedure adopted by the ICAO Council was manifestly flawed and in violation of fundamental principles of due process and the right to be heard”.
[38] In their second ground of appeal, the Appellants assert that the ICAO Council “erred in fact and in law in rejecting the first preliminary objection made [by them] in respect of the competence of the ICAO Council”. According to the Appellants, to pronounce on the dispute would require the Council to rule on questions that fall outside its jurisdiction, specifically on the lawfulness of the countermeasures, including “certain airspace restrictions”, adopted by the Appellants. In the alternative, and for the same reasons, they argue that the claims of Qatar are inadmissible.
[39] Under their third ground of appeal, the Appellants contend that the ICAO Council erred when it rejected their second preliminary objection. That objection was based on the assertion that Qatar had failed to satisfy the precondition of negotiation contained in Article 84 of the Chicago Convention, and thus that the ICAO Council lacked jurisdiction. As part of that objection, they also argued that the claims of Qatar were inadmissible because Qatar had not complied with the procedural requirement in Article 2, subparagraph (g), of the ICAO Rules for the Settlement of Differences.
Discussion
With regard to the first ground of appeal:
With regard to the second ground of appeal:
With regard to the third ground of appeal:
65. Article 84 of the Chicago Convention provides that “[i]f any disagreement . . . cannot be settled by negotiation, it shall, on the application of any State concerned in the disagreement, be decided by the Council”. Before the ICAO Council, the respondents contended that prior negotiations constitute a precondition to the filing of an application under Article 84. They asserted that the ICAO Council lacked jurisdiction because Qatar failed to comply with this precondition. On appeal to the Court, the Appellants argue that the ICAO Council erred in rejecting this objection to its jurisdiction.
