ICJ rules in the interest of Qatar over its airspace dispute against the Gulf Nations

International Court of Justice (ICJ):With an overwhelming majority of 15:1, the ICJ rejected the appeal filed by Bahrain, Egypt, Saudi Arabia and United Arab Emirates against Qatar over the issue relating to the jurisdiction of the International Civil Aviation Organization (ICAO) Council. However it was an unanimous decision of the Court to reject the instant appeal.

On 05-06-2017, the Governments of Bahrain, Egypt, Saudi Arabia and the United Arab Emirates severed diplomatic relations with Qatar as the appellant Nations were against Qatar’s support for groups that they viewed as terrorist organizations and, therefore, adopted a series of limiting measures with Qatar, which included certain aviation restrictions. The appellants came before the ICJ with three major contentions. Their first ground of appeal was for setting aside of the decision by ICAO for the procedure adopted by them was alleged to be violative of the fundamental principles of due process. Their second ground of appeal stated that the ICAO Council had been erroneous in rejecting the first preliminary objection made by the appellants in respect to the competence/ jurisdiction of the Council as it would allow them to rule over issues which would be outside their jurisdiction. Their third ground of appeal was ICAO Council erred when it rejected their second preliminary objection.

The ICJ relied on the judgement of India v Pakistan, I.C.J. Reports 1972, for deciding its jurisdiction to rule over the appeal in question. The Court determined that the dispute brought by Qatar before the ICAO Council is a disagreement between the Appellants and Qatar relating to the interpretation or application of the Chicago Convention and its Annexes and therefore concluded that it fell within the scope of Art. 84 of the Chicago Convention. Determining whether the aviation restrictions imposed on Qatar-registered aircraft were lawful countermeasures, the Court stated that “Countermeasures are among the circumstances capable of precluding the wrongfulness of an otherwise unlawful act in international law and are sometimes invoked as defence”. It was concluded that the ICAO Council had jurisdiction to hear the claims of Qatar. The Court said, “The Council is a permanent organ responsible to the ICAO Assembly, composed of designated representatives of the contracting States elected by the Assembly. Integrity of the Council’s dispute settlement function would not be affected if the Council examined issues outside matters of civil aviation for the exclusive purpose of deciding a dispute which falls within its jurisdiction under Art. 84 of the Chicago Convention.” The Court then looked into the third ground of appeal, considering that “Article 84 of the Chicago Convention imposes a precondition of negotiation that must be met in order to establish the ICAO Council’s jurisdiction. Prior to filing an application under Article 84, a contracting State must make a genuine attempt to negotiate with the other concerned State or States. If the negotiations or attempted negotiations reach a point of futility or deadlock, the disagreement “cannot be settled by negotiation”. It was observed that Qatar did make a genuine attempt to negotiate and because it failed to settle the dispute, it was clear that the precondition had been met for establishing ICAO Council’s jurisdiction. Perusing the contentions and facts of the dispute the Court held that procedures followed by the Council did not prejudice in any fundamental requirements of a just procedure, thereby firmly establishing the jurisdiction of the ICAO Council over the dispute. [Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar, General List No. 173, decided on 14-07-2020]

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