Déjà Vu All Over Again: ICJ Rules on the Jurisdiction of the ICAO Council in Relation to the Gulf Dispute

[Craig D. Gaver has practiced law in Washington, DC and the Arabian/Persian Gulf. He recently received the LL.M. degree from Columbia Law School. The views expressed herein are solely his own.]

Civil aviation lies at the center of the Gulf dispute. Upon the break in relations on 5 June 2017, Saudi Arabia closed Qatar’s only land border (and later threatened to turn it into a moat filled with nuclear waste). Qatar sped up construction on the new Hamad Port in order to reduce reliance on Dubai’s Jebel Ali port, but maritime access will always be constrained by the narrow Strait of Hormuz. Aviation—both passenger and cargo—has been modern Qatar’s primary gateway to the world.

Aviation also illustrates one of the ironies of the dispute between the boycotting countries (the “Quartet”) and Qatar. The Quartet claimed that Qatar’s close relationship with Iran required the States to close their airspace to Qatari aircraft; but in so doing Qatar re-routed its civil aviation through Iranian airspace, thereby paying Iran overflight fees that would otherwise go to the Quartet. Efforts to reopen the closed airspace have been a focal point of yet unsuccessful mediation efforts by Kuwait and the United States.

Shortly after the boycott began, Qatar instituted two materially identical proceedings against the Quartet before the International Civil Aviation Organization (ICAO), to which the Quartet responded with preliminary objections as to jurisdiction and admissibility. After the ICAO Council found in Qatar’s favor, the Quartet appealed to the ICJ, which ruled that (i) it rejected the appeals and (ii) that ICAO “has jurisdiction to entertain” Qatar’s applications. (See here and here.) The case will now return to ICAO for the proceeding on the merits.

Regular Court watchers might feel a sense of déjà vu: the procedural posture is nearly identical to the 1972 decision in Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), in which the Court affirmed the competence of the ICAO Council to resolve a dispute over India’s closure of its airspace to Pakistani aircraft following a hijacking with the alleged complicity of the Pakistani government. (For a good overview of that proceeding and appeal, see here at 272 et seq.). Although the Court’s recent Judgments are suffused with references to India v. Pakistan, the decisions are nevertheless consequential in their own right. Below, I provide further procedural background before turning to an analysis of the Court’s decisions.

Procedural Background

After the Quartet closed its airspace, Qatar turned immediately to ICAO. The Convention on International Civil Aviation (the “Chicago Convention”), Article 84 (Settlement of Disputes), provides that the ICAO Council shall resolve “any disagreement relating to the interpretation or application”of the Convention. The International Air Services Transit Agreement (IASTA), Article II(2) expressly incorporates the dispute resolution provision of the Chicago Convention wholesale, revealing no difference between the two provisions. (IASTA Judgment, para. 23.) Saudi Arabia is a party to the Chicago Convention, but not to IASTA. Further, Saudi Arabia, Egypt, and the UAE all sit on the 36-member ICAO Council and were thus precluded by the Convention from voting on their own case.

The Quartet raised two preliminary objections to Qatar’s applications: first, that the applications asked the Council to determine issues involving the larger dispute between the parties, but outside of ICAO’s jurisdiction, including the lawfulness of countermeasures undertaken pursuant to the Riyadh Agreements; second, that Qatar failed to satisfy the Chicago Convention’s negotiation precondition. After written and oral submissions, the Council rejected the Quartet’s preliminary objections by a vote of 23 in favor and four opposed (with six abstentions and the three parties to the dispute disqualified from voting).

The Quartet appealed to the ICJ on three grounds: the first two directly following their preliminary objections before the Council, couched in terms of ICAO’s jurisdiction and the admissibility of claims; and the third on the basis that the ICAO Council’s decision “reflects a manifest failure to act judicially on the part of the ICAO Council, and a manifest lack of due process in the procedure adopted by the ICAO Council.” (Chicago Convention Judgment, para. 18.)

The Court’s Judgments

The Court unanimously rejected the appeal, and by a vote of 15-1 (Judge ad hoc Berman dissenting) held that the ICAO Council “has jurisdiction to entertain the application” submitted by Qatar. (Chicago Convention Judgment, para. 126(2).)

Despite the decisive vote, the dialogue among the majority’s opinion, the Separate Opinion of Judge ad hoc Berman, and the Declaration of Judge Gevorgian raise interesting questions concerning the future of dispute resolution by non-judicial international bodies. The Court had no difficulty finding that Qatar met the negotiation requirement both within and without ICAO. (Chicago Convention Judgment, para. 106.) Nor did the majority of the Court question that the dispute fell within ICAO’s jurisdiction, even if the question of the countermeasures, raised as a defense, might not: “The mere fact that this disagreement has arisen in a broader context does not deprive the ICAO Council of its jurisdiction under Article 84 of the Convention.” (Chicago Convention Judgment, para. 48 (citing United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment; Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment). More directly, the Court found that the prospect that a respondent might raise countermeasures as a defense would not, in and of itself, affect the body’s jurisdiction. (Chicago Convention Judgment, para. 49.) Nor would “judicial propriety” orthe “integrity of the Council’s dispute settlement function” be disturbed if the Council were to examine issues falling outside matters of civil aviation “for the exclusive purpose of deciding a dispute which falls within its jurisdiction” under the Chicago Convention. (Id., para. 61.) Were it otherwise, a respondent could raise any ancillary matter in an easy bid to thwart jurisdiction that would otherwise lie.

Yet the separate opinions of Judge ad hoc Berman and Judge Gevorkian probed the limits of this finding. The latter would have hewed more closely to the decision in India v. Pakistan, which simplyrejected the notion that a litigant’s characterization of a defense on the merits as outside the scope of the legal instrument would deprive the ICAO Council of jurisdiction altogether. (Gevorgian Declaration, para. 2.) Judge Gevorgian took issue with the “expansive language” of the Court’s Judgment in paragraphs 48 and 61, and questioned whether it was appropriate to compare the cases cited by the majority, which dealt with the ICJ’s jurisdiction, to the “non-judicial nature” of the ICAO Council, which was not created exclusively as a dispute settlement body. (Gevorgian Declaration, para. 3, 5, 9-10.) Similarly, Judge ad hoc Berman drew a distinction between the dispute settlement function of the ICAO Council as embodied in the Chicago Convention, Article 84, with “judicial settlement” (emphasized in original as italics) of the sort practiced by the ICJ. (Berman Opinion, para. 5.) In this respect, he took issue with the majority’s language endowing the Council with “jurisdiction to entertain the application,” when the better reading of Article 84 would “see the Council as carrying [its] high administrative function … whether or not such issues form part of specific disputes between member States.” (Id., para. 10.) Like Judge Gevorgian, he objected to the Court’s treatment of the ICAO Council as a judicial or quasi-judicial body when the circumstances of the discrete case did not require the Court to make that determination. Below I consider what effect this might have on institutionalized dispute settlement going forward.

Finally, the Quartet raised a number of objections to the Council’s procedures as its third ground of appeal, including that the Council failed to give a reasoned opinion, failed to deliberate as a collegial body, voted by secret ballot, and granted the four States of the Quartet collectively the same amount of time for oral submissions as Qatar individually. (Chicago Convention Judgment, para. 110-115.) The Court found that these questions were objective questions of law on which the Council did not obviously err and that the Council’s procedures did not prejudice the Quartet in any fundamental way. (Id., para. 123.) The Court did, however, suggest to the Council that its  forthcoming decision on the merits ought to contain the reasons of law and fact that leads to its conclusion, which would aid the Court in entertaining a subsequent appeal. (Id., para 124.)

 Effect for the Adjudicatory Function for International Organizations

Although the Court’s Judgment contained no new major pronouncements of law, it may have an important effect on the dispute settlement function of international organizations. At a minimum, the Judgment affirmed that an organ is entitled to examine ancillary matters that may lie outside its jurisdiction in order to determine whether jurisdiction is properly founded. Although the Court took care to observe that the Council’s dispute settlement function does not transform it “into a judicial institution in the proper sense of that term” (Chicago Convention, Judgment, para. 60), the decision empowers non-judicial bodies, such as the ICAO Council, to engage in quasi-judicial dispute settlement. In that respect, the Judgment might lead to an increase in such proceedings, particularly if they represent an easier alternative to the stricter jurisdictional requirements of traditional international judicial bodies. Recall that while Qatar was able to initiate the proceedings within the ICAO, it could not have done so as an original proceeding before the ICJ. 

Effect for the Gulf Dispute as a Whole

One month before the Court announced its Judgments in the ICAO appeals, a WTO Panel released its Report in Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights, WT/DS567/R. The report, in brief, found that Saudi Arabia had breached its obligations under the TRIPS Agreement by not investigating and prosecuting a pirate rebroadcaster of Qatari media corporation beIN’s intellectual property, but that it was partly excused from doing so on the basis of the Agreement’s essential security interests exception. The Panel Report did an admirable job of disaggregating the discrete measures under examination in that proceeding from the Gulf dispute as a whole, in much the same manner that the ICJ and ICAO did here.

On the same day that the Court announced its Judgments in relation to the ICAO appeal, Saudi Arabia permanently terminated beIN’s license to operate in the Kingdom, in apparent contravention of the WTO’s findings. (Curiously, the parties pleaded, but the Court did not decide, whether attempted negotiations in the context of the WTO IP proceeding satisfied the negotiation precondition in the IACO aviation proceeding. See Chicago Convention Judgment, para. 72, 81.) The timing of this action was inauspicious but illustrative of the multifaceted nature of the macro dispute, as well as the unlikelihood that it will be resolved, either as a legal or political matter, in the near future.

Shortly after the ICJ announced its Judgments in the ICAO appeals, Qatar Airways, the State’s flagship carrier, announced that it had commenced four investment-treaty arbitrations against each of the boycotting States. In addition to the eye popping sum—$5 billion in damages claimed—the proceedings will have additional legal significance. Of the Quartet, only Egypt has a bilateral investment treaty with Qatar; as against the other States Qatar has invoked the OIC Investment Agreement and the Arab Investment Agreement. Both of these little-known regional multilateral treaties have produced scant cases and commentary, so the eventual awards will have significant jurisprudential effects. It bears noting that beIN also instituted an investor-State arbitration proceeding under the OIC Investment Agreement in relation to the IP dispute. Portentous as the ICJ Judgments might seem, they are merely one scene in a larger drama whose ending is, at the moment, unforeseeable.