The Flight MH17 Case and the Scope of the Appellate Jurisdiction of the ICJ

[Quazi Omar Foysal is a Bangladeshi-qualified international lawyer, currently pursuing a PhD at La Trobe University, Australia]

Though the International Court of Justice (ICJ or Court) has faced five proceedings related to the ICAO Council Decisions (one currently pending, three already decided, and one discontinued by the parties), the Flight MH17 case (Russia v. Australia and The Netherlands) should be treated differently for three reasons. First, this case will deal with the appeal on the merits (along with preliminary objections) of an ICAO Council Decision. While the rest of the cases (including one pending case) concern preliminary objections decisions of the ICAO Council, the Decision under discussion marks the first merits decision of the ICAO Council since its functioning. Second, the ICJ is expected to exercise the full range of appellate jurisdiction over a case for the first time in its history. Third, in its Application instituting proceedings, Russia raised, among others, questions about the treatment of assessment of the Respondent-determined evidence by the ICAO Council. Hence, the ICJ will be confronted with issues concerning the scope of its appellate jurisdiction and the standard of (appellate) review over the factual and legal reasoning of an ICAO Council Decision, as well as the evidentiary issues. Against this background, this post argues that the case law of the ICJ (and PCIJ) would provide certain guidelines to the Court. However, the Court will need to act as a navigator off rather than on the beaten path in this case.

Appellate Jurisdiction of the ICJ (and the PCIJ)

Article 87 of the ICJ Rules of Court (1978) can arguably be considered as the basis of the appellate jurisdiction of the ICJ. It states that the normal rules and procedures of the ICJ for contentious cases apply to any “a contentious case” brought before it that concerns a matter “which has been the subject of proceedings before some other international body.” This provision has its origin in the 1936 PCIJ Rules of Court (Article 67), which was retained in the subsequent versions of the PCIJ Rules of Court and the ICJ Rules of Court. The pre-1978 version of Article 87 mentions “an appeal” instead of “a contentious case” and “tribunal” instead of “international body.” The 1978 reformulation may owe its credit to the 1972 ICAO Council Appeal case (India v. Pakistan), which arose out of a quasi-judicial body, not a tribunal as mentioned in Article 72 of the 1972 Rules of Court.

In fact, both the PCIJ and ICJ have deliberated on several contentious cases of an appellate nature before them. For the PCIJ, international instruments, namely the Convention Instituting the Definitive Statute of the Danube and Agreement No. II Concerning the Settlement of Questions Relating to the Agrarian Reforms and Mixed Arbitral Tribunals, provided appellate jurisdiction to it. While the first instrument gave rise to no contentious case before the PCIJ (rather a request for an advisory opinion), three cases were brought before the Court with reference to the second instrument, one of which (the Peter Pázmány University case) reached the merits phase. 

With respect to the ICJ, the Convention on International Civil Aviation (Chicago Convention) is the only existing international instrument with a compromissory clause that confers appellate jurisdiction to the ICJ. It is also the case for the present analysis. Interestingly, none of the ICAO Council Appeal cases refer to Article 87 of the Rules of Court (or its inter-temporal equivalents). Rather, they were instituted as regular proceedings under Articles 36 and 37 of the ICJ Statute. However, the appellate nature of these cases remains unaffected regardless of the manner of institution of proceedings.

The Nature and Scope of the ICAO Council Appeal Cases before the ICJ

The scope of the appellate jurisdiction of the ICJ has yet to be fully explored. The PCIJ cases may be illustrative, but they do not provide complete guidelines. For the judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal cases, though the subject matter of the cases remained the same, both cases involved different parties. Thus, many see them as fresh proceedings rather than appeals. Judge Morozov was tempted to call the 1972 ICAO Council Appeal case the first appeal case in the history of the ICJ. On the other hand, all the earlier ICAO Council Appeal cases being limited to the preliminary objections, it is predicted that the Flight MH17 case would invite some fresh aspects of the proceedings. The scope of appeal of the earlier decision is one of them.

In domestic legal systems, the scope of appeal, depending on the legal tradition, ranges from the re-examination of both fact and law, of law only, or of any aspect of decisions. On the other hand, given the consent-based decentralized international legal order, the nature and scope of appeal will depend on the founding instrument of the international court or tribunal (ICT) in question, the existence of hierarchy, and institutional practice. Apparently, the scope of appeal may differ from institution to institution. For instance, the scope of appeal from an ICT with a hierarchical structure (e.g., WTO Dispute Settlement Body) will differ from that of an ICT without any hierarchical structure (e.g., ICJ). Since the ICJ is non-hierarchical in nature, the nature and scope of an appeal before it depends on its own legal framework and the instruments conferring jurisdiction. Here comes Article 84 of the Chicago Convention.

Article 84 of the Chicago Convention, read together with Articles 36 and 37 of the ICJ Statute, states that any ICAO Council Decisions relating to disagreements on the interpretation and application of the Chicago Convention and its Annexes between States may be appealed to the ICJ. Article 86 of the Chicago Convention provides the actual indication of the nature and scope of the appeal. It states that the ICJ may reverse the ICAO Council Decisions, and the decision of the ICJ is “final and binding.” In order to reverse the ICAO Council Decisions, the ICJ will be required to exercise the full range of appellate jurisdiction, including the re-examination of both law and fact.

The Court’s scope of re-examining the preliminary objections decisions of the ICAO Council is apparently limited due to the latter’s omission to include any reasons for reaching its decision despite its explicit requirement in the Chicago Convention. For this reason, the Court exercised a sort of supervisory power rather than appellate power over the earlier ICAO Council Appeals. In response to allegations regarding the omission to provide reasons in the ICAO Council Decisions, the ICJ stated in the 2020 ICAO Council Decision Appeal case (Bahrain et al. v. Qatar) that “it will be best positioned to act on any future appeal if the Decision of the ICAO Council contains the reasons of law and fact that led to the ICAO Council’s conclusions” (para. 125). Given that the ICAO Council Flight MH17 Decision includes both factual and legal reasons for reaching its conclusion (para. 46), the Court will have to exercise its appellate jurisdiction in the fullest sense (i.e., re-examination of both factual and legal reasons) for the first time in its history.

The Standard of Appellate Review of the ICJ

The present proceeding is distinct from other appellate proceedings available in hierarchical dispute settlement mechanisms, especially the WTO Dispute Settlement Mechanism. Besides, in the present case, the ICJ will need to re-assess a decision of a quasi-judicial body, not of a judicial body. To that end, the ICJ will be required to determine the applicable standards of proof as well. This is particularly relevant due to the fact that Russia has challenged not only the interpretation and application of the Chicago Convention by the ICAO Council but also the Council’s deference to the conclusions of the Joint Investigation Team (JIT) and Dutch Safety Board (OVV) reports, where The Netherlands, one of the Respondents, investigated and participated in their investigation and preparation. 

The circumstances of the case under review indicate that the ICJ may be required to apply two sets of standards of review in this case: first, for re-examining the factual and legal assessments of the ICAO Council Decision, and second, for examining the appropriateness of the deference attributed to the above-mentioned reports. This issue should be seen in light of Russia’s non-participation in the final phase of the ICAO proceedings and its absence in the JIT investigations.

The standard of appellate review implies the intensity of the scrutiny exercised by appellate (judicial) bodies while reviewing the determinations made by the institution of first instance. The choice of a particular standard of proof by an appellate body depends on the nature of the appellate function it is discharging. For instance, it applies the intrusive standard of review, i.e., the de novo review of the decision, while discharging its corrective functions. On the other hand, it applies a deferential standard of review while discharging its consistency-enhancing function. This post argues that the ICJ will be required to discharge hybrid functions while deliberating on the present ICAO appeal and therefore will be required to adopt both standards of review, though at variable intensity.

First of all, it is evident from the 2020 ICAO Council Decision case that the Court will be required to adopt the standard of “correctness,” and its re-assessment would cover both factual and legal reasoning that the ICAO Council relied on to reach its conclusion (paras. 123–125). This assertion is particularly crucial from the perspective of the appellate jurisdiction of the Court because this standard of review will enable it to uphold, modify, or reverse the decision of the ICAO Council. This position has attracted support from academic commentators. However, Rose insisted that the Court’s corrective function should not be conflated with annulment proceedings, something the Applicant States argued but which was rejected by the Court in the 2020 ICAO Council Appeal case (para. 122).

It would not be an overstatement that the Court should also discharge the consistency-enhancing function to a certain extent. This function is crucial for ensuring the existence of multi-level dispute settlement systems, the absence of which would make the proceedings of the first instance a “warm-up exercise.” Thus, the ICJ should adopt a certain degree of deferential standard of review in certain areas. The evidence assessment of the ICAO Council is one of such areas. This assertion draws its support from the Court’s treatment of the Appellant States’ argument on the procedural issues of the ICAO Council Decision in the 2020 ICAO Council Appeal case (para. 122). Evidently, the Court endowed a certain degree of deference to the ICAO Council Decisions by concluding that it “had no need to examine whether a decision of the ICAO Council that was legally correct should nonetheless be annulled because of procedural irregularities.” It would not be surprising if the Court adopts a similar stance regarding the conclusions of the ICAO Council on the reliability of the JIT and OVV reports. The fact that the ICAO Council is a quasi-judicial body should not be taken as the decisive factor for avoiding the deferential standard, since the courts give deference to administrative decisions in general. Furthermore, the adoption of this standard would be vital for maintaining the utility and effectiveness of Article 84 of the Chicago Convention as a whole.

Concluding Remarks

Russia has not only brought the ICAO Council Flight MH17 Decision to the ICJ, but it has also technically presented the whole ICAO dispute settlement mechanism under the judicial scrutiny of the ICJ. With the incessant expansion of inter-State commercial aviation, and constant acts of hostilities in the areas crucial for international navigation, it is expected that inter-State aviation disputes will multiply. Thus, it is crucial to have an effective dispute settlement mechanism in place. In that perspective, the eventual judgment would serve as a catalyst for the long-due reform of the ICAO dispute settlement mechanism. An effective ICAO dispute settlement mechanism will not only help gain its legitimacy, but it may also reduce the seemingly increasing backlog of cases of the ICJ. At the same time, the ICJ now bears the burden of preserving the integrity of the ICAO process, as it did with respect to earlier cases. However, the extent to which the ICJ may be able to preserve the integrity of the ICAO dispute settlement mechanism will depend on its choice of the standard of appellate review. Nevertheless, due to Russia’s non-participation in the final part of the ICAO Council proceeding, it is expected that the Court will value the objectives of the peaceful settlement of disputes over the integrity of the ICAO Council, but in a meaningful and acceptable way.