In addition, by a letter dated 25 July 2018, the Registrar informed all Member States of the United Nations of the filing of the above-mentioned Application.
For the Applicant States:
H.E. Sheikh Fawaz bin Mohammed Al Khalifa,
H.E. Mr. Amgad Abdel Ghaffar,
H.E. Ms Hissa Abdullah Ahmed Al-Otaiba,
Mr. Payam Akhavan,
Ms Alexandra van der Meulen,
Mr. Malcolm Shaw,
Mr. Georgios Petrochilos,
Mr. Simon Olleson.
For Qatar:
Mr. Mohammed Abdulaziz Al-Khulaifi,
Mr. Vaughan Lowe,
Mr. Pierre Klein,
Mr. Lawrence Martin,
Ms Loretta Malintoppi.
"For the above-stated reasons, may it please the Court, rejecting all submissions to the contrary, to adjudge and declare:
(1) That the Decision of the ICAO Council dated 29 June 2018 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; and
(2) That the ICAO Council is not competent to adjudicate upon the disagreement between the State of Qatar and the Applicants submitted by Qatar to the ICAO Council by Qatar's Application (B) dated 30 October 2017; and
(3) That the Decision of the ICAO Council dated 29 June 2018 in respect of Application (B) is null and void and without effect."
On behalf of the Governments of the Applicant States,
in the Memorial:
"1. For the reasons set out in this Memorial, and reserving the right to supplement, amplify or amend the present submissions, the Kingdom of Bahrain, the Arab Republic of Egypt, and the United Arab Emirates hereby request the Court to uphold their Appeal against the Decision rendered by the Council of the International Civil Aviation Organization dated 29 June 2018, in proceedings commenced by the State of Qatar by Qatar's Application (B) dated 30 October 2017 against the Appellants pursuant to Article II, Section 2 of the IASTA.
2. In particular, the Court is respectfully requested to adjudge and declare, rejecting all submissions to the contrary, that:
(1) the Decision of the ICAO Council dated 29 June 2018 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; and
(2) the ICAO Council is not competent to adjudicate upon the disagreement between the State of Qatar and the Appellants submitted by Qatar to the ICAO Council by Qatar's Application (B) dated 30 October 2017; and
(3) the Decision of the ICAO Council dated 29 June 2018 in respect of Application (B) is null and void and without effect."
in the Reply:
"1. For these reasons, and reserving the right to supplement, amplify or amend the present submissions, the Kingdom of Bahrain, the Arab Republic of Egypt and the United Arab Emirates hereby request the Court to uphold their Appeal against the Decision rendered by the Council of the International Civil Aviation Organization dated 29 June 2018, in proceedings commenced by Qatar's Application (B) dated 30 October 2017 against the three States pursuant to Article II, Section 2 of the IASTA.
2. In particular, the Court is respectfully requested to adjudge and declare, rejecting all submissions to the contrary, that:
(1) the Decision of the ICAO Council dated 29 June 2018 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; and
(2) the ICAO Council is not competent to adjudicate upon the disagreement between Qatar and the Appellants submitted by Qatar to the ICAO Council by Qatar's Application (B) dated 30 October 2017; and
(3) the Decision of the ICAO Council dated 29 June 2018 in respect of Application (B) is null and void and without effect."
On behalf of the Government of Qatar,
in the Counter-Memorial:
"On the basis of the facts and law set forth in this Counter-Memorial, Qatar respectfully requests the Court to reject Joint Appellants' appeal and affirm the ICAO Council's Decision of 29 June 2018 dismissing Joint Appellants' preliminary objection to the Council's jurisdiction and competence to adjudicate Qatar's Application (B) of 30 October 2017."
in the Rejoinder:
"On the basis of the facts and law set forth in this Rejoinder, Qatar respectfully requests the Court to reject Joint Appellants' appeal and affirm the ICAO Council's Decision of 29 June 2018 dismissing Joint Appellants' preliminary objection to the Council's jurisdiction and competence to adjudicate Qatar's Application (B) of 30 October 2017."
On behalf of the Governments of the Applicant States,
at the hearing of 5 December 2019:
"1. In accordance with Article 60, paragraph 2, of the Rules of the Court, and for the reasons set out during the written and oral phase of the pleadings, the Kingdom of Bahrain, the Arab Republic of Egypt and the United Arab Emirates hereby request the Court to uphold their Appeal against the Decision rendered by the Council of the International Civil Aviation Organization dated 29 June 2018, in proceedings commenced by Qatar's Application (B) dated 30 October 2017 against the three States pursuant to Article II, Section 2 of the IASTA.
2. In particular, the Court is respectfully requested to adjudge and declare, rejecting all submissions to the contrary, that:
(1) the Decision of the ICAO Council dated 29 June 2018 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; and
(2) the ICAO Council is not competent to adjudicate upon the disagreement between the State of Qatar and the Appellants submitted by Qatar to the ICAO Council by Qatar's Application (B) dated 30 October 2017; and
(3) the Decision of the ICAO Council dated 29 June 2018 in respect of Application (B) is null and void and without effect."
On behalf of the Government of Qatar,
at the hearing of 6 December 2019:
"In accordance with Article 60 of the Rules of Court, for the reasons explained during these hearings, Qatar respectfully requests the Court to reject Joint Appellants' appeals and affirm the ICAO Council's Decisions of 29 June 2018 dismissing Joint Appellants' preliminary objection to the Council's jurisdiction and competence to adjudicate Qatar's claims before the Council."
"If any disagreement between two or more contracting States relating to the interpretation or application of this Agreement cannot be settled by negotiation, the provisions of Chapter XVIII of the [Chicago] Convention shall be applicable in the same manner as provided therein with reference to any disagreement relating to the interpretation or application of the above-mentioned Convention."
Article 84 of the Chicago Convention, contained in Chapter XVIII of that Convention, reads as follows:
"Settlement of Disputes
If any disagreement between two or more contracting States relating to the interpretation or application of this Convention and its Annexes cannot be settled by negotiation, it shall, on the application of any State concerned in the disagreement, be decided by the Council. No member of the Council shall vote in the consideration by the Council of any dispute to which it is a party. Any contracting State may, subject to Article 85, appeal from the decision of the Council to an ad hoc arbitral tribunal agreed upon with the other parties to the dispute or to the Permanent Court of International Justice. Any such appeal shall be notified to the Council within sixty days of receipt of notification of the decision of the Council."
"HAVING CONSIDERED the preliminary objection of the Respondents, namely that the Council lacks jurisdiction to resolve the claims raised by the Applicant in Application (B); or in the alternative, that the Applicant's claims are inadmissible;
CONSIDERING that the question before the Council was whether to accept the preliminary objection of the Respondents;
BEARING IN MIND Article 52 of the Chicago Convention which provides that decisions by the Council shall require approval by a majority of its Members and the consistent practice of the Council in applying this provision in previous cases;
HAVING DECLINED a request by one of the Respondents to reconsider the above-mentioned majority of 19 Members required in the current Council for the approval of its decisions;
DECIDES that the preliminary objection of the Respondents is not accepted."
"[t]he effect of that Article... is that, as between the parties to the Statute, this Court is substituted for the Permanent Court in any treaty or convention in force, the terms of which provide for reference of a matter to the Permanent Court" (Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 14, para. 34).
Accordingly, under Article II, Section 2, of the IASTA and Article 84 of the Chicago Convention, the Court is competent to hear an appeal from a decision of the ICAO Council (see Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 53, para. 15, and p. 60, para. 25).
"enlist the support of the Court for the good functioning of [ICAO], and therefore the first reassurance for the Council lies in the knowledge that means exist for determining whether a decision as to its own competence is in conformity or not with the provisions of the treaties governing its action" (ibid., pp. 60-61, para. 26; emphasis added).
As the Court explained, "it would be contrary to accepted standards of the good administration of justice to allow an international organ to examine and discuss the merits of a dispute when its competence to do so was not only undetermined but actively challenged" (ibid., p. 57, para. 18 (e)).
The Court therefore concluded that
"an appeal against a decision of the Council as to its own jurisdiction must therefore be receivable since, from the standpoint of the supervision by the Court of the validity of the Council's acts, there is no ground for distinguishing between supervision as to jurisdiction, and supervision as to merits" (ibid., p. 61, para. 26).
"The fact that a defence on the merits is cast in a particular form, cannot affect the competence of the tribunal or other organ concerned, — otherwise parties would be in a position themselves to control that competence, which would be inadmissible. As has already been seen in the case of the competence of the Court, so with that of the Council, its competence must depend on the character of the dispute submitted to it and on the issues thus raised — not on those defences on the merits, or other considerations, which would become relevant only after the jurisdictional issues had been settled." (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 61, para. 27.)
They submit that Qatar's application to the ICAO Council is inadmissible in so far as any resolution of Qatar's claims will necessarily require the Council to adjudicate upon matters over which it does not possess jurisdiction. Any such exercise of jurisdiction by the Council would be incompatible with the consensual basis for jurisdiction and thus incompatible with "judicial propriety" and the ICAO Council's "judicial" function under Article II, Section 2, of the IASTA.
"consists in the contention that there exists a legal reason, even when there is jurisdiction, why the Court should decline to hear the case, or more usually, a specific claim therein. Such a reason is often of such a nature that the matter should be resolved in limine litis" (ibid. ; see also Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 177, para. 29).
The Appellants, referring to the Judgment of the Court on preliminary objections in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), submit that for a negotiation precondition to be fulfilled, there must be "at the very least... a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute" (I.C.J. Reports 2011 (I), p. 132, para. 157). They maintain that a genuine attempt to negotiate must be more than a general call for dialogue. It must relate to the subject-matter of the dispute, which must concern the substantive obligations contained in the treaty in question. The Appellants also assert that, where negotiations have been attempted or have commenced, the precondition of negotiation is met only if negotiations have become futile or deadlocked.
Qatar contends that the Appellants displayed a complete unwillingness to negotiate and that any attempt would have been futile. In its view, there is no need for the Court to decide whether Qatar made a genuine attempt to negotiate with respect to the disagreement arising under Article II, Section 2, of the IASTA.
In advance of the Extraordinary Session of the ICAO Council, held on 31 July 2017, Qatar submitted a working paper in which it reiterated its objections to the aviation restrictions, making reference to the IASTA. At the Extraordinary Session, Qatar requested the Appellants to "lift the unjust air blockade" imposed by them, noting that the measures were "in flagrant violation of all relevant ICAO international Standards, as well as of relevant ICAO instruments to which they were parties".
THE COURT,
(1) Unanimously,
Rejects the appeal brought by the Kingdom of Bahrain, the Arab Republic of Egypt and the United Arab Emirates on 4 July 2018 from the Decision of the Council of the International Civil Aviation Organization, dated 29 June 2018;
(2) By fifteen votes to one,
Holds that the Council of the International Civil Aviation Organization has jurisdiction to entertain the application submitted to it by the Government of the State of Qatar on 30 October 2017 and that the said application is admissible.
IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Daudet;
AGAINST: Judge ad hoc Berman.
Already registered ?