• Copy the reference
  • Tutorial video

    Declaration of Judge Gevorgian

    1.
    I have voted in favour of the Court's findings in the dispositif, as I believe each of the Applicants' three grounds of appeal ought to have been rejected. However, I disagree with the Court's expansive view of the ICAO Council's competence to address matters unrelated to civil aviation, particularly as expressed in paragraphs 48 and 61 of the Judgment. In this declaration, I shall set out the reasons for this disagreement.
    2.
    In my view, the Applicants' arguments concerning jurisdiction ratione materiae can be rejected by adhering to the Court's 1972 decision in Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan). In that case, the Court clearly rejected the notion that the characterization of a defence on the merits as falling outside the scope of the Chicago Convention and IASTA can deprive the ICAO Council of jurisdiction1. The same reasoning applies in the present case, as the Applicants' contention that their aviation restrictions constitute lawful countermeasures is, in essence, a defence on the merits2.
    3.
    However, the propriety of the ICAO Council addressing matters unrelated to civil aviation as part of its dispute settlement function is not nearly as unequivocal as the present Judgment suggests. Given the importance of the principles at stake — most notably the principle of consent in inter-State dispute settlement — the Council's competence should be clearly defined and limited to those matters with which the States parties have affirmatively entrusted it. The Court in the present Judgment goes too far in appearing to endorse an expanded definition of the Council's competence, according to which the Council may (and perhaps must) consider issues unrelated to civil aviation in resolving disputes under Article 84 of the Chicago Convention and Article II, Section 2, of IASTA.
    4.
    In paragraph 48 of the Judgment, the Court relies upon a pronouncement from United States Diplomatic and Consular Staff in Tehran for the proposition that the existence of a broader context behind the Parties' dispute "does not deprive the ICAO Council of its jurisdiction under Article 84 of the Chicago Convention"3. According to the Court's Judgment in that case, the fact that a legal dispute may form part of a wider political dispute between the States involved does not deprive the Court of jurisdiction over that legal dispute4. To hold otherwise would be to "impose a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes"5.
    5.
    While this principle has been upheld numerous times in the context of proceedings before the Court6, it does not, in my view, apply to other international institutions that were not created exclusively for the purpose of the peaceful settlement of disputes. In particular, the political contexts referred to in United States Diplomatic and Consular Staff may have a greater impact on proceedings before a body composed of representatives of States than on proceedings before the Court. In other words, it is one thing to say that the existence a broader political dispute should not affect the competence of a body that is composed of "independent judges"7, and quite another to apply the same principle to a body made up of States parties to the treaty in question8, each of which is likely to have its own political agenda and the potential to be influenced by non-legal considerations.
    6.
    The Court does not provide an explanation for why it considers its reasoning from United States Diplomatic and Consular Staff to apply to the Council. This omission is notable given that, elsewhere in the present Judgment, the Court highlights significant differences between itself and the ICAO Council9, particularly that the Council is composed not of independent judges, but of "contracting States elected by the Assembly"10.
    7.
    Several other considerations bear mentioning. For instance, Members of the Council act on instructions from their Governments when voting in proceedings under Article 8411 — a fact which clearly illustrates the Council's non-judicial nature. Moreover, while the Court's principal function relates to the peaceful settlement of legal disputes, Article 54 of the Chicago Convention assigns to the ICAO Council a wide array of responsibilities, most of which are of a technical or administrative nature (for instance, it must "[a]dminister the finances of the Organization", and "[a]dopt... international standards and recommended practices" relating to civil aviation). Finally, while the Court's statute empowers it to consider "any question of international law", the ICAO Council has a far narrower dispute settlement mandate relating solely to the interpretation and application of the ICAO treaties.
    8.
    These are all reasons to consider that jurisdictional principles which apply to the Court do not apply equally to the ICAO Council. I therefore disagree with the Court's reliance on the pronouncement from United States Diplomatic and Consular Staff in Tehran in its approach to the Applicants' second ground of appeal.
    9.
    For similar reasons, I am also in disagreement with the Court's reasoning in paragraph 61 of the Judgment. Given the aforementioned differences between itself and the ICAO Council, the Court declines to apply the concept of "judicial propriety" per se to the Council12. However, the Court then proceeds to hold that the "integrity of the Council's dispute settlement function would not be affected if the Council examined issues outside matters of civil aviation" for the sole purpose of deciding a dispute over which it has jurisdiction13.
    10.
    In my view, this categorical statement is too broad. Nothing like a doctrine of "judicial propriety" can properly be applied to the ICAO Council, as the Council is a body of a primarily technical and administrative nature, whose Members act as representatives of their Governments and need not be well-versed in international law, and whose dispute settlement mandate is narrowly limited to the interpretation and application of the ICAO treaties. These factors weigh against a general pronouncement that it is appropriate for the Council to consider matters unrelated to civil aviation, so long as it does so for the purpose of resolving a dispute over which it otherwise has jurisdiction.
    11.
    The basic principle remains that States should be subjected to the jurisdiction of the Council only to the extent they have consented to it. As the Court has observed with respect to its own competence, "the Court has jurisdiction in respect of States only to the extent that they have consented thereto"14, and when consent is expressed in a compromissory clause in an international agreement, the terms of the clause "must be regarded as constituting the limits" on that consent15.
    12.
    These considerations apply with even greater force to an institution like the ICAO Council, given its narrow mandate. As Article 84 of the Chicago Convention and Article II, Section 2, of IASTA only provide the Council with jurisdiction to adjudicate disputes relating to those instruments, States have not, in principle, consented to having matters unrelated to civil aviation adjudicated by the Council. In establishing that the integrity of the Council's dispute settlement function "would not be affected" by the Council considering matters unrelated to civil aviation in exercising its jurisdiction, the Court endorses a broad vision of the Council's competence that in the future may do harm to the fundamental principle of consent in the peaceful settlement of disputes.
    13.
    In summary, I am of the view that the Court goes in a wrong direction in attempting to define the ICAO Council's ability to address arguments unrelated to civil aviation. The Court could have relied on its 1972 Judgment in the India v. Pakistan case to reject the Applicants' second ground of appeal. That decision made clear that the Council is not deprived of jurisdiction ratione materiae simply because the respondent characterizes a defence on the merits as falling outside the Council's competence. Instead, whether willingly or unwillingly, the Court appears to widen the competence of the ICAO Council — a body whose role is to settle discrete aviation disputes. In so doing, the Judgment, without substantial legal basis, risks in the future unduly subjecting States to the Council's dispute settlement procedures without their consent. For the reasons described above, I consider this neither necessary nor appropriate.
    Subsequent citations of this document as a whole:
    Subsequent citations of this excerpt:
    Click on the text to select an element Click elsewhere to unselect an element
    Select a key word :
    1 /

    Instantly access the most relevant case law, treaties and doctrine.

    Start your Free Trial

    Already registered ?