Counter-Memorial of the State of Qatar

INTERNATIONAL COURT OF JUSTICE
APPEAL RELATING TO THE JURISDICTION OF THE ICAO
COUNCIL UNDER ARTICLE 84 OF THE CONVENTION ON
INTERNATIONAL CIVIL AVIATION
THE KINGDOM OF BAHRAIN, THE ARAB REPUBLIC OF EGYPT,
THE KINGDOM OF SAUDI ARABIA
AND THE UNITED ARAB EMIRATES
v.
THE STATE OF QATAR
COUNTER-MEMORIAL OF THE STATE OF QATAR
VOLUME I
25 FEBRUARY 2019

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Table of Contents
CHAPTER 1 INTRODUCTION ................................................................... 1
I. Procedural History ....................................................... 1
II. Overview of Qatar’s Arguments .................................. 4
III. Structure of Qatar’s Counter-Memorial ....................... 7
CHAPTER 2 JOINT APPELLANTS’ “REAL DISPUTE” ARGUMENT IS
AN ARTIFICE FOR ESCAPING SCRUTINY OF THEIR
AVIATION PROHIBITIONS ............................................... 11
I. Joint Appellants Imposed the Aviation Prohibitions in
Breach of the Chicago Convention and its Annexes . 12
II. Joint Appellants’ Accusations Are False ................... 22
A. Joint Appellants’ allegations of support of
terrorism and extremism are false .................. 23
B. Joint Appellants’ allegations about Qatar’s
“systematic interference” in their internal
affairs are false ............................................... 33
C. Joint Appellants’ allegations of Qatar’s use of
media to incite violence and hatred are false . 40
CHAPTER 3 THE COURT SHOULD DENY JOINT APPELLANTS’
SECOND GROUND OF APPEAL ....................................... 47
I. The ICAO Council Is Empowered to Exercise its
Dispute Settlement Functions “to their Full Extent” . 49
II. The Dispute Qatar Submitted to the ICAO Council
“Relates to the Interpretation or Application” of the
Chicago Convention and its Annexes ........................ 54
A. Joint Appellants’ countermeasures defence has
no bearing on the assessment of the “real
issue” in dispute ............................................. 56
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B. Joint Appellants’ countermeasures defence,
even if it were relevant, does not convert this
dispute into one over which the Council does
not have jurisdiction ....................................... 60
1. Qatar’s pleadings before the ICAO
Council indicate that the subject-matter
of the dispute falls squarely within the
scope of the Chicago Convention and
its Annexes ......................................... 61
2. The object of Qatar’s claims relates
solely to the interpretation or
application of the Chicago Convention
and its Annexes .................................. 67
3. The Council does not need to address
the merits of Joint Appellants’
countermeasures defence to decide this
case ..................................................... 73
III. The Adjudication of Qatar’s Claims by the ICAO
Council is Entirely Consistent with Judicial
Propriety ..................................................................... 81
CHAPTER 4 THE COURT SHOULD DENY JOINT APPELLANTS’
THIRD GROUND OF APPEAL ........................................... 85
I. The Council Properly Held that Qatar Satisfied the
Negotiation Requirement ........................................... 86
A. International Law requires a genuine attempt to
negotiate with a view to resolving the
dispute ............................................................ 86
B. Qatar genuinely attempted to negotiate with a
view to resolving the dispute ......................... 93
1. Qatar unsuccessfully tried to settle the
dispute through direct means ............. 95
2. Qatar unsuccessfully tried to settle the
dispute through ICAO ...................... 109
iii
3. Qatar unsuccessfully tried to settle the
dispute through the WTO................. 114
4. Qatar unsuccessfully tried to settle the
dispute through the facilitation of third
States ................................................ 117
II. The ICAO Council Properly Held that Qatar’s
Application and Memorial Complied with Article 2(g)
of the ICAO Rules for the Settlement of
Differences ............................................................... 123
CHAPTER 5 THE COURT SHOULD DENY JOINT APPELLANTS’
FIRST GROUND OF APPEAL .......................................... 127
I. The Court Does Not Need to Rule on the Alleged
Procedural Violations............................................... 128
II. The ICAO Council Properly Discharged its Functions
under Article 84 of the Chicago Convention ........... 131
A. Joint Appellants were afforded ample
opportunity to plead their case ..................... 131
1. The Council extended Joint Appellants’
time-limits for the filing of their first
responsive brief ................................ 131
2. The Council gave Joint Appellants
every opportunity to make their case in
writing .............................................. 133
3. The Council also afforded Joint
Appellants an opportunity to present
their arguments orally ...................... 134
4. The Council soundly rejected Joint
Appellants’ preliminary objections .. 136
B. Joint Appellants’ procedural complaints are
baseless ........................................................ 137
1. The absence of open deliberations on
the substantive issues in dispute and of
iv
reasons follows from the Council’s
decision to proceed with a vote by
secret ballot as allowed under its
rules .................................................. 139
2. Joint Appellants were allocated
sufficient time to present their case
before the Council ............................ 144
3. The Council required the correct
number of votes to decide the
preliminary objections ..................... 149
4. The Council properly rejected both of
Joint Appellants’ preliminary
objections ......................................... 153
III. The Alleged Procedural Irregularities Did Not
Prejudice “in Any Fundamental Way” the
“Requirements of a Just Procedure” ........................ 155
SUBMISSIONS .............................................................................................. 161
CERTIFICATION ............................................................................................ 163
LIST OF ANNEXES ........................................................................................ 165
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GLOSSARY OF ACRONYMS, ABBREVIATIONS AND DEFINED
TERMS
1972 ICAO Council Appeal Appeal Relating to the Jurisdiction of the
ICAO Council (India v. Pakistan),
Judgment, I.C.J. Reports 1972
ARSIWA Articles on the Responsibility of States for
Internationally Wrongful Acts
ATS Air Traffic Service
Bahrain The Kingdom of Bahrain
Chicago Convention Convention on International Civil
Aviation, Chicago, 7 December 1944
Egypt The Arab Republic of Egypt
EU European Union
FATF Financial Action Task Force
FIR Flight Information Regions
GCC Gulf Cooperation Council
IASTA International Air Services Transit
Agreement, Chicago, 7 December 1944
ICAO International Civil Aviation Organization
ICAO Council or Council Council of the International Civil Aviation
Organization
ICAO Application (A) Application (A) of the State of Qatar;
Relating to the Disagreement on the
Interpretation and Application of the
Convention on International Civil Aviation
(Chicago, 1944) and its Annexes, 30
October 2017
ii
ICAO Council Decision (A) or
Decision
Decision of the ICAO Council on the
Preliminary Objection in the Matter: the
State of Qatar and the Arab Republic of
Egypt, the Kingdom of Bahrain, the
Kingdom of Saudi Arabia and the United
Arab Emirates (2017) – Application (A),
29 June 2018
ICAO Memorial (A) Memorial appended to Application (A) of
the State of Qatar, Disagreement on the
Interpretation and Application of the
Convention International Civil Aviation
(Chicago,1944), 30 October 2017
ICAO Preliminary Objections (A) Preliminary Objections of the Arab
Republic of Egypt, the Kingdom of
Bahrain, the Kingdom of Saudi Arabia and
the United Arab Emirates in re Application
(A) of the State of Qatar Relating to the
Disagreement Arising under the
Convention on International Civil Aviation
done at Chicago on 7 December 1944, 19
March 2018
ICAO Rejoinder (A)
Rejoinder to the State of Qatar’s Response
to the Respondents’ Preliminary
Objections of the Arab Republic of Egypt,
the Kingdom of Bahrain, the Kingdom of
Saudi Arabia and the United Arab Emirates
in re Application (A) of the State of Qatar
Relating to the Disagreement Arising under
the Convention on International Civil
Aviation done at Chicago on 7 December
1944, 12 June 2018
ICAO Response to Preliminary
Objections (A)
Response of the State of Qatar to the
Preliminary Objections of the
Respondents; in re Application (A) of the
State of Qatar Relating to the Disagreement
on the Interpretation and Application of the
Convention on International Civil Aviation
iii
done at Chicago on 7 December 1944, 30
April 2018
ICAO Rules 1957 ICAO Rules for the Settlement of
Differences
ICJ Application (A) Joint Application Instituting Proceedings,
Appeal Against a Decision of the ICAO
Council dated 29 June 2018 on Preliminary
Objections (Application (A), Kingdom of
Bahrain, Arab Republic of Egypt, the
Kingdom of Saudi Arabia and the United
Arab Emirates v. State of Qatar), 4 July
2018
ILC International Law Commission
IMF International Monetary Fund
Joint Appellants The Kingdom of Bahrain, the Arab
Republic of Egypt, the Kingdom of Saudi
Arabia and the United Arab Emirates
NOTAM Notice to Airmen
Qatar The State of Qatar
QCM (A) Appeal Relating to the Jurisdiction of the
ICAO Council under Article 84 of the
Convention on Civil Aviation (The
Kingdom of Bahrain, the Arab Republic of
Egypt, the Kingdom of Saudi Arabia and
the United Arab Emirates v. The State of
Qatar, Counter-Memorial of the State of
Qatar (25 February 2019)
QNA Qatar News Agency
Saudi Arabia Kingdom of Saudi Arabia
TFTC Terrorist Financing Targeting Center
iv
United Arab Emirates UAE
UNCLOS United Nations Convention on the Law of
the Sea
VCLT Vienna Convention on the Law of Treaties
WTO World Trade Organization
1
CHAPTER 1
INTRODUCTION
1.1 Pursuant to the Order of the Court dated 25 July 2018, the State of Qatar
(“Qatar”) respectfully submits this Counter-Memorial responding to the Memorial
of the Kingdom of Bahrain (“Bahrain”), the Arab Republic of Egypt (“Egypt”), the
Kingdom of Saudi Arabia (“Saudi Arabia”) and the United Arab Emirates (“UAE”,
and collectively with Bahrain, Egypt and Saudi Arabia, “Joint Appellants”),
submitted on 27 December 2018.1
1.2 Although the Court fixed 27 May 2019 as the applicable time-limit, Qatar
has elected to submit this Counter-Memorial early. It does so in view of the urgency
of the matters in dispute as well as the limited nature of these proceedings, which
involve only an appeal from a jurisdictional decision of the Council of the
International Civil Aviation Organization (“ICAO Council” or “Council”).
I. Procedural History
1.3 As Qatar will explain in greater detail in Chapter 2, this case arises from
Joint Appellants’ sudden imposition on 5 June 2017 of far-reaching prohibitions
on all Qatar-registered aircraft from flying to or from Joint Appellants’ airports and
from overflying their national airspaces and Flight Information Regions (“FIR”)
(the “aviation prohibitions”). Acting pursuant to Article 84 of the 1944 Convention
on International Civil Aviation (“Chicago Convention” or “Convention”),2 on 30
1 Memorial of the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia,
and the United Arab Emirates (27 Dec. 2018) (hereinafter “BESUM”).
2 Convention on Civil Aviation, (1994) 15 U.N.T.S. 295 (7 Dec. 1944) (entry into force: 4 Apr.
1947) (hereinafter “Chicago Convention”), Art. 84 (BESUM Vol. II, Annex 1).
2
October 2017 Qatar filed an Application and Memorial with the ICAO Council
detailing Joint Appellants’ violations of the Convention, and requesting the
Council to adjudge and declare the aviation prohibitions unlawful.3
1.4 On 19 March 2018, Joint Appellants raised two preliminary objections to
the Council’s jurisdiction to hear the dispute.4 In particular, Joint Appellants argued
that (1) deciding the dispute would require the Council to consider international
legal matters falling outside the Chicago Convention (i.e., whether the aviation
prohibitions constitute lawful countermeasures) (“First Preliminary Objection”);
and (2) Qatar had failed to comply with the negotiation requirement stated in
Article 84 of the Convention (“Second Preliminary Objection”). After a further
exchange of briefs and oral hearings,5 the ICAO Council issued a decision on 29
June 2018 rejecting Joint Appellants’ preliminary objections (the “Council
3 Application (A) of the State of Qatar; Relating to the Disagreement on the Interpretation and
Application of the Convention on International Civil Aviation (Chicago, 1944) and its Annexes, 30
October 2017 (hereinafter “ICAO Application (A)”) (BESUM Vol. III, Annex 23).
4 Preliminary Objections of the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of
Saudi Arabia and the United Arab Emirates in Re Application (A) of the State of Qatar Relating to
the Disagreement Arising under the Convention on International Civil Aviation done at Chicago on
7 December 1944, 19 March 2018 (hereinafter “ICAO Preliminary Objections (A)”) (BESUM Vol.
III, Annex 24).
5 Response of the State of Qatar to the Preliminary Objections of the Respondents in re Application
(A) of the State of Qatar Relating to the Disagreement on the Interpretation and Application of the
Convention on International Civil Aviation (Chicago, 1944), 30 April 2018 (hereinafter “ICAO
Response to Preliminary Objections (A)”) (BESUM Vol. IV, Annex 25); Rejoinder to the State of
Qatar’s Response to the Preliminary Objections of the Arab Republic of Egypt, the Kingdom of
Bahrain, the Kingdom of Saudi Arabia and the United Arab Emirates in re Application (A) of the
State of Qatar Relating to the Disagreement Arising under the Convention on International Civil
Aviation done at Chicago on 7 December 1944, 12 June 2018 (hereinafter “ICAO Rejoinder (A)”)
(BESUM Vol. IV, Annex 26); ICAO Council – 214th Session, Summary Minutes of the Eighth
Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para. 6 (BESUM Vol. V,
Annex 53).
3
Decision” or “Decision”).6 The Council did so by a vote of 23 to four, with six
abstentions.
1.5 Exercising their right under Article 84 of the Convention to appeal from the
decisions of the Council to the Court, Joint Appellants instituted these proceedings
by means of a Joint Application dated 4 July 2018 (“Joint Application (A)”).7 They
raise three grounds of appeal. In particular, Joint Appellants ask that the Court
adjudge and declare:
• That the Council Decision is “null and void”, and should be “set aside”
because “the procedure adopted by the ICAO Council was manifestly
flawed and in violation of fundamental principles of due process and
the right to be heard” (“First Ground of Appeal”);8
• That the ICAO Council erred in fact and in law in rejecting their First
Preliminary Objection to the effect that the “present dispute would
require the Council to determine issues that fall outside its jurisdiction:
to rule on the lawfulness of the countermeasures adopted by the [Joint
Appellants], including certain airspace restrictions” (“Second Ground
of Appeal”);9 and
6 Decision of the ICAO Council on the Preliminary Objection in the Matter: the State of Qatar and
the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia and the United
Arab Emirates (2017) – Application (A), 29 June 2018 (hereinafter “ICAO Council Decision (A)”)
(BESUM, Vol. V, Annex 52).
7 Joint Application Instituting Proceedings, Appeal Against a Decision of the ICAO Council dated
29 June 2018 on Preliminary Objections (Application (A), Kingdom of Bahrain, Arab Republic of
Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates v. State of Qatar), 4 July 2018
(hereinafter “ICJ Application (A)”).
8 Ibid., para. 29.
9 Ibid., para. 19.
4
• That the ICAO Council erred in fact and in law in rejecting their Second
Preliminary Objection to the effect that Qatar did not comply with “the
necessary precondition to the existence of jurisdiction of the Council,
contained in Article 84 of the Chicago Convention, of first attempting
to resolve the disagreement regarding the airspace restrictions with the
[Joint Appellants] through negotiations prior to submitting its claims to
the Council …” (“Third Ground of Appeal”).10
II. Overview of Qatar’s Arguments
1.6 Qatar will show in the subsequent chapters of this Counter-Memorial that
all three grounds of appeal are baseless. Indeed, in its 1972 Judgment in Appeal
Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) (“the 1972
ICAO Council Appeal case”), the Court rejected arguments that were substantially
identical to those that Joint Appellants now present as their first two grounds of
appeal.
1.7 Like Joint Appellants, India argued in that case that the ICAO Council’s
decision was “vitiated” by procedural irregularities.11 The Court disagreed. It
viewed its appellate function in respect of jurisdictional decisions of the ICAO
Council in terms of “giv[ing] a ruling as to whether the Council [had] jurisdiction
in the case”.12 Making that ruling required the Court to answer only “an objective
10 Ibid.
11 I.C.J. Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
Memorial submitted by the Government of India (22 Dec. 1971), para. 93.
12 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45. On two past occasions, the Court has defined the appellate function to
involve a decision of whether the adjudicator in the first instance was substantively right or wrong.
See Case concerning the Arbitral Award made by the King of Spain on 23 December 1906
5
question of law”, which “cannot depend on what occurred before the Council”.13
The procedural irregularities India alleged were therefore irrelevant. So too are the
alleged procedural irregularities that Joint Appellants identify in their Memorial.
1.8 Qatar considers it telling that Joint Appellants never once mention the
aspect of the Court’s decision in the 1972 ICAO Council Appeal case relating to its
appellate function in respect of jurisdictional decisions of the ICAO Council, which
is fully dispositive of their First Ground of Appeal.
1.9 Like Joint Appellants, India also argued that its dispute with Pakistan was
“in the realm of political confrontation between two States … and these matters of
political confrontation … are outside the ambit of the Council’s competence”.14
The Court easily rejected this argument too, holding:
“[T]he Council [cannot] be deprived of jurisdiction
merely because considerations that are claimed to
lie outside the Treaties may be involved if,
irrespective of this, issues concerning the
interpretation or application of these instruments
are nevertheless in question. 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
(Honduras v. Nicaragua), Judgment of 18 November 1960, I.C.J. Reports 1960, p. 214; Arbitral
Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, para. 24.
13 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
14 I.C.J. Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
Memorial submitted by the Government of India (22 Dec. 1971), para. 79.
6
merits, or other considerations, which would
become relevant only after the jurisdictional issues
had been settled”.15
1.10 Joint Appellants argue that the “considerations that are claimed to lie
outside” the Chicago Convention in this case are somehow distinguishable from
those at play in the 1972 ICAO Council Appeal case because they relate to the law
of countermeasures (as opposed to the issues relating to the law of treaties that
India raised). The reasons this argument is unavailing are explained in detail in
Chapter 3. As is obvious from the language quoted above, the Court’s reasoning in
the 1972 ICAO Council Appeal case was stated in general terms and made clear
that any “defence on the merits … cannot affect the competence of the tribunal or
other organ concerned”.
1.11 Joint Appellants appear to hope that they can get a different result than that
compelled by the Court’s jurisprudence by presenting an extended—and
irrelevant—polemic about Qatar’s alleged support for terrorism and interference in
their internal affairs that is said to make the aviation prohibitions lawful
countermeasures. Not only are these allegations wholly without merit, as Qatar will
amply show in Chapter 2, they are also entirely beside the point. Joint Appellants’
assertions still constitute a defence on the merits that “cannot affect the
competence” of the ICAO Council.
1.12 Joint Appellants’ final argument that Qatar failed to fulfil the negotiation
requirement stated in Article 84 of the Convention is as unconvincing as their other
two. Having imposed the aviation prohibitions without any prior warning, Joint
15 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972,
para. 27 (emphasis added).
7
Appellants immediately stated that there was “nothing to negotiate” with Qatar,16
and then issued demands with which they said (and still say) Qatar must comply
before they will consider even discussing lifting the aviation prohibitions. They
have repeatedly and emphatically stated that these demands are “non-negotiable”.
The Court’s jurisprudence is clear that when a State is faced with such a refusal to
talk on any issue, the negotiation requirement is discharged. If a State refuses to
come to the negotiation table at all, no purpose can be served by insisting on
negotiations.
1.13 In any event, Qatar will show in Chapter 4 that it made multiple genuine
attempts to negotiate with Joint Appellants in several fora, including directly,
within the ICAO institutional framework, as well as with the facilitation of third
States. Joint Appellants rebuffed all of these efforts at every turn. For them now to
insist that Qatar failed to satisfy Article 84 of the Chicago Convention is as cynical
as it is wrong.
III. Structure of Qatar’s Counter-Memorial
1.14 The remaining chapters of this Counter-Memorial will explain in detail all
the reasons that Joint Appellants’ appeal must be rejected. Rather than address Joint
Appellants’ grounds of appeal in the order they are presented in the Memorial,
Qatar will address them starting with the preliminary objections that were
presented before the ICAO Council. That is, Qatar will first answer Joint
Appellants’ Second Ground of Appeal, which reiterates their First Preliminary
Objection, and then answer their Third Ground of Appeal, which reiterates their
16 Jon Gambrell, “Emirati diplomat to AP: ‘Nothing to negotiate’ with Qatar”, Associated Press (7
June 2017) (QCM (A) Vol. IV, Annex 72).
8
Second Preliminary Objection. Qatar will deal with Joint Appellants’ First Ground
of Appeal relating to the alleged procedural irregularities last.
1.15 In addition to being consistent with the order of presentation before the
Council, Qatar considers proceeding in this way to be in line with the Court’s
approach in the 1972 ICAO Council Appeal case. Because “giv[ing] a ruling as to
whether the Council has jurisdiction in the case” involves only “an objective
question of law” that “cannot depend on what occurred before the Council”,17 Joint
Appellants’ arguments rise or fall on the basis of their Second and Third Grounds
of Appeal. Qatar will therefore address those first.
1.16 The main text of this Counter-Memorial consists of five chapters, followed
by Qatar’s Submissions. After this Introduction, mindful of the Court’s admonition
in the 1972 ICAO Appeal case to put before the Court only what is relevant to these
proceedings,18 Chapter 2 recounts the factual background to Joint Appellants’
imposition of the aviation prohibitions in violation of the Chicago Convention. This
Chapter also exposes the disingenuousness of Joint Appellants’ baseless and
immaterial accusations that Qatar supports terrorism and interferes in Joint
Appellants’ internal affairs. In Qatar’s view, the fact that Joint Appellants are
reduced to raising such easily falsifiable claims in an attempt to justify the aviation
prohibitions raises serious questions about the motivations underpinning their
17 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
18 Ibid., para. 11 (“…with the substance of this dispute as placed before the Council, and the facts
and contentions of the Parties relative to it, the Court has nothing whatever to do in the present
proceedings, except in so far as these elements may relate to the purely jurisdictional issue which
alone has been referred to it, namely the competence of the Council to hear and determine the
case”.).
9
entire course of conduct, including their decision to appeal from an evidently sound
decision of the ICAO Council.
1.17 Chapter 3 addresses Joint Appellants’ Second Ground of Appeal. Joint
Appellants’ attempts to impose a priori restrictions on the ICAO Council’s
jurisdiction are inconsistent with its mandate to exercise its dispute settlement
functions to their full extent when issues concerning the interpretation or
application of the Chicago Convention are in dispute—as is the case here. Joint
Appellants’ transparent attempt to broaden the dispute by invoking a
countermeasures defence cannot control the jurisdiction of the Council. If it were
allowed to do so, it would not only increase the potential for abuse inherent in the
concept of countermeasures, it would also undermine the entire system of
international dispute settlement.
1.18 The simple fact is that Qatar’s claims cannot be resolved without any
interpretation or application of the Chicago Convention. Indeed, both the
availability of a countermeasures defence as a matter of principle and whether the
conditions for their exercise have been met indisputably fall within the jurisdiction
of the Council. As a result, Joint Appellants’ assertion of a countermeasures
defence cannot in any way undermine the fact that the dispute before the Council
relates to the interpretation and application of the Chicago Convention. This
Chapter concludes by showing that the adjudication of Qatar’s claims by the ICAO
Council was entirely consistent with judicial propriety.
1.19 Chapter 4 explains why the Court should deny Joint Appellants’ Third
Ground of Appeal. The record demonstrates that Qatar fulfilled the negotiation
requirement in Article 84 of the Chicago Convention by attempting to negotiate
with Joint Appellants over the aviation prohibitions on multiple occasions, through
multiple avenues and in multiple fora, only to be rebuffed by Joint Appellants at
10
every turn. Moreover, contrary to what Joint Appellants allege, Qatar duly
complied with the requirements of Article 2(g) of the ICAO Rules for the
Settlement of Differences.
1.20 Chapter 5 shows that Joint Appellants’ complaints about the putative
procedural irregularities before the ICAO Council are baseless. First, consistent
with the Court’s decision in the 1972 ICAO Council Appeal case, the Court need
not rule on Joint Appellants’ procedural complaints because the Council Decision
was objectively correct. Second, even if the Court were to depart from its ruling in
the 1972 ICAO Council Appeal case and consider Joint Appellants’ procedural
complaints, this Chapter makes clear there were no irregularities in the procedure
adopted by the Council. The Council conducted the proceedings and adopted its
decision in accordance with the provisions of the Chicago Convention, the ICAO
Rules for the Settlement of Differences, the Rules of Procedure for the Council,
and its own practice. In addition, none of the procedural complaints Joint
Appellants identify in their Memorial prejudiced in any fundamental way the
requirements of just procedure.
1.21 This Counter-Memorial concludes with Qatar’s submissions.
11
CHAPTER 2
JOINT APPELLANTS’ “REAL DISPUTE” ARGUMENT IS AN
ARTIFICE FOR ESCAPING SCRUTINY OF THEIR AVIATION
PROHIBITIONS
2.1 This Chapter sets forth the factual background to the dispute regarding Joint
Appellants’ violations of the Chicago Convention and its Annexes that gave rise to
Qatar’s October 2017 Application before the ICAO Council. It also responds to
the false accusations about Qatar’s alleged “failure to confront terrorism and
extremism”, “state-sponsored dissemination of hate speech and incitement” and
“violation of the principle of non-intervention” that Joint Appellants make in their
Memorial.19
2.2 Qatar has chosen to respond to Joint Appellants’ accusations with
reluctance. It could have rested on the fact that they are—to use the words of the
Court in the 1972 ICAO Council Appeal case—plainly unrelated to the “purely
jurisdictional issue which alone has been referred to it”.20 That is the approach
Qatar took when Joint Appellants made similar charges before the ICAO Council
in an attempt to justify their first jurisdictional objection (raised in these
proceedings as their Second Ground of Appeal). The Council had no difficulty
seeing them for what they are. Qatar trusts that the Court would have done the same
even without the aid of responsive argument.
2.3 Qatar has chosen to respond now only to protect the integrity of these
proceedings before the principal judicial organ of the United Nations. Far from
19 Many of these false and malicious accusations are repeated throughout Joint Appellants’
pleadings, but they can be found in most detail in BESUM Chapter II.
20 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 11.
12
“confirm[ing] the conclusion that the dispute is indeed unrelated to air navigation
and transport”,21 Joint Appellants’ cynical (and easily disproved) accusations only
underscore how unjustifiable their actions since 5 June 2017 have been.
2.4 The remainder of this Chapter takes up these points in turn. Section I details
Joint Appellants’ unlawful imposition of the aviation prohibitions in violation of
the Chicago Convention and its Annexes, as well as Qatar’s attempts to mitigate
their impact through dialogue under the auspices of ICAO. Section II puts Joint
Appellants’ baseless allegations about Qatar’s alleged violations of the Riyadh
Agreements and other rules of international law into proper context and shows
them for what they are: an artifice to avoid scrutiny of the aviation prohibitions that
are the subject of this case.
I. Joint Appellants Imposed the Aviation Prohibitions in Breach of the
Chicago Convention and its Annexes
2.5 On 5 June 2017 (10 Ramadan 1438), Joint Appellants imposed a blanket
prohibition on all Qatar-registered aircraft from flying to or from their airports and
from overflying their national airspaces and Flight Information Regions
(“FIR”22).23 This unprecedented closure of airspace was communicated without
21 BESUM, para. 2.2.
22 A flight information region (FIR) is a specified sector of airspace in which a certain entity
provides flight information and alerting services. A State’s management of an FIR is not
determinative of sovereignty over airspace within the FIR. See ICAO, Assembly Resolution A 38-
12: Consolidated statement of continuing ICAO policies and associated practices related
specifically to air navigation, ICAO Doc. 10022 (entered into force as of 4 Oct. 2013), Appendix
G, para. 7 (“the approval by the Council of regional air navigation agreements relating to the
provision by a State of air traffic services within airspace over the high seas does not imply
recognition of sovereignty of that State over the airspace concerned”.) (QCM (A) Vol. II, Annex
14).
23 The aviation prohibitions are only part of an array of measures seeking to sever all relations
among the Parties. Indeed, on that same day, 5 June 2017, Joint Appellants, inter alia, severed
diplomatic relations with Qatar and closed their land and sea borders to travel and trade with Qatar
13
prior warning (itself a violation of Annex 15 of the Chicago Convention24) through
Notices to Airmen (“NOTAMs”) from Joint Appellants’ respective Civil Aviation
Authorities.25
2.6 Saudi Arabia sent its first NOTAM revoking the authorisation of Qatarregistered
aircraft from landing at Saudi Arabian airports at 04:42 AM on 5 June.26
The NOTAM was said to be effective as of 04:35 AM that same day (i.e., seven
minutes before it was released).27 Saudi Arabia issued a second NOTAM at 09:37
with immediate effect. Appellants Bahrain, Saudi Arabia, and the UAE also demanded that all
Qatari residents and visitors leave their territories within fourteen days. See Kingdom of Bahrain
Ministry Foreign Affairs News Details, “Statement of the Kingdom of Bahrain on the severance of
diplomatic relations with the State of Qatar”, 5 June 2017 (BESUM Vol. V, Annex 73); ICAO
Preliminary Objections (A), Exhibit 6, Declaration of the Arab Republic of Egypt, 4 June 2017
(BESUM Vol. III, Annex 24); ICAO Preliminary Objections (A), Exhibit 9, Declaration of the
United Arab Emirates, 5 June 2017 (BESUM Vol. III, Annex 24); “The Kingdom severs
diplomatic and consular relations with Qatar”, Saudi Ministry of Foreign Affairs (5 June 2017)
(QCM (A) Vol. III, Annex 48). In its Order of 23 July 2018, the Court found that some of the
measures adopted on 5 June 2017 by the UAE “may constitute acts of racial discrimination” under
the International Convention on the Elimination of All Forms of Racial Discrimination. Application
of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v.
United Arab Emirates), Request for the Indication of Provisional Measures, Order (23 July 2018),
p. 20, para. 54.
24 The then-applicable 15th edition of Annex 15 of the Chicago Convention required that States give
at least seven days’ advance notice before establishing prohibited areas, other than for emergency
operations, which is not the case here. Convention on International Civil Aviation, Annex 15:
Aeronautical Information Services (15th ed., July 2016), Standard 5.1.1.4 (“At least seven days’
advance notice shall be given of the activation of established danger, restricted or prohibited areas
and of activities requiring temporary airspace restrictions other than for emergency operations”.)
(QCM (A) Vol. II, Annex 16).
25 The NOTAMs were released globally through the international distribution channels for
NOTAMs, and the aviation prohibitions were also communicated through public statements in
various media.
26 ICAO Response to Preliminary Objections (A), Exhibit 5, NOTAMS Issued by the Respondents,
[PDF] p. 985 (BESUM Vol. IV, Annex 25).
27 ICAO Response to Preliminary Objections (A), Exhibit 5, NOTAMS Issued by the Respondents,
[PDF] p. 985 (BESUM Vol. IV, Annex 25). In addition to violating the seven-day advance notice
requirement of Annex 15 of the Chicago Convention, Appellant Saudi Arabia’s back-timing of this
and other NOTAMs violates Annex 17 of the Chicago Convention, which prohibits the
“communication of false information such as to jeopardize the safety of an aircraft in flight or on
14
AM that prohibited Qatar-registered aircraft from overflying “Saudi Arabian
airspace”, effective as of 12:01 AM on 6 June.28 Subsequent NOTAMs issued on
5 June at 10:04 AM and 11:41 AM required all non-Saudi-registered aircraft flying
to or from Qatari airports through Saudi Arabian airspace to coordinate with Saudi
Arabia’s General Authority of Civil Aviation, effective as of 12:01AM on 6 June.29
2.7 Purportedly acting on behalf of the Republic of Yemen, Saudi Arabia also
issued a NOTAM at 3:46 PM on 6 June prohibiting all Qatar-registered aircraft
from overflying Yemeni airspace.30 Like the first Saudi NOTAM, its operative
force was back-timed to 3:35 PM, eleven minutes before it was issued.31
2.8 For its part, the UAE issued a NOTAM banning all Qatar-registered aircraft
from overflying the UAE FIR (which includes UAE territory and large portions of
the high seas in the Arabian Gulf) and landing at UAE aerodromes (which include
airports, airfields and military landing strips) at 08:37 AM on 5 June.32 It also
required all non-UAE-registered operators intending to use UAE airspace to fly to
or from Qatar to seek prior approval from the UAE’s General Civil Aviation
the ground” as an act of unlawful interference. Chicago Convention, Annex 17: Security (10th ed.,
Apr. 2017), Chapter 1, at 1-1 (QCM (A) Vol. III, Annex 20).
28 ICAO Response to Preliminary Objections (A), Exhibit 5, NOTAMS Issued by the Respondents,
[PDF] p. 985 (BESUM Vol. IV, Annex 25).
29 Ibid.
30 ICAO Response to Preliminary Objections (A), Exhibit 5, NOTAMS Issued by the Respondents,
[PDF] p. 987 (BESUM Vol. IV, Annex 25).
31 Ibid.
32 ICAO Response to Preliminary Objections (A), Exhibit 5, NOTAMS Issued by the Respondents,
[PDF] p. 984 (BESUM Vol. IV, Annex 25).
15
Authority by providing them with a copy of the detailed flight manifest at least 24
hours prior to departure.
2.9 Bahrain issued NOTAMs at 11:17 AM and 11:22 AM on 5 June banning
all flights between Bahrain and Qatar, and all Qatar-registered aircraft from
overflying “Bahrain airspace”, respectively.33 Bahrain issued two additional
NOTAMs at 11:29 AM and 11:59 AM that day, specifying that all flights affected
by the previous two NOTAMs should use two specific entry and exits routes in the
Bahrain FIR. Because the Bahrain FIR fully encompasses Qatar’s territory and
much of the high seas surrounding it, this had the effect of closing off the rest of
the airspace over the Arabian Gulf high seas.34 Bahrain also informed Qatar of its
intent to establish a so-called “buffer zone” adjacent to its territorial waters,
threatening to intercept militarily any Qatar-registered aircraft entering it.35 Two
days later, on 7 June, Bahrain issued another NOTAM requiring all non-Bahrainregistered
operators intending to use Bahraini airspace to fly to or from Qatar to
obtain approval from Bahrain’s Civil Aviation Authority.36
2.10 Egypt acted at 12:25 PM on 5 June when it issued a NOTAM banning all
Qatar-registered aircraft from overflying the Cairo FIR (which includes portions of
33 ICAO Response to Preliminary Objections (A), Exhibit 5, NOTAMS Issued by the Respondents,
[PDF] pp. 981-983 (BESUM Vol. IV, Annex 25).
34 See ICAO Council, First ATM Contingency Coordination Meeting For Qatar, Summary of
Discussions, ICAO Doc. ACCM/1 (6 July 2017), Appendix A at 4-5 (map indicating that prior
Westbound routes were prohibited by NOTAM, leaving only two available routes for entry into and
exit from Doha for Qatar-registered aircraft) (QCM (A) Vol. III, Annex 26). See also infra Figure
2: Two ATS Routes Available Post-Aviation Prohibition.
35 ICAO Response to Preliminary Objections (A), Exhibit 3, Letter from Adbulla Nasser Turki Al-
Subaey, Chairman of Qatar Civil Aviation Authority, to Dr. Olumuyiwa Benard Aliu, President of
ICAO, 2017/15984 (8 June 2017) (BESUM Vol. IV, Annex 25).
36 ICAO Response to Preliminary Objections (A), Exhibit 5, NOTAMS Issued by the Respondents,
[PDF] pp. 981-983 (BESUM Vol. IV, Annex 25).
16
the high seas over the Mediterranean Sea37) and departing or landing at Egyptian
aerodromes.38 The same NOTAM also required all non-Egypt-registered operators
intending to use the Cairo FIR for travel to or from Qatar to obtain prior approval
from the Egypt Civil Aviation Authority.39
2.11 Individually and collectively, Joint Appellants’ aviation prohibitions
caused immediate and widespread disruption and confusion. Over 70 flights,
scheduled by multiple carriers, were cancelled on 6 June.40 Hundreds of
passengers, including pilgrims who were seeking to perform the Umrah pilgrimage,
were left stranded and forced to rebook and reroute their travel plans.41 Over the
first week of the aviation prohibitions, tens of thousands of seat reservations for
flights into and out of Doha across all airlines and for all forward travel dates were
cancelled.42
2.12 The aviation prohibitions also jeopardised the security and safety of at least
five aircraft that were en-route in Yemen airspace on 5 June, since the NOTAM
restricting that airspace was back-timed. These en-route flights were required to
make urgent, unexpected route changes that resulted in the filing of two Air Safety
37 See ICAO, Interactive Map, “Cairo FIR” (QCM (A) Vol. III, Annex 33).
38 ICAO Response to Preliminary Objections (A), Exhibit 5, NOTAMS Issued by the Respondents,
[PDF] p. 986 (BESUM Vol. IV, Annex 25).
39 Ibid.
40 “Gulf blockade disrupts Qatar Airways flights”, Al Jazeera (7 June 2017) (QCM (A) Vol. IV,
Annex 73).
41 “Qatar row: Air travellers hit by grounded flights”, BBC (5 June 2017) (QCM (A) Vol. IV, Annex
68); Naveed Siddiqui, “550 Pakistani pilgrims stranded in Qatar flown to Muscat”, Dawn (6 June
2017) (QCM (A) Vol. IV, Annex 70).
42 “Slump in travel to and from Qatar as thousands of airline bookings are cancelled”, The National
(13 June 2017) (QCM (A) Vol. IV, Annex 77).
17
Occurrence Reports.43
2.13 Qatar immediately notified the ICAO Council of Joint Appellants’ actions,
and requested its urgent intervention at least to allow overflight of international
airspace over the high seas lying within Joint Appellants’ FIRs.44 On 8 June 2017,
Qatar formally requested that an extraordinary session of the ICAO Council be
convened under Article 54(n) of the Chicago Convention.45 The ICAO Council
scheduled an extraordinary meeting for 31 July 2017 to consider Qatar’s request.
2.14 In the Memorial, Joint Appellants allege that they “cooperated extensively
and in a timely manner with both ICAO and Qatar to agree to and complement
contingency routes and related contingency arrangements and to avoid unnecessary
disruption of air traffic”.46 This is not true. Figure 1 (immediately following this
page) shows that prior to 5 June 2017, Qatar’s national carrier, Qatar Airways, had
43 Any event that has or could have significance in the context of aviation safety should be reported
in an Air Safety Occurrence Report, consistent with the provisions of ICAO Annex 13 on Aircraft
accident and incident investigation.
44 Letter from Adbulla Nasser Turki Al-Subaey, Chairman of Qatar Civil Aviation Authority, to
Fang Liu, ICAO Secretary General (5 June 2017) (QCM (A) Vol. III, Annex 21). See also ICAO
Council, 21st Session, Summary of Decisions, ICAO Doc. C-DEC 211/10 (27 June 2017), para.
21(a) (describing efforts of ICAO Middle East Regional Office since 5 June) (QCM (A) Vol. III,
Annex 25).
45 ICAO Response to Preliminary Objections (A), Exhibit 3, Letter from Adbulla Nasser Turki Al-
Subaey, Chairman of Qatar Civil Aviation Authority, to Dr. Olumuyiwa Benard Aliu, President of
ICAO, 2017/15984 (8 June 2017) (BESUM Vol. IV, Annex 25). Article 54(n) of the Chicago
Convention provides that the Council shall “[c]onsider any matter relating to the Convention which
any contracting State refers to it”. Chicago Convention, Art. 54(n) (BESUM Vol. II, Annex 1).
46 BESUM, para. 2.55. “Contingency plans are intended to provide alternative facilities and services
to those provided for in the regional air navigation plan when those facilities and services are
temporarily not available. Contingency arrangements are therefore temporary in nature, remain in
effect only until the services and facilities of the regional air navigation plan are reactivated and,
accordingly, do not constitute amendments to the regional plan requiring processing in accordance
with the ‘Procedure for the Amendment of Approved Regional Plans’”. Chicago Convention, Annex
11: Air Traffic Services (14th ed., July 2016), Attachment C, p. ATT C-1 (QCM (A) Vol. II, Annex
17).

THIRTEEN ATS ROUTES AVAILABLE
PRE-AVIATION PROHIBITIONS
Source: Qatar Civil Aviation Authority
Figure 1

18
access to 13 regular Air Traffic Service (“ATS”) routes47 available for flights into
and out of Doha, including operations flying over Joint Appellants’ territories.
2.15 After the aviation prohibitions went into effect, Qatari-registered aircraft
were prohibited from transiting Joint Appellants’ territory and national airspace.
They were restricted to using only two routes, both over the high seas in the Bahrain
FIR,48 as reflected in Figure 2 (immediately following this page).
2.16 It was only after ICAO’s intervention after Qatar’s repeated appeals to it
(given that all channels of communication with the relevant authorities of Joint
Appellants had been effectively shut off since 5 June 2017, as will be discussed
below49), and about a week after the imposition of the measures, that Appellants
Bahrain, Egypt and the UAE issued NOTAMs revising the scope of their aviation
prohibitions to apply only to their respective national airspaces.50 On 11 June,
Bahrain restored two modified ATS routes for traffic flows to and from the West
over the high seas off of Bahrain.51
47 ATS routes are designated routes for channelling the flow of air traffic as necessary for the
provision of air traffic service, pursuant to ICAO regulations.
48 See ICAO Council, First ATM Contingency Coordination Meeting For Qatar, Summary of
Discussions, ICAO Doc. ACCM/1 (6 July 2017), Appendix A at 4-5 (QCM (A) Vol. III, Annex
26).
49 See infra Chapter 4, paras. 4.28, 4.29.
50 Bahrain and Egypt issued their revised NOTAMs on 10 June, while the UAE issued its revised
NOTAM on 12 June. ICAO Response to Preliminary Objections (A), Exhibit 5, NOTAMS Issued
by the Respondents, [PDF] pp. 981-986 (BESUM Vol. IV, Annex 25).
51 ICAO Council, First ATM Contingency Coordination Meeting for Qatar, Summary of
Discussions, ICAO Doc. ACCM/1 (6 July 2017), Appendix A, pp. 9-10 (QCM (A) Vol. III, Annex
26).

TWO ATS ROUTES AVAILABLE
POST-AVIATION PROHIBITIONS
Source: Qatar Airways
Figure 2

19
2.17 On 13 June, Qatar submitted a proposal for a contingency route over UAE
territory, which the UAE rejected.52 A separate proposal for a contingency route
via the Bahrain FIR over the high seas was presented on 18 June. It was approved
on 20 June and began operation on 22 June.53 Additional proposals for contingency
routes over the high seas areas of the UAE FIR were proposed on 20 June and
remained under consideration into August.
2.18 By 22 June 2017, more than two weeks after the introduction of the aviation
prohibitions, only two additional modified ATS airways had been re-opened and
only one contingency route had been established—all by Bahrain in the Bahrain
FIR (which, as stated, encompasses Qatar and the high seas surrounding it). The
other Joint Appellants continued to reject or delay consideration of all of Qatar’s
proposals to open additional routes.54
2.19 Following the 31 July 2017 extraordinary session of the ICAO Council
convened at Qatar’s request, the Council issued a decision “urging all ICAO
Member States to continue to collaborate, in particular, to promote the safety,
security, efficiency and sustainability of international civil aviation”.55 That same
day, the UAE approved an additional inbound contingency route over the high seas,
but with limited air traffic volume permitted; that contingency route was opened as
52 ICAO Council, First ATM Contingency Coordination Meeting for Qatar, Summary of
Discussions, ICAO Doc. ACCM/1 (6 July 2017), Appendix B, pp. 14-20 (QCM (A) Vol. III,
Annex 26).
53 Ibid., para. 6.4.
54 See Appendices of Working Paper 14640: Contingency Arrangements and ATM
Measures in the MID Region by Kingdom of Bahrain, Arab Republic of Egypt, Kingdom
of Saudi Arabia and United Arab Emirates (2017) (providing maps and timing of the
routes that Joint Appellants ultimately agreed to open) (QCM (A) Vol. IV, Annex 135).
55 ICAO Council, ICAO Annual Report 2017: Settlement of Differences (QCM (A) Vol. II, Annex
18).
20
of 7 August 2017.56 The day after the extraordinary session of the Council, Egypt
also approved a contingency route over the high seas portion of the Cairo FIR, but
the route was of little to no operational value.57
2.20 As shown in Figure 3 (immediately following this page), little has changed
since 30 October 2017, when Qatar submitted its Application to the ICAO Council
under Article 84 of the Chicago Convention.58 The prohibition of taking off and
landing at Joint Appellants’ airports and overflying their territories remains in
effect to this day.
2.21 As a result of the aviation prohibitions, Qatar Airways has had to cancel
more than 50 flights a day and discontinue operations serving 18 destinations in
Joint Appellants’ territory, accounting for approximately 18% of its overall seating
capacity.59 The aviation prohibitions have also forced Qatar Airways to use limited
and less convenient air routes for the destinations that it continues to serve, leading
to dangerous congestion and compromising the efficiency of civil aviation in light
56 Appendices of Working Paper 14640: Contingency Arrangements and ATM Measures in the
MID Region by Kingdom of Bahrain, Arab Republic of Egypt, Kingdom of Saudi Arabia and
United Arab Emirates (2017), p. 16 (indicating the UAE's acceptance on 7 August 2017 of the
T665 westbound proposal for Qatar Airways arrivals) (QCM (A) Vol. IV, Annex 135).
57 ICAO Response to the Preliminary Objections (A), Exhibit 10, Council – Extraordinary
Session, Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (Closed) (31 July 2017),
para. 41 (indicating that contingency route in Cairo FIR would open the following day, 1 August
2017) (BESUM Vol. IV, Annex 25); ICAO Council, Third ATM Contingency Coordination
Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/3 (5-6 Sept. 2017), para. 6.5
(noting the lack of use of the Cairo FIR contingency route T565) (QCM (A) Vol. III, Annex 27).
58 The only changes have been (1) to increase air traffic into T665 (see ICAO Council, Third ATM
Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/3 (5-6
Sept. 2017), para. 6.12.1 (QCM (A) Vol. III, Annex 27)) and (2) to open a new inbound route to
Doha in the Bahrain FIR, which became operative only on 31 January 2019 (see ICAO Council,
Fourth ATM Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc.
ACCM/4 (28 April 2018) (QCM (A) Vol. III, Annex 34)).
59 Zahraa Alkhalisi, “Arab blockade is nightmare for Qatar Airways”, CNN (6 June 2017) (QCM
(A) Vol. IV, Annex 71).
SEVEN ATS ROUTES AVAILABLE AS
OF 4 FEBRUARY 2019
Source: Qatar Civil Aviation Authority
Figure 3

21
of increases in flight times and fuel consumption occasioned by the required
rerouting.60
2.22 As set forth in its 30 October 2017 Application before the ICAO Council,
Qatar challenges the aviation prohibitions as violations of multiple provisions of
the Chicago Convention and its Annexes, including Article 4 by “misusing civil
aviation for purposes inconsistent with the aims of the Chicago Convention”;
Article 5 by “den[ying] the right of non-scheduled flight over their territories by
Qatar-registered aircraft in clear violation of the Convention”; Article 6 by “grossly
violat[ing] the[ir] air services Agreements without any warning”; Article 9 by the
“discriminatory application of the closure of the airspaces of the [Joint Appellants]
solely for Qatar-registered aircraft”; Article 12 by discriminatory treatment over
the high seas within Joint Appellants’ FIRs; and Article 37 by failing to
“collaborate in the implementation of the ICAO Standards”.61 The Council upheld
its jurisdiction over these claims in the Council Decision that is the subject of the
appeal now before the Court.62
2.23 It is this simple reality that Joint Appellants seek to confuse with their false
accusations about Qatar’s supposed support of terrorism and extremism and
interference with their domestic affairs. Qatar will show the baselessness of Joint
Appellants’ charges below.
60 Max Bearak, “Three maps explain how geopolitics has Qatar Airways in big trouble”, Washington
Post (7 June 2017) (demonstrating the added flight time and fuel consumption caused by the
aviation prohibitions) (QCM (A) Vol. IV, Annex 74).
61 ICAO Application (A), para. 4 (BESUM Vol. III, Annex 23).
62 ICAO Council Decision (A) (BESUM, Vol. V, Annex 52).
22
II. Joint Appellants’ Accusations Are False
2.24 In their Memorial, Joint Appellants claim that the aviation prohibitions
reflect their “considered assessments of Qatar’s numerous and ongoing violations
of international legal obligations”.63 They assert that these ostensible violations
consist of the “fail[ure] to suppress the activities of terrorists and extremists living
within its borders and … to prosecute such terrorists and extremists”; “systematic[]
interfere[nce] in the internal affairs of the Appellants and other States”; and “use[]
[of] … State-owned and controlled media – in particular the Al Jazeera network –
to incite hatred and violence”.64 Joint Appellants’ “evidence” for these very serious
charges consists almost entirely of media reports and their own official statements.
2.25 Qatar will explain in Chapter 3 why Joint Appellants’ attempt to obfuscate
the real issues in dispute fails as a matter of law. Here, Qatar shows that it also has
no foundation in fact and, indeed, has been rejected by the international community
at large. The fact that Joint Appellants are reduced to hiding behind such baseless
allegations raises questions about the true motivations for their entire course of
conduct, including their decision to appeal the Council Decision to the Court. Joint
Appellants are not genuinely concerned about Qatar’s (non-existent) support for
terrorism or interference in their internal affairs. What they really want is to force
Qatar to abandon its commitment to freedom of expression and political
tolerance—a commitment that, regrettably, Joint Appellants view as a threat.
63 BESUM, para. 2.8.
64 Ibid.
23
A. JOINT APPELLANTS’ ALLEGATIONS OF SUPPORT OF TERRORISM AND
EXTREMISM ARE FALSE
2.26 Joint Appellants contend that Qatar “has a long history of supporting
extremist and terrorist groups in the Middle East and North Africa”.65 However,
the “evidence” they provide in support of this grave charge, much of which is quite
dated, collapses under scrutiny. Their claim is also flatly contradicted by the larger
international community, including specialised organisations mandated to combat
the financing of terrorism, the Gulf Cooperation Council (“GCC”), the European
Union (“EU”) and the United States of America, which have consistently
recognised Qatar’s leadership role in countering terrorism and extremism—and
increasingly expressed concerns about Joint Appellants’ own record in this area.
2.27 Joint Appellants cite, for example, a 16-year-old New York Times article
for the proposition that a Qatari official “helped” the architect of the 9/11 World
Trade Center terrorist attack, Khalid Shaikh Mohammad, “evade a January 1996
arrest warrant issued by the United States for his terrorist activities …”.66 But the
very same article proves the accusation baseless when it quotes the then-U.S.
Ambassador to Qatar as saying, “I have no information that would lead me to
conclude that the Qatar government tipped off Khalid Shaikh Mohammed”, as well
as other U.S. officials who conceded that there is no “hard evidence” to substantiate
the allegation.67
65 BESUM, para. 2.10.
66 “Threats and Responses: Counterterrorism; Qaeda Aide Slipped Away Long Before Sept. 11
Attack”, The New York Times, 8 March 2003 (BESUM Vol. VI, Annex 100); See also BESUM,
para. 2.11.
67 Ibid.
24
2.28 Joint Appellants’ assertion is not without irony. All 19 of the 9/11 hijackers
were citizens of one of the four Appellants in this case: 15 were citizens of Saudi
Arabia, two were citizens of the UAE and one was a citizen of Egypt.68 None were
Qatari. Indeed, Saudi Arabia will soon have to face allegations of its involvement
in helping to plan the 9/11 terrorist attacks, having recently lost a motion to dismiss
a lawsuit to that effect in the United States.69 The UAE also faces potential
exposure in those actions given that many of the hijackers travelled through the
UAE and significant financial resources were transmitted through UAE banks to
the hijackers and other Al-Qaida operatives.70
2.29 Next, Joint Appellants contend that in 2003 (i.e., 16 years ago) Qatar
provided “safe haven” for Zelimkhan Yandarbiyev,71 a former president of
Chechnya who they say was placed on the UN Security Council Al-Qaida
Committee list for allegedly fundraising for terrorist groups, and was the subject of
a Russian extradition request, which Qatar refused to honour.72 Joint Appellants,
however, fail to mention that Mr. Yandarbiyev was added to the UN Security
Council list only a few months before he was assassinated in Doha in February
2004.73 Moreover, the 2008 report from the International Monetary Fund (“IMF”)
68 “September 11 Hijackers Fast Facts”, CNN (27 July 2013) (QCM (A) Vol. IV, Annex 64).
69 Jonathan Stempel, “Saudi Arabia must face U.S. lawsuits over Sept. 11 attacks”, Reuters (28 Mar.
2018) (QCM (A) Vol. IV, Annex 97).
70 Jamie Merrill, “REVEALED: 9/11 families could sue UAE for alleged role in attacks”, Middle
East Eye (14 July 2017) (QCM (A) Vol. IV, Annex 83).
71 BESUM, para. 2.11.
72 Ibid. See also International Monetary Fund, Qatar: Detailed Assessment Report on Anti-Money
Laundering and Combating the Financing of Terrorism, 19 June 2018, published October 2008, p.
46, para. 184 (BESUM Vol. VII, Annex 130).
73 Mr. Yandarbiyev was placed on the UN Security Council list on 26 June 2003. United Nations
Press Release SC/7803, “Security Council Committee Adds Names of 17 Individuals to Al-Qaida
Section of Consolidated List”, 26 June 2003 (BESUM Vol. VI, Annex 89).
25
on which Joint Appellants rely to support this contention, expressly references
Qatari authorities’ statements that “the purpose of [their] refusal [to extradite Mr.
Yandarbiyev to Russian authorities] was to ensure [his] protection”.74 Qatar’s
concerns appear to have been well-founded, given that two Russians were
subsequently tried and convicted of killing him.75
2.30 The same 2008 IMF report notably concluded that “there is currently no
evidence of significant [money laundering] in the country”, the “level of predicate
offenses appears very low in Qatar in comparison to other countries”, “Qatar ranks
among the less corrupted countries in the region”, and “[n]o major terrorist activity
has been recorded in the country”.76 The report also made certain recommendations
and comments regarding the criminalisation of terrorist financing,77 which have all
since been implemented. Qatar Law No. 4 of 2010 not only criminalised money
laundering and terrorism financing, but it also established a National Committee
for Anti-Money Laundering and Anti-Terrorist Financing with authority to freeze
assets and impose travel bans.78 In 2017, Qatar also amended its counterterrorism
legislation to establish a domestic terrorist listing mechanism based on, but separate
from, the UN Security Council Sanctions Committee’s designated list.79
74 International Monetary Fund, Qatar: Detailed Assessment Report on Anti-Money Laundering and
Combating the Financing of Terrorism, 19 June 2008, published October 2008, p. 46, para. 184
(BESUM Vol. VII, Annex 130).
75 Steven Lee Myers, “Qatar Court Convicts 2 Russians in Top Chechen’s Death”, New York Times
(1 July 2004) (QCM (A) Vol. IV, Annex 60).
76 International Monetary Fund, Qatar: Detailed Assessment Report on Anti-Money Laundering and
Combating the Financing of Terrorism, 19 June 2008, published October 2008, pp. 19-20, paras.
59-63 (BESUM Vol. VII, Annex 130).
77 Ibid., p. 147, para. 185.
78 State of Qatar, Law No. 4 of 2010 on Combating Money Laundering and Terrorism Financing
(18 Mar. 2010) (QCM (A) Vol. III, Annex 44).
79 State of Qatar, Decree No. 11 of 2017 to Amend Law No. 3 of 2004 (13 July 2017) (QCM (A)
Vol. III, Annex 45).
26
Designations and prosecutions have already been undertaken utilising these
frameworks and mechanisms.80
2.31 Joint Appellants also mention a 2014 statement made by the U.S. Under
Secretary for Terrorism and Financial Intelligence, Mr. David Cohen, who
described Qatar as a “permissive jurisdiction” for terrorist financing.81 That
characterisation stands in stark contrast with the IMF report just cited, and the fact
that Qatar was the first State to negotiate and sign a detailed counterterrorism
agreement with the United States.82 After the signing of this agreement, the U.S.
Secretary of State stated that “on the issue of terrorism financing, Qatar had now
leapfrogged its rivals”.83
2.32 In this respect, Qatar also notes that on 22 May 2017, two weeks before the
imposition of the aviation prohibitions, it joined the Terrorist Financing Targeting
Center (“TFTC”), a partnership between the United States and the GCC Member
States designed to help disrupt terrorist financial networks. Qatar attended TFTC
80 See, e.g., Noah Browning, “Qatar puts 28 people and entities on new terrorism list”, Reuters (22
March 2018) (QCM (A) Vol. IV, Annex 95).
81 ICAO Preliminary Objections (A), Exhibit 19, Remarks of Under Secretary for Terrorism and
Financial Intelligence David Cohen before the Center for a New American Security on Confronting
New Threats in Terrorist Financing, 3 April 2014 (BESUM Vol. III, Annex 24); see also BESUM,
para. 2.12.
82 U.S. Department of State, Press Availability with Qatari Foreign Minister Sheikh Mohammed
bin Abdulrahman al-Thani, (11 July 2017) (QCM (A) Vol. III, Annex 49). The Qatar-U.S.
Counterterrorism Memorandum of Understanding had been negotiated between the parties for
approximately a year before it was signed on 11 July 2017. N. Gaouette & Z. Cohen, “US and Qatar
broker counterterrorism agreement”, CNN (11 July 2017) (QCM (A) Vol. IV, Annex 82). See also
U.S. Department of State, Joint Statement of the Inaugural United States-Qatar Strategic Dialogue
(30 Jan. 2018) (“United States thanked Qatar for its action to counter terrorism and violent
extremism in all forms, including by being one of the few countries to move forward on a bilateral
Memorandum of Understanding with the United States”.) (QCM (A) Vol. III, Annex 51).
83 ICAO Response to Preliminary Objections (A), Exhibit 47, Tillerson Tries Shuttle Diplomacy in
Qatar Dispute (11 July 2017) (BESUM Vol. IV, Annex 25).
27
meetings held after the imposition of the aviation prohibitions and the other
measures of 5 June 2017, in July 2017, March 2018 and May 2018 and jointly
designated with other TFTC members 11 individuals and two entities as terrorist
financiers on 25 October 2017,84 and a further 28 individuals as terrorist financiers
on 22 March 2018.85 Even as they accuse Qatar of supporting “terrorism and
extremism” before the Court, Saudi Arabia the UAE and Bahrain continue to work
constructively and without complaint with Qatar within the framework of the
TFTC.86
2.33 Qatar is also a founding member of and among the largest contributors to
the Global Counterterrorism Task Force, which coordinates and funds local
initiatives to counter terrorism by 30 different countries, including China, Russia,
India, France, Germany, Japan, Turkey, the United Kingdom and Appellants
Egypt, Saudi Arabia and the UAE.87
2.34 Here again, Qatar cannot help but note the irony in Joint Appellants’
allegations. Both Saudi Arabia and the UAE are reportedly significant hubs for
fundraising activities for South Asia-based terrorist groups, including the Afghan
84 “Qatar’s sanctions hit 13 facilitators of terrorism”, Qatar Tribune (26 Oct. 2017) (QCM (A) Vol.
IV, Annex 93).
85 Noah Browning, “Qatar puts 28 people and entities on new terrorism list”, Reuters (22 Mar. 2018)
(QCM (A) Vol. IV, Annex 95).
86 U.S. Embassy & Consulate in the UAE, Meeting of the Terrorist Financing Targeting Center
Member States Convenes in Kuwait (6 Mar. 2018) (QCM (A) Vol. III, Annex 52); “Co-Led by
US, Saudi Arabia, TFTC Members Meet in Kuwait”, Kuwait News Agency (11 May 2018) (QCM
(A) Vol. IV, Annex 98). Qatar’s security cooperation with Appellants Bahrain, Saudi Arabia and
UAE also continues unabated. At the last GCC Summit in December 2018, Saudi Arabia’s Foreign
Minister Adel al Jubeir recognized this reality, stating that “the dispute would not affect military
cooperation”. Stephen Kalin, “Qatar rift overshadows Gulf Arab summit as emir stays away”,
Reuters (8 Dec. 2018) (QCM (A) Vol. IV, Annex 102).
87 U.S. Department of State, Global Counterterrorism Forum Co-Chairs: About the Global
Counterterrorism Forum (GCTF) (23 Sept. 2014) (QCM (A) Vol. III, Annex 46).
28
Taliban, Lashkar-e-Taiba and the Haqqani Network.88 These activities include
donor fundraising, money laundering and extortion of expatriate populations. UAE
banks have also been accused of facilitating the transfer of funds to terrorists and
terrorist groups, including those responsible for the 9/11 attacks and the 2008
Mumbai attacks.89
2.35 In addition, a September 2018 report of the Financial Action Task Force90
(“FATF”) on Saudi Arabia found that “Saudi Arabia is not effectively investigating
and prosecuting individuals involved in larger scale or professional [money
laundering] activity”, “is not effectively confiscating the proceeds of crime”, and
“does not effectively seek international co-operation from other countries to pursue
money laundering and the proceeds of crime”.91 This means that every year,
billions of dollars in criminal proceeds leave Saudi Arabia without a trace.92
88 Declan Walsh, “WikiLeaks cables portray Saudi Arabia as a cash machine for terrorists”, The
Guardian (5 Dec. 2010) (QCM (A) Vol. IV, Annex 62); G. Jaffe & M. Ryan, “A Dubai shopping
trip and a missed chance to capture the head of the Taliban”, Washington Post (24 Mar. 2018)
(noting evidence of frequent trips by the Taliban leader to Dubai) (QCM (A) Vol. IV, Annex 96).
Saudi Arabia and the UAE were also two of the only three States that recognized the Taliban as the
legitimate government of Afghanistan in the late 1990s. Adrian Guelke, Terrorism and Global
Disorder (2006), p. 55 (QCM (A) Vol. IV, Annex 109).
89 “Protests outside UAE Embassy in New Delhi over 26/11 terror funding allegations”, New India
Express (6 Aug. 2017) (QCM (A) Vol. IV, Annex 87).
90 The Financial Task Force is a G7 initiative to combat money laundering and terrorist financing.
Its objectives include setting standards and promoting effective implementation of legal, regulatory
and operational measures for combating money laundering, terrorist financing and other related
threats to the integrity of the international financial system; monitoring the progress of its members
in implementing necessary measures; and reviewing money laundering and terrorist financing
techniques and counter-measures. Financial Action Task Force (FATF), Who we are (QCM (A)
Vol. IV, Annex 130).
91 FATF-MENAFATF, Anti-money laundering and counter-terrorist financing measures – Saudi-
Arabia, Fourth Round Mutual Evaluation Report, FATF, Paris (Sept. 2018), pp. 3-4 (QCM (A)
Vol. IV, Annex 120).
92 Dominic Dudley, “Saudi Arabia Accused Of Turning A Blind Eye To International Terrorism
Financing By Global Watchdog”, Forbes (25 Sept. 2018) (QCM (A) Vol. IV, Annex 101).
29
2.36 Saudi Arabia was also recently placed on the EU’s “list of countries that
pose a threat to the bloc because of lax controls against terrorism financing and
money laundering”.93 Countries on the EU list “have strategic deficiencies in their
anti-money laundering and countering the financing of terrorism regimes that pose
significant threats to the financial system of the Union”.94 The EU list does not
include Qatar.
2.37 Joint Appellants also accuse Qatar of “refus[ing] to take action to suppress
the terrorism-related activities of, or to prosecute, internationally designated
terrorists based in Qatar”.95 Joint Appellants name four individuals who have been
placed on the UN Security Council ISIL (Da’esh) & Al-Qaida Sanctions
Committee list: Khalifa Muhammad Turki Al-Subaiy (designated in 2008);96 Abd
Al-Rahman bin ‘Umayr Al-Nu’aymi (designated in 2014);97 Sa’d bin Sa’d
93 S. Kalin & F. Guarascio, “EU adds Saudi Arabia to draft terrorism financing list: sources”,
Reuters (25 Jan. 2019) (QCM (A) Vol. IV, Annex 104). See also Francesco Guarascio, “EU adds
Saudi Arabia to dirty-money blacklist, upsets UK, U.S.”, Reuters (13 Feb. 2019) (QCM (A) Vol.
IV, Annex 107).
94 S. Kalin & F. Guarascio, “EU adds Saudi Arabia to draft terrorism financing list: sources”,
Reuters (25 Jan. 2019) (QCM (A) Vol. IV, Annex 104).
95 BESUM, paras. 2.15, 2.38.
96 ICAO Preliminary Objections (A), Exhibit 15, Narrative Summary: QDi.253 Khalifa Muhammad
Turki Al-Subaiy, United Nations sanctions list issued by the Security Council Commission pursuant
to Security Council Resolutions 1267 (1999) 1989 (2011) and 2253 (2015) concerning ISIL
(Da’esh) Al-Qaida and Associated Individuals, Groups, Undertakings and Entities, last updated 3
February 2016 (BESUM Vol. III, Annex 24).
97 ICAO Preliminary Objections (A), Exhibit 16, Narrative Summary: QDi.334 ‘Abd al-Rahman
bin ‘Umayr al-Nu’aymi, United Nations sanctions list issued by the Security Council Commission
pursuant to Security Council Resolutions 1267 (1999) 1989 (2011) and 2253 (2015) concerning
ISIL (Da’esh) Al-Qaida and Associated Individuals, Groups, Undertakings and Entities, last
updated 13 May 2016 (BESUM Vol. III, Annex 24).
30
Muhammad Shariyan al-Ka’bi (designated in 2015);98 and Abd al-Latif bin
Abdallah Salih Muhammad al-Kawari (designated also in 2015).99
2.38 Qatar, however, has met its obligation to enforce the UN sanctions
applicable to these individuals (arms embargo, asset freeze and travel ban), and at
no time has any UN body found that Qatar violated any such obligation. Qatar
arrested and imprisoned Al-Subaiy for six months in 2008 for a conviction for
terrorism financing.100 And it has also placed all of them on its National Counter
Terrorism Committee terrorist designation list,101 a step that will facilitate their
prosecution for any crimes for which sufficient evidence may be gathered.
2.39 Joint Appellants further suggest that Qatar’s reservation to an 18 February
2015 League of Arab States resolution supporting Egypt’s unilateral use of force
in Libya somehow shows that Qatar supports terrorism.102 They are mistaken.
98 Security Council Committee Pursuant to Resolutions 1267 (1999), 1989 (2011) and 2253 (2015)
Concerning ISIL (Da’esh) Al-Qaida and Associated Individuals, Groups, Undertakings and
Entities, Narrative Summaries of Reasons for Listing QDi.382 Sa’d bin Sa’d Muhammad Shariyan
al-Ka’bi, United Nations Security Council Subsidiary Organs (last updated 21 September 2015)
(BESUM Vol. VI, Annex 96).
99 Security Council Committee Pursuant to Resolutions 1267 (1999), 1989 (2011) and 2253 (2015)
Concerning ISIL (Da’esh) Al-Qaida and Associated Individuals, Groups, Undertakings and
Entities, Narrative Summaries of Reasons for Listing QDi.380 Abd al-Latif bin Abdallah Salih
Muhammad al-Kawari, United Nations Security Council Subsidiary Organs (last updated 21
September 2015) (BESUM Vol. VI, Annex 95).
100 ICAO Preliminary Objections (A), Exhibit 15, Narrative Summary: QDi.253 Khalifa
Muhammad Turki Al-Subaiy, United Nations sanctions list issued by the Security Council
Commission pursuant to Security Council Resolutions 1267 (1999) 1989 (2011) and 2253 (2015)
concerning ISIL (Da'esh) Al-Qaida and Associated Individuals, Groups, Undertakings and Entities,
last updated 3 February 2016 (BESUM Vol. III, Annex 24).
101 See State of Qatar, Ministry of Interior, National Counter Terrorism Committee, National
Terrorist Designation Lists, Designation Order No. 2 (21 Mar. 2018) (designating Al-Nu’aymi, al-
Ka’bi, and al-Kawari) (QCM (A) Vol. III, Annex 41); State of Qatar, Ministry of Interior, National
Counter Terrorism Committee, National Terrorist Designation Lists, Designation Order No. 4 (28
Aug. 2018) (designating Al-Subaiy) (QCM (A) Vol. III, Annex 43).
102 BESUM, para. 2.36.
31
Qatar recalled its Ambassador to Cairo over this insulting suggestion when Egypt
first made it in 2015.103 Qatar’s reservation stemmed from concerns about the
unilateral use of force in a fellow Member State of the Arab League, the possibility
of civilian casualties, and the desire not to strengthen any particular party in the
Libyan civil war before the conclusion of the then-ongoing UN-sponsored peace
talks.104 Notably, the Secretary General of the GCC Abdul Latif al-Zayani (from
Bahrain) said at the time that Egypt’s accusations were “unfounded, contradict
reality, and ignore the sincere efforts by Qatar, as well as the Gulf Co-operation
Council and Arab states, in combating terrorism and extremism at all levels”.105
2.40 Finally, Joint Appellants allege, based on media reports from the BBC and
the Washington Post, that Qatar paid hundreds of millions of dollars to terrorists,
armed militant groups and Iran’s Islamic Revolutionary Guard Corps “as a
purported ransom payment for the release of the kidnapped members of the Qatari
royal family”.106 However, the articles in question make it clear that their reporting
is based in part on communications hacked and edited by a State hostile to Qatar,107
which casts doubt on the reliability of the information. The full version of the
Washington Post article also records Qatar’s “consistent[] den[ial] [of] reports that
it paid terrorist organizations as part of the deal”,108 and Iraqi Prime Minister
103 “Qatar recalls envoy to Egypt in row over Libya strikes”, BBC News (19 Feb. 2015) (QCM (A)
Vol. IV, Annex 67).
104 Ibid.
105 Ibid. (emphasis added).
106 BESUM, para. 2.48.
107 Paul Wood, “‘Billion Dollar Ransom’: Did Qatar Pay Record Sum?”, BBC, 17 July 2018
(BESUM Vol. VI, Annex 120); “Hacked Phone Messages Shed Light on Massive Payoff that
Ended Iraqi Hostage Affair”, The Washington Post, Undated (BESUM Vol. VI, Annex 121).
108 Joby Warrick, “Hacked Messages Show Qatar Appearing to Pay Hundreds of Millions to Free
Hostages”, The Washington Post, 28 April 2018 (BESUM Vol. VI, Annex 117).
32
Haider al-Abadi’s statement that the funds in question were received by the
Government of Iraq, which still had possession of them.109 The BBC article Joint
Appellants cite likewise confirms that Qatar intended the funds for the Government
of Iraq and that Iraq had possession of them.110 Unsurprisingly, no member of the
United Nations Security Council gave any credence to Egypt’s “call[] … to open
an investigation into Qatar’s payment as a ransom to terrorist groups”.111
2.41 In sum, all of Joint Appellants’ allegations about Qatar’s alleged “support
of terrorism and extremism” are false. International bodies tasked with monitoring
terrorist and extremist activities, including terrorist financing, as well as other
important international actors, agree that Qatar is and has long been a regional and
global leader in anti-terrorism cooperation.112
109 Maher Chmaytelli, “Iraq says it still has Qatari money sent to free ruling family members”,
Reuters (11 June 2017) (QCM (A) Vol. IV, Annex 76).
110 Paul Wood, “‘Billion Dollar Ransom’: Did Qatar Pay Record Sum?”, BBC, 17 July 2018
(BESUM Vol. VI, Annex 120).
111 BESUM, para. 2.48.
112 Moreover, aside from a party in good standing to fifteen multilateral agreements relating to
security and counter-terrorism and several bilateral treaties and arrangements in the area of security
cooperation, Qatar is the only GCC-member country that is a contributing member of the
Community Engagement and Resilience Fund, the first global effort to support local community
efforts to build resilience to violent extremism. Global Community Engagement and Resilience
Fund, Donor Frequently Asked Questions (last accessed: 2 Feb. 2019) (QCM (A) Vol. IV, Annex
132). Qatar has also pledged $10 million to its goals and objectives in May of 2018, and while at
the December 2018 Doha Forum, His Highness the Amir pledged $75 million over 5 years ($15
million annually) to the UN Security Council’s Counter Terrorism Committee. State of Qatar,
Ministry of Justice, “Qatar Doubles Contribution to Global Community Engagement & Resilience
Fund” (30 May 2018) (QCM (A) Vol. III, Annex 42); Doha Forum, “Qatar Announces Half a
Billion USD in Funds to UN Agencies”, (Dec. 2018) (QCM (A) Vol. IV, Annex 126). In addition,
Qatar hosts the central command base of the 79-member Global Coalition against ISIS, as well as
the largest U.S. military base in the region. Global Coalition, 79 Partners (last accessed: 1 Feb.
2019) (QCM (A) Vol. IV, Annex 131); Jamie McIntyre, “US base in Qatar still running the fight
against ISIS amid diplomatic rift in the Middle East”, Washington Examiner (5 June 2017) (QCM
(A) Vol. IV, Annex 69). See also Ministry of Defence of United Kingdom, Defence Secretary hosts
Qatari counterpart at historic Horse Guards (16 Jan. 2018) (QCM (A) Vol. III, Annex 50)
(recording U.K. Defence Secretary Mr. Gavin Williamson’s statement that “Qatar is a vital partner
33
2.42 Qatar concludes on this point by noting that it is not alone in doubting Joint
Appellants’ sincerity in claiming that Qatar’s alleged support of terrorism is the
reason for the aviation prohibitions and other coercive measures. On 20 June 2017,
the spokeswoman for the U.S. State Department bluntly asked:
“Were the actions really about their concerns about
Qatar’s alleged support for terrorism, or were they
about the long-simmering grievances between and
among the GCC countries?”113
B. JOINT APPELLANTS’ ALLEGATIONS ABOUT QATAR’S “SYSTEMATIC
INTERFERENCE” IN THEIR INTERNAL AFFAIRS ARE FALSE
2.43 Joint Appellants also accuse Qatar of “purposeful and systematic
intervention in the[ir] internal affairs”, in violation of the Riyadh Agreements and
international law.114 To the extent that this allegation is premised on Qatar’s
supposed “support for terrorist groups and extremist ideologies”,115 Qatar has
in the fight against Daesh, hosting the headquarters of the coalition air campaign which is still
coordinating strikes on targets in Syria every day”.); “Qatar’s efforts in combating terrorism win
German praise”, Gulf Times (14 July 2018) (QCM (A) Vol. IV, Annex 100) (recording German
Minister of Defence Ms. Ursula von der Leyen’s praise of Qatar for “making great efforts within
the ranks of the [NATO] alliance … to combat terrorism and eliminate it completely”.); U.S.
Department of State, Secretary Pompeo’s Meeting with Qatari Foreign Minister Al Thani (26 June
2018) (QCM (A) Vol. III, Annex 53) (recording U.S. Secretary of State Mr. Michael Pompeo’s
appreciation of “the Foreign Minister for Qatar’s continued efforts on counterterrorism and
countering terrorism financing”).
113 A. Gearan & K. DeYoung, “State Department issues unusual public warning to Saudi Arabia
and UAE over Qatar rift”, Washington Post (20 June 2017) (QCM (A) Vol. IV, Annex 78)
(emphasis added). The “long-simmering grievances” mentioned by the State Department relate to
differences in policy between various GCC members.
114 BESUM, para. 2.44. The Riyadh Agreements refer to the First Riyadh Agreement of 23
November 2013, its Implementing Mechanism of 17 April 2014, and the Supplementary Riyadh
Agreement of 16 November 2014 (BESUM Vol. II, Annexes 19-21). These instruments, adopted
under the auspices of the GCC, seek to foster dialogue and cooperation in addressing threats to
regional security, stability, and peace.
115 BESUM, para. 2.44.
34
already refuted it above. To the extent it is premised on other matters, Qatar
addresses it below.
2.44 Joint Appellants contend that Qatar has breached its obligation under the
Riyadh Agreements to provide “[n]o support … through direct security work or
through political influence” to the Muslim Brotherhood.116 In particular, Joint
Appellants refer to Qatar’s allegedly “hostile public statements condemning
Egypt’s designation of the Muslim Brotherhood as a terrorist organization”,117
which Egypt decried as a “gross interference in [its] domestic affairs”,118 and which
led to Joint Appellants’ recalling their Ambassadors from Qatar in March 2014.119
2.45 The “hostile public statements” in question were in fact concerns Qatar
expressed in the context of indiscriminate killings of protesters in Egypt—the most
notable being the massacre of over 800 protesters in Rab’a Square on 14 August
2013—following the ouster of former Egyptian President Mohammad Morsi.120
Qatar’s concerns were entirely reasonable given reports of “the increasing numbers
of victims of demonstrations in Egypt and the killing of a large number of people
across the country”.121 Qatar was also concerned that “the decision to convert
[popular] political movements to terrorist organizations and converting
116 First Riyadh Agreement, 23 and 24 November 2013, Art. 2 (BESUM Vol. II, Annex 19).
117 BESUM, para. 2.20.
118 Statement of the Arab Republic of Egypt Ministry of Foreign Affairs, “The Egyptian Ministry
of Foreign Affairs summons the Qatari Ambassador to Cairo”, 4 January 2014 (BESUM Vol. V,
Annex 59).
119 BESUM, para. 2.21.
120 Human Rights Watch, All According to Plan: The Rab’a Massacre and Mass Killings of
Protesters in Egypt (12 Aug. 2014) (QCM (A) Vol. IV, Annex 112).
121 “Qatar criticizes Egypt’s designation of the Muslim Brotherhood as a terrorist organization”,
BBC Arabic, 4 January 2014 (BESUM Vol. VI, Annex 104).
35
demonstrations into terrorist acts” would not be conducive to ending the violence,
and called for “dialogue between the society’s political components and the state
… without exclusion nor eradication”.122 Several UN bodies and world leaders
echoed Qatar’s statements, and similarly urged restraint and condemned the killing
of peaceful protesters.123
2.46 Joint Appellants claim that Qatar’s alleged support for the Muslim
Brotherhood in breach of the Riyadh Agreements is further evidenced by its 2015
refusal to extradite Yusuf Al-Qaradawi, a Sunni theologian and chairman of the
International Union of Muslim Scholars based in Doha.124 But they fail to mention
that the Interpol red notice, issued at Egypt’s request and on the basis of which it
sought Al-Qaradawi’s extradition, was withdrawn because the accusations against
him were baseless.125 They also omit the fact that the Vice President and Prime
Minister of the UAE, Sheikh Mohammed bin Rashid Al Maktoum, personally
awarded Mr. Al-Qaradawi the “international figure of the year” prize in 2012,126
122 Ibid.
123 See, e.g., “UN rights chief urges talks to save Egypt from further disastrous violence”, UN News
(15 Aug. 2013) (QCM (A) Vol. IV, Annex 127) (noting statements by UN High Commissioner for
Human Rights, several UN Special Rapporteurs, and UN Security Council meeting on the situation
in Egypt).
124 BESUM, para. 2.34.
125 “Interpol removes red notice against Islamic scholar Yusuf Al Qaradawi”, TRT World (13 Dec.
2018) (QCM (A) Vol. IV, Annex 103). Qatar also notes that Joint Appellants designated Mr. Al-
Qaradawi as terrorist after the imposition of the aviation prohibitions and other measures of 5 June
2017. See Kingdom of Bahrain Ministry Foreign Affairs News Details, “Statement by the Kingdom
of Saudi Arabia, the Arab Republic of Egypt, the United Arab Emirates, and the Kingdom of
Bahrain”, 9 June 2017 (BESUM Vol. V, Annex 74). Moreover, Joint Appellants’ allegation that
Mr. Al-Qaradawi “has been supported by the highest levels of the Qatari leadership” simply because
he was photographed and dined together with His Highness the Amir of Qatar at a “banquet for
scholars, judges and imams” does not withstand scrutiny. BESUM, para. 2.34; “Amir Hosts Iftar
banquet for scholars, judges and imams”, Gulf Times, 30 May 2018 (BESUM Vol. VI, Annex
118).
126 “Video: Dubai ruler praises Al-Qaradawi for his scholarly achievements”, Middle East Monitor
(12 Apr. 2014) (QCM (A) Vol. IV, Annex 65).
36
and that Saudi Arabia awarded him the King Faisal Prize for Islamic Studies,127
one of the highest accolades in the Muslim world.
2.47 Joint Appellants similarly ignore the international condemnation of Egypt’s
illegal detention of Mr. Al-Qaradawi’s daughter, Ola Qaradawi, and her husband
for over 500 days only because of their familial ties with Mr. Al-Qaradawi.128
Recently, the UN Human Rights Council’s Working Group on Arbitrary Detention
found, inter alia, that their arrest, detention and imprisonment by the Egyptian
authorities “lack a legal basis and are thus arbitrary”.129
2.48 Joint Appellants also allege that “[t]he Muslim Brotherhood presence in
Qatar has had grave consequences”.130 They refer to the 11 December 2016 terrorist
attack targeting Coptic Christian worshippers at Abbaseya, Egypt, and a statement
from the Egyptian Ministry of Interior claiming that the culprit, an Egyptian
national, had been radicalised in Qatar.131 Joint Appellants provide no
corroborating evidence for this assertion. Interestingly, the Ministry of Interior’s
statement also refers to the culprit’s repeated travels to North Sinai,132 which,
127 King Faisal Prize, Professor Yousef A. Al-Qaradawi, Winner of the 1994 KFP Prize for Islamic
Studies (last accessed: 15 Feb. 2019) (QCM (A) Vol. IV, Annex 134).
128 UN Human Rights Council, Working Group on Arbitrary Detention, Opinions adopted by the
Working Group on Arbitrary Detention at its eighty-first session, UN Doc
A/HRC/WGAD/2018/261 (7-26 April 2018), para. 79.
129 Ibid., para. 59.
130 BESUM, para. 2.35.
131 Official Statement of the Ministry of Interior of the Arab Republic of Egypt, 12 December 2016
(BESUM Vol. V, Annex 71); see also BESUM, para. 2.35.
132 Official Statement of the Ministry of Interior of the Arab Republic of Egypt, 12 December 2016
(BESUM Vol. V, Annex 71).
37
according to the U.S. Department of State, constitutes a “terrorist safe haven” used
by the ISIS-Sinai Province as a base to plan attacks there and in mainland Egypt.133
2.49 In fact, by most accounts, Egypt is among the top 15 sources of foreign
terrorist fighters for ISIS. Saudi Arabia is number two.134 Other accounts indicate
that over 100 Bahrainis may have joined ISIS, a significant number given the size
of Bahrain’s population, and express concerns about possible links between
Bahrain’s security forces and ISIS.135 Still other reports indicate that arms supplied
by Saudi Arabia often ended up in ISIS’s hands in Iraq and Syria.136 An
investigation by CNN found that Saudi Arabia and the UAE transferred weapons
to “al Qaeda-linked fighters, hard-line Salafi militias, and other factions waging
war in Yemen”.137 A separate investigation by Amnesty International found that
the UAE was “recklessly supplying militias” accused of war crimes with advanced
weaponry.138
133 U.S. Department of State, Bureau of Counterterrorism and Countering Violent Extremism,
Country Reports on Terrorism, Chapter 4: Terrorist Safe Havens (Update to 7120 Report) (2017)
(QCM (A) Vol. III, Annex 47).
134 FATF, “Financing of the Terrorist Organisation Islamic State in Iraq and the Levant (ISIL)”
(Feb. 2015), p. 21 (QCM (A) Vol. IV, Annex 113); E. Benmelech & E.F. Klor, “What Explains
the Flow of Foreign Fighters to ISIS?”, National Bureau of Economic Research, Working Paper
22190 (Apr. 2016), p. 16 (QCM (A) Vol. IV, Annex 114); Susan B. Glasser, “Martyrs’ in Iraq
Mostly Saudis”, Washington Post (15 May 2005) (QCM (A) Vol. IV, Annex 61); see also Hernán
Longo, “Sharing information in order to fight against terrorism”, ICAO, Hong Kong ICAO TRIP
Regional Seminar, p. 6, (QCM (A) Vol. II, Annex 19).
135 Ala’a Shehabi, “Why is Bahrain Outsourcing Extremism?”, Foreign Policy (29 Oct. 2014)
(QCM (A) Vol. IV, Annex 66).
136 Bethan McKernan, “US and Saudi Arabia arms significantly enhanced Isis’ military capabilities,
report reveals”, The Independent (15 Dec. 2017) (QCM (A) Vol. IV, Annex 94).
137 N. Elbagir, S. Abdelaziz, M.A. El Gheit & L. Smith-Spark, “Sold to an ally, lost to an enemy”,
CNN (Feb. 2019) (QCM (A) Vol. IV, Annex 106).
138 “Yemen: UAE recklessly supplying militias with windfall of Western arms”, Amnesty
International (6 Feb. 2019) (“the UAE has become a major conduit for armoured vehicles, mortar
38
2.50 Joint Appellants next refer to a 2017 judgment of Egypt’s Court of
Cassation, which allegedly “confirms that between 2011 and 2013, former
President Morsi and other leadership figures in the then Muslim Brotherhood
Government were paid by Qatari intelligence agents to disclose military and other
secret information vital to Egypt’s national security”.139 There are, however,
serious questions about the quality of evidence offered in the case, and the
politicisation of all aspects of the proceedings due to the strained relations between
Egypt and Qatar140—indeed, the judgment in question was rendered after the
imposition of the aviation prohibitions and other measures of 5 June 2017. Not only
that, but a few months before the judgment, the legal framework for the selection
of the heads of judicial bodies in Egypt was amended to give the President
“discretionary power for selecting, without review, the chief justices of the
judiciary, revoking the neutral criterion of seniority…”. President el-Sisi exercised
that power for the first time just prior to the issuance of the judgment in question.141
2.51 Lastly, Joint Appellants accuse Qatar of “offer[ing] lucrative financial
incentives to selected Bahraini nationals … who held or had held sensitive and
high-level offices”, to “naturalize as Qatari citizens and emigrate to Qatar”.142 Joint
Appellants’ own evidence reflects the fact that Qatar has denied and continues to
systems, rifles, pistols, and machine guns – which are being illicitly diverted to unaccountable
militias accused of war crimes and other serious violations.”) (QCM (A) Vol. IV, Annex 133).
139 BESUM, para. 2.45; Morsi and others v. Public Prosecution, Case No. 32611, Judgment of the
Court of Cassation of the Arab Republic of Egypt (Criminal Chamber), 16 September 2017
(BESUM Vol. VII, Annex 137).
140 “Qatar Espionage case”, The Tahrir Institute for Middle East Policy (last accessed: 14 Feb. 2019)
(QCM (A) Vol. IV, Annex 121).
141 “The Battle over Appointing Judges in Egypt”, Carnegie Endowment for International Peace
(16 Jan. 2018) (QCM (A) Vol. IV, Annex 119).
142 BESUM, para. 2.46.
39
deny this charge.143 Unsurprisingly, Joint Appellants offer no further evidence
supporting it.
2.52 In sum, all of Joint Appellants’ accusations about Qatar’s supposedly
“systematic interference” in their internal affairs dissolve on analysis. In fact, it is
Joint Appellants who, through the imposition of the aviation prohibitions and other
coercive measures, have purposefully and systematically sought to intervene in
Qatar’s internal affairs in breach of the Riyadh Agreements and international
law.144 Instead of raising their grievances (whatever they may really be) within the
framework of the regional mechanisms for dialogue and dispute settlement,145 Joint
143 Fourth Report of the Follow-up Committee on the Implementation of the Riyadh Agreement
Mechanism, 15 July 2014 (BESUM Vol. V, Annex 64); see also ICAO Response to Preliminary
Objections (A), Exhibit 80, Deputy PM and FM: Investigations Proved Involvement of 2 Siege
Countries in QNA Hacking (10 Jan. 2018) (indicating that Bahrain’s concerns regarding
naturalization were resolved in 2014) (BESUM Vol. IV, Annex 25).
144 See ICAO Response to Preliminary Objections (A), Exhibit 43, Qatar’s Siege A Clear Violation
of Riyadh Agreement, Director of Government Communication Office Says (10 July 2017)
(BESUM Vol. IV, Annex 25). Joint Appellants go as far as to allege that Qatar has repudiated the
Riyadh Agreements by way of a letter to the Secretary General of the GCC dated 19 February 2017.
However, Qatar’s letter is mistranslated to state that the parties “have made no effort to implement
the Riyadh Agreement and the mechanism of its implementation”. Letter of 19 February 2017 from
the Minister of Foreign Affairs of the State of Qatar to the Secretary-General of the GCC (BESUM
Vol. V, Annex 72) (emphasis added). In fact, the proper translation of this sentence is that the
parties “have spared absolutely no effort in the implementation of the Riyadh Agreement and the
mechanism of its execution”. Letter from Mohamed Bin Abdul Rahman Bin Jassim Al Thani,
Minister of Foreign Affairs of the State of Qatar, to Abdul Latif Bin Rashid Al-Zayani, Secretary-
General of the GCC (19 Feb. 2017) (QCM (A) Vol. III, Annex 40) (emphasis added). In view of
this fact, Qatar’s letter called the other parties to the Agreements to “agree to terminate” the Riyadh
Agreements. Id. (emphasis added). In no way does this letter amount to a repudiation of the
Agreements, which Qatar continues to consider binding.
145 The First Riyadh Agreement affirms its basis in the “main system” of the GCC, including its
emphasis on dialogue and its dispute resolution provision contained in Article 10 of the GCC
Charter. Article 10, titled “Commission for the Settlement of Disputes”, provides:
“The Cooperation Council shall have a commission called
‘Commission for the Settlement of Disputes’ and shall be
attached to the Supreme Council. The Supreme Council shall
form Commission for every case separately based on the nature
of the dispute. If a dispute arises over interpretation or
implementation of the Charter and such dispute is not resolved
40
Appellants chose to impose the aviation prohibitions and other coercive measures,
which they have said will not be withdrawn until such time as Qatar capitulates to
their demands. As His Excellency the Foreign Minister of Qatar, Sheikh
Mohammed bin Abdulrahman Al-Thani, put it: “[T]he blockading countries were
demanding that we must surrender our sovereignty as the price for ending the
siege—something they knew Qatar would never do”.146
C. JOINT APPELLANTS’ ALLEGATIONS OF QATAR’S USE OF MEDIA TO INCITE
VIOLENCE AND HATRED ARE FALSE
2.53 Joint Appellants allege further that Qatar supported the rise of “groups like
Al-Qaida, Hamas, and the Muslim Brotherhood”, and that the “state-owned and -
controlled media network Al Jazeera [has] served as a platform for [the Muslim
Brotherhood] to propound its calls for extremism and violence … against the
Egyptian Government”, in breach of the Riyadh Agreements.147
2.54 These allegations are disproved in the first instance by the international
esteem in which Al Jazeera is held. Al Jazeera is widely recognised for its
independent, objective and fact-based reporting that includes detailed analysis and
within the Ministerial Council or the Supreme Council, the
Supreme Council may refer such dispute to the Commission for
Settlement of Disputes. The Commission shall submit its
recommendations or opinion, as applicable, to the Supreme
Council for appropriate action”.
Charter of the Co-operation Council for the Arab States of the Gulf, concluded at Abu Dhabi on 25
May 1981, 1288 UNTS 151, Article 10 (BESUM Vol. II, Annex 8). See also ICAO Response to
Preliminary Objections (A), Exhibit 80, Deputy PM and FM: Investigations Proved Involvement of
2 Siege Countries in QNA Hacking (10 Jan. 2018) (noting the dispute settlement provisions of GCC
Charter and Riyadh Agreements) (BESUM Vol. IV, Annex 25).
146 ICAO Response to Preliminary Objections (A), Exhibit 40, Foreign Minister: Any Threat to
Region is Threat to Qatar (6 July 2017) (BESUM Vol. IV, Annex 25).
147 BESUM, para. 2.14.
41
diverse perspectives.148 The high regard for Al Jazeera is reflected by the
international reaction to Joint Appellants’ demand that it be shut down. The UN
Special Rapporteur on freedom of expression, Mr. David Kaye, said that the closure
of Al Jazeera would “strike a major blow against media pluralism in a region
already suffering from severe restrictions on reporting and media of all kinds”.149
Reporters without Borders condemned Joint Appellants’ efforts to stifle media
freedom and freedom of expression, calling the demand to shutdown Al Jazeera
“an unacceptable act of blackmail”.150
2.55 Qatar has a long-standing policy of supporting freedom of expression—for
which it has paid, and continues to pay, a dear price. Qatar has no role in
determining who appears (or does not appear) on Al Jazeera. The network has
complete journalistic, editorial independence. Further, neither Mr. Al-Qaradawi,
whose appearances on Al Jazeera are singled out for criticism by Joint
Appellants,151 nor the institution of which he is chairman are designated as
terrorists by the United Nations Security Council—or Qatar, for that matter.152 Nor
is the Muslim Brotherhood a UN-designated terrorist organisation, or listed as such
in the GCC terrorist organisations list.153 In fact, because there are Muslim
148 Aram Bakshian Jr., “The Unlikely Rise of Al Jazeera”, The Atlantic (10 Jan. 2012) (QCM (A)
Vol. IV, Annex 63). Unsurprisingly, Joint Appellants’ statement that “[t]hey are not alone in
exposing that, while purporting to be a ‘news outlet’, Al Jazeera serves as an instrument to
destabilize the region” is not accompanied by a single source. See BESUM, para. 2.43.
149 ICAO Response to Preliminary Objections (A), Exhibit 34, BBC, Qatar condemns Saudi refusal
to negotiate over demands (28 June 2017) (BESUM Vol. IV, Annex 25).
150 “Unacceptable call for Al Jazeera’s closure in Gulf crisis”, Reporters Without Borders (28 June
2017) (QCM (A) Vol. IV, Annex 122).
151 BESUM, paras. 2.19, 2.34.
152 As explained above, Joint Appellants designated Mr. Al-Qaradawi as a terrorist only after the
unilateral coercive measures of 5 June 2017.
153 Letter from Abdul Latif Bin Rashid Al-Zayani, GCC Secretary General, to Khalid Bin Mohamed
Al Ativa, Minister of Foreign Affairs of the State of Qatar (19 May 2014) (QCM (A) Vol. III,
42
Brotherhood-affiliated political parties and societies in countries across the Middle
East and North Africa, including members of parliament and government
officials,154 it is natural for such individuals to appear from time-to-time on news
channels like Al Jazeera. Indeed, for many years Appellant Bahrain has had
members of a Muslim Brotherhood-affiliated political party serve in its Parliament,
and Bahrain’s Foreign Minister has recognised that the party respects the rule of
law.155
2.56 Ultimately, Qatar and Joint Appellants appear to have a fundamental
difference of views as to media independence and what constitutes media
incitement.156 That a news organisation’s coverage of an issue may be inconsistent
Annex 38). Nor is Hamas listed on the GCC terrorist organizations list or designated as a terrorist
organization by the UN or Qatar.
154 Political organizations affiliated with the Muslim Brotherhood actively participate in electoral
politics and serve in government in countries throughout the Middle East and North Africa region,
including Morocco, Tunisia, Jordan, Kuwait, Yemen, Libya, Iraq, Algeria, and Bahrain. See C.
Alexander & S. Dodge, “Muslim Brotherhood Is at the Heart of Gulf Standoff With Qatar”,
Bloomberg (7 June 2017) (listing several countries in which the Muslim Brotherhood participates
in government and politics) (QCM (A) Vol. IV, Annex 75); Marc Lynch, “In Uncharted Waters:
Islamist Parties Beyond Egypt’s Muslim Brotherhood”, Carnegie Endowment for International
Peace (16 Dec. 2016) (describing the various levels of political participation of Muslim
Brotherhood-affiliated groups in several countries) (QCM (A) Vol. IV, Annex 115).
155 Kylie Moore-Gilbert, “A Band of (Muslim) Brothers? Exploring Bahrain’s Role in the Qatar
Crisis”, Middle East Institute (3 Aug. 2017) (“[T]he Brotherhood’s Bahrain affiliate operates as a
legal political society and has won seats in Bahrain’s parliament on a number of occasions”.) (QCM
(A) Vol. IV, Annex 117); Ibrahim Hatlani, “Bahrain Between its Backers and the Brotherhood”,
Carnegie Endowment for International Peace (20 May 2014) (“Bahrain’s foreign minister Khaled
bin Ahmed Al Khalifa commented at a press conference in Pakistan that his government was not
labelling the political arm of the local Brotherhood branch, known as the Islamic Minbar, a terrorist
organization. He stated that the group has respected the rule of law and has not acted against the
security of the country”.) (QCM (A) Vol. IV, Annex 111).
156 This is also evident in the statistics compiled by the Committee to Protect Journalists in 2018:
25 journalists were imprisoned in Egypt; 16 journalists were imprisoned in Saudi Arabia and; 6
journalists were imprisoned in Bahrain. By contrast, zero journalists were imprisoned in Qatar.
Committee to Protect Journalists, Data & Research (2018) (QCM (A) Vol. IV, Annex 124). At the
same time, the UN Special Rapporteur on extrajudicial, summary or arbitrary killings, Ms. Agnès
Callamard, has launched an international inquiry into the murder of journalist Jamal Khashoggi,
seeking to “review and evaluate, from a human rights perspective, the circumstances surrounding
43
with a particular State’s preferred narrative does not mean that the news
organisation is promoting extremism. To the contrary, it is doing its job.
2.57 It should also be recalled that the aviation prohibitions and other measures
adopted on 5 June 2017 were preceded by an anti-Qatar media campaign—in clear
violation of the Riyadh Agreements’ prohibition on media incitement—that began
with the illegal hacking of the Qatar News Agency (“QNA”) website on 24 May
2017. The hackers attributed fabricated statements to His Highness the Amir of
Qatar Sheikh Tamim bin Hamad Al-Thani,157 with third-party reports attributing
the cyber-attack to the UAE.158 Qatar’s investigation of the incident, which was
assisted by international experts from third-party States, confirmed the hacking and
found compelling evidence of the involvement of some of the Joint Appellants.159
2.58 Qatar also appealed to the Secretary General of the GCC, expressing
concern over the propagation of false information by media under the jurisdiction
the killing” at the Saudi Consulate in Istanbul, Turkey in October 2018. Office of the High
Commissioner for Human Rights, Independent human rights expert to visit Turkey to launch
international inquiry into Khashoggi case (25 Jan. 2019) (QCM (A) Vol. IV, Annex 129). Saudi
Arabia’s trial of some of the suspects involved in the murder has been deemed “insufficient” by the
UN Office of the High Commissioner for Human Rights. “Khashoggi trial in Saudi Arabia falls
short of independent, international probe needed: UN rights chief”, UN News (4 Jan. 2019) (QCM
(A) Vol. IV, Annex 128).
157 See Peter Salisbury, “The fake-news hack that nearly started a war this summer was designed
for one man: Donald Trump”, Quartz (20 Oct. 2017) (QCM (A) Vol. IV, Annex 92).
158 K. DeYoung & E. Nakashima, “UAE orchestrated hacking of Qatari government sites, sparking
regional upheaval, according to U.S. intelligence officials”, Washington Post (16 July 2017) (QCM
(A) Vol. IV, Annex 84). See also C. Bing and J. Schectman, “Inside the UAE’s secret hacking team
of American mercenaries”, Reuters (30 Jan. 2019) (QCM (A) Vol. IV, Annex 105) (noting that the
UAE hacking operations also targeted Qatar and Qatar’s leadership). See also ICAO Response to
Preliminary Objections (A), Exhibit 80, Deputy PM and FM: Investigations Proved Involvement of
2 Siege Countries in QNA Hacking (10 Jan. 2018), p. [PDF] 1346 (noting cooperation of FBI and
British National Crime Agency in hacking investigation) (BESUM Vol. IV, Annex 25).
159 Letter from Muhammad Bin Abdul Rahman Al Thani, Minister of Foreign Affairs of the State
of Qatar, to Abdulatif Bin Rashid Al Zayani, GCC Secretary General (7 Aug. 2017) (QCM (A)
Vol. III, Annex 39)
44
and control of Appellants Saudi Arabia and the UAE.160 However, this did not
prevent Joint Appellants from using the QNA hacking as the immediate pretext for
their later actions. Nor did it stem the flow of misinformation.161 During its
technical mission to Qatar in November 2017, the Office of the High
Commissioner for Human Rights found a “widespread defamation and hatred
campaign against Qatar and Qataris in various media linked to the four countries
as well as on social media” that “may amount to a form of incitement”.162
2.59 State-controlled media channels and outlets in Joint Appellants also
exacerbated the fear and confusion generated by the aviation prohibitions
themselves. On 9 August 2017, the Saudi-controlled news network Al Arabiya
published a video simulation of a military jet shooting down a Qatar Airways
civilian airplane with an air-to-air missile, with an accompanying voice-over
stating that international law permits States to shoot down any aircraft that violated
a State’s national airspace.163
160 Ibid.
161 See ICAO Response to Preliminary Objections (A), Exhibit 43, Qatar Siege a Clear Violation
of Riyadh Agreement, Director of Government Communications Office Says (10 July 2017)
(BESUM Vol. IV, Annex 25); ICAO Response to Preliminary Objections (A), Exhibit 80, Deputy
PM and FM: Investigations Proved Involvement of 2 Siege Countries in QNA Hacking (10 Jan.
2018) (BESUM Vol. IV, Annex 25).
162 ICAO Response to Preliminary Objections (A), Exhibit 77, OHCHR Technical Mission to the
State of Qatar, 17-24 November 2017, Report on the Impact of the Gulf Crisis on Human Rights
(December 2017), paras. 14, 20 (BESUM Vol. IV, Annex 25).
163 “Emergency corridors opened before Qatar Airways”, Al Arabiya (9 Aug. 2017) (QCM (A) Vol.
IV, Annex 88). See also Kevin Jon Heller, “Saudi Arabia Threatens to Shoot Down a Qatari
Airways Plane”, OpinioJuris (18 Aug. 2017) (QCM (A) Vol. IV, Annex 123) (arguing that through
this video “Saudi Arabia is threatening to engage in state terrorism – the use of violence to spread
panic among Qatari civilians in order to persuade the Qatari government to supposedly stop
supporting terrorist groups”.).
45
2.60 Such incitement to hatred and propaganda through the media represents a
clear violation of the Riyadh Agreements’ restrictions on media incitement.164 Joint
Appellants’ accusations are not only meritless, they are also more appropriately
lodged against Joint Appellants themselves.
*
2.61 As recounted above, starting on 5 June 2017, Joint Appellants imposed the
aviation prohibitions in violation of their obligations under the Chicago Convention
and its Annexes. In an effort to justify their unlawful actions, they assert against
Qatar baseless accusations for which they are the actual guilty parties. In addition
to having soundly refuted Joint Appellants’ allegations, the following Chapters
confirm the ICAO Council’s jurisdiction to hear the dispute between the Parties
regarding their violations of the Chicago Convention.
164 See ICAO Response to Preliminary Objections (A), Exhibit 80, Deputy PM and FM:
Investigations Proved Involvement of 2 Siege Countries in QNA Hacking (10 Jan. 2018) (noting
media incitement by Joint Appellants in violation of Riyadh Agreements) (BESUM Vol. IV, Annex
25).
46
47
CHAPTER 3
THE COURT SHOULD DENY JOINT APPELLANTS’ SECOND
GROUND OF APPEAL
3.1 Joint Appellants’ First Preliminary Objection to the jurisdiction of the
ICAO Council and their Second Ground of Appeal to the Court posits that
“the ICAO Council was without jurisdiction, or in
the alternative … the claims made by Qatar were
inadmissible, on the grounds that ... [t]he present
dispute would require the Council to determine
issues that fall outside its jurisdiction: to rule on the
lawfulness of the countermeasures adopted by the
Applicants, including certain airspace restrictions,
the Council would be required to rule on Qatar’s
compliance with critical obligations under
international law entirely unrelated to, and outwith,
the Chicago Convention ...”.165
3.2 Joint Appellants frame this objection “in two alternative ways”:
(1) As an objection to the jurisdiction of the ICAO Council “insofar as,
when properly characterised, the real issue in dispute between the Parties
cannot be confined to matters relating to the interpretation or application of
the Chicago Convention, but concerns the wider dispute between the
Parties”; and
(2) “[I]n the alternative”, “as going to the admissibility of Qatar’s claims …
insofar as final adjudication by the ICAO Council of Qatar’s claims would
necessarily involve the Council adjudicating upon matters that fall outside
165 ICJ Application (A), para. 19(i) (emphasis added).
48
the narrow scope of its jurisdiction under the Chicago Convention, as to
which the Appellants have not consented to it deciding”.166
3.3 This Chapter demonstrates why both arguments fail as a matter of law and
thus why the ICAO Council properly rejected Joint Appellants’ First Preliminary
Objection.
3.4 Before turning to that demonstration, however, it is important to underscore
the dangers to the international legal order that lurk in Joint Appellants’ arguments.
The crux of those arguments is that a body empowered to adjudicate a dispute
concerning the “interpretation or application” of a specific treaty is deprived of that
power whenever the respondent State asserts a defence based on lawful “nonreciprocal”
countermeasures. The perils of this position, were the Court to accept
it, are self-evident. Respondent States would be able to avoid compulsory dispute
settlement brought pursuant to a treaty compromissory clause whenever they so
choose merely by asserting a “lawful” countermeasures defence—a defence that,
like all other forms of self-help, is already vulnerable to abuse.167 The law of
countermeasures would thus become a trump card that would undermine the entire
system of international dispute settlement. In Qatar’s view, that is the real
significance of the jurisdictional and admissibility questions raised in Joint
Appellants’ Second Ground of Appeal.
166 BESUM, para. 5.2.
167 International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, with commentaries (2001), in Report of the International Law Commission on the
work of its fifty-third session, UN Doc. A/56/10 (hereinafter “Draft Articles on Responsibility of
States for Internationally Wrongful Acts, with commentaries”), p. 128, para. 2. That potential for
abuse is even more acute in the present case, as explained in Chapter 2 of the present Counter-
Memorial.
49
3.5 The remainder of this Chapter is structured as follows: Section I disposes
of Joint Appellants’ attempts to impose a priori restrictions on the ICAO Council’s
jurisdiction over disputes “relating to the interpretation or application” of the
Chicago Convention and its Annexes. Section II demonstrates that the dispute
Qatar submitted to the Council is indeed such a dispute and that Joint Appellants’
countermeasures defence does not change this conclusion. Finally, Section III
addresses Joint Appellants’ alternative argument that, notwithstanding the above,
Qatar’s claim would be inadmissible for reasons of “judicial propriety”.
I. The ICAO Council Is Empowered to Exercise its Dispute Settlement
Functions “to their Full Extent”
3.6 Joint Appellants argue that in light of the “principle of speciality”, the
Council’s jurisdiction under Article 84 of the Chicago Convention168 “must be
regarded as circumscribed and as limited to matters falling with its particular area
of specialization”, namely, “international civil aviation”.169
3.7 However, the principle of speciality does not limit the Council’s functions
under Article 84, as Joint Appellants appear to suggest.170 It does the opposite, in
168 Article 84 of the Chicago Convention reads:
“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”.
Chicago Convention, Art. 84 (BESUM Vol. II, Annex 1). In this Counter-Memorial, Qatar employs
the words “disagreement” and “dispute” interchangeably, without conceding that the word
“disagreement” in Article 84 is completely synonymous with the word “dispute” as used in many
other compromissory clauses.
169 BESUM, paras. 5.13, 5.23.
170 Ibid., paras. 5.11, 5.17.
50
fact. In a key paragraph of its Advisory Opinion in Legality of the Use by a State
of Nuclear Weapons in Armed Conflict that Joint Appellants studiously ignore, the
Court stressed that the principle of speciality has a dual meaning. While an
international organisation “is not a State, but an international institution with a
special purpose” that “only has the functions bestowed upon it by the Definitive
Statute with a view to the fulfilment of that purpose”,171 it has power “to exercise
these functions to their full extent, in so far as the Statute does not impose
restrictions upon it”.172
3.8 In the area of international civil aviation, the Council is therefore
empowered to exercise the dispute settlement functions Article 84 gives it “to their
full extent”. This means, at very least, that the Council has jurisdiction to decide
disputes “relating to the interpretation or application” of the Chicago Convention
and its Annexes notwithstanding a disputing party’s defences raising issues falling
outside the Convention, or the fact that the dispute in question arises in the context
of a broader dispute between the parties.
3.9 Neither Article 84 nor any other provision of the Chicago Convention
imposes restrictions upon the Council’s power to decide disputes. Joint Appellants
appear to recognise this. They thus suggest that the restrictions they seek to impose
on the Council’s power can be inferred from the aims and objectives of ICAO as
171 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J.
Reports 1996, para. 25 (citing Jurisdiction of the European Commission of the Danube, Advisory
Opinion, P.C.I.J., Series B, No. 14, p. 64).
172 Ibid. (emphasis added).
51
set out in Article 44 of the Chicago Convention and “the logic of the overall system
contemplated by the [UN] Charter”.173 They are mistaken.
3.10 ICAO’s aims and objectives include “insur[ing] that the rights of
contracting States are fully respected and that every contracting State has a fair
opportunity to operate international airlines”; “avoid[ing] discrimination between
contracting States”; and “promot[ing] safety of flight in international air
navigation”.174 The Council’s exercise of jurisdiction over the dispute created by
Joint Appellants’ sudden imposition of the aviation prohibitions serves these aims
and objectives; it does not undermine them.
3.11 In this respect, it bears recalling that ICAO is a specialised agency of the
United Nations within the meaning of Article 57 of the UN Charter. The principles
that guide it, as well as the activities it undertakes pursuant to those principles, must
therefore be considered to give effect to the Purposes of the United Nations, defined
in Article 1 of the Charter. Those include “bring[ing] about by peaceful means, and
in conformity with the principles of justice and international law, adjustment or
settlement of international disputes”; “develop[ing] friendly relations among
nations … and … tak[ing] other appropriate measures to strengthen universal
peace”; and “achiev[ing] international co-operation in solving international
problems of an economic, social, cultural, or humanitarian character”.175
173 BESUM, paras. 5.16 (citing Legality of the Use by a State of Nuclear Weapons in Armed Conflict,
Advisory Opinion, I.C.J. Reports 1996, para. 26) , 5.19.
174 Chicago Convention, Art. 44(f)-(h) (BESUM Vol. II, Annex 1).
175 Charter of the United Nations, 1 U.N.T.S. 16 (26 June 1945) (entry into force: 24 Oct. 1945),
Art. 1.
52
3.12 The Preamble of the Chicago Convention itself explicitly links ICAO to
these purposes. It indicates that the “development of international civil aviation can
greatly help to create and preserve friendship and understanding among the nations
and peoples of the world, yet its abuse can become a threat to the general security”,
and that “it is desirable to avoid friction and to promote … cooperation between
nations and peoples upon which the peace of the world depends”.176 Again, the
Council’s exercise of jurisdiction over this dispute can only serve these objectives,
not undermine them.
3.13 Nor do any restrictions on the Council’s dispute settlement functions follow
from “pragmatic considerations relating to the composition of the ICAO Council
and the experience and expertise of the representatives of its Members”, as Joint
Appellants wrongly claim.177 Their assertion that the Council is “ill-equipped to
resolve complex legal disputes between States in areas falling outside the narrow
and specialist compass of the rules of international law relating to international
civil aviation”178 is contradicted by the Council’s dispute resolution practice.179
176 Chicago Convention, Preamble (BESUM Vol. II, Annex 1). In the course of its history, ICAO
has notably acted within the limits of its competences and purposes when it condemned the policies
of apartheid and racial discrimination in South Africa. See ICAO Assembly, Resolution A15-7:
Condemnation of the Policies of Apartheid and Racial Discrimination of South Africa, ICAO Doc.
8528 (22 June-16 July 1965) (QCM (A) Vol. II, Annex 1). ICAO further decided to stop inviting
South Africa to attend ICAO meetings because it acted in flagrant contradiction with the Preamble
of the Chicago Convention by maintaining its apartheid policies. See ICAO Assembly, Resolution
A18-4: Measures to be taken in pursuance of Resolutions 2555 and 2704 of the United Nations
General Assembly in relation to South Africa, ICAO Doc. 8958 (15 June-7 July 1971) (QCM (A)
Vol. II, Annex 2). In light of ICAO’s objectives, and the Council’s previous practice, Joint
Appellants’ suggestion that its field of operation is merely “technical” is plainly false. BESUM,
para. 5.23.
177 BESUM, para. 5.25.
178 Ibid.
179 For example, in Pakistan v. India, the parties presented arguments concerning the termination
and suspension of treaties under general international law. See, e.g., ICAO Council, 74th Session,
Minutes of the Second Meeting, ICAO Doc. 8956-C/1001 (27 July 1971) (QCM (A) Vol. II, Annex
4); ICAO Council, 74th Session, Minutes of the Third Meeting, ICAO Doc. 8956-C/1001 (27 July
53
Moreover, ICAO Member States are free to include in their delegations to the
Council experts with a wide variety of skills and knowledge, or even private
lawyers.180 And the Council itself can take expert advice on any difficult legal
question, be it of domestic or international law, should it consider it necessary.181
3.14 The Court’s jurisprudence under Article 84 of the Chicago Convention
eliminates any remaining doubts about the Council’s power to exercise its dispute
settlement functions to their full extent. In the 1972 ICAO Council Appeal case, the
Court made clear that the Council’s jurisdiction under Article 84 is complemented
by the appeal mechanism established in the same article, which ensures that the
Council performs its functions within the scope of its jurisdiction. In the words of
the Court:
“In … providing for judicial recourse by way of
appeal to the Court against decisions of the Council
concerning interpretation and application … the
Chicago Treaties gave member States, and through
1971) (QCM (A) Vol. II, Annex 5); ICAO Council, 74th Session, Minutes of the Fourth Meeting,
ICAO Doc. 8956-C/1001 (28 July 1971) (QCM (A) Vol. II, Annex 6); ICAO Council – 74th
Session, Minutes of the Fifth Meeting, ICAO document 8987-C/1004, 28 July 1971 (BESUM Vol.
V, Annex 27). In United States v. 15 European States, the parties presented arguments concerning
the adequacy of negotiations and the exhaustion of local remedies, and the Council rendered a
decision on these issues of public international law. See, e.g., ICAO Council, 161st Session,
Summary Minutes of the Fourth Meeting, ICAO Doc. C-MIN 161/4 (15 Nov. 2000) (QCM (A)
Vol. II, Annex 13); ICAO Preliminary Objections (A), Exhibit 1, Summary Minutes of the Council,
Sixth Meeting 161st Session, ICAO document C-MIN 161/6, 16 November 2000 (BESUM Vol.
III, Annex 24). In Brazil v. United States, the parties presented arguments concerning the temporal
limitations in making claims under general international law, and the Council once again rendered
a decision on this issue. See, e.g., ICAO Preliminary Objections (A), Exhibit 2, ICAO Council –
211th Session, Summary Minutes of the Ninth Meeting of 21 June 2017, ICAO document C-MIN
211/9, 5 July 2017 (BESUM Vol. III, Annex 24); ICAO Council, 211th Session, Ninth Meeting:
Summary of Decisions, ICAO Doc. C-DEC 211/9 (21 June 2017) (QCM (A) Vol. III, Annex 23).
180 Indeed, Appellant Bahrain did so at the hearing before the ICAO Council. See 214th Session,
Summary Minutes of Eighth Meeting (26 June 2018), ICAO Doc. C-MIN 214/8, para. 121 (BESUM
Vol. V, Annex 53).
181 ICAO Council, Rules for the Settlement of Differences, ICAO Doc. 7200 (9 April 1957)
(hereinafter “ICAO Rules”), Art. 8 (BESUM Vol. II, Annex 6).
54
them the Council, the possibility of ensuring a
certain measure of supervision by the Court over
those decisions. To this extent, these Treaties enlist
the support of the Court for the good functioning of
the Organization, 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”.182
3.15 Accordingly, neither the principle of speciality, nor the aims and objectives
of ICAO, or any “pragmatic considerations” limit the Council’s jurisdiction over
disputes “relating to the interpretation or application” of the Chicago Convention
and its Annexes. To the contrary, the Council is empowered to exercise its
jurisdiction “to its full extent”. That is exactly what it did in its Decision of 29 June
2018 on Qatar’s Application A.
II. The Dispute Qatar Submitted to the ICAO Council “Relates to the
Interpretation or Application” of the Chicago Convention and its
Annexes
3.16 Joint Appellants observe that Article 84 of the Chicago Convention
“circumscribe[s] ratione materiae [the Council’s jurisdiction] to matters relating to
the ‘interpretation or application’ of the Chicago Convention or its Annexes”.183
Qatar agrees; the meaning of the terms of Article 84 is clear. Joint Appellants argue,
however, that the dispute Qatar brought before the Council only raises issues of the
182 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 26 (emphasis added); see also ibid., Separate Opinion of Judge de Castro, para.
7; ibid., Separate Opinion of Judge Dillard, p. 105; ibid., Declaration of Judge Lachs, p. 75 (“… the
Council, in view of its limited experience on matters of procedure, and being composed of experts
in other fields than law, is no doubt in need of guidance, and it is surely this Court which may give
it. Such guidance would be of great importance for the further conduct of this case and future cases,
and in the interest of the confidence of States entrusting it with the resolution of disagreements
arising in the field of civil aviation”.).
183 BESUM, para. 5.11.
55
interpretation or application of the Chicago Convention and its Annexes “on its
face”, and that it “concerns only one element of the real dispute between the
Parties”.184 As they see it, “[t]he real subject-matter of the dispute … concerns
Qatar’s failure to abide by … fundamental obligations of a completely different
character” that fall outside the Council’s jurisdiction.185 Joint Appellants also argue
that “[a]ny final adjudication on [Qatar’s] claims … would necessarily and
inevitably require the ICAO Council to consider and rule upon matters which
undoubtedly fall outside its limited jurisdiction ratione materiae”.186 This is
because, they say, “the airspace restrictions were adopted … as lawful
countermeasures”.187
3.17 Joint Appellants’ argument on these issues is repetitive in the extreme. They
devote a full chapter of their Memorial,188 as well as sections in two other chapters,
to the alleged “real issue” in dispute.189 The terms “real issue” and “real dispute”
appear no fewer than 67 times in the Memorial, as if repeating the same erroneous
arguments might somehow give them merit. It does not.
3.18 Qatar’s response will be more concise. Joint Appellants’ countermeasures
defence does not deprive the Council of its jurisdiction over the dispute Qatar
submitted to it because (1) it is irrelevant to the Court’s assessment of the “real
issue” in dispute (Section II.A); and (2) even if it were somehow relevant (quod
184 Ibid., para. 5.27.
185 Ibid., paras. 5.28-5.29.
186 Ibid., para. 5.30 (some emphasis added).
187 Ibid.
188 Ibid., Chapter II.
189 Ibid., Chapter I, Section 3; Chapter V, Sections 3 and 4.
56
non), it would not convert this dispute into one over which the Council has no
jurisdiction (Section II.B).
A. JOINT APPELLANTS’ COUNTERMEASURES DEFENCE HAS NO BEARING ON THE
ASSESSMENT OF THE “REAL ISSUE” IN DISPUTE
3.19 In the Introduction to their Memorial, Joint Appellants assert that “[t]he
issues of jurisdiction and admissibility raised by the … second ground of appeal
are novel and a matter of first impression, whether in the jurisprudence of the Court
or of other international tribunals”.190 This claim is refuted by the Court’s
jurisprudence. In the prior case involving an appeal from a decision of the ICAO
Council, the Court overwhelmingly rejected a substantially similar argument from
the appellant party.
3.20 Specifically, in the 1972 ICAO Council Appeal case, India argued that the
dispute Pakistan raised before the Council did not relate to the interpretation or
application of the Chicago Convention because, in its view, it required the Council
to determine international law matters outside of the Chicago Convention (namely,
whether the Chicago Convention was validly suspended and/or terminated as
between India and Pakistan). Similar to what Joint Appellants argue here, India
argued that the Council had neither jurisdiction nor the necessary expertise to rule
upon such matters.191
190 Ibid., para. 1.31 (emphasis added).
191 See ICAO Council, 74th Session, Minutes of the Second Meeting, ICAO Doc. 8956-C/1001 (27
July 1971), p. 23 (QCM (A) Vol. II, Annex 4); I.C.J Pleadings, Appeal Relating to the Jurisdiction
of the ICAO Council (India v. Pakistan), Memorial submitted by the Government of India (22 Dec.
1971), paras. 68-85; Reply submitted by the Government of India (17 April 1972), paras. 44, 63-
74; Oral Arguments, pp. 504-523 (Mr. Palkhivala).
57
3.21 The dangers of this argument were immediately obvious to the Court. If a
defence on the merits could affect the competence of the Council, the “parties
would be in a position themselves to control that competence, which would be
inadmissible”.192 In the Court’s view, the jurisdiction of the ICAO Council “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”.193 It made
no difference if such considerations “are claimed to lie outside the Treaties”. The
Council cannot be deprived of its jurisdiction “if, irrespective of this, issues
concerning the interpretation or application of these instruments are nevertheless
in question”.194
192 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27.
193 Ibid. (emphasis added). See also ibid., para. 31 (“[A] mere unilateral affirmation of …
contentions—contested by the other party—cannot be utilized so as to negative the Council’s
jurisdiction. The point is not that these contentions are necessarily wrong but that their validity has
not yet been determined. Since therefore the Parties are in disagreement as to whether the Treaties
ever were (validly) suspended or replaced by something else; as to whether they are in force between
the Parties or not: and as to whether India’s action in relation to Pakistan overflights was such as
not to involve the Treaties, but to be justifiable aliter et aliunde:—these very questions are in issue
before the Council, and no conclusions as to jurisdiction can be drawn from them, at least at this
stage, so as to exclude ipso facto and a priori the competence of the Council”.) (emphasis added).
194 Ibid. Joint Appellants argue that the Court’s Judgment “foreshadowed the application of the real
issue test as it has been developed in subsequent cases, but did not need to apply it in that case”.
BESUM, para. 5.89. However, the text of the Judgment leaves no room for ambiguity. Later in the
Judgment, the Court expressly stated that “the legal issue that has to be determined by the Court
really amounts to this, namely whether the dispute, in the form in which the Parties placed it before
the Council, and have presented it to the Court in their final submissions … is one that can be
resolved without any interpretation or application of the relevant Treaties at all. If it cannot, then
the Council must be competent”. Ibid., para. 28 (emphasis added).
58
3.22 As did the Council when the same argument was before it, the Court
overwhelmingly rejected India’s appeal.195 It affirmed the ICAO Council’s
jurisdiction by a vote of 14 to two. Even the two dissenting Judges did not take the
view that the ICAO Council lacked jurisdiction to address the merits of Pakistan’s
application.196
3.23 It is just the same here. Joint Appellants are effectively trying—to borrow
the Court’s language—to “control [the] competence” of the Council by casting a
“defence on the merits … in a particular form” (i.e., countermeasures). As long as
“issues concerning the interpretation or application of [the Chicago Convention
and its Annexes] are nevertheless in question”—and Joint Appellants admit they
are197—their unilateral assertions “cannot be utilized so as to negative the
Council’s jurisdiction”.198
3.24 Joint Appellants wisely choose not to argue that the Court decided the 1972
ICAO Council Appeal case wrongly. Instead, they try to limit the reach of the
Court’s holding to defences “aris[ing] within the bounds of the Chicago
Convention”, whereas their “good faith invocation of countermeasures took the
195 The ICAO Council rejected India’s objection by a vote of 20 to zero, with four abstentions. See
ICAO Council, Action of the Council: Seventy-fourth Session, ICAO Doc. 8987-C/1004 (8 July
1971, 27-29 July 1971, 28 September – 17 December 1971), p. 43 (QCM (A) Vol. II, Annex 3).
196 See Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment,
Dissenting opinion of Judge Morozov, I.C.J. Reports 1972, pp. 157-163; Appeal Relating to the
Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, Dissenting opinion of Judge
Nagendra Singh, I.C.J. Reports 1972, para. 19 (stating that he was “not express[ing] any views on
the merits of the issue of jurisdiction”).
197 BESUM, paras. 5.27 (stating that claim submitted to the ICAO Council by Qatar “on its face
rais[es] issues of the interpretation and application of the Chicago Convention”), 5.30 (“Qatar’s
claims in the ICAO Application are ... carefully framed so as only to allege breaches by the
Appellants of their obligations under the Chicago Convention”.).
198 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, paras. 27, 31.
59
dispute outside of the scope of the Convention”.199 But the Court’s 1972 Judgment
forecloses this manoeuvre. Just like Joint Appellants’ invocation of
countermeasures, India’s defence was “claimed to lie outside the [t]reaties”.200 The
Court described India’s argument as follows:
“[India’s] contention is to the effect that since India
… was not invoking any right that might be afforded
by the Treaties, but was acting outside them on the
basis of a general principle of international law,
‘therefore’ the Council, whose jurisdiction was
derived from the Treaties, and which was entitled to
deal only with matters arising under them, must be
incompetent”.201
3.25 Moreover, the Court did not distinguish between defences arising within
and outside the Chicago Convention when it held that the jurisdiction of the ICAO
Council “must depend on the character of the dispute submitted to it … not on those
defences on the merits, or other considerations, which would become relevant only
after the jurisdictional issues had been settled”.202
3.26 More fundamentally, there is no reason why a defence “aris[ing] within the
bounds of the Chicago Convention” should be treated differently than a defence
that raises issues “claimed to lie outside the treaties”. If either type of defence were
allowed to affect the competence of the Council (or of any other international court
199 BESUM, paras. 5.90-5.91 (emphasis added). As shown in Chapter 2 of this Counter-Memorial,
Joint Appellants’ invocation of countermeasures is far from having been made in good faith.
200 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27.
201 Ibid., para. 31 (emphasis added).
202 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27.
60
or tribunal), a disputing party would still be in a position itself “to control that
competence, which would be inadmissible”.203
3.27 The implications of Joint Appellants’ position cannot be overstated. Were
the Court to adopt it, there would be nothing to stop a respondent State from
invoking a “lawful countermeasures” defence in any proceeding before the ICAO
Council to escape judicial scrutiny of its actions. Indeed, there would be nothing to
stop a respondent State in any proceeding before any international court or tribunal
with limited jurisdiction ratione materiae from doing the same.
3.28 For the reasons the Court already explained in the 1972 ICAO Council
Appeal case, Joint Appellants’ countermeasures defence has no bearing on the
assessment of the “real issue” in dispute.
B. JOINT APPELLANTS’ COUNTERMEASURES DEFENCE, EVEN IF IT WERE
RELEVANT, DOES NOT CONVERT THIS DISPUTE INTO ONE OVER WHICH THE
COUNCIL DOES NOT HAVE JURISDICTION
3.29 The Court need not look beyond its Judgment in the 1972 ICAO Council
Appeal case to conclude that the Council properly dismissed Joint Appellants’ First
Preliminary Objection. But even if the Court were to depart from its previous
jurisprudence and consider Joint Appellants’ defence in its assessment of the “real
issue” in dispute, its ultimate conclusion would be exactly the same.
3.30 Qatar agrees with Joint Appellants that the proper characterisation of a
dispute “is a matter for objective assessment”,204 and that “it is the Court’s duty to
203 Ibid.
204 BESUM, para. 5.45.
61
isolate the real issue in the case”.205 Qatar also agrees that the formulation of the
dispute as set out in an applicant’s pleadings,206 and the “object of the claim” and
its relation to the interpretation or application of the treaty in question,207 play an
important role in this regard. But Qatar disagrees with the conclusion Joint
Appellants purport to draw from these considerations. As shown below, both such
considerations confirm the conclusion that the Council properly upheld its
jurisdiction.
1. Qatar’s pleadings before the ICAO Council indicate that the subjectmatter
of the dispute falls squarely within the scope of the Chicago Convention
and its Annexes
3.31 Joint Appellants argue that “even on a characterisation based only on
Qatar’s pleadings, it is clear that the dispute before the ICAO Council concerns
matters falling beyond the scope of the Chicago Convention”.208 This is
demonstrably false for several reasons.
3.32 First, Qatar’s Application and Memorial to the ICAO Council clearly state
a dispute “relating to the interpretation or application” of the Chicago Convention
205 Ibid., para. 5.49 (citing Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, para.
29; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, para. 30; Obligation to
Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections, Judgment, I.C.J.
Reports 2015, para. 26).
206 BESUM, paras. 5.48 (citing Interhandel Case (Switzerland v. United States of America),
Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 21; Right of Passage over Indian
Territory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, pp. 33-34; Appeal Relating to
the Jurisdiction of the ICAO Council, Judgment, (India v. Pakistan), Judgment, I.C.J. Reports 1972,
paras. 22, 36). See also Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile),
Preliminary Objections, Judgment, I.C.J. Reports 2015, para. 26; Territorial and Maritime Dispute
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007, para. 38.
207 BESUM, paras. 5.53, 5.59-5.67.
208 Ibid., para. 5.77.
62
and its Annexes both in fact and in law. In its Application, Qatar stated that the
dispute was occasioned by the fact that:
“On 5 June 2017 the Governments of the
Respondents announced, with immediate effect and
without any previous negotiation or warning, that
Qatar-registered aircraft are not permitted to fly to or
from the airports within their territories and would
be barred not only from their respective national air
spaces, but also from their Flight Information
Regions (FIRs) extending beyond their national
airspace even over the high seas”.209
3.33 The Application further stated that:
“The actions of the Respondents continue to have
serious impact on the safety, security, regularity and
economy of civil aviation in the region. Qatar
Airways, the national carrier of the Applicant,
operates some 800 flights per day and carries
thousands of passengers of many nationalities
world-wide. The travel plans and bookings of
thousands of travelers of many nationalities were
upset, families forcibly separated and
bookings/ticketing by Qatar Airways were not
honored by the Respondents’ airlines. Qatar
Airways operations were barred from established
international airways, including those over the high
seas. Alternative routes/route segments were for
weeks not created or implemented and are still
insufficient, in spite of continuing efforts and
proposals by Qatar. Rerouting the flights to limited
corridors extends the flight times and fuel
consumption and causes considerable economic
losses”.210
209 ICAO Application (A), p. 1 (BESUM Vol. III, Annex 23).
210 Ibid.
63
3.34 Qatar’s Memorial before the Council reiterated these facts and argued that
“[t]he actions of the Respondents show contemptuous disregard for multiple
provisions of the Chicago Convention and its Annexes”.211 The Memorial specified
that the actions complained of “violated the leading spirit of the Chicago
Convention” proclaimed in the Convention’s Preamble, as well as Articles 2, 3bis,
4, 5, 6, 9, 12, 37 and 89 of the Convention.212
3.35 A dispute over whether measures adopted by a State party to a treaty violate
the provisions of that treaty is by definition a dispute “relating to the interpretation
or application” of its provisions.213
3.36 Second, neither Qatar’s request that the Council determine, based on the
very same facts, violations of “other rules of international law”214 nor Qatar’s brief
reference in the Memorial to the context in which the aviation prohibitions were
imposed215 can be reasonably construed as reflecting Qatar’s “recogni[tion]” that
the factual dispute arose following the Joint Appellants’ decision to impose
countermeasures.216 And even if they could, they would still be irrelevant to the
211 Ibid., p. 5.
212 ICAO Memorial (A), Section (g) (BESUM Vol. III, Annex 23).
213 The Court has on numerous occasions exercised its jurisdiction under the compromissory clause
of a treaty to declare that a State has violated a provision of that treaty. See, e.g., Questions Relating
to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits, Judgment, I.C.J. Reports
2012, paras. 49-52; Application of the Interim Accord of 13 September 1995 (FYROM v. Greece),
Judgment, I.C.J. Reports 2011, para. 58; Avena and Other Mexican Nationals (Mexico v. United
States), Judgment, I.C.J. Reports 2004, paras. 27-28; Oil Platforms (Iran v. United States),
Judgment, I.C.J. Reports 2003, para. 31; LaGrand (Germany v. United States), Jurisdiction,
Admissibility, Merits, Judgment, I.C.J. Reports 2001, para. 42.
214 ICAO Application (A), p. 1; ICAO Memorial (A), Section (e) (1)-(3) (BESUM Vol. III, Annex
23).
215 ICAO Memorial (A), Section (g) (BESUM Vol. III, Annex 23).
216 BESUM, para. 5.74.
64
assessment of the “real issue” in dispute. The Court has made clear that to identify
the subject-matter of the dispute “[i]n particular, it takes account of the facts that
the applicant identifies as the basis for its claim”.217 As is evident from its
Application and Memorial before the Council, Qatar’s claims are based solely on
the aviation prohibitions.
3.37 Joint Appellants nevertheless expend considerable effort trying to show that
Qatar’s Response before the Council “implicitly acknowledged that there exists a
dispute between the Parties as to whether it has breached its other international
obligations outside the Chicago Convention”.218 Their effort is wasted. Qatar
readily acknowledges that there is a dispute between the Parties concerning Qatar’s
compliance with its counterterrorism and non-interference obligations, including
under the Riyadh Agreements. It thus never “shifted its position”219 or “sought to
modify the way it had characterized the dispute”220 before the ICAO Council in
light of Joint Appellants’ First Preliminary Objection, as Joint Appellants wrongly
suggest.
3.38 As explained in Chapter 2, Qatar denies in the strongest possible terms that
it has ever violated any of the obligations Joint Appellants claim. But that is not the
point here. The mere fact that the Parties’ dispute involving other matters co-exists
with the dispute about the aviation prohibitions does not convert those other matters
into the “real issue” in dispute before the Council. The Court has repeatedly
decided disputes that were intertwined with other disagreements between the
217 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, para. 26.
218 BESUM, para. 5.40; see also ibid., para. 5.81.
219 BESUM, para. 1.5.
220 Ibid., para. 5.75.
65
litigating States. Each and every time, it has ruled that the existence of other, related
disputes did not deprive it of jurisdiction.221
3.39 Indeed, the Court has made clear that
“legal disputes between sovereign States by their
very nature are likely to occur in political contexts,
and often form only one element in a wider and longstanding
political dispute between the States
concerned. Yet never has the view been put forward
before that, because a legal dispute submitted to the
Court is only one aspect of a political dispute, the
Court should decline to resolve for the parties the
legal questions at issue between them. Nor can any
basis for such a view of the Court’s functions or
jurisdiction be found in the Charter or the Statute of
the Court; if the Court were, contrary to its settled
jurisprudence, to adopt such a view, it would impose
a far-reaching and unwarranted restriction upon the
role of the Court in the peaceful solution of
international disputes”.222
3.40 Similarly, in Bolivia v. Chile, the Court rejected Chile’s argument that
Bolivia’s Application “obfuscate[d] the true subject-matter of Bolivia’s claim—
territorial sovereignty and the character of Bolivia’s access to the Pacific
221 See, e.g., United States Diplomatic and Consular Staff in Tehran (United States v. Iran),
Judgment, I.C.J. Reports 1980, para. 37; Border and Transborder Armed Actions (Nicaragua v.
Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, para. 54; Application of
the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, para. 32; Military and
Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, para. 96; Legality of the Use by a State of Nuclear
Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996, para. 16; Alleged violations of
the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v.
United States of America), Provisional Measures, Order (3 Oct. 2018), para. 38.
222 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, I.C.J.
Reports 1980, para. 37 (emphasis added).
66
Ocean”.223 The Court stressed that “applications that are submitted to the Court
often present a particular dispute that arises in the context of a broader
disagreement between parties”.224
3.41 The Court confirmed this view in its most recent jurisprudence.225
3.42 To conclude on this point, Joint Appellants admit—in line with the Court’s
jurisprudence—that the formulation of the dispute in Qatar’s ICAO Application
and Memorial merit “particular attention”.226 And despite their attempts to
obfuscate the true subject-matter of the dispute, Qatar’s pleadings before the
Council make it clear that it falls squarely within the ambit of the Chicago
Convention and its Annexes. An analysis of the object of Qatar’s claims,
undertaken below, confirms this conclusion.
223 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, para. 32.
224 Ibid. (emphasis added). See also In the matter of an arbitration before an Arbitral Tribunal
constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea (Republic
of the Philippines v. People’s Republic of China), PCA Case No. 2013-19, Award on Jurisdiction
and Admissibility (29 Oct. 2015), para. 152 (“There is no question that there exists a dispute
between the Parties concerning land sovereignty over certain maritime features in the South China
Sea … The Tribunal does not accept, however, that it follows from the existence of a dispute over
sovereignty that sovereignty is also the appropriate characterisation of the claims the Philippines
has submitted in these proceedings. In the Tribunal’s view, it is entirely ordinary and expected that
two States with a relationship as extensive and multifaceted as that existing between the Philippines
and China would have disputes in respect of several distinct matters … The Tribunal agrees with
the International Court of Justice in United States Diplomatic and Consular Staff in Tehran that
there are no grounds to ‘decline to take cognizance of one aspect of a dispute merely because that
dispute has other aspects, however important.’”).
225 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights
(Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment (13 Feb.
2019), para. 36: “As the Court has observed, applications that are submitted to it often present a
particular dispute that arises in the context of a broader disagreement between parties”.
226 BESUM, para. 5.71.
67
2. The object of Qatar’s claims relates solely to the interpretation or
application of the Chicago Convention and its Annexes
3.43 Joint Appellants devote several paragraphs of their Memorial to a
discussion of how “[t]he ‘real issue’ test may determine [the Court’s] jurisdiction
ratione materiae”.227 Each and every case they refer to in the context of this
discussion, however, confirms the conclusion that Qatar’s claims relate to the
interpretation or application of the Chicago Convention and its Annexes, and thus
that the Council properly found that it has jurisdiction.
3.44 Before turning to those cases, it is worth recalling once again the Court’s
judgment in the 1972 ICAO Council Appeal case. As the Court put it in that case,
“the legal issue that has to be determined by the
Court really amounts to this, namely whether the
dispute, in the form in which the Parties placed it
before the Council, and have presented it to the Court
in their final submissions … is one that can be
resolved without any interpretation or application of
the relevant Treaties at all. If it cannot, then the
Council must be competent”.228
3.45 The same emphasis on the “legal issue that has to be determined by the
Court” permeates all of the cases Joint Appellants discuss in their Memorial. In the
Aegean Sea Continental Shelf case,229 for example, Greece characterised the
dispute before the Court as one relating to the delimitation of the continental shelf,
and hence outside the scope of its reservation to the title of jurisdiction (which
227 BESUM, paras. 5.53, 5.56-5.70.
228 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 28 (emphasis added).
229 This case is discussed at paragraph 5.53 of the Memorial. Joint Appellants admit that “[w]hile
the Court may not have used the language of ‘real issue’ from the Nuclear Tests cases, it
nevertheless applied the test in substance”.
68
excluded disputes “relating to the territorial status of Greece”). The Court rejected
this argument by looking to the first submission in Greece’s Application, which
requested the Court to “adjudge and declare … that [certain Greek islands] …
[were] entitled to the portion of the continental shelf which appertains to them
according to the applicable principles and rules of international law”.230 The Court
considered that “[t]he very essence of the dispute” was the “entitlement of those
Greek islands to a continental shelf”. The object of the claim stated in Greece’s
Application, the delimitation of the boundary, was “a secondary question to be
decided after, and in the light of, the decision upon the first basic question”.231
3.46 Similarly, in Bolivia v. Chile, the Court looked to the object of Bolivia’s
claims before the Court, as stated in its Application, to reject Chile’s objection that
“the true subject-matter of Bolivia’s claim” was “territorial sovereignty and the
character of Bolivia’s access to the Pacific Ocean”232 (matters that were outside the
Court’s jurisdiction233). The Court held that
“while it may be assumed that sovereign access to
the Pacific Ocean is, in the end, Bolivia’s goal, a
distinction must be drawn between that goal and the
related but distinct dispute presented by the
Application, namely, whether Chile has an
obligation to negotiate Bolivia’s sovereign access to
the sea and, if such an obligation exists, whether
Chile has breached it. The Application does not ask
230 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, para. 12.
231 Ibid., para. 83 (emphasis added).
232 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, para. 32.
233 Ibid., para. 22.
69
the Court to adjudge and declare that Bolivia has a
right to sovereign access.234
3.47 Joint Appellants point out that Chile had also objected to the Court’s
jurisdiction on grounds that “Bolivia had framed the Application in an artificially
narrow fashion, because the relief sought by Bolivia would lead to negotiations
with a judicially predetermined outcome on matters falling outside of the Court’s
jurisdiction”.235 The Court rejected that argument as well, recalling again that
“Bolivia [did] not ask [it] to declare that it has a right to sovereign access to the sea
nor to pronounce on the legal status of the 1904 Peace Treaty”.236 As Joint
Appellants admit, the Court accepted that Bolivia’s claims “could be determined
[by the Court] without touching on the question of Bolivia’s substantive right to
sovereign access to the sea”.237
3.48 The same principle is also expressed in the two cases decided by arbitral
tribunals constituted under Annex VII of the United Nations Convention on the
Law of the Sea (“UNCLOS”) that Joint Appellants refer to: the South China Sea
and Chagos Marine Protected Area cases.238 In the former case, the tribunal
considered that the Philippines’ claims “were properly characterized as claims not
concerning sovereignty”, because the tribunal considered itself, as Joint Appellants
234 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, para. 32 (emphasis added).
235 BESUM, para. 5.59 (citing Obligation to Negotiate Access to the Pacific Ocean (Bolivia v.
Chile), Preliminary Objections, Judgment, I.C.J. Reports 2015, para. 33).
236 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, para. 33.
237 BESUM, para. 5.59 (emphasis added).
238 Ibid., paras. 5.60-5.66.
70
point out, “able to determine the dispute without resolving questions of
sovereignty, whether implicitly or explicitly”.239
3.49 In the latter case, the tribunal reached the opposite conclusion. It declined
to exercise jurisdiction in respect of certain of Mauritius’s claims because it
determined that the ‘real issue’ between the parties concerned a dispute over
territorial sovereignty, rather than the interpretation or application of UNCLOS.240
The claims in question were presented in Mauritius’ first submission, which asked
the tribunal to adjudge and declare that “the United Kingdom is not entitled to
declare [a marine protected area] or other maritime zones because it is not the
‘coastal State’ within the meaning of [UNCLOS]”.241
3.50 The tribunal acknowledged the existence of an interpretive dispute over the
meaning of the term “coastal State” which existed alongside the dispute between
the Parties with respect to sovereignty over the Chagos Archipelago”.242
Employing a novel test that asked “where the relative weight of the dispute lies”,
the tribunal concluded that “the Parties’ dispute with respect to Mauritius’ First
Submission is properly characterised as relating to land sovereignty over the
Chagos Archipelago. The Parties’ differing views on the ‘coastal State’ for the
purposes of the Convention are simply one aspect of this larger dispute”.243 The
239 Ibid., para. 5.66 (citing In the matter of an arbitration before an Arbitral Tribunal constituted
under Annex VII to the 1982 United Nations Convention on the Law of the Sea (Republic of the
Philippines v. People’s Republic of China), PCA Case No. 2013-19, Award on Jurisdiction and
Admissibility (29 Oct. 2015), paras. 152-153).
240 BESUM, para. 5.61.
241 In the matter of the Chagos Marine Protected Area Arbitration (Republic of Mauritius v. United
Kingdom of Great Britain and Northern Ireland), PCA Case No. 2011-03, Award (18 Mar. 2015),
para. 158.
242 Ibid., paras. 209, 211.
243 Ibid., paras. 211-212.
71
reasons for that were twofold: because prior to the initiation of the arbitration there
was “scant evidence that Mauritius was specifically concerned with the United
Kingdom’s implementation of the Convention” and because the “consequences of
a finding that the United Kingdom is not the coastal State extend well beyond the
question of the validity of the [marine protected area]”.244
3.51 These cases have a common thread: international courts and tribunals will
determine the “real issue” in dispute by reference to the stated object of the
applicant State’s claims.245 The South China Sea and Chagos Marine Protected
Area cases suggest that the jurisdictional inquiry may go beyond the claims as
submitted by the applicant State and delve into “the actual objective” of those
claims.246 Even if the latter inquiry were warranted in this case, the conclusion
would be the same: the true object of Qatar’s claims relates to the interpretation or
application of the Chicago Convention and its Annexes.
3.52 This is evident from Qatar’s Application to ICAO, in which it asked the
Council:
“- To determine that the Respondents violated by
their actions against the State of Qatar their
obligations under the Chicago Convention, its
Annexes and other rules of international law,
244 Ibid., para. 212.
245 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 28; Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports
1978, para. 83; Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary
Objections, Judgment, I.C.J. Reports 2015, para. 32.
246 In the matter of an arbitration before an Arbitral Tribunal constituted under Annex VII to the
1982 United Nations Convention on the Law of the Sea (Republic of the Philippines v. People’s
Republic of China), PCA Case No. 2013-19, Award on Jurisdiction and Admissibility (29 Oct.
2015), para. 152.
72
- To deplore the violations by the Respondents of the
fundamental principles of the Chicago Convention
and its Annexes,
- To urge the Respondents to withdraw, without
delay, all restrictions imposed on the Qatarregistered
aircraft and to comply with their
obligations under the Chicago Convention and its
Annexes [and]
- To urge the Respondents to negotiate in good faith
the future harmonious cooperation in the region to
safeguard the safety, security regularity and
economy of international civil aviation”.247
3.53 None of Qatar’s claims, reiterated in the Memorial,248 “can be resolved
without any interpretation or application of the relevant Treaties at all”.249
3.54 Nor does their “actual objective” lie outside the Chicago Convention and
its Annexes. Just the opposite. Qatar seeks a determination that the aviation
prohibitions violate the Chicago Convention and its Annexes. It is Joint Appellants,
not Qatar, that introduced allegations concerning the breach of international
obligations lying outside that framework in an attempt to justify their breaches of
the Chicago Convention.250 But those allegations have nothing to do with the object
of Qatar’s claims before the Council, which can be resolved without any
247 ICAO Application (A), pp. 2-3 (BESUM Vol. III, Annex 23).
248 ICAO Memorial (A), Section (f) (BESUM Vol. III, Annex 23).
249 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 28.
250 Qatar recalls in this respect that the Court “[has] repeatedly exercised the power to exclude, when
necessary, certain contentions or arguments which were advanced by a party as part of the
submissions, but which were regarded by the Court, not as indications of what the party was asking
the Court to decide, but as reasons advanced why the Court should decide in the sense contended
for by that party”. Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, para. 29.
73
adjudication of the merits of Joint Appellants’ defence, as explained in the
following section.
3. The Council does not need to address the merits of Joint Appellants’
countermeasures defence to decide this case
3.55 In light of the Court’s jurisprudence, the “real issue” in dispute before the
Council is plainly the violations of the Chicago Convention and its Annexes
occasioned by Joint Applicants’ aviation prohibitions. There are still other reasons
that confirm this conclusion.251 Far from being “necessary aspects of the dispute
between the Parties”,252 the merits of Joint Appellants’ countermeasures defence
need not even be addressed by the Council in order to decide Qatar’s claims.
3.56 At the outset, States’ entitlement to countermeasures under international
law is governed by the “secondary rules of State responsibility”.253 As such,
countermeasures “provide[] a shield against an otherwise well-founded claim for
the breach of an international obligation”.254 In Gabčíkovo-Nagymaros Project,
the Court first concluded that Czechoslovakia had committed an internationally
wrongful act, and then secondarily examined “whether such wrongfulness may be
precluded on the ground that the measure so adopted was in response to Hungary’s
prior failure to comply with its obligations under international law”.255
251 Qatar offers these additional observations without prejudice to its arguments on the merits of
Joint Appellants’ countermeasures defence.
252 BESUM, para. 5.39.
253 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,
p. 31, para. 3.
254 Ibid., p. 71, para. 1 (emphasis added).
255 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, para. 82.
74
3.57 This means that Joint Appellants’ countermeasures defence is at most—in
the words of the Court in the Aegean Sea Continental Shelf case—“a secondary
question to be decided after, and in the light of, the decision upon the first basic
question”;256 namely, whether the aviation prohibitions are otherwise wrongful.
Indeed, if the Council finds that they are not,257 the countermeasures issue does not
even arise.
3.58 Joint Appellants’ countermeasures defence therefore only becomes an issue
if the Council finds that their conduct is otherwise wrongful. But even in that case,
there are at least three reasons why the Council could decide Qatar’s claims without
addressing the merits of Joint Appellants’ countermeasures defence.
3.59 First, the Council could find that, as lex specialis, the Chicago Convention
excludes countermeasures as a circumstance precluding wrongfulness.258 “States
256 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, para. 83
(emphasis added).
257 Qatar notes in this respect that in spite of their invocation of countermeasures, Joint Appellants
do not concede that the aviation prohibitions were wrongful under the Chicago Convention. Indeed,
Joint Appellants’ “good faith” invocation of countermeasures is “entirely without prejudice to the
Appellants’ position on the merits of the claim made by Qatar under the Chicago Convention”.
BESUM, fn. 143; see also ibid., fn. 355 (“The accuracy of this statement of facts is not a matter for
the Court at this stage, and the Appellants reserve their rights in this regard”.).
258 As Joint Appellants admit, at the jurisdictional phase before the Council, Qatar argued that the
question of countermeasures was “one for the merits” and that at that stage of the proceedings it
“will provide a robust defence on the facts and in law”. BESUM, paras. 5.35-5.38 (citing ICAO
Response to Preliminary Objections (A), paras. 75-77, 82 (BESUM Vol. III, Annex 25) and ICAO
Council –214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO Doc. CMIN
214/8, 23 July 2018, para. 62 (BESUM Vol. V, Annex 53)). To infer from these responses
that Qatar “did not dispute the availability, in principle, of countermeasures as a circumstance
precluding the wrongfulness of the airspace restrictions under general international law”, or that
“Qatar did not seek to suggest that the Chicago Convention precludes States parties from resorting
to countermeasures” is incorrect. See BESUM, paras. 2.60-2.61. In any event, Qatar here confirms
that at the merits stage of the dispute it will challenge the availability of countermeasures as a
circumstance precluding wrongfulness under the framework of the Chicago Convention on grounds
of lex specialis.
75
may agree between themselves on … rules of international law which may not be
the subject of countermeasures …”.259 This possibility is reflected in Article 55 of
the International Law Commission’s (“ILC”) Articles on the Responsibility of
States for Internationally Wrongful Acts (“ARSIWA”), which provides that the
Articles “do not apply where and to the extent that the conditions for the existence
of an internationally wrongful act or the content or implementation of the
international responsibility of a State are governed by special rules of international
law”.260
3.60 In this respect, Qatar recalls that “[t]o the extent that derogation clauses or
other treaty provisions (e.g. those prohibiting reservations) are properly interpreted
as indicating that the treaty provisions are ‘intransgressible’, they may entail the
exclusion of countermeasures”.261 The Council could very well find that the
provisions of the Chicago Convention do exactly that. Indeed, the Convention
contains only one derogation clause, Article 89, entitled “War”, which provides:
“In case of war, the provisions of this Convention
shall not affect the freedom of action of any of the
contracting States affected, whether as belligerents
or as neutrals. The same principle shall apply in the
case of any contracting State which declares a state
of national emergency and notifies the fact to the
Council”.262
259 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,
p. 133, para. 10.
260 International Law Commission, Articles on Responsibility of States for Internationally Wrongful
Acts (2001) (hereinafter “ARSIWA”), Art. 55.
261 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,
p. 133, para. 10 (emphasis added) (citation omitted).
262 Chicago Convention, Art. 89 (BESUM Vol. II, Annex 1).
76
3.61 This means that, in the absence of war or a state of national emergency duly
declared and notified to the ICAO Council—neither of which exists here—States
may not lawfully derogate from their obligations under the Convention.263
Tellingly, no other State before Joint Appellants has ever sought to justify nonperformance
of obligations under the Chicago Convention on grounds of
countermeasures.264 By contrast, States have invoked Article 89.265
3.62 Countermeasures are inconsistent with the scheme of the Chicago
Convention in another critical respect. Countermeasures are, by their very nature,
discriminatory. They must always target the specific State that the injured State
considers responsible for an internationally wrongful act.266 Yet a large number of
the provisions of the Chicago Convention expressly prohibit discrimination among
aircraft of ICAO member States.267 Indeed one of the “aims and objectives of the
263 Ruwantissa Abeyratne, Convention on International Civil Aviation, A Commentary (2014), p.
149 (“Therefore, unless a State is at war (which the Convention does not define) or has declared a
state of national emergency, it would be bound by the provisions of the Convention”) (QCM (A)
Vol. IV, Annex 110).
264 This is not surprising. The tit-for-tat risk inherent in countermeasures is potentially destructive
of the smooth and interdependent operation of civil aviation worldwide. In ICAO’s 75-year history,
and despite periods of grave political tension between States, actions like the far-reaching aviation
prohibitions at issue in this case are very exceptional.
265 When Israel became a member of ICAO in 1949, Egypt and Iraq relied on Article 89 to deny to
Israeli aircraft the right to fly over their respective territories because of the official state of war that
then existed between them and Israel. See Ruwantissa Abeyratne, Convention on International Civil
Aviation, A Commentary (2014), p. 677, referring to ICAO Doc. 6922-C/803, Annex A, at 125
which reproduces the letter from the Government of Egypt to ICAO dated 16 Oct. 1949 (QCM (A)
Vol. IV, Annex 110).
266 ARSIWA, Art. 49, para. 1; see also Draft Articles on Responsibility of States for Internationally
Wrongful Acts, with commentaries, pp. 129-131; Gabčíkovo-Nagymaros Project
(Hungary/Slovakia), Judgment, I.C.J. Reports 1997, para. 83.
267 See, e.g., Chicago Convention, Art. 9(b) (conferring on Member States the right “temporarily to
restrict or prohibit flying over the whole or any part of its territory” in exceptional circumstances or
during a period of emergency, or in the interest of public safety, “on condition that such restriction
or prohibition shall be applicable without distinction of nationality to aircraft of all other States”.)
(BESUM Vol. II, Annex 1) (emphasis added).
77
Organization” is precisely to “[a]void discrimination between contracting
States”.268
3.63 In addition, even though the Chicago Convention does not prohibit
reservations, no State party has ever made a reservation to any of its provisions—
or submit any request to that effect before the Council or any other organ of the
organisation.269 All ICAO member States accept the Convention without
reservation.
3.64 Finally, pursuant to Article 82 of the Chicago Convention, ICAO Member
States have undertaken “not to enter into any … obligations and understandings
[which are inconsistent with the terms of the Chicago Convention]”.270 The ILC
Report on the Fragmentation of International Law identifies clauses of that type as
“an express exception to the lex posterior rule, designed to guarantee the normative
power of the earlier treaty”.271
268 Ibid., Art. 44(g) (emphasis added).
269 Article 20(3) of the Vienna Convention on the Law of Treaties (“VCLT”) provides that “[w]hen
a treaty is a constituent instrument of an international organization and unless it otherwise provides,
a reservation requires the acceptance of the competent organ of that organization”. Vienna
Convention on the Law of Treaties (adopted 22 May 1969), 1155 U.N.T.S. 331, Art. 20(3). See also
International Law Commission, Guide to Practice on Reservations to Treaties, Conclusion 2.8.8,
in Yearbook of the International Law Commission 2011, Vol. II, Part II, UN Doc.
A/CN.4/SER.A/2011/Add.1 (Part 2), p. 31. This provision can be seen as reflective of customary
international law. See International Law Commission, 59th Session, Twelfth report on reservations
to treaties by Mr. Alain Pellet, Special Rapporteur, UN Doc. A/CN.4.584 (15 May 2007), pp. 45-
46, paras. 67-68.
270 Chicago Convention, Art. 82 (BESUM Vol. II, Annex 1) (emphasis added). To the extent that
Joint Appellants base their countermeasures defence on the Riyadh Agreements, this provision
alone defeats their claim.
271 International Law Commission, Fragmentation of International Law: Difficulties Arising from
the Diversification and Expansion of International Law, Report of the Study Group of the
International Law Commission, UN Doc. A/CN.4/L.682 (13 Apr. 2006), para. 268 (some emphasis
added).
78
3.65 If the Council were to conclude that, as a result of the aforementioned
provisions of the Chicago Convention and other elements, countermeasures are
disallowed as a circumstance precluding the wrongfulness of the aviation
prohibitions, there can be no question that it could also decide Qatar’s claims
“without touching” on the question of the alleged breaches of the international
obligations Joint Appellants try to hide behind. Indeed, the very question whether
the Chicago Convention excludes countermeasures is in itself a question “relating
to the interpretation or application of the Convention and its Annexes”. Joint
Appellants’ countermeasures defence cannot possibly deprive the Council of its
jurisdiction to decide this issue.
3.66 The United States Diplomatic and Consular Staff in Tehran case illustrates
all of the foregoing points. In that case, Iran, just like Joint Appellants here, claimed
that its conduct was justified by prior unlawful activities of the United States.272
Iran did not specifically refer to the theory of countermeasures and the Court noted
that it failed to “explain on what legal basis ... these allegations ... constitute a
relevant answer to the United States’ claims”.273 Nevertheless, after having found
Iran responsible for breaches of diplomatic and consular law, the Court considered
that it was bound to examine whether Iran’s unlawful conduct “might be justified
by the existence of special circumstances”.274 The Court did not consider Iran’s
272 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, paras.
37-38.
273 Ibid., para. 82.
274 Ibid., para. 80. Commenting on the Court’s judgment, Cannizzaro and Bonafè write:
“Although the Court did not unveil the legal qualification of the
special circumstances which could have justified the Iranian
conduct, there is little doubt that it referred to the regime of
countermeasures under the customary law of state
responsibility”.
79
defence to fall outside its jurisdiction as circumscribed by the jurisdictional titles
invoked by the United States.275 Nor did the Court consider that such a defence
deprived it of its jurisdiction to entertain the United States’ claims.
3.67 The Court ultimately concluded that there was no need to examine Iran’s
defence because “even if the alleged criminal activities of the United States in Iran
could be considered as having been established, the question would remain whether
they could be regarded by the Court as constituting a justification of Iran’s conduct
and thus a defence to the United States’ claims”.276 The Court found that not to be
the case because “diplomatic law itself provides the necessary means of defence
against, and sanction for, illicit activities by members of diplomatic or consular
missions”.277
3.68 Second, even if countermeasures were an available defence under the
Chicago Convention, the “real issue” in dispute would remain firmly rooted in its
framework. This is also because countermeasures are only a temporary bar to State
responsibility, not a defence in limine.278 The Council could still find the aviation
prohibitions wrongful under the Chicago Convention and its Annexes, and simply
take judicial notice of Joint Appellants’ countermeasures defence. The fact that the
Enzo Cannizzaro & Beatrice Bonafè, “Fragmenting International Law through Compromissory
Clauses? Some Remarks on the Decision of the ICJ in the Oil Platforms Case”, European Journal
of International Law, Vol. 16 No. 3 (2005), p. 492 (QCM (A) Vol. IV, Annex 108).
275 Namely, the Optional Protocols to the Vienna Conventions of 1961 and 1963 on Diplomatic and
Consular Relations, and the 1955 Treaty of Amity, Economic Relations and Consular Rights
between Iran and the United States.
276 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, para. 83.
277 Ibid. (emphasis added).
278 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,
p. 71, para. 2 (“[C]ircumstances precluding wrongfulness … do not annul or terminate the
obligation; rather they provide a justification or excuse for non-performance while the circumstance
in question subsists”.).
80
legal consequences of such a finding would be precluded “for the time being”279
does not mean that the Council’s judgment would not be “capable of effective
application”.280 As soon as the preclusive effect of the countermeasures defence
ceased, the Council’s judgment would entitle Qatar to demand, pursuant to Article
27 of ARSIWA:281 (1) Joint Appellants’ compliance with their obligations under
the Chicago Convention, which includes the cessation of the aviation
prohibitions,282 and (2) compensation for any material loss caused by Joint
Appellants’ breaches of the Convention.
3.69 Third and finally, the Council could assess the legality of Joint Appellants’
countermeasures defence without addressing the substantive premise thereof (i.e.,
Qatar’s alleged noncompliance with its obligations under international law beyond
the framework of the Chicago Convention). The Council unquestionably has
jurisdiction to assess whether Joint Appellants complied with the other necessary
conditions governing countermeasures.283 For example, questions relating to the
conditions that must be met before the adoption of countermeasures,284 including
279 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,
p. 75, Art. 22, para. 4.
280 Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 1963, p. 22.
281 ARSIWA, Art. 27.
282 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,
p. 75, Art. 27, p. 86, para. 3.
283 Joint Appellants concede that the “real issue” in dispute “continues to fall within [an international
court’s or tribunal’s] jurisdiction although it implicates other aspects in peripheral or ancillary
fashion”. BESUM, para. 5.67 (citing Certain German Interests in Polish Upper Silesia (Germany
v. Poland), Preliminary Objections, Judgment, 1925, P.C.I.J., Series A, No. 6, p. 18); see also ibid.,
para. 5.61 (citing In the matter of the Chagos Marine Protected Area Arbitration (Republic of
Mauritius v. United Kingdom of Great Britain and Northern Ireland), PCA Case No. 2011-03,
Award (18 Mar. 2015), para. 220).
284 See ARSIWA, Art. 52.
81
procedural preconditions, can all be examined and decided without delving into
Qatar’s alleged breaches of international law.
3.70 For all the foregoing reasons, and consistent with the Court’s longstanding
jurisprudence, Joint Appellants’ violations of the Chicago Convention are
unmistakably the “real issue” in the dispute Qatar submitted to the ICAO Council.
The Council was therefore correct in finding that it has jurisdiction to hear Qatar’s
claims.
III. The Adjudication of Qatar’s Claims by the ICAO Council is Entirely
Consistent with Judicial Propriety
3.71 Joint Appellants argue that “[e]ven if the Court were to … conclude that
the ICAO Council in principle has jurisdiction over Qatar’s claims … that is not
the end of the analysis of the ICAO Council’s competence to hear the dispute”.285
3.72 Actually, it is. Joint Appellants’ “alternative argument” on the admissibility
of Qatar’s claims is not really an “alternative” one. It is, at root, an obvious
repurposing of their errant jurisdictional objection.286 Here once again they assert
that if the Council were to pass upon their countermeasures defence it would
adjudicate “beyond the[] bounds”287 of Article 84 without their consent. The
argument is no more convincing when dressed up in these new clothes than it was
in the old ones.
285 BESUM, para. 5.96.
286 Hence, it can be dispensed with on the same grounds and without determining whether questions
of admissibility of claims may be raised as a preliminary matter before the Council, an issue to
which, curiously, Joint Appellants devoted 24 pages of their Memorial.
287 BESUM, para. 5.118; see also ibid., paras. 5.119-5.124.
82
3.73 As shown above, the Council does not need to pass judgment on Qatar’s
compliance with its international obligations owed to Joint Appellants outside the
framework of the Chicago Convention in order to adjudicate Qatar’s claims under
that framework. Whether countermeasures remain an available defence to
wrongfulness under the Chicago Convention is by definition for the Council to
decide in the first instance;288 countermeasures do not rule out in limine a breach
of the Chicago Convention;289 and they are subject to Joint Appellants’ compliance
with necessary conditions that transcend their substantive premise.290
3.74 Moreover, none of the closed set of exceptional circumstances which gave
rise to the doctrine of judicial propriety in the Court’s jurisprudence apply here.
Qatar’s claims have not become devoid of purpose (Northern Cameroons)291 or
object (Nuclear Tests)292 by virtue of Joint Appellants’ countermeasures defence;
none of the factors identified in Free Zones has the remotest connection to this
case;293 the dispute is plainly not a “non-legal one” (Haya de la Torre);294 there is
no issue of adjudicating the international responsibility of a State that is not party
288 See supra, paras. 3.59-3.67.
289 See supra, para. 3.68.
290 See supra, para. 3.69. Even if the Council needed to determine the substantive premise of the
alleged countermeasures, Joint Appellants must be deemed to have implicitly consented to this
determination via forum prorogatum. The doctrine of forum prorogatum “is relevant … in
determining … the extent to which [the respondent State] may tacitly have accepted jurisdiction
over matters not covered by the original title relied on”. Hugh Thirlway, The International Court of
Justice (2016), p. 53. There is no reason why the same logic should not apply to the respondent
State when raising a countermeasures defence.
291 Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, p. 38.
292 Nuclear Tests (Australia v. France), Judgment, para. 62.
293 Free Zones (France/Switzerland), Order of 19 August 1929, P.C.I.J. Series A, No. 22, p. 15;
Free Zones (France/Switzerland), Judgment of 7 June 1932, P.C.I.J. Series A/B, No. 46, pp. 161-
162.
294 BESUM, para. 5.100.
83
to the proceedings before the Council (Monetary Gold);295 and Qatar is not trying
to circumvent the limits of the ICAO Council’s contentious jurisdiction (Western
Sahara).296
3.75 In fact, what would offend judicial propriety would be accepting Joint
Appellants’ submissions, not Qatar’s. It is they who seek to prevent the Council
from exercising its jurisdictional powers “to their full extent”.297 And it is they who
are trying to circumvent the principle of consent by trying to control the Council’s
jurisdiction by means of (baseless) unilateral assertions.
3.76 Tellingly, Joint Appellants close their judicial propriety argument with the
peculiar assertion that “in order not to compromise [their] position, the only
possible solution would be for the ICAO Council expressly to leave undecided the
Appellants’ invocation of countermeasures, merely recognizing it as a defence
available under general international law…”.298 In other words, Joint Appellants
suggest that it would be proper for the Council to declare that a countermeasures
defence is available to them, but improper for it to consider that defence. In Qatar’s
view, such a confused conception of judicial propriety shows only one thing: that
Joint Appellants’ admissibility argument is logically and legally unsound, and must
therefore be rejected.
*
295 Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain
and Northern Ireland and United States of America), Preliminary Question, Judgment, p. 32.
296 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, para. 33.
297 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J.
Reports 1996, para. 25.
298 BESUM, para. 5.133.
84
3.77 The present dispute relates to the interpretation and application of the
Chicago Convention and its Annexes. The Council therefore has jurisdiction. In
line with the Court’s prior jurisprudence, that is the end of the debate. Qatar cannot
be deprived of its right to have its claims heard by Joint Appellants’ unilateral
assertions that the “real dispute” between the Parties concerns international
obligations falling outside the scope of the Convention. Accordingly, the Council
properly dismissed Joint Appellants’ First Preliminary Objection, and the Court
should do the same with respect to the Second Ground of Appeal.
85
CHAPTER 4
THE COURT SHOULD DENY JOINT APPELLANTS’ THIRD GROUND
OF APPEAL
4.1 Joint Appellants’ Second Preliminary Objection before the ICAO Council
and Third Ground of Appeal in these proceedings is that the Council incorrectly
found that it had jurisdiction because:
1. Qatar allegedly did not comply with “the precondition of
negotiation contained in Article 84 of the Chicago Convention”;299
and
2. Qatar allegedly did not comply with “the requirements of Article
2(g)”300 of the ICAO Rules for the Settlement of Differences.
4.2 Joint Appellants base both claims on the assertion that Qatar “has failed to
show that it in fact made a genuine attempt, or indeed any attempt at all, to initiate
negotiations about the airspace restrictions … prior to submitting [its Application]
to the ICAO Council”.301
4.3 This Chapter demonstrates that the ICAO Council did not err in upholding
its jurisdiction over Application A. The record shows that in spite of Joint
Appellants’ total refusal to negotiate, Qatar made many genuine attempts to do so
299 BESUM, para. 6.1.
300 Ibid. Article 2(g) provides: “Any Contracting State submitting a disagreement to the Council for
settlement (hereinafter referred to as “the applicant”) shall file an application to which shall be
attached a memorial containing: … (g) A statement that negotiations to settle the disagreement had
taken place between the parties but were not successful”. ICAO Council, Rules for the Settlement
of Differences, Art. 2(g) (BESUM Vol. II, Annex 6).
301 Ibid., para. 6.4.
86
with them with a view to resolving the dispute over the aviation prohibitions.
Indeed, the evidence in this respect is overwhelming, as is the evidence showing
that Joint Appellants rebuffed Qatar’s efforts at every turn by insisting on “nonnegotiable”
preconditions (Section I).
4.4 Qatar’s Memorial to the ICAO Council also fully complied with Article
2(g) of the ICAO Rules for the Settlement of Differences. And even assuming
arguendo that it did not, any ostensible noncompliance was later cured and is not
appealable to the Court in any event (Section II).
I. The Council Properly Held that Qatar Satisfied the Negotiation
Requirement
A. INTERNATIONAL LAW REQUIRES A GENUINE ATTEMPT TO NEGOTIATE WITH
A VIEW TO RESOLVING THE DISPUTE
4.5 Article 84 of the Chicago Convention provides in relevant part:
“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”.302
4.6 The Court has explained the contents of negotiation requirements like that
stated in Article 84 on many occasions. In Georgia v. Russian Federation, the
Court held that such requirements call for “at the very least … a genuine attempt
by one of the disputing parties to engage in discussions with the other disputing
302 Chicago Convention, Art. 84 (BESUM Vol. II, Annex 1) (emphasis added).
87
party, with a view to resolving the dispute”.303 The Court added that where
“negotiations are attempted or have commenced … the precondition of negotiation
is met only when there has been a failure of negotiations, or when negotiations
have become futile or deadlocked”.304
4.7 Joint Appellants agree with this description of the requirement in Georgia
v. Russian Federation.305 They therefore also agree that Article 84 does not require
that negotiations have actually taken place. As the Court stated, the requirement
may be satisfied by a genuine attempt by one of the disputing parties to engage in
discussions with the other with a view to resolving the dispute if that attempt fails
or becomes futile.306
4.8 A negotiation requirement can also be discharged, however, when a
disputing party is confronted with an “immediate and total refusal” to negotiate on
the other side. Such a blanket refusal plainly excludes any possibility for an
amicable settlement. This was precisely the situation in United States Diplomatic
and Consular Staff in Tehran. In that case, the Court held that the Iranian
303 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 157 (emphasis added).
304 Ibid., para. 159 (citing to Mavrommatis Palestine Concessions (Greece v. Great Britain),
Jurisdiction, Judgment, 1924, P.C.I.J. Series A, No. 2, p. 13; South West Africa (Ethiopia v. South
Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, pp. 345-
346; United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, para. 51; Applicability of the Obligation to Arbitrate under Section
21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J.
Reports 1988, para. 55).
305 BESUM, paras. 6.28-6.29, 6.36.
306 “[W]hether negotiations ... have taken place, and whether they have failed or become futile or
deadlocked, are essentially questions of fact ‘for consideration in each case”. Georgia v. Russian
Federation, Preliminary Objections, Judgment, I.C.J. Reports 2011, para. 160 (quoting
Mavrommatis Palestine Concessions, Jurisdiction, Judgment, 1924 P.C.I.J. Series A, No. 2, p. 13).
88
Government’s “refusal … to enter into any discussion on the matter” despite the
United States’ protests was sufficient to discharge the negotiation requirement
under Article XXI, paragraph 2 of the Treaty of Amity, Economic Relations, and
Consular Rights between the United States and Iran.307 Indeed, the Court’s
Judgment makes no mention of any attempts by the United States to negotiate after
its efforts to make its views known to Iran were rebuffed.308
4.9 This result makes perfect sense. A contrary rule would allow one party to a
dispute to frustrate the other’s access to a dispute settlement mechanism
conditioned on negotiations, merely by refusing to engage with it.
4.10 In addition to making good practical sense, this result is also consistent with
what is expected of States when they negotiate. In the North Sea Continental Shelf
cases, the Court explained that
“parties are under an obligation to enter into
negotiations with a view to arriving at an agreement,
and not merely to go through a formal process of
negotiation as a sort of prior condition for the
automatic application of a certain method of
delimitation in the absence of agreement; they are
under an obligation so to conduct themselves that
307 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, para. 51. Article XXI, paragraph 2 reads: “Any dispute between the
High Contracting Parties as to the interpretation or application of the present Treaty, not
satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless
the High Contracting Parties agree to settlement by some other pacific means”. Joint Appellants do
not differentiate between requirements to negotiate as found in Article 84 of the Chicago
Convention and requirements to seek a satisfactory adjustment of a dispute by diplomacy as found
in Article XXI, paragraph 2 of the Treaty of Amity between the United States and Iran. See BESUM,
para. 6.53(b). The Court also does not differentiate between the requirement in Article XXI,
paragraph 2 and other negotiation requirements found in treaties. See Georgia v. Russian
Federation, Preliminary Objections, Judgment, I.C.J. Reports 2011, para. 133.
308 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, para. 47; see also id., para. 48.
89
the negotiations are meaningful, which will not be
the case when either of them insists upon its own
position without contemplating any modification of
it …”.309
4.11 If a State refuses even to come to the negotiation table, still less with the
open mind that international law requires, there is obviously no chance for
meaningful exchanges and no chance that the dispute can be resolved by
negotiation.
4.12 Joint Appellants ignore these basic points when recounting the contents of
the negotiation requirement in their Memorial.310
4.13 Joint Appellants, however, emphasise the fact that the attempt to negotiate
must be made “with a view to resolving the dispute”.311 But they inappropriately
try to reframe this requirement in more stringent terms. They assert that
“the negotiations, or the attempt to initiate
negotiations, must directly concern the disagreement
between the two States submitted for adjudication
and must have particularly addressed (or at least
have sought to address) the specific question of
interpretation or application of the treaty that gives
rise to the dispute between the parties”.312
309 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands), Judgment, I.C.J.
Reports 1969, para. 85(a) (emphasis added).
310 In their Memorial, Joint Appellants cite to United States Diplomatic and Consular Staff in
Tehran only once and for a rather minor point. See BESUM, para. 6.53(b), fn. 439.
311 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 157; see BESUM, para. 6.27.
312 BESUM, para. 6.31 (emphasis added).
90
4.14 This is not what the Court held in Georgia v. Russian Federation. There,
the Court stated that for the negotiation requirement to be satisfied,
“it is not necessary that a State must expressly refer
to a specific treaty in its exchanges with the other
State to enable it later to invoke that instrument
before the Court …. [T]he exchanges must refer to
the subject-matter of the treaty with sufficient clarity
to enable the State against which a claim is made to
identify that there is, or may be, a dispute with
regard to that subject-matter”.313
4.15 Joint Appellants are therefore wrong when they claim that the party
attempting to negotiate must have sought to address “the specific question of
interpretation or application of the treaty that gives rise to the dispute between the
parties”.314 Rather, international law requires only that the “subject-matter” of the
treaty giving rise to the dispute be addressed with “sufficient clarity” to enable the
other disputing party to conclude that “there is, or may be, a dispute with regard to
that subject-matter”.315
4.16 Finally, the Court has made clear that what constitutes “negotiation” should
be assessed with flexibility. In Mavrommatis Palestine Concessions, the Court’s
predecessor held:
“Negotiations do not of necessity always presuppose
a more or less lengthy series of notes and despatches;
it may suffice that a discussion should have been
313 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 30 (emphasis added).
314 BESUM, para. 6.31 (emphasis added).
315 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 30.
91
commenced, and this discussion may have been very
short; this will be the case if a deadlock is reached,
or if finally a point is reached at which one of the
Parties definitely declares himself unable, or refuses,
to give way, and there can be therefore no doubt that
the dispute cannot be settled by diplomatic
negotiation”.316
4.17 Similarly, no specific format or procedure is required. In the South West
Africa cases, the Court ruled that “collective negotiations” in the context of an
international organisation should not be distinguished from “direct negotiations”
between the disputing parties, observing that “it is not so much the form of
negotiation that matters as the attitude and views of the Parties on the substantive
issues of the question involved”.317 Indeed, “diplomacy by conference or
parliamentary diplomacy has come to be recognized … as one of the established
modes of international negotiations”.318
4.18 The Court reaffirmed this finding in Georgia v. Russian Federation, in
which it stated that “the Court has come to accept less formalism in what can be
considered negotiations”.319
316 Mavrommatis Palestine Concessions (Greece v. Great Britain), Jurisdiction, Judgment, 1924,
P.C.I.J. Series A, No. 2, p. 13 (emphasis omitted). The Court continued: “But it is equally true that
if the diplomatic negotiations between the Governments commence at a point where the previous
discussions left off, it may well happen that the nature of the latter was such as to render superfluous
renewed discussion of the opposing contentions in which the dispute originated. No general and
absolute rule can be laid down in this respect. It is a matter for consideration in each case”. Ibid.
317 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment, I.C.J. Reports 1962, pp. 345-346 (emphasis added).
318 Ibid., p. 346.
319 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 160.
92
4.19 Judge Buergenthal echoed these points in his book on ICAO, writing as
early as 1969 that
“The requirement of prior negotiations does not
necessarily demand that the parties engage in direct
negotiations. It could undoubtedly also be satisfied
by negotiations carried on in a parliamentary or
conference forum, provided both parties to the
dispute participated therein on opposite sides. The
dispute between the United States and
Czechoslovakia over the launching of balloons
demonstrates how, within the ICAO framework,
parliamentary diplomacy can take the place of direct
negotiations”.320
4.20 In sum, Joint Appellants’ description of Article 84’s negotiation
requirement in the Memorial is incomplete—and, in certain critical respects,
wrong. They acknowledge that Article 84 does not require that negotiations have
actually taken place as long as there has been a genuine attempt to negotiate.321
They fail, however, to acknowledge that a disputing party is not required to even
attempt to negotiate when faced with the other party’s “immediate and total
refusal” to enter into any discussion on the matter. Finally, Joint Appellants
acknowledge that the attempt to negotiate must be made “with a view to resolving
the dispute”, but they improperly seek to impose stringent requirements that the
Court has specifically rejected when they allege that the attempt “must have
particularly addressed … the specific question of interpretation or application of
the treaty that gives rise to the dispute between the parties”.322
320 Thomas Buergenthal, Law-making in the International Civil Aviation Organization (1969), p.
131 (BESUM Vol. VI, Annex 125) (emphasis added).
321 See BESUM, paras. 6.28-6.29, 6.36.
322 Ibid., paras. 6.28, 6.31.
93
4.21 Qatar will demonstrate below that the negotiation requirement in Article 84
has plainly been met in this case.
B. QATAR GENUINELY ATTEMPTED TO NEGOTIATE WITH A VIEW TO RESOLVING
THE DISPUTE
4.22 Qatar submitted its Application to the ICAO Council on 30 October
2017.323 The disagreement over the aviation prohibitions arose 147 days earlier, on
5 June 2017. As the record placed before the Council shows, Qatar tried repeatedly
during this interval to engage Joint Appellants in negotiations through multiple
avenues and in multiple fora, including through direct means (Section I.B.1),
ICAO (Section I.B.2), the World Trade Organization (“WTO”) (Section I.B.3) and
the facilitation of other States (Section I.B.4). Joint Appellants frustrated those
efforts at every turn. At all times, they conditioned resolving the aviation dispute
to Qatar’s capitulation to their wider demands.
4.23 In these circumstances, there can be no question that the Article 84
negotiation requirement was satisfied and the ICAO Council correctly determined
that it had jurisdiction.
4.24 Before turning to those circumstances, however, it is important to dispel
Joint Appellants’ argument based not on the facts of the case but on a patently
incorrect characterisation of Qatar’s Article 2(g) statement in its Memorial to the
ICAO Council, which reads as follows:
“The Respondents did not permit any opportunity to
negotiate the aviation aspects of their hostile actions
against the State of Qatar. They repeatedly gave an
323 ICAO Application (A) (BESUM Vol. III, Annex 23).
94
ultimatum to the State of Qatar on matters unrelated
to air navigation and air transport. The last contact
with the Respondents was a conference call with
officials of the Respondents on 5 and 6 June 2017
that did not result in any understanding. In fact, the
crisis gradually escalated when the Respondents
declared all Qatar’s citizens and resident
‘undesirable’ (persona non grata) in their territories
and ordered them to leave the Respondents’
territories within 14 days. The severance of
diplomatic relations makes further negotiating
efforts futile”.324
4.25 Joint Appellants claim that this statement constitutes “a clear and candid
admission by Qatar that it failed to make any attempt prior to the filing of its
Application to engage in negotiations with the Appellants in relation to the
disagreement” and is thus an “implicit[] admi[ssion] that [Qatar] did not comply
with the jurisdictional precondition of negotiations under Article 84 of the Chicago
Convention”.325
4.26 Joint Appellants ironically base their argument on the first sentence of the
statement: “Respondents did not permit any opportunity to negotiate the aviation
aspects of their hostile actions …”.326 This is ironic because this fact, if true,327
324 ICAO Memorial (A), Section (g) (BESUM Vol. III, Annex 23) (emphasis added).
325 BESUM, para. 6.45; see also id., para. 6.59.
326 ICAO Memorial (A), Section (g) (BESUM Vol. III, Annex 23); BESUM, para. 6.46.
327 Qatar obviously does not dispute that “[t]he policy rationales underlying the precondition of
negotiations in Article 84 would be frustrated if an Applicant were permitted to unilaterally declare
that negotiations would be futile before even attempting to initiate them. If it were otherwise, the
precondition of negotiation would easily be circumvented”. BESUM, para. 6.48. But the same
policy rationales would equally be frustrated if a Respondent were permitted to escape jurisdiction
by declaring that their actions are non-negotiable only to later insist that the Applicant should
nevertheless have sought to negotiate with it.
95
would necessarily mean that the negotiation requirement has been met.328
Moreover, the statement refers solely to Joint Appellants’ conduct and cannot be
taken to mean that Qatar did not make any attempt to negotiate. All the more so,
given that at the end of its Article 2(g) statement, Qatar unequivocally states that
“[t]he severance of diplomatic relations makes further negotiating efforts futile”.329
If anything, Qatar’s Article 2(g) statement was therefore “a clear and candid
admission” that it had in fact genuinely attempted to negotiate.
4.27 In light of the above, Joint Appellants’ claim that there is an inconsistency
between Qatar’s Memorial and Response to the Preliminary Objections before the
ICAO Council330 is without merit. As demonstrated below, Qatar made multiple
genuine attempts to negotiate with a view to resolving the dispute notwithstanding
Joint Appellants’ refusal to engage with it.
1. Qatar unsuccessfully tried to settle the dispute through direct means
4.28 The aviation prohibitions were not the only measure Joint Appellants took
against Qatar on 5 June 2017. That same day, also without prior warning, they
severed all diplomatic and consular relations with Qatar, expelled Qatar’s
diplomats from their territories, closed their embassies and consulates in Doha and
withdrew their own diplomats from Qatar.331
328 See United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, paras. 47-48, 51-2.
329 ICAO Memorial (A), Section (g) (BESUM Vol. III, Annex 23) (emphasis added).
330 See BESUM, paras. 6.40, 6.59.
331 ICAO Preliminary Objections (A), Exhibit 6, Declaration of the Arab Republic of Egypt (16
Nov. 2014) (BESUM Vol. III, Annex 24); ICAO Preliminary Objections (A), Exhibit 7,
Declaration of the Kingdom of Bahrain (5 June 2017) (BESUM Vol. III, Annex 24); ICAO
Preliminary Objections (A), Exhibit 8, Declaration of Kingdom of Saudi Arabia (5 June 2017)
96
4.29 Joint Appellants argue that the “absence of diplomatic relations does not
constitute an obstacle to the ability of a State to attempt to initiate negotiations”,332
but this ignores the reality of inter-State dialogue and communication. At the very
least, the absence of diplomatic channels between Qatar and Joint Appellants made
it much more difficult for Qatar even to attempt to negotiate. But the severance of
relations also conveyed a message: Joint Appellants had no interest in talking, let
alone negotiating, with Qatar.
4.30 That message soon became explicit. Just two days after the imposition of
the aviation prohibitions, the Minister of State for Foreign Affairs of the UAE
(BESUM Vol. III, Annex 24); ICAO Preliminary Objections (A), Exhibit 9, Declaration of the
United Arab Emirates (5 June 2017) (BESUM Vol. III, Annex 24).
332 BESUM, para. 6.53(b). Joint Appellants seek to establish this proposition by reference to the
Court’s jurisprudence, but Qatar fails to see how that jurisprudence supports it. In both United States
Diplomatic and Consular Staff in Tehran and Oil Platforms, the Court had no difficulty concluding
that the negotiation requirement in Article XXI, paragraph 2 of the Treaty of Amity, Economic
Relations, and Consular Rights between the United States and Iran was fulfilled. In the former case,
and as explained above, the Court reached that conclusion on the basis of the Iranian Government’s
“immediate and total refusal” to negotiate. See United States Diplomatic and Consular Staff in
Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, paras. 47-48, 51-52. In
the latter, with respect to Iran’s claims under the Treaty, the United States did not even challenge
the jurisdiction of the Court on the basis that the negotiation requirement had not been satisfied. Oil
Platforms (Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996,
para. 16. This suggests a recognition on the part of the United States of the opposite conclusion
from that drawn by Joint Appellants; namely, the absence of diplomatic relations is an obstacle to
the ability of a State to attempt to initiate negotiations. With respect to the United States’ counterclaims
under the Treaty, the Court similarly held that the negotiation requirement had been satisfied
without referring to any specific negotiations between the parties. Oil Platforms (Iran v. United
States of America), Merits, Judgment, I.C.J. Reports 2003, para. 107. This further suggests that the
absence of diplomatic relations may constitute an obstacle to negotiations. Joint Appellants’
reliance on Article 63 of the Vienna Convention on the Law of Treaties, providing that “[t]he
severance of diplomatic or consular relations between parties to a treaty does not affect the legal
relations established between them by treaty”, does not detract from this observation. BESUM,
para. 6.53(b). While this may be true in terms of the continued legal bindingness of the treaty
provisions in question, which after all is the subject of Article 63, it says nothing as to whether the
relations established between the parties under that treaty may be affected as a matter of fact.
97
stated that there was “nothing to negotiate” with Qatar.333 Then on 22 June 2017,
Joint Appellants issued the so-called 13 Demands.334 These included demands that
Qatar “[s]cale down diplomatic ties with Iran”; “shut down Al Jazeera and its
affiliate stations”; “halt military cooperation with Turkey inside of Qatar”; and
“align [its] military, political, social and economic policies with the other Gulf and
Arab countries”.335 Qatar was also instructed to “[a]gree to all the demands within
10 days”, and “[c]onsent to monthly compliance audits in the first year after
agreeing to the demands, followed by quarterly audits in the second year, and
annual audits in the following 10 years”.336
4.31 Qatar considered Joint Appellants’ demands to be patently unreasonable.337
It was not alone. The Secretary of State of the United States publicly stated that
333 Jon Gambrell, “Emirati diplomat to AP: ‘Nothing to negotiate’ with Qatar”, Associated Press (7
June 2017) (QCM (A) Vol. IV, Annex 72).
334 ICAO Response to the Preliminary Objections (A), Exhibit 28, State of Qatar Announces Receipt
of Paper Containing Demands from Siege Countries, Egypt (BESUM Vol. IV, Annex 25); ICAO
Response to the Preliminary Objections (A), Exhibit 29, List of demands by Saudi Arabia, other
Arab nations (BESUM Vol. IV, Annex 25).
335 ICAO Response to the Preliminary Objections (A), Exhibit 29, List of demands by Saudi Arabia,
other Arab nations (BESUM Vol. IV, Annex 25).
336 ICAO Response to the Preliminary Objections (A), Exhibit 29, List of demands by Saudi Arabia,
other Arab nations (BESUM Vol. IV, Annex 25). On or about 19 July 2017, Joint Appellants
supplemented the 13 Demands with 6 Principles, focusing on compliance with the 2014 Riyadh
Agreement and outcomes of the 2017 Riyadh Summit, addressing extremism and refraining from
acts of provocation and interference in the affairs of other States. See “Arab countries’ six principles
for Qatar ‘a measure to restart the negotiation process’”, The National (19 July 2017) (QCM (A)
Vol. IV, Annex 85); ICAO Response to the Preliminary Objections (A), Exhibit 58, Foreign
Ministers of Saudi Arabia, Bahrain, UAE and Egypt: Measures taken against Qatar are sovereign,
and we all are negatively impacted when terrorism and extremism become stronger (30 July 2017)
(BESUM Vol. IV, Annex 25).
337 ICAO Response to the Preliminary Objections (A), Exhibit 39, Qatari, German Foreign
Ministers: Dialogue Only Option to Resolve Crisis (4 July 2017), p. 3 (BESUM Vol. IV, Annex
25).
98
Joint Appellants’ demands were “difficult to meet”.338 The United Kingdom’s
Foreign Secretary similarly suggested that the demands were not “realistic”.339 And
the German Foreign Ministry characterised the 13 Demands as “very
provocative”.340
4.32 On 27 June 2017, the Minister of Foreign Affairs of Saudi Arabia
confirmed that the 13 Demands were “non-negotiable”.341 He added:
“It’s very simple. We made our point. We took our
steps and it’s up to the Qataris to amend their
behaviour. Once they do, things will be worked out.
But if they don’t, they will remain isolated. … If
Qatar wants to come back into the [Gulf Cooperation
Council] pool, they know what they have to do”.342
4.33 The same day, the UAE’s Ambassador to the Russian Federation confirmed
what would happen if Qatar did not capitulate to the 13 Demands within the ten
days they gave it: “[W]e’d no longer be interested in bringing Qatar back into the
Gulf and the Arab fold”.343
4.34 And as if there was any lingering doubt over the character of Joint
Appellants’ demands of Qatar, the following day, 28 June 2017, the Minister of
338 ICAO Response to the Preliminary Objections (A), Exhibit 30, Qatar demands difficult to meet,
says US (25 June 2017) (BESUM Vol. IV, Annex 25).
339 Ibid.
340 “Saudi demands from Qatar 'very provocative': Germany”, Reuters (26 June 2017) (QCM (A)
Vol. IV, Annex 80).
341 ICAO Response to the Preliminary Objections (A), Exhibit 34, Qatar condemns Saudi refusal
to negotiate over demands (28 June 2017) (BESUM Vol. IV, Annex 25).
342 Ibid.
343 ICAO Response to the Preliminary Objections (A), Exhibit 31, Qatar facing indefinite isolation,
UAE says (27 June 2017) (BESUM Vol. IV, Annex 25).
99
Foreign Affairs of Saudi Arabia reiterated: “Our demands on Qatar are nonnegotiable”.
344
4.35 It is unclear to Qatar how Joint Appellants can in good faith take the view
that Qatar failed to discharge its obligation to negotiate when they themselves, after
severing diplomatic relations, took the view that there was “nothing to negotiate”
unless Qatar adhered to their demands, which themselves were “non-negotiable”.
4.36 As stated, the Court has made clear that a disputing party’s “immediate and
total refusal” to negotiate, without more, dispenses with the need to examine the
other party’s attempts to negotiate.345 The Court has also suggested that when a
disputing party “insists upon its own position without contemplating any
modification of it”, it is not complying with its obligation to conduct itself so that
the negotiations are “meaningful”.346
4.37 In this case, Joint Appellants have not only refused to negotiate, but have
also expressly conditioned any negotiation on acceptance of demands that
themselves are non-negotiable. A fortiori, the negotiation requirement is satisfied
even without examining the details of Qatar’s specific attempts to negotiate.
4.38 That said, the record shows that in spite of Joint Appellants’ severance of
all diplomatic channels of communication and their refusal to negotiate absent
Qatar’s capitulation to their demands, Qatar repeatedly and publicly asserted its
344 Naser Al Wasmi, “UAE and Saudi put pressure on Qatar ahead of demands deadline”, The
National (28 June 2017) (QCM (A) Vol. IV, Annex 81) (emphasis added).
345 See United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, para. 52.
346 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands), Judgment, I.C.J.
Reports 1969, para. 85(a).
100
openness to dialogue and negotiation, including over the question of the aviation
prohibitions.347 For example, on 11 September 2017, Qatar’s Deputy Prime
Minister and Minister of Foreign Affairs stated before the UN Human Rights
Council that Qatar was ready to enter dialogue to end the Gulf crisis.348 Then, on
19 September 2017, His Highness the Amir of Qatar spoke before the UN General
Assembly, saying:
“[W]e have taken an open attitude towards dialogue
without dictation, and have expressed our readiness
to resolve differences through compromises based
on common undertakings. Resolving conflicts by
peaceful means is actually one of the priorities of our
347 ICAO Response to the Preliminary Objections (A), Exhibits 16-18, 20-21, 23-26, 32, 34-40, 42,
44, 48-57, 59-63, 66-72, 74 (BESUM Vol. IV, Annex 25). Joint Appellants seek to discount Qatar’s
evidence postdating the date of filing of Qatar’s Application (30 October 2017), arguing that
“compliance with any preconditions for jurisdiction must be fulfilled as at the date of seisin”.
BESUM, paras. 6.75, 6.90-6.92. Although Qatar satisfied the negotiation requirement as of the date
of the submission of the dispute to the Council, Qatar does not concede that the negotiation
requirement must be satisfied as of that date. Qatar maintains that, although the Court generally
considers issues of jurisdiction and admissibility as of the date of the Application, this is not an
iron-clad rule. In Mavrommatis Palestine Concessions, the Court’s predecessor held that “[e]ven
…if the application were premature because the Treaty of Lausanne had not yet been ratified, this
circumstance would now be covered by the subsequent deposit of the necessary ratifications”,
noting that “[t]he Court, whose jurisdiction is international, is not bound to attach to matters of form
the same degree of importance which they might possess in municipal law”. Mavrommatis Palestine
Concessions (Greece v. Great Britain), Jurisdiction, Judgment, 1924, P.C.I.J. Series A, No. 2, p.
34. Much more recently, in Croatia v. Serbia, the Court held that the relevant date was that of the
decision on jurisdiction, not that of the filing of the Application because “it is not in the interests of
the sound administration of justice to compel the applicant to begin the proceedings anew”.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia
v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, para. 85. This logic is equally
applicable here given Joint Appellants’ intransigence. In any event, the Court has accepted that
“conduct subsequent to the application … may be relevant for various purposes”, in particular to
“confirm the existence of a dispute”. Obligations concerning Negotiations relating to Cessation of
the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, para. 43. There is no reason why it should
be otherwise in the case of other requirements found in a jurisdictional clause. It follows that, at the
very least, Qatar’s evidence postdating 30 October 2017 may serve to confirm the futility of
negotiations already evident at that time.
348 Permanent Mission of the State of Qatar to the United Nations Office in Geneva, Switzerland,
HE the Foreign Minister delivers a statement before the 36th Session of the Human Rights Council
(11 Sept. 2017) (QCM (A) Vol. III, Annex 54).
101
foreign policy. From here, I renew the call for an
unconditional dialogue based on mutual respect for
sovereignty …”.349
4.39 Although Joint Appellants could have exercised their right to reply to
Qatar’s address (as Qatar did with respect to the UAE’s, Saudi Arabia’s and
Bahrain’s addresses350), they all remained silent after His Highness the Amir of
Qatar spoke.
4.40 Joint Appellants sweepingly dismiss these and other expressions of
openness as a mere “tactic”, accusing Qatar of “tak[ing] no concrete steps actually
to attempt to initiate negotiations”.351 It lies ill in the mouth of Joint Appellants to
accuse Qatar of “tactics” when they themselves first refused, and then conditioned
any negotiation on prior acceptance of demands that third States characterised as
unrealistic352 and provocative.353
4.41 Joint Appellants further dismiss Qatar’s attempts to negotiate because they
“were not addressed to [them], but instead they were either addressed to third
349 UN General Assembly, 72nd Session, General Debate, Address by His Highness Sheikh Tamim
bin Hamad Al-Thani, Amir of the State of Qatar (19 Sept. 2017), p. 4 (QCM (A) Vol. III, Annex
55).
350 See UN General Assembly, 72nd Session, General Debate, Statement by His Highness Sheikh
Abdullah Bin Zayed Al Nahyan, Minister of Foreign Affairs and International Cooperation of the
United Arab Emirates (22 Sept. 2017) (QCM (A) Vol. III, Annex 57); UN General Assembly, 72nd
Session, General Debate, H.E. Mr. Shaikh Khalid Bin Ahmed Bin Mohamed Al Khalifa, Minister
for Foreign Affairs of Bahrain (22 Sept. 2017) (QCM (A) Vol. III, Annex 58); UN General
Assembly, 72nd Session, General Debate, H.E. Mr. Adel Ahmed Al-Jubeir, Minister of Foreign
Affairs of Saudi Arabia, Summary of Statement (23 Sept. 2017) (QCM (A) Vol. III, Annex 59).
351 BESUM, para. 6.61.
352 ICAO Response to the Preliminary Objections (A), Exhibit 30, Qatar demands difficult to meet,
says US (25 June 2017) (BESUM Vol. IV, Annex 25); “Qatar given 10 days to meet 13 sweeping
demands by Saudi Arabia”, The Guardian (23 June 2017) (QCM (A) Vol. IV, Annex 79).
353 “Saudi demands from Qatar 'very provocative': Germany”, Reuters (26 June 2017) (QCM (A)
Vol. IV, Annex 80).
102
parties and subsequently reported in the media or constitute press releases issued
by Qatar to the world at large”.354 As the Court has stressed, however, “it is not so
much the form of negotiation that matters as the attitude and views of the Parties
on the substantive issues of the question involved”.355 And Qatar’s attitude and
views were clear: it remained open to “unconditional dialogue”.356 Joint
Appellants’ position was equally clear: there was “nothing to negotiate” with
Qatar.357
4.42 In fact, the only time that one of the Joint Appellants’ leaders actually
agreed to engage with Qatar directly (albeit only very briefly), His Highness the
Amir did take “concrete steps” to attempt negotiations. On 8 September 2017, with
the facilitation of the President of the United States, His Highness the Amir of Qatar
called the Crown Prince of Saudi Arabia by telephone. As reported by the official
news agency of Saudi Arabia, the Saudi Press Agency, during this conversation,
“the Emir of Qatar expressed his desire to sit at the dialogue table and discuss the
demands of the four countries”.358 According to Qatar News Agency (“QNA”), His
Highness the Amir also welcomed a proposal made by the Saudi Crown Prince “to
354 BESUM, para. 6.76.
355 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment, I.C.J. Reports 1962, p. 346 (emphasis added); see also Georgia v. Russian Federation,
Preliminary Objections, Judgment, I.C.J. Reports 2011, para. 160 (“[T]he Court has come to accept
less formalism in what can be considered negotiations …”).
356 UN General Assembly, 72nd Session, General Debate, Address by His Highness Sheikh Tamim
bin Hamad Al-Thani, Amir of the State of Qatar (19 Sept. 2017), p. 4 (QCM (A) Vol. III, Annex
55).
357 Jon Gambrell, “Emirati diplomat to AP: ‘Nothing to negotiate’ with Qatar”, Associated Press (7
June 2017) (QCM (A) Vol. IV, Annex 72).
358 “Saudi Arabia suspends dialogue, saying Qatar ‘distorting facts’”, The Guardian (8 Sept. 2017)
(QCM (A) Vol. IV, Annex 89) (emphasis added).
103
assign two envoys to settle [the] issues in dispute”,359 which of course include the
aviation prohibitions. Immediately after the call, however, Saudi Arabia reversed
course and announced the “suspension of any dialogue or communication with the
authority in Qatar”.360 It did this only because QNA failed to report that it was
Qatar that had initiated the call.361 The prospects of negotiation returned to zero,
despite His Highness the Amir of Qatar’s genuine attempt to negotiate.
4.43 Joint Appellants’ Memorial has difficulty characterising this call as
something other than a genuine attempt to negotiate. They make four rather
defensive arguments, none of which have any merit.
4.44 First, Joint Appellants argue that “the evidence of the content of the
supposed conversation is unreliable”, and criticise Qatar for “rel[ying] only on
press reports” and not providing “a transcript or contemporaneous note or an
official statement from Qatar”.362 However, one of the press reports on which Qatar
relies originates from Saudi Arabia’s official news agency, which expressly relays
that “the Emir of Qatar expressed his desire to sit at the dialogue table and discuss
the demands of the four countries”.363 While there is some inconsistency in the
press accounts about whether the Saudi Crown Prince proposed the two envoys, all
359 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept. 2017)
(QCM (A) Vol. IV, Annex 90).
360 “Saudi Arabia suspends dialogue, saying Qatar ‘distorting facts’”, The Guardian (8 Sept. 2017)
(QCM (A) Vol. IV, Annex 89) (emphasis added).
361 “Qatar crisis: Saudi Arabia angered after emir's phone call”, BBC News (9 Sept. 2017) (QCM
(A) Vol. IV, Annex 91).
362 BESUM, para. 6.78.
363 “Saudi Arabia suspends dialogue, saying Qatar ‘distorting facts’”, The Guardian (8 Sept. 2017)
(QCM (A) Vol. IV, Annex 89).
104
of the press accounts, including those from Saudi Arabia and the UAE,364 agree on
the general content of the conversation.
4.45 Second, Joint Appellants argue that “Qatar did not itself claim that it offered
to negotiate in the phone call”.365 Again, Qatar relies on the consensus description
of the call in press reports, as described above, which leaves no doubt that the call
constituted a genuine attempt by His Highness the Amir of Qatar to negotiate the
dispute, including the aviation prohibitions, among other things. In fact, a report
from Gulf News, a news agency operating out of Dubai, UAE, records a statement
by a Saudi Foreign Ministry official stating that “[t]he call was at the request of
Qatar and was a request for dialogue with the four countries on the demands …”.366
4.46 Third, Joint Appellants argue that this phone conversation was only with
Saudi Arabia, not the other three Appellants.367 That, of course, is true. However,
according to the account of the call by the Saudi official news agency itself, His
Highness the Amir “expressed his desire to sit at the dialogue table and discuss the
demands of the four countries to ensure the interests of all parties …”.368 Given
that in all their actions since June 2017, including with respect to the aviation
prohibitions, Joint Appellants have acted jointly and in concert—and continue to
do so before the Court—it would be excessively formalistic to discount the call just
364 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept. 2017)
(QCM (A) Vol. IV, Annex 90); “Saudi Arabia suspends dialogue, saying Qatar ‘distorting facts’”,
The Guardian (8 Sept. 2017) (QCM (A) Vol. IV, Annex 89).
365 BESUM, para. 6.79.
366 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept. 2017)
(QCM (A) Vol. IV, Annex 90) (emphasis added).
367 BESUM, para. 6.82.
368 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept. 2017)
(QCM (A) Vol. IV, Annex 90) (emphasis added).
105
because the leaders of the other three Appellants were not on the line. Indeed, the
account of the call by the Saudi official news agency makes reference to “details
… to be announced later after Saudi Arabia concludes an understanding with
Bahrain, the United Arab Emirates and Egypt”,369 which again demonstrates the
degree of coordination among Joint Appellants.
4.47 Fourth, Joint Appellants argue that the telephone conversation did not
concern “compliance with relevant international obligations in the field of civil
aviation”.370 Relatedly, they add that:
“such a discussion as to the need for dialogue,
couched in the most general terms, and in the context
of a far-wider dispute between the Parties, selfevidently
does not constitute either negotiations in
relation to the interpretation or application of the
Chicago Convention or an attempt to initiate
negotiations in that regard”.371
4.48 As explained above, however, the negotiation requirement is satisfied as
long as there is a genuine attempt to negotiate “with a view to resolving the
dispute”. All the press reports agree that His Highness the Amir of Qatar
“expressed his desire to sit at the dialogue table and discuss the demands of the
four countries”,372 which were raised in the context of measures which included
the aviation prohibitions. The same sources also say that His Highness the Amir
369 Ibid.
370 BESUM, para. 6.80.
371 Ibid., para. 6.81.
372 “Saudi Arabia suspends dialogue, saying Qatar ‘distorting facts’”, The Guardian (8 Sept. 2017)
(QCM (A) Vol. IV, Annex 89).
106
and the Crown Prince were favourably predisposed to “assign[ing] two envoys to
settle issues in dispute”,373 one of which is the aviation prohibitions.
4.49 The fact that the “issues in dispute” include matters beyond just the aviation
prohibitions does not mean that the call should be discounted as a genuine attempt
to negotiate an amicable resolution of the Parties’ dispute under the Chicago
Convention. Nor can it be denied that the resolution of those broader issues could
also bring about the resolution of the aviation prohibitions.374 As explained above,
Joint Appellants’ view of the subject-matter of negotiations is excessively
formalistic and unsupported by the Court’s jurisprudence.375
373 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept. 2017)
(QCM (A) Vol. IV, Annex 90).
374 This does not mean that the dispute under the Chicago Convention is somehow subsumed under
the broader dispute between the Parties, nor does it mean that the “real issue” of the dispute lies
outside of the Chicago Convention, as Joint Appellants allege at BESUM, para. 6.89. Qatar recalls
the Court’s statement in United States Diplomatic and Consular Staff in Tehran to the effect that
“legal disputes between sovereign States by their very nature
are likely to occur in political contexts, and often form only one
element in a wider and long-standing political dispute between
the States concerned. Yet never has the view been put forward
before that, because a legal dispute submitted to the Court is
only one aspect of a political dispute, the Court should decline
to resolve for the parties the legal questions at issue between
them. Nor can any basis for such a view of the Court’s functions
or jurisdiction be found in the Charter or the Statute of the
Court; if the Court were, contrary to its settled jurisprudence,
to adopt such a view, it would impose a far-reaching and
unwarranted restriction upon the role of the Court in the
peaceful solution of international disputes”.
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, para. 37 (emphasis added).
375 See supra, paras. 4.13-4.15.
107
4.50 In any event, it is not true that Qatar’s attempts “did not deal with the
specific subject-matter of Qatar’s claims” under the Chicago Convention.376 On 28
June 2017, the BBC reported that His Excellency the Foreign Minister of Qatar
“condemned its Gulf neighbours for refusing to negotiate over their demands for
restoring air, sea and land links”.377 “Air links” is an obvious reference to the
aviation prohibitions.
4.51 On 5 July 2017, His Excellency the Foreign Minister of Qatar stated:
“The answer to our disagreements is not blockades
and ultimatums. It is dialogue and reason. We in
Qatar are always open to both, and we welcome any
serious efforts to resolve our differences with our
neighbours … And we always welcome dialogue
and negotiations. … Qatar continues to call for
dialogue … Qatar stands ready to engage in a
negotiations process with a clear framework and set
of principles that guarantee that our sovereignty is
not infringed upon”.378
4.52 Although His Excellency the Foreign Minister did not expressly refer to the
aviation prohibitions in his speech, he repeatedly referred to the “blockade” and
also referred to “extraordinary, unprovoked and hostile actions against Qatar”.379
Such actions no doubt encompassed the aviation prohibitions, among other
measures.
376 BESUM, para. 6.83.
377 ICAO Response to the Preliminary Objections (A), Exhibit 34, Qatar condemns Saudi refusal
to negotiate over demands (28 June 2017) (BESUM Vol. IV, Annex 25) (emphasis added).
378 ICAO Response to the Preliminary Objections (A), Exhibit 40, Foreign Minister: Any Threat to
Region is Threat to Qatar (5 July 2017) (BESUM Vol. IV, Annex 25).
379 Ibid.
108
4.53 On 22 July 2017, His Highness the Amir of Qatar delivered his first public
address following the imposition of the aviation prohibitions and other measures
on 5 June 2017. He expressly stated that Qatar is “ready for dialogue and for
reaching settlements on all contentious issues in this context”.380 The “contentious
issues” included, of course, the aviation prohibitions, which His Highness the Amir
also specifically mentioned during his speech.381
4.54 Despite Qatar’s calls for negotiation, on 30 July 2017, Joint Appellants’
Foreign Ministers reiterated their inflexibility. At a joint press conference with his
counter-parts from the other three Appellants, the Minister of Foreign Affairs of
Saudi Arabia stated that “there is no negotiation over the 13 demands”.382
Importantly, the Minister added that “we made a decision not to allow our airspace
or borders to be used and this is our sovereign right”.383 There is thus no doubt that
the subject-matter concerning which there could be “no negotiation” included,
among other things, the aviation prohibitions.
4.55 In conclusion, Qatar tried repeatedly to engage with Joint Appellants to
settle the dispute before it instituted proceedings before the ICAO Council on 30
October 2017. All of its efforts were rebuffed, and even now there is no indication
that this is going to change unless Qatar capitulates to Joint Appellants’ demands.
380 “Emir speech in full text: Qatar ready for dialogue but won’t compromise on sovereignty”, The
Peninsula (22 July 2017), p. 7 (QCM (A) Vol. IV, Annex 86).
381 Ibid. (“I also thank all those who opened their airspace and territorial waters when our brothers
closed theirs”.) See also ICAO Response to the Preliminary Objections (A), Exhibit 70, Minister of
State for Foreign Affairs Confirms Illegality of the Siege Imposed on Qatar (26 Sept. 2017)
(BESUM Vol. IV, Annex 25).
382 ICAO Response to the Preliminary Objections (A), Exhibit 58, Foreign Ministers of Saudi
Arabia, Bahrain, UAE and Egypt: Measures taken against Qatar are sovereign, and we all are
negatively impacted when terrorism and extremism become stronger (30 July 2017) (BESUM Vol.
IV, Annex 25).
383 Ibid.
109
On 27 May 2018, Bahrain’s Foreign Minister stated that the circumstances did not
indicate “any glimmer of hope” for a solution.384 And as recently as 26 September
2018, the Saudi Minister of Foreign Affairs warned that “if [Qatar] [does not
change] we’re patient people. We’ll wait for ten, fifteen, twenty years, fifty years.
… We have no issue”.385
4.56 The present situation is thus reminiscent of United States Diplomatic and
Consular Staff in Tehran. Just like Iran, Joint Appellants refused to enter into any
discussions on any issue, including on the aviation prohibitions. This can be seen
in, among other things, their closure of all diplomatic channels of communication
and their political leaders’ repeated statements that they were unwilling to
negotiate. The conclusion is therefore inescapable: just as in United States
Diplomatic and Consular Staff in Tehran, the negotiation requirement was
satisfied.
2. Qatar unsuccessfully tried to settle the dispute through ICAO
4.57 Qatar also sought to engage Joint Appellants through ICAO’s institutional
framework. The record shows that Joint Appellants excluded the aviation
prohibitions from the Council’s discussion of Qatar’s request under Article 54(n)
of the Chicago Convention,386 while denying their wrongfulness under the Chicago
384 “Bahrain sees ‘no glimmer of hope’ for ending Qatar crisis soon”, Reuters (27 May 2018) (QCM
(A) Vol. IV, Annex 99).
385 Council on Foreign Relations, A Conversation with Adel al-Jubeir (26 Sept. 2018) (QCM (A)
Vol. IV, Annex 125). Joint Appellants had reiterated their “firm position on the necessity of Doha
fulfilling the 13 demands” at an earlier meeting during the 29th Arab League Summit. See ICAO
Response to the Preliminary Objections (A), Exhibit 85, Arab Quartet stresses Qatar must meet 13
demands to mend ties (14 April 2018) (BESUM Vol. IV, Annex 25).
386 Article 54(n) of the Chicago Convention provides that “[t]he Council shall … [c]onsider any
matter relating to the Convention which any contracting State refers to it”. Chicago Convention,
Art. 54(n) (BESUM Vol. II, Annex 1).
110
Convention. The message was once again clear: Qatar should look for prospects of
amicable settlement of the dispute elsewhere.
4.58 At the outset, it bears recalling that—in the words of Judge Buergenthal—
“within the ICAO framework, parliamentary diplomacy can take the place of direct
negotiations” provided that “both parties to the dispute participated therein on
opposite sides”.387 Indeed, the significance of ICAO’s good offices cannot be
overstated—notably, in none of the disputes formally submitted to it did the
Council have to render a decision on the merits because the parties were ultimately
able to settle their disputes amicably.388
4.59 It follows that Joint Appellants’ argument that Qatar’s engagement of the
ICAO framework should not be considered a “genuine attempt to negotiate”
because Qatar sought to engage the ICAO organs, not Joint Appellants, and did not
include in its letters and requests an invitation to negotiate addressed directly to
them,389 is irrelevant. What is relevant is that Qatar engaged ICAO’s organs since
the very first day of the aviation prohibitions, informing them of its views on the
legality of those measures under the Chicago Convention and asking for their
intervention.390 When informed of Qatar’s appeals, Joint Appellants first remained
silent391 and then either refused to discuss them at all or expressed the view that the
387 Thomas Buergenthal, Law-making in the International Civil Aviation Organization, 1969, Part
III, p. 131 (BESUM Vol. VI, Annex 125).
388 Paul Stephen Dempsey, Public International Air Law (2017), p. 921 (QCM (A) Vol. IV, Annex
116).
389 BESUM, paras. 6.65-6.66.
390 See ICAO Response to the Preliminary Objections (A), Exhibits 1-6 (BESUM Vol. IV, Annex
25).
391 Two days after the imposition of the aviation prohibitions, on 7 June 2017, the ICAO Secretary
General replied to Qatar’s 5 June appeal, stating that she had “brought the matter to the attention of
the relevant Representatives on the Council of ICAO”. Letter from Fang Liu, ICAO Secretary
General to Abdulla Nasser Turki Al-Subaey, Chairman of Qatar Civil Aviation Authority,
111
aviation prohibitions do not give rise to a breach of the Chicago Convention or its
Annexes.
4.60 Indeed, towards the end of the Council’s 211th Session, on 23 June 2017,
when the Council discussed how it would address Qatar’s request under Article
54(n) of the Chicago Convention, seeking the intervention of the Council in
connection with Joint Appellants’ aviation prohibitions,392 the three Appellants on
the Council (Egypt, Saudi Arabia and the UAE) refused to discuss them. Saudi
Arabia stated that “the focus of the discussion should rest on safety, security and
air navigation”.393 The UAE agreed.394 And Egypt foreshadowed Joint Appellants’
First Preliminary Objection by warning ICAO to “not delve into political
considerations”.395 The Council nonetheless agreed to have an extraordinary
session, later scheduled for 31 July 2017, to discuss Qatar’s request.396
4.61 Joint Appellants’ refusal to discuss the aviation prohibitions is also
reflected in their joint working paper submitted prior to the Council’s extraordinary
Reference No. AN 13/4/3/Open-AMO66892 (7 June 2017) (QCM (A) Vol. III, Annex 22). At the
time, three of the Joint Appellants (Egypt, Saudi Arabia and the UAE) were among the thirty-six
Member States serving on the ICAO Council. They were thus formally notified of Qatar’s
complaint. None of them, however, provided any response of any kind.
392 ICAO Council, 211th Session, Summary Minutes of the Tenth Meeting, ICAO Doc. C-MIN
211/10 (23 June 2017), para. 9 (“the intervention of the ICAO Council in the Matter of the Actions
of the Arab Republic of Egypt, the Kingdom of Saudi Arabia, the United Arab Emirates (UAE) and
the Kingdom of Bahrain to close their Airspace to aircraft registered in the State of Qatar”) (QCM
(A) Vol. III, Annex 24).
393 ICAO Council, 211th Session, Summary Minutes of the Tenth Meeting, ICAO Doc. C-MIN
211/10 (23 June 2017), para. 15 (QCM (A) Vol. III, Annex 24).
394 Ibid., para. 18.
395 Ibid., para. 20.
396 Ibid., para. 53.
112
session.397 Joint Appellants again invited the Council to defer the discussion on the
aviation prohibitions as a “non-urgent matter[]” and “limit its deliberations to the
urgent Article 54 (n) matters which are related to the safety of international civil
aviation”.398
4.62 The discussions at the extraordinary session of the Council, at which Qatar
and all four Appellants were present,399 are even more revealing. Qatar complained
of “the successive NOTAMs and arbitrary action taken by the four blockading
Member States starting on 5 June 2017, in flagrant violation of all relevant ICAO
international Standards, as well as of relevant ICAO instruments to which they
were parties”.400 It also requested that Joint Appellants “lift the unjust air blockade
that had been imposed upon it by Bahrain, Egypt, Saudi Arabia and the United
Arab Emirates”, noting that “it was a dispute that touched upon the Convention’s
essence”.401 The UAE, on behalf of all four Appellants, argued that “their airspace
closures were legitimate, justified, and a proportionate response to Qatar’s actions
397 ICAO Response to the Preliminary Objections (A), Exhibit 8, Response to Qatar’s Submission
Under Article 54 (n) Presented by Bahrain, Egypt, Saudi Arabia, and the United Arab Emirates,
ICAO Doc. C-WP/14640 (19 July 2017) (BESUM Vol. IV, Annex 25). Prior to the submission of
that working paper, the President of the Council invited Bahrain (and Qatar) to participate, without
a vote, in the extraordinary session on the grounds of special interest; both States accepted. ICAO
Response to the Preliminary Objections (A), Exhibit 10, ICAO Council, Extraordinary Session,
Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), paras. 4-5 (BESUM
Vol. IV, Annex 25).
398 ICAO Response to the Preliminary Objections (A), Exhibit 8, Response to Qatar’s Submission
Under Article 54 (n) Presented by Bahrain, Egypt, Saudi Arabia, and the United Arab Emirates,
ICAO Doc. C-WP/14640 (19 July 2017), para. 5.1(b) (BESUM Vol. IV, Annex 25).
399 ICAO Response to the Preliminary Objections (A), Exhibit 10, ICAO Council, Extraordinary
Session, Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), para. 5
(BESUM Vol. IV, Annex 25).
400 Ibid., para. 11.
401 Ibid., para. 14.
113
and were permitted under international law”,402 and reiterated the position stated in
their working paper that “the Council should limit its deliberations to the urgent
Article 54 n) matter which was related to the safety of international civil aviation,
and … defer the other non-urgent matters”.403
4.63 Members of the Council well understood the intractable nature of the
situation with which the Council was faced. Spain, for example, stated that “it
would have liked to have seen the matter at hand resolved through negotiations
between the five Parties” but “that had not been possible”.404
4.64 Although the Parties subsequently continued to have some additional
exchanges on the issue of contingency routes, the question of the aviation
prohibitions remained off the table. This situation persisted until Qatar filed its
Application with the Council under Article 84 (and, as explained above, it persists
to the present day).
402 Ibid., para. 32. This statement was preceded by the statement of the Minister of Foreign Affairs
of Saudi Arabia at a joint press conference with his counterparts from the other Appellants the day
before to the effect that “we made a decision not to allow our airspace or borders to be used and
this is our sovereign right”. ICAO Response to the Preliminary Objections (A), Exhibit 58, Foreign
Ministers of Saudi Arabia, Bahrain, UAE and Egypt: Measures taken against Qatar are sovereign,
and we all are negatively impacted when terrorism and extremism become stronger (30 July 2017)
(BESUM Vol. IV, Annex 25). A disputing party that consistently maintains the view that the facts
do not give rise to a dispute concerning the interpretation or application of a treaty cannot be
criticizing at the same time the other disputing party for failing to undertake a genuine attempt to
negotiate; rather, in these circumstances, it is obvious that the dispute cannot be settled by
negotiation. Questions of Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America),
Preliminary Objections, Judgment, I.C.J. Reports 1998, para. 21.
403 ICAO Response to the Preliminary Objections (A), Exhibit 10, ICAO Council, Extraordinary
Session, Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), para. 33
(BESUM Vol. IV, Annex 25).
404 ICAO Response to the Preliminary Objections (A), Exhibit 10, ICAO Council, Extraordinary
Session, Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), para. 75
(BESUM Vol. IV, Annex 25) (emphasis added).
114
4.65 In conclusion, Qatar’s efforts at multilateral diplomacy, just like its efforts
at bilateral diplomacy, failed to resolve the dispute. They were met at all times with
Joint Appellants’ refusal to discuss the aviation prohibitions or even to
acknowledge the possibility that they may have breached the Chicago Convention.
Although these exchanges took place in a multilateral setting, they nonetheless
qualify as genuine attempts to negotiate. As stated, the Court has made clear that
“diplomacy by conference or parliamentary diplomacy has come to be recognized
… as one of the established modes of international negotiations”.405 The Court has
equally made clear that no specific format for negotiations is required.406 Joint
Appellants’ criticism of Qatar’s reliance on these exchanges is therefore misplaced.
3. Qatar unsuccessfully tried to settle the dispute through the WTO
4.66 In addition to trying to settle the dispute through direct means and within
the ICAO framework, Qatar also tried to negotiate about the aviation prohibitions
within the WTO framework.
4.67 Specifically, on 31 July 2017, Qatar asked Appellants Saudi Arabia,
Bahrain and the UAE “to enter into consultations concerning measures adopted in
the context of coercive attempts at economic isolation imposed … against the State
of Qatar”.407 Qatar’s Request for Consultations expressly stated that the measures
405 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment, I.C.J. Reports 1962, p. 346.
406 See ibid.
407 ICAO Response to the Preliminary Objections (A), Exhibit 11, World Trade Organization, Saudi
Arabia — Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of
Intellectual Property Rights, WT/DS528/1 (4 Aug. 2017), para. 8(i) (BESUM Vol. IV, Annex 25);
ICAO Response to the Preliminary Objections (A), Exhibit 12, World Trade Organization, Bahrain
— Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of Intellectual
Property Rights, WT/DS527/1 (4 Aug. 2017), para. 8(i) (BESUM Vol. IV, Annex 25); ICAO
Response to the Preliminary Objections (A), Exhibit 13, World Trade Organization, United Arab
115
included Joint Appellants’ “prohibition on Qatari aircraft from accessing [their]
airspace”, as well as their “prohibition on flights to and from [their territories]
operated by aircraft registered in Qatar, including prohibiting landing of Qatari
Aircraft at airports [in their territories]”.408
4.68 The three States responded by joint letter dated 10 August 2017, in which
they “decline[d] to engage in consultations on this matter” because, they said, “the
measures referenced in the Request implement diplomatic and national security
decisions with respect to which all WTO members maintain full sovereignty”.409
4.69 In their Memorial, Joint Appellants claim that Qatar’s attempts to engage
in consultations within the WTO framework are irrelevant to the negotiation
requirement under Article 84 of the Chicago Convention. This is true, they say,
because the Request for consultations “made no mention of the relevant obligations
contained in the Chicago Convention and IASTA that Qatar alleged in its
Applications and Memorials had been breached”.410
Emirates — Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of
Intellectual Property Rights, WT/DS526/1 (4 Aug. 2017), para. 8(i) (BESUM Vol. IV, Annex 25).
408 Ibid.
409 ICAO Response to the Preliminary Objections (A), Exhibit 14, Letter from UAE, Bahrain, and
Saudi Arabia to Junichi Ihara, Chairman of the WTO Dispute Settlement Body (10 Aug. 2017), p.
2 (BESUM Vol. IV, Annex 25).
410 BESUM, para. 6.73; see also ICAO Rejoinder (A), paras. 122-126 (BESUM Vol. IV, Annex
26).
116
4.70 As explained, however, Qatar was not required to expressly refer to the
Chicago Convention,411 only the subject-matter of the dispute in question.412 By
referring to the three Appellants’ prohibition on Qatari aircraft from accessing their
airspace, and their prohibition on flights to and from their territories operated by
aircraft registered in Qatar, Qatar plainly did that.
4.71 Joint Appellants’ other argument in this respect is equally unavailing. They
argue that Qatar’s request was not addressed to Egypt and hence “clearly cannot
constitute an attempt to initiate negotiations in [this] regard”.413 However, nothing
in the three Appellants’ response to Qatar’s request for consultations deviates from
similar statements made by Egypt itself414 and on behalf of Egypt415 in ICAO,
which betrays the degree of coordination among Joint Appellants and the
artificiality of trying to draw distinctions between them in this context.
411 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 30.
412 See ibid.
413 BESUM, para. 6.72.
414 See ICAO Council, 211th Session, Summary Minutes of the Tenth Meeting, ICAO Doc. C-MIN
211/10 (23 June 2017), para. 20 (QCM (A) Vol. III, Annex 24).
415 See ICAO Response to the Preliminary Objections (A), Exhibit 10, ICAO Council, Extraordinary
Session, Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), para. 32
(BESUM Vol. IV, Annex 25); ICAO Response to the Preliminary Objections (A), Exhibit 58,
Foreign Ministers of Saudi Arabia, Bahrain, UAE and Egypt: Measures taken against Qatar are
sovereign, and we all are negatively impacted when terrorism and extremism become stronger (30
July 2017) (BESUM Vol. IV, Annex 25).
117
4. Qatar unsuccessfully tried to settle the dispute through the facilitation of
third States
4.72 Joint Appellants argue that Qatar did not make any genuine attempt to
negotiate “through other channels, such as via the Emir of Kuwait”,416 but they
nowhere bother to elaborate why this is so. Again, the record proves them wrong.
There were still more efforts to settle the dispute through the intervention of other
States. In particular, Kuwait and the United States actively pursued efforts to bring
the Parties together, but to no avail owing to Joint Appellants’ intransigence.
4.73 Already on 7 June 2017, His Highness the Emir of Kuwait was briefing His
Highness the Amir of Qatar “on his efforts in trying to resolve the crisis”.417 Three
days later, His Excellency the Foreign Minister of Qatar stated in a televised
interview that His Highness the Emir of Kuwait’s efforts were “ongoing”, and that
Qatar “value[d] and appreciate[d]” the efforts, and would “not lose hope” in the
process.418 Then, on 12 June, His Excellency the Foreign Minister stated that
“Qatar is in contact with HH the Emir of Kuwait … on his mediation efforts”, and
affirmed Qatar’s openness to dialogue, adding that “Qatar is ready to discuss any
requests, provided that they are clear”.419 On 17 June 2017, he reemphasised the
strong efforts of His Highness the Emir of Kuwait and noted that there were
416 BESUM, para. 6.82.
417 ICAO Response to the Preliminary Objections (A), Exhibit 19, HH the Emir Meets HH the Emir
of Kuwait (7 June 2017) (BESUM Vol. IV, Annex 25).
418 ICAO Response to the Preliminary Objections (A), Exhibit 22, The Foreign Minister’s Interview
with RT on GCC Crisis (10 June 2017) (BESUM Vol. IV, Annex 25).
419 ICAO Response to the Preliminary Objections (A), Exhibit 23, Foreign Minister: Qatar Focuses
on Solving Humanitarian Problems of Illegal Siege (12 June 2017) (BESUM Vol. IV, Annex 25).
118
“continued visits by the Kuwaiti brothers to the countries that have undertaken
those unfair measures”.420
4.74 Joint Appellants’ issuance of their 13 Demands on 22 June 2017 threatened
to derail the process, but it did not stop the efforts of His Highness the Emir of
Kuwait, who called for unconditional dialogue. Qatar responded to His Highness’s
appeal favourably,421 whereas Joint Appellants did not.422 While acknowledging
that “the Emir of Kuwait … has acted as a go-between during this time of indirect
communication”, the UAE press reported on 11 September 2017 that “[e]ach of the
quartet’s 13 demands are non-negotiable and non-divisible and are the bare
minimum required to return once more to normalcy between neighbors”.423
4.75 On 30 August 2017, in a joint press conference with the Russian Foreign
Minister, His Excellency the Foreign Minister of Qatar referred to
“the letters sent by HH the Emir of Kuwait to all the
parties, which called for dialogue directly and
unconditionally. He noted that the State of Qatar was
the only country to respond to the Kuwaiti letter after
a few days, in the contrary, none of the siege
countries responded, in continuation of their
approach of not responding and ignoring any
420 ICAO Response to the Preliminary Objections (A), Exhibit 26, HE Foreign Minister Expresses
Surprise of Reaction of GCC Countries Blockading Qatar (17 June 2017) (BESUM Vol. IV, Annex
25).
421 ICAO Response to the Preliminary Objections (A), Exhibits 19, 33-36, 38-39, 42, 44-46, 48-49,
59-62, 65-68, 72-74 (BESUM Vol. IV, Annex 25).
422 ICAO Response to the Preliminary Objections (A), Exhibit 61, Foreign Minister Reiterates:
Qatar Welcomes Any Effort Supports Kuwaiti Mediation to Resolve Gulf Crisis (30 Aug. 2017)
(BESUM Vol. IV, Annex 25).
423 ICAO Response to the Preliminary Objections (A), Exhibit 65, UAE Press: Qatar has distorted
details of phone call (11 Sept. 2017) (BESUM Vol. IV, Annex 25) (emphasis added).
119
mediation efforts, whether from Kuwait or any other
friendly country …”.424
4.76 The “other friendly country” referred to in His Excellency’s statement was
the United States, which also tried to facilitate a resolution of the dispute, only to
see its proposals ignored by Joint Appellants.425 Two weeks after the
announcement of the aviation prohibitions, media reported that the U.S. Secretary
of State “has had more than 20 phone calls and meetings with leaders from the gulf
and elsewhere”.426 On 27 June 2017, the Secretary of State met with His Excellency
the Foreign Minister of Qatar and expressed the importance of reaching a
satisfactory solution as soon as possible, as well as his readiness to provide support
to achieve this.427 Referring to this meeting, His Excellency the Foreign Minister
of Qatar stated: “We agree that the State of Qatar will engage in a constructive
dialogue with the parties concerned if they want to reach a solution and overcome
this crisis”.428
424 ICAO Response to the Preliminary Objections (A), Exhibit 61, Foreign Minister Reiterates:
Qatar Welcomes Any Effort Supports Kuwaiti Mediation to Resolve Gulf Crisis (30 Aug. 2017), pp.
1-2 (BESUM Vol. IV, Annex 25).
425 ICAO Response to the Preliminary Objections (A), Exhibit 61, Foreign Minister Reiterates:
Qatar Welcomes Any Effort Supports Kuwaiti Mediation to Resolve Gulf Crisis (30 Aug. 2017), p.
2 (BESUM Vol. IV, Annex 25).
426 ICAO Response to the Preliminary Objections (A), Exhibit 27, State Dept. Lashes Out at Gulf
Countries Over Qatar Embargo (20 June 2017), p. 3 (BESUM Vol. IV, Annex 25); ICAO
Response to the Preliminary Objections (A), Exhibit 47, Tillerson Tries Shuttle Diplomacy in Qatar
Dispute (11 July 2017) (BESUM Vol. IV, Annex 25).
427 ICAO Response to the Preliminary Objections (A) Exhibit 33, Foreign Minister Meets US
Counterpart (27 June 2017) (BESUM Vol. IV, Annex 25).
428 ICAO Response to the Preliminary Objections (A), Exhibit 32, Foreign Minister: Siege
Countries’ Allegations Should be Supported by Evidence (27 June 2017) (BESUM Vol. IV, Annex
25).
120
4.77 Joint Appellants were not open to negotiation, however. After holding talks
with the U.S. Secretary of State on 27 June 2017, the Saudi Foreign Minister
reiterated once again that the 13 Demands were non-negotiable.429
4.78 On 11 July 2017, media reported that the U.S. Secretary of State would take
the Qatar-U.S. memorandum of understanding on counterterrorism to “leaders in
Saudi Arabia, United Arab Emirates and Bahrain to see if it will be enough to end
a standoff that has led [them] to blockade Qatar for more than a month”.430 Two
days later, representatives of Qatar, the United States and Kuwait met to discuss
the results of the U.S. Secretary of State’s visit to Saudi Arabia.431 At the meeting,
His Excellency the Foreign Minister of Qatar once again expressed Qatar’s
openness “to constructive dialogue”.432
4.79 On 25 July 2017, His Excellency the Foreign Minister of Qatar praised “the
great efforts made by U.S. Secretary of State Rex Tillerson during his recent visit
to the Gulf countries, which came out with proposals we are going to respond
to”.433 However, five days later, his Saudi counterpart reiterated at a joint press
429 ICAO Response to the Preliminary Objections (A), Exhibit 34, Qatar condemns Saudi refusal
to negotiate over demands (28 June 2017) (BESUM Vol. IV, Annex 25).
430 ICAO Response to the Preliminary Objections (A), Exhibit 47, Tillerson Tries Shuttle Diplomacy
in Qatar Dispute (11 July 2017) (BESUM Vol. IV, Annex 25).
431 ICAO Response to the Preliminary Objections (A), Exhibit 48, Foreign Minister Meets Kuwaiti
Minister of State for Cabinet Affairs, U.S. Secretary of State (13 July 2017) (BESUM Vol. IV,
Annex 25).
432 Ibid.
433 ICAO Response to the Preliminary Objections (A), Exhibit 54, Qatar’s Foreign Minister Says
Visit to Washington Aims to Inform US Politicians about Negative Impacts of Gulf Crisis (25 July
2017), p. 1 (BESUM Vol. IV, Annex 25).
121
conference with the Foreign Ministers of the other three Appellants that “there is
no negotiation over the 13 demands”.434
4.80 As recounted earlier, the President of the United States intervened,
facilitating a direct call between His Highness the Amir of Qatar and the Crown
Prince of Saudi Arabia on 8 September 2017.435 Although the conversation
appeared to yield progress, the very next day Saudi Arabia accused Qatar of
distorting facts and declared that “any dialogue or communication with [the]
authority in Qatar shall be suspended”.436
4.81 On 22 October 2017, the U.S. Secretary of State made clear that Saudi
Arabia was not being supportive. He announced that “I did in my meeting with the
Crown Prince Mohammad bin Salman ask him to please engage, please engage in
dialogue”, but he concluded that “it’s not clear the parties are ready to engage”.437
4.82 This unwillingness to engage was common to all four Appellants. As His
Excellency the Foreign Minister of Qatar later explained:
“[T]he U.S. secretary of state visited Qatar and then
Saudi Arabia and met with the siege countries, and
then returned to Doha with a proposal of principles
434 ICAO Response to the Preliminary Objections (A), Exhibit 58, Foreign Ministers of Saudi
Arabia, Bahrain, UAE and Egypt: Measures taken against Qatar are sovereign, and we all are
negatively impacted when terrorism and extremism become stronger (30 July 2017) (BESUM Vol.
IV, Annex 25).
435 ICAO Response to the Preliminary Objections (A), Exhibit 63, Emir holds telephone talks with
US President (9 Sept. 2017) BESUM Vol. IV, Annex 25).
436 ICAO Response to the Preliminary Objections (A), Exhibit 64, Official source: What was
published by Qatar News Agency is continuation of Qatari authority’s distortion of facts (9 Sept.
2017) (BESUM Vol. IV, Annex 25).
437 ICAO Response to the Preliminary Objections (A), Exhibit 73, Remarks With Qatari Foreign
Minister Sheikh Mohammed bin Abdulrahman al-Thani (22 Oct. 2017) (BESUM Vol. IV, Annex
25).
122
and a roadmap and asked for a response to this
proposal within five days …. [We] responded to the
roadmap and the list of principles after the five days
mentioned by the U.S. secretary of state …. After
that, we asked about the measures that should
follow. The American response was that the siege
countries did not respond and therefore the matter
stalled at that time”.438
4.83 Joint Appellants thus frustrated the efforts by Kuwait and the United States
to facilitate a resolution of the dispute. As best summarised by the U.S. Secretary
of State in an interview conducted a few days before the commencement of
proceedings before the Council: “It’s up to the leadership of the quartet when they
want to engage with Qatar because Qatar has been very clear—they are ready to
engage”.439
4.84 For all these reasons, Qatar has clearly discharged its obligation to negotiate
with Joint Appellants the dispute under the Chicago Convention occasioned by the
aviation prohibitions. It tried repeatedly to engage them through multiple avenues
in multiple fora. Joint Appellants spurned every overture at every turn. The ICAO
Council was therefore correct in finding that Qatar had satisfied the requirements
of Article 84 of the Chicago Convention and deciding that it has jurisdiction to
address the merits of Qatar’s claim.
438 ICAO Response to the Preliminary Objections (A), Exhibit 80, Deputy PM and FM:
Investigations Proved Involvement of 2 Siege Countries in QNA Hacking (10 Jan. 2018) (BESUM
Vol. IV, Annex 25) (emphasis added).
439 ICAO Response to the Preliminary Objections (A), Exhibit 71, Tillerson Faults Saudi-Led Bloc
for Failing to End Qatar Crisis (19 Oct. 2017) (BESUM Vol. IV, Annex 25).
123
II. The ICAO Council Properly Held that Qatar’s Application and
Memorial Complied with Article 2(g) of the ICAO Rules for the
Settlement of Differences
4.85 Joint Appellants argue almost in passing that Qatar’s claim is inadmissible
because the Memorial it submitted to the Council did not comply with Article 2(g)
of the ICAO Rules for the Settlement of Differences. Article 2(g) provides:
“Any Contracting State submitting a disagreement to
the Council for settlement … shall file an application
to which shall be attached a memorial containing: …
(g) A statement that negotiations to settle the
disagreement had taken place between the parties but
were not successful”.440
4.86 Joint Appellants appear to misconstrue the nature of the Article 2(g)
requirement. They claim in their Application, for example, that it requires an
applicant to “establish[] in its Memorial that negotiations to settle the disagreement
had taken place between the parties but were not successful”.441 But that is not at
all what Article 2(g) says. Article 2(g) states simply that the applicant “shall file an
application to which shall be attached a memorial containing: … [a] statement that
negotiations to settle the disagreement had taken place but were not successful”.442
Similarly, the French version of the Rules refers to “une déclaration attestant que
des négociations ont eu lieu entre les parties pour régler le désaccord, mais qu’elles
n’ont pas abouti”.443
440 ICAO Rules, Art. 2(g) (BESUM Vol. II, Annex 6).
441 ICJ Application (A), para. 19(ii) (emphasis added).
442 ICAO Rules, Art. 2(g) (BESUM Vol. II, Annex 6) (emphasis added).
443 ICAO Council, Règlement pour la Solution des Différends (1957, amended 10 Nov. 1971), Art.
2(g) (QCM (A) Vol. II, Annex 10) (emphasis added).
124
4.87 An applicant’s memorial to the ICAO Council is therefore required only to
“state” (or “attester”), not “establish” or “affirm”,444 that negotiations to settle the
disagreement had taken place but were not successful. This is quite obviously a
requirement of form and has been treated consistently as such by the Council.
Indeed, in both Cuba v. United States and United States v. 15 EU Member States,
allegations of fact sufficed for the Council to consider that the Article 2(g)
requirement had been met.445
4.88 Qatar’s Memorial to the Council satisfied the Article 2(g) requirement. The
last page of the Memorial contains “A statement of attempted negotiations” where
Qatar stated: “The Respondents did not permit any opportunity to negotiate the
aviation aspects of their hostile actions”.446 Even if Joint Appellants were correct
that this is “an acknowledgement … that negotiations to settle the disagreement
have not taken place between the Parties”,447 their “immediate and total refusal” to
negotiate unless Qatar capitulated to their demands, which is reflected in this
statement, would have been enough to discharge the requirement that Article 2(g)
purports to “reflect”448 for the reasons explained above.449
444 BESUM, para. 6.97.
445 ICAO Council, Cuba v. United States, Memorial of Cuba (11 July 1966), para. 9 (QCM (A)
Vol. II, Annex 11); ICAO Council, United States v. 15 EU Member States, Memorial of the United
States, p. 16 (14 Mar. 2000) (QCM (A) Vol. II, Annex 12).
446 ICAO Memorial (A), Section (g) (BESUM Vol. III, Annex 23).
447 BESUM, para. 6.97.
448 Ibid., para. 6.96.
449 See supra, para. 4.26.
125
4.89 But as explained above,450 Joint Appellants are not correct. The last
sentence of Qatar’s Article 2(g) statement reads: “The severance of diplomatic
relations makes further negotiating efforts futile”.451 The use of the word “further”
reflects what Qatar’s Response in the ICAO proceedings and the present Chapter
in this Counter-Memorial have amply shown: Qatar did attempt to negotiate.
4.90 In sum, Qatar’s Memorial statement is more than enough to satisfy the
Article 2(g) requirement. And even if it were not, Qatar’s Response to Joint
Appellants’ Preliminary Objections formally amended its pleadings to include the
statement: “Negotiations to settle the disagreement had taken place between the
parties but were not successful”.452 If somehow even that were not enough, the
minor procedural defect Joint Appellants allege would not be a proper basis for
appeal to the Court against the Council’s Decision of 29 June 2018, for the reasons
explained in the following Chapter concerning Joint Appellants’ First Ground of
Appeal.
*
4.91 For all these reasons, the Court should deny Appellants’ Third Ground of
Appeal.
450 Ibid.
451 ICAO Memorial (A), Section (g) (BESUM Vol. III, Annex 23) (emphasis added).
452 ICAO Response to the Preliminary Objections (A), para. 91 (BESUM Vol. IV, Annex 25).
126
127
CHAPTER 5
THE COURT SHOULD DENY JOINT APPELLANTS’ FIRST GROUND
OF APPEAL
5.1 Consistent with the exaggerated tone of their entire submission, Joint
Appellants’ First Ground of Appeal posits that the procedure adopted by the ICAO
Council in rejecting their preliminary objections was “manifestly flawed and in
violation of fundamental principles of due process, which constitute general
principles of law, as well as violations of the ICAO Council’s own applicable
procedural rules”.453 As Joint Appellants see it, “[t]hese failures were so grave and
so widespread as to denude the proceedings and the Decision of any judicial
character”.454 The consequence of the alleged violations, they say, is that the ICAO
Council’s decision on jurisdiction is “null and void, and should be set aside”.455
Joint Appellants are mistaken. Their arguments, and with them their First Ground
of Appeal, fail for at least three reasons.
5.2 First, as the Court held in the 1972 ICAO Council Appeal case, whether or
not the ICAO Council has jurisdiction is “an objective question of law” to be
answered without regard to the procedure followed before the ICAO Council.456
Even if they occurred (quod non), the alleged procedural irregularities Joint
Appellants point to are therefore irrelevant in determining whether the ICAO
Council correctly decided that it has jurisdiction to hear Qatar’s claim (Section I).
453 BESUM, para. 1.2(a) (emphasis added).
454 Ibid., para. 3.1 (emphasis added).
455 Ibid., para. 1.2(a).
456 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
128
5.3 Second, even assuming arguendo that the Court were to consider it
necessary to rule on the alleged procedural violations, and even if Joint Appellants
could be heard to complain about them now, having failed to do so at the hearing
before the Council, none of the Council’s actions constitutes the “grave” or
“widespread” procedural irregularities Joint Appellants claim. In fact, the ICAO
Council complied with the applicable procedural framework and acted consistently
with its own practice (Section II).
5.4 Third, the ostensible procedural irregularities that Joint Appellants identify,
even if they occurred and were not waived (quod non), did not “prejudice in any
fundamental way the requirements of a just procedure”457 (Section III).
5.5 For all three reasons, each of which is independently sufficient, the Court
should reject Joint Appellants’ First Ground of Appeal.
I. The Court Does Not Need to Rule on the Alleged Procedural Violations
5.6 The Court has already effectively rejected the exact arguments Joint
Appellants make in their First Ground of Appeal. Specifically, in the 1972 ICAO
Council Appeal case, India appealed from an ICAO Council decision rejecting its
preliminary objections in a dispute brought by Pakistan. Just like Joint Appellants
here, India argued that the ICAO Council’s decision was “vitiated” by procedural
irregularities.458 Indeed, the alleged procedural irregularities India invoked closely
resemble the ones Joint Appellants raise in this case: (1) the Council failed to state
457 Ibid., para. 45.
458 Ibid., para. 93.
129
reasons in its decision;459 (2) the Council’s decision was vitiated by the fact that
the questions were framed in the wrong manner;460 and (3) it was not supported by
a statutory majority.461
5.7 The Court rejected India’s arguments. But it first considered the nature of
its appellate function in respect of jurisdictional decisions of the ICAO Council.
The Court viewed its role as “giv[ing] a ruling as to whether the Council [had]
jurisdiction in the case”.462 Making that ruling required the Court only to answer
“an objective question of law”463 that “cannot depend on what occurred before the
Council”.464 Because the Council had answered the “objective question of law”
concerning its jurisdiction correctly, the Court considered the procedural
irregularities India alleged irrelevant.
5.8 The Court explained:
“[I]f there were in fact procedural irregularities, the
position would be that the Council would have
reached the right conclusion in the wrong way.
Nevertheless it would have reached the right
conclusion. If, on the other hand, the Court had held
that there was and is no jurisdiction, then, even in the
459 I.C.J. Oral Arguments, Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Minutes of the public sitting held at the Peace Palace, The Hague, from 19 June to 3 July,
and on 18 August 1972, p. 607.
460 Ibid., para. 93.
461 Ibid.
462 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
463 Ibid.
464 Ibid.
130
absence of any irregularities, the Council’s decision
to assume it would have stood reversed”.465
5.9 It is therefore only appropriate to reverse a jurisdictional decision by the
ICAO Council if it did not “[reach] the right conclusion”. If it “reached the right
conclusion”, even “in the wrong way”, the decision must stand. For the reasons
explained in Chapters 3 and 4 of this Counter-Memorial, the Council plainly
reached the right conclusion in this case. Joint Appellants’ argument of procedural
violations is therefore irrelevant and should be rejected.
5.10 Joint Appellants’ never once mention this aspect of the Court’s holding in
the 1972 ICAO Council’s Appeal case in their Memorial, still less do they argue
why the Court should take a different approach here. Qatar considers Joint
Appellants’ silence telling.
5.11 Joint Appellants only argue that “[a]s the guardian of the integrity of the
international judicial process, it falls to the Court to exercise its supervisory
authority in respect of procedural deficiencies by the ICAO Council”.466 But the
drafters of the Chicago Convention (and of the International Air Services Transit
Agreement (“IASTA”)) did not entrust the Court with the role of a “guardian of the
integrity of the international judicial process”.467 Rather, as the Court itself
observed in its 1972 Judgment, the appeal system established under Article 84 of
the Chicago Convention aims to “ensur[e] a certain measure of supervision by the
Court” over the Council’s decision-making, and to provide “reassurance for the
465 Ibid. (emphasis added).
466 BESUM, para. 3.11.
467 Nor did they entrust the Court with the responsibility to “set and supervise judicial decisionmaking
in the international legal system”, as Joint Appellants boldly allege. Ibid. It is for the ICAO
Member States and Council to set the procedures for decision-making under Article 84.
131
Council … 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
actions”.468
5.12 The fact that the Court found irrelevant India’s procedural complaints
shows that the Court did not consider that its “supervisory authority” reaches
procedural questions. By assessing the Council’s jurisdiction as an “objective
question of law”, and making sure the Council gets it right, the Court fully
discharges the role entrusted to it under the Chicago Convention.
II. The ICAO Council Properly Discharged its Functions under Article 84 of
the Chicago Convention
5.13 Even if, for the sake of argument, the Court were to deem it appropriate to
rule on the putative procedural irregularities Joint Appellants raise, their First
Ground of Appeal would still have to be rejected because the complaints they raise
are meritless. The Council proceedings were entirely consistent with the letter and
the spirit of the 1957 ICAO Rules for the Settlement of Differences (“ICAO
Rules”) and the Rules of Procedure for the Council.
A. JOINT APPELLANTS WERE AFFORDED AMPLE OPPORTUNITY TO PLEAD THEIR
CASE
1. The Council extended Joint Appellants’ time-limits for the filing of their
first responsive brief
5.14 The Article 84 proceedings before the Council began on 30 October 2017
when Qatar filed Application (A) and its Memorial with the Secretary General of
468 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 26.
132
ICAO.469 After verifying that Application (A) complied with the formal
requirements of Article 2 of the ICAO Rules, the Secretariat transmitted it and the
Memorial to each of the Joint Appellants on 3 November 2017.470 On 20 November
2017, the Council fixed the time-limit for the filing of the Counter-Memorials
pursuant to Article 3(1)(c) of the ICAO Rules.471 The Council gave Joint
Appellants 12 weeks to file their Counter-Memorial (i.e., through 12 February
2018).472
5.15 Joint Appellants acted jointly in the proceedings before the Council from
their very first procedural act. Specifically, on 16 January 2018, Egypt asked for a
six-week extension of the time-limit to submit a Counter-Memorial on behalf of
itself and the other Appellants. The Council granted the request on 9 February
2018473 and set 26 March 2018 as the new time-limit for the filing of the Counter-
Memorial.474
469 ICAO Memorial (A) (BESUM, Vol. III, Annex 23). See also ICAO Rules, Art. 2 (BESUM
Vol. II, Annex 6).
470 ICAO Application (A) (BESUM, Vol. V, Annex 43).
471 See ICAO Rules, Art. 3(1)(c) (BESUM Vol. II, Annex 6).
472 Letter of 17 November 2017 from the Secretary-General of ICAO to the Appellants (BESUM,
Vol. V, Annex 43). Article 28 of the Rules leaves the fixing of time-limits for the filing of briefs to
the discretion of the ICAO Council. In general, however, the ICAO Council must fix time-limits
with a view to “avoid[ing] any possible delays and to ensure fair treatment of the party or the parties
concerned”. ICAO Rules, Art. 28 (BESUM Vol. II, Annex 6).
473 Letter of 9 February 2018 from the Secretary-General of ICAO to the Appellants (BESUM, Vol.
V, Annex 45).
474 Ibid.
133
2. The Council gave Joint Appellants every opportunity to make their case in
writing
5.16 In lieu of submitting their respective Counter-Memorials, Joint Appellants
decided to challenge the ICAO Council’s jurisdiction. On 19 March 2018, they
jointly submitted a document titled “Preliminary Objections of the Arab Republic
of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia and the United
Arab Emirates” (the “Preliminary Objections”) in accordance with Article 5 of the
ICAO Rules.475
5.17 Qatar was invited to present comments on the Preliminary Objections by 2
May 2016.476 It did so within the time-limit set by the Council.477 Joint Appellants
then took the unusual step of asking to submit a reply to Qatar’s response.
5.18 The ICAO Council had never previously allowed a party to submit
additional pleadings following an applicant’s response to a preliminary objection.
Qatar therefore opposed Joint Appellants’ request.478 The Council nevertheless
475 ICAO Preliminary Objections (A) (BESUM, Vol. III, Annex 24). Article 5 of the Rules allows
a respondent to challenge the jurisdiction of the Council through a “special pleading” which must
be filed “at the latest before the expiry of the time-limit set for delivery of the counter-memorial”.
According to the ICAO Rules, when a party files a preliminary objection, the proceedings on the
merits are suspended. See ICAO Rules, Art. 5(2) (BESUM Vol. II, Annex 6).
476 Letter from Fang Liu, ICAO Secretary General, to Essa Abdulla Al-Malki, Agent for the State
of Qatar (20 Mar. 2018) (QCM (A) Vol. III, Annex 32).
477 BESUM, para. 3.24.
478 Letter of 28 May 2018 from the Secretary-General of ICAO to the Appellants, attaching Email
of 25 May 2018 from the Delegation of the State of Qatar to the Secretary-General of ICAO
(BESUM, Vol. V, Annex 48). During the ICAO Council proceedings, Qatar complained about the
prejudice resulting from this improper shift in the position of the parties in the case. See, e.g., ICAO
Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO document
C-MIN 214/8, 23 July 2018, para. 41 (BESUM Vol. V, Annex 53).
134
authorised them to file a “rejoinder” no later than 12 June 2018.479 This time, Joint
Appellants complied with the deadline.
5.19 The President’s decision to permit Joint Appellants to file a rejoinder meant
that they were given two opportunities to brief the Council in writing on the issue
of jurisdiction, while Qatar was only granted one.480
3. The Council also afforded Joint Appellants an opportunity to present their
arguments orally
5.20 The day after Joint Appellants submitted their rejoinder, the President of
the Council notified the Parties that a hearing on the preliminary objections would
take place during a half-day session on 26 June 2018.481
5.21 In the same communication, the President invited the Parties to an informal
briefing on the topic of “Settlement of Disputes”, scheduled on 19 June 2018. Joint
Appellants claim that, during the informal briefing, they raised “strong objections”
to the scheduling of “only one half-day session for the hearing” because “it would
479 See Letter of 28 May 2018 from the Secretary-General of ICAO to the Appellants (BESUM,
Vol. V, Annex 49); see also Letter of 28 May 2018 from the Secretary-General of ICAO to the
Appellants, attaching Email of 25 May 2018 from the Delegation of the State of Qatar to the
Secretary-General of ICAO (BESUM, Vol. V, Annex 48).
480 Joint Appellants seem to suggest that Qatar is at fault for this because it “did not seek a right of
reply”. BESUM, para. 3.25. But after the President of the Council had decided that Article 7(1) of
the ICAO Rules allowed Joint Appellants to file a rejoinder, seeking a “right of reply” would have
been futile. This is because the “rejoinder” is the last pleading under Article 7(4) of the Rules. ICAO
Rules, Art. 7(4) (BESUM Vol. II, Annex 6). Qatar could have exceptionally sought permission
from the Council to submit an additional pleading, but this would have required an additional
hearing at best, and therefore, more time before the ICAO Council could begin to consider the
merits of Joint Appellants’ jurisdictional objections—time that Qatar simply did not have in view
of the urgency of the situation.
481 Letter of 13 June 2018 from the President of the ICAO Council to the Appellants, attaching
Working Paper in respect of Application (A), ICAO document C-WP/14778, 23 May 2018
(BESUM, Vol. V, Annex 50).
135
not permit them sufficient time properly to coordinate and present their case”.482
These criticisms are unfounded for at least two reasons.
5.22 First, under the ICAO Rules “oral arguments may be admitted at the
discretion of the Council”.483 It follows that the time allocated to the presentation
is also subject to the Council’s discretion. Allocating a half-day session to the
hearing was entirely consistent with past Council practice—less time was allotted
to Brazil v. United States, the immediately prior case before the Council.484 Second,
and irrespective of the practice of the Council, the only party that could be said to
have been prejudiced by the President’s decision was Qatar. Joint Appellants had
already enjoyed two opportunities to brief their objections in writing. In contrast,
Qatar only had one such opportunity and it was the party responding to the last
written pleading before the hearing.
5.23 At the 19 June 2018 briefing, the President also informed Joint Appellants
“that [they] would be treated as one side …”.485 Joint Appellants do not claim to
have objected to that decision.
5.24 Joint Appellants also complain that “the precise schedule and format of the
hearing remained in a state of flux until … the day of the hearing”.486 It is unclear,
however, how this placed Joint Appellants at a disadvantage vis-a-vis Qatar. Qatar
482 BESUM, para. 3.27; see also ibid., para. 1.11.
483 See ICAO Rules, Art. 12(2) (BESUM Vol. II, Annex 6).
484 ICAO Preliminary Objections (A), Exhibit 2, ICAO Council – 211th Session, Summary Minutes
of the Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017, para. 9 (BESUM
Vol. III, Annex 24).
485 BESUM, para. 3.27.
486 Ibid.
136
was in the exact same position. There is no valid argument that coordination proved
difficult because Joint Appellants were four States acting as a single party. They
had, after all, already formulated agreed-upon arguments in their written pleadings.
4. The Council soundly rejected Joint Appellants’ preliminary objections
5.25 The hearing took place as scheduled on 26 June 2018. The Parties made
their arguments in two rounds for each side. When they were done, the ICAO
Council decided to vote by secret ballot.487 After concluding that a decision would
require approval by a majority of 19 votes488 and clarifying, in response to a query
raised by Appellant Bahrain, that Joint Appellants “had a preliminary objection for
which they provided two justifications”,489 the Council voted on the question “Do
you accept the preliminary objection?”.490 Out of 33 Members of the Council
eligible to vote, only four members voted in favour of accepting the objection; 23
voted against it; and six abstained.491 Accordingly, Joint Appellants’ objections to
the Council’s jurisdiction were rejected.492
5.26 One day after the hearing, the Secretariat circulated a draft of the ICAO
Council’s Decision “so that [it] could be considered and approved” at the Council’s
next session, which took place on 29 June 2018.493 Joint Appellants did not
487 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, paras. 106-108 (BESUM Vol. V, Annex 53).
488 Ibid., para. 112.
489 Ibid., para. 123.
490 Ibid., para. 124.
491 Ibid.
492 Ibid., para. 125.
493 ICAO Council – 214th Session, Summary Minutes of the Eleventh Meeting of 29 June 2018,
ICAO document C-MIN 214/11 (Draft), 10 September 2018, para. 1 (BESUM Vol. V, Annex 55).
137
complain about any “grave” or “widespread” procedural irregularities when they
sent their comments on the draft Decision. Nor did they express any concern about
what they now say was the Council’s failure to adhere to its “fundamental duty”494
to provide reasons. They only thing they did do was point out certain “inaccuracies
related to the names of participants at the meeting”.495
B. JOINT APPELLANTS’ PROCEDURAL COMPLAINTS ARE BASELESS
5.27 Joint Appellants now claim that the ICAO Council’s Decision is “null and
void” because the procedure it adopted “was manifestly flawed and in violation of
fundamental principles of due process … as well as violations of the ICAO
Council’s own applicable procedural rules”.496 In particular, Joint Appellants
allege that:
1. The ICAO Council failed to hold deliberations before proceeding to a
vote by secret ballot, and as a result the Council was unable to provide
reasons in its Decision, in contravention of Article 15 of the ICAO
Rules;497
2. Insufficient time was allocated to the Joint Appellants to present their
case before the ICAO Council;498
494 BESUM, para. 3.49.
495 ICAO Council – 214th Session, Summary Minutes of the Eleventh Meeting of 29 June 2018,
ICAO document C-MIN 214/11 (Draft), 10 September 2018, para. 3 (BESUM Vol. V, Annex 55).
496 BESUM, para. 1.2(a).
497 Ibid., paras. 3.36-3.46, 3.65(b).
498 Ibid., para. 3.58.
138
3. The Council “abdicated” its duty to interpret the Chicago Convention
by deferring to the Director of the Bureau of Legal Affairs the question
on the number of votes required to uphold the Preliminary Objection;499
and
4. The ICAO Council incorrectly required 19 votes out of 33 members
entitled to vote to uphold the Preliminary Objections, even though
Article 52 of the Chicago Convention provides only that a mere
“majority” is needed.500
5.28 None of these allegations has merit. Qatar will address each in turn.501
499 Ibid., para. 3.62.
500 Ibid., para. 3.65(a).
501 Joint Appellants also accuse the ICAO Council of failing to take “the safeguards necessary to
preserve the integrity of the process” because it did not take notice of or act upon the fact that Mr.
John Augustin, once a member of ICAO’s Legal and External Relations Bureau who advised the
ICAO Council during the Article 54(n) proceedings brought by Qatar in June 2017, later became
an advisor to Qatar and participated in the subsequent Article 84 proceedings. See Ibid., para. 3.4.
Even though Joint Appellants only dedicate a few lines in their Memorial to this alleged irregularity,
and it is not included in the “grave” violations put forth in their Memorial, Qatar considers it
important to set the record straight about this scurrilous allegation. Contrary to Joint Appellants’
claim, the fact that Mr. Augustin participated in the Article 54(n) proceedings as a member of
ICAO’s Legal and External Relations Bureau and later in the Article 84 proceedings as a member
of Qatar’s delegation does not pose any conflict of interest. First, Mr. Augustin gave notice of his
resignation from ICAO on 5 October 2017, several weeks before Qatar submitted its Article 84
applications to the Council on 30 October 2017. Letter from John v. Augustin to Fang Liu, ICAO
Secretary General (5 Oct. 2017) (QCM (A) Vol. III, Annex 28). Even though his resignation would
only take effect in February 2018, he immediately took a leave of absence and did not perform any
duties within ICAO from the day he gave notice of his resignation. Mr. Augustin was only appointed
as advisor to Qatar’s Permanent Mission to ICAO in March 2018, that is, after his employment with
ICAO had officially ended. Letter from Essa Abdulla Al-Malki, Qatar’s Permanent Representative
to ICAO, to Fang Liu, ICAO Secretary General (12 Mar. 2018) (QCM (A) Vol. III, Annex 30).
Second, Joint Appellants have not cited to any particular rule of ethics or provision prohibiting
former ICAO staff from working for an ICAO Member State after the termination of their
employment with ICAO. This is not an oversight—there is no such rule. ICAO’s Secretariat, after
consulting with other UN agencies, recently concluded that “[t]here is … no cooling off period
preventing employees from joining any type of government service after their separation from UN
services” and recommended ICAO not to impose post-employment restrictions because, in fact,
“many staff members are released by their national administrations to join ICAO and these staff
139
1. The absence of open deliberations on the substantive issues in
dispute and of reasons follows from the Council’s decision to proceed
with a vote by secret ballot as allowed under its rules
5.29 Joint Appellants accuse the ICAO Council of “fail[ing] to engage in any
deliberations before proceeding to vote by secret ballot”,502 which resulted in no
reasons being stated in the Decision rejecting their preliminary objections.503 This
is a disingenuous argument.504 The absence of open deliberations and of reasons in
the Decision are natural consequences of the Council’s decision to vote by secret
ballot.
5.30 There is no dispute that the applicable procedural framework expressly
permits votes by secret ballot. In particular, Rule 50 of the Rules of Procedure for
the ICAO Council provides:
“Unless opposed by a majority of the Members of
the Council, the vote shall be taken by secret ballot
if a request to that effect is supported, if made by a
members may return to their administrations upon separation from the Organization to continue
their career”. ICAO Council, 215th Session, Working Paper: Post-Employment Activities of ICAO
Personnel, ICAO Doc. HR-WP/56 (22 Aug. 2018), p. 2, paras. 2.1-2.2 (QCM (A) Vol. III, Annex
37). Third, Mr. Augustin participated in proceedings which Joint Appellants themselves suggest are
of a different nature (see BESUM, paras. 6.69), and as a member of ICAO’s Secretariat, which is a
neutral party in any dispute or proceeding between the Parties. Fourth, Joint Appellants do not
indicate any negative or adverse impact Mr. Augustin’s participation in the Article 54(n)
proceedings as ICAO staff may have had or had on the Article 84 proceedings. Finally, Joint
Appellants never complained of Mr. Augustin’s participation in the Article 84 proceedings even
though they were amply aware of Mr. Augustin’s new position in Qatar’s Permanent Mission well
before the Article 84 hearing. See Letter from President of ICAO Council to Representatives of the
Council, ICAO Doc. PRES OBA/2771 (15 May 2018) (QCM (A) Vol. III, Annex 35).
502 BESUM, para. 3.37.
503 Ibid., para. 3.45.
504 It is also misleading. The minutes of the hearing make it clear that there were deliberations after
the disputing parties’ closing arguments, just not on the substantive issues in dispute. ICAO Council
– 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO document C-MIN
214/8, 23 July 2018, paras. 106-118 (BESUM Vol. V, Annex 53).
140
Member of the Council, by one other Member, and,
if made by the President, by two Members”.505
5.31 Accordingly, provided a motion to that effect is supported by two Members
of the Council, the Council “shall” vote by secret ballot unless a majority of the
Council decides otherwise.
5.32 By contrast, a motion that the ICAO Council decide in any other way,
including by a roll call with open vote, must be supported by the majority of the
Council Members (that is, 19 Members).506
5.33 There can be no serious dispute that a decision to vote by secret ballot
means that no open deliberations are held. At the hearing before the Council, the
Dean of the Council, the Representative of Mexico,507 proposed that the Council
“proceed directly to a vote by secret ballot in order to take a decision on each of
the [Joint Appellants’] preliminary objections …”.508 The Representative of
Singapore, in his capacity as First Vice-President of the Council, supported
Mexico’s proposal.509 The motion therefore carried.
5.34 None of Joint Appellants asked that open deliberations take place before
proceeding to the vote or placed an objection on the record.510 On the contrary,
505 ICAO Council, Rules of Procedure for the Council, ICAO Doc. 7559/10 (2014), Rule 50 (QCM
(A) Vol. II, Annex 15) (emphasis added).
506 Ibid.
507 The longest-serving representative of the Council Members serves as the Dean of the Council.
508 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 106 (BESUM Vol. V, Annex 53) (emphasis added).
509 Ibid., paras. 106-107.
510 By contrast, the Kingdom of Saudi Arabia, the United Arab Emirates, and Egypt objected to “the
statement that 19 votes would constitute the voting majority required under Article 52 of the
Chicago Convention”. Ibid., paras. 113, 116, 117; see also ibid., paras. 129-130 (Saudi Arabia,
141
invoking “transparency in the process” and acting on behalf of all four Appellants
Saudi Arabia only asked for a roll call511—reflecting Joint Appellants’ recognition
that open deliberations are in fact not essential for the Council to function in a
collegial manner.
5.35 The Council’s approach was entirely consistent with its most recent
practice—a fact that Joint Appellants tellingly fail to address.512 In its proposal to
proceed directly to a vote by secret ballot, the Dean of the Council made express
reference to “the Council’s recent experience with the Settlement of Differences:
Brazil and the United States”,513 in which the United States’ preliminary objection
was also decided after a vote by secret ballot. There as well there were no open
deliberations before the vote.514 Neither Brazil nor the United States objected to
the Council’s decision to proceed directly to a secret vote without deliberations, or
complained of any procedural irregularity in this regard after the issuance of the
decision in that case.
5.36 Indeed, it was actually one of the Joint Appellants, the UAE, that proposed
a vote by secret ballot in that case.515 The UAE did not then insist that in spite of
speaking on behalf of Joint Appellants, complaining again only of “the super voting majority
requirement”).
511 Ibid., para. 110. Saudi Arabia’s proposal was declined by the Council. Ibid.
512 Instead, Joint Appellants refer to the decision of the Council in United States v. 15 European
States, which, however, as explained below, was adopted after a vote by open ballot. BESUM, para.
3.49.
513 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 106 (BESUM Vol. V, Annex 53).
514 Decision of the ICAO Council on the Preliminary Objection of the United States in the Matter
“Brazil v. United States”, 23 June 2017 (BESUM Vol. V, Annex 32)
515 See ICAO Preliminary Objections (A), Exhibit 2, ICAO Council – 211th Session, Summary
Minutes of the Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017, para.
142
its proposal, open deliberations should take place. Nor did it complain of any
procedural irregularity in this regard after the fact.
5.37 Neither did the UAE, nor any of the disputing parties in that case, nor any
other Council Member, complain about the fact that the Council’s decision in
Brazil v. United States did not state reasons. Notably, the Council Members
deciding that case included, in addition to the UAE, Appellants Saudi Arabia and
Egypt.516
5.38 In these circumstances, Joint Appellants’ complaints ring hollow, if they
are not outright waived.517
97 (BESUM Vol. III, Annex 24). The UAE’s motion to vote by secret ballot was adopted without
opposition.
516 See ICAO Preliminary Objections (A), Exhibit 2, ICAO Council – 211th Session, Summary
Minutes of the Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017, para.
98 (BESUM Vol. III, Annex 24); ICAO Council, 211th Session, Tenth Meeting, Summary of
Decisions (23 June 2017), ICAO Doc. C-DEC 211/10, Attachment (QCM (A) Vol. III, Annex 25).
Qatar acknowledges that the current Secretary-General of ICAO and Director of ICAO Legal and
External Relations Bureau have taken the position that the requirement of reasons under Article
15(2) of the ICAO Rules applies to decisions of the Council taken pursuant to Article 5. Letter of
13 June 2018 from the President of the ICAO Council to the Appellants, attaching Working Paper
in respect of Application (A), ICAO document C-WP/14778, 23 May 2018 (BESUM Vol. V,
Annex 50); ICAO Presentation, “Informal briefing of the Council on the Settlement of
Differences”, by Dr. Jiefang Huang, Director of ICAO Legal and External Relations Bureau, 19
June 2018 (BESUM Vol. V, Annex 51). These views, however, are not binding on the Council.
Ibid., Slide 13 (“… the role of the President of the Council, Secretary-General, and the Secretariat
is to provide guidance to the Council on procedural aspects of the dispute. It is not their role to state
the law, apply the law to the facts, provide legal opinions or express views on the substance of the
merits of the dispute to the Council”) (emphasis added). The Council is therefore free to disregard
this requirement when it decides to proceed directly to a vote by secret ballot as it did in the present
case and in Brazil v. United States. It is also free to adhere to this requirement when it decides to
adopt its decision by a different method. Indeed, the Council’s decision in United States of America
v. 15 European States, which was adopted after a vote by open ballot, does contain—brief—reasons.
See ICAO Preliminary Objections (A), Exhibit 1, Summary Minutes of the Council, Sixth Meeting
161st Session, ICAO Doc. C-MIN 161/6, 16 November 2000 (BESUM Vol. III, Annex 24).
517 See Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, Separate opinion of
Judge Jiménez de Aréchaga, I.C.J. Reports, para. 42 (“When the questions were put to the vote, no
member of the Council (and India was one of them) raised an objection, or challenged the right of
143
5.39 In any event, the aforementioned statement by Mexico’s Representative, in
which he expressed the view that a vote by secret ballot would be the most
“efficient way forward”, was expressly based on “the views of the many Council
Representatives who had been consulted prior to the present meeting”.518 This is
sufficient to satisfy any requirement for collegiality in the Council’s decisionmaking
process.
5.40 Joint Appellants are left to speculate that the fact that a decision was taken
in such a “complex” and “novel” case “immediately after hearing the Parties and
without any deliberations at all” suggests that the result had been prejudged
“possibly because the ICAO Council representatives were acting on instructions
from their governments rather than exercising a judicial function”.519 However, as
explained above, this was not the first time that a party to a dispute before the
Council sought to escape its jurisdiction by invoking considerations extraneous to
the framework of the Chicago Convention—far from it.520 Moreover, Joint
Appellants have presented no evidence that Council Members voted against their
preliminary objection on instructions from their governments.521 More importantly,
even if they did, Qatar fails to see how it could mean that “there was no judicial
process to speak of”.522 Council Member representatives are not appointed to the
the President to act as he did. Therefore, the decisions adopted by the Council on the basis of such
propositions cannot be challenged now by the appellant on these grounds”).
518 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, paras. 106-107 (BESUM Vol. V, Annex 53) (emphasis
added).
519 BESUM, para. 3.44.
520 See supra, paras. 3.24-3.26.
521 Unlike the minutes of the hearing in Pakistan v. India cited by Joint Appellants (see ibid., para.
3.44, fn. 215), the minutes of the hearing in this case do not record any intention of Council
Representatives to seek instructions from their governments.
522 BESUM, para. 3.34(a).
144
Council in their individual capacity. Indeed, when ICAO Council Member
representatives are acting in Article 84 proceedings, discharging the judicial
function in their own individual capacity, rather than on behalf of their appointing
States, is what would violate due process, not the other way around.
5.41 In sum, Joint Appellants cannot impugn the Decision on the basis of the
alleged absence of deliberations prior to the vote. As the previous practice of the
ICAO Council shows, open deliberations on the substantive issues in dispute do
not take place when its decision is adopted by secret ballot. Nor can reasons be
stated in such cases. Joint Appellants are fully aware of this practice, having
themselves contributed to it. A decision taken by a method established in the Rules
of Procedure and agreed to by the majority of the Council Members at the hearing
simply cannot be deemed procedurally defective.
2. Joint Appellants were allocated sufficient time to present their case before
the Council
5.42 Joint Appellants next argue that they were allocated “insufficient time …
to present their case to the ICAO Council”.523 As explained above, however, the
Council granted them two opportunities to brief the issue of jurisdiction, while
Qatar only had one.524 It also afforded them an opportunity to present oral
arguments. Tellingly, Joint Appellants never explain how or why all these
opportunities to present their arguments were not enough or what prejudice they
suffered from not having more.525
523 Ibid., para. 3.2(a).
524 See supra, para. 5.18. The Council also extended the original time-limit for the submission of
Joint Appellants’ Counter Memorial. See supra, para. 5.15.
525 In support of their allegation that the ICAO Council did not give them an opportunity to be heard,
Joint Appellants contrast the duration of the hearing in this case with the duration of the hearing in
145
5.43 Joint Appellants complain that at the hearing, “collectively, [they] were
given the same length of time as Qatar, although each of [them] was appearing as
a respondent party in its own right”.526 This was not a breach of due process. In
fact, it was what due process required in the circumstances: that each side be treated
equally.
5.44 Joint Appellants themselves acted “collectively” on numerous occasions
before the ICAO Council (as they do now before the Court). They should therefore
not be heard to complain that the Council treated them in the exact same manner
for purposes of allocating time at the hearing. The instances in which Joint
Appellants acted as a single party before the Council include:
• When Egypt requested an extension of time to file the Counter-
Memorial on behalf of all Joint Appellants;527
the Pakistan v. India case of 1971. In the latter, as Joint Appellants state, “the ICAO Council held
five meetings (from 27 to 29 July 1971) to hear the Parties, deliberate, and decide on a single
preliminary objection lodged by India”. BESUM, para. 3.28. There are, however, at least two
reasons why the hearing in Pakistan v. India case took longer. First, there was only one round of
written pleadings for the preliminary objection. See ICAO Council, 74th Session, Minutes of the
Second Meeting, ICAO Doc. 8956-C/1001 (27 July 1971), para. 2 (QCM (A) Vol. II, Annex 4). In
this case, however, and as explained above, the ICAO Council allowed Joint Appellants to present
two pleadings: a statement of preliminary objections and a rejoinder. Second, in the Pakistan v.
India case, the Council addressed Pakistan’s application under the Chicago Convention (Case No.
1) and Pakistan’s complaint under the Transit Agreement (Case No. 2) separately. See ibid., para.
3 (QCM (A) Vol. II, Annex 4); ICAO Council, 74th Session, Minutes of the Fifth Meeting, ICAO
Doc. 8956-C/1001 (28 July 1971), para. 34 (QCM (A) Vol. II, Annex 7). Here, Joint Appellants
agreed to address Applications A and B concurrently. ICAO Council – 214th Session, Summary
Minutes of the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para.
2 (BESUM Vol. V, Annex 53).
526 BESUM, para. 3.2(a).
527 See Letter from President of the ICAO Council to Representatives of the ICAO Council, ICAO
Doc. PRES OBA/273 (9 Feb. 2018) (QCM (A) Vol. III, Annex 29).
146
• When the UAE filed a statement of preliminary objections on
behalf of all Joint Appellants;528
• When Egypt requested authorisation to file a “rejoinder” on
behalf of all Joint Appellants;529
• When Egypt filed the rejoinder on behalf of all Joint
Appellants;530
• When, at the hearing before the ICAO Council, Saudi Arabia
requested a vote by open ballot on behalf of all Joint
Appellants;531 and
• When, at the hearing before the ICAO Council, Bahrain asked
the President of the ICAO Council to word the question put to
vote differently on behalf of all Joint Appellants.532
5.45 In the previous multi-party case before it, US v. 15 EU States, the ICAO
Council heard from the 15 E.U. respondent States as a single party, not from each
528 Letter from Representative of UAE to Fang Liu, ICAO Secretary General, UAE-DEL/L-13-2018
(19 Mar. 2018) (QCM (A) Vol. III, Annex 31).
529 See Letter of 28 May 2018 from the Secretary-General of ICAO to the Appellants (BESUM,
Vol. V, Annex 49).
530 Letter from Ahmed H. Mostafa Khedr, Representative of the Arab Republic of Egypt before
ICAO, to Fang Liu, ICAO Secretary General (12 June 2018) (transmitting the Rejoinder to Qatar’s
Response to the Preliminary objections, on behalf of Egypt, Bahrain, Saudi Arabia and the UAE)
(QCM (A) Vol. III, Annex 36).
531 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 110 (BESUM Vol. V, Annex 53).
532 Ibid., para. 122 (BESUM Vol. V, Annex 53).
147
individually.533 Consistent with the requirements of the ICAO Rules, doing so
avoided “any possible delays”534 because the legal issues involved were identical
as to all of the respondent States. None of them objected.
5.46 Similarly, here, there can be no question that the legal issues in dispute are
identical as to all four Appellants. The ICAO Council was therefore right to hear
from them collectively.535
5.47 It should also be recalled that Article 28(1) of the ICAO Rules provides that
the Council shall fix time-limits so “as to … ensure fair treatment of the party or
parties concerned”.536 Because Joint Appellants were acting as a single party
throughout the ICAO proceedings, it lies ill in their mouth now to fault the Council
for allocating them the same amount of time at the hearing as Qatar. Indeed, had
533 See ICAO Council, 161st Session, Summary of the Fourth Meeting, ICAO Doc. C-MIN 161/4
(15 Nov. 2000) (QCM (A) Vol. II, Annex 13).
534 ICAO Rules, Art. 28(1) (BESUM Vol. II, Annex 6).
535 The Court’s practice reflects the same approach. It has accorded States acting “in concert” or “in
the same interest” the procedural rights of a single litigant. In the South West Africa cases, for
example, the Court held that applicants Ethiopia and Liberia had to choose a single judge ad hoc
because they were acting “in concert”. South West Africa Cases (Ethiopia v. South Africa; Liberia
v. South Africa), Preliminary Objections, Judgment of 21 December 1962, I.C.J. Reports 1962, p.
7. Like Joint Appellants in the proceedings before the Council, Ethiopia and Liberia submitted a
single Memorial (and later in the proceedings, a single set of observations to South Africa’s
preliminary objections). See I.C.J. Pleadings, Volume I, South West Africa Cases (Ethiopia v. South
Africa; Liberia v. South Africa), Memorial Submitted by the Government of Liberia (15 April
1961), p. 211; Observations of the Governments of Ethiopia and Liberia (1 Mar. 1962), p. 417.
Moreover, at the oral proceedings on jurisdiction and admissibility, the Agents of Ethiopia and
Liberia appeared collectively on behalf of both applicant States, not as individual litigants. I.C.J.
Pleadings, Volume VII, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa)
(1966), Minutes of the Public Hearings held at the Peace Palace, The Hague, from 2 to 22 October
and on 21 December 1962, pp. ix-xi. In these appeal proceedings, Joint Appellants filed what they
themselves labelled a “Joint Application”, in which they indicated their intention to appoint a single
judge ad hoc. ICJ Application (A), p. 1, para. 33. They also filed a joint Memorial. Joint Appellants
thus acted “in concert” as a single party in the proceedings before the ICAO Council and continue
to do the same before the Court.
536 ICAO Rules, Art. 28(1) (BESUM Vol. II, Annex 6) (emphasis added).
148
they been allocated more time, Joint Appellants would have gained a further
procedural advantage, on top of the fact that theirs was the last written word before
the hearing,537 which would indeed be in violation of the principle of equality of
arms codified in Article 28 of the ICAO Rules.538
5.48 Joint Appellants finally complain that they were required to address
Applications (A) and (B) together, although Saudi Arabia was not a party in the
proceedings concerning Application (B).539 Once again, Joint Appellants omit a
key fact: all of them, including Saudi Arabia, expressly agreed to proceed in this
way. This agreement is recorded in the minutes of the hearing:
“The Parties and the Council agreed to the proposal
of the President for the concurrent presentation and
consideration of the two above-mentioned items, on
the understanding that the Council would take
separate decisions thereon given that Application
(A) and Application (B) related to two different
international air law instruments … and that there
were different Respondents thereto”.540
537 Letter of 28 May 2018 from the Secretary-General of ICAO to the Appellants, attaching Email
of 25 May 2018 from the Delegation of Qatar to the Secretary-General of ICAO (BESUM Vol. V,
Annex 48)
538 ICAO Rules, Art. 28(1) (BESUM Vol. II, Annex 6). At a minimum, the principle of equality of
arms does not mean mathematical equality. As the International Criminal Tribunal for the Former
Yugoslavia held in the Orić case, the question is whether the amount of time granted to a party to
present its case is “objectively adequate”. See Prosecutor v. Naser Orić, Case IT-03-68-AR73.2,
Interlocutory Decision on Length of Defense Case (20 July 2005), para. 8. Nothing in the minutes
of the meeting of the Council, recording the great degree of similarity of the Parties’ oral arguments
to their written pleadings, or indeed Joint Appellants’ Memorial, suggests that the Joint Appellants
were deprived of an opportunity to present their case adequately.
539 BESUM, para. 3.58.
540 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 2 (BESUM Vol. V, Annex 53) (italics added;
underlining in original).
149
5.49 To conclude, Joint Appellants’ complaint that they had less time to present
their case is baseless. The Council did not violate any procedural norms, let alone
“fundamental” norms, in treating them as a single party and allocating them the
same amount of time at the oral hearing as Qatar.
3. The Council required the correct number of votes
to decide the preliminary objections
5.50 Joint Appellants also challenge the ICAO Council’s Decision arguing that
the Council “incorrectly required 19 votes to uphold the Preliminary Objections,
out of 33 members entitled to participate in the vote, even though Article 52 of the
Chicago Convention provides only that a mere ‘majority’ is needed”.541 In Joint
Appellants’ view, the ICAO Council should have required 17 votes.542
5.51 This is not an issue the Court need even consider. Even if Joint Appellants
were right (which they are not, as shown below), it would make no practical
difference in this case. As stated, the ICAO Council’s Decision on Appellants’
preliminary objections was adopted by a vote of 23 to four (with six abstentions),
13 votes short of the lesser majority Appellants now argue the Council should have
required. Put simply, even if the Council erred, that error was entirely harmless.
5.52 In any event, Joint Appellants’ argument is defeated by the text of the
Chicago Convention and previous Council practice. Article 52 of the Convention
provides that “[d]ecisions of the Council shall require approval by majority of its
541 BESUM, para. 3.65(a).
542 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 111 (BESUM Vol. V, Annex 53). See also BESUM,
para. 3.2(c).
150
members”.543 Under Article 53, “[n]o member of the Council shall vote in the
consideration by the Council of a dispute to which it is a party”.544
5.53 Construing the plain terms of Article 52, which refer to the majority of the
Council members, not voting members, the ICAO Legal Bureau concluded in a
1971 working paper that “a member of the Council does not cease to be a member
of that body solely because its voting power is taken away for some particular
occasion by a provision of the Convention”.545 In other words, even if a member
of the ICAO Council is not entitled to vote, it is still deemed a “member” for
purposes of calculating the number of votes required to constitute a majority under
Article 52.
5.54 Given that it has 36 members, the Council properly decided that the
“majority” required under Article 52 was 19 members.546
543 Chicago Convention, Art. 52 (BESUM Vol. II, Annex 1) (emphasis added). The Rules of
Procedure for the Council define “Majority of the Members of the Council” as “more than half of
the total membership of the Council”. See Rules of Procedure for the Council, Preliminary Section,
Definitions.
544 Ibid., Art. 53.
545 ICAO Council, 74th Session, Working Paper: Voting in the Council on Disagreements and
Complaints brought under the Rules on Settlement, ICAO Doc. C-WP/5465 (21 Oct. 1971), pp. 2-
3 (QCM (A) Vol. II, Annex 9). See also the response by the President of the ICAO Council during
the Council’s deliberations in the India v. Pakistan dispute stating that the statutory majority
required for a vote remains invariable regardless of who is entitled to vote in ICAO Council (ICAO
Council, 74th Session, Minutes of the Sixth Meeting, ICAO Doc. 8956-C/1001 (29 July 1979), para.
141 (QCM (A) Vol. II, Annex 8)).
546 The representative of the UAE at the hearing, H.E. Al Mansoori, requested that the Council
reconsider the requirement of a majority of 19 positive votes for the approval of the preliminary
objections. The Council rejected the request, noting the “absence of any desire … to determine what
constituted the voting majority other than the relevant provisions of the Chicago Convention”. See
ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, paras. 9, 113, 116-118 (BESUM Vol. V, Annex 53).
151
5.55 The ICAO Council’s decision is consistent with its previous practice. The
India v. Pakistan case is one example, decided at a time when the Council had only
27 members. The Council deemed the majority in terms of Article 52 of the
Chicago Convention to comprise of 14 Members, even though India was not
entitled to vote due to its status as party to the dispute.547 Another, more recent,
example is the Brazil v. United States case, where the ICAO Council similarly
required a majority of 19 votes even though only 34 Council Members were eligible
to vote.548 Neither party complained of any procedural irregularity. Nor did Egypt,
Saudi Arabia, or the UAE, all of which participated in the vote, raise any such
complaint.
5.56 In response to a request for clarification by Joint Appellants during the
hearing, the Director of Legal Affairs and External Relations Bureau stated that his
office “had examined the historical records of previous ICAO proceedings…and
that it had been the consistent and unanimous practice of the Council to require
approval of its decisions by a majority of its Members, which currently stood at
19”.549 Joint Appellants misrepresent this exchange to suggest that the ICAO
Council abdicated its duty to interpret the Chicago Convention by deferring to the
Legal Director.550 They are wrong. As the Director of Legal Affairs himself
explained during the meeting, he simply “read the text of Article 52 of the Chicago
Convention and recited to the Council the factual historical records of previous
547 ICAO Council, 74th Session, Minutes of the Sixth Meeting, ICAO Doc. 8956-C/1001 (29 July
1979), para. 60 (QCM (A) Vol. II, Annex 8).
548 See ICAO Preliminary Objections (A), Exhibit 2, ICAO Council – 211th Session, Summary
Minutes of the Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017, paras.
97-98 (BESUM Vol. III, Annex 24)
549 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 112 (BESUM Vol. V, Annex 53) (emphasis added).
550 BESUM, para. 3.58.
152
Council decisions, no more, no less”.551 He did not “interpret” anything, as Joint
Appellants wrongly contend. It is therefore not true that ICAO Council abdicated
its judicial function to the Director of Legal Affairs.
5.57 Joint Appellants finally argue that the Council’s interpretation of Article 52
would mean that “the ICAO Council might find itself unable to render a decision
in circumstances where fewer than 19 States were eligible to vote”, and that “[i]n
such circumstances, Article 52 of the Chicago Convention would have no effet
utile; in fact the provision would be deprived of any effet at all”.552
5.58 Such a circumstance is purely hypothetical. It has never happened in the
71-year history of ICAO. Moreover, the fact that the Council’s interpretation of
Article 52 may not produce effet in one exceptional circumstance—and the
circumstance Joint Appellants mention would be exceptional, to say the least—
does not mean that it violates the principle of effet utile. To use the words of the
Court and of its predecessor in the cases Joint Appellants themselves cite, the
principle of effet utile would be violated only if it could be shown that under the
Council’s interpretation, Article 52 “could never be applied in practice”;553 or that
it would be deprived of “all practical effect”554 or of “any significance”.555 That is
551 Ibid., para. 114.
552 BESUM, para. 3.61.
553 Lighthouses Case between France and Greece, Judgment, 1934, P.C.I.J., Series A/B, No 62, p.
27 (emphasis added).
554 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
Reports 1971, para. 66 (emphasis added).
555 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, para. 52
(emphasis added); see also Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J.
Reports 1994, para. 51.
153
plainly not the case here, as the practice of the Council over the last 71 years
demonstrates.
5.59 For all these reasons, Joint Appellants’ complaint that the Council erred in
requiring 19 votes to uphold the preliminary objections is baseless.
4. The Council properly rejected both of Joint Appellants’ preliminary
objections
5.60 Finally, Joint Appellants contend that the Decision is “vitiated at its
foundation” because the question that the President of the Council ultimately put
to vote “was neither introduced nor seconded by a Member of the ICAO Council
as required by the [Rules of Procedure for the Council]”.556 This is another
unfortunate misrepresentation of what happened at the hearing. The original
motion made by the Dean of the Council, Mexico’s Representative, and seconded
by the First Vice-President of the Council, Singapore’s Representative, to vote by
secret ballot on “each of the [Joint Appellants] preliminary objections with respect
to Application (A) and Application (B)” was never changed or modified.557 Bahrain
intervened to suggest a different wording to the question but did not make a formal
motion to that effect.558
5.61 The President of the Council did not think it necessary to change the
wording of the question. He considered it clear that “for each of Qatar’s
Application (A) and Application (B) the Respondents had a preliminary objection
556 BESUM, para. 3.65(c).
557 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 107 (BESUM Vol. V, Annex 53).
558 Ibid., para. 121 (BESUM Vol. V, Annex 53) (emphasis added).
154
for which they provided two justifications”.559 The minutes of the session also
record that the President “took the point made by [Bahrain’s Legal Advisor] that
the voting on each preliminary objection applied to both of the justifications
provided therefor”.560
5.62 All of the Council’s voting Members were present during these exchanges.
All were therefore aware that Joint Appellants had provided “two justifications”
for their challenge to the Council’s jurisdiction. There was no confusion about the
way the question put to vote was phrased. And even if it could be said, for the sake
of argument, that the President of the Council improperly conflated the two
preliminary objections, Joint Appellants failed to appeal the President’s
determination under Article 36 of the Rules of Procedure for the Council and
therefore waived their right to complain now.561
5.63 For all these reasons, Joint Appellants’ claim that the procedures adopted
by the Council were “manifestly flawed” is entirely unfounded and must be
rejected.
559 Ibid., para. 123 (emphasis added).
560 Ibid. (emphasis added).
561 See ICAO Council, Rules of Procedure for the Council, ICAO Doc. 7559/10 (2014), Rule 36
(QCM (A) Vol. II, Annex 15). See also Appeal Relating to the Jurisdiction of the ICAO Council,
Judgment, Separate opinion of Judge Jiménez de Aréchaga, I.C.J. Reports, para. 42 (“When the
questions were put to the vote, no member of the Council (and India was one of them) raised an
objection, or challenged the right of the President to act as he did. Therefore, the decisions adopted
by the Council on the basis of such propositions cannot be challenged now by the appellant on these
grounds”).
155
III. The Alleged Procedural Irregularities Did Not Prejudice “in Any
Fundamental Way” the “Requirements of a Just Procedure”
5.64 As stated, the Court in the 1972 ICAO Council Appeal case considered
India’s allegations of procedural irregularities before the ICAO Council irrelevant
to the “objective question of law” before it; namely, whether or not the ICAO
Council correctly decided that it had jurisdiction.562 The Court also held that there
was an additional, equally compelling reason to reject India’s argument: even
accepting they happened, the irregularities alleged “[did] not prejudice in any
fundamental way the requirements of a just procedure”.563
5.65 The Court did not explain in its Judgment in the 1972 ICAO Council Appeal
case what the “requirements of just procedure” are. At a minimum, they include a
fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law.564 Nothing in the record before the ICAO Council
suggests that Joint Appellants were deprived of these basic guarantees in any way.
As the President of the Council reminded all the Members at the beginning of the
hearing, “the Council was sitting as a judicial body under article 84 of the Chicago
Convention, taking its decisions on the basis of the submission of written
documents by the Parties, as well on the basis of oral arguments”.565 Moreover,
every procedural decision by the ICAO Council leading to its ultimate Decision
562 Chapter 2, Section II.A supra.
563 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
564 Charles T. Kotuby Jr & Luke Sobota, General Principles of Law and International Due Process
(2018), p. 59 (QCM (A) Vol. IV, Annex 118).
565 Ibid., para. 6.
156
was properly justified under the Rules for the Settlement of Differences,566 by
reference to the practice of the ICAO Council,567 and in consultation with ICAO’s
Director of Legal Affairs.568
5.66 The Court will recall that in the 1972 ICAO Council Appeal case India
complained in essence of four alleged procedural irregularities: (1) the ICAO
Council failed to state reasons in its decision;569 (2) the decision of the ICAO
Council was vitiated by the fact that the questions were framed in the wrong
manner;570 (3) the Council’s decision on Pakistan’s Complaint was not supported
by a statutory majority;571 and (4) some members of the Council were not able to
participate in the deliberations and in the final decision of the Council.572
5.67 In this case, the putative procedural irregularities Joint Appellants identify
closely resemble India’s. According to Joint Appellants:
1. The ICAO Council failed to state reasons in its decision (this closely
resembles India’s first alleged procedural irregularity);573
566 See, e.g., ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June
2018, ICAO document C-MIN 214/8, 23 July 2018, para. 122 (BESUM Vol. V, Annex 53).
567 See, e.g., ibid., para. 106.
568 See, e.g., ibid., para. 112.
569 I.C.J. Oral Arguments, Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Minutes of the public sitting held at the Peace Palace, The Hague, from 19 June to 3 July,
and on 18 August 1972, p. 607.
570 I.C.J. Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
Memorial submitted by the Government of India (22 Dec. 1971), para. 93(1).
571 Ibid., para. 93(2).
572 Ibid., para. 93(3).
573 BESUM, para. 3.2 (e).
157
2. The question submitted for vote was improperly framed, which resulted
in the ICAO Council voting on the wrong premise that there was only
one objection to be decided574 (this closely resembles India’s second
alleged procedural irregularity);
3. The ICAO Council incorrectly required 19 votes to uphold the
preliminary objections, out of 33 members entitled to vote575 (this
closely resembles India’s third alleged procedural irregularity); and
4. The Council took its decision without any deliberation576 (this closely
resembles India’s fourth alleged procedural irregularity).
5.68 The Court did not consider that the substantially identical irregularities
India alleged would have prejudiced in any “fundamental way the requirements of
a just procedure” in the 1972 ICAO Council Appeal case. The same is equally true
here.
5.69 The remaining procedural complaints Joint Appellants raise are that:
1. They were allocated the same amount of time as Qatar although each of
them was appearing as a respondent in its own right;
2. The decision was taken by secret ballot despite the request by Joint
Appellants for a roll call with open vote.
574 Ibid., para. 3.30.
575 Ibid., para. 3.65 (a).
576 Ibid., para. 3.37.
158
5.70 For the reasons already explained, neither of these prejudiced the
requirements of a just procedure, still less in a fundamental way.
5.71 The fact that the ICAO Council allocated Joint Appellants the same amount
of time as Qatar does not mean they were not granted an adequate opportunity to
present their case. As the Court’s jurisprudence makes clear, the principle of
procedural equality is met when the parties “have had adequate and in large
measure equal opportunities to present their case …”.577 Joint Appellants have
failed to show that the time allocated to them was inadequate to present their case
to the Council, or that the time they had was insufficient compared to the time Qatar
had. In the end, Joint Appellants enjoyed ample opportunities to present their case
through written and oral submissions.578
5.72 Joint Appellants’ complaint that the vote was taken by secret ballot is
equally unavailing. In their view, the voting method was irregular since there was
a request by Saudi Arabia for a roll call.579 But as shown above, the vote was
entirely consistent with the ICAO Council’s Rules of Procedure and practice.580
Not only that, but in the one previous decision of the ICAO Council adopted in this
577 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization
upon a Complaint Filed against the International Fund for Agricultural Development, Advisory
Opinion, I.C.J. Reports 2012, para. 47.
578 See supra, paras. 5.16-5.20.
579 BESUM, para. 1.12.
580 See supra, paras. 5.29-5.34.
159
manner, it was one of the Joint Appellants, the UAE, that proposed a vote by secret
ballot to the Council.581
5.73 In sum, even if they occurred (quod non), none of the procedural
irregularities Joint Appellants complain of can be said to have deprived them of a
just procedure before the ICAO Council.
*
5.74 For all the reasons set forth above, Qatar respectfully requests the Court to
reject Joint Appellants’ First Ground of Appeal.
581 See ICAO Preliminary Objections (A), Exhibit 2, ICAO Council – 211th Session, Summary
Minutes of the Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017, para.
97 (BESUM Vol. III, Annex 24).
160
161
SUBMISSIONS
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 (A) of 30 October 2017.
Respectfully submitted,
____________________________
Dr. Mohammed Abdulaziz Al-Khulaifi
AGENT OF THE STATE OF QATAR
25 February 2019
162
163
CERTIFICATION
I certify that all Annexes are true copies of the documents referred to and that the
translations provided are accurate.
____________________________
Dr. Mohammed Abdulaziz Al-Khulaifi
AGENT OF THE STATE OF QATAR
25 February 2019
164
LIST OF ANNEXES
VOLUME II
FIGURES
Figure 1 Thirteen ATS Routes Available Pre-Aviation Prohibitions
Figure 2 Two ATS Routes Available Post-Aviation Prohibitions
Figure 3 Seven ATS Routes Available as of 4 February 2019
ANNEXES
ICAO CORRESPONDENCE AND DOCUMENTS
Annex 1 ICAO Assembly, Resolution A15-7: Condemnation of the
Policies of Apartheid and Racial Discrimination of South
Africa, ICAO Doc. 8528 (22 June-16 July 1965)
Annex 2 ICAO Assembly, Resolution A18-4: Measures to be taken in
pursuance of Resolutions 2555 and 2704 of the United Nations
General Assembly in relation to South Africa ICAO Doc. 8958
(15 June-7 July 1971)
Annex 3 ICAO Council, Action of the Council: Seventy-fourth Session,
ICAO Doc. 8987-C/1004 (8 July 1971, 27-29 July 1971, 28
Sept.– 17 Dec. 1971)
Annex 4 ICAO Council, 74th Session, Minutes of the Second Meeting,
ICAO Doc. 8956-C/1001 (27 July 1971)
Annex 5 ICAO Council, 74th Session, Minutes of the Third Meeting,
ICAO Doc. 8956-C/1001 (27 July 1971)
Annex 6 ICAO Council, 74th Session, Minutes of the Fourth Meeting,
ICAO Doc. 8956-C/1001 (28 July 1971)
165
Annex 7 ICAO Council, 74th Session, Minutes of the Fifth Meeting, ICAO Doc.
8956-C/1001 (28 July 1971)
Annex 8 ICAO Council, 74th Session, Minutes of the Sixth Meeting, ICAO Doc.
8956-C/1001 (29 July 1971)
Annex 9 ICAO Council, 74th Session, Working Paper: Voting in the Council on
Disagreements and Complaints brought under the Rules on Settlement,
ICAO Doc. C-WP/5465 (21 Oct. 1971)
Annex 10 ICAO Council, Règlement pour la Solution des Différends (1957,
amended 10 Nov. 1971)
Annex 11 ICAO Council, Cuba v. United States, Memorial of Cuba (11 July
1996)
Annex 12 ICAO Council, United States v. 15 EU Member State, Memorial of the
United States (14 March 2000)
Annex 13 ICAO Council, 161st Session, Summary Minutes of the Fourth Meeting,
ICAO Doc. C-MIN 161/4 (15 Nov. 2000)
Annex 14 ICAO Assembly, Resolution 38-12: Consolidated statement of
continuing ICAO policies and associated practices related specifically
to air navigation, ICAO Doc. 10022 (entered into force as of 4 Oct.
2013)
Annex 15 ICAO Council, Rules of Procedure for the Council, ICAO Doc.
7559/10 (2014)
Annex 16 Convention on International Civil Aviation, Annex 15: Aeronautical
Information Services (15th ed., July 2016)
Annex 17 Convention on International Civil Aviation, Annex 11: Air Traffic
Services (14th ed., July 2016)
Annex 18 ICAO Council, ICAO Annual Report: Settlement of Differences,
available at https://www.icao.int/annual-report-2017/Pages/
supporting-implementation-strategies-legal-and-external-relationsservices-
settlement-of-differences.aspx (last accessed: 31 Jan. 2019)
Annex 19 Hernán Longo, “Sharing information in order to fight against
terrorism”, ICAO, Hong Kong ICAO TRIP Regional Seminar (2017),
available at https://www.icao.int/Meetings/TRIP-HongKong-2017/
Documents/1.HERNAN%20LONGO.pdf
166
VOLUME III
ANNEXES
ICAO CORRESPONDENCE AND DOCUMENTS
Annex 20 Convention on International Civil Aviation, Annex 17: Security (10th
ed., Apr. 2017)
Annex 21 Letter from Abdulla Nasser Turki Al-Subaey, Chairman of Qatar Civil
Aviation Authority, to Fang Liu, ICAO Secretary General (5 June 2017)
Annex 22 Letter from Fang Liu, ICAO Secretary General, to Abdulla Nasser
Turki Al-Subaey, Chairman of Qatar Civil Aviation Authority,
Reference No. AN 13/4/3/Open-AMO66892 (7 June 2017)
Annex 23 ICAO Council, 211th Session, Ninth Meeting: Summary of Decisions,
ICAO Doc. C-DEC 211/9 (21 June 2017)
Annex 24 ICAO Council, 211th Session, Summary Minutes of the Tenth Meeting,
ICAO Doc. C-MIN 211/10 (23 June 2017)
Annex 25 ICAO Council, 211th Session, Tenth Meeting, Summary of Decision,
ICAO Doc. C-DEC 211/10 (23 June 2017)
Annex 26 ICAO Council, First ATM Contingency Coordination Meeting For
Qatar, Summary of Discussions, ICAO Doc. ACCM/1 (6 July 2017)
Annex 27 ICAO Council, Third ATM Contingency Coordination Meeting for
Qatar, Summary of Discussions, ICAO Doc. ACCM/3 (5-6 Sept. 2017)
Annex 28 Letter from John V. Augustin to Fang Liu, ICAO Secretary General (5
Oct. 2017)
Annex 29 Letter from President of ICAO Council to Representatives of the
Council, ICAO Doc. PRES OBA/273 (9 Feb. 2018)
Annex 30 Letter from Essa Abdulla Al-Malki, Permanent Representative of
Qatar, to Fang Liu, ICAO Secretary General (12 Mar. 2018)
167
Annex 31 Letter from Aysha Alhameli, Representative of UAE to ICAO Council
to Fang Liu, ICAO Secretary General, UAE-DEL/L-13-2018 (19 Mar.
2018)
Annex 32 Letter from Fang Liu, ICAO Secretary General, to Essa Abdulla Al-
Malki, Agent for the State of Qatar (20 Mar. 2018)
Annex 33 ICAO, Interactive Map, “Cairo FIR”, available at https://gis.icao.int/
icaoviewernew/#/41.3577/23.5481/6 (data updated: 17 Apr. 2018)
Annex 34 ICAO Council, Fourth ATM Contingency Coordination Meeting for
Qatar, Summary of Discussions, ICAO Doc. ACCM/4 (28 April 2018)
Annex 35 Letter from President, First Vice-President and Secretary General of
ICAO Council to Representatives on the Council, ICAO Doc. PRES
OBA/2771 (15 May 2018)
Annex 36 Letter from Ahmed H. Mostafa Khedr, Representative of the Arab
Republic of Egypt before ICAO, to Fang Liu, ICAO Secretary General
(12 June 2018)
Annex 37 ICAO Council, 215th Session, Working Paper: Post-Employment
Activities of ICAO Personnel, ICAO Doc. HR-WP/56 (22 Aug. 2018)
QATARI GOVERNMENT DOCUMENTS
Annex 38 Letter from Abdul Latif Bin Rashid Al-Ziyani, GCC Secretary General,
to Khalid Bin Mohamed Al Ativa, Minister of Foreign Affairs of the
State of Qatar (19 May 2014)
Annex 39 Letter from Muhammad Bin Abdul Rahman Al Thani, Minister of
Foreign Affairs of the State of Qatar, to Abdulatif Bin Rashid Al Zayani,
GCC Secretary General (7 Aug. 2017)
Annex 40 Letter from Mohamed Bin Abdul Rahman Bin Jassim Al Thani,
Minister of Foreign Affairs of State of Qatar, to Abdul Latif Bin Rashid
Al-Ziyani, Secretary-General of GCC (19 Feb. 2017)
Annex 41 State of Qatar, Ministry of Interior, National Counter Terrorism
Committee, National Terrorist Designation Lists, Designation Order
No. 2 (21 Mar. 2018)
168
Annex 42 State of Qatar, Ministry of Justice, “Qatar Doubles Contribution
to Global Community Engagement & Resilience Fund” (30 May
2018), available at https://www.mofa.gov.qa/en/all-mofa-news/
details/2018/05/30/qatar-doubles-contribution-to-global-communityengagement-
resilience-fund
Annex 43 State of Qatar, Ministry of Interior, National Counter Terrorism
Committee, National Terrorist Designation Lists, Designation Order
No. 4 (28 Aug. 2018)
QATARI LEGISLATION
Annex 44 State of Qatar, Law No. 4 of 2010 on Combating Money Laundering
and Terrorism Financing (18 Mar. 2010)
Annex 45 State of Qatar, Decree No. 11 of 2017 to Amend Law No. 3 of 2004
(13 July 2017)
OTHER GOVERNMENT DOCUMENTS
Annex 46 U.S. Department of State, Global Counterterrorism Forum Co-Chairs:
About the Global Counterterrorism Forum (GCTF) (23 Sept. 2014),
available at https://www.state.gov/j/ct/rls/fs/fs/232003.htm
Annex 47 U.S. Department of State, Bureau of Counterterrorism and Countering
Violent Extremism, Country Reports on Terrorism, Chapter 4:
Terrorist Safe Havens (Update to 7120 Report) (2017), available at
https://www.state.gov/j/ct/rls/crt/2017/282849.htm
Annex 48 “The Kingdom severs diplomatic and consular relations with Qatar”,
Saudi Ministry of Foreign Affairs (6 June 2017), available at https://
www.mofa.gov.sa/sites/mofaen/ServicesAndInformation/news/
MinistryNews/Pages/ArticleID201765134958689.aspx
Annex 49 U.S. Department of State, Press Availability with Qatari Foreign
Minister Sheikh Mohammed bin Abdulrahman al-Thani (11 July
2017), available at https://www.state.gov/secretary/20172018tillerson/
remarks/2017/07/272522.htm
Annex 50 Ministry of Defence of United Kingdom, Defence Secretary hosts
Qatari counterpart at historic Horse Guards (16 Jan. 2018), available
at https://www.gov.uk/government/news/defence-secretary-hostsqatari-
counterpart-at-historic-horse-guards
169
Annex 51 U.S. Department of State, Joint Statement of the Inaugural United
States-Qatar Strategic Dialogue (30 Jan. 2018), available at https://
www.state.gov/r/pa/prs/ps/2018/01/277776.htm
Annex 52 U.S. Embassy & Consulate in the UAE, Meeting of the Terrorist
Financing Targeting Center Member States Convenes in Kuwait
(6 Mar. 2018), available at https://ae.usembassy.gov/meetingterrorist-
financing-targeting-center-member-states-convenes-kuwaitmarch-
6-2018/
Annex 53 U.S. Department of State, Secretary Pompeo’s Meeting with Qatari
Foreign Minister Al Thani (26 June 2018), available at https://www.
state.gov/r/pa/prs/ps/2018/06/283519.html
OFFICIAL STATEMENTS
Annex 54 Permanent Mission of the State of Qatar to the United Nations Office
in Geneva, Switzerland, HE the Foreign Minister delivers a statement
before the 36th Session of the Human Rights Council (11 Sept. 2017),
available at http://geneva.mission.qa/en/news/detail/2017/09/17/
he-the-foreign-minister-delivers-a-statement-in-front-of-the-36thsession-
of-the-human-rights-council
Annex 55 UN General Assembly, 72nd Session, General Debate, Address by His
Highness Sheikh Tamim bin Hamad Al-Thani, Amir of the State of
Qatar (19 Sept. 2017)
Annex 56 UN General Assembly, 72nd Session, General Debate, Statement of H.E.
Abdel Fattah Al-Sisi, President of the Arab Republic of Egypt (19 Sept.
2017)
Annex 57 UN General Assembly, 72nd Session, General Debate, Statement by His
Highness Sheikh Abdullah Bin Zayed Al Nahyan, Minister of Foreign
Affairs and International Cooperation of the United Arab Emirates
(22 Sept. 2017)
Annex 58 UN General Assembly, 72nd Session, General Debate, H.E. Mr. Shaikh
Khalid Bin Ahmed Bin Mohamed Al Khalifa, Minister for Foreign
Affairs of Bahrain (22 Sept. 2017)
Annex 59 UN General Assembly, 72nd Session, General Debate, H.E. Mr. Adel
Ahmed Al-Jubeir, Minister of Foreign Affairs of Saudi Arabia,
Summary of Statement (23 Sept. 2017)
170
PRESS ARTICLES
Annex 60 Steven Lee Myers, “Qatar Court Convicts 2 Russians in Top Chechen’s
Death”, New York Times (1 July 2004), available at https://www.
nytimes.com/2004/07/01/world/qatar-court-convicts-2-russians-intop-
chechen-s-death.html
Annex 61 Susan B. Glasser, “Martyrs’ in Iraq Mostly Saudis”, Washington Post
(15 May 2005), available at http://www.washingtonpost.com/wp-dyn/
content/article/2005/05/14/AR2005051401270.html
Annex 62 Declan Walsh, “WikiLeaks cables portray Saudi Arabia as a cash
machine for terrorists”, The Guardian (5 Dec. 2010), available at
https://www.theguardian.com/world/2010/dec/05/wikileaks-cablessaudi-
terrorist-funding
Annex 63 Aram Bakshian Jr., “The Unlikely Rise of Al Jazeera”, The Atlantic (10
Jan. 2012), available at https://www.theatlantic.com/international/
archive/2012/01/the-unlikely-rise-of-al-jazeera/251112/
Annex 64 “September 11 Hijackers Fast Facts”, CNN (27 July 2013), available at
https://www.cnn.com/2013/07/27/us/september-11th-hijackers-fastfacts/
index.html
Annex 65 “Video: Dubai ruler praises Al-Qaradawi for his scholarly
achievements”, Middle East Monitor (12 Apr. 2014), available at
https://www.middleeastmonitor.com/20140412-video-dubai-rulerpraises-
al-qaradawi-for-his-scholarly-achievements/
Annex 66 Ala’a Shehabi, “Why is Bahrain Outsourcing Extremism?”,
Foreign Policy (29 Oct. 2014), available at https://foreignpolicy.
com/2014/10/29/why-is-bahrain-outsourcing-extremism/
Annex 67 “Qatar recalls envoy to Egypt in row over Libya strikes”, BBC News (19
Feb. 2015), available at https://www.bbc.com/news/world-middleeast-
31532665
VOLUME IV
ANNEXES
171
Annex 68
Annex 69
Annex 70
Annex 71
Annex 72
Annex 73
Annex 74
Annex 75
Annex 76
“Qatar row: Air travellers hit by grounded flights”, BBC (5 June 2017),
available at https://www.bbc.com/news/world-middle-east-40159085
Jamie McIntyre, “US base in Qatar still running the fight against ISIS
amid diplomatic rift in the Middle East”, Washington Examiner (5 June
2017), available at https://www.washingtonexaminer.com/us-base-inqatar-
still-running-the-fight-against-isis-amid-diplomatic-rift-in-themiddle-
east
Naveed Siddiqui, “550 Pakistani pilgrims stranded in Qatar flown to
Muscat”, Dawn (6 June 2017), available at https://www.dawn.com/
news/1337785
Zahraa Alkhalisi, “Arab blockade is nightmare for Qatar Airways”,
CNN (6 June 2017), available at https://money.cnn.com/2017/06/06/
news/qatar-airways-blockade-nightmare/index.html
Jon Gambrell, “Emirati diplomat to AP: ‘Nothing to negotiate’ with
Qatar”, Associated Press (7 June 2017), available at https://apnews.co
m/3a69bad153e24102a4dd23a6111613ab
“Gulf blockade disrupts Qatar Airways flights”, Al Jazeera (7 June
2017), available at https://www.aljazeera.com/news/2017/06/gulfblockade-
disrupts-qatar-airways-flights-170606081841215.html
Max Bearak, “Three maps explain how geopolitics has Qatar Airways
in big trouble”, Washington Post (7 June 2017), available at https://
www.washingtonpost.com/news/worldviews/wp/2017/06/07/threemaps-
explain-how-geopolitics-has-qatar-airways-in-big-trouble/?utm_
term=.5f6aff93a5e6 (Video recordings on CD-rom located at the end
of this Volume)
C. Alexander & S. Dodge, “Muslim Brotherhood Is at the Heart of Gulf
Standoff With Qatar”, Bloomberg (7 June 2017), available at https://
www.bloomberg.com/graphics/2017-muslim-brotherhood
Maher Chmaytelli, “Iraq says it still has Qatari money sent to free
ruling family members”, Reuters (11 June 2017), available at https://
www.reuters.com/article/us-mideast-crisis-iraq-qatar/iraq-saysit-
still-has-qatari-money-sent-to-free-ruling-family-membersidUSKBN1920Y5
172
Annex 77 “Slump in travel to and from Qatar as thousands of airline bookings
are cancelled”, The National (13 June 2017), available at https://
www.thenational.ae/business/slump-in-travel-to-and-from-qatar-asthousan…-
of-airline-bookings-are-cancelled-1.80185
Annex 78 A. Gearan & K. DeYoung, “State Department issues unusual public
warning to Saudi Arabia and UAE over Qatar rift”, Washington Post
(20 June 2017), available at https://www.washingtonpost.com/world/
national-security/state-department-issues-unusual-public-warning-tosaudi-
arabia-and-uae-over-qatar-rift/2017/06/20/66294a58-55e9-11e7-
a204-ad706461fa4f_story.html
Annex 79 “Qatar given 10 days to meet 13 sweeping demands by Saudi Arabia”,
The Guardian (23 June 2017), available at https://www.theguardian.
com/world/2017/jun/23/close-al-jazeera-saudi-arabia-issues-qatarwith-
13-demands-to-end-blockade
Annex 80 “Saudi demands from Qatar ‘very provocative’: Germany”, Reuters
(26 June 2017), available at https://www.reuters.com/article/us-gulfqatar-
germany/saudi-demands-from-qatar-very-provocative-germanyidUSKBN19H2A3
Annex 81 Naser Al Wasmi, “UAE and Saudi put pressure on Qatar ahead of
demands deadline”, The National (28 June 2017), available at https://
www.thenational.ae/world/uae-and-saudi-put-pressure-on-qatarahead-
of-demands-deadline-1.92119
Annex 82 N. Gaouette & Z. Cohen, “US and Qatar broker counterterrorism
agreement”, CNN (11 July 2017), available at https://www.cnn.
com/2017/07/11/politics/tillerson-qatar-terrorism-memorandum-ofunderstanding/
index.html
Annex 83 Jamie Merrill, “REVEALED: 9/11 families could sue UAE for alleged
role in attacks”, Middle East Eye (14 July 2017), available at https://
www.middleeasteye.net/news/xxx-376213863
Annex 84 K. DeYoung & E. Nakashima, “UAE orchestrated hacking of Qatari
government sites, sparking regional upheaval, according to U.S.
intelligence officials”, Washington Post (16 July 2017), available
at https://www.washingtonpost.com/world/national-security/
uae-hacked-qatari-government-sites-sparking-regional-upheavalaccording-
to-us-intelligence-officials/2017/07/16/00c46e54-698f-11e7-
8eb5-cbccc2e7bfbf_story.html
173
Annex 85 “Arab countries’ six principles for Qatar ‘a measure to restart the
negotiation process”, The National (19 July 2017), available at https://
www.thenational.ae/world/gcc/arab-countries-six-principles-for-qatara-
measure-to-restart-the-negotiation-process-1.610314
Annex 86 “Emir speech in full text: Qatar ready for dialogue but won’t
compromise on sovereignty”, The Peninsula (22 July 2017), available
at https://thepeninsulaqatar.com/article/22/07/2017/Emir-speechin-
full-text-Qatar-ready-for-dialogue-but-won%E2%80%99tcompromise-
on-sovereignty
Annex 87 “Protests outside UAE Embassy in New Delhi over 26/11 terror
funding allegations”, New India Express (6 Aug. 2017), available
at http://www.newindianexpress.com/cities/delhi/2017/aug/06/
protests-outside-uae-embassy-in-new-delhi-over-2611-terror-fundingallegations-
1639346.html
Annex 88 “Emergency corridors opened before Qatar Airways”, Al
Arabiya (9 Aug. 2017) available at https://www.youtube.com/
watch?v=gIqCPuto9gU; (Video recording on CD-rom located at the
end of this Volume); (Transcript of English subtitles and of Arabic
original)
Annex 89 “Saudi Arabia suspends dialogue, saying Qatar ‘distorting facts’”, The
Guardian (8 Sept. 2017), available at https://www.theguardian.com/
world/2017/sep/09/saudi-arabia-suspends-dialogue-saying-qatardistorting-
facts
Annex 90 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”,
Gulf News (9 Sept. 2017), available at https://gulfnews.com/world/
gulf/qatar/hopes-for-qatar-crisis-breakthrough-raised-shatteredwithin-
minutes-1.2087108
Annex 91 “Qatar crisis: Saudi Arabia angered after emir’s phone call”, BBC News
(9 Sept. 2017), available at https://www.bbc.com/news/world-middleeast-
41209610
Annex 92 Peter Salisbury, “The fake-news hack that nearly started a war this
summer was designed for one man: Donald Trump”, Quartz (20 Oct.
2017), available at https://qz.com/1107023/the-inside-story-of-thehack-
that-nearly-started-another-middle-east-war/
174
Annex 93 “Qatar’s sanctions hit 13 facilitators of terrorism”, Qatar Tribune (26
Oct. 2017), available at http://www.qatar-tribune.com/news-details/
id/92566
Annex 94 Bethan McKernan, “US and Saudi Arabia arms significantly enhanced
Isis’ military capabilities, report reveals”, The Independent (15 Dec.
2017), available at https://www.independent.co.uk/news/world/
middle-east/isis-us-saudi-arabia-arms-fighters-jihadis-militarycapability-
enhanced-weapons-syria-terrorism-a8112076.html
Annex 95 Noah Browning, “Qatar puts 28 people and entities on new terrorism
list”, Reuters (22 March 2018), available at https://www.reuters.com/
article/us-gulf-qatar-security/qatar-puts-28-people-and-entities-onnew-
terrorism-list-idUSKBN1GY222
Annex 96 G. Jaffe & M. Ryan, “A Dubai shopping trip and a missed chance to
capture the head of the Taliban”, Washington Post (24 Mar. 2018),
available at https://www.washingtonpost.com/world/nationalsecurity/
a-dubai-shopping-trip-and-a-missed-chance-to-capturethe-
head-of-the-taliban/2018/03/24/0137dd66-2ba0-11e8-8ad6-
fbc50284fce8_story.html?utm_term=.1597ebb9b696
Annex 97 Jonathan Stempel, “Saudi Arabia must face U.S. lawsuits over Sept. 11
attacks”, Reuters (28 Mar. 2018), available at https://www.reuters.com/
article/us-usa-saudi-sept11/saudi-arabia-must-face-u-s-lawsuits-oversept-
11-attacks-idUSKBN1H43A1
Annex 98 “Co-Led by US, Saudi Arabia, TFTC Members Meet in Kuwait”, Kuwait
News Agency (11 May 2018), available at https://www.kuna.net.kw/
ArticleDetails.aspx?srcilaw&id2726718&language=en
Annex 99 “Bahrain sees ‘no glimmer of hope’ for ending Qatar crisis soon”,
Reuters (27 May 2018), available at https://af.reuters.com/article/
commoditiesNews/idAFL5N1SY020
Annex 100 “Qatar’s efforts in combating terrorism win German praise”, Gulf Times
(14 July 2018), available at https://www.gulf-times.com/story/599458/
Qatar-s-efforts-in-combating-terrorism-win-German
175
Annex 101
Annex 102
Annex 103
Annex 104
Annex 105
Annex 106
Annex 107
Dominic Dudley, “Saudi Arabia Accused Of Turning A Blind
Eye To International Terrorism Financing By Global Watchdog”,
Forbes (25 Sept. 2018), available at https://www.forbes.com/sites/
dominicdudley/2018/09/25/saudi-arabia-accused-of-turninga-
blind-eye-to-international-terrorism-financing-by-globalwatchdog/#
5bbd8f767630
Stephen Kalin, “Qatar rift overshadows Gulf Arab summit as emir stays
away”, Reuters (8 Dec. 2018), available at https://www.reuters.com/
article/us-gulf-qatar/qatar-rift-overshadows-gulf-arab-summit-asemir-
stays-away-idUSKBN1O803S
“Interpol removes red notice against Islamic scholar Yusuf Al
Qaradawi”, TRT World (13 Dec. 2018), available at https://www.
trtworld.com/middle-east/interpol-removes-red-notice-againstislamic-
scholar-yusuf-al-qaradawi-22453
S. Kalin & F. Guarascio, “EU adds Saudi Arabia to draft terrorism
financing list: sources”, Reuters (25 Jan. 2019), available at
https://www.reuters.com/article/us-eu-saudi-moneylaundering/
eu-adds-saudi-arabia-to-draft-terrorism-financing-list-sourcesidUSKCN1PJ23J
C. Bing & J. Schectman, “Inside the UAE’s secret hacking team of
American mercenaries”, Reuters (30 Jan. 2019), available at https://
www.reuters.com/investigates/special-report/usa-spying-raven/
N. Elbagir, S. Abdelaziz, M.A. El Gheit & L. Smith-Spark, “Sold to an
ally, lost to an enemy”, CNN (Feb. 2019), available at https://edition.
cnn.com/interactive/2019/02/middleeast/yemen-lost-us-arms/
Francesco Guarascio, “EU adds Saudi Arabia to dirty-money blacklist,
upsets UK, U.S.”, Reuters (13 Feb. 2019), available at https://www.
reuters.com/article/us-eu-saudi-moneylaundering/eu-adds-saudiarabia-
to-dirty-money-blacklist-upsets-britain-idUSKCN1Q215X
176
BOOKS, JOURNAL ARTICLES, REPORTS
Annex 108 E. Cannizzaro & B. Bonafè, “Fragmenting International Law through
Compromissory Clauses? Some Remarks on the Decision of the ICJ
in the Oil Platforms Case”, European Journal of International Law
(2005), Vol. 16, No. 3 (2005)
Annex 109 Adrian Guelke, Terrorism and Global Disorder (2006)
Annex 110 Ruwantissa Abeyratne, Convention on International Civil Aviation, A
Commentary (2014)
Annex 111 Ibrahim Hatlani, “Bahrain Between its Backers and the Brotherhood”,
Carnegie Endowment for International Peace (20 May 2014),
available at http://carnegieendowment.org/sada/55653
Annex 112 Human Rights Watch, All According to Plan: The Rab’a Massacre
and Mass Killings of Protesters in Egypt, (12 Aug. 2014), available
at https://www.hrw.org/report/2014/08/12/all-according-plan/rabamassacre-
and-mass-killings-protesters-egypt
Annex 113 “Financing of the Terrorist Organisation Islamic State in Iraq and
the Levant (ISIL)”, FATF (Feb. 2015), available at http://www.fatfgafi.
org/media/fatf/documents/reports/Financing-of-the-terroristorganisation-
ISIL.pdf
Annex 114 E. Benmelech & E.F. Klor, “What Explains the Flow of Foreign Fighters
to ISIS?”, National Bureau of Economic Research, Working Paper
22190 (April 2016), available at https://www.nber.org/papers/w22190.
pdf
Annex 115 Marc Lynch, “In Uncharted Waters: Islamist Parties Beyond Egypt’s
Muslim Brotherhood”, Carnegie Endowment for International
Peace (16 Dec. 2016), available at https://carnegieendowment.
org/2016/12/16/in-uncharted-waters-islamist-parties-beyond-egypt-smuslim-
brotherhood-pub-66483
Annex 116 Paul Stephen Dempsey, Public International Air Law (2017)
Annex 117 Kylie Moore-Gilbert, “A Band of (Muslim) Brothers? Exploring
Bahrain’s Role in the Qatar Crisis”, Middle East Institute (3 Aug. 2017),
available at https://www.mei.edu/publications/band-muslim-brothersexploring-
bahrains-role-qatar-crisis#_ftnref16
177
Annex 118 C. Kotuby Jr. & L. Sobota, General Principles of Law and International
Due Process (2018)
Annex 119 “The Battle over Appointing Judges in Egypt”, Carnegie Endowment
for International Peace (16 Jan. 2018), available at https://
carnegieendowment.org/sada/75274
Annex 120 FATF-MENAFATF, Anti-money laundering and counter-terrorist
financing measures – Saudi-Arabia, Fourth Round Mutual Evaluation
Report, FATF, Paris (Sept. 2018), available at http://www.fatf-gafi.org/
publications/mutualevaluations/documents/mer-saudi-arabia-2018.
html
OTHER DOCUMENTS
Annex 121 “Qatar Espionage case”, The Tahrir Institute for Middle East Policy,
available at https://timep.org/transitional-justice-project/phase-I/
qatar-espionage-case/ (last accessed: 14 Feb. 2019)
Annex 122 “Unacceptable call for Al Jazeera’s closure in Gulf crisis”, Reporters
Without Borders (28 June 2017), available at https://rsf.org/en/news/
unacceptable-call-al-jazeeras-closure-gulf-crisis
Annex 123 Kevin Jon Heller, “Saudi Arabia Threatens to Shoot Down a Qatari
Airways Plane”, OpinioJuris (18 Aug. 2017), available at http://
opiniojuris.org/2017/08/18/33233/
Annex 124 Committee to Protect Journalists, Data & Research (2018), available
at https://cpj.org/data/imprisoned/2018/?status=Imprisoned&
cc_fips%5B%5D=QA&start_year=2018&end_year=2018&group_
by=location
Annex 125 Council on Foreign Relations, A Conversation With Adel al-Jubeir (26
Sept. 2018), available at https://www.cfr.org/event/conversation-adelal-
jubeir
Annex 126 Doha Forum, Qatar Announces Half a Billion USD in Funds to UN
Agencies, (Dec. 2018), available at https://dohaforum.org/blog/press/
post/qatar-announces-half-a-billion-usd-in-funds-to-un-agencies/
178
Annex 127
Annex 128
Annex 129
Annex 130
Annex 131
Annex 132
Annex 133
Annex 134
Annex 135
“UN rights chief urges talks to save Egypt from further disastrous
violence”, UN News (15 Aug. 2013), available at https://news.un.org/
en/story/2013/08/446802-un-rights-chief-urges-talks-save-egyptfurther-
disastrous-violence
“Khashoggi trial in Saudi Arabia falls short of independent,
international probe needed: UN rights chief ”, UN News (4 Jan. 2019),
available at https://news.un.org/en/story/2019/01/1029772
Office of the High Commissioner for Human Rights, Independent
human rights expert to visit Turkey to launch international inquiry into
Khashoggi case (25 Jan. 2019), available at https://www.ohchr.org/ EN/
NewsEvents/Pages/DisplayNews.aspx?NewsID=24113&LangID=E
Financial Action Task Force (FATF), “Who we are”, available at http://
www.fatf-gafi.org/about/ (last accessed: 1 Feb. 2019)
Global Coalition, 79 Partners, available at http://theglobalcoalition.
org/en/partners/ (last accessed: 1 Feb. 2019)
Global Community Engagement and Resilience Fund, Donor
Frequently Asked Questions, available at https://www.gcerf.org/donorfrequently-
asked-questions/ (last accessed: 2 Feb. 2019)
“Yemen: UAE recklessly supplying militias with windfall of Western
arms”, Amnesty International (6 Feb. 2019), available at https://www.
amnesty.org/en/latest/news/2019/02/yemen-uae-recklessly-supplyingmilitias-
with-windfall-of-western-arms/
King Faisal Prize, Professor Yousef A. Al-Qaradawi, Winner of
the 1994 KFP Prize for Islamic Studies, available at https://
kingfaisalprize.org/professor-yousef-a-al-qaradawi/ (last accessed: 15
Feb. 2019)
Appendices of Working Paper 14640: Contingency Arrangements and
ATM Measures in the MID Region by Kingdom of Bahrain, Arab
Republic of Egypt, Kingdom of Saudi Arabia and United Arab
Emirates (2017)
179