Reply of the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates

INTERNATIONAL COURT OF JUSTICE
APPEAL RELATING TO THE JURISDICTION OF
THE ICAO COUNCIL UNDER ARTICLE 84 OF
THE CONVENTION ON INTERNATIONAL CIVIL AVIATION
(BAHRAIN, EGYPT, SAUDI ARABIA AND UNITED ARAB EMIRATES v. QATAR)
REPLY OF THE KINGDOM OF BAHRAIN,
THE ARAB REPUBLIC OF EGYPT,
THE KINGDOM OF SAUDI ARABIA,
AND THE UNITED ARAB EMIRATES
Volume I of II
27 MAY 2019

TABLE OF CONTENTS
Page
CHAPTER I INTRODUCTION 1
CHAPTER II THE REAL ISSUE IN DISPUTE 12
Section 1. Qatar’s manifest violations of the Riyadh
Agreements and other international law obligations 14
A. The real dispute between the Parties concerns Qatar’s Violations of the Riyadh Agreements and other international law obligations 14
B. Qatar’s Unlawful Support for Terrorism and Extremism 21
C. Qatar’s Unlawful Support for the Muslim Brotherhood 25
D. Qatar’s Use of State-Owned Media as a Platform for Hate Speech and Extremism 30
Section 2. The Aviation Restrictions were imposed as
proportionate countermeasures to Qatar’s
wrongful actions 35
A. Bahrain 36
B. Egypt 38
C. UAE 39
D. Saudi Arabia 40
CHAPTER III FIRST GROUND OF APPEAL: THE DECISION
OF THE ICAO COUNCIL FALLS TO BE SET
ASIDE DUE TO GRAVE VIOLATIONS OF DUE
PROCESS 43
Section 1. On Qatar’s own case, the ICAO Council is not apt
as a legal forum 44
i
Section 2. Due process falls within the Court’s appellate
jurisdiction 48
Section 3. Violations of due process and the ICAO Rules 54
A. Absence of deliberations as a collegial formation 55
B. Failure to deliver a reasoned decision 57
C. The Appellants did not have a reasonable
opportunity to be heard 59
D. Violation by the Council of the applicable
procedural rules 61
Section 4. The Appellants did not waive their right to appeal 63
Section 5. Conclusion: the Decision is a nullity ab initio 68
CHAPTER IV SECOND GROUND OF APPEAL: THE REAL
ISSUE OBJECTION SHOULD BE UPHELD BY
THE COURT 69
Section 1. The real issue in dispute does not concern “the
interpretation or application” of the Chicago
Convention and its Annexes 72
A. The “real issue” test is an objective one that
requires the Court to look beyond the
Applicant’s pleadings 72
B. The “real issue” in dispute does not concern civil
aviation 75
C. Respondent’s expansive reading of Article 84 of
the Chicago Convention would extend it beyond
the limits of the States Parties’ consent 78
D. Upholding the “real issue” objection would pose
no risk to the international legal order 82
Section 2. The adjudication of Qatar’s Claims by the ICAO
Council would be inconsistent with judicial
propriety because the civil aviation aspects cannot
be severed from the broader dispute 84
ii
Section 3. In any event, the Court should reject Qatar’s
suggestions as to how the ICAO Council might
accept jurisdiction without deciding
countermeasures 87
A. Qatar wrongly invites the Court to find that countermeasures are excluded by the Chicago Convention 87
B. The Court should reject Qatar’s suggestion
that the ICAO Council may determine the
Appellants’ conduct without determining their
countermeasures 97
C. The Court should reject Qatar’s suggestion
that the ICAO Council could determine only
the procedural aspects of countermeasures 100
Section 4. Conclusion 101
CHAPTER V THIRD GROUND OF APPEAL: THE
ICAO COUNCIL ERRED IN REJECTING THE
SECOND PRELIMINARY OBJECTION
RELATING TO PRIOR NEGOTIATIONS 104
Section 1. The Objection as to Jurisdiction 107
A. Legal standard for the precondition of negotiation 107
1. Introduction 107
2. The precondition of negotiations requires a “genuine attempt” to engage in negotiations 110
3. The need to identify the specific obligations which form the subject-matter of the dispute 118
4. The need for flexibility in assessing negotiations 121
B. Qatar has failed to show that it made any genuine attempt to negotiate 121
1. Qatar’s supposed efforts to settle the dispute through “direct means” 122
iii
2. Supposed negotiations within ICAO 127
3. Supposed negotiations within the WTO 129
4. Supposed negotiations through third parties 130
Section 2. The Objection as to Admissibility 131
Section 3. Conclusion 135
CHAPTER VI CONCLUSION 136
A. First ground of appeal 136
B. Second ground of appeal 136
C. Third ground of appeal 137
D. Conclusion 138
SUBMISSIONS 139
CERTIFICATION 141
LIST OF ANNEXES 143
iv
v
GLOSSARY OF PRINCIPAL DEFINED TERMS, ABBREVIATIONS
AND ACRONYMS
Appellants The Kingdom of Bahrain, the Arab Republic
of Egypt, the Kingdom of Saudi Arabia and
the United Arab Emirates
Bahrain The Kingdom of Bahrain
CAT Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment, 10 December 1984
CERD International Convention on the Elimination
of All Forms of Racial Discrimination,
7 March 1966
Chicago Convention Convention on International Civil Aviation,
Chicago, 7 December 1944
Egypt The Arab Republic of Egypt
FIR(s) Flight Information Region(s)
First Riyadh Agreement First Riyadh Agreement, 23 and
24 November 2013
GCC Gulf Cooperation Council
IASTA International Air Services Transit Agreement,
Chicago, 7 December 1944
ICAO International Civil Aviation Organization
ICAO Application 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 October 2017
ICAO Council Council of the International Civil Aviation
Organization
viICAO Council Decisionor DecisionDecision of the Council of the International Civil Aviation Organization 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), 29June 2018ICAO MemorialMemorial appended to Application (A) of the Stateof Qatar,Disagreementon the Interpretation and Application of the ConventionInternational Civil Aviation (Chicago,1944), 30 October 2017ICAO MID OfficeICAO Middle East Regional OfficeICAO Preliminary ObjectionsPreliminary 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 2018ICAO RejoinderRejoinder 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 2018viiICAO
vii
ICAO Response to the
Preliminary Objections
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
ICAO Rules Rules for the Settlement of Disagreements,
approved by the ICAO Council on 9 April
1957, and amended on 10 November 1975;
ICAO document 7782/2
ICJ Application 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
Implementing Mechanism Mechanism Implementing the Riyadh
Agreement, 17 April 2014
MENA Middle East and North Africa
NOTAMs Notices to Airmen
Qatar State of Qatar
Riyadh Agreements First Riyadh Agreement, 23 and
24 November 2013
Mechanism Implementing the Riyadh
Agreement, 17 April 2014
Supplementary Riyadh Agreement,
16 November 2014
viiiRules of Procedure for the CouncilRules of Procedure for the Council, ninth edition, approved by the ICAO Council 2013, ICAO document7559/9Saudi ArabiaThe Kingdom of Saudi ArabiaSupplementary Riyadh AgreementSupplementary Riyadh Agreement, 16November 2014UAEThe United Arab Emirates1CHAPTERIINTRODUCTION1.1This
1
CHAPTER I
INTRODUCTION
1.1 This case concerns an appeal filed on 4 July 2018 by the Kingdom of
Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia, and the
United Arab Emirates (together, the Appellants) against the Decision of the
Council of the International Civil Aviation Organization (ICAO Council) dated
29 June 2018 (Decision). Following the first round of written submissions, by
Order dated 27 March 2019, the Court authorized the submission of a Reply by
the Appellants and a Rejoinder by Qatar as the Respondent, and fixed
27 May 2019 as the time-limit for the filing of the Reply. This Reply is
submitted pursuant to that Order.
1.2 As required by Article 49(3) of the Rules of Court, this Reply is
directed to bringing out the issues that still divide the Parties in light of the
Counter-Memorial submitted by Qatar on 25 February 2019. The Appellants
note, however, that several of the arguments in Qatar’s Counter-Memorial are
substantially different to and contradict those that were presented before the
ICAO Council. Further, and as set out below, Qatar’s new position concedes
several important points that have significantly narrowed the issues that divide
the Parties.
1.3 By way of general observations, the Appellants note that Qatar’s
Counter-Memorial does not raise any issue as to the Appellants’ contentions
concerning the scope and character of the Court’s appellate jurisdiction under
Article 84 of the Convention on International Civil Aviation (Chicago
Convention)1. In particular, it does not challenge the assertion that the second
1 QCM(A), para. 1.5; BESUM, Vol. II, Annex 1, Convention on International Civil
Aviation, Chicago, 7 December 1944, Art. 84.
2and third grounds of appeal (iethe ICAO Council’s lack of competence over the real issuein dispute between the Parties and Qatar’s failure to satisfy thepreconditionof negotiation) involve a de novoconsideration of the scope of the jurisdiction of the ICAO Council over Qatar’s ICAO Application2.1.4The Appellants observe furthermore that the Counter-Memorial does not respond to nor otherwise take issue with the following arguments: (a)that there is adistinction between jurisdiction and admissibility3;(b)that in addition to jurisdiction, admissibility may be raised as a distinct preliminary objection before the ICAO Council4;(c)that the same factual or legal situation may give rise to issues of both jurisdiction and admissibility5;and (d)that countermeasures constitute a circumstance precluding wrongfulness (assuming they are validly adopted)6. In addition, Qatar all but accepts that countermeasures in respect of obligationsregarding counter-terrorism and non-2BESUM, paras 1.19-1.20.3QCM(A), para. 3.73; BESUM, paras 4.11-4.31; Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 177, para. 29; 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, pp. 456-457, paras 120-121.4BESUM, paras4.32-4.56; cf. QCM(A), para. 3.72, note286 (merely noting that the objections as to admissibility can be resolved “without determining whether questions of admissibility of claims may be raised as a preliminary matter before the Council.”).5See BESUM, paras 4.30-4.31; Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 177, para. 29; see also 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, pp.456-457, paras120-121 and p. 460, para. 129; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, I.C.J. Reports 1996, p. 621,para. 42. This point is not contested by Qatar in its Counter-Memorial, see, e.g. QCM(A), paras3.71-3.75.6BESUM, paras 2.56-2.62; see QCM(A), para. 3.68(noting the “preclusive effect of the countermeasures defence”).
3
intervention, notably under the Riyadh Agreements, may in fact fall outside of
the ICAO Council’s competence, although it then proceeds to contradict itself
by maintaining that the Council may nevertheless pass judgment on certain
issues appertaining to countermeasures7.
1.5 In respect of the first ground of appeal (the absence of due process),
the Parties are in agreement that in exercising the judicial functions conferred
upon it by Article 84 of the Chicago Convention, the ICAO Council is required
to respect the fundamental principles of due process8. The Parties are also in
agreement on a number of factual matters, including that the Council arrived at
its Decision by secret ballot, that it did so without open deliberations, and that it
failed to deliver a reasoned decision9. The two principal issues that still divide
the Parties are as follows:
(a) First, Qatar invokes the judgment in Appeal Relating to the
Jurisdiction of the ICAO Council (India v. Pakistan) to support its
contention that the “supervisory authority” of the Court does not
encompass procedural questions so long as the Council “reached the
7 QCM(A), para. 3.55 (“the merits of Joint Appellants’ countermeasures defence need
not even be addressed by the Council in order to decide Qatar’s claims”); ibid.,
para. 3.68 (“[t]he Council could . . . find the aviation prohibitions wrongful under the
Chicago Convention and its Annexes, and simply take judicial notice of Joint
Appellants’ countermeasures Defence”); ibid., para. 3.69 (“the Council could assess
the legality of Joint Appellants’ countermeasures defence without addressing the
substantive premise thereof. . . . The Council unquestionably has jurisdiction to
assess whether Joint Appellants complied with the other necessary conditions
governing countermeasures” (emphasis added)). Compare, ibid., para. 1.18 (“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.”).
8 BESUM, paras 3.4-3.12; QCM(A), para. 5.65.
9 BESUM, paras 3.2(b), (f) and (g); QCM(A), paras 5.29-5.41.
4right conclusion”10. However, in that case,the Court found that the irregularities alleged by Indiadid not “prejudice in any fundamental way the requirements of a just procedure”11.That stands in stark contrast to the manifest lack of due process in the present case. In fact, in another appellate proceeding decided immediately after India v. Pakistan,the Court clearly held that its supervisory authority extended to consideration of whether the original decision was reached in accordance with due process, such as the requirement that “judicial decisions ... should be reasoned”12.(b)Second, Qatar makes the astonishing assertion that because “Council Member representatives are not appointed to the Council in their individual capacity ... discharging the judicial function in their own individual capacity, rather than on behalf of their appointing States, iswhat would violate due process, not the other way around.”13In other words, Qatar not only acknowledges but even endorses the fact that delegates on the ICAO Council took instructions from their capitals as to how to vote on the Appellants’ Preliminary Objections, rather than approaching the dispute as neutral adjudicators. The Appellants’ position remains that it is a manifest “contradiction to hold that a representative who receives instructions from a state as to how he should act with respect to a particular disagreement could be seen to 10QCM(A), paras 5.9 and 5.12.11Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, pp. 69–70, paras 44-45.12Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion,I.C.J. Reports 1973, p. 210, para. 94.13QCM(A), para. 5.40.5act
5
act judicially.”14 Qatar’s argument confirms that the Council did not
exercise its judicial function properly. The political statements by
certain Council Members in support of Qatar, together with the
absence of open deliberations and the failure to deliver a reasoned
decision, are manifest violations of due process, rendering the Decision
a nullity ab initio.
1.6 In respect of the second ground of appeal (the ICAO Council’s lack of
competence over the “real issue” in dispute), “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.”15 This statement is in marked contrast with Qatar’s prior,
complete refusal to address the issue of countermeasures before the ICAO
Council and its insistence then that this was solely a matter for the merits16.
Despite Qatar’s contention that the breaches alleged by the Appellants are “an
artifice for escaping scrutiny of their aviation prohibitions”17, the factual
assertions in Chapter 2 of its Counter-Memorial—especially Qatar’s vigorous
defence of the Muslim Brotherhood and Al Jazeera—leave no doubt that there
is a very real and substantial dispute between the Parties, which does not
concern civil aviation issues. As set out below, the dispute includes in particular
14 BESUM, Vol. VI, Annex 126, G. F. Fitzgerald, “The Judgment of the International
Court of Justice in the Appeal Relating to the Jurisdiction of the ICAO Council”,
(1974) 12 Canadian Yearbook of International Law 153, p. 169 (emphasis added).
15 QCM(A), para. 3.37.
16 BESUM, Vol. IV, Annex 25, 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) and its Exhibits, 30 April 2018, (ICAO
Response to the Preliminary Objections), paras 75–77.
17 QCM(A), Chapter 2 heading.
6Qatar’s violations of its express obligations under the 2013–14 Riyadh Agreements, including to refrain from supporting extremism and terrorism, not to support the Muslim Brotherhood,and to cease the use of Al Jazeeraas a platform for hate speech and thesupport of extremism18.The dispute also concerns the question whether the Appellants’ countermeasures were justified as a matter of customary international law or by virtue of Article 3of theImplementingMechanism19.1.7Qatar also contradicts its earlier arguments regarding the competence of the ICAO Council20. While arguing that the “availability” of and “conditions”21for the exercise of countermeasures fall within the Council’s jurisdiction, Qatar now contendsthat violations of obligations in respect of counter-terrorism and non-intervention—on which violations the lawfulness of countermeasures depends—may in fact fall outside the Council’s competence22.Qatarmaintains therefore that the Council has competence over the lawfulness of the civil aviationrestrictions irrespective of the lawfulness of the corresponding countermeasures. Qatar attempts to reconcile its contradictory positions by suggesting inter aliathat the Council should simply take judicial notice of the Appellants’ invocation of countermeasures without deciding its lawfulness23.18See below, Chapter II, especially paras 2.4-2.34.19BESUM,Vol.II, Annex20, Implementing Mechanism, 17April 2014, Art.3.20Cf BESUM,Vol. IV, Annex 25,ICAO Response to the Preliminary Objections,paras75–77.21QCM(A), paras 1.18 and 3.69.22See above, note7; QCM(A), paras 3.55, 3.68 and 3.69,cf para. 1.18.23QCM(A), paras 3.68–3.69.71.8There
7
1.8 There are two key issues that divide the Parties on that score:
(a) Whether the subject-matter of the dispute encompasses not only the
aviation restrictions but also the question of Qatar’s support of
terrorism and its other internationally wrongful acts, which gave rise to
the countermeasures imposed by the Appellants. This requires the
Court to determine the subject-matter of the dispute by application of
the “real issue” test24 and to determine whether it has jurisdiction over
that dispute, including as to the Appellants’ invocation of
countermeasures. (The jurisdictional objection.)
(b) If Qatar were correct that its Application concerns a dispute falling
prima facie within Article 84 of the Chicago Convention, whether that
dispute is, as a matter of judicial propriety and fairness, capable of
being decided by the ICAO Council without deciding the disputed
issues about Qatar’s support for terrorism and its interference in other
States’ internal affairs and the countermeasures relied upon by the
Appellants. (The admissibility objection.)
1.9 In respect of the third ground of appeal (the requirement under Article
84 that the dispute be one which “cannot be settled by negotiation”), Qatar
asserts that the ICAO Council “properly held that Qatar satisfied the negotiation
24 BESUM, paras 5.56-5.57. See Obligation to Negotiate Access to the Pacific Ocean
(Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015, p. 602,
para. 26; see also Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J.
Reports 2016, pp. 26-27, para. 50 (“‘[W]hether there exists an international dispute is
a matter for objective determination’ by the Court . . . [which] ‘must turn on an
examination of the facts.’”); Immunities and Criminal Proceedings (Equatorial
Guinea v. France), Preliminary Objections, Judgment of 6 June 2018, p. 17, para. 48
(“it is for the Court itself to determine on an objective basis the subject-matter of the
dispute between the parties, by isolating the real issue in the case and identifying the
object of the claim”).
8requirement”25.Contrary to its earlier arguments before the Council, Qatar now recognizes that negotiations are a preconditionto jurisdiction, and it no longer argues that the severance of diplomatic relations meant that negotiations were impossible26. It asserts instead that “the absence of diplomatic channels ...made it much more difficult for Qatar even to attempt to negotiate”27.1.10The Parties are largely in agreement as tothe applicable international law standard that “in the absence of evidence of a genuine attempt to negotiate, the precondition of negotiations is not met”, notwithstanding a few points onwhich they continue to disagree28.The principal issue that divides the Parties is whether Qatar in fact complied with this requirement. Qatar points to various communications, including statements before the ICAO Council, which it claims constitute genuine attempts to negotiateor to initiate negotiations. None of these, however, was specifically addressed to the Appellants, and none made reference to the subject-matter of the dispute in respect of the relevant obligations under the Chicago Convention.In light of their content, the circumstances in which they were made, and the applicable requirements resulting from the Court’s prior jurisprudence, none can properly be regarded as constituting a “genuine attempt”to negotiate, such that the precondition is not satisfied and the ICAO Council was without jurisdiction.1.11This Reply consists ofsixchapters and is accompanied by onevolume of supporting documents.25QCM(A), Chapter 4, Section Iheading.26Ibid., paras 4.6-4.7 and 4.29. 27Ibid.,para. 4.29.28Application 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, p.133, para.159 (emphasis added).
9
1.12 Chapter II addresses the assertion in Qatar’s Counter-Memorial that
the Appellants’ “real dispute” argument is “an artifice for escaping scrutiny of
their aviation prohibitions”29. Its focus is on rebutting Qatar’s denials and
contradictions in respect of the breach by Qatar of its obligations under
international law, including in particular the 2013–14 Riyadh Agreements.
Those obligations consist, inter alia, of its express obligations to refrain from
supporting extremism and terrorism, to withdraw its support of the Muslim
Brotherhood, to cease the use of Al Jazeera as a platform for hate speech, and to
end all hostile Al Jazeera broadcasts against Egypt, particularly during the
period of exceptional instability from 2013 onwards. The Reply does not
address Qatar’s various counter-accusations against the Appellants, which are
baseless, and in any case wholly irrelevant to the issues before the Court; nor
does it address Qatar’s allegations as to breach by the Appellants of their
obligations, which form the merits of Qatar’s claims before the ICAO Council.
1.13 Chapter III addresses the first ground of appeal regarding lack of due
process. It concerns Qatar’s astounding argument that not following instructions
from capitals would have been a violation of due process. It also explains why
the Court should exercise its supervisory authority in respect of procedural
deficiencies in the Council’s adjudication of the claims submitted to it. The
Chapter discusses Qatar’s denial that the grave and widespread defects in the
procedure adopted by the ICAO Council mean that the Decision should be set
aside. Further it sets out why the Appellants cannot be held to have waived their
right to complain about those defects before the Court. The Appellants thus
invite the Court to set aside the Decision of the Council as a procedural nullity.
29 QCM(A), Chapter 2 heading.
101.14Chapter IVaddresses the second ground of appeal regarding the characterization of the real issuein disputeand the ICAO Council’s consequent lack of competence over the dispute between the Parties. It explainswhy the real issue in dispute does not concern “the interpretation or application” of the Chicago Convention and its Annexes, meaning that there is no jurisdiction. Italso addresses Qatar’s denial that the claims are, nevertheless, inadmissible, as the aviation aspects cannot be severed from the broader dispute. Further,it explains why, in any event, the suggestion by Qatar that the Council does not have to decide (at least in full) the question of countermeasures should be rejected by the Court.The Chapter concludesthat the Court should find either that the ICAO Council lacks jurisdiction or, in the alternative, that the claim is inadmissible because it would be judicially improper for the Council to determine it.1.15Chapter Vaddresses the third ground of appeal regarding the precondition of negotiation. It explains why Qatar is wrongto assert that the precondition of negotiations has been satisfied.It sets out why, as a matter of law, without a “genuine attempt” to negotiate first being made, it is not possible to satisfy the preconditioneven where the disputing Party considers that anysuch attempt would be futile. Itfurtheraddresses why Qatar is wrong to suggest, as a matter of fact, that it complied with the precondition. In addition, the Chaptersets outwhy, in the alternative,Qatariswrong to deny that its claims are inadmissible as a result ofitsnon-compliance with Article 2(g) of the ICAO Rules for the Settlement of Differences(ICAO Rules).The Chapter concludes that the Court should hold that the ICAO Council is without jurisdiction due to Qatar’s failure to comply with the precondition of negotiations and, in any event, find that Qatar’s claim is inadmissible due to its failure to comply with the relevant procedural rules.
11
1.16 Chapter VI contains a short summary of the Appellants’ reasoning.
The Reply concludes with the Appellants’ Submissions.
12CHAPTERIITHE REAL ISSUE IN DISPUTE2.1This Chapter responds to Qatar’s assertions in Chapter 2 of its Counter-Memorial regarding the issues that comprise the real dispute between the Parties. Contrary to its position before the ICAO Council that it would only address the issue of countermeasures at the merits stage of the proceedings30,“Qatar [now] 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”31.Further, Qatar maintainsthat the countermeasures taken by each of the Appellants in reaction to Qatar’s breaches of these obligations (which Qatar denies) were “unjustifiable”32.2.2It is therefore odd that Qatar should go on to allegethat the Appellants’ position as to the implications of this dispute for the competence of the ICAO Council—the “real dispute” preliminary objection—is “an artifice for escaping scrutiny of their aviation prohibitions”33.And in fact, as set forth below, Qatar’s response on the elements of the dispute is most notable for its failure adequately to address the assertions raised by the Appellants in the Memorial. Qatar has pursued a strategy of deflection, by making baseless accusations against the Appellants that are wholly irrelevant to the question before the Court, which is 30BESUM, Vol. IV, Annex 25, 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) and its Exhibits, 30April 2018, (ICAO Response to the Preliminary Objections), paras75–77.31QCM(A), para. 3.37.32Ibid., para. 2.3.33Ibid.,Chapter 2 heading.
13
that the civil aviation restrictions adopted by the Appellants are merely part of a
set of countermeasures, which were in turn adopted in the context of a broad
dispute that is wholly unrelated to civil aviation. By contrast with Qatar’s
strategy, this Chapter focuses on responding to those issues that properly belong
to the real issue in dispute between the Parties.
2.3 To be clear, the Appellants are not required to respond to any of these
factual matters, since Qatar has admitted that there does in fact exist a dispute
between the Parties which goes well beyond civil aviation and relates to matters
different from civil aviation34. Nevertheless, the Appellants are constrained to
correct some of the most egregious inaccuracies (to put the matter at its lowest)
set out in Qatar’s Counter-Memorial. Section 1(A) highlights Qatar’s failure to
address its responsibility for supporting extremist and terrorist groups and its
interference in the affairs of other States. The Counter-Memorial confirms that
Qatar has no convincing answer to the Appellants’ claims as to its violations of
these obligations, whether arising under the Riyadh Agreements or under
general international law. Sections 1(B) to 1(D) set out specific responses to
the most important of Qatar’s denials of breach of its international law
obligations. It focuses on Qatar’s support for terrorism and extremism,
including its continued support for the Muslim Brotherhood, and its support for
hate-speech and interference in the internal affairs of other States, through the
use of State-owned or -controlled media outlets, notably Al Jazeera. Finally,
Section 2 responds briefly to certain aspects of Qatar’s patently inaccurate
characterization of the airspace restrictions and the contingency measures
adopted by the Appellants. These restrictions were adopted by the Appellants as
legally justified and proportionate countermeasures in response to Qatar’s prior
34 Ibid., para. 3.37; see below, para. 4.2.
14wrongful conduct, while fully preserving the safety of civil aviation. In so doing, the Appellants note that the scope and legality of the airspace restrictions under the Chicago Convention are matters goingto the meritsof Qatar’s claims to the ICAO Council, and thus are not for the Court to determine inthe present proceedingsin any case.Section 1.Qatar’s manifest violations of the Riyadh Agreements and other international law obligationsA.THE REAL DISPUTE BETWEEN THE PARTIES CONCERNS QATAR’SVIOLATIONS OF THE RIYADH AGREEMENTSAND OTHER INTERNATIONAL LAW OBLIGATIONS2.4In their Memorial, the Appellants explained how Qatar’s conduct in violation of its international law obligations—in particular its support for a variety of extremist and terrorist groups and its intervention in theaffairs of other States—resulted in the adoption of various measures against Qatar, including the imposition of the airspace restrictions beginning on 5 June 201735.Those measures were adopted to induce Qatar to comply with its obligations and constitute valid countermeasures. Itssupport for extremism and terrorism,and its interference in the affairs of other States,arethus at the heart of the dispute between the Parties.2.5Paramount among the relevant international law obligations binding upon Qatar were those set out in the Riyadh Agreements36. While (or perhaps 35BESUM, Chapter II, particularly, paras 2.10-2.16, 2.34-2.46 and 2.48-2.50 detailing Qatar’s Support for extremist and terrorist groups; paras 2.51-2.55 detailing the measures adopted by the Appellants to induce Qatar’s compliance with its obligations.As to the particular international law obligations, see, ibid.,para. 2.37.36BESUM, Vol. II, Annex 19, First Riyadh Agreement, 23 and 24 November 2013, Accession of the Kingdom of Bahrain and the United Arab Emirates to the Riyadh Agreement, 24 November 2013; BESUM, Vol. II, Annex 20, Implementing Mechanism, 17 April 2014; BESUM, Vol. II, Annex 21, Supplementary Riyadh Agreement, 16 November 2014. See also, BESUM, paras 2.17-2.32.
15
because) these Agreements are critical to understanding the real dispute
between the Parties, Qatar almost entirely ignores them in its Counter-
Memorial37. These Agreements, however, were entered into precisely in an
attempt to resolve disputes between Qatar and other members of the Gulf
Cooperation Council (GCC), including in particular as regards Qatar’s conduct
with respect to Egypt. The Riyadh Agreements contain express and specific
obligations, which bear repetition38, including: non-interference in the internal
affairs of the other parties39; cessation of support for individuals or groups
inciting violence or hatred towards GCC States40; prohibiting persons inciting
violence or hatred towards GCC States from using State-controlled media as a
platform for expressing their views41; banning organizations or groups seeking
to undermine the stability of GCC States, such as terrorist or extremist groups42;
cessation of support for the Muslim Brotherhood and deportation of Muslim
Brotherhood figures who are not citizens of the State43; cessation of efforts to
weaken the security and stability of Egypt, including by ensuring that Al
Jazeera, particularly its Arabic language channels, cease airing antagonistic
media content directed against Egypt44; and cessation of support for political or
37 See, e.g. QCM(A), paras 2.43-2.46 and 2.52.
38 See also, BESUM, paras 2.17-2.32.
39 BESUM, Vol. II, Annex 19, First Riyadh Agreement, 23 and 24 November 2013,
Art. 1.
40 Ibid, Arts. 1 and 2.
41 BESUM, Vol. II, Annex 20, Implementing Mechanism, 17 April 2014, Art. 1.
42 Ibid., Art. 1(b), (c) and (d).
43 Ibid., Art. 2(a) and (b).
44 BESUM, Vol. II, Annex 21, Supplementary Riyadh Agreement, 16 November 2014,
Art. 3(d).
16militia groups in Yemen, Syria or any other country lacking political stability if such groups pose a threat to the security and stability of GCC States45.2.6The Riyadh Agreements called upon Qatar to cease these activities and set up implementation mechanisms to monitor its conduct,through which the GCC States would meet to discuss complaints of non-compliance46.Theimplementation mechanisms also reinforcedother standing obligations in international law47.The Riyadh Agreements also established that, in the event of theirviolation by a party, each of the other parties would have the right to take any appropriate measures to protect their security and stability. This right is set forth in the following unqualified terms:“If any country of the GCC Countries fail[s]to comply with this mechanism,the other GCC Countries shall have the right to take an[y]appropriate action to protect their security and stability.”482.7Thus, Qatar wason notice that its compliance with the Riyadh Agreements would be continuously monitored;and Qatar had given advance consent to the other parties takingappropriate action against it if it failed to live up to its commitments. The latter element is of course unusual in treaty practice, which bears out the extraordinary nature of the circumstances that the provision addressed. And the right which it sets forth—“to take an[y]appropriate action”—is capacious, encompassing the customary law entitlement 45BESUM, Vol. II, Annex 19, First Riyadh Agreement, 23 and 24 November 2013, Art.3; BESUM, Vol. II, Annex 20, Implementing Mechanism, 17 April 2014, Art.2(c).46BESUM,Vol.II, Annex20, Implementing Mechanism, 17April 2014.47BESUM, paras 2.28, 2.37, 2.44 and 2.49. 48BESUM, Vol. II, Annex 20,Implementing Mechanism, 17April 2014,Art.3(emphasis added).
17
to countermeasures but also going beyond it. Furthermore, the
“appropriate[ness]” of the “action” to be taken is left to be judged by the State
taking it.
2.8 While Qatar acknowledges that the Riyadh Agreements are legally
binding49, Qatar’s Counter-Memorial confirms its purported repudiation of
these obligations50, including on the basis that the Appellants’ insistence that
Qatar live up to its obligations constitutes an imposition on its “sovereignty”51.
Qatar claims, for example, that Al Jazeera does not incite violence and that it
has no control over the content of its broadcasts52. But it does not explain why,
if Qatar indeed had no control over Al Jazeera, Qatar specifically committed to
“ceasing all media activity directed against the Arab Republic of Egypt in all
media platforms, whether directly or indirectly, including all the offenses
broadcasted on Al-Jazeera, Al-Jazeera Mubashir Masr, and to work to stop all
offenses in Egyptian media”53. Qatar insists similarly that the Muslim
49 QCM(A), para. 2.52, note 144.
50 See also, BESUM, para. 2.47. Qatar’s only response to the Appellants’ reliance on its
letter of 19 February 2017 repudiating its obligations under the Riyadh Agreements
is to quibble with an immaterial aspect of the translation: QCM(A), para. 2.52,
note 144. The Appellants are content to accept the revised translation proposed by
Qatar (QCM(A), Vol. III, Annex 40). As is clear on either translation, Qatar
considered that the Riyadh Agreements were no longer relevant, were not in keeping
with the principles of the GCC, and that they were now “moot”, and as such, it called
for their termination. Qatar even called for an amendment of the GCC Charter. Seen
in light of Qatar’s continued thwarting of its obligations under the Riyadh
Agreements, this letter was viewed by the Appellant States as amounting to a
repudiation of its obligations under those Agreements.
51 QCM(A), para. 2.52; citing BESUM, Vol. IV, Annex 25, ICAO Response to
Preliminary Objections, Exhibit 40, Foreign Minister: Any Threat to Region is Threat
to Qatar dated 6 July 2017.
52 QCM(A), paras 2.54–2.56.
53 BESUM, Vol. II, Annex 21, Supplementary Riyadh Agreement, 16 November 2014,
Art. 3(d).
18Brotherhood is a legitimate political organization54. Again, Qatar fails to explain why it specifically committed to providing “[n]o support to the Muslim Brotherhood, whether financially or through media”55and likewise no support to “any of the organizations, groups or individuals that threaten the security and stability of the Council states”56.2.9Norhas Qatar responded to the irrefutable evidence provided by the Appellantsdemonstrating their disagreements with Qatar over its failure to adhere to the commitments laid out in the Riyadh Agreements, which culminated in the measures adopted on 5 June 2017. This evidence includes, inter alia, the withdrawal of the Appellants’ ambassadors from Qatar in February and March 2014 due to their belief that Qatarwas gravely failing to comply with its obligations under the Riyadh Agreements57; the agreed minutes from several meetings held in July and August 2014 between Qatar and the other signatories of the Riyadh Agreements,in which Qatar’s broken promises to implement the agreements were again raised58; and the evidence that Qatar called for the termination of the Riyadh Agreements and the renegotiation of the GCC Charter in February 201759.54QCM(A), para. 2.55.55BESUM, Vol. II, Annex20,Implementing Mechanism, 17 April 2014, Art. 2(a)-(b). 56BESUM, Vol. II, Annex 19, First Riyadh Agreement, 23 and 24 November 2013, Art.2. 57BESUM, paras 2.20-2.21.58See BESUM, para. 2.27; BESUM, Vol. V, Annex 64, Fourth Report of the Follow-up Committee on the Implementation of the Riyadh Agreement Mechanism, 15 July 2014; BESUM, Vol. V, Annex 65, Summary of Discussions in the Sixth Meeting of their Highnesses and Excellencies the Ministers of Foreign Affairs, Jeddah, 30August 2014.59BESUM, para. 2.47; BESUM, Vol. V, Annex 72,Letter of 19 February 2017 from the Minister of Foreign Affairs of the State of Qatar to the Secretary-General of the GCC; QCM(A), Vol. III, Annex 40, Letter from Mohamed Bin Abdul Rahman Bin
19
2.10 For instance, in the July 2014 meeting of the Implementation
Committee, the UAE representative complained that the “State of Qatar did not
implement the basic provisions of the Riyadh Agreement . . . whereas the
Muslim Brotherhood has not been deported, in fact they are being received,
honored and provided with financial and moral support”60; while Bahrain called
on Qatar to cease its support for Al Qaeda and affiliates61. On the contentious
issue of Qatar naturalizing dissident citizens of other GCC States in order to
shield them from extradition or other legal measures, the representative of
Bahrain complained that “the naturalization continues, in fact more
increasingly” and called on Qatar to “immediately stop” that practice62. The
minutes from a subsequent meeting held between the Foreign Ministers of the
GCC States in August 2014, following yet another round of diplomacy, record
Qatar’s further, empty promises, to mend its ways63. Yet these efforts were all
for naught.
2.11 Since Qatar is unable to refute this evidence, it instead chooses to
ignore it almost entirely in its Counter-Memorial64. It further seeks to downplay
and mischaracterize the significance of its obligations under the Riyadh
Agreements and the other international law obligations with which it was
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). See also, note 50,
above.
60 BESUM, Vol. V, Annex 64, Fourth Report of the Follow-up Committee on the
Implementation of the Riyadh Agreement Mechanism, 15 July 2014.
61 Ibid.
62 Ibid.
63 BESUM, Vol. V, Annex 65, Summary of Discussions in the Sixth Meeting of their
Highnesses and Excellencies the Ministers of Foreign Affairs, Jeddah, 30 August
2014.
64 QCM(A), para. 2.51.
20required to comply, maintainingthat the “Appellants are not genuinely concerned about Qatar’s (non-existent) support for terrorism or interference in their internal affairs”65.2.12In addition, Qatar further attempts to argue that the Appellants’ allegations as to its support for terrorism and extremism have “been rejected by the international community at large”66.IfQataris to be believed, it is recognized as a “global leader in anti-terrorism cooperation”67and commended for its “leadership role in countering terrorism and extremism”68.For all that,Qatar concedes, as it must,that there is a dispute as to its compliance vel nonwith the legally binding obligation set out in the Riyadh Agreements69.2.13In stark contradiction to Qatar’s denials, the Appellants’ Memorial establishes that Qatar remains in breach of virtually all the specific obligations established under the Riyadh Agreements. For instance, Qatar notably has failed to prosecute or extradite designated terrorists living in and operating from Qatar, including Yusuf Al-Qaradawi70. It has supportedopenly the Muslim Brotherhood and underminedEgypt’s stability71,including by providing the 65Ibid., para. 2.25.66Ibid., para. 2.25.67Ibid., para. 2.41.68Ibid., para. 2.26.69Ibid., para. 3.37.70BESUM, Vol.V, Annex68, Note Verbale from the Embassy of the Arab Republic of Egypt in Doha to the Ministry of Foreign Affairs of the State of Qatar, Extradition Request concerning Yusuf Abdullah Aly Al-Qaradawi, 21February 2015; BESUM, Vol.VI, Annex118, “Amir Hosts Iftar banquet for scholars, judges and imams”,Gulf Times, 30 May 2018; Reply of Bahrain, Egypt, Saudi Arabia and United Arab Emirates[BESUR], Vol. II,Annex31,A.Gennarelli, “Egypt’s Request for Qatar’s Extradition of Sheikh Yusuf Al-Qaradawi”, Center for Security Policy, 27May 2015.71See e.g.,the Egyptian Court of Cassation judgment confirming that, between 2011 and 2013, former President Morsi and other leaders of the then Muslim Brotherhood
21
Muslim Brotherhood with a platform on Al Jazeera72. Moreover, Qatar’s
continued funding of extremist groups operating in Syria, Libya and other
locations—whether directly, through the making of ransom payments, or
indirectly—stands in direct violation of its undertaking to cease support for
“militia groups” in any country lacking political stability.
2.14 In short, it should now be beyond contention both that there is a
dispute as to Qatar’s failure to meet its international law obligations, including
under the Riyadh Agreements, and that it constitutes the real issue in dispute
between the Parties, and the subject-matter of that dispute, as is set out in
Chapter IV.
B. QATAR’S UNLAWFUL SUPPORT FOR TERRORISM AND EXTREMISM
2.15 Qatar’s claim that “. . . all of Joint Appellants’ allegations about
Qatar’s alleged ‘support of terrorism and extremism’ are false”73 cannot be
reconciled with widely and publicly available evidence. It is irreconcilable also
with a considerable body of evidence that is highly sensitive and therefore not
in the public domain.
2.16 Qatar has no answer to the numerous reputable sources that have
concluded that it supports terrorism and extremism, as set out in detail in the
Government were paid by Qatari intelligence agents to disclose military and secret
information relating to Egypt: BESUM, Vol. VII, Annex 137, 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.
72 BESUR, Vol. II, Annex 26, Video Excerpt of Gamal Nassar, Al-Jazeera Television,
17 August 2013; BESUR, Vol. II, Annex 17, Video Excerpt of Muhammad Salim
Al-Awa, Al-Jazeera Television, 16 September 2010; BESUR, Vol. II, Annex 20,
Video Excerpt of Asim Abdul Majid, Al-Jazeera Television, 25 June 2013.
73 QCM(A), para. 2.41.
22Appellants’ Memorial74. Indeed, it is no secret that Qatar was implicated in widespread support for and funding of extremismand terrorism75.Even after agreeing to itsobligationsin the Riyadh Agreements,Qatar has persisted inits support forAl-Qaida, its Syrianbranch Al-Nusra Front, ISIL (Da’esh), the Muslim Brotherhood, Hamas and various Iranian-backed militias and extremist groups operating in Syria, Libya, Egyptand other States76. Those reports also 74BESUM, paras 2.11-2.15, 2.19, 2.36-2.39, 2.48-2.50; see also, BESUR, Vol. II, Annex28,“German minister accuses Qatar of funding Islamic State fighters”, Reuters, 20August 2014, (Statement by German Minister for International Development, Gerd Müller: “You have to ask who is arming, who is financing ISIS troops. The keyword there is Qatar”.); BESUR, Vol. II, Annex43, “Qatar accused of financing Muslim Brotherhood activities in Europe”, The Arab Weekly, 29October 2017, (Belgian Member of Parliament Koen Metsu accused Doha of “allocating millions of dollars to Muslim Brotherhood activities in Europe” and using the Muslim Brotherhood in Europe as “its own pressure group to increase its power and influence among the Arab and Muslim communities”).75See e.g.,BESUR, Vol. II, Annex21,M. Mazzetti, C. J. Chivers and E. Schmitt, “Taking Outsize Role in Syria, Qatar Funnels Arms to Rebels”, The New York Times,29June 2013; BESUM, Vol.VII, Annex133,United States Department of Treasury Press Release, “Treasury Designates Al-Qa’ida Supporters in Qatar and Yemen”, 18December 2013; BESUR, Vol. II,Annex24,J.Schanzer, “Confronting Qatar’s Hamas Ties”, Politico, 10July 2013.76See BESUM, paras 2.11-2.15, 2.19, 2.36-2.39, 2.48-2.50; BESUM, Vol. VI, Annex 106, E.Dickinson, “How Qatar Lost the Middle East”, Foreign Policy, 5 March 2014; BESUM, Vol. III, Annex 24, ICAO Preliminary Objections, 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 TerroristFinancing”, 4 March 2014; BESUR, Vol. II, Annex18,“Hamas political leaders leave Syria for Egypt and Qatar”, BBC News, 28 February 2012; BESUR, Vol. II, Annex37,J. S. Block, “Qatar is a financier of terrorism. Why does the U.S. tolerate it?”, Los Angeles Times, 9 June 2017 (“One week after welcoming U.S. Defense Secretary Jim Mattis in April, Qatar hosted a conference by Hamas. The Al-Thani family is a major backer of the terrorist organization, pouring millions every year into the Gaza Strip to cement Hamas’ grip on power. Last yearalone, Qatar transferred $31 million to Hamas, and the country is expected to pledge an additional $100 million to Gaza.”); BESUM, Vol.III, Annex24, ICAO Preliminary Objections, 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”, 4 March 2014 (“But a number of fundraisers operating in more permissive jurisdictions –particularly in Kuwait and Qatar–are soliciting donations to fund extremist insurgents, not to meet legitimate humanitarian needs. The recipients of these funds are often terrorist groups, including
23
reveal that Qatar has continued to give sanctuary to dangerous extremists listed
on United Nations and other terrorist sanctions lists77. In Syria, in particular,
Qatar supported a range of extremist and terrorist groups, including ISIS and
the Al-Nusra Front78.
2.17 Further, Qatar has reportedly distributed to extremist groups millions
of dollars raised by Qatar-based “charities”79; and paid very large sums to
al-Qa’ida’s Syrian affiliate, al-Nusrah F ront, a nd t he I slamic S tate o f I raq a nd t he
Levant (ISIL), the group formerly known as al-Qa’ida in Iraq (AQI).”) (emphasis
added); BESUR, Vol. II, Annex 46, C. Coughlin, “White House calls on Qatar to
stop funding pro-Iranian militias”, The Telegraph, 12 May 2018 (“senior members of
the Qatari government are on friendly terms with key figures in Iran’s Revolutionary
Guard”); BESUR, Vol. II, Annex 40, “Egypt: Qatar is the main funder of terrorism
in Libya”, Asharq Al-Awsat, 28 June 2017 (“Ambassador Tariq Al-Kouni, Deputy
Foreign Minister for Arab Affairs [of Egypt], said that Qatar is the main financier to
terrorist groups and organizations in Libya . . . During a meeting that was held
yesterday ( Tuesday) i n N ew Y ork . . . with the participation of all UN Member
States, Al-Kouni outlined the forms of support that Qatar granted to terrorism in
Libya, and pointed out the impact of terrorism on the situation in Libya which has
become a safe haven for terrorism.”); BESUR, Vol. II, Annex 42, “New Human
Rights Report Accuses Qatar of ‘Harbouring Terrorism in Libya’”, Asharq Al-Awsat,
24 August 2017.
77 BESUM, Vol. III, Annex 24, ICAO Preliminary Objections, 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 on
3 February 2016; BESUR, Vol. II, Annex 45, “‘Wanted Terrorist’ finished second in
Qatar triathlon”, The Week, 28 March 2018.
78 BESUR, Vol. II, Annex 38, “Al-Nosra, the Qatari Terrorist Arm in Syria”, Sky News
Arabia, 17 June 2017; BESUR, Vol. II, Annex 21, M. Mazzetti, C. J. Chivers and
E. Schmitt, “Taking Outsize Role in Syria, Qatar Funnels Arms to Rebels”, The New
York Times, 29 June 2013; BESUR, Vol. II, Annex 37, J. S. Block, “Qatar is a
financier of terrorism. Why does the U.S. tolerate it?”, Los Angeles Times, 9 June
2017 (“Qatar has channeled weapons and money to Islamist rebels, notably to the
notorious organization Ahrar al-Sham, which has known ties to Al Qaeda. Far from
being a force of moderation, Ahrar al-Sham has fought alongside Jabhat al-Nusra,
also known as Al Qaeda in Syria.”).
79 BESUR, Vol. II, Annex 29, T. Ross, R. Mendick and A. Gilligan, ‘Charity
Commission: British charities investigated for terror risks’, The Telegraph,
1 November 2014 (“Analysts fear that millions of dollars of so-called charitable
24terrorist and extremist groups as “ransom” (whether genuine or concocted) for the release of hostages80.Notably,in April 2017, it was widely reported that Qatar paid US$1 billion as a “ransom” to entities affiliated with known terrorist organizations, including Al Qaeda81. In its Counter-Memorial, Qatar’s response to this is once again deceptive, saying simply that “the funds in question were received by the Government of Iraq, which still had possession of them”82.The Iraqi Prime Minister Haider al-Abadi, however,has stated that the funds were “brought in without the approval of the Iraqi government”,were intendedfor “armed groups”;and that the moneyhad been “seized” by Iraqi authorities83. In any case, Qatar has not responded to the publicly released exchange of text messages showing that payments were madeto these groups84.2.18Qatar’s support for extremist groups in Libya sincethe events of 2011 has been repeatedly pointed out by numerous sources85. Likewise, theUnited donations raised inside Qatar and Kuwait have been used to buy weapons and supplies for jihadists in Iraq and Syria.”).80BESUR, Vol. II, Annex36, E. Solomon, “The $1bn hostage deal that enraged Qatar’s Gulf rivals”, The Financial Times,5 June 2017.81BESUM, Vol.VI, Annex120, P.Wood, “‘Billion Dollar Ransom’: Did Qatar Pay Record Sum?”, BBC, 17 July 2018.82QCM(A), para. 2.40.83BESUR, Vol. II, Annex35, “Abadi: Iraqi government is ‘holding’ Qatari ransom money”, Al Araby, 25 April 2017.84BESUM, para. 2.48; BESUM, Vol. VI, Annex 117, J. Warrick, “Hacked Messages Show Qatar Appearing to Pay Hundreds of Millions to Free Hostages”, The Washington Post, 28 April 2018; BESUM, Vol. VI, Annex 121, “Hacked Phone Messages Shed Light on Massive Payoff that Ended Iraqi Hostage Affair”, The Washington Post (undated).85BESUR, Vol. II, Annex50,E. Chorin, “Libya’s Perpetual Chaos”,Foreign Affairs,19April 2019; BESUR, Vol. II, Annex40,“Egypt: Qatar is the main funder of terrorism in Libya”, Asharq Al-Awsat, 28 June 2017; See alsoBESUR, Vol. II, Annex42,“New Human Rights ReportAccuses Qatar of ‘Harbouring Terrorism in Libya’”, Asharq Al-Awsat, 24August 2017 (“The latest Libyan human rights report accused the State of Qatar of supporting terrorism. The report prepared by the Libyan
25
States Government has requested Qatar to cease funding and supporting Iranbacked
extremist militias in the region86.
2.19 It is thus impossible to credit Qatar’s denials of its continuing support
for terrorist and extremist groups that threaten the stability of the Middle East
and North Africa (MENA) region87.
C. QATAR’S UNLAWFUL SUPPORT FOR THE MUSLIM BROTHERHOOD
2.20 Qatar undertook in the First Riyadh Agreement the unambiguous
obligation to provide “no support to the Muslim Brotherhood”88 and in the
‘Justice First’ Organization, which is headquartered in Cairo, mentioned that it has
put all its reports and information on the Libyan entities and individuals on the list of
Arab countries at the disposal of the counterterrorism authorities.”). Qatar’s support
for extremist groups in Libya has also threatened Egypt’s security to the west.
Qatar’s only response is to suggest unconvincingly that, in being the only State to
reject the Arab League resolution of 18 February 2015 (condemning ISIL’s
beheading of 21 Egyptian Coptic Christians in Libya): see BESUM, Vol. V,
Annex 67, Press Release of the Arab League, “Consultative Meeting of the Council
of the League at the level of Permanent Representatives on the condemnation of the
barbaric terrorist act which killed twenty-one Egyptian citizens by ISIS in Libya”,
18 February 2015, para. 2), it was motivated by “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” (QCM(A),
para. 2.39). In other words, Qatar maintains that the recognized, legitimate
authorities in Libya—which, as the Council of the Arab League acknowledged,
supported Egypt’s right of self-defence—should have been treated as an equal party
to ISIL (Da’esh) in the Libyan civil war.
86 BESUR, Vol. II, Annex 46, C. Coughlin, “White House calls on Qatar to stop
funding pro-Iranian militias”, The Telegraph, 12 May 2018 (“The Trump
administration has called on Qatar to stop funding pro-Iranian militias following
revelations about the Gulf state’s dealings with terror groups in the Middle East. US
security officials have expressed concern about Qatar’s links to a number of Iraniansponsored
militias, many of them regarded as terrorist organisations by
Washington.”).
87 QCM(A), paras 1.16, 2.1, 2.23 and 2.26.
88 BESUM, Vol. II, Annex 19, First Riyadh Agreement, 23 and 24 November 2013,
Art. 2.
26Implementing Mechanism “[n]ot to support [the] Muslim Brotherhood with money or via media in the GCC Countries or outside”89.2.21In their Memorial, the Appellants provided extensive evidence that Qatar “continued to embrace the organization, including by providing itsleader Yusuf Al-Qaradawi with a platform for hate speech and incitement on Al Jazeera”90. Qatar’s evasive responses to this evidence and its defence of the Muslim Brotherhood are telling. In fact, Qatar does not deny its violation of these obligations. Instead, it tries to deflect attention from them, even as it continues to support and promote the ideology of the Muslim Brotherhood throughout the world91.For example, Qatar seems to suggest that because the Muslim Brotherhood is not a “UN-designated terrorist organisation, or listed as such in the GCC terrorist organisations list”, Qatar was entitled to support it and to provide it with a media platform through Al Jazeera, flatly ignoring its obligations under the Riyadh Agreements92.2.22In addition, Qatar seeksto deflect attention from its harbouring and providing a platform for Yusuf Al-Qaradawi, the spiritual leader of the Muslim Brotherhood.Qatarseeksto legitimize him as a respected “Sunni theologian”93facing “baseless” accusations94,downplaying his closeand long-standing 89BESUM, Vol. II, Annex 20,Implementing Mechanism, 17 April 2014, Art. 2(a).90BESUM, para. 2.19.91See, e.g. BESUR, Vol. II, Annex49,“How Qatar funds Muslim Brotherhood expansion in Europe”, Gulf News, 17 April 2019. 92QCM(A), para. 2.55.93Ibid., para. 2.46.94In regard to Qatar’s assertionthat the accusations against Al-Qaradawi are “baseless” (QCM(A), para.2.46), the Appellants note that Interpol issued its Red Notice against Al-Qaradawi in response to an Egyptian arrest warrant: BESUR, Vol. II, Annex54,Interpol Red Notice for Yousf AlQaradawi, 20November 2014(Redacted). Shortly thereafter Iraq also issued an arrest warrant against Al-Qaradawi for inciting the
27
relationship with the Emir of Qatar95, and ignoring his long history of preaching
the most vile hate speech96. Qatar further omits to mention that in December
2014, shortly after the conclusion of the Riyadh Agreements, Al-Qaradawi and
his Doha-based International Union of Muslim Scholars were expelled from the
International Islamic Council for Da’wa and Relief for mixing religion with
politics97. That Qatar will not condemn Al-Qaradawi merely confirms its
support for the Muslim Brotherhood’s extremist ideology, notwithstanding its
explicit commitment to cease such support in the Riyadh Agreements.
assassination of Iraqi Prime Minister Nouri Al-Maliki on Al Jazeera. In September
2017, Interpol confirmed the validity of the Red Notice but it was suddenly annulled,
shortly before submission of the Appellants’ Memorial. Egypt protested this arbitrary
decision, and requested reinstatement of the Red Notice, consistent with the January
2015 judgment in absentia of the Egyptian courts that Al-Qaradawi acted “to create
chaos in the country, bring down the state with its associations, train armed elements
to carry out hostile acts in the country, attack and assault police stations and prisons
and free prisoners”, see: BESUR, Vol. II, Annex 55, Public Prosecution, Office of
the Attorney General of Egypt, “Request to Reconsider the Decision of the
Commission for t he C ontrol o f I NTERPOL’s F iles ( CCF) i ssued o n t he 1 7th o f
October 2018, in Session No. 106, according to provisions of Article 42 of the statute
of the Commission regarding the Egyptian sentenced: Yusuf Al-Qaradawi under
extradition No. 22 of 2014 (International Cooperation Bureau)”, 9 March 2019. Qatar
also refers (QCM(A), para. 2.47) to the pre-trial remand of Al-Qaradawi’s daughter,
Ola Qaradawi, and her husband, pursuant to an arrest warrant of 30 June 2017. But
Qatar conspicuously fails to mention the serious crimes of which they were accused,
which include financing terrorism using resources from foreign parties (namely,
Qatar), joining the Muslim Brotherhood and attacking State institutions, all during a
period in which Ms Qaradawi was employed at the Qatari embassy in Cairo. Their
detention has been repeatedly reviewed and approved by Egyptian courts: BESUR,
Vol. II, Annex 41, “Egypt: Qaradawi’s Daughter, Son-in-Law Jailed for Financing
‘Brotherhood’”, Asharq Al-Awsat, 4 July 2017; BESUR, Vol. II, Annex 48, “Egypt
remands dissident cleric’s daughter for 45 days”, BBC News, 18 March 2019.
95 BESUM, para. 2.34; BESUM, Vol. VI, Annex 118, “Amir Hosts Iftar banquet for
scholars, judges and imams”, Gulf Times, 30 May 2018; BESUM, Vol. VI,
Annex 119, D. McElroy, “US Advisers Quit Qatar Role as Emir Dines with Muslim
Brotherhood Leader”, The National, 7 June 2018.
96 As i s e xtensively detailed in the Appellants’ Memorial, BESUM, para. 2.19; and
below, paras 2.27-2.29.
97 BESUR, Vol. II, Annex 30, “Islamic Council for Da’wa and Relief cancels
Qaradawi’s Membership”, Egypt Independent, 9 December 2014.
282.23Nordoes Qatar have any response to the 2017 Judgment of the Court of Cassationof Egyptin the case of Morsi and others v.Public Prosecution98detailing numerous instances where Qatari intelligence operatives and Al Jazeerastaff made substantial payments to senior Muslim Brotherhood officials to obtain documents containing State secrets99. The Counter-Memorial has nothing to say about the substanceof this evidence of grave intervention in the internal affairs of Egypt100. Qatar’s espionage was focused on obtaining detailed information on (among other topics) Egyptian military positions and capabilities in the Sinai Peninsula101,corresponding to information later broadcast on Al Jazeeraamidst a terrorist insurgency in the Sinai Peninsula102.98BESUM, Vol.VII, Annex137,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 2017.99BESUM, Vol.VII, Annex137,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, p. 10.100Qatar merely questions the “quality of evidence” without providing any explanation whatsoever. It also questions the impartiality of the trial, asserting that President el-Sisi has the power to select judges based on a new Egyptian law: QCM(A), para.2.50.Qatar fails to mention however, that noneof the judges presiding in that case where appointed by the President of Egypt. The evidence relied on byQatar itself makes clear that the new law permitted the Egyptian President to appoint only the Chief Justice of the Court of Cassation (which he must choose from three nominees put forward by the Supreme Judiciary Council) and the head of the State Council (the chief justice of the Supreme Administrative Court) from among three nominees put forward by the State Council’s general assembly:QCM(A), Vol.IV, Annex119, “The Battle over Appointing Judges in Egypt”, Carnegie Endowment for International Peace, 16January 2018. It further bears noting that the Court of Cassation and the State Council are entirely separate from the High Court of Appeals (Criminal Circle) which was the court of first instance in Public Prosecutor v Morsi and others.101BESUM, Vol.VII, Annex137,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, pp. 34 and 42.102BESUR, Vol. II, Annex47,Video Excerpt “Zero Distance”,Al-Jazeera Television,29 July 2018 and 5 August 2018.
29
Moreover, Muslim Brotherhood leaders have supported this insurgency103,
notwithstanding the numerous atrocities committed against civilians, such as
the massacre of 305 worshippers at Al-Radwa Sufi Mosque in the Sinai
Peninsula on 24 November 2017104.
2.24 Another instance of Qatar’s overt support of the Muslim Brotherhood
is its portrayal of armed extremists inciting jihad against the Egyptian
Government in Raba’a Square during August 2013 as “peaceful protestors”105.
In the days preceding the violent clash in Raba’a Square and other locations in
Egypt, Al Jazeera gave blanket coverage to speeches by extremists including,
for example, the notorious Muslim Brotherhood leader, Asim Abdul Majid, on
25 June 2013, calling for “Upper Egypt” to raise an army of “a hundred
thousand men” against the opponents of an “Islamist revolution”, including
secularists, Marxists, Jews, and Coptic Christians, and threatening that the
Government would be “burnt by Upper Egypt”106. The Independent
Commission on the Events of 30 June 2013, headed by the respected former
Judge of the International Criminal Tribunal for the former Yugoslavia, Fouad
Riad, found that some of the purported protestors at Raba’a Square were in fact
armed with “different types of firearm, edged weapons, explosives, chemical
materials, and other materials”107; used civilians as human shields; and killed
103 BESUR, Vol. II, Annex 27, Video Excerpt of Mohamed El-Beltagy, Al-Jazeera
Television, 16 August 2014.
104 BESUR, Vol. II, Annex 44, “Egypt attack: IS flags carried by gunmen, say
officials”, BBC News, 25 November 2017.
105 QCM(A), para. 2.45.
106 BESUR, Vol. II, Annex 20, Video Excerpt of speech delivered by Asim Abdul
Majid, Al-Jazeera Television, 25 June 2013.
107 BESUR, Vol. II, Annex 53, “Findings of Fact-finding Report Issued by the
Independent National Commission on Events Concurrent with June 30th, 2013”,
11 March 2014, p. 10.
30numerous police and other security officers108. The Commission also described violence by Muslim Brotherhood supporters against CopticChristians, including the burning of 52 churchesand Christian facilities109.2.25As for Qatar’s claim that the Muslim Brotherhood is unobjectionable because Bahrain has not banned it as an organization110, this argument fails to address the substance of the Appellants’ complaint against the Muslim Brotherhood, which concerns theacts of extremism and incitement perpetrated by members of the Muslim Brotherhood.Bahrain has consistently opposed such actions by members of the Muslim Brotherhood, as indeed by any other organisation, and has called for Qatar to meet its obligations under the Riyadh Agreementsin this respect.D.QATAR’SUSE OF STATE-OWNED MEDIA AS A PLATFORM FOR HATE SPEECH AND EXTREMISM2.26Qatar undertook in the Riyadh Agreements to cease hostile Al Jazeerabroadcasts, including those promoting extremism and terrorism. Against these facts, Qatar’s assertionsin its Counter-Memorial that the Appellants “are not genuinely concerned about Qatar’s (non-existent)support for terrorism or interference in their internal affairs”, and that their real intention is “to force Qatar to abandon its commitment to freedom of expression and political tolerance”111,arecynical and disingenuous. Similarly, its assertions as to the “high regard” and “international esteem” in which Al Jazeerais held112, and its 108Ibid.,pp.10, 12, 18 and 21–22.109Ibid., p.23.110QCM(A), para. 2.55. 111Ibid., para. 2.25.112Ibid., para. 2.54.31“
31
“complete journalistic, editorial independence” are baseless113. Qatar also
ignores the significant differences between the English and Arabic Al Jazeera
channels, the latter of which have been the source of most of the objectionable
broadcasts in support of violent extremist groups114.
2.27 Far from being held in “international esteem”, as Qatar suggests, these
channels have, if anything, promoted hatred and violence. Examples of Al
Jazeera’s broadcasting include television broadcasts in which one of its most
prominent journalists openly expressed enthusiastic support for Al-Qaida’s
ideology, and an extended and highly favourable interview on Al Jazeera with
the Al Nusra Front leader Muhammad Al-Jolani that has been described as
Qatar’s “infomercial” for the terrorist group115. It is perhaps not surprising that
81% of respondents to an online Al Jazeera poll in 2015 indicated that they
supported ISIL (Da’esh)116.
2.28 The Counter-Memorial is also silent on Al Jazeera’s regular broadcasts
of the sermons of Al-Qaradawi. For example, as set out in the Appellants’
Memorial, Al-Qaradawi has on his show referred to the Holocaust as “divine
punishment” of the Jews117. Further, he openly prayed on Al Jazeera: “O Allah,
take this oppressive, Jewish, Zionist band of people, . . . do not spare a single
one of them. . . . [C]ount their numbers, and kill them, down to the very last
113 Ibid., para. 2.55.
114 BESUM, para. 2.42, and see also, below, paras 2.29-2.31.
115 BESUR, Vol. II, Annex 34, M. Fahmy, “The Price of Aljazeera’s Politics”, The
Washington Institute for Near East Policy, 26 June 2015.
116 BESUR, Vol. II, Annex 32, “Voting”, Al Jazeera, 28 May 2015.
117 BESUM, para. 2.19, citing BESUM, Vol. VI, Annex 101, Video Excerpt of Yusuf
Al-Qaradawi, Al-Jazeera Television, 28-30 January 2009.
32one”118.In yet another Al Jazeerabroadcast, asenior Muslim Brotherhood memberasserted that President el-Sisi is secretly Jewish and part of a “premeditated” conspiracy to destroy Egypt consistent with “[t]he Protocols of the Elders of Zion”, anotorious anti-Semitic forgery119.Al Jazeerahas also provided a platform for Al-Qaradawi and Muslim Brotherhood leaders to incite hatred and violence against CopticChristians, Egypt’s largest religious minority, demonizing them with accusations of anti-Islamic conspiracies120,including amassing weapons in churches in order to kill Muslims121.Notwithstanding the grave consequencesof this hate speech and incitement to violence, Qatarhas refused to terminate such broadcasts122.2.29Qatar’sCounter-Memorial also ignoresAl-Qaradawi’s Al Jazeeratalk show “Sharia and Life”—provided as a further example by the Appellants—in which he called on Muslims to become suicide bombers123.He has similarly declared that suicide bombings are not merely a “legitimate right”, but instead a“duty”124.118BESUR, Vol. II, Annex16,Video Excerpt of Yusuf Al-Qaradawi, Al-Jazeera Television, 9January 2009.119BESUR, Vol. II, Annex26,Video Excerpt ofGamal Nassar, Al-Jazeera Television,17August 2013.120BESUR, Vol. II, Annex25,Video Excerpt of Yusuf Al-Qaradhawi, Al-Jazeera Television, 27 July 2013.121See e.g., BESUR, Vol. II, Annex17,Video Excerpt of Muhammad Salim Al-Awa, Al-Jazeera Television, 16 September 2010.122QCM(A), paras 2.54–2.56.123BESUM,Vol.VI, Annex102, Video Excerpt of Yusuf Al-Qaradawi, ‘Sharia and Life’, Al-Jazeera Television, 17March 2013.124BESUR, Vol. II, Annex15,A.Barnett, “Suicide bombs are a duty, says Islamic scholar”, The Guardian, 28August 2005. This is but one respect in whichAl Jazeera’s Arabic channels may be seen as inspiring, supporting, celebrating and promoting terrorism.
33
2.30 It should come as no surprise—as set out in the Memorial125—that the
suicide bomber who killed numerous Coptic Christian worshippers at the
Church of Saints Paul and Peter in December 2016 had, according to the
Egyptian Interior Ministry, visited Qatar “where he had close connection with
some of the Muslim Brotherhood’s leaders” who instructed him “to start
preparing and planning terrorist operations targeting the Copts with the aim of
provoking a large sectarian crisis during the coming period”126. Qatar’s only
answer to this contemporaneous statement is that the culprit had also visited
North Sinai where he could have been further radicalized127.
2.31 Indeed, any suggestion that Al Jazeera is independent of Qatar is a
complete fabrication: Al Jazeera is wholly-owned by Qatar and its chairman is
a member of the Qatari royal family128. Qatar acknowledged its absolute control
over Al Jazeera by its commitment in the Riyadh Agreements to stop
supporting “antagonistic media”129, and to “ceas[e] all media activity directed
against the Arab Republic of Egypt”, including on Al Jazeera and its Arabic
channel in Egypt, Al Jazeera Mubashir Masr.130 Such an obligation de résultat
would be impossible for Qatar to undertake had Al Jazeera not been under its
full control.
125 BESUM, para. 2.35.
126 BESUM, Vol. V, Annex 71, Official Statement of the Ministry of Interior of the
Arab Republic of Egypt, 12 December 2016, para. 3.
127 QCM(A), para. 2.48.
128 The Chairman is Sheikh Hamad bin Thamer Al Thani, a cousin of the Emir of Qatar.
See also: BESUR, Vol. II, Annex 19, D. Sabbagh, “Al-Jazeera’s political
independence questioned amid Qatar intervention”, The Guardian, 20 September
2012.
129 BESUM, Vol. II, Annex 19, First Riyadh Agreement, 23 and 24 November 2013,
Art. 1.
130 BESUM, Vol. II, Annex 21, Supplementary Riyadh Agreement, 16 November 2014,
Art. 3(d).
342.32Thelinks between Qatar, Al Jazeera, and the Muslim Brotherhood, are particularly manifestin the case of Egypt.In 2013, Egypt facedmassive protests in which millions of Egyptians demandedthe resignation of President Morsi’s Muslim Brotherhood Government,amidst sectarian violence and economic collapse, which had brought Egypt to the brink of chaos and civil war131.During this period, Al Jazeeragave blanket coverage to supporters of the Muslim Brotherhood. Itsbroadcastsof incitements to hatred and violence wereso serious that, in July 2013, immediately before the violent clashes in Raba’a Square, twenty-two Al Jazeerajournalists resigned in protest at the “biased coverage” of the channel’s Arabic service132.2.33It is clear that Qatar used Al Jazeeraas a tool to interfere in the internal affairs of other States, particularly Egypt. Mohamed Fahmy, a Canadian-Egyptian journalist who was previously the acting Bureau Chief at Al JazeeraEnglish in Cairo, and who was prosecutedin Egypt in connection with his work for the network, explains thatMubashir Masr(the Arabic service of Al Jazeerain Egypt)was banned by Egypt as it “was perceived asa Qatari-sponsored propaganda mouthpiece for the Brotherhood”133.Fahmy described Al Jazeera as a “pernicious ...tool of [Qatar’s] foreign policy”134,and “a mouthpiece for extremism”135.According to Fahmy:131BESUR, Vol. II, Annex22,“By the Millions, Egyptians Seek Morsi’s Ouster”, The New York Times, 30 June 2013.132BESUR, Vol. II, Annex23,“Al Jazeera staff resign after ‘biased’ Egypt coverage”, Gulf News, 8July 2013.133BEUR, Vol. II, Annex33,“How Qatar Used and Abused Its Al Jazeera Journalists”, The New York Times, 2 June 2015, p. 2.134Ibid., p. 2.135BEUR, Vol. II, Annex34,M. Fahmy, “The Price of Aljazeera’s Politics”, The Washington Institute for Near East Policy,26 June 2015, p. 1.35“
35
“The [Al Jazeera] network knowingly antagonized
the Egyptian authorities by defying a court-ordered
ban on its Arabic-language service. Behind that, I
believe, was the desire of the Qatari royal family to
meddle in Egypt’s internal affairs.”136
“When I started meeting with and interviewing
members of the Muslim Brotherhood and their
sympathizers, they specifically told me they had been
filming [the fake] protests and selling [them] to [A]l-
Jazeera and dealing fluidly with the network and
production companies in Egypt associated with the
network.”137
2.34 Thus, despite Qatar’s clear obligation under the principle of nonintervention
and pursuant to the Riyadh Agreements to cease airing antagonistic
media content directed against Egypt138, it has emerged that it was instead
directly funding the opposition by providing video cameras and paying for
footage of so-called protests of the Muslim Brotherhood. This is but one
example of the myriad ways in which Qatar has directly fuelled sectarian
hatred, political violence and serious instability in Egypt, as well as in other
countries in the region.
Section 2. The Aviation Restrictions were imposed as proportionate
countermeasures to Qatar’s wrongful actions
2.35 In response to Qatar’s conduct, the Appellants were fully entitled to
adopt the aviation restrictions, so as to induce Qatar’s compliance with its
international law obligations139. The question of determining the scope and
136 BESUR, Vol. II, Annex 33, “How Qatar Used and Abused Its Al Jazeera
Journalists”, The New York Times, 2 June 2015, p. 2.
137 BESUR, Vol. II, Annex 39, E. Lake, “Al-Jazeera and the Muslim Brotherhood”,
Asharq Al-Awsat, 25 June 2017, p. 2.
138 See above, para. 2.31.
139 BESUM, paras 2.53-2.55.
36legality of those restrictions is plainly a matter for the merits. As such it is not a matter for the Courtin thepresentproceedings, since its mandateis confined to the three grounds of appeal submitted by the Appellantsas to the competence of the ICAO Council.2.36Nevertheless, in its Counter-Memorial, Qatar has persisted in making untruthfulallegations that the Appellantslimited the overflight rights of Qatar-registeredaircraft through Notices to Airmen (NOTAMs) without prior warning140and that the Appellants did not co-operate in a timely manner with ICAO or Qatar in establishing contingency routes141.2.37The Appellants reject any suggestion that the airspace restrictions were wrongful. The Appellants’ present response is thus intended merely to reiterate that, contrary to Qatar’s assertions, each of the Appellants made timely and proper notification of the airspace restrictions, in accordance with all relevant rules and safety requirements, and in full cooperation with all relevant authorities,including ICAO142. Furthermore, they promptly adopted contingency measures in order to preserve the safety of civil aviation, as outlined below.A.BAHRAIN2.38As Qatar acknowledges, Bahrain made contingency routes available for Qatar-registeredaircraft through the Bahrain Flight Information Region 140QCM(A), para. 2.6.141Ibid., para.2.14et seq.142BESUM, paras 2.53-2.55.37(
37
(FIR)143. Bahrain did so at the same time as adopting the restrictive measures,
on 5 June 2017, having notified these measures in advance.
2.39 Further, numerous contingency routes have been added over time by
the Appellants under the auspices of the ICAO Middle East Regional Office
(ICAO MID Office), which commended the efforts of the Appellants in this
regard144. For example, as Qatar acknowledges, on 31 January 2019, a new
inbound contingency route to Doha via the Bahrain Flight Information Region
(FIR) became effective, which allows Qatar-registered aircraft to fly through
the Tehran FIR, enter into the Bahrain FIR and arrive at the Doha airport145.
This route was agreed in principle between Bahrain and Iran in April 2018146,
and the required technical and operational rearrangements within the two FIRs
were completed by November 2018. Bahrain and Qatar entered into
negotiations to agree to amend their operational agreement as required to
implement this contingency arrangement147, which concluded in January 2019.
The route opened as soon as it was approved by Qatar’s Civil Aviation
Authority, on 28 January 2019.
143 QCM(A), para. 2.15.
144 QCM(A), Vol. III, Annex 27, ICAO Council, Third ATM Contingency
Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/3
(5-6 Sept. 2017), para. 6.2 (“The Chairman congratulated the MID Region for the
continuous improvements of the implemented contingency plan. He highlighted that
the meeting is an evidence of the high level of regional commitment related to safe
air traffic operations across the MID Region.”).
145 QCM(A), note 59.
146 QCM(A), Vol. III, Annex 34, Fourth ATM Contingency Coordination Meeting for
Qatar, Summary of Discussions, ICAO Doc ACCM/4, 28 April 2018, para. 6.7.8.
147 Ibid.
38B.EGYPT2.40It is also untrue, contrary to Qatar’s assertion, that Egypt “continued to reject or delay” Qatar’s proposals for contingency routes148.In fact, the evidence included withQatar’s Counter-Memorial indicates the opposite. At the ICAO Council contingency coordination meeting held on 6 July 2017, the Egyptian representatives “indicated their willingness to support the efforts contributing to ensure the safe air transport in the region”149.At the same meeting, Egypt accepted in principle (with minor modifications only) Qatar’s proposal fora contingency route for flights by Qatar-registered aircraft between Beirut and Tunis over the high seas through the Cairo FIR,notingthat making this route operational would require coordination with Malta and Libya150.At an extraordinary session of the ICAO Council held on 31 July 2017, it was confirmed that authorities in Tripoli had agreed to the proposed contingency route and that this route would become operational the following day. A revised NOTAM for the Cairo FIR had been issuedfor this purpose151.2.41Qatar’s description of this route in its Counter-Memorial as being “of little to no operational value”152is unsupported by the evidence it cites153and,148QCM(A), para. 2.18.149QCM(A), Vol. III,Annex 26, ICAO Council, First ATM Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/1, 6 July 2017, para.6.6.150Ibid., p. 3.151BESUM,Vol. V,Annex 41, ICAO Council –Summary Minutes of the Meeting of the Extraordinary Session of 31 July 2017, concerning the Request of Qatar –Item under Article 54(n) of the Chicago Convention, 22 August 2017, paras 41 and 59.152QCM(A), para. 2.19.39in
39
in any case, is not a reflection of any fault on Egypt’s part, given that the route
matches closely the route which Qatar itself proposed.
C. UAE
2.42 Regarding the UAE, Qatar complains that a proposed contingency
route over UAE territory was rejected154 without providing more details or any
other factual information about the UAE’s contributions to ensure safe and
efficient air traffic operations in the region. From the beginning, the UAE has
seen it as a priority to ensure the safe operation of civil aviation in the Middle
East and has contributed to the implementation of various contingency
measures within the adjacent FIRs. All along, the UAE has continuously been
cooperating with ICAO and IATA, as well as with Bahrain, Iran and Oman to
implement a safe and appropriate contingency plan to avoid the disruption of air
traffic in the region. The ICAO recognized that the UAE’s plan was safe and
appreciated the UAE’s efforts155.
2.43 Qatar also neglects to mention that the UAE could not approve Qatar’s
proposed route after a detailed technical safety assessment based on factual data
undertaken in accordance with ICAO requirements, on the grounds that,
amongst others, Qatar’s proposal to fly on ATS route L305 was not
recommended for implementation exclusively for operational safety reasons as
153 The document which Qatar cites states only that, as a matter of fact, one of the
contingency routes through the Cairo FIR “ha[d] not been yet used by Qatar
registered aircraft” by 5 September 2017: QCM(A), Vol. III, Annex 27, ICAO
Council, Third ATM Contingency Coordination Meeting for Qatar, Summary of
Discussions, ICAO Doc. ACCM/3, 5-6 September 2017, para. 6.5.
154 QCM(A), para. 2.17.
155 See QCM(A), Vol. III, Annex 26, ICAO Council, First ATM Contingency
Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/1,
6 July 2017, paras 6.9, 6.13, 7.1, 7.3.
40it would result in unacceptable safety concerns156. The proposed routewould have crossed the main traffic flows of the busiest Emirati airports. It would have created five conflict points with routes to or from the Bahrain FIR157,two conflict points with eastbound traffic from the Tehran FIR158,and even more dangerously, it would have conflicted with the UAE’s main arrival holding patternDESDI for arrivals into the Northern UAE’s busy airports159.It is also important to note that historically L305 was avoided by Qatar traffic overflying the UAE FIR due to safety concerns with other traffic. Nonetheless, as recognized by Qatar, the UAE approved an additional contingency route proposed by Qatar160.In any case, in compliance with the UAE’s international obligations and as agreed with the ICAO MID Office, UAE airspace andairports were available at all times for Qatar registered aircraft in case of emergency161.D.SAUDI ARABIA2.44In Saudi Arabia, contingency plans and other arrangements are in place to ensure safety and the orderly and efficient flow of air traffic in the region156Ibid., paras6.9, 6.13.157QCM(A), Vol. III, Annex 26, ICAO Council, First ATM Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/1, 6 July 2017, Appendix B, UAE General Civil Aviation Authority, UAE airspace measureson the State of Qatar, pp.15-16.158Ibid., p.17.159Ibid., p.18.160QCM(A), para. 2.19; QCM(A), Vol. IV, Annex 135,Appendices of Working Paper 14640: Contingency Arrangements and ATM Measures in the MID Regionby Kingdom of Bahrain, Arab Republic of Egypt, Kingdom of Saudi Arabia and United Arab Emirates (2017), p. 16.161QCM(A), Vol. III, Annex 26, ICAO Council, First ATM Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/1, 6 July 2017, Appendix B: UAE presentation, p.20.41following
41
following the revoked access to Saudi airspace for Qatar-registered aircraft162.
Revoked access only applies to aircraft registered in Qatar. All other flights
from or to Qatar are managed pursuant to applicable air traffic management
rules and procedures, and provided with normal Air Navigation Services.
Although Saudi air space is closed to aircraft registered in Qatar, all required
assistance will be offered to any aircraft encountering emergency or any kind of
distress163.
2.45 In this regard it may be noted that on 5 June 2017 Saudi Arabia
released two flight levels, FL310 and FL350, to Oman in an amended
agreement between the Jeddah and Muscat Area Control Centres in order to
best support safe and consistent air travel164. Additionally, acting at the request
of Yemen, a NOTAM was issued only for Yemeni air space, but routes over the
high seas within the Sana FIR remain open to aircraft registered in Qatar165.
*
2.46 Qatar also makes an allegation that Bahrain communicated its intention
to establish a buffer zone adjacent to its territorial waters and to intercept
162 BESUM, Vol. V, Annex 41, ICAO Council – Summary Minutes of the Meeting of
the Extraordinary Session of 31 July 2017, concerning the Request of Qatar – Item
under Article 54(n) of the Chicago Convention, 22 August 2017, para. 33; BESUM,
Vol. V, Annex 37, ICAO Working Paper presented by Bahrain, Egypt, Saudi Arabia
and the United Arab Emirates, Council – Extraordinary Session, concerning the
Request of Qatar – Item under Article 54(n) of the Chicago Convention, ICAO
document C-WP/14640, 19 July 2017, Appendix B, Part 3 – Measures by Saudi
Arabia, para. 8.
163 BESUM, Vol. V, Annex 37, ICAO Working Paper presented by Bahrain, Egypt,
Saudi Arabia and the United Arab Emirates, Council – Extraordinary Session,
concerning the Request of Qatar – Item under Article 54(n) of the Chicago
Convention, ICAO document C-WP/14640, 19 July 2017, Appendix B, Part 3 –
Measures by Saudi Arabia, paras 7-8.
164 Ibid., para. 4.
165 Ibid., para. 6.
42militarily any Qatar-registered aircraft entering into that buffer zone166.Bahrain emphatically denies these allegations, which are as vague and unparticularized as they are groundless. Qatar fails to identify the date of the alleged communication (said to have been a telephone call), the officials involved, or the subject-matter or content of the alleged call. In fact, Bahrain did not establish any buffer zone,and it remains committed to providing safe and efficient services to all traffic within its FIR,in all respects167.To that end, at all times since 5 June 2017, Bahrain’s FIR and its airports have remained available for Qatar-registered aircraft in case of emergency or unexpected weather conditions. Furthermore, Bahrain has never intercepted any Qatar-registeredaircraft within its FIR, nor has it ever threatened to do so.*2.47The foregoing shows that the Appellants acted promptly within the framework of the Chicago Convention to minimize the impact of their measures, which they were legally justified in adopting to induce Qatar to comply with its legal obligations.166QCM(A), para. 2.9, referring to BESUM, Vol.IV, Annex25, ICAO Response to thePreliminary Objections, Exhibit 3, letter of the Qatar Civil Aviation Authority to the President of the Council, dated 8June2017, ref. 2017/15984.167QCM(A), Vol. III, Annex 26, ICAO Council, First ATM Contingency Coordination Meeting for Qatar, Summaryof Discussions, ICAO Doc. ACCM/1, 6 July 2017, Bahrain’s presentation, page entitled “Assurance”; see also, BESUM, Vol. V, Annex37, ICAO Working Paper presented by Bahrain, Egypt, Saudi Arabia and the United Arab Emirates, Council –Extraordinary Session, concerning the Request of Qatar –Item under Article 54(n) of the Chicago Convention, ICAO document C-WP/14640, 19 July 2017, Appendix B, Measures taken by the Kingdom of Bahrain, Egypt, Saudi Arabia and the United Arab Emirates, Part 1(C)(h) and (D)(b) –Measures by the Kingdom of Bahrain (“No changes to normal military routes or operational training areas have been made. No military “Buffer Zones” have been applied or imposed.”).
43
CHAPTER III
FIRST GROUND OF APPEAL: THE DECISION OF THE ICAO
COUNCIL FALLS TO BE SET ASIDE DUE TO GRAVE VIOLATIONS
OF DUE PROCESS
3.1 For reasons more fully set out in the Memorial, the Decision of the
ICAO Council should be recognized as a procedural nullity—a non est—and
accordingly set aside. In short, the procedure adopted by the ICAO Council was
manifestly flawed and in violation of the fundamental principles of due process.
3.2 In this Chapter, the Appellants respond to Qatar’s arguments that
(a) the Court has no jurisdiction to set aside a decision of the ICAO Council on
due process grounds and (b) that “there were no irregularities in the procedure
adopted by the Council” or that any such defects were, in any event,
“irrelevant” or “harmless”.
3.3 Before turning to address these arguments, it is important to deal at the
outset with a broader, systemic implication of Qatar’s pleaded case. The
Appellants state in their Memorial that the absence of deliberations by the
Council (or indeed any substantive debate among the Members of the ICAO
Council or with the Parties in the Council) strongly indicates that the Council
delegates were voting on instruction from their capitals rather than exercising
the adjudicative function conferred by Article 84 of the Chicago Convention168.
In its Counter-Memorial Qatar purports to turn this vice into a virtue, arguing
that not following instructions would have been a violation of due process169.
This astounding argument is the subject of Section 1. Then, Section 2 explains
why the Court should exercise its supervisory authority in respect of the
168 BESUM, para. 3.2(g).
169 QCM(A), para. 5.40.
44procedural deficiencies in the Council’s adjudication of legal disputes. Section 3proceeds to describe the grave and widespread defects in the procedure adopted by the ICAO Council, which ultimately tainted its Decision. This is followed by Section 4, which sets out why the Appellants cannot be held to have waived their right to complain about thosedefects before the Court. Concluding this Chapter, the Appellants respectfully invite the Court to set aside the ICAO Council Decision (Section 5).Section 1.On Qatar’s own case, the ICAO Council is not apt as a legal forum3.4Qatar does not deny that in the present dispute the ICAO Council was carrying out a judicial function conferred upon it by Article 84 of the Chicago Convention. As the Council President reminded Council members at the outset of the hearing of 26 June 2018,“the Council [is]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.”1703.5In their Memorial, the Appellants referred to the structural difficulties faced by the ICAO Councilin acquitting itself of its judicial function under Chapter XVIII of the Chicago Convention, referring to the views of commentators that the ICAO Council was equipped to resolve disputes of a technical nature only171.170BESUM, Vol. V,Annex 53, 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, (emphasis added).171BESUM, para. 3.8.453.6In
45
3.6 In this regard, the Appellants set out the procedural history of the
ICAO Council proceedings to date, taking issue with multiple, manifest
violations of due process. They stressed, in particular, the absence of any
deliberations at all and the absence of any reasons provided in the Decision of
the Council, which consisted only of one line172.
3.7 Qatar does not contest the procedural defects described by the
Appellants. Instead, it contends that those defects are, in the circumstances,
“irrelevant”173 and “harmless”174. Qatar also argues that even if the Council
delegates did act on instruction from their governments in deciding on the
Appellants’ Preliminary Objections, that would be in keeping with judicial
process. Qatar goes on to assert that—
“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.”175
3.8 That is an astounding proposition. Instructions are inimical to the
judicial function, which comports a duty to act only upon one’s professional
conscience, in a manner that is independent and impartial—as the Council
President said, “on the basis of the submission of written documents by the
Parties, as well on the basis of oral arguments”176, and nothing else. Given that
172 Ibid., Chapter 3, particularly para. 3.2.
173 QCM(A), para. 1.7.
174 Ibid., para. 5.51.
175 Ibid., para. 5.40.
176 BESUM, Vol. V, Annex 53, 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, (emphasis added).
46several of the governments which participate in the ICAO Council had made political statements about the underlying dispute between the Parties177, Qatar’s position thus confirms the conclusion that the Decision had been pre-determined. This entails that the Council was structurally incapable of adjudicating upon the Appellants’ Preliminary Objections in a proper judicial manner.3.9That structural concern with the ICAO Council is also borne out by the minutes of the Council proceedings concerning the 1971 dispute between India and Pakistan, which record the wish of certain Council members to await instructions from their governments before rendering a decision178.3.10Commentators, too, have pointed out this serious issue in analysing the judicial functions of the Council179. And as these commentators have rightly noted, the Council’s judicial function cannot be conflated with its other functions, such as setting aviation-safety standards or delimiting FIRs. The judicial function of the Council is to be discharged by the individuals sitting on the Council from time to time, in their individual capacity. For it is settled law that when a State has been designated as an arbitrator or judge, once the individual adjudicator has been designated by the State, it is that individual who 177BESUM, Vol. V, Annex 41, ICAO Council –Summary Minutes of the Meeting of the Extraordinary Session of 31 July 2017, concerning the Request of Qatar –Item under Article 54(n) of the Chicago Convention, 22 August 2017, paras 69-84.178BESUM, Vol. V, Annex 27, ICAO Council –74th Session, Minutes of the Fifth Meeting, ICAO document 8987-C/1004, 28 July 1971, paras 7, 10. 179BESUM, Vol. VI, Annex 126, G. F. Fitzgerald, “The Judgment of the International Court of Justice in the Appeal Relating to the Jurisdiction of the ICAOCouncil”, (1974) 12 Canadian Yearbook of International Law153, p. 169.47must
47
must act, in their personal capacity, not on instruction180. As Gerald
Fitzgerald—the senior legal officer of ICAO at the time of the hearing in the
dispute between India and Pakistan—has stated:
“[I]t is a contradiction in terms to say that a state can
be a judge. It is also a contradiction to hold that a
representative who receives instructions from a state
as to how he should act with respect to a particular
disagreement could be seen to act judicially.”181
3.11 Two conclusions follow from the foregoing. First, that Qatar’s position
vindicates the view, expressed by several commentators, that at present the
ICAO Council is not an apt legal forum (but instead a political forum)182.
Secondly, that it falls to the Court, as the guardian of the integrity of the
international judicial process, to exercise its supervisory authority in order to
provide the Council with necessary direction on how to comply with the duties
of due process that are incumbent upon any adjudicator.
180 S. Rosenne, The Law and Practice of the International Court 1920-2005 (4th ed.,
2006), Vol. I, p. 355, stating with respect to members of the Court that if “political
factors momentarily enter into play at the time of the election of the members of the
Court, once elected the Court is granted every facility to maintain the proper degree
of judicial independence”.
181 BESUM, Vol. VI, Annex 126, G. F. Fitzgerald, “The Judgment of the International
Court of Justice in the Appeal Relating to the Jurisdiction of the ICAO Council”,
(1974) 12 Canadian Yearbook of International Law 153, p. 169, (emphasis added).
182 BESUM, Vol. VI, Annex 128, E. Warner, “Notes from PICAO Experience”, (1946)
1 Air Affairs 30, p. 37; BESUM, Vol. VI, Annex 125, T. Buergenthal, Law-making
in the International Civil Aviation Organization (1969), pp. 195-197; BESUM,
Vol. VI, Annex 126, G. F. Fitzgerald, “The Judgment of the International Court of
Justice in the Appeal Relating to the Jurisdiction of the ICAO Council”, (1974) 12
Canadian Yearbook of International Law 153, p. 157; BESUM, Vol. VI, Annex 122,
R. I. R. Abeyratne, “Law Making and Decision Making Powers of the ICAO Council
– A Critical Analysis”, (1992) 41 Zeitschrift für Luft- und Weltraumrecht 387,
p. 394; BESUM, Vol. VI, Annex 123, J. Bae, “Review of the Dispute Settlement
Mechanism Under the International Civil Aviation Organization: Contradiction of
Political Body Adjudication”, (2013) 4(1) Journal of International Dispute
Settlement 65, p. 70.
48Section 2.Due process fallswithin the Court’s appellate jurisdiction3.12The next issue of debate between the Parties concerns whether litigants before the ICAO Council are entitled to due process or not. The Appellants submit that they are; from which follows that an appeal under Article 84 of the Chicago Convention must be capable of encompassing procedural complaints. Qatar submits the contrary, from which it mustnecessarilyfollow that litigants are not entitled to due process.3.13Qatar argues that the Chicago Convention does not expressly authorize the setting aside of a decision of the Council on grounds of due process183. But the supposed need for such an express authorization is one of Qatar’s own making. In fact, Article 84 of the Chicago Convention provides for a broad right of appeal, without restricting the grounds available. If one accepts, as one must, that due process is a fundamental entitlement of litigants in any judicial forum, it is inherent in the notion ofappeal that it may encompass review of every aspect of the proceedings. In this regard, in his separate opinion appended to the Court’s judgment in the India v. Pakistanappeal, Judge Jiménez de Aréchaga noted, with specific reference to Article 84:“The right of appeal granted by Article 84 of the Chicago Convention comprises not only the right to obtain a pronouncement from the Court on whether the decision of first instance is correct from the point of view of substantive law but also on whether that decision was validly adopted in accordance with the essential principles of procedure which must govern 183QCM(A), para. 5.11.49the
49
the quasi-judicial function entrusted to the organ of
first instance.”184
3.14 In Application for Review of Judgment No. 158 of the UN
Administrative Tribunal, (Advisory Opinion), the Court held that a decision of
the UN Administrative Tribunal could be appealed on grounds not explicitly set
forth in the Statute of the Tribunal:
“The fact that failure to state reasons was not
expressly mentioned in the list of grounds for review
does not exclude the possibility that failure to state
reasons may constitute one of the errors in procedure
comprised in Article 11[185]. Not only is it of the
essence of judicial decisions that they should be
reasoned, but Article 10, paragraph 3, of the
Tribunal’s Statute, which this Court has found to be a
provision ‘of an essentially judicial character’ (I.C.J.
Reports 1954, p. 52), requires that: ‘the judgements
shall state the reasons on which they are based’.”186
3.15 Similarly, in the Arbitral Award of 31 July 1989, the Court held that it
had jurisdiction to rule on the alleged nullity and inexistence of an arbitral
award on the basis of the declarations made by Senegal and Guinea-Bissau
under Article 36(2) of the Statute, even though neither declaration expressly
184 Separate Opinion of Judge Jiménez de Aréchaga, Appeal Relating to the Jurisdiction
of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, para. 37.
185 Article 11 of the Statute of the Administrative Tribunal of the United Nations 1955,
as amended by Resolution 957(X) on 8 November 1955, allowed applicants to appeal
a judgment if the Tribunal had “committed a fundamental error in procedure which
has occasioned a failure of justice”. See: Application for Review of Judgment
No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J.
Reports 1973, p. 170, para. 12.
186 Application for Review of Judgment No. 158 of the United Nations Administrative
Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 210, para. 94 (emphasis added).
50allowed the Court to set aside decisions tainted by a failure to follow rules of due process187.3.16What is more, the policy implications of Qatar’s argument are unsound and inimical to the Court’s function. It is indeed the function of the Court to set and supervise judicial decision-making standards in the international legal system188. There can therefore be no serious dispute that failure to abide by fundamental guarantees of due process entitles—indeed requires—the Court to set aside a decision that emanates from a flawed process.3.17In India v. Pakistan, the Court referred to its appellate function under the Chicago Convention and International Air Services Transit Agreement(IASTA)as follows:“In thus providing for judicial recourse by way of appeal to the Court against decisions of the Council concerning interpretation and application –a type of recourse already figuring in earlier conventions in the sphere of communications –the Chicago Treaties gave member States, and through them the Council, the possibility of ensuring a certain measure of supervision by the Court over those decisions.To this 187Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, pp. 61-63, paras 22-27.188J. Crawford, “The International Court of Justice, Judicial Administration and the Rule of Law”, in D. W. Bowett and others, The International Court of Justice, Process, Practice and Procedure(1997), pp. 113-114, noting that “[t]he Court is the principal judicial organ of the organised international community as a whole, and not less than that”. See also Separate Opinion of Judge Lachs, Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie(Libyan Arab Jamahiriya v. UK), I.C.J. Reports 1992,p.26, in which Judge Lachs elaborated on the censorial role for the Court: “In fact the Court is the guardian of legality for the international community as a whole, both within and without the United Nations”.
51
extent, these Treaties enlist the support of the Court
for the good functioning of the Organization.”189
3.18 The Court can help ensure the “good functioning” of ICAO only if it is
able to exercise supervisory authority in respect of procedural deficiencies
occurring in proceedings before the Council in hearing and adjudicating upon a
dispute submitted to it. There can be no doubt—and Qatar has not argued
otherwise—that due process is an elementary aspect of any judicial proceeding,
independently of the substantive outcome, such that a decision emanating from
a flawed process should not be allowed to stand. It is therefore open to the
Court to review the procedure followed by the ICAO Council in reaching its
Decision, just as it is open to the Court to review the substantive rectitude of the
decision.
3.19 Procedural deficiencies were also at issue before the Court in the India
v. Pakistan case. On the facts, the Court concluded that India’s alleged
irregularities did not rise to the level of “prejudic[ing] in any fundamental way
the requirements of a just procedure”190. That decision rested on the facts of
that case. Far from holding that procedural irregularities are “irrelevant”, as
Qatar submits in its Counter-Memorial191, the Court held that such
irregularities, in that case, were not important enough to trigger its “supervisory
authority”.
3.20 In contrast to the proceedings in Pakistan v. India, the ICAO Council
in the present case did in fact prejudice the requirement of a just procedure in a
fundamental way. The procedural defects in this case are greater in number and
189 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
Judgment, I.C.J. Reports 1972, para. 26 (emphasis added).
190 Ibid., para. 45.
191 QCM(A), para. 5.12.
52magnitude than those at issue in Pakistan v. India—so much so that the present Decision must be recognized as a nullity:(a)The Council heard oral submissions from the Parties, took a vote, and issued its decision in just oneafternoon. InPakistan v. India, by contrast, the Council held a five-day hearing to rule on India’s preliminary objection.(b)What is more, the four Appellants, being treated as a single party, were given the same length of time as Qatar (40 minutes) to defend their position—plainly insufficient time given that each of the four States was appearing as a respondent party in its own right and given that presenting a collective case required additional time as compared to that needed by Qatar. In the India v. Pakistan appeal before the Court, there was no allegation by India that the principles of equality of arms and reasonable opportunity to be heard had been violated.(c)The Appellants submitted two separate and distinct Preliminary Objections, each being of itself dispositive of the ICAO Council’s competence to hear the dispute before it. The Appellants thereby contested the jurisdiction of the ICAO Council to adjudicate the claims formulated by Qatar in its Application or, in the alternative, the admissibility of those claims. The President conflated the two objections into one, and the ICAO Council disposed of the two Preliminary Objections raised by the Appellants as a single plea. Thus, unlike in Pakistan v. India, the Council fundamentally misunderstood and could not properly have applied its collective mind to the objections that were before it.
53
(d) The Council acknowledged but effectively abdicated its duty to rule on
requests for clarification formulated by the Appellants, in violation of
the Chicago Convention. In the India v. Pakistan appeal before the
Court, there was no allegation that the Council improperly abdicated
its judicial function.
(e) The Council proceeded to hold a vote immediately after hearing the
parties’ oral submissions. In Pakistan v. India, members of the Council
were given an opportunity to put questions to the parties, and in fact
made use of that opportunity.
(f) Nor were there any deliberations between the members of the
Council192. In Pakistan v. India, there was a recess in the Council’s
meeting to allow members to deliberate193.
(g) The Decision was taken by secret ballot despite a request by the
Appellants for a roll call vote with open voting. In Pakistan v. India,
by contrast, India requested and obtained a roll call vote194.
3.21 Disregarding the Court’s prior holding, Qatar urges the Court to
repudiate its supervisory function in respect of procedural matters, and to leave
the ICAO Council without guidance as to how to conduct judicial proceedings
before it. In that regard, to date the ICAO Council has handled only seven
192 BESUR, Vol. II, Annex 6, ICAO Council – 74th Session, Minutes of the Second
Meeting, ICAO document 8956-C/1001, “Discussion: Pakistan versus India”, 27 July
1971, p. 141, para. 4; BESUM, Vol. V, Annex 27, ICAO Council – 74th Session,
Minutes of the Fifth Meeting, ICAO document 8987-C/1004, “Discussion: Pakistan
versus India”, 28 July 1971, pp. 255-256, para. 83.
193 BESUM, Vol. V, Annex 27, ICAO Council - 74th Session, Minutes of the Fifth
Meeting, ICAO document 8987-C/1004, “Discussion: Pakistan versus India”, 28 July
1971, pp. 255-256, paras 83-86.
194 Ibid., p. 268, paras 3-6.
54disputes judicially, five of which were ultimately resolved (or are being resolved) consensually by the parties (Pakistan v. Indiabeing one of them), the sixth one being the present case, and the seventh being Qatar’s claim under the IASTA. There is no wealth of procedural experience in the Council, and the ICAO Rulesare both sparse and antiquated195. As 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 in this case.Section 3.Violations of due process and the ICAO Rules3.22Qatar argues that even if the Court were to deem it appropriate to rule on the procedural irregularities raised by the Appellants, this ground of appeal would have to be rejected by the Court because “there were no irregularities in the procedure adopted by the Council”196and any defects were in any event “irrelevant” and “harmless”. This is contradicted by the procedure followed by the ICAO Council, detailed in the sub-sections below. These defects, individually and cumulatively, demonstrate ICAO’s inability to discharge its judicial function in this case.195In September 2018, the ICAO Secretariat directed the ICAO Legal Committee toconsider whether the ICAO Rules needed to be revised and “realigned with the current ICJ Rules”: see BESUM, Vol. V, Annex 54, ICAO, Working Paper of the Secretariat submitted to the Legal Committee for consideration at its 37th Session, ICAO document LC/37-WP/3-2, 27 July 2018. para. 3.2.1.196QCM(A), para. 1.20.55A.
55
A. ABSENCE OF DELIBERATIONS AS A COLLEGIAL FORMATION
3.23 The requirement to hold deliberations after having heard the parties is
essential for judicial bodies to function in a collegial manner197. Yet, as the
minutes of the ICAO Council meeting of 26 June 2018 show, the following
decisions were either taken by the Council without any deliberation or by the
President of the Council acting alone:
(a) The decision that the majority required to rule on the Appellants’
Preliminary Objections was that of all members of the ICAO Council
(19 votes instead of 17, ie a majority of the eligible votes) was taken
by the Director of Legal Affairs: there was no discussion, deliberation,
or decision by members of the Council on the point—and this
notwithstanding a specific motion for a decision submitted by the
Appellants198.
(b) The President directed the Council—without any further discussion,
decision or vote by the ICAO Council—to proceed on the basis that
197 O. Hoijer, La solution pacifique des litiges internationaux (1925), p. 262 in
J. C. Witenberg, L’organisation judiciaire – La procédure et la sentence
internationale (1937) p. 270 (“Une décision ne sera réputée exacte et sérieuse que si
des observations ont été échangées entre tous les membres du tribunal, s’ils ont fait
valoir les raisons qui les amènent à se décider dans tel ou tel sens, parce que c’est
seulement dans ces conditions que la sentence est l’expression finale de l’opinion qui
s’est dégagée de la discussion générale.”). See also BESUM, Vol. VI, Annex 124,
D. Bowett, J. Crawford, I. Sinclair & A. Watts, “Efficiency of Procedures and
Working Methods: Report of the Study Group established by the British Institute of
International and Comparative Law as a contribution to the UN Decade of
International Law”, (1996) 45 The International Court of Justice: Efficiency of
Procedures and Working Methods 1, paras 46 and 47; H. Lauterpacht, The
Development of International Law by the International Court (reprinted ed., 1982),
p. 65.
198 BESUM, Vol. V, Annex 53, 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 et seq.
56“in essence for each of Qatar’s Application (A) and Application (B) the Respondents had a preliminary objection for which they provided two justifications”199, thereby ignoring the Appellants’ repeated clarifications that there were in fact two distinct Preliminary Objections which were to be assessed separately200.(c)The ICAO Council proceeded to vote on what the President had (incorrectly) characterized as “the Preliminary Objection” (in the singular), once again without any discussion or deliberation201.3.24Qatar does not deny that the Council failed to engage inany deliberations in ruling on each of these decisions. Its principal response is that deliberations would have made no practical difference and are to be seen as “harmless”202. It contends that the absence of deliberations was a consequence of the Council’s decision to vote by secret ballot203and that the procedure adopted by the Council was “established in the Rules of Procedure”204. This is incorrect: neither the ICAO Rulesnor the ICAO Rules of Procedure for the Council (Rules of Procedure for the Council)prevent deliberations or even contemplate that there will be none. Indeed, there is no reason why the members of the Council could not hold deliberations and then proceed to vote by secret ballot (if the disputing parties were content with closed voting). That is how the Council proceeded in Brazil v. US, a case that Qatar relies upon—199Ibid., para.123.200Ibid., para.121.201Ibid.,para.124.202QCM(A), para. 5.51.203Ibid., para. 5.29.204Ibid., para. 5.41.57wrongly—
57
wrongly—to demonstrate that the Council’s practice is to adopt a decision
without deliberation205. In fact, the Council did hold deliberations in that case,
as the Council’s decision records206.
3.25 By contrast, no deliberations at all were held in the present case. That
this was irregular was plain to all, given that the President intervened at the
hearing to observe that proceeding to a vote without deliberations would be a
departure from the Council’s own previous practice207.
B. FAILURE TO DELIVER A REASONED DECISION
3.26 A fundamental requirement of due process is that judicial bodies give
the necessary reasons in support of their decisions208. As Judge Lauterpacht
observed (writing in his scholarly capacity):
“A tribunal which fails to give full reasons for its
decision invites the reproach that it lays down new
law Absence of reasons—or of adequate reasons—
unavoidably creates the impression of arbitrariness
. . . When a tribunal, by failing to base a decision on
articulate grounds, makes it difficult to scrutinise the
law underlying the decision, it leaves the door wide
205 Ibid., para. 5.35.
206 BESUM, Vol. V, Annex 32, Decision of the ICAO Council on the Preliminary
Objections in the Matter “Brazil v. United States”, 23 June 2017.
207 BESUR, Vol. II, Annex 8, B ahrain a nd U AE c omments o n d raft M inutes C -MIN
214.8 Closed circulated by the Secretariat, 2 August 2018, Bahrain comments,
para. 108.
208 J. C. Witenberg, L’organisation judiciaire – La procédure et la sentence
internationale (1937), p. 292. See a lso J . L . S impson a nd H . F ox, International
Arbitration (1959), pp. 224 and 255 (“Failure to state reasons is now generally
regarded as a ground for treating the award as a nullity . . . [O]nly a comprehensive
exposition of the considerations upon which the award is based . . . can suffice, and
failure to support part of the award with reasons will vitiate the award as a whole
. . .”).
58open for imputing motives extraneous to the proper exercise of the judicial function.”2093.27The requirement to state reasons hasbeen recalled by the Court in several decisions, including notably in Arbitral Award of King of Spain210. The ICAO Council itself seems to have been aware of its fundamental duty to provide reasons when acting judicially. In every decision handed down sincethe Court’s judgment in the India v. Pakistan appeal, the Council has provided reasons for its decisions. Thus, in US v. 15 EU States, the President of the Council recalled, by specific reference to the Court’s judgment in India v. Pakistan,that–“the Court also indicated that Article 15 of the [ICAO] Rules [laying down the requirement to provide reasons] applies to such a decision [regarding the ICAO Council’s jurisdiction], including the requirement to give reasons for the Council’s decision in writing.”2113.28Qatar does not address this fundamental requirement, stating simply that no reasons could be given in the circumstances because the Council did not 209H. Lauterpacht, The Development of International Law by the International Court(reprinted ed., 1982), pp. 39-40. 210Arbitral Award made by the King of Spain on 23 December 1906, Judgment of 18November 1960: I.C.J. Reports 1960, p. 216: in this case, the Court dealt with a contention that the award was a nullity on ground of alleged inadequacy of reasons in support of the conclusions reached by the arbitrator, and found that: “an examination of the Award shows that it deals in logical order and in some detail with all relevant considerations and that it contains ample reasoning and explanations in support of the conclusions arrived at by the arbitrator”. See also Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, paras 43 and 63.211BESUR, Vol. II, Annex 7, Settlement of Differences: United States and 15 European States (2000), Note on Procedure: Preliminary Objections (Working Paper Presented by the President of the Council), ICAO documentC-WP/11380, 9November 2000, para.6.2.
59
hold deliberations212. But that is to justify one wrong by another. The absence
of deliberations that could have generated reasons is in no way a justification
for the absence of reasons. Thus, it remains the case that reasons should have
been provided but the Council failed so to do. Instead, the Decision of the
Council amounts to no more than a one-line dispositive stating that: “the
Preliminary Objection of the Respondents is not accepted”213.
C. THE APPELLANTS DID NOT HAVE A REASONABLE OPPORTUNITY TO BE HEARD
3.29 Patently insufficient time was allocated to the Appellants to present
their case before the ICAO Council214. On 13 June 2018, the President of the
ICAO Council informed the Parties that the ICAO Council would consider the
Preliminary Objections in a half-day session215. The scheduling of only one
half-day session for the hearing of their Preliminary Objections was met with
strong objections by the Appellants, who indicated that it would not permit
them sufficient time properly to co-ordinate and present their case216.
212 QCM(A), para. 5.29.
213 BESUM, Vol. V, Annex 52, 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, p. 2.
214 In its Counter-Memorial, Qatar alleges that if anyone was prejudiced by the decision
to schedule only one half-day session for the hearing, it was Qatar, not the four States
(QCM(A), p ara. 5 .22). Q atar f ails, h owever, t o e xplain how i t was i n a ny way
prejudiced, in particular in circumstances where it declined to ask to be allowed to
file a second-round written submission.
215 BESUM, Vol. V, Annex 50, 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.
216 BESUM, Vol. V, Annex 53, ICAO Council – 214th Session, Summary Minutes of
the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018,
para. 9.
603.30What is more, the Appellants were treated as a single party and given the same length of time as Qatar in circumstances where:(a)One of them, Saudi Arabia was not even a party to the case brought under the IASTA (Application (B));(b)Each was a party in its own right;(c)Each was represented by its own Agent (and eachwasassisted by a team of counsel and advisors); and(d)Presenting a position on the two separate and distinct Preliminary Objections required additional coordination.3.31Qatar alleges that the Appellants cannot complain about the fact that they weretreatedas a single party because they “themselves acted ‘collectively’ on numerous occasions before the ICAO Council”217. The issue is not,however,that the four States were acting collectively—plainly they had to, as they were named as joint respondents—but that they were given insufficient time to present theirPreliminary Objections. As to this, Qatar argues that “due process required ... that each side be treated equally”218. The Appellants agree, but emphasize that equality compels differential treatment when the parties are not in identical positions, aswas in fact the case here. The goodadministration of justice requires that particular attention be given to the proper balancing of the written pleadings allowed and the time for oral presentations “to equalize 217QCM(A), para.5.44.218Ibid.,para. 5.43.61eventual
61
eventual unevenness among the Parties”219, particularly where a claim is
brought by one State against multiple States. The requirement that all parties be
given a reasonable opportunity to present their case is also reflected in the
ICAO Rules, which require “fair treatment”, not just “equal treatment”220.
3.32 Lastly, Qatar contends that the Parties (including Saudi Arabia) agreed
to “proceed in this way”221. That is incorrect. All the Appellants agreed to was
that the two sides would present their position on the Preliminary Objections
consecutively, on the express condition that: “the Council would take separate
decisions thereon given that Application (A) and Application (B) related to two
different international air law instruments, namely, the Chicago Convention and
the [IASTA], and that there were different Respondents thereto”222. The
Appellants never agreed to the procedure adopted by the President, namely that
the hearing would be held in just one afternoon, and that they would be given
just 40 minutes to present their case (the same length of time as Qatar).
D. VIOLATION BY THE COUNCIL OF THE APPLICABLE PROCEDURAL RULES
3.33 The ICAO Council failed to abide by its own rules and the Chicago
Convention in the procedure it adopted. This served to demonstrate the
Council’s inability to afford basic predictability to litigants, which is an
219 R. Kolb, “General Principles of Procedural Law”, in A. Zimmermann, C. Tomuschat,
K. Oellers-Frahm a nd C . T ams ( eds), The Statute of the International Court of
Justice: A Commentary (2019), p. 969.
220 BESUM, Vol. II, Annex 6, ICAO, Rules for the Settlement of Differences, approved
on 9 April 1957; amended on 10 November 1975, Art. 28(1).
221 QCM(A), para. 5.48.
222 BESUM, Vol. V, Annex 53, 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.
62elementary duty in exercising judicial functions223. The Council’s failures on that score are as follows:(a)As already described, the ICAO Council failed to state any grounds or reasons for the decision it took, although this is a requirement of Article 15 of the ICAO Rules. (b)The Council incorrectly required a majority of 19 votes to uphold the Preliminary Objections, out of 33 members entitled to vote, even though Article 52 of the Chicago Convention requires a mere majority224.(c)The President’s decision to put to a vote a question relating to “a preliminary objection” (singular) was neither introduced nor seconded by members of the Council225, as required by Rule 40 read together with Rule 45of the Rules of Procedure of the Council. The proposal that wasintroduced and seconded at the ICAO Council session of 26 June 2018 was that “each of the Respondents’ Preliminary Objectionswith respect to Application (A) and Application (B)” be put to a vote226. However, the Council went on to vote on a“preliminary objection” as a single plea, not the two separate Preliminary Objections as set forth in the motion. Qatar contends in its Counter-Memorial that the original motion (that the two separate and distinct objections be put 223BESUM, para.3.64 et seq.224See ibid., paras 3.59-3.63.225Ibid., para. 3.65(c).226BESUM, Vol. V, Annex 53, ICAO Council –214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, paras106-108.63to
63
to a vote) proposed by the Representative of Mexico and seconded by
the Representative of Singapore “was never changed or modified”227.
In fact, that is precisely the problem. Rules 40 and 45 provide that
motions cannot be voted upon unless they are introduced by a member
of the Council and seconded by another member. That, as Qatar says,
“[t]he President of the Council did not think it necessary to change the
wording of the question”228 is no answer to this procedural violation.
In fact, it could only have further confused matters that the President
directed the Council that there was one preliminary objection while
leaving in place a motion referring to two separate Preliminary
Objections.
Section 4. The Appellants did not waive their right to appeal
3.34 Qatar contends that the Appellants could and should have complained
about the procedural irregularities before the Council and that, having failed to
do so, they have waived their right to complain229. Qatar does not, however,
identify and explain what circumstances called for protest on pain of waiver,
nor does it demonstrate how any silence on the part of the Appellants could
amount to acquiescence in the flawed process followed by the Council.
3.35 Acquiescence by silence or inaction arises only in rare cases where the
circumstances clearly call for protest in order to preserve rights, such that the
absence of protest can be said, by virtue of good faith, to amount to tacit
227 QCM(A), para. 5.60.
228 Ibid., para. 5.61.
229 Ibid., paras 5.26 and 5.38.
64consent to the relinquishment of those rights230. A finding of acquiescence is as rare as it is fact-specific231. The inference of consent must be “so probable as to [be]almost certain”232, “manifested clearly and without any doubt”233.Qatar does not even come close to discharging this heavy burden.3.36In fact, the Appellants weredeliberate and careful in interjecting complaints at every opportunity available in the brief, irregular procedural context of the ICAO Council proceedings. Thus:(a)The Appellants complained about the fact that the hearing would be held in just one afternoon, which inevitably meant that there would be too little time forargument and for questions by the ICAO Council. The matter was discussed at a meeting with the President of the Council on 19 June 2018, where the Appellants’ request for a longer hearing was overruled234.230Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, para. 121; Fisheries (United Kingdomv. Norway), Judgment, I.C.J. Reports 1951, pp. 138-139; and I.MacGibbon, “The Scope of Acquiescence in International Law” (1954) 31 British Yearbook of International Law143, p. 143: Acquiescence “is used to describe the inaction of a State which is faced with a situation constituting a threat to or infringement of its rights: it is not intended to connote the forms in which a State may signify its consent or approval in a positive fashion.”231Separate Opinion of Judge Fitzmaurice, Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 62; Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984,para.130. 232The Grisbådarna Case (Norway v. Sweden), Award, 23 October 1909, (1910) 4 American Journal of International Law226, p. 234; and J. Crawford, Brownlie’s Principles of Public International Law(8th edn, 2012), p. 419.233Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, para. 122.234BESUM, para. 3.27.65(
65
(b) The Appellants also placed on record that they had too little time at
their disposal, through the speech for the Agent of the Kingdom of
Saudi Arabia, who took the floor first among the four States. The
summary record states: “Respondents had not been provided with
sufficient or equal time to adequately present their case. Their right to
be heard had thus been compromised”235.
(c) The Appellants objected to the decision that 19 votes constituted the
voting majority required under Article 52 of the Chicago
Convention236.
(d) The Appellants complained in respect of the President’s improper
conflation of their two Preliminary Objections into one. Qatar suggests
that the Appellants should have appealed this decision under Article 36
of the Rules of Procedure of the Council237. The Appellants did object,
through counsel who intervened to clarify the importance of properly
understanding, and ruling upon, each Preliminary Objection
separately238. Wrongly, the President (acting alone, without putting the
matter to the Council) concluded that “in essence . . . the Respondents
had a preliminary objection for which they provided two
235 BESUM, Vol. V, Annex 53, ICAO Council – 214th Session, Summary Minutes of
the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018,
para. 9.
236 QCM(A), note 510; see ibid., paras 113, 116 and 117 and see paras 129-130.
237 Ibid., para. 5.62.
238 BESUM, Vol. V, Annex 53, ICAO Council – 214th Session, Summary Minutes of
the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018,
para. 121.
66justifications”239. It would have obviously been futile for the Appellants to challenge for the second time that decision. (e)The Appellants specifically called for open voting, but the Council decided against them. (f)The absence of deliberations was remarked upon by the ICAO Council President himself as a departure from the Council’s practice, but that failed to move the Council to deliberate.(g)After the Decision had been handed down, when the Secretariat circulated a draft of the Minutes for comment by the Parties, the Appellants did not just correct inaccuracies relating to the names of participants, as Qatar alleges in its Counter-Memorial240. Rather, they made a number of substantive observations, including (i) reiterating that there were two distinct Preliminary Objections241, (ii) proposing the insertion oflanguage to make clear that the President had observed that failing to hold deliberations would be a departure from the Council’s own practice242, and (iii) clarifying that certain decisions were taken by the Secretariat (instead of the Council, as the Chicago Convention or the ICAO Rules required)243. None of these observations was taken up by the ICAOCouncil.239Ibid., para.123.240QCM(A), para. 5.26.241BESUR, Vol. II, Annex 8, Bahrain and UAE comments on draft Minutes C-MIN 214.8 Closed circulated by the Secretariat, 2 August 2018, Bahrain comments paras14, 18, 20-21, 26, 32 and 34-37.242Ibid., paras108, 111 and 115.243Ibid., para.110.673.37In
67
3.37 In sum, on no reasonable interpretation of the facts can the Appellants
be said to have acquiesced in the procedure followed by the Council. Indeed, it
is difficult to see what other steps were reasonably open to them.
3.38 In any event, there was no duty on the part of the Appellants to
complain about every single defect at every step of the process. This is
exemplified by the case between Cameroon v. Nigeria, in which Nigeria relied
on its acts of administration coupled with the absence of protest by Cameroon
to argue that Cameroon had acquiesced in Nigeria’s conduct à titre de
souverain and it was no longer open to Cameroon to contest them. The Court
held that even though Cameroon had confined its protests to a few incidents
rather than reacting to the situation as it evolved, its firm protest to Nigeria’s
claim to sovereignty when that was first claimed by way of diplomatic note
showed “that there was no acquiescence by Cameroon in the abandonment of
its title in favour of Nigeria”244.
3.39 The Appellants’ appropriate “reaction, within a reasonable period”, to
use the well-known formulation from the Temple of Preah case245, was to avail
themselves of the right under the Chicago Convention to appeal the Decision
before the Court, including on the basis of the procedural defects in the
proceedings before the Council. That right was in fact exercised a matter of
days after the Decision was formally handed down.
244 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, para. 70.
245 Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports
1962, p. 23.
68Section 5.Conclusion: the Decision is a nullity ab initio3.40There can be no serious debate that the ICAO Council failed to proceed in accordance with fundamental principles of judicial procedure and due process. In its Counter-Memorial, Qatar fails to grapple with the fact that in circumstances where the procedural irregularities are fundamental, a decision emanating from that process must be regarded as legally non-existent.3.41Unlikethe earlier India v. Pakistan case, the procedural irregularities that vitiated the Decision hereare such as to prejudice in a “fundamental way the requirements of a just procedure”. The Court is respectfully invited to exercise its supervisory function and make a declaration to the effect that the Decision should be treated as nonest.
69
CHAPTER IV
SECOND GROUND OF APPEAL: THE REAL ISSUE OBJECTION
SHOULD BE UPHELD BY THE COURT
4.1 The Appellants’ second ground of appeal requests the Court to uphold
the preliminary objection to the competence of the ICAO Council on the basis
that the real issue in dispute between the Parties does not relate to the
interpretation or application of the Chicago Convention246. This objection is
made both as a matter of jurisdiction and as a matter of admissibility247, these
being separate and distinct grounds248.
4.2 Qatar’s Counter-Memorial significantly narrows the issues between the
Parties. Qatar now accepts that there is a dispute between the Parties arising out
of its own conduct and the countermeasures adopted by the Appellants in
response:
“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.”249
4.3 Qatar repeatedly underscores the differing, conflicting views held by
the two sides in this dispute, both as to whether Qatar was in breach of a
246 BESUM, paras 1.2(b) and 5.2.
247 Ibid., para. 5.2.
248 See ibid., paras 4.30-4.31; Oil Platforms (Islamic Republic of Iran v. United States of
America), Merits, Judgment, I.C.J. Reports 2003, p. 177, para. 29; see also
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, pp. 456-457, para. 120 and p. 460, para. 129; Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v.
Yugoslavia), Preliminary Objections, I.C.J. Reports 1996, p. 621, para. 42.
249 QCM(A), para. 3.37.
70number of important international obligations and as to whether the Appellants were justified in adopting countermeasures to induce Qatar to complywith its obligations. Qatar says that the charges that it supportsterrorism and interferesin other States’ affairs are “false”250and “baseless”251,and that the countermeasures adopted by the Appellants in response are “unjustifiable”252.Similarly, it accepts that “Qatar and [] Appellants appear to have a fundamental difference of viewsas to ...what constitutes media incitement.”253While “den[ying] in the strongest possible terms that it has ever violated any of the obligations [] Appellants claim”254.4.4Thus,the natureand content of the dispute between the Parties is made manifest, inter alia, by Chapter 2 of Qatar’s Counter-Memorialread side-by-side withChapter IIof the Appellants’ Memorial.4.5Recognizing the validity of the Appellants’ objection that the ICAO Council is not competent to determine the issue in dispute between Parties—which manifestly relates to a host of matters other than civil aviation—Qatar all but acceptsthat the Council lacks jurisdiction under Article 84of the Chicago Convention, including in respect of the Appellants’ invocation of countermeasures255. To overcome this difficulty, Qatar resorts to suggesting that the Council may have jurisdiction by way of forum prorogatum256,or that 250QCM(A), para. 2.1.251Ibid.,para. 2.25.252Ibid., para. 2.3.253Ibid., para. 2.56.254Ibid., para. 3.38.255See above, note7; QCM(A), paras 3.55, 3.68 and 3.69, cf para. 1.18. 256QCM(A), para. 3.73, note290.71the
71
the Council should simply take judicial notice of the Appellants’ invocation of
countermeasures without deciding the question at all257.
4.6 Accordingly, as noted above in Chapter II, Qatar’s Counter-Memorial
puts it beyond doubt that there exists a dispute over Qatar’s non-compliance
with its international obligations258.
4.7 As such, the key questions for the Court to determine are these:
(a) Whether the subject-matter of the dispute encompasses not only the
aviation restrictions but also the question of Qatar’s support of
terrorism and its other internationally wrongful acts, which gave rise to
the countermeasures imposed by the Appellants. This requires the
Court to determine the subject-matter of the dispute by application of
the “real issue” test259. (The jurisdictional objection.)
If the answer to this question is yes, the inquiry can stop there, as the
ICAO Council lacks jurisdiction because the Parties’ dispute extends
beyond the confines of Article 84 of the Chicago Convention.
257 Ibid., paras 3.68-3.69.
258 Above, para. 2.3, see also paras 4.2-4.3.
259 BESUM, paras 5.56-5.57. See Obligation to Negotiate Access to the Pacific Ocean
(Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015, p. 602,
para. 26; see also Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J.
Reports 2016, pp. 26-27, para. 50 (“‘[W]hether there exists an international dispute is
a matter for objective determination’ by the Court . . . [which] ‘must turn on an
examination of the facts.’”); Immunities and Criminal Proceedings (Equatorial
Guinea v. France), Preliminary Objections, Judgment of 6 June 2018, p. 17, para. 48
(“it is for the Court itself to determine on an objective basis the subject-matter of the
dispute between the parties, by isolating the real issue in the case and identifying the
object of the claim”).
72(b)If Qatar were correct that its Application concernsa dispute falling prima facie within Article 84 of the Chicago Convention, whether that dispute is, as a matter of judicial propriety and fairness, capable of being decided by the ICAO Council without deciding the disputed issues relating to Qatar’s support for terrorism and its interference in other States’ internal affairs and the countermeasures relied upon by the Appellants. (The admissibility objection.)4.8This chapter is structured accordingly.Section 1sets out the response to paragraph4.7(a)above, as to why the real issue in dispute does not concern “the interpretation or application” of the Chicago Convention and its Annexes, with the resultthat there is no jurisdiction. Section 2explains why the dispute isneverthelessinadmissible, in response to the question at paragraph 4.7(b) above, as the aviation aspects cannot on any view be severed from the broader dispute. Section 3then explains why, in any event, the suggestions by Qatar that the Council does not have to decide (at least in full) the issues relating tocountermeasures are to be rejected by the Court. Finally, Section 4concludes Chapter IV.Section 1.The real issue in dispute does not concern “the interpretation or application” of the Chicago Convention and its AnnexesA.THE “REAL ISSUE”TEST IS AN OBJECTIVEONE THAT REQUIRES THECOURT TO LOOK BEYOND THE APPLICANT’S PLEADINGS4.9It is the long-standing practice of the Court that the test as to whether there is a dispute between States, and as to the subject-matter of that dispute, is an objective one260.260BESUM, paras 5.47-5.70.734.10While
73
4.10 While Qatar acknowledges that the “proper characterisation of a
dispute ‘is a matter for objective assessment’”, it suggests that only an
applicant’s pleadings are to be taken into account in determining the real issue
in dispute261. Qatar fails even to acknowledge that the Court must also look to
the pleadings of the respondent, at both the written and the oral phase, as well
as other surrounding materials262. Qatar maintains, as it did before the ICAO
Council263, that “international courts and tribunals will determine the ‘real
issue’ in dispute by reference to the stated object of the applicant State’s
claims”264 and that the question of the subject-matter of the dispute is to be
determined according to a review of “Qatar’s pleadings”265. This is plainly not
the case.
4.11 The Appellants’ Memorial referred extensively to numerous past
decisions of the Court establishing that in order to ascertain the subject-matter
of a claim, “the Court cannot be restricted to a consideration of the terms of the
Application alone nor, more generally, can it regard itself as bound by claims of
the Applicant.”266 For instance, in Bolivia v. Chile, the Court stipulated that it
261 QCM(A), para. 3.30.
262 Ibid., para. 3.36 (“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.’”).
263 BESUM, Vol. IV, Annex 25, ICAO Response to Preliminary Objections, para. 44
(“The ‘real’ issue before the Council is the breach by the Respondents of the Chicago
Convention and its Annexes; this is what the Applicant has put before the Council in
the Application and the Memorial and it is plain and clear what the State of Qatar is
requesting from the Council.”); and ibid., para. 48.
264 QCM(A), para. 3.51 (emphasis added).
265 Ibid., Part B, Section 1, para. 3.31 et seq. (“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”).
266 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment I.C.J.
Reports 1998, p. 448, para. 29.
74must identify the subject-matter of the dispute based on “the written and oral pleadings of the parties”267. As these decisions make clear, in order to ascertain the “real issue” the Court must have regard not only to the Application, but also to the written and oral pleadings of both sides, and any relevant diplomatic correspondence, public statements, and other documents before the Court268.4.12That Qatar bluntly seeks to distance itself from the well-established practice of the Court is telling. The Appellants’ submissions, and other official documents prior to the imposition of countermeasures, in fact make clear the real issue in dispute between the Parties269. Qatar also seeks to distract from the myriad public statements that it has made which revealthe nature and content 267Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015, p. 602, para. 26.268See Right of Passage over Indian Territory, Merits, Judgment of 12 April 1960, I.C.J. Reports 1960, pp. 33-34 (taking into account “the Application itself ... the subsequent proceedings, the Submissions of the Parties and statements made in the course of the hearings”); Nuclear Tests (Australia v.France), Judgment, I.C.J. Reports 1974, p. 262, para. 29; Nuclear Tests (New Zealand v.France), Judgment, I.C.J. Reports 1974, p. 466, para. 30 (“[I]t is the Court’s duty to isolate the real issue in the case and to identify the object of the claim. It has never been contested that theCourt is entitled to interpret the submissions of the parties, and in fact is bound to do so; this is one of the attributes of its judicial functions.” (emphasis added)); Fisheries Jurisdiction (Spain v. Canada),Jurisdiction of the Court, Judgment I.C.J. Reports 1998, pp. 449-450, paras 31 and 33 (“The Court will itself determine the real dispute that has been submitted to it ... It will base itself not only on the Application and final submissions, but on diplomatic exchanges, public statements, and other pertinent evidence.” and “[T]he Court will ascertain the dispute between Spain and Canada, taking account of Spain’s Application, as well as the various written and oral pleadings placed before the Court by the Parties.”); Territorial and Maritime Dispute (Nicaragua v.Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 , p. 848, para. 38 (“[I]t is for the Court itself to determine the subject-matter of the dispute before it, taking account of the submissions of the Parties” (emphasis added)); Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of 6June 2018, p.17, para.48 (“[I]t is for the Court itself to determine on an objective basis the subject-matter of the dispute between the parties, by isolating the real issue in the case and identifying the object of the claim”). 269BESUM, paras 5.71-5.83.75of
75
of that dispute, many of which statements Qatar relied upon before the ICAO
Council270. Further, Qatar has no answer to the Appellants’ observation that
these statements constitute clear evidence of the real issue in the dispute271.
None of these statements refers to the airspace restrictions or the obligations of
the Appellants under the Chicago Convention—while all of them make
reference to the countermeasures imposed by the Appellants in response to
Qatar’s prior wrongful conduct.
4.13 But in any case, even on Qatar’s pleadings alone, it is a straightforward
matter for the Court to assess that the real issue does not concern the Chicago
Convention. This is the inexorable conclusion from Chapter 2 of Qatar’s
Counter-Memorial, in which Qatar acknowledges the existence of an antecedent
legal dispute with the four Appellant States concerning obligations not arising
under the Chicago Convention.
B. THE “REAL ISSUE” IN DISPUTE DOES NOT CONCERN CIVIL AVIATION
4.14 While Qatar now accepts that there is a dispute between the Parties
concerning its alleged wrongful conduct and the countermeasures adopted by
the Appellants to induce its compliance with its obligations272, the Parties
disagree as to whether the aviation aspects of this dispute, as identified in
Qatar’s Application, may be determined as a cognisable dispute severed from
the other aspects. The Appellants submit that:
270 See BESUM, Vol. IV, Annex 25, ICAO Response to the Preliminary Objections, see
for example, Exhibits 19, 20, 22, 23, 26, 34, 40, 41, 42 and 43, setting out the
descriptions of Foreign Minister Sheikh Mohammed bin Abdulrahman Al-Thani and
other Qatari officials of the accusations of Qatar’s support for terrorism and the
Appellants’ so-called “illegal blockade” against Qatar.
271 BESUM, para. 5.81.
272 QCM(A), para. 3.37, see above, paras 4.2-4.3.
76(a)this question is to be answered by application of the “real issue” test;and(b)on a proper application of that test, the ICAO Council should have found that the subject-matter of Qatar’s claim concerns the broader dispute, namely, the dispute as to Qatar’s non-compliance with other international law obligations that justified the Appellants adopting the measures they did.4.15By contrast, Qatar says that “[t]he 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.”2734.16Further, Qatar wrongly represents that “[e]ach and every time” the Court has determined disputes that were intertwined with a broader dispute, “it has ruled that the existence of other, related disputes did not deprive it of jurisdiction.”274As a matter of fact, this statement is incorrect. Manyof the cases invoked by Qatar involved variations on the political question doctrine275,which has never been invoked by theAppellants, is not accepted by the Court, and iswholly different from the “real issue” testwhich is accepted and has been consistently applied by the Court. More importantly, in at least two cases cited by the Appellants in their Memorial, the Court or atribunal has determined that 273QCM(A), para. 3.38. 274Ibid., (emphasis added). 275Ibid., para. 3.38, note 221.77itwas
77
it was without jurisdiction276. That was so in the Aegean Sea case before the
Court and also in the Chagos Islands arbitration277.
4.17 Qatar unsuccessfully attempts to distinguish the Chagos Islands
arbitration, characterizing it as involving a “novel test” to determine “where the
relative weight of the dispute lies”278. Yet the “real issue” test has a long
pedigree within the practice of the Court, as the Appellants made clear in their
Memorial279. Furthermore, the case now before the Court is closely analogous
to the situation before the tribunal in the Chagos Islands arbitration, in that the
aviation countermeasures are merely one, incidental aspect, of a broader dispute
which involves a bloc of countermeasures280. In this case, the positions of the
Parties on the question of the Appellants’ compliance with the Chicago
Convention is simply “one aspect of [the] larger dispute”281—as Qatar in fact
now acknowledges282—concerning its compliance with the Riyadh Agreements
and its other international obligations, and the imposition of countermeasures
by the Appellants in response. That is clear from the entirety of the record,
276 BESUM, para. 5.60.
277 See Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports
1978, pp. 35-37, paras 83, 87 and 88; In the matter of the Chagos Marine Protected
Area Arbitration (Republic of Mauritius v. United Kingdom of Great Britain and
Northern Ireland), P CA C ase N o. 2 011-03, Award, 18 March 2015, pp. 86-88,
paras 207-212.
278 QCM(A), para. 3.50.
279 BESUM, paras 5.48-5.60 and 5.67-5.69.
280 See 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 March 2015, p. 88, para. 212.
281 Ibid.
282 QCM(A), para. 3.37.
78notably including each of the Appellants’ official announcements of the June 2017 measures283, and Qatar’s own official descriptions284.4.18Accordingly, the civil aviation aspects are merely a part—and indeed an inextricable part—of the broaddispute that both sides now recognize exists between the Parties285.It followsthat the real issue before the ICAO Council wasthis broad dispute,including the question of countermeasures. And that dispute falls outside the Council’s competence, as defined by Article 84 of the Chicago Convention.C.RESPONDENT’S EXPANSIVE READING OF ARTICLE 84OF THE CHICAGO CONVENTION WOULD EXTEND IT BEYOND THE LIMITS OF THE STATES PARTIES’CONSENT4.19The conclusion that the real dispute falls outside of the Council’s competence remains unaltered by Qatar’s proposed expansive interpretation of the words “application and interpretation” in Article 84 of the Chicago Convention.4.20Qatar proposes:“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 [the]very least, that the Council has jurisdiction to decide disputes ‘relating to the interpretation or application’ of the 283BESUM, paras 2.4-2.8.284Ibid., para. 5.81; see BESUM, Vol. IV, Annex 25, ICAO Response to the Preliminary Objections, see, for example, Exhibits 19, 20, 22, 23, 26, 34, 40, 41, 42 and 43, setting out the descriptions of Foreign Minister Sheikh Mohammed bin Abdulrahman Al-Thani and other Qatari officials of the accusations of Qatar’s support for terrorism and the Appellants’ so-called “illegal blockade” against Qatar. 285BESUM, paras 5.71-5.83.79Chicago
79
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.”286
4.21 Qatar’s Counter-Memorial suggests that the “full extent” wording is
taken from the Court’s decision on the request for an advisory opinion in
Legality of the Use by a State of Nuclear Weapons in Armed Conflict287. But
there is nothing in that Opinion suggesting that the Court intended this language
also to apply to the interpretation of a compromissory clause in an international
treaty, and in the context of a contentious case based on such a compromissory
clause.
4.22 This position would, moreover, go against the practice of the Court,
which has consistently interpreted compromissory clauses in accordance with
the ordinary rules of treaty interpretation and consistently with the object and
purpose of the treaty288. As Judge Higgins explained in her Separate Opinion in
the Oil Platforms case, which elaborated on the Court’s reasoning, “[t]he Court
286 QCM(A), para. 3.8.
287 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory
Opinion, I.C.J. Reports 1996, pp. 78-79, para. 25; in turn citing Jurisdiction of the
European Commission of the Danube, Advisory Opinion, P.C.I.J. Reports 1927,
Series B, No. 14, p . 64 ( “As t he E uropean C ommission i s not a S tate, b ut a n
international institution with a special purpose, it only has the functions bestowed
upon it by the Definitive State with a view to the fulfilment of that purpose, but it has
power to exercise these functions to their full extent, in so far as the Statute does not
impose restrictions upon it.”).
288 See, for example, South West Africa Cases (Ethiopia v. South Africa; Liberia v.
South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 336 (“This
contention is claimed to be based upon the natural and ordinary meaning of the
words employed in the provision. But this rule of interpretation is not an absolute
one. Where such a method of interpretation results in a meaning incompatible with
the spirit, purpose and context of the clause or instrument in which the words are
contained, no reliance can be validly placed on it.”).
80has no judicial policy of being either liberal or strict in deciding the scope of compromissory clauses: they are judicial decisions like any other.”289The Court also applies the ordinary rules of treaty interpretation in considering declarations recognizing the jurisdiction of the Court as compulsory290.4.23In any case, in the Legality of the Use by a State of Nuclear WeaponsOpinion, the Court did not apply the “full extent” wording in the manner whichQatar suggests, namelyto adopt an expansive interpretation of its jurisdiction. Ratherthan concerning the scope of the Court’s jurisdiction, the issue was the scope of the power of the World Health Organization (WHO)to request an 289Separate Opinion of Judge Higgins, Oil Platforms (Islamic Republic of Iran v.United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1996,p.857, para. 35 (“It is clear from the jurisprudence of the Permanent Court and of the International Court that there is no rule that requires a restrictive interpretation of compromissory clauses. But equally, there is no evidence that the various exercises of jurisdiction by the two Courts really indicate a jurisdictional presumption in favour of the plaintiff. ... The Court has no judicial policy of being either liberal or strict in deciding the scope of compromissory clauses: they are judicial decisions like any other.”). 290See, for example, Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), Preliminary Objections, Judgment, I.C.J. Reports 1952,p. 104 (“[T]he Court cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court”); Temple of Preah Vihear (Cambodia v.Thailand), Preliminary Objections, Judgment of 26May 1961, I.C.J. Reports 1961,p. 32 (“[T]he Court considers that it must interpret Thailand’s 1950 Declaration on its own merits, and without any preconceptions of an a priorikind, in order to determine what is its real meaning and effect if that Declaration is read as a whole and in the light of its known purpose . . . . In so doing, the Court must apply its normal canons of interpretations, the first of which, according to the established jurisprudence of the Court, is that words are to be interpreted according to their natural and ordinary meaning in the context in which they occur.”). See also Polish Postal Service in Danzig, Advisory Opinion, P.C.I.J. Reports 1925, Series B, No. 11,p.39 (“In the opinion of the Court, the rules as to a strict or liberal construction of treaty stipulations can be applied only in cases where ordinary methods of interpretation have failed. It is a cardinal principleof interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd.”).
81
advisory opinion. The Court held that this power had to be understood in light
of the limited scope of the WHO’s mandate to focus on world health, as defined
by Article I of the WHO Constitution. Notwithstanding that the WHO had
sought to characterize the issues in such a way as to construct a link with its
mandate, by emphasizing the “health and environmental effects” of nuclear
weapons, the Court held that the question did not have a “sufficient connection”
to the functions of the WHO291. The notion of “to [the] full extent” was thus not
adopted by the Court in reaching its decision, but merely cited in passing292.
The Court determined that the WHO’s power to request advisory opinions was
to be seen in the context of its limited overall mandate as a specialized agency
within the United Nations system293.
4.24 In light of the rules of interpretation consistently applied by the Court
in the exercise of its jurisdiction, it would be unreasonable, indeed absurd, to
expand the jurisdictional limits of Article 84 of the Chicago Convention so as to
cover a dispute falling outside that Convention: this would be inconsistent with
the specialized nature of the Convention and of ICAO itself294. It would also
open a back door to bring before the ICAO Council all manner of disputes
291 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory
Opinion, I.C.J. Reports 1996, pp. 76-77, para. 22.
292 Ibid., pp. 78-79, para. 25; in turn citing Jurisdiction of the European Commission of
the Danube, Advisory Opinion, P.C.I.J. Reports 1927, Series B, No. 14, p. 64 (“As
the European Commission is not a State, but an international institution with a
special purpose, it only has the functions bestowed upon it by the Definitive State
with a view to the fulfilment of that purpose, but it has power to exercise these
functions to their full extent, in so far as the Statute does not impose restrictions upon
it.”).
293 See Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory
Opinion, I.C.J. Reports 1996, pp. 79-80, para. 26.
294 It is of note that this consideration did not concern the Court in the WHO Advisory
Opinion, since this was not a contentious case. On the role of consent in advisory
opinions, see Interpretation of Peace Treaties, First Phase, Advisory Opinion, I.C.J.
Reports 1950, p. 71.
82outside the aviation sector, through the simple expedient of a connection or deemed connection to aviation—however remote, peripheral or artificial.D.UPHOLDING THE “REAL ISSUE”OBJECTION WOULD POSENO RISK TO THE INTERNATIONAL LEGAL ORDER4.25Finally, Qatar contends that the Appellants’ argument that the subject-matter of the dispute does not fall within Article 84 is somehow to be seen as posing “dangers to the international legal order”295. Qatar says that this would permit the Appellants to “control [the] competence” of the Council by “casting a ‘defence on the merits . . . in a particular form’ (iecountermeasures)”296, a result that (Qatar says) the Court rejected in India v. Pakistan297. According to Qatar, any State could simply invoke countermeasures to avoid obligations under a treaty298:“The crux of those arguments is that a body empowered to adjudicate a dispute concerning the ‘interpretation and application’ of a specific treaty is deprived of that powerwhenever the respondent State asserts a defence based on lawful ‘non-reciprocal’countermeasures. . . . Respondent States would be able to avoid compulsory dispute settlement brought pursuant to a treaty compromissory clause whenever they so choose merelyby asserting a ‘lawful’countermeasures defence....The law of countermeasures would thus become a trump card that would undermine the entire system of international dispute settlement.”299295QCM(A), para. 3.4. 296Ibid.,para. 3.23.297Ibid.,para. 3.24.298Ibid., para.3.23et seq.299Ibid., para. 3.4.834.26However,
83
4.26 However, Qatar’s argument rests on a critical and unstated assumption
that the Parties’ dispute is to be characterized solely by reference to the narrow
manner in which Qatar has now sought to formulate its claim. Given that the
real issue in dispute between the Parties does not concern matters cognisable
under the Chicago Convention300, Qatar’s reasoning breaks down. It is by
application of this objective test that the dispute is to be regarded as falling
outside the Chicago Convention, not because the Appellants rely on
countermeasures.
4.27 By upholding the Appellants’ objection, the Court will be upholding
the limited jurisdictional scope of Article 84, consistent with the consent of the
States Parties to the jurisdiction of the ICAO Council. Indeed, similar concerns
about the threat to the international legal order arise from Qatar’s unsupported
argument that the broadest possible interpretation of Article 84 should be
adopted301. That approach would extend the jurisdiction of the ICAO Council
over matters lying far beyond its specialized, limited competence, in respect of
which matters the States Parties did not consent to ICAO exercising a judicial
function. The Appellants recall that the India v. Pakistan case did not concern a
300 By way of contrast, the situation may be different where the defence or jurisdiction
relied upon arises under the terms of the same treaty containing the compromissory
clause which forms the basis of jurisdiction for the dispute, see, e.g. Alleged
Violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights
(Islamic Republic of Iran v. United States of America), Request for the Indication of
Provisional Measures, Order, 3 October 2018, p. 12, para. 42 (“The Court observes
that Article XX, paragraph 1, defines a limited number of instances in which,
notwithstanding the provisions of the Treaty, the Parties may apply certain measures.
Whether and to what extent those exceptions have lawfully been relied on by the
Respondent in the present case is a matter which is subject to judicial examination
and, hence, forms an integral part of the material scope of the Court’s jurisdiction as
to the ‘interpretation or application’ of the Treaty under Article XXI, paragraph 2.”
(emphasis added)).
301 QCM(A), para. 3.8.
84question of countermeasures302. While Qatar suggests that the Appellants’ objection would allow respondent States to avoid compulsory dispute settlement pursuant to a treaty compromissory clause merely by asserting countermeasures, this would only be a concern if respondent States abusively invoked countermeasures in bad faith, in circumstances lacking any foundation in fact. Qatar admits that there is a dispute between the Parties concerning the legality of its other conduct303. While Qatardisagrees on whether, in the circumstances of the present case,countermeasures are available in law and in fact304, it rightly does not suggest that they were invoked by the Appellants in bad faith305.Section 2.The adjudication of Qatar’s Claims by the ICAO Council would beinconsistent with judicial propriety because the civil aviation aspects cannot be severed from the broader dispute4.28In addition, the Appellants have stressed that it would be “incompatible with the fundamental principle of the consensual basis of international jurisdiction, and therefore incompatible with judicial propriety and the ICAO Council’s judicial functionunder Article 84 of the Chicago Convention for the ICAO Council to exercise jurisdiction over Qatar’s claims.”306Again, the simple point is that the Council cannot properly determine the civil aviationissues of the dispute without also adjudicating the 302BESUM, paras 5.86-5.91.303See ibid., para. 3.37.304BESUM, Vol. IV, Annex 25, ICAO Response to the Preliminary Objections, para.77. 305See QCM(A), paras 3.18-3.70.306BESUM, para. 5.2(b).
85
broader aspects of the dispute which fall outside of its jurisdiction, including
the Appellants’ reliance on countermeasures307.
4.29 Qatar has raised no dispute as to the basic contours of objections to
admissibility; further, Qatar no longer makes any argument that the ICAO
Council may not properly rule on questions of admissibility as a preliminary
matter308. Even so, while Qatar does not dispute the existence of the doctrine of
judicial propriety as a ground for inadmissibility, it barely engages with the
Appellants’ arguments, essentially repeating its arguments on jurisdiction309.
4.30 On the one hand, Qatar argues that the issue rests only on jurisdictional
grounds, such that if the Court dismisses the Appellants’ “real issue” objection,
it need go no further; that countermeasures do not rule out a breach in limine;
and that the Appellants would in any event have to demonstrate compliance
with the procedural preconditions of countermeasures310. Notwithstanding these
arguments, it is clear, however, that jurisdiction and admissibility are different
307 Ibid., paras 5.122-5.127.
308 QCM(A), para. 3.72, note 286.
309 Ibid., paras 3.73 and 3.77.
310 Ibid., paras 3.71-3.73.
86notions311; indeed, issues of admissibility go precisely to whether the Court should exercise a jurisdiction which it otherwise possesses312.4.31On the other hand, Qatar simply points out that the current situation is not analogous to what it asserts (without any support) isa “closed set” of exceptional circumstancesof inadmissibility313. But such an approach ignores the fact that considerations of judicial propriety are of necessity flexible:they must be adaptable to new factual situations,since their ultimate goal is to safeguard the integrity of the Court’s judicial functions314.4.32Since Qatar does not properly engage with this aspect of the Appellants’ case, the Appellants rest upon the arguments made in their Memorial in this regard315.311See BESUM, paras 4.11-4.31; see also Oil Platforms (Islamic Republic of Iran v. UnitedStates of America), Merits, Judgment, I.C.J. Reports 2003, p. 177, para. 29 (“Objections to admissibility normally take the form of an assertion that, even if the Court has jurisdiction and the facts stated by the applicant State are assumed to be correct, nonetheless there are reasons why the Court should not proceed to an examination of the merits.”); 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, pp.456-457, para.120.312Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, pp.456-457, para.120; see also BESUM, Chapter IV, particularly paras 4.1-4.2.313QCM(A), para. 3.74.314See Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 29 (“There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore. There may thus be an incompatibility between the desires of an applicant, or, indeed, of both parties to a case, on the one hand, and on the other hand the duty of the Court to maintain its judicial character. The Court itself, and not the parties, must be the guardian of the Court’s judicial integrity.”); Dissenting Opinion of Judge Donoghue, Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of 6June 2018,paras 7 and 19.315BESUM, paras 5.96-5.127.
87
Section 3. In any event, the Court should reject Qatar’s suggestions as
to how the ICAO Council might accept jurisdiction without deciding
countermeasures
4.33 The disagreement submitted by Qatar to the ICAO Council would
necessarily require the Council to adjudicate upon matters falling outside its
jurisdiction, whether or not the Court accepts that the real issue in dispute
concerns matters falling outside of the Chicago Convention. Indeed, as Qatar all
but concedes, the ICAO Council does not have jurisdiction over the question
whether the Appellants’ countermeasures were justified by Qatar’s prior
conduct316. The logical conclusion of Qatar’s position is that the Council must
decline to exercise jurisdiction, whether as a matter of jurisdiction or
admissibility. To avoid this result, Qatar makes a series of suggestions, none of
which appears straightforward or proper, as to why the ICAO Council would
nevertheless have jurisdiction to adjudicate on the merits of Qatar’s claims317.
Each of Qatar’s three suggestions would require the Council to determine, in
whole or in part, the Appellants’ claim of countermeasures on the merits, which
is improper at the jurisdictional phase of the proceedings. Quite apart from this,
the arguments also lack any merit and are highly speculative. Thus, they merely
serve to highlight the force of the Appellants’ objection that the question of
countermeasures falls outside the jurisdiction of the Council.
A. QATAR WRONGLY INVITES THE COURT TO FIND THAT COUNTERMEASURES ARE
EXCLUDED BY THE CHICAGO CONVENTION
4.34 Qatar first makes lex specialis arguments, which are artefacts of recent
vintage, absent from Qatar’s pleadings before the ICAO Council318. Qatar
316 See above, note 7; QCM(A), paras 3.55, 3.68 and 3.69, cf para. 1.18.
317 QCM(A), paras 3.29-3.70.
318 Ibid., para. 3.59 et seq.; see BESUM, Vol. IV, Annex 25, ICAO Response to
Preliminary Objections, paras 75-77 and 82.
88suggests that “[t]he Council could very well find that the provisions of the Chicago Convention” constitute “‘derogation clauses or other treaty provisions (e.g. those prohibiting reservations)’” and that these “may entail the exclusion of countermeasures”319.4.35However, this argument fails to engage with the terms of the Riyadh Agreements, which clearly establish a broad and free-standing right of Contracting States to adopt “appropriate action”—without restriction or qualification—in case of anotherContracting State’s non-compliance320.Thus the ImplementingMechanism expressly provides:“The leaders shall take theappropriate action towards what the Ministers of Foreign Affairs raise to them regarding any country that has not complied with the signed agreement by the GCC Countries.. . .If any country of the GCC Countries failed to comply with this mechanism, the other GCC Countries shall have the right to take an[y] appropriate action to protect their security and stability.”3214.36Naturally, the relationship between the Riyadh Agreements, the Chicago Convention, the IASTA, and the customary international law right of countermeasures is a matter for argument only at the merits stage, in the event that the Court were to uphold the ICAO Council’sjurisdiction. But the simple 319QCM(A), para. 3.60, quoting from BESUM,Vol.II, Annex13, International Law Commission (ILC), Articles on Responsibility of States for Internationally Wrongful Acts (2001), in Report of the International Law Commission on the Work of its Fifty-third Session(2001), doc. A/56/10, Chapter V, reproduced in ILC Yearbook2001, Vol.II(2) (ARSIWA), Art. 50, Comment 10, p. 133.320BESUM, Vol. II, Annex 20, Implementing Mechanism, 17 April 2014.321Ibid.
89
point is that the free-standing right to adopt “appropriate action” within the
Riyadh Agreements is not subject to any preconditions, other than the
requirement of a breach by Qatar, and is sufficiently broad to provide a
justification for action that might otherwise be deemed inconsistent with the
Chicago Convention.
4.37 Furthermore, in its South West Africa Advisory Opinion, the Court
recognized the existence of–
“the general principle of law that a right of
termination on account of breach must be presumed
to exist in respect of all treaties, except as regards
provisions relating to the protection of the human
person contained in treaties of a humanitarian
character . . . The silence of a treaty as to the
existence of such a right cannot be interpreted as
implying the exclusion of a right which has its source
outside of the treaty, in general international law, and
is dependent on the occurrence of circumstances
which are not normally envisaged when a treaty is
concluded.”322
4.38 The same fundamental principle applies here. That the Chicago
Convention does not expressly reiterate the existence of the customary
international law entitlement to take countermeasures may not be read as
implying the exclusion of that entitlement.
4.39 Further, in the terms of the Commentary to the ILC Articles on State
Responsibility, “derogation clauses or other treaty provisions” such as Qatar
envisages may exclude a countermeasures defence only where they indicate that
322 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, p. 47, para. 96.
90therelevant obligationsare “intransgressible”323. The originof thatterm underscoresthe exceptional nature of “intransgressible” obligations324. Qatar has provided no argument as to why obligations regarding civil aviation should be given a status akin to jus cogens.4.40Qatar wrongly claims that “the Convention contains only one derogation clause, Article 89, entitled “War”325. Qatar asserts that this clause operates as a specific “derogation” from the ordinary entitlementto resort to countermeasures326. Qatar implies that the supposed derogation amounts to an advance exclusion of countermeasures. No authority is supplied for this argument327; and none can be.4.41As noted, the institution of countermeasures is so fundamental to the international system, and accordingly preclusion of it by advance agreement so far-reaching in its effects, that specific, express agreement would be required328.Indeed, State practice contains multiple examples of States suspending323BESUM,Vol.II, Annex13, ARSIWA, Art. 50, Comment 10, p. 133; citing Legality of the Threat or Use of Nuclear Weapons,Advisory Opinion, I.C.J. Reports 1996,p.257, para. 79.324The term “intransgressible” was used by the Court in the Legality of the Threat or Use of Nuclear Weapons,Advisory Opinion, I.C.J. Reports 1996, p. 257, para. 79. Itis properly to be seen as a reference to jus cogens norms, which are, by definition, non-derogable. See Vienna Convention on the Law of Treaties, signed at Vienna on 23 May 1969, 1155 United Nations, Treaty Series (UNTS)331, Art. 53 and Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012,p. 141, para.95.325In point of fact, Article 89 is entitled “War and Emergency Conditions”, although it comes under a general Chapter heading of “War”.326QCM(A), para. 3.60.327See ibid.328See BESUM,Vol.II, Annex13, ARSIWA, Art. 50, Comment 10, p. 133 (“States may agree between themselves on other rules of international law which may not be the subject of countermeasures, whether or not they are regarded as peremptory norms under general international law.”).
91
important international treaties under cover of countermeasures329, even where
those treaties already provide exceptions for different circumstances330.
4.42 In addition, Article 89 serves a different purpose than the institution of
countermeasures. It is an essentially defensive mechanism, granting contracting
States “freedom of action” unfettered by the Chicago Convention in exceptional
periods of war or national emergency331. By contrast, countermeasures serve
the broader purpose of seeking to induce a law-breaking State to cease its
unlawful conduct and adopt a lawful conduct332. Qatar’s suggestion that Article
89 supplants and excludes a State’s ability to resort to countermeasures
329 See Air Service Agreement of 27 March 1946 between the United States of America
and France, Award, 9 December 1978, RIAA, Vol. XVIII, p. 417.
330 See, for example, the aviation countermeasures imposed by certain western countries
against Poland and the Soviet Union in 1981 and by certain European Community
member States against the Federal Republic of Yugoslavia in 1998, discussed below,
para. 4.45. An additional historic example can be found in Germany’s withdrawal in
1936 from the Treaty of Mutual Guarantee between Germany, Belgium, France,
Great Britain and Italy, signed at Locarno on 16 October 1925, 54 UNTS 1926
(Locarno Treaty), on the basis that France had breached it by signing the Treaty of
Mutual Assistance between France and the Union of Soviet Socialist Republics,
signed at Paris on 2 May 1935 (167 LNTS 395). For a discussion, see O. Y. Elagab,
The Legality of Non-Forcible Counter-Measures in International Law (1988),
pp. 149-150. The principal obligation in the Locarno Treaty was that of Article 2
“Germany and Belgium, and also Germany and France, mutually undertake that they
will in no case attack or invade each other or resort to war against each other”, which
was subject to certain exceptions set out in paragraphs (1)-(3) of the same article in
case of self-defence, or actions taken under cover of the Covenant or the League of
Nations.
331 Qatar also suggests at QCM(A), para. 3.61 that none of the Appellant States has so
far formally notified the ICAO Council of a declaration of national emergency under
Article 89 of the Chicago Convention, and that none of the situations under Article
89, namely, “war” or a declaration of “national emergency”, “exists here”. Plainly,
these are not matters for the Court to consider in this appeal, as they pertain only to
the merits. Nevertheless, it remains open to each of the Appellant States formally to
issue Article 89 notifications. As the Appellants made clear in their 5 June 2017
statements, Qatar’s transgressions clearly affect the security and stability of the
declarant States, as well as the region, and as such, constitute the core interests
protected by Article 89.
332 See BESUM, Vol. II, Annex 13, ARSIWA, Art. 49, Comment 1, p. 130.
92conflates the separate functionsof these norms—which may be complementary in a number of situations but nevertheless remain distinct from an analytical and a policy perspective.4.43Moreover, Qatar is incorrect to suggest that Article 89 is the onlyprovision in the Chicago Convention that in some manner derogates from,provides an exception to, or otherwise qualifies the scope of the principal substantive obligations. The Chicago Convention contains a number of provisions,including both Article 89 and Article 9(b)333,whichillustrate that the obligations therein are not “intransgressible”and do not imply that theyconstitute an exhaustive list of the circumstances in which States may derogate from their obligations.4.44Nor are the substantive obligations of the Chicago Convention expressed in absolute terms. Rather, many of the provisions afford States considerable discretion in their application. For example, Article 5 provides a broad discretion for States to regulate non-scheduled flights for traffic purposes according to “such regulations, conditions, or limitations asit may consider desirable”334; while the obligation in Article 28 to provide air navigation 333BESUM, Vol II, Annex 1,Convention on International Civil Aviation, signed at Chicagoon7 December 1944, Art. 9(b) (“Each contracting State reserves also the right, in exceptional circumstances or during a period of emergency, or in the interest of public safety, and with immediate effect, temporarily to restrict or prohibit flying over the whole or any part of its territory, on condition that such restriction or prohibition shall be applicable without distinction of nationality to aircraft of all other States.”).334BEUM, Vol II, Annex 1,Convention on International Civil Aviation, signed at Chicagoon7 December 1944, Art.5(“ . . . Such aircraft, if engaged in the carriage of passengers, cargo, or mail for remuneration or hire on other than scheduled international airservices, shall also, subject to the provisions of Article 7, have the privilege of taking on or discharging passengers, cargo, or mail, subject to the right of any State where such embarkation or discharge takes place to impose such regulations, conditions or limitations as it may consider desirable.”).
93
facilities and the like applies only “so far as [each Contracting State] may find
practicable”335. States may also choose to contract out of Article 6, which
provides that “no scheduled international air service may be operated over or
into the territory of a contracting State”336.
4.45 Qatar represents that “no other State before [the] Appellants has ever
sought to justify non-performance of obligations under the Chicago Convention
on grounds of countermeasures”337. This assertion fails to acknowledge that
aviation-related countermeasures are well-known in State practice. Examples
include the following:
(a) The arbitral tribunal in the Air Service Agreement of 27 March 1946
between the United States of America and France determined that the
United States was entitled to take countermeasures involving the
suspension of performance under a bilateral aviation agreement in
response to France’s prior wrongful acts under the same treaty338.
France did not suggest in that case that civil aviation obligations are
intransgressible norms that may not be subject to countermeasures.
Nor did the Tribunal so hold; in fact, it expressly concluded that
countermeasures were, in principle, permissible.
335 BEUM, Vol II, Annex 1, Convention on International Civil Aviation, signed at
Chicago on 7 December 1944, Art. 28.
336 BEUM, Vol II, Annex 1, Convention on International Civil Aviation, signed at
Chicago on 7 December 1944, Art. 6.
337 QCM(A), para. 3.61.
338 Air Service Agreement of 27 March 1946 between the United States of America and
France, Award, 9 December 1978, RIAA, Vol. XVIII, p. 446, para. 99. See also
BESUM, Vol. II, Annex 13, ARSIWA, Art. 22, Comment 2, p. 75, Art. 51,
Comment 3, p. 134.
94(b)In December 1981, in response to the imposition of martial law in Poland,the United States, United Kingdom, France, the Netherlands, Switzerland and Austria imposed various measures against Poland and the Soviet Union, including the immediate suspension of the landing rights of Aeroflot in the US and LOT in the United States, United Kingdom, France, the Netherlands, Switzerland and Austria339.(c)In 1986, the United States Congress passed the Comprehensive Anti-Apartheid Act, which suspended the landing rights of South African Airlineson United States territory340. The stated purpose of the measure was to induce South Africa “to adopt reforms leading to the establishment of a non-racial democracy”341.339See BESUM,Vol.II, Annex13, ARSIWA, Art.54, Comment 3, p. 138; BESUR, Vol. II, Annex51, C. Rousseau, “Mesures prises par les Puissances occidentales à l’égard de la Pologne et de l’U.R.S.S. à la suite de l’établissement de l’état de guerre en Pologne le 13 décembre 1981”, (1982) 86 Revue Générale de Droit International Public603, pp. 603-610; BESUR, Vol. II, Annex3,United States-Polish People’s Republic Air Transport Agreement, signed at Warsaw on 19 July 1972, (1972) 23 United States Treaties4269; BESUR, Vol. II, Annex1, United States-Union of Soviet Socialist Republics Civil Air Transport Agreement, signed at Washington on 4 November 1966, (1967) 6International Legal Materials82; BESUR, Vol. II, Annex2,Amendment to United States-Union of Soviet Socialist Republics Civil Air Transport Agreement, signedat Moscow on 6 May 1968, (1968) 7International Legal Materials571; see also W. M. Reisman and J. E. Baker, Regulating Covert Action (1992), p. 112; BESUR, Vol. II, Annex52,M. E. Malamut, “Aviation: Suspension of Landing Rights of Polish Airlines in the United States”, (1983) 24 Harvard International LawJournal190.340See BESUM,Vol.II, Annex13, ARSIWA, Art.54, Comment 3, p. 138; BESUR, Vol. II, Annex4, Comprehensive Anti-Apartheid Act of 1986, (1987) 26 International Legal Materials77, § 306; United States-South Africa Air Services Agreement, 1947, 66 UNTS233, 239 (1950), Annex, Sections I and III. 341BESUR, Vol. II, Annex5, Department of Transportation Termination of Air Carrier Operations between the United States and South Africa, 31 October 1986, (1987) 26 International Legal Materials104, p. 105. See also BESUM,Vol.II, Annex13,ARSIWA, Art.54, Comment 3, p. 138. It may also be emphasized that a suspension of landing rights was not one of the measures that States Members of the United Nations were urged to adopt pursuant to UNSC resolutions on South Africa, such as
95
(d) In 1998, in response to the humanitarian situation in Kosovo, the
European Union banned all Yugoslav carriers from flying between the
Union and the Federal Republic of Yugoslavia, for any purpose342.
(e) In May 2016, the European Union prohibited any aircraft operated by
North Korean carriers or originating from North Korea from landing
in, taking off from, or overflying European Union territory343. These
measures were introduced in response to North Korea’s nuclear and
ballistic missile programme and are separate from the sanctions
required by the United Nations Security Council344.
4.46 Qatar also argues that the Tehran Hostages case is apposite, claiming
that “[i]n that case, Iran, just like [] Appellants here, claimed that its conduct
was justified by prior unlawful activities of the United States . . . [but] [t]he
Court did not consider Iran’s defence to fall outside its jurisdiction . . . [n]or did
United Nations Security Council Resolution 569 (1985) of 26 July 1985: BESUR,
Vol. II, Annex 9, United Nations, Resolution 569 (1985) adopted by the Security
Council at its 2602nd meeting on 26 July 1985.
342 BESUM, Vol. II, Annex 13, ARSIWA, Art. 54, Comment 3, p. 138; BESUR,
Vol. II, Annex 10, Common Position of 29 June 1998 defined by the Council on the
basis of Article J.2 of the Treaty on European Union concerning a ban on flights by
Yugoslav carriers between the Federal Republic of Yugoslavia and the European
Community (98/426/CFSP) [1998] OJ L190/3, as implemented by BESUR, Vol. II,
Annex 11, Council Regulation (EC) No 1901/98 of 7 September 1998 concerning a
ban on flights of Yugoslav carriers between the Federal Republic of Yugoslavia and
the European Community [1998] OJ L248/1.
343 See BESUR, Vol. II, Annex 13, European Union, Council Decision (CFSP)
2016/849 of 27 May 2016 concerning restrictive measures against the Democratic
People’s Republic of Korea and repealing Decision 2013/183/CFSP [2016] OJ
L141/79, Article 17; BESUR, Vol. II, Annex 14, European Union, Council
Regulation (EU) 2017/1509 of 30 August 2017 concerning restrictive measures
against the Democratic People’s Republic of Korea and repealing Regulation (EC)
No 329/2007, [2017] OJ L224/1, Article 41.
344 Cf. BESUR, Vol. II, Annex 12, United Nations, Resolution 1718 (2006) adopted by
the Security Council at its 5551st Meeting on 14 October 2006.
96the Court consider that such a defence deprived it of its jurisdiction to entertain the United States’ claims.”3454.47In the Hostages case, it is notable that Iran did not appear, and, as theCourt noted, neither did Iran seek to justify its detention of the diplomatic and consular staff as countermeasures346. As such, the Court was not required to determine whether the dispute, including Iran’s defence, entailed the “interpretation or application of” the Vienna Conventions on Diplomatic Relations and on Consular Relations347. In any event, the Court held that the special regime of diplomatic and consular law excluded the possibility of recourse to countermeasures. It noted that the regime of diplomatic and consular law expressly foresees specific mechanisms in the case of breach (such as the termination of relations; recalling of ambassadors; or declaration of diplomats as persona non grata348), such that it can properly be seen as a self-345QCM(A), para. 3.66.346United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980,pp. 19-20, para.36 (“[I]f the Iranian Government considered the alleged activities of the United States in Iran legally to have a close connection with the subject-matter of the United States’ Application, it was open to that Government to present its own arguments regarding those activities to the Court ... by way of defence in a Counter-Memorial ... .”) and p. 38, para. 82 (“[I]f the Iranian Government considered the alleged activities of the United States in Iran legally to have a close connection with the subject-matter of the Application it was open to Iran to present its own case regarding those activities to the Court by way of defence to the United States’ claims. The Iranian Government, however, did not appear before Court.”).347See Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, signed at Vienna on 18April 1961, 500 UNTS 241, Art. 1, p. 242; Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, signed at Vienna on 24April 1963, 596 UNTS 487, Art. 1, p. 488. 348United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, pp. 39-40, para. 85.
97
contained regime excluding the possibility of recourse to countermeasures349.
Moreover, the relevant obligation of inviolability is a principle of fundamental
importance underlying the diplomatic and consular regime, which States must
respect even in case of war or a cessation of diplomatic relations350. By
contrast, here, as already noted, it cannot be seriously suggested that
countermeasures involving the suspension of performance of obligations under
the Chicago Convention are impermissible.
B. THE COURT SHOULD REJECT QATAR’S SUGGESTION THAT THE ICAO COUNCIL
MAY DETERMINE THE APPELLANTS’ CONDUCT WITHOUT DETERMINING THEIR
COUNTERMEASURES
4.48 Qatar’s second argument is to suggest that even if countermeasures
may be invoked, the real issue remains one arising under the Chicago
Convention. The argument is that countermeasures “are only a temporary bar to
State responsibility, not a defence in limine”, such that “[t]he Council could still
find the aviation prohibitions wrongful under the Chicago Convention and its
Annexes, and simply take judicial notice of [] Appellants’ countermeasures
defence.”351 Qatar makes this argument notwithstanding its own
acknowledgement of the “preclusive effect of the countermeasures defence”352.
Qatar accordingly invites the Court to hold that the Council may determine that
349 Ibid., pp. 38-40, paras 83-86 (“[D]iplomatic law itself provides the necessary means
of defence against, and sanction for, illicit activities by members of diplomatic or
consular missions” . . . The rules of diplomatic law, in short, constitute a selfcontained
régime . . .”).
350 Ibid., p. 40, para. 86 (“[T]he principle of the inviolability of the persons of diplomatic
agents and the premises of diplomatic missions is one of the very foundations of this
long-established régime . . . [e]ven in the case of armed conflict . . . those provisions
. . . must be respected by the receiving State.”). See also BESUM, Vol. II, Annex 13,
ARSIWA, Art. 50(2)(b).
351 QCM(A), para. 3.68.
352 Ibid.
98the Appellants’ conduct is “wrongful” under the Chicago Convention without determining countermeasures as a circumstance precluding wrongfulness353.4.49The passage of the Commentary to the ILC Articles on State Responsibility cited by Qatar offers no support for this outcome354.The Commentaryrightly observes that “circumstances 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.”355That statement merely reflects that the obligations are not terminated by theinvocation of countermeasuresbut remain extant.That is of no moment here.4.50Furthermore, Qatar’s selective quoting of the Gabčikovo-Nagymaros Projectdecision ignores the fact that, having determined that the putting into operation of “Variant C”amounted to an internationally wrongful act by Slovakia, the Court considered that “it now has to determinewhether such wrongfulness may be precluded” on grounds of countermeasures356. Qatar’s Counter-Memorial omitted the words in italics, which make clear that the Court considered it mandatoryto determine the justification invoked by Slovakia before it could reach its overall conclusion as to the legality of Slovakia’s conduct357.353Ibid.,paras 3.56-3.57; citingGabčikovo-Nagymaros Project (Hungary/Slovakia),Judgment, I.C.J. Reports 1997, p. 55, para. 82.354See QCM(A), para. 3.68.355BESUM,Vol.II, Annex13, ARSIWA, Chapter V, Comment 2, p. 71.356Gabčikovo-Nagymaros Project (Hungary/Slovakia),Judgment, I.C.J. Reports 1997,p.55, para. 82 (emphasis added).357Ibid., p. 57, para. 88 (“In the light of the conclusions reached above, the Court, in reply to the question put to it ...finds that ...Czechoslovakia was not entitled to put that Variant into operation from October 1992.”).
99
4.51 Accordingly, the Court should not accept Qatar’s suggestion that, in
this case, the ICAO Council could “still find the aviation prohibitions wrongful
under the Chicago Convention and its Annexes”, by merely taking judicial
notice of the Appellants’ countermeasures justification358. This suggestion
ignores the fact that countermeasures, by definition, preclude wrongfulness. As
such, it is impossible for one to characterize the aviation restrictions as
“wrongful”, while leaving undetermined a justification that would—“in limine”,
to use Qatar’s phrase359—exclude such a characterization.
4.52 The unprecedented outcome proposed by Qatar would result in an
incoherent, inchoate decision, which, whilst acknowledging the breadth and
nature of the real issue in dispute, would result in a non liquet—which is, of
course, impermissible in contentious disputes360. As explained in the
Appellants’ Memorial361, such a decision would be prejudicial to the interests
of the Appellants since, on Qatar’s proposed approach, the alleged
“wrongfulness” of their conduct would be determined by the Council without
regard to the fundamental justification for that conduct. In any case, this would
not remove the prejudice to the Appellants of receiving a determination of
wrongfulness in the absence of a determination of its justification.
358 QCM(A), para. 3.68.
359 Ibid.
360 Desgranges v. International Labour Organization (1957) 20 International Law
Reports 523, p. 530 ( “One o f the f undamental tenets o f a ll legal s ystems i s that no
court may refrain from giving judgment on the ground that the law is silent or
obscure”).
361 BESUM, para. 5.121.
100C.THE COURT SHOULD REJECT QATAR’S SUGGESTION THAT THEICAOCOUNCIL COULD DETERMINE ONLYTHE PROCEDURAL ASPECTS OF COUNTERMEASURES4.53Qatar’s third suggestion as to how the ICAO Council could deal with the Appellants’ countermeasures is that it should determine only their procedural aspects, but not their substantive justification, namelyQatar’s wrongful conduct362.This would be convenient for Qatar, of course: the substance of its misconduct would remain unchecked. In any event, however,Qatar fails to see this argument through to its logical conclusion by explaining what the Council would then do in the event it would hold that the Appellants had complied with the procedural aspects.4.54Qatar’s suggestion is as novel asit is unwelcome. For the ICAO Council to consider only the procedural aspects of countermeasures, without also considering Qatar’s transgressions that gave rise to them in the first place, would be incoherent, and result in an inchoate and partial decision. It would sever the procedural and substantive conditions for countermeasures without justification or explanation, in a misplaced attempt to avoid the jurisdictional objection made by the Appellants (which objectconcernsallrequirements for countermeasures). The only way in which Qatar’s suggestion could operate would be if Qatar were to admit, and thus remove from the scope of the dispute, that the substantive conditions for the imposition of countermeasures had been met, namely that it had breached various international obligations. But this Qatar has not done.4.55Finally, Qatar’s suggestion that the Council would in any case have jurisdiction to determine the “substantive premise of the alleged 362QCM(A), para. 3.69.
101
countermeasures” on the basis of forum prorogatum363 is incoherent364. The
Appellants have at all stages disputed the Council’s jurisdiction over precisely
those issues; the suggestion that they have somehow thereby tacitly consented
to the Council exercising that jurisdiction is fundamentally flawed.
Section 4. Conclusion
4.56 In conclusion on Chapter IV, the Court should find that the ICAO
Council lacks jurisdiction. In the alternative, it should find that Qatar’s claim is
inadmissible, as it would be incompatible with judicial propriety and the ICAO
Council’s judicial function under Article 84 of the Chicago Convention for the
363 QCM(A), para. 3.73, note 290 (“Even if the Council needed to determine the
substantive premise of the alleged countermeasures, [] 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 o riginal t itle r elied o n’. . . . There i s n o r eason why the s ame l ogic s hould n ot
apply to the respondent State when raising a countermeasures defence.” (citing
H. Thirlway, The International Court of Justice (2016), p. 53).).
364 A preliminary objection cannot be construed as forming consent for jurisdiction, not
least because, in this case, the Council’s lack of jurisdiction, including its jurisdiction
to determine countermeasures, formed a core part of the Appellants’ preliminary
objection. See Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), Preliminary
Objections, Judgment, I.C.J. Reports 1952, p. 114 (“The principle of forum
prorogatum, if it could be applied to the present case, would have to be based on
some conduct or statement of the Government of Iran which involves an element of
consent regarding the jurisdiction of the Court. But that Government has consistently
denied the jurisdiction of the Court.”). Yet, the consenting conduct must be
“conclusive”. See Rights of Minorities in Upper Silesia (Minority Schools),
Judgment, P.C.I.J. Reports 1928, Series A, No. 15, p. 24 (“And there seems to be no
doubt that the consent of a State to the submission of a dispute to the Court may not
only result from an express declaration, but may also be inferred from acts
conclusively establishing it.”) (emphasis added). In any case, the Appellants reserved
their rights before the ICAO Council, stipulating that the Preliminary Objections
were made “without prejudice to the Respondents’ position on the merits of the
claims made by Qatar”; that the “Respondents fully reserve their rights” and that
“nothing in the present Preliminary Objections is to be taken as constituting an
admission in relation to any matter pertaining to the merits of Qatar’s claims.” See
BESUM, Vol. III, Annex 24, ICAO Preliminary Objections, paras 8-9; see also,
ibid., para. 35.
102Council to determine that claim in isolation from the numerous other aspects of the Parties’ disputeas set out in Chapter IIand as now acknowledged by Qatar.4.57The Court should find that the Council must decline to exercise any such jurisdiction as it possesses in order to safeguard the ICAO Council’s judicial function and its judicial integrity when acting pursuant to its judicial function under Article 84 of the Chicago Convention365.4.58This conclusion follows from the two important concessions made in Qatar’s Counter-Memorial. First, Qatar concedes the existence of a dispute concerning its wrongful conduct under international law obligations other than the Chicago Convention366.Second, it appears that Qatar is no longer suggesting—as it did before the ICAO Council367—that the Council clearly has jurisdiction to determine the substantive premise of the invocation of countermeasures. Instead, it suggests only that the Council has jurisdiction over “the dispute between the Parties regarding their violations of the Chicago Convention.”368This is a significant concession, demonstrating that Qatar recognizes the force of the preliminary objection raised by the Appellants.4.59The Preliminary Objection of the Appellants was made in good faith. The Appellants consider that the ICAO Council is not the appropriate forum to 365BESUM, paras 5.96-5.97.366See, for example, QCM(A), para. 3.37.367BESUM, Vol. IV, Annex 25, ICAO Response to Preliminary Objections, para.77 (“At any appropriate later stage of the proceedings (merits) the State of Qatar will provide a robust defence on the facts and in law to the claim of the Respondents, which will show that the actions taken by the Respondents are not lawful countermeasures, or otherwise lawful in international law.”).368QCM(A), para. 2.61. As before the ICAO Council, the Appellants’ reliance on countermeasures is without prejudice to whether the airspace measures might otherwise be inconsistent with their obligations under the Chicago Convention, see BESUM, Vol. III, Annex 24,ICAO Preliminary Objections, paras 8-9 and 35.103consider
103
consider the question as to whether they had a right to invoke countermeasures
in response to Qatar’s conduct369. They have not consented to the ICAO
Council hearing such a dispute, and consider that any attempt to extend the
scope of Article 84 by reading it expansively is to be resisted.
369 See ibid.
104CHAPTERVTHIRD GROUND OF APPEAL: THE ICAO COUNCIL ERRED IN REJECTING THE SECOND PRELIMINARY OBJECTIONRELATING TO PRIOR NEGOTIATIONS5.1TheAppellants’ Third Ground of Appeal against the Decision of the ICAO Council relates to whether Qatar complied with Article 84 of the Chicago Convention, and Article 2(g) of the ICAO Rules, both of which require States to attempt to resolve a dispute through negotiation before submitting it to the Council.5.2This ground of appeal goes to the Council’s jurisdiction over Qatar’s claims in its Application, and in the alternative to the admissibility of those claims, insofar as (a) Article 84 of the Chicago Convention contains a “precondition of negotiations”, which constitutes a limit on the jurisdiction of the Council, and (b) the ICAO Rules set out certain requirements relating to negotiations with which any Application and Memorial must comply. The Appellants consider that the latter issue gives rise to a question of admissibility.5.3At the outset, two comments are called for in connection with Qatar’s assertion that the ICAO Council “properly held that Qatar satisfied the Negotiation Requirement”370.5.4First, by referring to the “negotiation requirement”, Qatar implicitly accepts the position of the Appellants that Article 84 of the Chicago Convention constitutes a “precondition of negotiation”, which qualifies the consent of the 370QCM(A), p. 86, Section I.
105
States Parties to the jurisdiction of the Council, and compliance with which
constitutes a precondition to valid seisin371.
5.5 Second, contrary to Qatar’s assertion, the Decision adopted by the
ICAO Council provides no basis to conclude that the Council held that Qatar
had in fact “satisfied the negotiation requirement”372. The Council disposed of
the Preliminary Objections as to its competence to hear Qatar’s claims by a
single vote on the question of whether to accept the Appellants’ “Preliminary
Objection” (singular)373. The Council’s Decision on its face contains no
indication of the Council’s reasoning; further, given that the Council
deliberately eschewed any deliberation, the reasons underlying the Council’s
371 See e.g. 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, p. 128, para. 141.
372 QCM(A), Chapter 4, Section I heading (“The Council Properly Held that Qatar
Satisfied the Negotiation Requirement”).
373 BESUM, Vol. V, Annex 52, 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, The Council… “DECIDES that the
preliminary objection of the Respondents is not accepted.”
106Decision cannot be discerned from the summary records of the Council’s consideration of the Appellants’ Preliminary Objections374.5.6By way of a further preliminary observation, Qatar does not dispute much of what the Appellants submit, based on the Court’s case-law, is required in order for a party to comply with such a precondition. Nevertheless,Qatar does take issue with a number of specific points of detail as regards the standard applicable to the precondition of negotiation.5.7Section 1 of this Chapter deals with the objection to jurisdiction.In this regard,the Appellants first respond to Qatar’s arguments on the applicable standards, and what is required to comply with the precondition of negotiations (subsection 1(A)). Qatar also argues that, notwithstanding the absence of any communication from it seeking to initiate negotiations with the Appellants, the precondition of negotiations has nevertheless been fulfilled as a matter of fact;the reasons why that assertion is wrong are dealt with in subsection 1(B).374In this connection, it bears noting that before the Council, Qatar relied upon a number of arguments in respect of the Appellants’ argument based on failure to comply with the requirement of negotiations, which, while formally maintained in its Counter-Memorial, are not now seriously pressed before the Court. These include:(a) the argument, relying, inter alia, on the decision of the Permanent Court in Mavrommatis Palestine Concessions, that conduct subsequent to the filing of the Application could be taken into account in determining whether the “precondition of negotiation” was fulfilled: see BESUM, Vol. IV, Annex 25,ICAO Response to the Preliminary Objections, paras 99-101. Whilst Qatar formally maintains that argument, it is now confined to a footnote: see QCM(A), para. 4.38, note347;(b) the position that, in accordance with the ICAO Rules, only jurisdictional objections, but not objections to admissibility, could be raised byway of preliminary objection before the Council: see BESUM, Vol. IV, Annex 25,ICAO Response to the Preliminary Objections, paras 15 and 22;BESUM,Vol. V, Annex 53, ICAO Council –214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAOdocument C-MIN 214/8, 23July 2018, paras 46-52.Qatar now suggests that the issue is not one requiring determination by the Court: see QCM(A), para. 3.72, note286.107Section
107
Section 2 deals with Qatar’s response to the Appellants’ argument that Qatar’s
claims are inadmissible as a result of its non-compliance with Article 2(g) of
the ICAO Rules. Section 3 provides a conclusion.
Section 1. The Objection as to Jurisdiction
A. LEGAL STANDARD FOR THE PRECONDITION OF NEGOTIATION
1. Introduction
5.8 As noted, Qatar largely does not take issue with the relevant law in
respect of the jurisdictional limb of the Appellants’ objection as set out in the
Appellants’ Memorial. Qatar thus appears to accept that:
(a) a distinction is to be drawn between objections to jurisdiction and
objections to admissibility375;
(b) whilst objections to jurisdiction concern whether a dispute falls outside
the proper scope of the consent to jurisdiction, objections to
admissibility are characterized by the contention that there exists a
legal reason why the relevant court or tribunal should decline to hear
the case or a specific claim therein, notwithstanding the fact that it may
have jurisdiction376;
375 BESUM, paras 4.11-4.31; see also Oil Platforms (Islamic Republic of Iran v. United
States of America), Merits, Judgment, I.C.J. Reports 2003, p. 177, para. 29;
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, pp. 456-457, para. 120.
376 BESUM, paras 4.20-4.21; Oil Platforms (Islamic Republic of Iran v. United States of
America), Merits, Judgment, I.C.J. Reports 2003, p. 177, para. 29; 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, pp. 456-457,
para. 120.
108(c)the requirement that a dispute must be one which “cannot be settled by negotiation” in Article 84 of the Chicago Convention constitutes a “precondition of negotiation”, which qualifies the consent of States Parties to the exercise of jurisdiction by the Council and constitutes a precondition to seisin377; and(d)as such, any failure to comply with the precondition of negotiations inrespect of a particular dispute goes to the Council’s jurisdiction over that dispute378.5.9Qatar does, however, take issue with the Appellants’ position on a number of discrete points relating to the standard to be applied in determining whether the precondition of negotiations has been fulfilled. Each of those points is aimed at supporting its position that itin fact complied with the precondition of negotiations. Thus, Qatar argues that:(a)the precondition of negotiations is fulfilled “when a disputing party is confronted with an ‘immediate and total refusal’ to negotiate on the other side”379, and that in such circumstances, “a disputing party is not required to even attempt to negotiate”380;(b)the precondition of negotiations can be fulfilled through general statements and calls for dialogue. Qatar asserts in this regard that all that is required is “that the ‘subject-matter’ of the treaty giving rise to 377BESUM, paras 6.7-6.25.378Ibid., paras 4.29 and 6.9; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 39, para. 88.379QCM(A), para. 4.8.380Ibid., para. 4.20.109the
109
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’”381;
(c) in support of its position that the precondition of negotiations was
fulfilled through Qatar’s actions before ICAO and/or the WTO, Qatar
argues that what constitutes negotiations “should be assessed with
flexibility”382, and that “no specific format or procedure is
required”383;
5.10 In response, in the present Section the Appellants explain why Qatar’s
position is wrong. The Court’s prior jurisprudence is clear that:
(a) the precondition of negotiations cannot be satisfied without a “genuine
attempt” to negotiate first being made, even where the disputing Party
considers that any such attempt would be futile (Subsection 2);
(b) the “subject-matter” of the Treaty and the content of the relevant
obligations, the interpretation and/or application of which give rise to
the dispute, must be identified with sufficient specificity; as to this
requirement, the difference between the Parties appears to be one of
emphasis rather than one in law (Subsection 3);
(c) Subsection 4 then briefly discusses the apparent agreement between
the Parties that whilst a certain degree of flexibility is required in
assessing whether a genuine attempt at negotiations has been made,
381 QCM(A), para. 4.15.
382 Ibid., para. 4.16.
383 Ibid., para. 4.17.
110any such flexibilitycannot override the legal requirements for the precondition to be made out.2.The precondition of negotiations requires a “genuine attempt” to engage in negotiations5.11Qatar acknowledges and purports to accept the Court’s decision in Georgia v. Russiathat, where a jurisdictional provision contains language amounting to a “precondition of negotiation”, what is required is “at the very least ...agenuine attempt...to engage in discussions with the other disputing party, with a view to resolving the dispute”384.5.12However, Qatar then attempts to qualify this clear statement of law by suggesting that the precondition of negotiations:“may be satisfied by a genuine attemptby 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”385.5.13In this connection, Qatar proceeds to argue that where one disputing Party faces an “immediate and total refusal” to negotiate by the other side386, it is not even required to make any attempt to negotiate387.5.14However, as the Appellants explained in their Memorial388, the Court in Georgia v. Russiamade clear that the question of whether an attempt to 384Application 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, p.132, para.157. See BESUM, para. 6.28; QCM(A), paras 4.6-4.7.385QCM(A), para. 4.7 (italicised emphasis in original, underlined emphasis added).386Ibid., para. 4.8.387Ibid., para. 4.20.
111
resolve the dispute through negotiations has in fact failed or become futile
arises only if a genuine attempt has first been made:
“Manifestly, in the absence of evidence of a genuine
attempt to negotiate, the precondition of negotiation
is not met. However, where negotiations are
attempted or have commenced, the jurisprudence of
this Court and of the Permanent Court of
International Justice clearly reveals that the
precondition of negotiation is met only when there
has been a failure of negotiations, or when
negotiations have become futile or deadlocked”389.
5.15 The primary and initial question is thus whether there has been a
“genuine attempt” to engage in negotiations. It is only where such an attempt
has in fact been made that the question of whether the negotiations “failed,
became futile, or reached a deadlock” becomes relevant.
5.16 Thus, in Georgia v. Russia, the Court identified that it was required to
address:
“whether Georgia genuinely attempted to engage in
negotiations with the Russian Federation, with a view
to resolving their dispute concerning the Russian
Federation’s compliance with its substantive
obligations under CERD. Should it find that Georgia
genuinely attempted to engage in such negotiations
with the Russian Federation, the Court would
examine whether Georgia pursued these negotiations
as far as possible with a view to settling the dispute.
To make this determination, the Court would
ascertain whether the negotiations failed, became
388 BESUM, paras 6.6, 6.29-6.30.
389 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, p. 133, para. 159 (emphasis added).
112futile, or reached a deadlock before Georgia submitted its claim to the Court.”3905.17Similarly, in Obligation to Extradite or Prosecute, in considering whether there had been compliance with the precondition of negotiations contained in Article 30(1) of the UnitedNationsConvention Against Torture, the Court stated that it:“must begin by ascertaining whether there was, ‘at the very least[,] a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute’.”3915.18That a “genuine attempt” to engage in negotiations must first be shown to have been made is further confirmed by the fact that the Court in Georgia v. Russiaassessed as a preliminary matter “[w]hether the Parties have held negotiations on matters concerning the interpretation or application of CERD”392. Having concluded that, on the evidence before it, there had been no such attempt, the Court held that the precondition of negotiationshad not been met393. Accordingly, there was no need for the Court to address the further 390Ibid., p.134, para.162 (emphasis added).391Questions Relating to the Obligation to Extradite or Prosecute (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, pp.445-446,para.57, quoting 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 (I), p. 132, para. 157.392Application 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, p.134, (heading b) before para.163), and para. 163 (“the Court now turns to the evidence submitted to it by the Parties to determine whether this evidence demonstrates, as stated by Georgia, that at the time it filed its Application on 12 August 2008, there had been negotiations between itself and the Russian Federation”).393Ibid., pp.139-140, para.182.113question
113
question of whether the negotiations had failed or become futile or reached a
deadlock, and it did not do so394.
5.19 The decision of the Court in this regard also makes clear that, in
assessing the initial question of whether there has in fact been a “genuine
attempt” to negotiate, issues of whether any such attempt would be likely to
have failed or be futile are irrelevant. Notably, in reaching the conclusion that
the precondition of negotiations was not satisfied, the Court rejected Georgia’s
submission that “Russia’s refusal to negotiate with Georgia . . . is sufficient to
vest the Court with jurisdiction”395.
5.20 Qatar’s attempt to exempt a party from the requirement of a “genuine
attempt” to negotiate “if that attempt fails or becomes futile” thus conflates two
analytically distinct steps396. In any event, Qatar’s argument is on its face
incoherent—a genuine attempt to negotiate is either made or it is not. It is not
the genuine attempt to negotiate which may “fail or become futile”397, but
rather the process of negotiations; but reaching a conclusion as to the failure or
futility of negotiations necessarily presupposes that a genuine attempt to
negotiate has at the very least been made.
5.21 In support of its position as to the applicable standard for compliance
with the precondition of negotiations, Qatar suggests that a precondition of
negotiations is discharged “when a disputing party is confronted with an
394 Ibid.
395 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, p. 139, para. 182.
396 QCM(A), para. 4.7.
397 Ibid.
114‘immediate and total refusal’to negotiate on the other side”398.The real thrust of Qatar’s argument in this regard is rendered apparent from its later assertion that “a disputing party is not requiredto attempteven to negotiatewhen faced with the other party’s ‘immediate and total refusal’ to enter into any discussion on the matter”399.5.22That argument is a clear attempt to bypass the requirement that there be “at the very least, a genuine attempt”400to negotiate with a view to resolving the dispute.Again, it misrepresents the issue; the question is not whether a party is required “to negotiate”, but rather whether it has, at a minimum, made a “genuine attempt to engage in discussions with the other disputing party, with a view to resolving the dispute”401.5.23Similarly, Qatar’s assertion that 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”402,misrepresents the true position. What is required by the Court’s jurisprudence where a clause containing a precondition of negotiations is applicable is a “genuine attempt” to initiate negotiations. If such a genuine attempt is in fact made, but is rebuffed, then the precondition is fulfilled and the other party is unablethereby to frustrate access to the relevant forum.398Ibid., para. 4.8.399Ibid., para. 4.20; see also the later statement, in the context of its discussion of its supposed attempts to negotiate that “a disputing party’s ‘immediate and total refusal’ to negotiate, without more, dispenses with the need to examine the other party’s attempt to negotiate” (ibid., para. 4.36).400Application 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, p.132, para.157.401Ibid.402QCM(A), para. 4.9.1155.24Qatar’s
115
5.24 Qatar’s invocation of the dictum from North Sea Continental Shelf that
parties “are under an obligation so to conduct themselves that the negotiations
are meaningful”403, does not further its position. The passage relied on by Qatar
does not concern what is required in order to satisfy a jurisdictional
precondition of negotiation, but rather relates to the different issue of how
States are required to conduct themselves in the course of negotiations.
5.25 In support of its argument that the negotiation precondition is
discharged in circumstances where a party opposes an “immediate and total
refusal” to negotiate, Qatar also seeks to rely on the decision of the Court in
United States Diplomatic and Consular Staff in Tehran404. That decision is
inapposite for at least three reasons.
5.26 First, the jurisdictional provision at issue (Article XXI(2) of the USIran
Treaty of Amity, Economic Relations and Consular Rights) does not
contain a precondition of negotiation, but rather a requirement that the dispute
be “not satisfactorily adjusted by diplomacy”. Qatar’s attempt to suggest in this
connection that the Court “does not differentiate”405 between such a
requirement and a precondition of negotiations is simply wrong. As the Court
recently emphasized when interpreting the same provision, the requirement that
the dispute not be satisfactorily adjusted by diplomacy is an objective, factual
403 Ibid., para. 4.10; North Sea Continental Shelf (Germany/Denmark; Germany/
Netherlands), Judgment, I.C.J. Reports 1969, para. 85(a).
404 QCM(A), para. 4.8. Tellingly, although Qatar quotes the words “immediate and total
refusal” on various occasions in QCM(A), Chapter 4, Section 1 (see e.g., paras 4.8
and 4.20), it does not there provide any clear citation for the source of the quotation.
405 QCM(A), para. 4.8, note 307.
116one406. In contrast to a situation involving a precondition of negotiation, there is no need to examine whether negotiations have taken place, or have even been attempted; the sole question is whether the dispute has been satisfactorily adjusted by diplomacy:“Article XXI, paragraph 2, of the 1955 Treaty is not phrased in terms similar to those used in certain compromissory clauses of other treaties, which, for instance, impose a legal obligation to negotiate prior to the seisin of the Court (see 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(I), p. 130, para. 148). Instead, the terms of Article XXI, paragraph 2, of the 1955 Treaty are descriptive in character and focus on the fact that the dispute must not havebeen “satisfactorily adjusted by diplomacy”. Thus, there is no need for the Court to examine whether formal negotiations have been engaged in or whether the lack of diplomatic adjustment is due to the conduct of one party or the other. It is sufficient for the Court to satisfy itself that the dispute was not satisfactorily adjusted by diplomacy before being submitted to it (see Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003,pp. 210-211, para. 107).”407406Alleged Violationsof the 1955 Treaty of Amity, Economic Relations and Consular Rights (Islamic Republic of Iran v. United States of America), Request for the Indication of Provisional Measures,Order, 3 October 2018,para. 50.407Ibid.;Qatar’s suggestion that the Appellants “do not differentiate between requirements to negotiate ...and requirements to seek a satisfactory adjustment of a dispute by diplomacy ...” (QCM(A), note307) is likewise without foundation. The citation to the Appellants’ Memorial provided in support (BESUM, para. 3.56(b), relates to the different question of whether the absence of diplomatic relations per se constitutes an obstacle to the ability of a State to attempt to initiate negotiations, or excuses a State from complying with applicable jurisdictional preconditions.
117
5.27 Second, the words “immediate and total refusal” relied upon by Qatar
were used by the Court in discussing the other precondition to jurisdiction
specified in Article XXI(2) that the parties had not agreed to settle the dispute
through “some other pacific means”, and after the Court had already determined
that the dispute was one which “[c]annot be satisfactorily adjusted by
diplomacy”408.
5.28 Third, in any event, the Court held that the United States had in fact
made genuine attempts to initiate negotiations with Iran in respect of the
dispute409.
5.29 For these reasons, Qatar is wrong to suggest that the Court held that
the “Iranian Government’s ‘refusal . . . to enter into any discussion on the
matter’ . . . was sufficient to discharge the negotiation requirement under
Article XXI, paragraph 2”410.
408 United States Diplomatic and Consular Staff in Tehran (United States of America v.
Iran), Judgment, I.C.J. Reports 1980, p. 27, para. 51 (emphasis added).
409 Ibid. Qatar’s assertion that the Court did not mention “any attempts by the United
States to negotiate after its efforts to make its views known to Iran were rebuffed”
(QCM(A), para. 4.8) disregards the fact that the Court explicitly held that the United
States had made “efforts to … open negotiations” (United States Diplomatic and
Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports
1980, p. 15, para. 26; see also ibid., p. 25, para. 47, and p. 27, para. 51). As such, if a
precondition of negotiations had been applicable, it would have been satisfied.
410 In addition, Qatar also seeks to rely on paragraph 133 of the Court’s decision in
Georgia v. Russia: see QCM(A), para. 4.8, note 307. That paragraph, however,
contains the Court’s discussion of the application of the principle of effectiveness in
the interpretation of the words “cannot be adjusted by negotiation” in Article 22 of
CERD, and its relevance to Qatar’s argument is entirely opaque. In any event, it may
be noted that the Court later expressly noted the difference in formulations present in
different jurisdictional provisions in treaties, before going on to consider prior
decisions “concerning compromissory clauses comparable to Article 22 of CERD”
(ie those which require that a dispute must be one which “cannot be settled by
negotiations”): see Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary
1185.30It follows that Qatar is also wrong to suggest, by reference to the decision in United States Diplomatic and Consular Staff in Tehran, that the Court’s jurisprudence makes 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.”4115.31Instead, the true position is that, where a compromissory clause contains a precondition of negotiations, it is incumbent upon the State to make“at the very least, a genuine attempt” to initiate negotiations, even if it considers such negotiations to be futile. Qatar was thus, at a minimum, required to make such an attempt in order to satisfy the precondition of negotiations set out in Article 84of the Chicago Convention.3.The need to identify the specific obligations which form the subject-matter of the dispute5.32The precondition of negotiations contained in Article 84 of the Chicago Convention requires that the genuine attempt to negotiate by the State seeking to invoke jurisdiction must have particularly addressed (or at least sought to address) the specific question of interpretation or application of the treaty in dispute between the parties412.Objections, Judgment, I.C.J. Reports 2011, p.126, para. 136. Notably, in the following discussionin that regard, no reference was made to the Court’s decision in United States Diplomatic and Consular Staff in Tehran; that is for the simple reason that it is irrelevant. For the same reason, Qatar’s observation that the Appellants referred to the decision in United States Diplomatic and Consular Staff in Tehran“only once and for a rather minor point” (QCM(A), note310), whilst accurate so far as it goes, is nothing to the point. 411QCM(A), para. 4.36.412Ibid.,para. 4.13, note 312,referring to BESUM, para. 6.31.
119
5.33 Qatar suggests, however, that the Court’s decision in Georgia v. Russia
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’.”413
5.34 This disagreement between the Parties appears to be, at most, one of
emphasis, since, in any event, it will be for the Court to determine on the basis
of the particular facts whether the dispute was identified with sufficient
specificity in any attempt to negotiate.
5.35 However, and in any event, Qatar’s reading of Georgia v. Russia is
misleading: it conflates and seeks to apply the Court’s enunciation of the
applicable test for determining the existence of a dispute with what is required
to satisfy the precondition of negotiations414. The questions of whether there is
a dispute, and whether the precondition of negotiations is met, are analytically
distinct, and the relevant considerations are different415. Thus in Georgia v.
Russia, the Court determined that to demonstrate the existence of a dispute, a
complaining State must, at a minimum, have sufficiently identified the subjectmatter
of the relevant treaty in issue and in respect of which the dispute arises,
413 QCM(A), para. 4.15, quoting 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, p. 85, para. 30.
414 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, p. 84, para. 29.
415 Ibid., p. 8 4, p ara. 3 0 ( “While t he e xistence o f a dispute and the undertaking of
negotiations are distinct as a matter of principle, the negotiations may help
demonstrate the existence of a dispute and delineate its subject-matter.”).
120such that the State against which the claim is made is able to understand that there is or may exist a dispute in that regard416.5.36By contrast, the Courtlaterobserved that “the concept of ‘negotiations’ differs from the concept of ‘dispute’”417and referred in that context to the requirement that there should be “at the very least, ...a genuine attempt to negotiate”418. As the Court then explained, such negotiations:“must relate to the subject-matter of the treaty containing the compromissory clause. In other words, the subject-matter of the negotiations must relate to the subject-matter of the dispute which, in turn, must concern the substantive obligations contained in the treaty in question”.4195.37Thus, while it is not necessary that the party invoking jurisdiction “express[ly] reference [] the treaty inquestion”420, it is necessary that the negotiations or attempt to initiate negotiations at a minimum identify the relevant substantive obligations which are said to have been breached421. This requirement of specificity is particularly important in a situation such as the present, where the dispute alleged by Qatar forms only one part of a much broader international dispute between the Parties, as Qatar acknowledges.416Ibid.417Ibid., p.132, para. 157.418Ibid., p.132, para. 157.419Ibid., p.133, para.161 (emphasis added).420Ibid.421See e.g. Ibid., p.134, para.162, where the Court framed the issue as being “whether Georgia genuinely attempted to engage in negotiations with the Russian Federation, with a view to resolving their dispute concerning the Russian Federation’s compliance with its substantive obligations under CERD.” (emphasis added).
121
4. The need for flexibility in assessing negotiations
5.38 Qatar’s other comments concerning the need for a degree of flexibility
in assessing whether a genuine attempt to negotiate has taken place, and the
need to avoid excessive formalism422 can be dealt with far more briefly insofar
as there appears to be no substantive disagreement between the Parties as to the
applicable legal principles.
5.39 The Appellants do not dispute that, as a matter of principle, an attempt
to negotiate may be held to have been made through the medium of diplomacy
by conference or parliamentary diplomacy423. Nevertheless, any such flexibility
cannot override the legal requirements for the precondition of negotiations to be
satisfied, as set out above. Qatar does not appear to dispute this proposition in
its Counter-Memorial.
5.40 Rather, the disagreement between the Parties concerns the facts of the
case, and in particular whether Qatar’s actions in international organisations,
including in the context of ICAO, qualify as a “genuine attempt . . . to engage in
discussions with the other disputing party, with a view to resolving the
dispute”424. That question is addressed in the next section.
B. QATAR HAS FAILED TO SHOW THAT IT MADE ANY GENUINE ATTEMPT TO
NEGOTIATE
5.41 Qatar has not fulfilled the precondition of negotiations contained in
Article 84 of the Chicago Convention. It has not shown that at any point prior to
422 QCM(A), paras 4.15-4.17.
423 Cf. ibid., para. 4.17; South West Africa Cases (Ethiopia v. South Africa; Liberia v.
South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 346.
424 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, p. 132, para. 157.
122submission of its Application to ICAO on 30 October 2017, it took any concrete steps to initiate negotiations with the Appellants in respect of its claims concerning the alleged breach by the Appellants of their obligations under the Chicago Convention425.1.Qatar’s supposed efforts to settle the dispute through “direct means”5.42In their Memorial, the Appellants set out the reasons why the evidence put forward by Qatar before the ICAO Council to substantiate its compliance with the precondition of negotiations was ineffective for that purpose, inter alia, because it concerned calls or communications not addressed to the Appellants, and/or because it post-dated Qatar’s filing of the Application with the Council426.5.43Although Qatar’s Counter-Memorial contains a section dealing with its supposed attempts to settle the dispute through “direct means”427,it is striking that Qatar puts forward no evidence of even a singleattempt to settle the dispute with the Appellants by seeking to engagein discussionsasto the alleged breaches by the Appellants of their obligations under the Chicago Convention.5.44It is clear from other contexts that, where it suits its purposes, Qatar is fully capable of producing communications which, at least on their face, formallycomply withrelevant provisions requiring that a party make a genuine attempt to negotiate as a precondition to submitting a dispute for resolution.425As explained in the Memorial (BESUM, paras 6.32-6.34), even if any attempts to negotiate had been made after the filing of the Application, they are irrelevant for the purposes of assessing compliance with the precondition of negotiation, which must have been fulfilled as at the date of seisin.426BESUM, para.6.35 et seq.427QCM(A), paras 4.28-4.56.123Yet,
123
Yet, in the present case, Qatar chose never to send to the Appellants any such
communication seeking negotiations in respect of the claims it subsequently
submitted to the Council.
5.45 Moreover, although Qatar refers to the fact that there were 147 days
between the adoption by the Appellants of the measures on 5 June 2017 and the
submission of the Application to the ICAO Council on 30 October 2017, and
asserts that during this interval it sought to engage the Appellants in
negotiations428, it makes no reference to the fact that it submitted its original,
abortive, applications just days after it says the dispute arose429. Nor does it
refer to the fact that in those applications, dated just three days after the
adoption of the measures, it had already taken the position that any attempt to
initiate negotiations were “no longer possible” because of the severance of
diplomatic relations430. That was plainly insufficient time for any genuine
428 Ibid., para. 4.22.
429 See BESUM, paras 3.15-3.16 and 6.54-6.55; see also BESUM, Vol. III, Annex 22,
Request for 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
and the Kingdom of Bahrain to close their Airspace to aircraft registered in the State
of Qatar, attaching Application (1) of the State of Qatar, Complaint Arising under the
International Air Services Transit Agreement done in Chicago on 7 December 1944,
and Application (2) of the State of Qatar, Disagreement Arising under the
Convention on International Civil Aviation done in Chicago on 7 December 1944,
8 June 2017 and Memorials for Application (1) and (2).
430 See BESUM, para. 6.55; and see also BESUM, Vol. III, Annex 22, Request for 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 and the Kingdom
of Bahrain to close their Airspace to aircraft registered in the State of Qatar, attaching
Application (1) of the State of Qatar, Complaint Arising under the International Air
Services Transit Agreement done in Chicago on 7 December 1944, and Application
(2) of the State of Qatar, Disagreement Arising under the Convention on
International Civil Aviation done in Chicago on 7 December 1944, 8 June 2017 and
Memorials for Application (1), p. 6 and Application (2), p. 9; see also BESUM,
Vol. V, Annex 31, Request of the State of Qatar for Consideration by the ICAO
Council under Article 54(n) of the Chicago Convention, 15 June 2017, p. 10 (“all
124attempt to negotiate to have taken place, and Qatar has not suggested that any such attempt was made431.5.46At the same timeQatar has also abandoned the position it previously took before the Councilas to the impossibility of negotiations as a result of the severance of diplomatic relations. It no longer seeks to argue that the severance of diplomatic relations meant that negotiations were per seimpossible, but argues instead that “[a]t they veryleast, the absence of diplomatic channels ...made it much more difficult for Qatar even to attempt to negotiate”432.5.47Qatar’s retreat on this point is significant and constitutes a tacit recognition that its previous position was untenable. In particular, there is plainly no reason why the existence of diplomatic relations is required in order for a State to make a genuine attempt to initiate negotiations with a view to settling a dispute. For instance, negotiations could have been sought by a letter sentfrom Qatar’s Embassy or Permanent Mission to an international diplomatic ties between the nations concerned have been ruptured and negotiations are no longer possible”).431Notably, Qatar has abandoned any reliance upon the supposed telephone call on 5-6June 2017, which it had initially relied upon before the Council in its Memorial: see BESUM,Vol. III, Annex 23, ICAO Memorial, Sec. (g) and BESUM, paras6.49-6.51. 432QCM(A), para. 4.29. The Appellants’ relied on the Diplomatic and Consular Staff in Tehran, and Oil Platformsdecisions for the factual proposition that the Court has never treated the absence of diplomatic relations as relevant to compliance by an applicant with jurisdictional preconditions of negotiation or that a dispute should not have been satisfactorily adjusted by diplomacy (see BESUM, para. 6.53(b) and note439). Qatar’s response (see QCM(A), note332) isboth strained and artificial. Moreover, it proceeds on the mistaken assumption that Article XXI(2) of the Iran-US Treaty of Amity, Economic Relations and Consular Rights, which was at issue in both cases, contains a precondition of negotiation, which is not the case, as explained above, at paras5.25-5.30.125organization
125
organization to the Embassy or Permanent Mission of the Appellants433. No
such attempt was ever made by Qatar in this case.
5.48 Qatar attempts to divert attention from this fact by alleging that the
Appellants agreed to engage with Qatar on only one occasion: during a brief
telephone conversation between the Crown Prince of Saudi Arabia and the Emir
of Qatar on 8 September 2017434.
5.49 Although Qatar attempts to rebut the reasons already put forward by
the Appellants in their Memorial as to why that telephone conversation could
not on any view constitute a “genuine attempt” to initiate negotiations in
relation to the dispute435, the fundamental position remains that even putting the
matter at its highest, the telephone conversation did not go beyond a general
call for dialogue in relation to the wider dispute between the Parties as a whole,
and which did not concern the alleged violations of the Chicago Convention436.
As such, it cannot satisfy the requirement that Qatar should have made a
genuine attempt to negotiate in respect of the subject-matter of the dispute as to
the airspace restrictions subsequently submitted by Qatar to the ICAO Council,
433 For example, the requirement in Article XXI(2) of the Iran-United States Treaty of
Amity that the dispute was “not satisfactorily adjusted by diplomacy” was easily
satisfied in the absence of diplomatic relations between Iran and the United States,
with the Foreign Interests Section of the Embassy of Switzerland in Tehran serving
as the channel for communication between the States: 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 of 3 October 2018,
para. 47.
434 QCM(A), para. 4.42 et seq.
435 See BESUM, paras 6.78-6.82.
436 See Ibid., paras 6.80-6.81.
126which required that it should have concerned “the substantive obligations contained in the treaty in question”437.5.50Moreover, although Qatar argues that the Appellants acted in concert, such that contacts with Saudi Arabia should, in effect, be attributed to all of the States438, it provides no support for the argument that this should be the case. 5.51Qatar’s second fall-back position that it “repeatedly and publicly asserted its openness to dialogue and negotiation”439essentially reproduces the position it took before the Council, and has already been dealt with in the Memorial440.5.52As explained above, in accordance with the Court’s previous jurisprudence in respect of compromissory clauses containing a precondition of negotiation, what is required first and foremost is a “genuine attempt” to engage in discussions with the Appellants with a view to resolving the dispute under the Chicago Convention. Such an attempt must involve more than general calls for dialogue, but instead, must “relate to the subject-matter of the dispute which, in turn, must concern the substantive obligations contained in the treaty in question”441. Qatar has signally failed to reach this threshold and its attempts to reformulate the tests laid down by the Court cannot succeed, either as a matter of law or, indeed, as a matter of fact.437Application 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, p.133, para.161.438QCM(A), para. 4.46.439Ibid., para. 4.38.440BESUM, para. 6.76.441Application 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, p.133, para.161.1275.53Qatar
127
5.53 Qatar also attempts to rely upon the public statements, reported in the
press, of 28 June 2017442, 5 July 2017443, and 22 July 2017444 which refer in
very general terms to “air links”, “the blockade” and “contentious issues”.
However, even if such statements had been addressed to the Appellants (which
they were not), they are in any event incapable of satisfying the requirement of
negotiations, since they do not identify nor seek to initiate negotiations in
relation to the dispute as to the Appellants’ compliance with their relevant
substantive obligations contained in the Chicago Convention.
5.54 As a consequence, Qatar’s suggestion that it “tried repeatedly to
engage with Joint Appellants to settle the dispute before it instituted
proceedings before the ICAO Council”, does not reflect the reality of the
situation, which is that Qatar at no point attempted to initiate negotiations in
relation to the dispute as to obligations under the Chicago Convention which it
subsequently submitted to the ICAO Council.
2. Supposed negotiations within ICAO
5.55 Similarly, contrary to Qatar’s submissions, the proceedings within
ICAO are incapable of constituting genuine attempts to negotiate.
5.56 As set out in the Appellants’ Memorial, the letters sent by Qatar to the
Secretary-General of ICAO and the President of the Council were not addressed
to the Appellants, and in any event did not seek to initiate negotiations in
respect of the dispute relating to the Chicago Convention445.
442 QCM(A), para. 4.50.
443 Ibid., para. 4.51.
444 Ibid., para. 4.53.
445 BESUM, paras 6.63-6.66.
1285.57Quite apart from this, and insofar as Qatar seeks to rely upon statements made during the Article 54(n) proceedings, the following comment should be made. From the outset, Qatar sought to invoke both the formal dispute resolution proceedings under Article 84, as well as the procedure pursuant to Article 54(n) of the Chicago Convention446.5.58As explained in the Appellants’Memorial, the ICAO Council itself was at all times careful to maintain the distinction between the two procedures, and to ensure that the Article 54(n) proceedings were limited to issues relating to safety of aviation and contingency routes, and did not touch upon the question of the dispute initiated under Article 84447. In these circumstances, the Article 54(n) proceedings cannot be regarded as constituting negotiations for the purposes of the precondition of negotiations under Article 84 of the Chicago Convention. 5.59Nor can Qatar rely on its statement, made at the Extraordinary Session of the ICAO Council on 31 July 2017,at which Qatar’s request for 446BESUM, Vol. IV, Annex 25,ICAO Response to the Preliminary Objections, Exhibit 2, Letter from Qatar dated 5 June 2017, ref. QCAA/ANS.02/502/17, to the Secretary General;BESUM, Vol. IV, Annex 25, ICAO Response to the Preliminary Objections, Exhibit 3, letter of the Qatar Civil Aviation Authority to the President of the Council, dated 8 June2017, ref. 2017/15984(see also Vol.III, Annex 22); BESUM, Vol. IV, Annex 25, ICAO Response to the Preliminary Objections, Exhibit 4, Letter from the Minister of Transport and Communications of Qatar dated 13 June 2017 tothe Secretary General, ref.2017/15993;BESUM, Vol. IV, Annex 25, ICAO Response to the Preliminary Objections, Exhibit 5, Letter to the Secretary General from the Chairman of the CAA of Qatar dated 13 June 2017,ref. 2017/15994;BESUM,Vol. IV, Annex 25, ICAO Response to the Preliminary Objections, Exhibit 6, Letter to the Secretary General from the Chairman of the CAA of Qatar dated 15June 2017, ref. 2017/15995; BESUM, Vol. V, Annex 31, Request of the State of Qatar for Consideration by the ICAO Council under Article 54(n) of the Chicago Convention, 15 June 2017; BESUM, Vol. IV, Annex 25, ICAO Response to the Preliminary Objections, Exhibit 1, Letter to the President of the Council from the Chairman of the CAA of Qatar dated 17June 2017, ref. 2017/16032.447BESUM, paras 6.67-6.69.129consideration
129
consideration under Article 54(n) of the Chicago Convention was dealt with by
the Council, that the Appellants’ measures constituted a “flagrant violation” of
ICAO instruments448. Indeed, the Court has drawn a firm distinction between
negotiations and “mere protests or disputations”449, and in particular, has made
it clear that negotiations “entail more than the plain opposition of legal views or
interests between two parties, or the existence of a series of accusations and
rebuttals, or even the exchange of claims and directly opposed
counter‑claims”450.
5.60 Accordingly, the mere fact that Qatar broadcast its accusation before
the ICAO Council in the context of the Article 54(n) proceedings cannot be
taken as constituting either a “genuine attempt” to negotiate, or as negotiations
themselves.
3. Supposed negotiations within the WTO
5.61 Qatar’s reliance on the WTO proceedings has also already been noted
in the Appellants’ Memorial451. The fundamental point in this regard remains
that a request for consultations, which plays a specific role within the WTO
dispute settlement mechanism in relation to alleged violation of WTO
obligations, cannot be regarded as constituting an attempt to negotiate in
448 QCM(A), para. 4.62.
449 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, p. 132, para. 157.
450 Ibid.
451 See BESUM, paras 6.71-6.73.
130relation to alleged breaches of distinct obligations, having a different subject-matter and content, under the Chicago Convention452.5.62Qatar’s assertion to the contrary453is based on its flawed argument that negotiations need only refer in general terms to the subject-matter of the dispute. As already noted, however, the Court has made clear that negotiations must relate to the specific subject-matter of the dispute, which mustconcern the substantive obligations in the treaty in question454.5.63In any event, a request for consultations directed at three States cannot constitute negotiations with Egypt. To say, as Qatar does, that “nothing in the response by Bahrain, the UAE and Saudi Arabia to Qatar’s request for consultations deviates from similar statements made by Egypt itself”455, merely serves to underline the absence of any communication addressed to Egypt. The very weakness of Qatar’s argument in this regard is telling.4.Supposednegotiations through third parties5.64Finally, Qatar seeks to rely on supposed attempts to “settle the dispute” through third parties456. Although Qatar recounts at length the supposed efforts made through third parties, the evidence relied upon by Qatar inrespect of events prior to the filing of its Application with the ICAO Council cannot be regarded as constituting an attempt to initiate negotiations. This is because, as 452See BESUM, para. 6.73.453QCM(A), para. 4.70.454Application 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, p.133, para.161.455QCM(A), para. 4.71.456Ibid.,para.4.72 et seq.
131
already explained in the Memorial inter alia: (a) none of the requests or
statements was addressed to the Appellants; and (b) all of the requests were in
general terms, and failed to refer to the specific substantive obligations under
the Chicago Convention457.
Section 2. The Objection as to Admissibility
5.65 Qatar has largely failed to engage with the Appellants’ submission
concerning objections to admissibility. The distinction between objections to
jurisdiction and objections to admissibility has been well recognized in
international procedural law458. The former reflects the fundamental principle
that jurisdiction is founded upon consent, so that any objection to jurisdiction
will focus upon arguments as to whether the consent given in the circumstances
encompasses the settlement of the dispute by the court or tribunal in question.
As the Court emphasized in Armed Activities on the Territory of the Congo:
“its jurisdiction is based on the consent of the parties
and is confined to the extent accepted by them . . .
When that consent is expressed in a compromissory
clause in an international agreement, any conditions
to which such consent is subject must be regarded as
constituting the limits thereon”.459
5.66 By contrast, admissibility rests upon the proposition that even if the
Court has jurisdiction and the facts stated by the applicant State are assumed to
be correct, there are reasons why the Court should not proceed to an
457 BESUM, paras 6.74-6.86.
458 Ibid., para. 4.11 et seq.
459 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 2006, p. 39, para. 88 (emphasis added).
132examination of the merits460. In essence, as the Court has noted, an objection to admissibility involves the argument that even when there exists jurisdiction, there is a legal reason why the Court should decline to hear the case461. The difference between the two concepts is clear and judicially approved. The Appellants also noted in their Memorial that the same considerations in a case may simultaneously give rise to objections to jurisdiction and objections to admissibility462.Qatar did not respond to any of these points.5.67As regards the objection to admissibility based on the failure to comply with Article 2(g) of the ICAO Rules, Qatar does not dispute that Article 2 imposes requirements as to the content of a valid Application and Memorial. Nor does it dispute that, as a matter of principle,a failure to comply with the requirements of Article 2 may render an application inadmissible before the Council. 5.68Instead, it contends that all that is required by Article 2(g) is a “statement” (in French “une déclaration attestant”) that negotiations to settle the disagreement have taken place but were not successful, and that the requirement is thus merely one of “form”463, such that “allegations of fact” in an applicant State’s Memorial will suffice in this regard464.460Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment, I.C.J. Reports 2003, p.177, para.29. See also BESUM, para.4.20 et seq.461Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, pp.456-457, para.120.462BESUM, paras 4.30-4.31.463QCM(A), para. 4.87.464Ibid., para. 4.87.1335.69Such
133
5.69 Such an interpretation of Article 2(g) would, however, render the
provision entirely devoid of any effet utile. What is required by the precondition
of negotiations in Article 89 of the Chicago Convention is a “genuine attempt”
to negotiate. It follows that Article 2(g) of the ICAO Rules, which Qatar agrees
is intended to reflect that requirement465, must likewise be understood as
requiring a statement, appropriately substantiated, that a genuine attempt to
negotiate has in fact been made. Conversely, and as a consequence, assertions
as to the supposed futility of even making any such attempt are insufficient to
excuse compliance with the requirement. A fortiori, a clear assertion that
negotiations have not taken place evidently cannot be regarded as constituting
compliance.
5.70 But in any event, even if a bare unsupported statement of fact that
negotiations had taken place were sufficient, to the extent that Qatar seeks to
rely upon the heading of the relevant section of the Memorial submitted to the
Council466 — which on its face merely purports to summarize the requirement
contained in Article 2(g) of the ICAO Rules467— that is on any view
insufficient to satisfy the requirement.
5.71 Further, Qatar’s reliance on the fact that the final sentence referred to
“further negotiating efforts”468 is likewise insufficient in circumstances in
which the remainder of the paragraph made clear that no efforts to negotiate had
in fact been made.
465 Ibid., para. 4.88.
466 Ibid., para. 4.88.
467 BESUM, Vol. III, Annex 23, ICAO Memorial, Sec. (g) “(g) A statement of
attempted negotiations”.
468 QCM(A), para. 4.89.
1345.72In that regard, it is significant that Qatar does not dispute, and effectively acknowledges, that it did not comply with the requirements of Article 2(g) of the ICAO Rulesinsofar as its Memorial before the Council did not contain a statement that negotiations had taken place but were not successful, but instead expressly stated that negotiations had not taken place469.5.73Qatar’s further response that the assertion in the Memorial that the Appellants “did not permit any opportunity to negotiate”, should be understood as a reference to the Appellants’ supposed “immediate and total refusal” to negotiate, and that this is sufficient to discharge the requirement in Article 2(g) of the ICAO Rules470,is also flawed for the reasons already set out above. At the very least, a “genuine attempt” to negotiatewas required.5.74As a further fall-back, Qatar seeks to argue that it was open to it to amend its “pleadings” so as simply to assert that negotiations had taken place471. That argument is also flawed. 5.75First, it ignores the fact that, as argued in the Memorial, matters of jurisdiction fall to be established as at the date of seisin472.5.76Second, even if such a course of action were in theory procedurally permissible, it is difficult to see how the making of a bare statement in circumstances in which that statement was both flatly inconsistent with the position previously taken, and entirely unsupported by any new evidence 469QCM(A), para. 4.88; cf. BESUM, para. 6.97.470QCM(A), para. 4.88.471Ibid., para. 4.90472BESUM, paras 6.32-6.34.135tending
135
tending to support its veracity, could properly be regarded as compliance with
the requirement of Article 2(g).
5.77 Finally, Qatar argues that any deficiency was, at most a “minor
procedural defect” which would not constitute a proper basis for an appeal to
the Court473. This, however, fails to address the point; the failure to comply
with the requirements of Article 2(g) of the ICAO Rules is not, in this context,
relied upon as a “procedural defect”, whether minor, or otherwise, but as a
matter affecting the admissibility of Qatar’s claims before the Council. To the
extent that the Council improperly concluded that Qatar’s claims were
admissible, its Decision falls to be set aside.
Section 3. Conclusion
5.78 For the foregoing reasons, the Council should have concluded that it
was without jurisdiction due to Qatar’s failure to comply with the precondition
of negotiations contained in Article 84 of the Chicago Convention. In the
alternative, and in any event, it should have concluded that Qatar’s Application
was inadmissible due to the failure of its Memorial to comply with the
requirements of Article 2(g) of the ICAO Rules.
5.79 The ICAO Council’s Decision to reject the Appellants’ Preliminary
Objections in this regard was thus in error, and the Decision thus falls to be set
aside on this basis.
473 QCM(A), para. 4.90.
136CHAPTERVICONCLUSION6.1In conclusion, the Court is respectfully requested to uphold the Appellants’ appeal on the basis of one or more of the following grounds:A.FIRST GROUND OF APPEAL6.2Thefirst ground of appeal is addressed in Chapter IIIand concernsthe manifest violations of due process in the proceedings before the ICAO Council and its Decision. Itexplains that the Court should exercise its supervisory authority over theseprocedural deficiencies.Italso sets out why the Appellants have not waived their right to complain to the Court about those defects. The Appellants thus respectfully requestthe Court to set aside the Decision of the Councilas a procedural nullityon the basis that the Decision of the ICAO Council on 29June 2018 manifestly violated fundamental rules of due process and the applicable procedural rules in a manner so extreme as to render the proceedings devoid of any judicial character.B.SECOND GROUND OF APPEAL6.3The second ground of appeal is addressed in Chapter IV.It concernsthe characterisation of the real issuein disputeand the ICAO Council’s consequent lack of competence over the dispute between the Parties. Qatarhas now accepted that there is a disputebetween the Parties concerningthe matters reiterated inChapter IIof this Reply.The core subject-matter of that acknowledged dispute concerns Qatar’s failure to comply with its obligations under the Riyadh Agreementsand other international law obligations,in response to which, the Appellants adopted a suite of countermeasures that include the aviation restrictions.Chapter IVexplains that, on the proper application of the “real issue” test,Qatar’s claim does not concern “the
137
interpretation or application” of the Chicago Convention and its Annexes, but
instead concerns that other dispute. Indeed, Qatar’s Application should instead
be understood as a pretext to try to get the ICAO Council to adjudicate a much
broader dispute over which it has no jurisdiction. As such, the ICAO Council
lacks jurisdiction of Qatar’s claims, or, in the alternative, Qatar’s claims are
inadmissible, as the aviation claims cannot be severed from the broader dispute.
Moreover, Qatar’s suggestions of various ways in which the Council might
avoid deciding (at least in full) the question of countermeasures should be
rejected by the Court as being unconvincing and unprecedented. That Qatar
resorted to making such suggestions merely reinforces the force of the
Appellants’ preliminary objection. Accordingly, the Court is requested to find
either that:
(a) The ICAO Council is without jurisdiction to adjudicate upon the
dispute between the Parties, which falls outside the ICAO Council’s
jurisdiction ratione materiae under Article 84 of the Chicago
Convention; or, in the alternative,
(a) Qatar’s claims are inadmissible because it would be improper for the
ICAO Council to exercise jurisdiction in circumstances in which this
would be prejudicial to the rights of the Appellants and contrary to
judicial propriety.
C. THIRD GROUND OF APPEAL
6.4 Finally, the third ground of appeal is addressed in Chapter V, which
sets out why, as a matter of law, without a “genuine attempt” to negotiate first
being made, it is not possible to satisfy the precondition even where the
disputing Party considers that any such attempt would be futile. It further
establishes that Qatar has not satisfied the precondition and thus the Council has
138no jurisdiction, and why,in the alternative, Qatar’sclaims are inadmissible as a result ofitsnon-compliance with Article 2(g) of the ICAO Rules. As a result, the Court is requested to determine that:(a)The ICAO Council is without jurisdiction to adjudicate upon the disagreement because Qatar has failed tosatisfy a necessary precondition to the ICAO Council’s jurisdiction by not attempting to initiate negotiations in relation to its claims prior to submitting them to the ICAO Council;or,in the alternative,(b)The ICAO Council is not competent to adjudicate upon Qatar’s ICAO Application because Qatar failed to comply with the procedural requirement set out in Article 2(g) of the ICAO Rules of affirming that negotiations had taken place but were not successful.D.CONCLUSION6.5In conclusion,the Court is respectfully requested to uphold the Appellants’ appealagainstthe Decision of the ICAO Council and to determine this Decisionto be null and void and without effect.
139
SUBMISSIONS
1. For these reasons, and reserving the right to supplement, amplify or
amend the present submissions, the Kingdom of Bahrain, the Arab Republic of
Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates hereby
request the Court to uphold their Appeal against the Decision rendered by the
Council of the International Civil Aviation Organization dated 29 June 2018, in
proceedings commenced by Qatar’s Application (A) dated 30 October 2017
against the four States pursuant to Article 84 of the Chicago Convention.
2. In particular, the Court is respectfully requested to adjudge and
declare, rejecting all submissions to the contrary, that:
1) the Decision of the ICAO Council dated 29 June 2018 reflects a
manifest failure to act judicially on the part of the ICAO Council,
and a manifest lack of due process in the procedure adopted by the
ICAO Council; and
2) the ICAO Council is not competent to adjudicate upon the
disagreement between Qatar and the Appellants submitted by
Qatar to the ICAO Council by Qatar’s Application (A) dated
30 October 2017; and
3) the Decision of the ICAO Council dated 29 June 2018 in respect
of Application (A) is null and void and without effect.
140Respectfully submitted on behalf of the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates, respectively.___________________________________H.E. Shaikh Fawaz bin Mohammed Al KhalifaAgent of the Kingdom of Bahrain___________________________________H.E. Amgad Abdel GhaffarAgent of the Arab Republic of Egypt___________________________________H.E. Abdulaziz bin Abdullah bin Abdulaziz AbohaimedAgent of the Kingdom of Saudi Arabia___________________________________H.E. Dr Hissa Abdullah Al OtaibaAgent of the United Arab Emirates141CERTIFICATIONThe
141
CERTIFICATION
The Agents of each Appellant in respect of that State hereby certify that all
annexes are true copies of the documents referred to and that the translations
provided are accurate.
___________________________________
H.E. Shaikh Fawaz bin Mohammed Al Khalifa
Agent of the Kingdom of Bahrain
___________________________________
H.E. Amgad Abdel Ghaffar
Agent of the Arab Republic of Egypt
___________________________________
H.E. Abdulaziz bin Abdullah bin Abdulaziz Abohaimed
Agent of the Kingdom of Saudi Arabia
___________________________________
H.E. Dr Hissa Abdullah Al Otaiba
Agent of the United Arab Emirates
142
143
LIST OF ANNEXES
VOLUME II
International Treaties and Legislation
Annex 1
United States-Union of Soviet Socialist Republics Civil Air Transport Agreement, signed at Washington on 4 November 1966, (1967) 6 International Legal Materials 82
1
Annex 2
Amendment to United States-Union of Soviet Socialist Republics Civil Air Transport Agreement, signed at Moscow on 6 May 1968, (1968) 7 International Legal Materials 571
13
Annex 3
United States-Polish People’s Republic Air Transport Agreement, signed at Warsaw on 19 July 1972, (1972) 23 United States Treaties 4269
17
Annex 4
Comprehensive Anti-Apartheid Act of 1986, (1987)
26 International Legal Materials 77
55
Annex 5
Department of Transportation Termination of Air Carrier Operations between the United States and South Africa,
31 October 1986, (1987) 26 International Legal Materials 104
95
ICAO Correspondence and Documents
Annex 6
ICAO Council – 74th Session, Minutes of the Second Meeting, ICAO document 8956-C/1001, 27 July 1971
103
Annex 7
Settlement of Differences: United States and 15 European States (2000), Note on Procedure: Preliminary Objections (Working Paper Presented by the President of the Council), ICAO document
C-WP/11380, 9 November 2000
139
144
Annex 8
Bahrain and UAE comments on draft Minutes
C-MIN 214.8 Closed circulated by the Secretariat,
2 August 2018
145
United Nations and European Union documents
Annex 9
United Nations, Resolution 569 (1985) adopted by the Security Council at its 2602nd meeting on 26 July 1985
175
Annex 10
Common Position of 29 June 1998 defined by the Council on the basis of Article J.2 of the Treaty on European Union concerning a ban on flights by Yugoslav carriers between the Federal Republic of Yugoslavia and the European Community (98/426/CFSP) [1998] OJ L190/3
179
Annex 11
Council Regulation (EC) No 1901/98 of 7 September 1998 concerning a ban on flights of Yugoslav carriers between the Federal Republic of Yugoslavia and the European Community [1998] OJ L248/1
181
Annex 12
United Nations, Resolution 1718 (2006) adopted by the Security Council at its 5551st meeting on 14 October 2006
185
Annex 13
European Union, Council Decision (CFSP) 2016/849 of 27 May 2016 concerning restrictive measures against the Democratic People’s Republic of Korea and repealing Decision 2013/183/CFSP [2016] OJ L141/79
191
Annex 14
European Union, Council Regulation (EU) 2017/1509 of 30 August 2017 concerning restrictive measures against the Democratic People’s Republic of Korea and repealing Regulation (EC)
No 329/2007 [2017] OJ L224/1
211
145
Press Articles and Television Clips
Annex 15
A. Barnett, “Suicide bombs are a duty, says Islamic scholar”, The Guardian, 28 August 2005
237
Annex 16
Video Excerpt of Yusuf Al-Qaradawi, Al-Jazeera Television, 9 January 2009
241
Annex 17
Video Excerpt of Muhammad Salim Al-Awa, Al-Jazeera Television, 16 September 2010
247
Annex 18
“Hamas political leaders leave Syria for Egypt and Qatar”, BBC News, 28 February 2012
251
Annex 19
D. Sabbagh, “Al-Jazeera’s political independence questioned amid Qatar intervention”, The Guardian, 30 September 2012
255
Annex 20
Video Excerpt of Asim Abdul Majid, Al-Jazeera Television, 25 June 2013
259
Annex 21
M. Mazzetti, C. J. Chivers and E. Schmitt, “Taking Outsize Role in Syria, Qatar Funnels Arms to Rebels”, The New York Times, 29 June 2013
261
Annex 22
“By the Millions, Egyptians Seek Morsi’s Ouster”,
The New York Times, 30 June 2013
265
Annex 23
“Al Jazeera staff resign after ‘biased’ Egypt coverage”, Gulf News, 8 July 2013
271
Annex 24
J. Schanzer, “Confronting Qatar’s Hamas Ties”, Politico, 10 July 2013
273
Annex 25
Video Excerpt of Yusuf Al-Qaradhawi, Al-Jazeera Television, 27 July 2013
277
Annex 26
Video Excerpt of Gamal Nassar, Al-Jazeera Television, 17 August 2013
281
Annex 27
Video Excerpt of Mohamed El-Beltagy, Al-Jazeera Television, 16 August 2014
285
146
Annex 28
“German minister accuses Qatar of funding Islamic State fighters”, Reuters, 20 August 2014
287
Annex 29
T. Ross, R. Mendick and A. Gilligan, “Charity Commission: British charities investigated for terror risks”, The Telegraph, 1 November 2014
291
Annex 30
“Islamic Council for Da’wa and Relief cancels Qaradawi’s Membership”, Egypt Independent, 9 December 2014
297
Annex 31
A. Gennarelli, “Egypt’s Request for Qatar’s Extradition of Sheikh Yusuf Al-Qaradawi”, Center for Security Policy, 27 May 2015
299
Annex 32
“Voting”, Al Jazeera, 28 May 2015
301
Annex 33
“How Qatar Used and Abused Its Al Jazeera Journalists”, The New York Times, 2 June 2015
305
Annex 34
M. Fahmy, “The Price of Aljazeera’s Politics”, The Washington Institute for Near East Policy, 26 June 2015
309
Annex 35
“Abadi: Iraqi government is ‘holding’ Qatari ransom money”, Al Araby, 25 April 2017
313
Annex 36
E. Solomon, “The $1bn hostage deal that enraged Qatar’s Gulf rivals”, The Financial Times, 5 June 2017
317
Annex 37
J. S. Block, “Qatar is a financier of terrorism. Why does the U.S. tolerate it?”, Los Angeles Times, 9 June 2017
323
Annex 38
“Al-Nosra, the Qatari Terrorist Arm in Syria”, Sky News Arabia, 17 June 2017
327
Annex 39
E. Lake, “Al-Jazeera and the Muslim Brotherhood”, Asharq Al-Awsat, 25 June 2017
331
Annex 40
“Egypt: Qatar is the main funder of terrorism in Libya”, Asharq Al-Awsat, 28 June 2017
335
Annex 41
“Egypt: Qaradawi’s Daughter, Son-in-Law Jailed for Financing ‘Brotherhood’”, Asharq Al-Awsat, 4 July 2017
341
147
Annex 42
“New human rights report accuses Qatar of sponsoring terrorism in Libya”, Asharq Al-Awsat, 24 August 2017
345
Annex 43
“Qatar accused of financing Muslim Brotherhood activities in Europe”, The Arab Weekly, 29 October 2017
349
Annex 44
“Egypt attack: IS flags carried by gunmen, say officials”, BBC, 25 November 2017
353
Annex 45
“‘Wanted Terrorist’ finished second in Qatar triathlon”, The Week, 28 March 2018
357
Annex 46
C. Coughlin, “White House calls on Qatar to stop funding pro-Iranian militias”, The Telegraph, 12 May 2018
359
Annex 47
Video Excerpt “Zero Distance”, Al-Jazeera Television, 29 July 2018 and 5 August 2018
363
Annex 48
“Egypt remands dissident cleric’s daughter for 45 days”, BBC Monitoring, 18 March 2019
367
Annex 49
“How Qatar funds Muslim Brotherhood expansion in Europe”, Gulf News,17 April 2019
371
Annex 50
E. Chorin, “Libya’s Perpetual Chaos”, Foreign Affairs, 19 April 2019
375
Writings of Publicists
Annex 51
C. Rousseau, “Mesures prises par les Puissances occidentales à l’égard de la Pologne et de l’U.R.S.S. à la suite de l’établissement de l’état de guerre en Pologne le 13 décembre 1981”, (1982) 86 Revue Générale de Droit International Public 603
383
Annex 52
E. Malamut, “Aviation Suspension of Landing Rights of Polish Airlines in the United States”, (1983)
24 Harvard International Law Journal 190
395
148
Other documents
Annex 53
“Findings of Fact-finding Report Issued by the Independent National Commission on Events Concurrent with June 30th, 2013”, 11 March 2014
405
Annex 54
Interpol Red Notice for Yousf Al Qaradawi,
20 November 2014 (Redacted)
597
Annex 55
Public Prosecution, Office of the Attorney General of Egypt, “Request to Reconsider The Decision of the Commission for the Control of INTERPOL’s Files (CCF) issued on the 17th of October 2018, in Session No. 106, according to provisions of Article 42 of the statute of the Commission regarding the Egyptian sentenced: Yusuf Al-Qaradawi under extradition No. 22 of 2014 (International Cooperation Bureau)”, 9 March 2019
601