INTERNATIONAL COURT OF JUSTICE
APPEAL RELATING TO THE JURISDICTION OF THE ICAO
COUNCIL UNDER ARTICLE II, SECTION 2, OF THE 1944
INTERNATIONAL AIR SERVICES TRANSIT AGREEMENT
THE KINGDOM OF BAHRAIN,
THE ARAB REPUBLIC OF EGYPT,
AND THE UNITED ARAB EMIRATES
v.
THE STATE OF QATAR
REJOINDER OF THE STATE OF QATAR
VOLUME I
29 JULY 2019
i
Table of Contents
INTRODUCTION ................................................................... 1
THE REAL ISSUE IN DISPUTE BEFORE THE COURT IS
JOINT APPELLANTS’ AVIATION PROHIBITIONS, NOT
THEIR FALSE ACCUSATIONS OF BREACH OF THE
RIYADH AGREEMENTS ...................................................... 9
I. Joint Appellants’ Aviation Prohibitions Violate the
IASTA ............................................................................ 10
II. Joint Appellants’ “Real Issue in Dispute” Theory Is
Transparently Pretextual ................................................. 14
THE COURT SHOULD DENY JOINT APPELLANTS’
SECOND GROUND OF APPEAL ....................................... 23
I. The Fact that the Parties Have a Dispute About Other
Matters Does Not Change the Real Issue in Dispute in
This Case ........................................................................ 25
II. The Real Issue Test Calls for an Objective Identification
of the “Object of the Claim” ........................................... 30
III. This Dispute Falls Squarely Within the Jurisdiction of the
ICAO Council Under the “Real Issue” Test ................... 33
A. The ICAO Council is competent to decide Joint
Appellants’ countermeasures defence ........................ 37
B. The ICAO Council could decide this dispute without
reaching the merits of Joint Appellants’
countermeasures defence ........................................... 42
IV. The Adjudication of Qatar’s Claims by the ICAO Council
Is Entirely Consistent with Judicial Propriety ................ 49
THE COURT SHOULD DENY JOINT APPELLANTS’
THIRD GROUND OF APPEAL ........................................... 53
I. The ICAO Council Properly Decided that Qatar Satisfied
the Article II, Section 2 Negotiation Requirement ......... 54
ii
A. Joint Appellants misunderstand the relevant legal
standard ...................................................................... 54
1. Article II, Section 2 does not require a
disputing Party to attempt to negotiate if the
other side entirely refuses to negotiate ........... 54
2. A genuine attempt to negotiate need only be
made “with a view to resolving the dispute” . 63
3. Negotiations should be assessed with
flexibility ........................................................ 65
B. Joint Appellants misapply the legal standard to the
facts ............................................................................ 66
1. Qatar genuinely attempted to negotiate with
Joint Appellants directly ................................ 67
2. Qatar genuinely attempted to negotiate through
ICAO .............................................................. 70
3. Qatar genuinely attempted to negotiate through
the WTO......................................................... 76
4. Qatar genuinely attempted to negotiate through
third parties .................................................... 77
II. The ICAO Council Properly Held that Qatar’s
Application and Memorial Complied with Article 2(g) of
the ICAO Rules for the Settlement of Differences ......... 78
THE COURT SHOULD DENY JOINT APPELLANTS’
FIRST GROUND OF APPEAL ............................................ 81
I. The Court Should Decline to Exercise Its Supervisory
Authority in Respect of the So-Called Procedural
Irregularities ................................................................... 83
A. Whether the Council has jurisdiction is an “objective
question of law”, the answer to which does not turn on
the nature of the procedure before the Council .......... 83
iii
B. Joint Appellants’ attempt to distinguish the present
case from the 1972 ICAO Council Appeal case fails 89
II. The ICAO Council Properly Discharged Its Functions
Under Article II, Section 2 ............................................. 91
A. The absence of open deliberations on the substantive
issues in dispute and of reasons follows from the
Council’s decision to proceed with a vote by secret
ballot as allowed under its Rules ............................... 92
B. Joint Appellants are wrong to assert that the Council
did not openly deliberate on certain procedural
matters ........................................................................ 96
C. Joint Appellants had ample opportunity to present their
case before the ICAO council .................................. 100
SUBMISSIONS ........................................................................................... 103
CERTIFICATION ....................................................................................... 105
LIST OF ANNEXES ................................................................................... 107
i
GLOSSARY OF ACRONYMS, ABBREVIATIONS AND DEFINED
TERMS
1972 ICAO Council Appeal case Appeal Relating to the Jurisdiction of the
ICAO Council (India v. Pakistan)
The Court’s 1972 Judgment Appeal Relating to the Jurisdiction of the
ICAO Council (India v. Pakistan),
Judgment, I.C.J. Reports 1972
ARSIWA Articles on the Responsibility of States for
Internationally Wrongful Acts
ATS Air Traffic Service
Bahrain The Kingdom of Bahrain
BEUM Memorial of the Kingdom of Bahrain, the
Arab Republic of Egypt and the United
Arab Emirates (27 Dec. 2018)
CAT Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment (1984)
CERD International Convention on the
Elimination of All Forms of Racial
Discrimination (1969)
Chicago Convention Convention on International Civil
Aviation, Chicago, 7 December 1944
Egypt The Arab Republic of Egypt
EU European Union
FATF Financial Action Task Force
FIR Flight Information Regions
GCC Gulf Cooperation Council
ii
IASTA International Air Services Transit
Agreement, Chicago, 7 December 1944
ICAO International Civil Aviation Organization
ICAO Council or Council Council of the International Civil Aviation
Organization
ICAO Application (B) Application (B) of the State of Qatar;
Relating to the Disagreement on the
Interpretation and Application of the
International Air Services Transit
Agreement (Chicago, 1944), 30 October
2017
ICAO Council Decision (B) or
Decision
Decision of the ICAO Council on the
Preliminary Objection in the Matter: the
State of Qatar and the Arab Republic of
Egypt, the Kingdom of Bahrain and the
United Arab Emirates (2017) – Application
(B), 29 June 2018
ICAO Memorial (B) Memorial appended to Application (B) of
the State of Qatar, Disagreement on the
Interpretation and Application of the
International Air Services Transit
Agreement (Chicago, 1944), 30 October
2017
ICAO Preliminary Objections (B) Preliminary Objections of the Arab
Republic of Egypt, the Kingdom of
Bahrain and the United Arab Emirates in re
Application (B) of the State of Qatar
Relating to the Disagreement Arising under
the International Air Services Transit
Agreement done at Chicago on 7
December 1944, 19 March 2018
ICAO Rejoinder (B)
Rejoinder to the State of Qatar’s Response
to the Respondents’ Preliminary
Objections of the Arab Republic of Egypt,
the Kingdom of Bahrain and the United
Arab Emirates in re Application (B) of the
iii
State of Qatar Relating to the Disagreement
Arising under the International Air
Services Transit Agreement done at
Chicago on 7 December 1944, 12 June
2018
ICAO Response to the
Preliminary Objections (B)
Response of the State of Qatar to the
Preliminary Objections of the
Respondents; in re Application (B) of the
State of Qatar Relating to the Disagreement
on the Interpretation and Application of the
International Air Services Transit
Agreement done at Chicago on 7
December 1944, 30 April 2018
ICAO Rules 1957 ICAO Rules for the Settlement of
Differences
ICJ Application (B) Joint Application Instituting Proceedings,
Appeal Against a Decision of the ICAO
Council dated 29 June 2018 on Preliminary
Objections (Application (B), Kingdom of
Bahrain, Arab Republic of Egypt and the
United Arab Emirates v. State of Qatar), 4
July 2018
ILC International Law Commission
IMF International Monetary Fund
Joint Appellants The Kingdom of Bahrain, the Arab
Republic of Egypt, and the United Arab
Emirates
NOTAM Notice to Airmen
Qatar The State of Qatar
QCM (B) Counter-Memorial of the State of Qatar (25
February 2019)
QR (B) Rejoinder of the State of Qatar (29 July
2019)
iv
QNA Qatar News Agency
Saudi Arabia Kingdom of Saudi Arabia
TFTC Terrorist Financing Targeting Center
United Arab Emirates UAE
UNCLOS United Nations Convention on the Law of
the Sea
VCLT Vienna Convention on the Law of Treaties
WTO World Trade Organization
1
INTRODUCTION
1.1 Pursuant to the Order of the Court dated 27 March 2019, the State of Qatar
(“Qatar”) respectfully submits this Rejoinder responding to the Reply of the
Kingdom of Bahrain (“Bahrain”), the Arab Republic of Egypt (“Egypt”) and the
United Arab Emirates (“UAE”, and collectively with Bahrain and Egypt, “Joint
Appellants”) dated 27 May 2019.1
1.2 In its Counter-Memorial, Qatar showed that the Court previously rejected
arguments that were substantially identical to those Joint Appellants now present
in the form of their First and Second Grounds of Appeal. Specifically, in its
Judgment in Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan) (the “1972 ICAO Council Appeal case”), the Court dismissed India’s
arguments that the Council’s decision on jurisdiction under Article 84 of the
Convention on International Civil Aviation (“Chicago Convention”) (to which
Article II, Section 2 of the International Air Services Transit Agreement
(“IASTA”) expressly refers2) was (1) vitiated by procedural irregularities,3 and (2)
1 Reply of the Kingdom of Bahrain, the Arab Republic of Egypt, and the United Arab Emirates (27
May 2019) (hereinafter “BEUR”).
2 Article II, Section 2 of the IASTA reads: “If any disagreement between two or more contracting
States relating to the interpretation or application of this Agreement cannot be settled by negotiation,
the provisions of Chapter XVIII of the [Chicago] Convention shall be applicable in the same manner
as provided therein with reference to any disagreement relating to the interpretation or application
of the abovementioned Convention”. International Air Services Transit Agreement, signed at
Chicago on 7 December 1944 (hereinafter “IASTA”), Art. II, Section 2 (BEUM Vol. II, Annex 2).
Article 84 is the very first clause appearing in Chapter XVIII of the Chicago Convention.
Convention on International Civil Aviation, Chicago, 7 December 1944 (hereinafter “Chicago
Convention”), Art. 84 (BEUM Vol. II, Annex 1).
3 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
2
substantively wrong, because India presented a defence that raised issues outside
the ambit of the Chicago Convention.4
1.3 With respect to the first argument, the Court held that the question before it
was limited only to an “objective question of law” (i.e., whether or not the Council
had jurisdiction), the answer to which “cannot depend on what occurred before the
Council”.5 The procedural complaints India raised were therefore irrelevant.
1.4 With respect to the second argument, the Court ruled that “the Council
[cannot] be deprived of jurisdiction merely because considerations that are claimed
to lie outside the Treaties may be involved if, irrespective of this, issues concerning
the interpretation or application of these instruments are nevertheless in question”.6
1.5 In their Memorial, Joint Appellants chose not to come to terms with the
import of the Court’s 1972 Judgment for their arguments in this case. The Reply is
no different: it neither makes any serious effort to distinguish this case from that
one, nor argues that the Court’s decision in that case was somehow incorrect. The
Court can therefore reject Joint Appellants’ First and Second Grounds of Appeal
for the same reasons it rejected India’s identical arguments in the 1972 ICAO
Council Appeal case.
1.6 Concerning the aspect of the Court’s prior decision that is relevant to their
First Ground of Appeal, Joint Appellants suggest that the Court rejected India’s
arguments about the alleged procedural irregularities only because those
4 Ibid., para. 27.
5 Ibid., para. 45.
6 Ibid., para. 27.
3
irregularities “did not ‘prejudice in any fundamental way the requirements of a just
procedure’”.7 That is not true, however. The primary basis of the Court’s decision
was, as stated, that the Court was required only to answer an objective question of
law. The statement Joint Appellants cite was made only as an additional reason to
reject India’s argument. In any event, Joint Appellants overlook the fact that the
alleged procedural irregularities they raise are virtually identical to those India
raised in the prior case. If those putative irregularities did not “prejudice in any
fundamental way the requirements of a just procedure” there, they do not do so
here either.
1.7 Instead of confronting the consequences of the Court’s 1972 Judgment for
their First Ground of Appeal, Joint Appellants present an irrelevant and largely
repetitive narrative in which they attempt to impugn the conduct of the ICAO
Council, and indeed the entire dispute resolution system under the IASTA and the
Chicago Convention (to which they, of course consented when they ratified the
two). This narrative is irrelevant for the reasons already stated. Moreover, Qatar
will show again in this Rejoinder that the Council did not in fact commit any
procedural errors, let alone any errors that undermined in any way the requirements
of a just procedure.
1.8 Concerning the aspect of the Court’s 1972 Judgment that is relevant to their
Second Ground of Appeal, Joint Appellants say only that “the India v. Pakistan
case did not concern a question of countermeasures”.8 They do not, however, make
any effort to show why this distinction makes a difference. It does not. The Court’s
1972 ruling was not limited to the specific defence India presented in that case. Its
7 BEUR, para. 1.5(b) (quoting Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Judgment, I.C.J. Reports 1972, paras. 44-45).
8 BEUR, para. 4.27.
4
holding was phrased in broad terms. Indeed, the Court’s wording could scarcely
have been any more categorical. It stated: “The fact that a defence on the merits is
cast in a particular form, cannot affect the competence of the tribunal or other organ
concerned,—otherwise parties would be in a position themselves to control that
competence, which would be inadmissible”.9 This applies as much to Joint
Appellants’ countermeasures defence as any other.
1.9 Joint Appellants attempt to sustain their Second Ground of Appeal by
rehashing the arguments from their Memorial. They contend that the “real issue”
in dispute in this case relates to Qatar’s alleged violations of its counter-terrorism
and other obligations. According to Joint Appellants, the issues in dispute in this
case cannot be severed from that other dispute. This argument not only runs afoul
of the Court’s Judgment in the 1972 ICAO Council Appeal case, it is also
inconsistent with the Court’s settled jurisprudence that the fact that a particular
dispute arises in a broader context does not deprive the Court of jurisdiction
(another subject on which the Reply is silent). The reality is that the one and only
dispute before the Council, and now before the Court, concerns Joint Appellants’
violations of the IASTA.
1.10 Joint Appellants’ arguments in support of their Third Ground of Appeal
concerning the negotiation requirement in Article II, Section 2 of the IASTA are
equally unconvincing. Qatar showed in its Memorial that Joint Appellants’ stance
on the subject of negotiations was clear and emphatic: they refused to talk at any
9 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27.
5
time on any subject until Qatar capitulated to their so-called 13 Demands, which
themselves were non-negotiable.
1.11 The Reply does not deny that Joint Appellants were at all times unwilling
to negotiate. It argues instead that even in such circumstances, international law
requires Qatar to have made a “genuine attempt” to negotiate with them which,
they say, it did not do. Joint Appellants are mistaken on the law and the facts. On
the law, States are not required to make an attempt to negotiate in the face of an
explicit, total refusal to talk ab initio. Nothing in the Court’s case law dictates such
a pointlessly formalistic approach. But in any event, on the facts, the record shows
that Qatar not only made a genuine attempt to negotiate with Joint Appellants over
the aviation dispute, it made many such attempts over a lengthy period of time and
in multiple fora, including in ICAO. The Reply’s efforts to question those facts and
raise doubts about the extent to which Qatar’s multi-faceted efforts to engage with
Joint Appellants constituted a “genuine attempt” to negotiate are entirely
unpersuasive.
1.12 For these reasons, as more fully elaborated in the remaining chapters of this
Rejoinder, the Court should reject Joint Appellants’ arguments, dismiss their
appeal and find that the ICAO Council correctly determined that it has jurisdiction
over the dispute Qatar submitted to it nearly two years ago.
1.13 As it did in its Counter-Memorial, Qatar will address Joint Appellants’
grounds of appeal in a different order than they are presented in their pleadings. It
will start with the two grounds challenging the ICAO Council’s jurisdiction that
Joint Appellants presented before the Council. That is, Qatar will first answer Joint
Appellants’ Second Ground of Appeal and then answer their Third Ground of
6
Appeal. Qatar will deal with Joint Appellants’ First Ground of Appeal relating to
the alleged procedural irregularities last.
1.14 The main text of this Counter-Memorial consists of five chapters, followed
by Qatar’s Submissions. After this Introduction, Chapter 2 briefly recalls the
factual background to Joint Appellants’ aviation prohibitions, the central element
of this dispute under the IASTA. In particular, the Chapter addresses Joint
Appellants’ baseless assertions that the aviation prohibitions were imposed with
notice, in cooperation with outside authorities and in a proportionate manner.
Additionally, Chapter 2 demonstrates that Joint Appellants’ false allegations
concerning Qatar’s alleged support for terrorism and other matters are a poorly
disguised artifice for trying to avoid the jurisdiction of the ICAO Council.
1.15 Chapter 3 addresses Joint Appellants’ Second Ground of Appeal and
demonstrates why the Reply’s arguments that the ICAO Council lacks jurisdiction
are unpersuasive. Consistent with the Court’s jurisprudence constante, Chapter 3
first shows that the fact that the Parties have a dispute on other subjects does not
mean that the real issue in dispute in this case concerns matters other than those
that form the object of the claim Qatar submitted to the ICAO Council. The Chapter
also explains the many reasons why the dispute falls squarely within the
jurisdiction of the ICAO Council under the “real issue” test. In particular, it shows
that the ICAO Council is competent to decide Joint Appellants’ countermeasure
defence, although the Council may well be able to decide this dispute without ever
reaching the merits of that defence. Finally, Chapter 3 disposes of Joint Appellants’
repurposed jurisdictional argument in the guise of an objection to the admissibility
and makes clear that the adjudication of Qatar’s claims by the ICAO Council is
entirely consistent with judicial propriety.
7
1.16 Chapter 4 explains why Joint Appellants’ Third Ground of Appeal is
equally without merit. Joint Appellants not only misunderstand the legal standard
governing the negotiation requirement in Article II, Section 2 of the IASTA, but
they also misapply that standard to the facts of the case. The Chapter demonstrates
how Qatar fulfilled the negotiation requirement by attempting to negotiate with
Joint Appellants over the aviation prohibitions on multiple occasions and in
multiple fora, only to be rebuffed by Joint Appellants at every turn. Chapter 4 also
refutes Joint Appellants’ arguments that Qatar failed to fulfil the requirement set
forth in Article 2(g) of the ICAO Rules for the Settlement of Differences.
1.17 Chapter 5 addresses Joint Appellants’ First Ground of Appeal. It first
discusses Joint Appellants’ complete failure to address the Court’s Judgment in the
1972 ICAO Council Appeal case, in which it held that its task at this stage is only
to rule on “an objective question of law”, which “cannot depend on what occurred
before the Council”. Qatar then shows that the procedural irregularities that Joint
Appellants allege in this case are virtually identical to the ones India alleged in the
1972 ICAO Council Appeal case. Accordingly, even if the Court were to address
the merits of Joint Appellants’ First Ground of Appeal, it would find that none of
the alleged procedural irregularities prejudiced in any fundamental way the
requirements of a just procedure in this case any more than they did in the 1972
ICAO Council Appeal case. Lastly, Chapter 5 demonstrates that the procedure
adopted by the ICAO Council was entirely consistent with the applicable
procedural framework and the practice of the Council. The alleged procedural
irregularities Joint Appellants raise are therefore meritless.
1.18 This Rejoinder concludes with Qatar’s Submissions.
9
THE REAL ISSUE IN DISPUTE BEFORE THE COURT IS JOINT
APPELLANTS’ AVIATION PROHIBITIONS, NOT THEIR FALSE
ACCUSATIONS OF BREACH OF THE RIYADH AGREEMENTS
2.1 This case concerns one subject: Joint Appellants’ aviation prohibitions,
imposed in violation of their obligations under the IASTA. The only matter now
before the Court concerns the ICAO Council’s decision that it has jurisdiction to
address the merits of those violations.
2.2 Hoping to divert attention away from their aviation prohibitions and
reframe the dispute, Joint Appellants continue to press their false and irrelevant
accusations that Qatar supports terrorism and extremism, and has interfered in their
internal affairs. In their view, Qatar’s categorical rejection of those accusations in
its Counter-Memorial constitutes confirmation that “[t]he real dispute between the
Parties concerns Qatar’s violations of the Riyadh Agreements and other
international law obligations”.10 Qatar disagrees. The fact that Qatar chose to
expose Joint Appellants’ baseless claims for what they are—a pretext designed to
shield them from responsibility for the aviation prohibitions—does not change the
nature of the dispute before the Council or the question before the Court.
2.3 The ICAO Council rightly ignored Joint Appellants’ false accusations as
irrelevant. Qatar trusts that the Court will do the same.
10 See, e.g., BEUR, Chapter II, Section 1.A heading; para. 2.3 (“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 aviation”.).
10
2.4 This Chapter proceeds as follows: Section I addresses Joint Appellants’
response to the only facts that are relevant to the real issue in dispute between the
Parties: Joint Appellants’ violations of the IASTA. It shows that far from being
“proportionate countermeasures to Qatar’s wrongful actions”,11 the manner in
which Joint Appellants implemented the aviation prohibitions highlights their lack
of good faith. The lack of good faith is made even more evident in light of the
international praise Qatar has received for its efforts in the fight against terrorism
and extremism, an inconvenient fact that Joint Appellants chose to ignore in favour
of their false narrative. That evidence, Joint Appellants’ key admissions in this
regard, and their strained attempt to insist on their false accusations are addressed
in Section II.
I. Joint Appellants’ Aviation Prohibitions Violate the IASTA
2.5 Qatar explained in its Counter-Memorial how Joint Appellants
implemented their sweeping, unprecedented aviation prohibitions and why they
violate the IASTA. Joint Appellants reply, correctly, that “the scope and legality of
the airspace restrictions under the IASTA are matters going to the merits … and
thus are not for the Court to determine in the present proceedings in any case”.12
Yet in the same breath, they argue that the aviation prohibitions were imposed as
“proportionate” countermeasures.13
2.6 It bears emphasis at the outset that Joint Appellants do not deny that to this
day, Qatar-registered aircraft are prohibited from overflying their territories, and
11 Ibid., Chapter II, Section 2 heading.
12 Ibid., para. 2.3; see also ibid., para. 2.35.
13 Ibid., Chapter II, Section 2 heading; see also ibid., para. 2.3.
11
from taking off and landing at their airports.14 Nor do they deny that they have
forced Qatar-registered aircraft to utilise a limited number of contingency routes.
All of these actions that have compromised the efficiency of civil aviation and led
to the danger of congestion.15
2.7 Unable to deny the undeniable, Joint Appellants’ Reply seeks instead to
establish the alleged proportionality of their so-called “countermeasures” by
claiming that they notified the aviation prohibitions in advance. They also
congratulate themselves for their alleged cooperation in establishing contingency
routes in the aftermath of the aviation prohibitions.16 Joint Appellants’ arguments
only serve to underscore the lack of good faith underlying both their actions and
their attempt to escape the ICAO Council’s jurisdiction. While their arguments are
irrelevant to the question before the Court, Qatar does not wish the allegations that
they make to go unchallenged. Accordingly, the following paragraphs summarise
the main points of Qatar’s response.
2.8 Joint Appellants claim, for example, that the aviation prohibitions were
“timely and proper” and adopted “in accordance with all relevant rules and safety
requirements, and in full cooperation with all relevant authorities, including
ICAO”.17 They do not, however, provide any evidence that any notice whatsoever
was given, let alone that it was given at least seven days in advance (as the thenapplicable
version of Annex 15 of the Chicago Convention required18). They also
14 Counter-Memorial of the State of Qatar (25 Feb. 2019) (hereinafter “QCM (B)”), para. 2.21.
15 Ibid., para. 2.22.
16 BEUR, para. 2.37.
17 Ibid., paras. 2.36-2.37.
18 Convention on International Civil Aviation, Annex 15: Aeronautical Information Services (15th
ed., July 2016), Standard 5.1.1.4 (“At least seven days’ advance notice shall be given of the
activation of established danger, restricted or prohibited areas and of activities requiring temporary
12
provide no evidence of any cooperation with any outside authority, including
ICAO, in imposing their aviation prohibitions. In fact, no such cooperation ever
took place.
2.9 Nor can Joint Appellants reconcile their assertions with 1) the immediate,
widespread disruption the aviation prohibitions caused,19 and 2) the aviation safety
incidents resulting from the back-dating of the NOTAMs that affected several
aircraft en route in Yemen airspace on 5 June 2017.20 These very real and
indisputable consequences not only substantiate the fact that the prohibitions were
issued without prior warning, but also highlight Joint Appellants’ disregard for the
effects of their prohibitions on ordinary civil aviation passengers around the
world.21
airspace restrictions other than for emergency operations”.) (QCM (B) Vol. II, Annex 16). The
Chicago Convention governs the exercise of the privileges granted by the IASTA. IASTA Art. I,
Section 2 (BEUM Vol. II, Annex 2).
19 QCM (B), para. 2.12 (“Over 70 flights, scheduled by multiple carriers, were cancelled on 6 June.
Hundreds of passengers, including pilgrims who were seeking to perform the Umrah pilgrimage,
were left stranded and forced to rebook and reroute their travel plans. Over the first week of the
aviation prohibitions, tens of thousands of seat reservations for flights into and out of Doha across
all airlines and for all forward travel dates were cancelled”.) (internal footnotes omitted).
20 Ibid., para. 2.13. Qatar notes that although the Kingdom of Saudi Arabia (“Saudi Arabia”) is not
a party to these proceedings, it has at all times acted in concert with Joint Appellants, including with
respect to the aviation prohibitions. Consistent with its Counter Memorial, Qatar will therefore also
include Saudi Arabia’s conduct in this Chapter for purposes of underscoring the pretextual nature
of Joint Appellants’ argument as to the real issue in dispute before the ICAO Council.
21 Indeed, the “safe and orderly” development of civil aviation is one of the core purposes of the
Chicago Convention, which governs the exercise of the privileges granted by the IASTA. IASTA
Art. I, Section 2 (BEUM Vol. II, Annex 2). And the Chicago Convention’s focus on the safety of
civil aviation passengers is just one reason why provisions like Article 82 of the Convention
establish the undertaking of ICAO Members “not to enter into any … obligations and
understandings [inconsistent with the terms of the Chicago Convention]”. Chicago Convention,
Preamble and Art. 82 (BEUM Vol. II, Annex 1).
13
2.10 Joint Appellants also claim that they “promptly adopted contingency
measures in order to preserve the safety of civil aviation”.22 But the record
demonstrates that they only agreed to five out of the seven contingency routes in
effect after significant delay and only after the intervention of the ICAO Council,
including at its extraordinary session of 31 July 2017.23 A comparison of Figure 1
and Figure 3 from Qatar’s Counter-Memorial clearly shows the reduction in routes
available to Qatar-registered aircraft. 24
2.11 Joint Appellants also do not deny that there are substantially fewer routes
available for Qatar-registered aircraft now than before the aviation prohibitions, a
circumstance that has seriously compromised the safety, security, regularity and
economy of civil aviation.25 For example, whereas Qatar-registered aircraft had
five different air traffic routes through the UAE FIR available before the
prohibitions, they now have only one.26 The aviation prohibitions have also caused
22 BEUR, para. 2.37.
23 QCM (B), para. 2.20. Joint Appellants self-servingly misconstrue praise for region-wide
“improvements of the implemented contingency plan” as praise for their own actions. BEUR, para.
2.39, fn. 144 (citing ICAO Council, Third ATM Contingency Coordination Meeting for Qatar,
Summary of Discussions, ICAO Doc. ACCM/3 (5-6 Sept. 2017), para. 6.2 (QCM (B) Vol. III,
Annex 27). The efforts of the ICAO Council and ICAO’s Middle East Regional Office in fact prove
Qatar’s point that it was only after ICAO’s intervention that most of the contingency routes were
ultimately approved, though it took quite some time for several such routes. See QCM (B), paras.
2.17-2.20.
24 See QCM (B), paras. 2.15, 2.21.
25 Ibid., para. 2.22. See also Qatar Civil Aviation Authority, Air Navigation Department, Reply to
Conclusion 17/19 MIDANPIRG/17, Assessment of Contingency Routes (7 July 2019), p. 2: “The
present contingency arrangements do not support current operating traffic levels and therefore do
not support predicted traffic growth within the Region. Routinely, and particularly with regard to
inbound traffic peak periods to Doha, it is obvious that existing contingency routes are ‘not fit for
purpose’[,] result in regular overload situations (inbound) and significant delays to outbound traffic
from Doha. This, in addition to managing the traffic with increased coordination outside of the
current Letters of Agreement (LOAs)[,] poses a Significant Safety Concern”. (QR (B) Vol. II,
Annex 6) (emphasis in original).
26 QCM (B), para. 2.20. And while there is still a lot to be said regarding the contingency routes
Joint Appellants eventually agreed to, it is the on-going violations of the IASTA that are at issue
14
an increased number of incidents involving military traffic in close proximity to
Qatar-registered civilian aircraft.27
2.12 In sum, Joint Appellants’ aviation prohibitions constitute serious, flagrant
and ongoing violations of the IASTA that threaten the safety, security, regularity
and economy of civil aviation to this day. It is that dispute that the ICAO Council
has affirmed its jurisdiction to adjudicate.
II. Joint Appellants’ “Real Issue in Dispute” Theory Is Transparently
Pretextual
2.13 In its Counter-Memorial, Qatar exposed Joint Appellants’ allegations about
Qatar’s “support for extremism and terrorism, and its interference in the affairs of
other States”28 for what they are: a false pretext for avoiding the jurisdiction of the
Council to decide upon their violations of the IASTA.
here—it is because of these violations that contingency routes became even necessary to access the
high seas or the airspace of third countries.
27 See Letter from Abdulla Nasser Turki Al-Subaey, President of Qatar Civil Aviation Authority, to
Dr. Olumuyiwa Benard Aliu, President of ICAO Council (20 Feb. 2019) (QR (B) Vol. II, Annex
5). Appellant Bahrain also denies that immediately after the imposition of the aviation prohibitions,
it informed Qatar of its intention to intercept militarily any Qatar-registered aircraft operating in its
FIR. BEUR, para. 2.44. This threat, which was noted in Qatar’s Memorial before the ICAO Council
(Memorial appended to Application (B) of the State of Qatar, Disagreement on the Interpretation
and Application of the International Air Services Transit Agreement (Chicago, 1944), 30 October
2017, Section (c) (BEUM Vol. III, Annex 23)), was reported by letter to ICAO. ICAO Response
to the Preliminary Objections (B), Exhibit 3, Letter from Adbulla Nasser Turki Al-Subaey,
Chairman of Qatar Civil Aviation Authority, to Dr. Olumuyiwa Benard Aliu, President of ICAO,
2017/15984 (8 June 2017), [PDF] p. 960 (BEUM Vol. IV, Annex 25). Qatar will be pleased to
submit further information regarding this threat at the appropriate phase of the proceedings before
the ICAO Council.
28 See, e.g., BEUR, para. 2.4.
15
2.14 Joint Appellants’ Reply largely ignores Qatar’s showing of the pretextual
nature of their allegations. Joint Appellants do not deny their media campaign
against Qatar—described by the United Nations Office of the High Commissioner
for Human Rights as a “widespread defamation and hatred campaign against
Qatar”29—which began with the illegal hacking of the Qatar News Agency
(“QNA”) website on 24 May 2017, as established through an investigation by
international experts.30
2.15 Joint Appellants also do not deny the fact that Qatar continues to cooperate
with them on counter-terrorism measures under the auspices of the Terrorist
Financing Targeting Center (“TFTC”). That cooperation pre-dates the adoption of
the aviation prohibitions and continues to this day.31 In fact, Joint Appellants say
nothing at all about the voluminous evidence demonstrating Qatar’s leading role in
international and multilateral counter-terrorism efforts.32
2.16 Instead, Joint Appellants misconstrue Qatar’s position on the Muslim
Brotherhood in the Counter-Memorial. Qatar did not state that the Muslim
29 ICAO Response to the Preliminary Objections (B), Exhibit 76, OHCHR Technical Mission to the
State of Qatar, 17-24 November 2017, Report on the Impact of the Gulf Crisis on Human Rights
(December 2017), paras. 14, 20 (BEUM Vol. IV, Annex 25).
30 QCM (B), para. 2.58; ICAO Response to the Preliminary Objections (B), Exhibit 79, Deputy PM
and FM: Investigations Proved Involvement of 2 Siege Countries in QNA Hacking (10 Jan. 2018),
p. [PDF] 1329 (noting cooperation of FBI and British National Crime Agency in hacking
investigation) (BEUM Vol. IV, Annex 25); Letter from Muhammad Bin Abdul Rahman Al Thani,
Minister of Foreign Affairs of the State of Qatar, to Abdullatif Bin Rashid Al Zayani, GCC
Secretary General (7 Aug. 2017) (QCM (B) Vol. III, Annex 39).
31 QCM (B), para. 2.33.
32 Ibid., paras. 2.34 (describing Qatar’s leading role in the Global Counterterrorism Task Force),
2.42, fn. 113 (discussing Qatar’s efforts with the Community Engagement and Resilience Fund,
where it is the only GCC-member contributing country; the UN Security Council’s Counter
Terrorism Committee; and the Global Coalition against ISIS, for which Qatar hosts the coalition’s
central command, among other international efforts).
16
Brotherhood is a “legitimate political organization” as Joint Appellants appear to
suggest.33 Rather, Qatar pointed out the fact that the Muslim Brotherhood is not a
UN-designated terrorist organisation, or listed as such in the GCC terrorist
organisations list, facts that Joint Appellants do not deny.34 Nor did Qatar argue
that the Muslim Brotherhood is “unobjectionable because Bahrain has not banned
it as an organization”.35 Instead, Qatar merely highlighted Joint Appellants’
hypocrisy in seeking to justify their aviation prohibitions over Qatar’s alleged
support for the Muslim Brotherhood when several other States, including Appellant
Bahrain, allow members of that group to serve in elected government.36
2.17 Finally, Joint Appellants do not deny their own records of supporting
terrorism and extremist groups.37 They say only that their records are “wholly
irrelevant” to the issues before the Court.38 On that point at least, Qatar agrees—
none of these accusations, including those made by Joint Appellants against Qatar,
33 BEUR, para. 2.8.
34 Ibid., para. 2.21.
35 Ibid., para. 2.25.
36 Qatar also pointed out that:
“because there are Muslim Brotherhood-affiliated political parties and societies
in countries across the Middle East and North Africa, including members of
parliament and government officials, it is natural for such individuals to appear
from time-to-time on news channels like Al Jazeera. Indeed, for many years
Appellant Bahrain has had members of a Muslim Brotherhood-affiliated political
party serve in its Parliament, and Bahrain’s Foreign Minister has recognised that
the party respects the rule of law”.
QCM (B), para. 2.56. In truth, Joint Appellants have not taken issue with either of these statements.
37 Joint Appellants’ record of support for terrorism and extremism includes: involvement of their
nationals and jurisdictions in the 11 September 2001 attacks against the United States of America
(Ibid., para. 2.29); involvement in terrorist financing for South-Asia-based terrorist organisations
(Ibid., para. 2.35); Saudi Arabia’s failing record on counter-terrorism financing according to the
Financial Action Task Force and the EU (Ibid., paras. 2.36-2.37); Joint Appellants’ status as top
sources of foreign terrorist fighters (Ibid., para. 2.50); and Saudi Arabia and the UAE’s record of
supplying arms to ISIS and Al-Qaida (Ibid., para 2.50).
38 BEUR, paras. 1.12, 2.2.
17
are relevant to this case, and they should be ignored by the Court. However, since
the false allegations against Qatar are the centrepiece of their contrived
jurisdictional objection, Qatar has raised Joint Appellants’ records on these issues,
and their refusal to acknowledge them, to further demonstrate the pretextual nature
of their “accusations in a mirror”39 and their “real issue” in dispute defence.
2.18 Rather than deny any of the above, Joint Appellants use their Reply to
reiterate many of the same false accusations stated in their Memorial, accusations
that Qatar continues to deny categorically. Those accusations remain as baseless—
and irrelevant—today as they were then, and generally do not merit further
response beyond that set forth in Qatar’s Counter-Memorial.40 A few matters,
however, are noteworthy.
2.19 Joint Appellants waste a great deal of energy unnecessarily discussing and
interpreting the provisions of the Riyadh Agreements and the circumstances in
which they were concluded.41 This is part of their effort to maintain their baseless
“real issue in dispute” argument. To that end, they even reiterate the view that Qatar
39 “Accusations in a mirror” is “a rhetorical practice in which one falsely accuses one’s enemies of
conducting, plotting, or desiring to commit precisely the same transgressions that one [commits or]
plans to commit against them”. Kenneth L. Marcus, “Accusations in a Mirror”, Loyola University
Chicago Law Journal, Vol. 43 (2012), p. 359 (QR (B) Vol. II, Annex 15).
40 QCM (B), paras. 2.26-2.61.
41 See BEUR, paras. 2.5-2.14. Because the Riyadh Agreements are not relevant to the jurisdiction
of the ICAO Council to adjudicate the instant dispute regarding the interpretation or application of
the IASTA, Qatar will not engage in a substantial textual analysis of them, and reserves all relevant
rights for the merits stage of this dispute, where any potential countermeasures defence, however
baseless, is more appropriately considered.
18
effectively repudiated the Riyadh Agreements,42 seemingly undeterred by Qatar’s
unambiguous statement that it “continues to consider [them] binding”.43
2.20 They also continue to cite to their own officials’ statements at
implementation meetings of the Riyadh Agreements44 without once acknowledging
Qatar’s comprehensive rebuttals or the concerns Qatar expressed about Joint
Appellants’ conduct in the very same meetings45 and other contexts.46 In any event,
no matter how many pages Joint Appellants devote to the Riyadh Agreements and
their self-serving arguments based on them, they remain irrelevant to the civil
aviation dispute at issue here, and the ICAO Council’s jurisdiction over it.
2.21 Additionally, Joint Appellants continue to maintain falsely that Qatar is in
breach of its obligations under the Riyadh Agreements and other rules of
international law. They allege, for example, that Qatar has failed to prosecute or
extradite Mr. Yusuf Al-Qaradawi, a “designated terrorist[] living in and operating
from Qatar”.47 Mr. Qaradawi is not, however, on any UN terrorist designation list,
and Interpol rescinded the warrant by which Egypt sought his arrest (a fact Joint
Appellants were forced to admit).48 They chafe at Qatar describing him as a “Sunni
42 BEUR, para. 2.8.
43 QCM (B), para. 2.53, fn. 145. Qatar notes that Joint Appellants now accept the proper revised
translation of the 19 February 2017 letter submitted with Qatar’s Counter-Memorial. BEUR, fn. 50.
44 See, e.g., BEUR, paras. 2.9-2.10.
45 See Fourth Report of the Follow-up Committee on the Implementation of the Riyadh Agreement
Mechanism, 15 July 2014, [PDF] pp. 1797, 1801 (noting the failure of the UAE to act on individuals
interfering in Qatar’s internal affairs and on media offences against Qatar) (BEUM Vol. V, Annex
64); Summary of Discussions in the Sixth Meeting of their Highnesses and Excellencies the
Ministers of Foreign Affairs, Jeddah, 30 August 2014, [PDF] p. 1815 (BEUM Vol. V, Annex 65).
46 QCM (B), paras. 2.45-2.46.
47 BEUR, para. 2.13.
48 QCM (B) para. 2.47; BEUR para. 2.22, fn. 94. Joint Appellants respond in a footnote to the
unlawful arrest, detention and imprisonment of Mr. Al-Qaradawi’s daughter and her husband in
19
theologian”, in spite of the awards and praise that Joint Appellants themselves
previously bestowed upon him for his scholarship.49
2.22 Joint Appellants’ other allegations about Qatar’s ostensible support for
terrorism and extremism, and interference in their internal affairs likewise do not
withstand scrutiny. Citing decisions of Egypt’s courts,50 Joint Appellants accuse
Qatar of having “supported openly the Muslim Brotherhood and undermined
Egypt’s stability”.51 But they studiously ignore the evidence of politicisation and
lack of independence of Egypt’s courts,52 a long-standing and internationallyrecognised
problem that renders any decisions or evidence cited from them
unreliable.53
Egypt by citing to the very same charges which the UN Human Rights Council’s Working Group
on Arbitrary Detentions found to “lack a legal basis” and to be “arbitrary”. UN Human Rights
Council, Working Group on Arbitrary Detention, Opinions adopted by the Working Group on
Arbitrary Detention at its eighty-first session, UN Doc A/HRC/WGAD/2018/26 (17-26 Apr. 2018),
para. 59.
49 QCM (B) para. 2.47 (noting the UAE’s awarding Mr. Al-Qaradawi the 2012 “international figure
of the year prize” awarded by UAE Vice President and Prime Minister Sheikh Mohammed bin
Rashid Al Maktoum, and Saudi Arabia awarding him the King Faisal Prize for Islamic Studies);
see also “Custodian of the Two Holy Mosques welcomes Islamic personalities and heads of Hajj
delegations at the annual reception in Mina”, Al Riyadh (28 Oct. 2012) (depicting a picture of Saudi
King Abdullah greeting and welcoming Mr. Al-Qaradawi) (QR (B) Vol. II, Annex 7).
50 See BEUR, para. 2.13, fn. 71; see also ibid., para. 2.23.
51 BEUR, para. 2.13.
52 QCM (B) para. 2.51.
53 See, e.g., International Commission of Jurists, Egypt’s Judiciary: A Tool of Repression (Sept.
2016), p. 7: “Egypt’s judiciary has frequently failed to fulfil its essential role in upholding the rule
of law and safeguarding human rights throughout the transition period. … Egypt’s judges and
prosecutors have become to be seen as a primary tool in the repression of political opponents,
journalists and human rights defenders. Furthermore, an examination of individual cases
demonstrates that criminal proceedings against political opponents, journalists and human rights
defenders have been marred by a litany of violations of internationally recognised rights”. (QR (B)
Vol. II, Annex 17).
See also United Nations Office of the High Commissioner for Human Rights, Egypt: Justice and
reconciliation increasingly failing after second wave of mass death sentences (15 May 2014)
20
2.23 Joint Appellants also repeatedly attempt to portray media coverage of the
Muslim Brotherhood with which they disagree as official Qatari State policy in
violation of the Riyadh Agreements.54 These accusations are based solely on their
own flawed and internationally condemned55 understanding of freedom of the
press,56 statements by a discredited former Al Jazeera journalist57 and other outright
(“Egypt’s legal system is in critical need of being reformed, in line with international and regional
standards”) (QR (B) Vol. II, Annex 18); African Commission on Human and Peoples’ Rights, 16th
Extraordinary Session, Resolution on Human Rights Abuses in Egypt, ACHPR Res. 287
(EXT.OS/XVI) (20-29 July 2014) (“Deploring the blatant disregard for the most basic guarantees
of fair trial and due process by courts and tribunals as well as the lack of independence of the
judiciary”.) (QR (B) Vol. II, Annex 16).
54 See, e.g., BEUR paras. 2.21, 2.24-2.25, 2.27-2.29, 2.32-2.34. It is telling that Joint Appellants’
purported evidence of offensive broadcasting on Al Jazeera is astonishingly dated—six new sources
that they annex to their Reply, and two other sources from their Memorial that they cite in their
Reply, pre-date the First Riyadh Agreement of November 2013, making those alleged pieces of
evidence completely irrelevant to their already-irrelevant claims of Qatari violation of Riyadh
Agreement obligations. See BEUR, fns. 72, 117, 118, 120, 123, 124. To be clear, Qatar had no role
in the selection of these speakers or their content, and Qatar rejects hateful and offensive speech no
matter the speaker. But censorship of such speech requires a legal process that includes meeting
certain legal and evidentiary thresholds that must balance the right to freedom of expression
consistent with Qatar’s obligations under the International Covenant on Civil and Political Rights.
55 QCM (B), para. 2.57; Committee to Protect Journalists, Data & Research (2018) (QCM (B) Vol.
IV, Annex 124). See also United Nations Human Rights Council, Annex to the Report of the Special
Rapporteur on extrajudicial, summary or arbitrary executions: Investigation into the unlawful
death of Mr. Jamal Khashoggi, UN Doc. A/HRC/41/CRP.1 (19 June 2019), paras. 1, 2 (the report
concluded that the murder of Saudi journalist Jamal Khashoggi “constituted an extrajudicial killing
for which the State of the Kingdom of Saudi Arabia is responsible”).
56 Tellingly, Joint Appellants construe Article 3(d) of the Supplementary Riyadh Agreement as
proof of Qatar’s control over Al Jazeera (see BEUR, paras. 2.8, 2.31), without understanding that
such obligations are not inconsistent with the existence of a free and independent press when those
obligations are enforced through application of neutral, generally applicable laws regarding
incitement, consistent with Qatar’s international obligations. Similarly, Al-Jazeera’s ownership by
Qatar is entirely consistent with the concept of editorial independence. Like the British Broadcasting
Corporation (“BBC”), which maintains editorial independence regardless of the fact that it was
established by a UK Royal Charter and is funded by a tax administered by the UK Government, Al
Jazeera too retains editorial independence despite being State-owned and receiving partial funding
from the State of Qatar. QCM (B), para. 2.56; BBC, About the BBC (last accessed: 8 July 2019)
(QR (B) Vol. II, Annex 12); Al Jazeera, About Us (last accessed: 8 July 2019) (QR (B) Vol. II,
Annex 13).
57 BEUR, paras. 2.27, 2.33 (citing M. Fahmy, “The Price of Aljazeera’s Politics”, The Washington
Institute for Near East Policy, 26 June 2015 (BEUR Vol. II, Annex 34); “How Qatar Used and
Abused Its Al Jazeera Journalists”, The New York Times, 2 June 2015 (BEUR Vol. II, Annex 33)).
Joint Appellants, however, fail to disclose that Mr. Fahmy has publicly lied about his collaboration
21
falsehoods.58 They go so far as to allege that Al Jazeera’s fact-based coverage of
the massacre of over 800 protesters in Raba’a Square in Egypt on 14 August 2013
constitutes evidence of Qatar’s support for the Muslim Brotherhood.59 In fact, the
international community roundly condemned Egypt for that atrocity.60
2.24 Finally, Joint Appellants cite to some new materials in an attempt to justify
their accusations about Qatar’s support for extremist groups.61 They claim, for
example, that funds raised by Qatari-based charities may have been distributed to
extremist groups. Their five year-old source is not only badly dated, it also cites
only the speculative fears of analysts, no hard facts.62 Nowhere do Joint Appellants
acknowledge or rebut the various sources cited in Qatar’s Counter-Memorial that
with Joint Appellants and that he has received at least $250,000 in support from the UAE to pursue
a public and legal effort to malign Al Jazeera and Qatar after his release from an Egyptian jail.
David D. Kirkpatrick, “Journalist Joins His Jailer’s Side in a Bizarre Persian Gulf Feud”, The New
York Times (1 July 2017) (QR (B) Vol. II, Annex 8).
58 For example, Joint Appellants refer to the results of an online Al Jazeera poll in 2015, whereby
respondents indicated that “they supported ISIL”, presumably as an example of Al Jazeera’s
“promot[ion] [of] hatred and violence”, conveniently overlooking the fact that the document they
cite to substantiate their allegation expressly states that “[t]he voting results do not represent the
opinion of Al-Jazeera”. BEUR, para. 2.27; “Voting”, Al Jazeera, 28 May 2015 (BEUR Vol. II,
Annex 32).
59 BEUR, para. 2.24.
60 See, e.g., “UN rights chief urges talks to save Egypt from further disastrous violence”, UN News
(15 Aug. 2013) (noting statements by UN High Commissioner for Human Rights, several UN
Special Rapporteurs and UN Security Council meeting on the situation in Egypt) (QCM (B) Vol.
IV Annex 127).
61 BEUR, paras. 2.17-2.18.
62 Ibid., para 2.17, fn. 79.
22
detail its robust counter-terror financing efforts,63 which have “leapfrogged” those
of Joint Appellants.64
2.25 The more Joint Appellants’ repeat false allegations like these, the clearer
their desperate “accusations in a mirror” strategy becomes.
*
2.26 The dispute Qatar presented to the ICAO Council is a straightforward
dispute concerning Joint Appellants’ 5 June 2017 aviation prohibitions, which were
imposed in violation of the IASTA. Those prohibitions exist to this day and
continue to pose safety risks to civil aviation. Joint Appellants go to great lengths
to manufacture an artificial jurisdictional defence, asserting that the existence of
other disputes relating to their false allegations about Qatar’s support for terrorism
and extremism, and interference in their internal affairs somehow subsumes this
very real and discrete dispute under the IASTA. But, as discussed in detail in the
following Chapters of this Rejoinder, this transparent attempt to deprive the ICAO
Council of its jurisdiction over the merits of this dispute fails on all counts.
63 QCM (B), paras. 2.31-2.32.
64 ICAO Response to the Preliminary Objections (B), Exhibit 46, Tillerson Tries Shuttle Diplomacy
in Qatar Dispute (11 July 2017) (BEUM Vol. IV, Annex 25).
23
THE COURT SHOULD DENY JOINT APPELLANTS’
SECOND GROUND OF APPEAL
3.1 Joint Appellants’ Second Ground of Appeal is that this case falls outside
the ICAO Council’s jurisdiction ratione materiae because the “real issue in dispute
between the Parties does not relate to the interpretation or application of the
IASTA”.65 Joint Appellants claim instead that it relates to Qatar’s alleged “support
of terrorism and its other internationally wrongful acts, which gave rise to the
countermeasures imposed by the Appellants”.66 Joint Appellants also argue that
even if their “real issue” argument fails, the dispute is not “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”.67
3.2 Qatar already showed all the reasons why these arguments fail in its
Counter-Memorial. Joint Appellants’ “jurisdictional objection” is inconsistent with
the plain text of Article II, Section 2 of the IASTA, the interpretation or application
by the Court in the 1972 ICAO Council Appeal case of Article 84 of the Chicago
Convention and the jurisprudence of the Court on the characterisation of
international disputes.68 Accepting it would also pose grave dangers to the
65 BEUR, para. 4.1.
66 Ibid., para. 4.7(a).
67 Ibid., para. 4.7(b). Joint Appellants raise their objection under the Second Ground of Appeal “both
as a matter of jurisdiction and as a matter of admissibility” of Qatar’s application to the ICAO
Council. Ibid., para. 4.1. As explained in Qatar’s Counter-Memorial and further below, this dual
nature of their objection makes no difference whatsoever. QCM (B), para. 3.71; infra, paras. 3.56-
3.58.
68 See QCM (B), paras. 3.6-3.15.
24
international adjudicatory system: respondent States could always avoid
compulsory dispute settlement brought pursuant to a treaty compromissory clause
merely by self-servingly asserting a “lawful” countermeasures defence.69 The
Council’s jurisdiction under Article II, Section 2 of the IASTA plainly includes the
jurisdiction to decide Joint Appellants’ countermeasures defence on the merits.
Joint Appellants’ repurposing of the very same arguments in the guise of their
“admissibility objection”, resting as they do on the assumption that Article II,
Section 2 does not give the Council competence to pass judgment on the
“substantive justification”70 of their countermeasures defence, cannot deny the
Council’s jurisdiction to decide the merits of their violations.
3.3 Joint Appellants’ Reply does not meaningfully engage with these
arguments. Instead, when Joint Appellants respond at all, they mischaracterise
Qatar’s position and ignore the Court’s consistent case law. None of the arguments
they present in their Reply can change the outcome here. The one and only object
of the claim Qatar submitted to the ICAO Council concerns Joint Appellants’
violations of the IASTA, nothing else. And it would be entirely consistent with
judicial propriety and fairness for the ICAO Council to adjudicate this claim. Joint
Appellants’ Second Ground of Appeal must therefore be rejected.
3.4 The remainder of this Chapter is structured as follows: Section I shows that,
consistent with established Court jurisprudence, the fact that the Parties have a
dispute about other matters does not mean that the real issue in the proceedings
before the ICAO Council is something other than what is asserted in Qatar’s
Application. Section II clarifies the Parties’ agreement that the “real issue” test
69 See ibid., paras. 3.4, 3.19-3.28.
70 BEUR, para. 4.53.
25
relies upon the objective identification of the “object of the claim”. Section III
explains the many reasons why the dispute falls squarely within the jurisdiction of
the ICAO Council under the “real issue” test. Finally, Section IV disposes of Joint
Appellants’ repurposed jurisdictional argument under the guise of an objection to
the admissibility of Qatar’s claims.
I. The Fact that the Parties Have a Dispute About Other Matters Does Not
Change the Real Issue in Dispute in This Case
3.5 Chapter IV of Joint Appellants’ Reply opens with a red herring. Joint
Appellants try to make it seem as if Qatar’s Counter-Memorial contains an
important concession. They assert: “Qatar’s Counter-Memorial significantly
narrows the issues between the Parties” because Qatar supposedly “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”.71 In their view, this
somehow establishes the “inexorable conclusion” that the “real issue” in dispute
“does not concern the IASTA”.72
3.6 Joint Appellants are so eager to press this point that they mischaracterise
Qatar’s position. Qatar has always accepted that there is a dispute between the
Parties concerning Qatar’s compliance with its counter-terrorism and noninterference
obligations under international law. It made that clear in its pleadings
71 Ibid., para. 4.2.
72 Ibid., para. 4.13.
26
before the ICAO Council73 and again in its Counter-Memorial.74 The existence of
that dispute is notorious and indisputable. That fact does not have the consequences
that Joint Appellants suggest, however. Just because there is another, “broader”75
dispute between the Parties does not mean, as Joint Appellants claim, that the issues
in dispute in this case “cannot be severed from the broader dispute”.76 In fact, they
can, and must, be.
3.7 Whatever the state of affairs before 5 June 2017, when Joint Appellants
adopted the aviation prohibitions they created a new dispute between the Parties
under the IASTA that did not previously exist. The mere fact that those prohibitions
were allegedly imposed in the context of the broader dispute does not deprive that
new dispute of its separate existence as a matter of law. The Court’s jurisprudence
could not be clearer in that regard.
3.8 In Certain Iranian Assets, for example, the United States, much like Joint
Appellants here, argued that Iran was “not seeking the settlement of a legal dispute
concerning the provisions of the Treaty [of Amity], but [was] attempting to embroil
the Court in ‘a broader strategic dispute’”.77 The U.S. further argued that the
73 See Response of the State of Qatar to the Preliminary Objections of the Respondents; in re
Application (B) of the State of Qatar Relating to the Disagreement on the Interpretation and
Application of the International Air Services Transit Agreement done at Chicago on 7 December
1944, 30 April 2018, paras. 76-78, 83 (BEUM Vol. IV, Annex 25).
74 See QCM (B), Chapter 2, Section II.B.1, para. 3.37.
75 BEUR, para. 4.14(b).
76 Ibid., p. 83, Section 2 heading.
77 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, I.C.J. Judgment of 13 February 2019, para. 34 (emphasis added).
27
“actions of which Iran complains cannot be separated from their context, namely
Iran’s long-standing violations of international law …”.78
3.9 The Court disagreed. In its February 2019 Judgment on Preliminary
Objections, the Court stated that “applications that are submitted to it often present
a particular dispute that arises in the context of a broader disagreement between
parties”.79 According to the Court, the only relevant questions were (1) “whether
the acts of which [Applicant] complains fall within the provisions of” the treaty in
question (there, the 1955 Treaty of Amity), and (2) “whether, as a consequence,
the dispute is one which the Court has jurisdiction ratione materiae to entertain”
under that treaty’s compromissory clause.80
3.10 Joint Appellants nowhere argue that the acts about which Qatar complains
do not fall within the provisions of the IASTA. Neither in their pleadings before
the Council or before the Court do Joint Appellants argue that the aviation
prohibitions do not implicate those provisions or that there is a not dispute over
them.81 The consequence is inescapable: the dispute is one which the Council “has
jurisdiction ratione materiae to entertain”.
3.11 Joint Appellants’ Reply makes no effort to reconcile their position with this
aspect of the Court’s Judgment in Certain Iranian Assets. Indeed, they do not
address it at all.
78 Ibid. (emphasis added).
79 Ibid., para. 36 (emphasis added).
80 Ibid.
81 See, e.g., BEUR, paras. 4.7(a), 4.14.
28
3.12 Nor do they make any effort to come to terms with the Court’s virtually
identical holding in Bolivia v. Chile. There, the Court had no difficulty rejecting
Chile’s argument that Bolivia’s Application “obfuscate[d] the true subject-matter
of Bolivia’s claim—territorial sovereignty and the character of Bolivia’s access to
the Pacific Ocean”.82 In its 2015 Judgment on Preliminary Objections, the Court
stressed that “applications that are submitted to the Court often present a particular
dispute that arises in the context of a broader disagreement between parties”.83
The mere fact that they do so does not convert the real issue in dispute in a
particular case into the subject of the broader disagreement.84
3.13 Other similar cases on which Joint Appellants maintain a studied silence
include:
• United States Diplomatic and Consular Staff in Tehran (United States
v. Iran);85
82 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, para. 32.
83 Ibid. (emphasis added).
84 Ibid.: “The Court considers that, while it may be assumed that sovereign access to the Pacific
Ocean is, in the end, Bolivia’s goal, a distinction must be drawn between that goal and the related
but distinct dispute presented by the Application, namely, whether Chile has an obligation to
negotiate Bolivia’s sovereign access to the sea and, if such an obligation exists, whether Chile has
breached it. The Application does not ask the Court to adjudge and declare that Bolivia has a right
to sovereign access”.
85 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, I.C.J.
Reports 1980, para. 37: “legal disputes between sovereign States by their very nature are likely to
occur in political contexts, and often form only one element in a wider and long-standing political
dispute between the States concerned. Yet never has the view been put forward before that, because
a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should
decline to resolve for the parties the legal questions at issue between them. Nor can any basis for
such a view of the Court's functions or jurisdiction be found in the Charter or the Statute of the
Court; if the Court were, contrary to its settled jurisprudence, to adopt such a view, it would impose
a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of
international disputes”.
29
• Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States);86
• Border and Transborder Armed Actions (Nicaragua v. Honduras)87
and;
• Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation).88
3.14 Joint Appellants’ demurral in the face of this long, unbroken chain of case
law is as striking as it is telling. It also makes their assertion that it is Qatar that
“seeks to distance itself from the well-established practice of the Court”89 all the
more curious. Joint Appellants’ Reply cites only two cases to support its “real
86 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, para. 96 (“…the Court has never
shied away from a case brought before it merely because it had political implications or because it
involved serious elements of the use of force”.).
87 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, para. 54: “There is no doubt that the issues of which
the Court has been seised may be regarded as part of a wider regional problem. The Court is not
unaware of the difficulties that may arise where particular aspects of a complex general situation
are brought before a Court for separate decision. Nevertheless, as the Court observed in the case
concerning United States Diplomatic and Consular Staff in Tehran, ‘no provision of the Statute or
Rules contemplates that the Court should decline to take cognizance of one aspect of a dispute
merely because that dispute has other aspects, however important …’”.
88 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 32 (“One situation may contain disputes which relate to more than one body of law and
which are subject to different dispute settlement procedures”) (also citing United States Diplomatic
and Consular Staff in Tehran (United States v. Iran), Judgment, I.C.J. Reports 1980, paras. 36-37;
Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, para. 54). The only thing that Joint Appellants say with respect to
those cases is that “many” of them “involved variations on the political question doctrine”. BEUR,
para. 4.16. Qatar fails to see how this discounts their relevance to the application of the “real issue”
test nor do Joint Appellants offer any explanation to that effect. But even if Joint Appellants are
correct, quod non, as a matter of fact most of those cases clearly involved parallel legal disputes,
either extant or possible. 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, para. 32; Obligation to Negotiate Access to the Pacific Ocean
(Bolivia v. Chile), Preliminary Objections, Judgment, I.C.J. Reports 2015, para. 32; Military and
Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, paras. 94, 96.
89 BEUR, para. 4.12.
30
issue” argument: the Aegean Sea case and the Chagos Islands arbitration.90 Neither
supports their position, however. In fact, for the reasons Qatar will explain in the
next subsection, both cases only underscore the strength of Qatar’s argument.
3.15 Joint Appellants’ mere invocation of a broader dispute between the Parties
therefore cannot change the nature of the issue in dispute in this case. Indeed, Qatar
cannot help but note that at least one of the Joint Appellants, the UAE, itself appears
not to believe the “real issue” argument.
3.16 The Court is aware that there is a separate case pending between Qatar and
the UAE relating to the latter’s violations of the Convention on the Elimination of
All Forms of Racial Discrimination (“CERD”). That case, like this one, relates to
certain measures the UAE took on 5 June 2017, allegedly in response to Qatar’s
violations of, among other things, the Riyadh Agreements. But the UAE has not
argued in that case that the Court lacks jurisdiction because the “real issue” in
dispute is something other than the UAE’s violations of CERD. If the UAE truly
considered that its “real issue” argument had merit in this case, it surely would have
made it in that case too. Qatar considers the fact that it has not revealing.
II. The Real Issue Test Calls for an Objective Identification of the “Object
of the Claim”
3.17 The Parties agree on one thing: the “proper characterization of a dispute ‘is
a matter for objective assessment’”.91 They appear to disagree, however, on the
90 Ibid., paras. 4.16-4.17.
91 Ibid., para. 4.10.
31
manner for determining exactly what the “real issue” in dispute in a particular case
is.
3.18 Relying on the extensive jurisprudence on this issue, Qatar’s Counter-
Memorial explained that the Court will determine the proper characterisation of the
dispute by “identifying the object of the claim” before the ICAO Council.92 Joint
Appellants take this to mean that Qatar is suggesting that “only an applicant’s
pleadings are to be taken into account in determining the real issue in dispute”.93
However, it is not, and has never been, Qatar’s position that in conducting its
assessment the Court may only take account of Qatar’s pleadings before the ICAO
Council. Qatar happily accepts that the Court may look beyond those pleadings to
the written and oral pleadings of Joint Appellants, as well as other surrounding
materials. That said, the essential point remains that the purpose of examining all
the relevant materials is to identify “the real subject of the dispute”, “the exact
nature” of the claims submitted to international adjudication.94
3.19 The relevant “claim” is, of course, the applicant’s claim. The focus of the
inquiry is thus an objective assessment of what Qatar is seeking from the ICAO
92 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections,
I.C.J. Judgment of 6 June 2018, para. 48; QCM (B), paras. 3.44-3.50 (citing Appeal Relating to the
Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, para. 28;
Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, paras. 12, 83;
Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, paras. 22, 32-33; In the matter of an arbitration before an Arbitral
Tribunal constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea
(Republic of the Philippines v. People’s Republic of China), PCA Case No. 2013-19, Award on
Jurisdiction and Admissibility (29 Oct. 2015), paras. 152-153; In the matter of the Chagos Marine
Protected Area Arbitration (Republic of Mauritius v. United Kingdom of Great Britain and
Northern Ireland), PCA Case No. 2011-03, Award (18 Mar. 2015), paras. 209, 211-212).
93 BEUR, para. 4.10.
94 Memorial of the Kingdom of Bahrain, the Arab Republic of Egypt, and the United Arab Emirates
(27 Dec. 2018) (hereinafter “BEUM”), para. 5.54 (quoting Fisheries Jurisdiction (Spain v.
Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, para. 29)
32
Council. The Court has been clear that it will give “particular attention to the
formulation of the dispute chosen by the applicant” and “take[] account of the facts
that the applicant presents as the basis for its claim”.95
3.20 The two cases where an international court or tribunal has determined that
it was without jurisdiction as a result of the “real issue” test, cited in the Reply,96
confirm Qatar’s point. Tellingly, Joint Appellants do not take the trouble to explain
why they think the first such case, Aegean Sea Continental Shelf, helps them. It
does not. As explained in Qatar’s Counter-Memorial, the Court rejected Greece’s
claim in that case because its object, as stated in Greece’s first submission,
necessarily required the adjudication of a matter that was outside of the parties’
consent as a result of Greece’s reservation to the applicable title of jurisdiction.97
3.21 The second case, Chagos Islands, which Joint Appellants claim is “closely
analogous” to the instant case given that “the aviation countermeasures are merely
one, incidental aspect, of a broader dispute which involves a bloc of
countermeasures”,98 is no different. As explained in Qatar’s Counter-Memorial,99
a faithful reading of the Chagos Islands Award shows that the arbitral tribunal
declined jurisdiction over one of Mauritius’s submissions (the first) not just
because it was part of a “broader dispute”, as Joint Appellants claim.100 It did so
95 See, e.g., Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary
Objections, I.C.J. Judgment of 6 June 2018, para. 48; Fisheries Jurisdiction (Spain v. Canada),
Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, para. 30; Territorial and Maritime Dispute
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), para. 38.
96 BEUR, para. 4.16.
97 See QCM (B), para. 3.45.
98 BEUR, para. 4.17.
99 QCM (B), paras. 3.50-3.51.
100 BEUR, para. 4.17.
33
because Mauritius was actually looking for a judicial pronouncement that would
“state that Mauritius is the ‘coastal State’ in relation to the Chagos Archipelago”.101
In other words, the object of Mauritius’s claim was actually a determination the
United Kingdom did not have sovereignty over the Chagos Archipelago, a matter
plainly outside the scope of U.N. Convention on the Law of the Sea (“UNCLOS”).
3.22 It bears mention that notwithstanding the decision that it lacked jurisdiction
over Mauritius’s first submission, the tribunal did not come to the same conclusion
with respect to another of Mauritius’s submissions (the fourth), which concerned
“the manner in which the [marine protected area] was declared” by the United
Kingdom.102 The tribunal considered that issue “distinct from the matter of
sovereignty” and thus within its jurisdiction.103 The mere existence of a “larger
dispute”104 was therefore not a sufficient reason to deny jurisdiction over any and
all of Mauritius’s claims.
III. This Dispute Falls Squarely Within the Jurisdiction of the ICAO
Council Under the “Real Issue” Test
3.23 Joint Appellants do not seriously dispute that in determining the proper
characterisation of the dispute before the ICAO Council, the Court is guided by the
true object of Qatar’s claim. Here, the unmistakable object of Qatar’s claim before
101 In the matter of the Chagos Marine Protected Area Arbitration (Republic of Mauritius v. United
Kingdom of Great Britain and Northern Ireland), PCA Case No. 2011-03, Award (18 Mar. 2015),
para. 211.
102 Ibid., para. 210.
103 Ibid., (emphasis added).
104 Ibid., para. 212. The “larger dispute” was about “land sovereignty over the Chagos Archipelago”.
34
the Council is to secure a decision that the aviation prohibitions violate Article I of
the IASTA,.105 In its Application, Qatar asked the Council:
“- To determine that the Respondents violated by
their actions against the State of Qatar their
obligations under the International Air Services
Transit Agreement (IASTA) and other rules of
international law,
- To deplore the violations by the Respondents of the
fundamental principles of the IASTA,
- To urge the Respondents to withdraw, without
delay, all restrictions imposed on the Qatarregistered
aircraft and to comply with their
obligations under the IASTA and
- To urge the Respondents to negotiate in good faith
the future harmonious cooperation in the region to
safeguard the safety, security regularity and
economy of international civil aviation”.106
3.24 Just like their argument about the existence of a broader dispute between
the Parties,107 Joint Appellants’ assertion of a countermeasures defence does not,
and cannot, change the object of Qatar’s claim before the Council. The Court’s
decision in the 1972 ICAO Council Appeal case—the only prior case to come to it
on appeal from a Council decision—is unambiguous in that respect. Faced with an
105 See QCM (B), paras. 2.23, 3.31-3.35.
106 Application (B) of the State of Qatar; Relating to the Disagreement on the Interpretation and
Application of the International Air Services Transit Agreement (Chicago, 1944), 30 October 2017,
[PDF] p. 593 (BEUM Vol. III, Annex 23).
107 See supra Section I.
35
argument from India that was very similar to the one Joint Appellants now make,108
the Court rejected it in emphatic terms:
“[T]he Council [cannot] be deprived of jurisdiction
merely because considerations that are claimed to
lie outside the Treaties may be involved if,
irrespective of this, issues concerning the
interpretation or application of these instruments
are nevertheless in question. The fact that a defence
on the merits is cast in a particular form, cannot
affect the competence of the tribunal or other organ
concerned,—otherwise parties would be in a
position themselves to control that competence,
which would be inadmissible. As has already been
seen in the case of the competence of the Court, so
with that of the Council, its competence must depend
on the character of the dispute submitted to it and on
the issues thus raised—not on those defences on the
merits, or other considerations, which would
become relevant only after the jurisdictional issues
had been settled”.109
3.25 The Court continued in the next paragraph:
“[T]he legal issue that has to be determined by the
Court really amounts to this, namely whether the
dispute, in the form in which the Parties placed it
before the Council, and have presented it to the Court
in their final submissions … is one that can be
resolved without any interpretation or application of
the relevant Treaties at all. If it cannot, then the
Council must be competent”.110
108 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, paras. 27, 31; see also QCM (B), para. 3.24.
109 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27 (emphasis added).
110 Ibid., para. 28 (emphasis added).
36
3.26 Qatar made these points in its Counter-Memorial.111 Joint Appellants have
little to say in reply. The only time Joint Appellants mention the Court’s 1972
Judgment in Chapter IV of the Reply is to state simply: “The Appellants recall that
the India v. Pakistan case did not concern a question of countermeasures”.112 But
they never explain why this alleged distinction should make a difference. It does
not.
3.27 As explained in Qatar’s Counter-Memorial, the Court’s holding in the 1972
ICAO Council Appeal case was stated in general terms; it did not turn on the
particular defence that India asserted in that case.113 Here, like there, “[t]he fact that
a defence on the merits is cast in a particular form, cannot affect the competence
of the tribunal or other organ concerned,—otherwise parties would be in a position
themselves to control that competence, which would be inadmissible”.114
3.28 Joint Appellants invocation of a countermeasures defence therefore cannot
change the real issue in dispute before the Council. Nor does the object of Qatar’s
claim involve the adjudication of issues falling outside the scope of the Parties’
consent, as shown in the two sections that follow.
111 QCM (B), paras. 3.19-3.28.
112 BEUR, para. 4.27.
113 QCM (B), para. 3.25.
114 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27.
37
A. THE ICAO COUNCIL IS COMPETENT TO DECIDE JOINT APPELLANTS’
COUNTERMEASURES DEFENCE
3.29 The Parties’ consent to the jurisdiction of the ICAO Council is not as
narrow as Joint Appellants make it out to be.115
3.30 A dispute between two or more contracting States to the IASTA may call
for the ICAO Council, under the supervision of the Court, to pass judgment on
State actions taken “for reasons of military necessity or public safety”;116 “in
exceptional circumstances or during a period of emergency, or in the interest of
public safety”;117 in a situation of “war” or “national emergency”.118 All these
determinations may involve factual matters and international obligations going
beyond civil aviation that “in some manner derogate[] from, provide[] an exception
to, or otherwise qualif[y] the scope of the principal substantive obligations”.119 On
Joint Appellants’ own case, there can be no question that such matters “form[] an
integral part of the material scope of the Court’s jurisdiction as to the ‘interpretation
or application’ of the Treaty”.120
3.31 Nor can it be disputed that, aside from these concepts in the Chicago
Convention being imported into the IASTA through its Article I, Section 2, the
115 See, e.g., BEUR, para. 4.27.
116 Chicago Convention, Art. 9(a) (BEUM Vol. II, Annex 1).
117 Ibid., Art. 9(b).
118 Ibid., Art. 89. Under Article I, Section 2 of the IASTA, “[t]he exercise of the foregoing privileges
shall be in accordance with the provisions of … the Convention on International Civil Aviation”.
The “foregoing privileges” are the privileges “to fly across its territory without landing” and “to
land for non-traffic purposes”. IASTA Art. I, Section 1 (BEUM Vol. II, Annex 2).
119 BEUR, para. 4.43.
120 Ibid., fn. 296 (citing 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 of 3 October 2018, para. 42).
38
ICAO Council may also take into account “any relevant rules of international law
applicable in the relations between the parties”121 when interpreting the provisions
of the Convention. In neither circumstance can it be said that the consideration of
obligations lying outside the IASTA by the Council amounts to an improper
expansion of its jurisdiction. Despite Joint Appellants’ obfuscation, it is just the
same with Joint Appellants’ countermeasures defence.
3.32 It is also undisputed between the Parties that, in principle, the ICAO
Council has jurisdiction to apply the rules on the international responsibility of
States for internationally wrongful acts.122 One such rule provides basis for Joint
Appellants’ assertion of Qatar’s alleged violations of obligations lying outside the
Chicago Convention as a circumstance precluding the wrongfulness of their
aviation prohibitions. Under Article 22 of the International Law Commission’s
(“ILC”) Articles on Responsibility of States for Internationally Wrongful Acts
(“ARSIWA”),
“[t]he wrongfulness of an act of a State not in
conformity with an international obligation towards
another State is precluded if and to the extent that the
act constitutes a countermeasure taken against the
latter State in accordance with chapter II of Part
Three”.123
121 Vienna Convention on the Law of Treaties (adopted 22 May 1969), 1155 U.N.T.S. 331, Art.
31(3)(c); see also Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment,
I.C.J. Reports 2003, paras. 39-42.
122 See, e.g., The Arctic Sunrise Arbitration (Netherlands v. Russia), PCA Case No. 2014-02, Award
on the Merits (14 Aug. 2015), para. 190 (“In order properly to interpret and apply particular
provisions of the Convention, it may be necessary for a tribunal to resort to foundational or
secondary rules of general international law such as the law of treaties or the rules of State
responsibility”.) (internal footnotes omitted). Indeed, Joint Appellants nowhere suggest, for
example, that the Council lacks competence to adjudicate a “reciprocal countermeasures” defence.
123 International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts (2001), in Report of the International Law Commission on the Work of its Fifty39
3.33 In this context, the ICAO Council also has jurisdiction to determine whether
a Member State must be deemed an “injured State”,124 that is, a State entitled to
react to an internationally wrongful act by the taking of countermeasures in breach
of the IASTA, for purposes of adjudicating its responsibility under international
law.
3.34 Joint Appellants are unable to point to a single limitation on the scope of
the body of rules of international law that the Council has jurisdiction to apply:
they point to no support for their assertion that the Council cannot address their
non-reciprocal countermeasures defence. They therefore urge the Court to read
such a limitation into the terms “relating to the interpretation [or] application of
this Agreement” in Article II, Section 2.125 Joint Appellants allege that Qatar, by
suggesting that the Council has jurisdiction to address their countermeasures
defence, is proposing an “expansive interpretation” of these terms.126 As they see
it, Qatar’s response “go[es] against the practice of the Court, which has consistently
interpreted compromissory clauses in accordance with the ordinary rules of treaty
interpretation”.127 Joint Appellants are mistaken.
third Session (2001), document A/56/10, Chapter V, reproduced in ILC Yearbook 2001, Vol. II(2)
(hereinafter “International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongful Acts (2001)”), Art. 22 (BEUM Vol. II, Annex 13). Chapter II of Part III
of the Articles sets out the objects and limits of countermeasures (Article 49), obligations not
affected by countermeasures (Article 50), the fundamental principle of proportionality governing
their operation and invocability (Article 51), conditions relating to resort to countermeasures
(Article 52) and the termination of countermeasures (Article 53).
124 Ibid., Arts. 42, 49.
125 See, e.g., BEUR, paras. 4.19-4.20.
126 Ibid., para. 4.19.
127 Ibid., para. 4.22.
40
3.35 Qatar is not proposing an “expansive” interpretation of Article II, Section
2. Nor is it proposing that the provision be interpreted other than in accordance
with the ordinary rules of treaty interpretation. To the contrary, Qatar proposes only
that it be interpreted in a manner consistent with the many other compromissory
clauses just like it.
3.36 Article II, Section 2, is unremarkable; it is a garden-variety compromissory
clause. If a dispute in which an applicant alleges violations of the IASTA ceased
to concern the “interpretation or application” of the Agreement merely because the
respondent asserted a non-reciprocal countermeasures defence, the same would be
true for other treaties that contain materially identical compromissory clauses.
3.37 For example, much like Article II, Section 2, of the IASTA, Article 286 of
UNCLOS provides: “Any dispute concerning the interpretation or application of
this Convention shall, where no settlement has been reached by recourse to section
1, be submitted at the request of any party to the dispute to the court or tribunal
having jurisdiction under [Section 2 of Part XV]”.128
3.38 On Joint Applicants’ theory, a respondent State could void the jurisdiction
of the relevant court or tribunal—frequently this Court—over a dispute concerning
alleged violations of UNCLOS merely by interposing a defence of non-reciprocal
countermeasures. Such a result would not only be absurd, it would seriously
undermine the entire system of inter-State adjudication.
128 United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December
1982, 1833 UNTS 3, Art. 286 (BEUM Vol. II, Annex 9).
41
3.39 Joint Appellants appear mindful of the uncomfortable consequences of their
position. They therefore try to make it seem that the problem is not a serious one.
They argue that the danger Qatar points to does not arise because Qatar’s argument
supposedly
“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 IASTA, Qatar’s
reasoning breaks down”.129
3.40 This argument, of course, assumes its own conclusion. In other words, Joint
Appellants argument would only have traction if they were correct that the “real
issue” in dispute is what they say it is. But they are not correct for all the reasons
Qatar has already explained. Their attempt to minimise the systemic dangers of
their argument therefore fails.
3.41 Joint Appellants also argue that the danger Qatar highlights “would only be
a concern if respondent States abusively invoked countermeasures in bad faith, in
circumstances lacking any foundation in fact”.130 This is no answer. On Joint
Appellants’ theory of the case, the ICAO Council would not have jurisdiction to
consider a countermeasures defence and therefore would have no ability to even
reach the issue of bad faith. There would thus be no check against abuse.
3.42 Moreover, in Qatar’s view, the possibility that Joint Appellants point to is
exactly what is happening in this case. Contrary to their pretensions,131 Joint
129 BEUR, para. 4.26.
130 Ibid., para. 4.27.
131 Ibid.
42
Appellants’ countermeasures defence is not presented in good faith. The purpose
of Chapter 2 of Qatar’s Counter-Memorial, and of the present Rejoinder, is
precisely to show that Joint Appellants’ countermeasures defence is “lacking any
foundation in fact”.132 In those chapters, Qatar showed that their allegations
concerning Qatar’s supposed support for terrorism and interference in their internal
affairs crumble upon even cursory analysis. Their countermeasures defence is
entirely pretextual in nature and therefore should not be allowed to operate as a bar
to the Council’s jurisdiction under the artifice of the “real issue” test.
B. THE ICAO COUNCIL COULD DECIDE THIS DISPUTE WITHOUT REACHING THE
MERITS OF JOINT APPELLANTS’ COUNTERMEASURES DEFENCE
3.43 As Qatar explained in its Counter-Memorial, there are several ways in
which the ICAO Council might decide the dispute submitted to it without ever
having to enter into a discussion of the “substantive justification”133 of Joint
Appellants’ countermeasures defence.134 That being the case, it would be
anomalous to find that the Council lacks jurisdiction under Article II, Section 2,
based on a notional eventuality that, while theoretically possible, may never come
to pass.
3.44 As they do with so many other elements of Qatar’s Counter-Memorial, Joint
Appellants mischaracterise Qatar’s position. They claim that Qatar raised these
points because it supposedly “all but concedes [that] the ICAO Council does not
have jurisdiction over the question whether the Appellants’ countermeasures were
132 Ibid.
133 Ibid., para. 4.53.
134 See QCM (B), paras. 3.58-3.68.
43
justified by Qatar’s prior conduct”.135 That is not the case. The point is far simpler:
the assumption that lies at the heart of Joint Appellants’ case—namely, that the
disagreement Qatar submitted to the ICAO Council “would necessarily require the
Council to adjudicate upon matters falling outside its jurisdiction”136—is
unfounded. As stated, there are several ways in which the Council could decide this
dispute without having to answer—to again use Joint Appellants’ words—“the
question whether the Appellants’ countermeasures were justified by Qatar’s prior
conduct”.137
3.45 One such way, of course, would be if the Council found that the aviation
prohibitions do not violate the IASTA.138 In that case, the question of
circumstances precluding wrongfulness would not arise. Joint Appellants have no
response to this point.
3.46 Another such way would be for the Council to decide that Joint Appellants
did not comply with the preconditions set by international law for the adoption of
countermeasures, including the procedural conditions of notice and an offer of
negotiation, among others.139
3.47 In this respect, Qatar notes that Joint Appellants have never argued either
before the Council or the Court that they gave Qatar the necessary notice or offered
135 BEUR, para. 4.33; see also ibid., para. 4.5 (“Qatar all but accepts that the Council lacks
jurisdiction under Article II, Section 2, of the IASTA, including in respect of the Appellants’
invocation of countermeasures”).
136 Ibid., para. 4.33 (emphasis added).
137 Ibid.
138 See QCM (B), para. 3.57.
139 See International Law Commission, Articles on Responsibility of States for Internationally
Wrongful Acts (2001), Art. 52(1).
44
to negotiate with it prior to the adoption of the aviation prohibitions. Indeed, as
Qatar has shown, the aviation prohibitions were adopted without prior warning.140
The Council would therefore be well justified in rejecting Joint Appellants’
countermeasures defence on this ground alone.
3.48 Joint Appellants complain that “[f]or 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”.141 It is difficult to understand why that
would be the case, however, given that Joint Appellants do not dispute that a
countermeasures defence would be invalidated in case it fails to meet the
procedural requirements set out in Article 52(1) of ARSIWA. In such case, the
“substantive justification” of the defence would not need to be addressed.
3.49 In any event, Joint Appellants’ complaint is beside the point. The point is
not that the Council cannot consider the substantive aspects of Joint Appellant’s
defence. In Qatar’s view as stated above,142 it can. Article II, Section 2, of the
IASTA gives it that authority, just like every other body empowered to decide a
dispute concerning the “interpretation or application” of a given treaty. The point
is simply that the Council may not even have to address the substantive aspects of
Joint Appellants’ defence.
3.50 The ICAO Council could also conclude that the IASTA and the Chicago
Convention exclude as lex specialis recourse to (non-reciprocal)
140 See QCM (B), paras. 1.12, 2.6, 4.28.
141 BEUR, para. 4.54.
142 See supra Section III.A.
45
countermeasures.143 This is plainly an issue relating to the “interpretation or
application” of the IASTA and of the Chicago Convention through Article I,
Section 2, of the IASTA that is unmistakably within the Council’s jurisdiction.144
Joint Appellants argue that “the language of Article I, Section 2 of IASTA …
concerns only ‘the exercise of the foregoing privileges’, and not the application of
other customary international law rights such as countermeasures”,145 so that the
latter would always be available under the IASTA, irrespective of the Chicago
Convention. However, whether Article I, Section 2, of IASTA has such effect is
also a matter of interpretation of the Agreement that unmistakably lies within the
Council’s jurisdiction. If the Council were to decide that the IASTA excludes
recourse to (non-reciprocal) countermeasures, the substance of Joint Appellants
countermeasures argument would be rendered entirely irrelevant.
3.51 Joint Appellants’ Reply contains a number of arguments as to why, in their
view, the IASTA and the Chicago Convention do not exclude countermeasures.146
As they acknowledge,147 the issue is not ripe for decision at this time; it is a matter
for decision by the Council when this matter returns to it for decision on the merits.
Qatar will therefore not burden the Court by unnecessarily prolonging the debate
143 See QCM (B), paras. 3.58-3.66.
144 The opposing views of the Parties about whether countermeasures are available under the IASTA
and the Chicago Convention “cannot but be indicative of a direct conflict of views as to the meaning
of the [Convention], or in other words of a ‘disagreement … relating to [its] interpretation or
application’:—and if there is even one provision … as to which this is so, then the Council is
invested with jurisdiction, were it but the only such provision to be found, which is clearly not the
case”. Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 43.
145 BEUR, para. 4.43.
146 Ibid., paras. 4.34-4.47.
147 Ibid., para. 4.33 (“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”.).
46
on this point. It will confine itself to just three observations for purposes of
highlighting the extent to which Joint Appellants are content to take liberties with
the law to make their case.
3.52 Joint Appellants argue that Qatar’s lex specialis argument “fails to engage
with the terms of the Riyadh Agreements, which clearly establish a broad and freestanding
right of Contracting States to adopt ‘appropriate action’—without
restriction or qualification—in case of another Contracting State’s noncompliance”.
148 Qatar disagrees with this proposition, and in particular Joint
Appellants’ suggestion that this “right” goes beyond the customary international
law right of countermeasures and/or prevails over the IASTA.149
3.53 On the other hand, Qatar agrees with Joint Appellants that this is “a matter
for argument only at the merits stage” before the ICAO Council.150 Qatar would be
remiss not to point out, however, that under Article 82 of the Chicago Convention,
which governs the exercise of “privileges” under the IASTA pursuant to its Article
I, Section 2, Joint Appellants have undertaken “not to enter into any … obligations
and understandings [which are] inconsistent with the terms of [the Chicago]
Convention”.151 As Qatar pointed out in its Counter-Memorial, the International
Law Commission (“ILC”) Report on the Fragmentation of International Law has
identified clauses of that precise character as “an express exception to the lex
148 Ibid., para. 4.35.
149 Ibid., para. 2.7.
150 Ibid., para. 4.36.
151 Chicago Convention, Art. 82 (BEUM Vol. II, Annex 1) (emphasis added). See QCM (B), para.
3.64 and fn. 273 (“To the extent that Joint Appellants base their countermeasures defence on the
Riyadh Agreements, this provision alone defeats their claim”.).
47
posterior rule, designed to guarantee the normative power of the earlier treaty”.152
Even though Joint Appellants question the “intransgressible” nature of the
substantive obligations under the IASTA and the ICAO Convention,153 they
entirely fail to account for this provision.
3.54 Joint Appellants also claim that “aviation-related countermeasures are wellknown
in State practice”.154 The instances of practice they cite are, however, beside
the point here. The examples Joint Appellants invoke relating to the U.S.-France
1978 arbitration, Poland and the Soviet Union, South Africa and Yugoslavia all
concern landing rights granted under bilateral treaties,155 matters not governed by
the IASTA and the Chicago Convention. And the one example they cite that does
at least in part involve overflight—the E.U. ban on North Korean carriers156—was
152 International Law Commission, Fragmentation of International Law: Difficulties Arising from
the Diversification and Expansion of International Law, Report of the Study Group of the
International Law Commission, UN Doc. A/CN.4/L.682 (13 Apr. 2006), para. 268 (some emphasis
added).
153 BEUR, paras. 4.39, 4.43. Joint Appellants are also wrong to suggest that as long as the
obligations under the Chicago Convention are not “given a status akin to jus cogens”, the issue of
exclusion of countermeasures does not arise. BEUR, para. 4.39. The ILC Commentary on Article
50 ARSIWA—which Joint Appellants quote—clearly rejects such view: “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”. BEUR,
para. 4.41 fn. 326 (quoting International Law Commission, Draft Articles on Responsibility of
States for Internationally Wrongful Acts (2001), Art. 50, p. 133, para. 10 (BEUM Vol. II, Annex
13) (emphasis added)).
154 BEUR, para. 4.45.
155 See ibid., para. 4.45(a), (b), (c), (d). Joint Appellants refer in particular to the European Union’s
Council Regulation n°1901/98 of 7 September 1998 concerning a ban on flights of Yugoslav
carriers between the Federal Republic of Yugoslavia and the European Community (BEUR, fn.
342), but they fail to note that Article 3, paragraph 2, of that Regulation specifies that “[n]othing
[therein] shall be construed as limiting any existing rights of Yugoslav carriers and aircraft
registered in the FRY other than rights to land in or to take off from the territory of the Community”.
In other words, the second transit privilege provided under Article I of the IASTA (i.e. “[t]he
privilege to fly across [each contracting State’s] territory without landing”, which they have
wrongly deprived Qatar of) remained unaffected.
156 Ibid., para. 4.45(e).
48
imposed pursuant to paragraph 21 of U.N. Security Council Resolution 2270
adopted on 2 March 2016,157 not as a countermeasure.158
3.55 Finally, Joint Appellants wrongly assert that “specific, express agreement”
is required to exclude countermeasures159 and that they are always available “even
where … treaties already provide exceptions for different circumstances”.160
Nothing in the work of the ILC, however, suggests that countermeasures must be
explicitly excluded. On the contrary, by underscoring that derogation clauses and
the prohibition of reservations can be indicative of a lex specialis excluding
countermeasures,161 the ILC makes clear that countermeasures may be excluded by
implication. Indeed, treaties that are silent on the issue have been interpreted as
excluding countermeasures.162 Such treaties include the Vienna Conventions on
Diplomatic Relations and on Consular Relations, which the Court has held to
157 UN Security Council, Resolution 2270, UN Doc. S/RES/2270 (2 Mar. 2016), para. 21: “Decides
that all States shall deny permission to any aircraft to take off from, land in or overfly, unless under
the condition of landing for inspection, their territory, if they have information that provides
reasonable grounds to believe that the aircraft contains items the supply, sale, transfer or export of
which is prohibited by resolutions 1718 (2006), 1874 (2009), 2087 (2013), 2094 (2013) or this
resolution, except in the case of an emergency landing, and calls upon all States, when considering
whether to grant overflight permission to flights to assess known risk factors”.
158 Joint Applicants misrepresent the facts of this ban. Citing only UNSC Resolution 1718 (2006),
they assert that the EU landing, taking off and overflying bans “are separate from the sanctions
required by the United Nations Security Council”. BEUR, para. 4.45(e). As the text of UNSC
Resolution 2270 quoted in the previous footnote shows, that is plainly incorrect.
159 BEUR, para. 4.41.
160 Ibid., para. 4.41, fn. 328. Joint Appellants purport to illustrate their point by invoking the practice
of Nazi Germany in relation to the Locarno Treaty. Ibid., fn. 328. Qatar considers it telling that Joint
Appellants look to that practice for legal guidance.
161 See QCM (B), para. 3.59-3.63.
162 See Court of Justice of the European Communities, Commission v. Grand Duchy of Luxembourg
and Belgium, joined cases 90 and 91/63, Judgment (13 Nov. 1964), Rep. 1964, p. 626.
49
“exclude[] the possibility of recourse to countermeasures”,163 even though they do
not contain a “specific, express agreement” to that effect.
3.56 Qatar reiterates that the point of this discussion is not that the Court should
decide all these issues now. The point is simply that it is entirely possible that the
Council will never have occasion to deal with the substance of Joint Appellants’
claim that Qatar’s actions justified the aviation prohibitions. Joint Appellants’
request that the Court disregard this possibility is another way in which they seek
to impermissibly control the competence of the Council, and ultimately of the
Court itself.
IV. The Adjudication of Qatar’s Claims by the ICAO Council Is Entirely
Consistent with Judicial Propriety
3.57 Joint Appellants maintain their argument that even if the Council has
jurisdiction, Qatar’s claims should be deemed inadmissible as a matter of “judicial
propriety”.164 As they see it, “it would be ‘incompatible with the fundamental
principle of the consensual basis of international jurisdiction’” for the Council to
exercise jurisdiction.165 This argument need not detain the Court long. It is an
obvious repurposing of their jurisdictional argument as an objection to
admissibility.
3.58 According to Joint Appellants, “the simple point is that the Council cannot
properly determine the civil aviation issues of the dispute without also adjudicating
163 BEUR, para. 4.47 (discussing United States Diplomatic and Consular Staff in Tehran (United
States v. Iran), Judgment, I.C.J. Reports 1980, paras. 83-86).
164 BEUR, para. 4.29.
165 Ibid., para. 4.28 (quoting BEUM, para. 5.2(b)).
50
the broader aspects of the dispute which fall outside of its jurisdiction, including
the Appellants’ reliance on countermeasures”.166 Their admissibility argument thus
assumes the premise of their jurisdictional argument. If the latter fails (as it does
for all the reasons Qatar has explained), so too does the former. Joint Appellants’
countermeasures defence does not “fall outside” the Council’s jurisdiction; it falls
squarely within it.
3.59 Additionally, as explained in Qatar’s Counter-Memorial, by analogy to the
logic of forum prorogatum, a respondent State presenting a defence on the merits
should be deemed to have consented to it being duly examined should the relevant
international court or tribunal find itself with jurisdiction.167 To recall once again
the words of the Court in the 1972 ICAO Council Appeal case, the opposite would
be tantamount to allowing a “defence on the merits” to negative “the competence
of the tribunal or other organ concerned”.168
3.60 No issue of consent or “judicial propriety” therefore arises. Joint
Appellants’ admissibility argument must be rejected.
*
3.61 The dispute between the Parties relates to the interpretation or application
of the IASTA. The Council therefore has jurisdiction. In line with the Court’s prior
jurisprudence, Qatar cannot be deprived of its right to have its claims heard simply
because Joint Appellants make unilateral assertions that the “real issue” in dispute
166 BEUR, para. 4.28.
167 QCM (B), para. 3.72, fn. 294.
168 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27.
51
between the Parties concerns matters falling outside the scope of the Agreement.
The ICAO Council properly dismissed Joint Appellants’ Preliminary Objection,
and the Court should do the same with respect to the Second Ground of Appeal.
53
THE COURT SHOULD DENY JOINT APPELLANTS’ THIRD GROUND
OF APPEAL
4.1 Joint Appellants’ Third Ground of Appeal is that the Council erred in
rejecting their objection relating to prior negotiations.169 They claim that the
Council’s decision is wrong for two reasons. First, Qatar allegedly did not comply
with the negotiation requirement in Article II, Section 2 of the IASTA, which Joint
Appellants characterise as the “jurisdictional limb”170 of their objection. Second,
“in the alternative,”171 Qatar allegedly did not comply with the requirement in
Article 2(g) of the ICAO Rules for the Settlement of Differences, which Joint
Appellants characterise as “giv[ing] rise to a question of admissibility”.172
4.2 Both arguments are without merit for the reasons explained below.
Accordingly, Joint Appellants’ Third Ground of Appeal fails, just like the other
two. Section I of this Chapter deals with Joint Appellants’ misguided complaint
that the ICAO Council erred in rejecting their objection based on Article II, Section
169 Joint Appellants allege in their Reply that 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’”. BEUR, para. 5.5. However, later in their argument, Joint Appellants admit that the
ICAO Council “reject[ed] the Appellants’ Preliminary Objections in this regard”. BEUR, para. 5.79.
They did the same in their Joint Application (Joint Application Instituting Proceedings, Appeal
Against a Decision of the ICAO Council dated 29 June 2018 on Preliminary Objections
(Application (B), Kingdom of Bahrain, Arab Republic of Egypt, and the United Arab Emirates v.
State of Qatar), 4 July 2018 (hereinafter “ICJ Application (B)”), para. 31) and in their Memorial,
where they actually stated that the Council had “not accept[ed] the Appellants’ Second Preliminary
Objection”. BEUM, para. 6.1. The Decision of the ICAO Council itself expressly states that the
Council “decide[d] that the preliminary objection of the Respondents is not accepted”. 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 and the United Arab Emirates (2017) – Application
(B), 29 June 2018 (BEUM Vol. V, Annex 52).
170 BEUR, para. 5.8; see also ibid., para. 5.78.
171 Ibid., para. 5.2; see also ibid., para. 5.78.
172 See, e.g., ibid., paras. 5.1-5.2.
54
2 of the IASTA. Section I.A explains why Joint Appellants misunderstand the
applicable legal standard. Section I.B shows how Joint Appellants misapply that
standard to the facts of the case. Section II then deals with Joint Appellants’
equally misguided complaint that Qatar did not comply with Article 2(g) of the
ICAO Rules for the Settlement of Differences.
I. The ICAO Council Properly Decided that Qatar Satisfied the Article II,
Section 2 Negotiation Requirement
A. JOINT APPELLANTS MISUNDERSTAND THE RELEVANT LEGAL STANDARD
4.3 In Section I.A of Chapter V of their Reply, Joint Appellants challenge three
elements of Qatar’s position concerning the legal standard governing the
negotiation requirement, characterising all three of them as “wrong”.173 In this
section, Qatar responds to those challenges and shows why it is Joint Appellants
who are mistaken.
1. Article II, Section 2 does not require a disputing Party to attempt to
negotiate if the other side entirely refuses to negotiate
4.4 Qatar’s Counter-Memorial showed that after severing diplomatic relations,
Joint Appellants at all times took the view that there was “nothing to negotiate”
with Qatar unless it adhered to their facially unreasonable 13 Demands, which
themselves were “non-negotiable”.174 Qatar also explained that Article II, Section
173 Ibid., para. 5.10.
174 QCM (B), paras. 1.12, 4.30, 4.41.
55
2 of the IASTA does not require a disputing party to attempt to negotiate if the
other disputing party refuses to negotiate ab initio,175 as Joint Appellants did.
4.5 Joint Appellants’ Reply does not argue that they were open to negotiation
with Qatar about the aviation prohibitions (or any other subject). They never once
dispute the fact that they refused to negotiate ab initio. Indeed, they maintain that
position to this day. As recently as 20 June 2019, Saudi Arabia’s Foreign Minister
reportedly stated that dialogue with Qatar was “ruled out … unless it changes its
behavior”.176 There is no indication that Joint Appellants hold a different position.
4.6 Rather than argue that dialogue with Qatar was possible, Joint Appellants
instead take the position that, even in such circumstances, the first disputing party
must still make an attempt to negotiate.177 Qatar considers this self-evidently
absurd.
4.7 It is true that the Court in both Georgia v. Russian Federation and
Obligation to Extradite or Prosecute held that the “precondition of negotiation”
requires “at the very least … a genuine attempt … to engage in discussions with
the other disputing party, with a view to resolving the dispute”.178 But neither case
involved the circumstance presented here: the counter-party’s immediate and total
refusal to talk at any time, in any forum, on any subject. The question of the
175 Ibid., paras. 4.20, 4.36.
176 Ramadan Al Sherbini, “Iran to face ‘strong response’ if it closes Strait of Hormuz”, Gulf News
(20 June 2019) (QR (B) Vol. II, Annex 11).
177 BEUR, paras. 5.10(a), 5.11-5.31.
178 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 157; Questions Relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Judgment, I.C.J. Reports 2012, para. 57.
56
application of the negotiation requirement in such circumstances was not before
the Court in those two cases. Joint Appellants’ insistence on the “genuine attempt”
language is therefore misplaced.
4.8 Interpreting Article II, Section 2 of the IASTA to require a disputing party
to attempt to negotiate even in the face of the other disputing party’s absolute
refusal would be inconsistent with good faith as well as the object and purpose of
the requirement, not to mention common sense. If no talks are possible on any
subject, no purpose could be served by insisting that States nevertheless make a
futile, entirely formalistic attempt to negotiate merely for purposes of “checking
the box”.
4.9 This reading of Article II, Section 2 would in no way negate the “three
distinct functions” of a negotiation requirement the Court identified in Georgia v.
Russian Federation.179
4.10 A disputing party that refuses ab initio to negotiate can hardly claim that it
is not already aware of the existence of the other party’s claims, or of their scope
and subject-matter. Indeed, why decline to negotiate if those claims are not
disputed? This is certainly the case with Joint Appellants. Not only were they fully
179 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 131: “[i]t is not unusual in compromissory clauses conferring jurisdiction on the Court
and other international jurisdictions to refer to resort to negotiations. Such resort fulfills three
distinct functions. In the first place, it gives notice to the respondent State that a dispute exists and
delimits the scope of the dispute and its subject-matter … In the second place, it encourages the
Parties to attempt to settle their dispute by mutual agreement, thus avoiding recourse to binding
third-party adjudication. In the third place, prior resort to negotiations or other methods of peaceful
dispute settlement performs an important function in indicating the limit of consent given by
States …”.
57
informed of Qatar’s complaints from the outset,180 they also expressly refused to
discuss them on multiple occasions, both before the ICAO Council181 and
publicly.182
4.11 A disputing party’s absolute refusal to negotiate also discharges the
negotiation requirement’s second function as well: settlement by mutual agreement
is obviously impossible, making recourse to binding third-party adjudication
unavoidable.
4.12 Finally, considering that the negotiation requirement in Article II, Section
2 is dispensed of by virtue of a disputing party’s ab initio refusal does not
undermine in any way its function “in indicating the limit of consent given by
States”.183
180 As Qatar explained in its Counter-Memorial, and has not been contested in Joint Appellants’
Reply, two days after the imposition of the aviation prohibitions, on 7 June 2017, the ICAO
Secretary General replied to Qatar’s June 5 appeal, stating that she had “brought the matter to the
attention of the relevant Representatives on the Council of ICAO”. Letter from Fang Liu, ICAO
Secretary General, to Abdulla Nasser Turki Al-Subaey, Chairman of Qatar Civil Aviation
Authority, Reference No. AN 13/4/3/Open-AMO66892 (7 June 2017) (QCM (B) Vol. III, Annex
22). At the time, two of the Joint Appellants (Egypt and the UAE) were among the thirty-six
Member States serving on the ICAO Council. They were thus formally notified of Qatar’s
complaint. None of them, however, provided any response of any kind. To the contrary, they later
expressly excluded from consideration and appropriate action by the ICAO Council the question of
the lawfulness of the aviation prohibitions. QCM (B), paras. 4.60-4.63.
181 See QCM (B), paras. 4.60-4.62.
182 ICAO Response to the Preliminary Objections (B), Exhibit 57, Foreign Ministers of Saudi
Arabia, Bahrain, UAE and Egypt: Measures taken against Qatar are sovereign, and we all are
negatively impacted when terrorism and extremism become stronger (30 July 2017) (stating that
“there is no negotiation over the 13 demands” and that “we made a decision not to allow our airspace
or borders to be used and this is our sovereign right”) (BEUM Vol. IV, Annex 25).
183 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 131.
58
4.13 Joint Appellants argue that they are right to insist that an attempt to
negotiate be made because “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”.184 They are mistaken. An absolute and total refusal to talk
not only makes it possible to reach the conclusion that negotiations would be futile,
it makes that conclusion unavoidable.
4.14 Qatar’s interpretation of Article II, Section 2 is entirely consistent with the
interpretation of procedural requirements in several specialised areas of
international law. For example, in the law of diplomatic protection, local remedies
generally need to be exhausted, but one need not even attempt to exhaust them if
such remedies are futile.185 Similarly, in human rights law, complainants are
generally required to exhaust local remedies, but once again they do not even need
to attempt to pursue such remedies where they are evidenced to be futile.186 And in
184 BEUR, para. 5.20.
185 International Law Commission, Draft Articles on Diplomatic Protection (2006), in Official
Records of the General Assembly, Sixty-first Session, UN Doc. A/61/10, Art. 15(a) (“Local remedies
do not need to be exhausted where: (a) There are no reasonably available local remedies to provide
effective redress, or the local remedies provide no reasonable possibility of such redress”);
International Law Commission, Draft Articles on Diplomatic Protection, with commentaries
(2006), Art. 15(3): “In this form the test is supported by judicial decisions which have held that
local remedies need not be exhausted where the local court has no jurisdiction over the dispute in
question; the national legislation justifying the acts of which the alien complains will not be
reviewed by local courts; the local courts are notoriously lacking in independence; there is a
consistent and well-established line of precedents adverse to the alien; the local courts do not have
the competence to grant as appropriate and adequate remedy to the alien; or the respondent State
does not have an adequate system of judicial protection”.
See also Claim of Finnish shipowners against Great Britain in respect of the use of certain Finnish
vessels during the war (Finland, Great Britain), Award (9 May 1934), ), UNRIAA, Vol. III, p. 1503
(“The parties in the present case, however, agree—and rightly—that the local remedies rule does
not apply where there is no effective remedy”.).
186 Cyprus v. Turkey (app. no. 25781/94), Judgment (ECtHR 10 May 2001), para. 99 (“The Court
recalls…that the exhaustion rule is inapplicable where an administrative practice…has been shown
to exist and is of such a nature as to make proceedings futile or ineffective…”.); Earl Pratt and Ivan
Morgan v. Jamaica, Human Rights Committee, Communication Nos. 210/1986 and 225/1987,
Views (6 Apr. 1989), para. 12.3 (“That the local remedies rule does not require resort to appeals
59
international investment law, investors are sometimes subject to requirements of
litigation before the courts of the host State contained in investment treaties, but
investors are not even required to attempt local litigation when it is proven to be
futile.187
4.15 Qatar also observes that the language of Article II, Section 2 of the IASTA
is different from both Article 22 of CERD and Article 30(1) of the Convention
Against Torture (“CAT”), the jurisdictional titles in Georgia v. Russian Federation
and Obligation to Extradite or Prosecute, respectively.
4.16 Article II, Section 2 of the IASTA provides:
“If any disagreement between two or more
contracting States relating to the interpretation or
application of this Agreement cannot be settled by
negotiation, the provisions of Chapter XVIII of the
[Chicago] Convention shall be applicable in the
same manner as provided therein with reference to
any disagreement relating to the interpretation or
that objectively have no prospect of success, is a well established principle of international law and
of the Committee's jurisprudence”.); Case of Akdivar and Others v. Turkey (app. no. 21893/93),
Judgment (ECtHR 16 Sept.1996), para. 67 (holding that the application could not be rejected for
failure to exhaust local remedies (Ibid., para. 76) because of “obstacles to the proper functioning of
the system of the administration of justice” (Ibid., para. 70), even though the applicants “did not
even make the slightest attempt” to exhaust local remedies (Ibid., para. 56)); Case of Hornsby v.
Greece (app. no. 18357/91), Judgment (ECtHR 19 Mar. 1997), paras. 36-37 (holding that local
remedies were futile and thus did not need to be exhausted, even though the applicants did not even
attempt to initiate proceedings before civil courts and the administrative authorities).
187 See, e.g., Ambiente Ufficio S.p.A. and others v. Argentine Republic, ICSID Case No. ARB/08/9,
Decision on Jurisdiction and Admissibility (8 Feb. 2013), paras. 594, 620 (holding that the local
litigation requirement was inapplicable because “having recourse to the Argentine domestic courts
and eventually to the Supreme Court …would have accordingly been futile” (Ibid., para. 620), even
though “Claimants did not submit the dispute to Argentine courts” (Ibid., para. 594); ST-AD GmbH
v. Republic of Bulgaria, PCA Case No. 2011-06 (ST-BG), Award on Jurisdiction (18 July 2013),
paras. 364-365 (holding that “every treaty or rule of international law has to be interpreted in good
faith. As a consequence, it can be considered that there is an implied condition that if there is a clear
and insuperable futility in following a required procedure, this procedure might, in these specific
circumstances, be dispensed of”.) (emphasis added).
60
application of the [Chicago] Convention”.188
4.17 Unlike Article 22 of CERD and Article 30(1) of CAT,189 Article II, Section
2 of the IASTA is prefaced by the conditional conjunction “if”.190 “If” means: “in
the event that”; “allowing that”; “on the assumption that”; and “on condition
188 IASTA, Art. II(2) (BEUM Vol. II, Annex 2). Article 84 of the Chicago Convention provides in
relevant part:
“If any disagreement between two or more contracting States relating to the
interpretation or application of this Convention and its Annexes cannot be settled
by negotiation, it shall, on the application of any State concerned in the
disagreement, be decided by the Council. No member of the Council shall vote
in the consideration by the Council of any dispute to which it is a party. Any
contracting State may, subject to Article 85, appeal from the decision of the
Council to an ad hoc arbitral tribunal agreed upon with the other parties to the
dispute or to the Permanent Court of International Justice. Any such appeal shall
be notified to the Council within sixty days of receipt of notification of the
decision of the Council”.
Chicago Convention, Art. 84 (BEUM Vol. II, Annex 1).
189 Article 22 of CERD provides: “Any dispute between two or more States Parties with respect to
the interpretation or application of this Convention, which is not settled by negotiation or by the
procedures expressly provided for in this Convention, shall, at the request of any of the parties to
the dispute, be referred to the International Court of Justice for decision, unless the disputants agree
to another mode of settlement”. International Convention on the Elimination of All Forms of Racial
Discrimination, (1969) 660 U.N.T.S. 195 (12 Mar. 1969) (entry into force: 4 Jan. 1969), Art. 22.
Article 30(1) of CAT provides in relevant part: “Any dispute between two or more States Parties
concerning the interpretation or application of this Convention which cannot be settled through
negotiation shall, at the request of one of them, be submitted to arbitration”. Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (1984) 1465 U.N.T.S.
85 (26 June 1984) (entry into force: 26 June 1987), Art. 30(1). Both provisions establish negotiation
requirements that directly modify the word “dispute”. Article II, Section 2 of the IASTA, on the
other hand, establishes its negotiation requirement through an “if” clause. IASTA, Art. II(2) (“If
any disagreement between two or more contracting States relating to the interpretation or
application of this Agreement cannot be settled by negotiation, the provisions of Chapter XVIII of
the [Chicago] Convention shall be applicable in the same manner as provided therein with reference
to any disagreement relating to the interpretation or application of the [Chicago] Convention”.)
(BEUM Vol. II, Annex 2).
190 Unlike the Chicago Convention, the IASTA is only authentic in English. See International Air
Services Transit Agreement (7 Dec. 1944) (entry into force: 30 Jan. 1945), Trilingual Version,
ICAO Doc. 7500 (1954), p. 2 (QR (B) Vol. II, Annex 2). In any case, the French and Spanish
versions that are used by ICAO for internal purposes also employ the conjunction “if”. The French
text provides: “Si un désaccord … ne peut être réglé par voie de négociation …”. The Spanish text
provides: “Si surge … algún desacuerdo … que no pueda solucionarse mediante negociación …”.
Ibid., Art. II(2) (emphasis added).
61
that”.191 It is thus a conjunction used to express a condition that is necessary in
order for something to happen. Particularly when paired with the use of the term
“cannot”,192 which denotes impossibility, the use of “if” in Article II, Section 2
clearly calls for an objective assessment of fact:193 the impossibility of settlement
by negotiation of a “disagreement between two or more contracting States relating
191 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed., 2009), p. 617 (QR (B) Vol. II, Annex
14).
192 The term “cannot” also appears in the French and Spanish versions of the Agreement that are
used by ICAO for internal purposes. The French text provides: “Si un désaccord … ne peut être
réglé par voie de négociation …”. The Spanish text provides: “Si surge … algún desacuerdo … que
no pueda solucionarse mediante negociación …”. International Air Services Transit Agreement (7
Dec. 1944) (entry into force: 30 Jan. 1945), Trilingual Version, ICAO Doc. 7500 (1954), Art. II(2)
(QR (B) Vol. II, Annex 2) (emphasis added).
193 In this sense, although Qatar recognises the differences in the wording of the two provisions,
Article II, Section 2 is akin to Article XXI(2) of the US-Iran Treaty of Amity, Economic Relations
and Consular Rights, which the Court recently held to be “descriptive in character”. 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,
I.C.J. Reports 2018, para. 50. In its Counter-Memorial, Qatar cited the Tehran Hostages, where the
Court had its first occasion to interpret and apply that provision, as an example of a case where one
State, in that case Iran, refused to negotiate ab initio. QCM (B), para. 4.8. Joint Appellants raise
three objections to the relevance of this case, none of which holds particular merit. First, Joint
Appellants attempt to distinguish the case on the basis of the precise wording of Article XXI(2).
BEUR, para. 5.26. True, the language of Article II, Section 2 of the IASTA and that of Article
XXI(2) of the US-Iran Treaty of Amity are different, but so is the language of Article 22 of CERD
at issue in Georgia v. Russian Federation). As explained above, the introduction of the negotiation
requirement by the conditional conjunction “if” calls for an objective assessment of non-settlement
of the dispute as a matter of fact. Second, Joint Appellants point out that the words “immediate and
total refusal” cited by Qatar in its Counter-Memorial were used by the Court in discussing another
aspect of Article XXI(2). BEUR, para. 5.27. Again, this is a meaningless distinction. The point is
that the Court used these words to describe Iran’s conduct, and ultimately relaxed its application of
the negotiation requirement as a result of Iran’s complete refusal to negotiate. Third, and finally,
Joint Appellants assert that, in the Tehran Hostages case, “the United States had in fact made
genuine attempts to initiate negotiations with Iran”. BEUR, para. 5.28. Joint Appellants fail,
however, to specify what these alleged “attempts” were. The Court’s Judgment specifies only three
such attempts: (1) the dispatch of a special emissary who “denied all contact with Iranian officials
[and] never entered Iran”; 2) requests for help by the US Chargé d’affaires during the assault on the
embassy; and (3) a letter sent by the United States to the President of the Security Council. United
States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, paras. 18, 28, 47.
If this conduct can be considered as “genuine attempts” to negotiate, then, as explained below in
Section I.B, Qatar most certainly satisfied the negotiation requirement in the present case.
62
to the interpretation or application of this Agreement”.194
4.18 In making this objective assessment, the Court may be guided by the
existence of a “genuine attempt” to negotiate which subsequently failed or became
futile. But there is no reason why it may not be equally guided by a disputing
party’s refusal ab initio to enter into negotiations, which no less demonstrates that
the disagreement “cannot be settled by negotiation”.
4.19 In conclusion, the only reasonable, good faith interpretation of the
negotiation requirement of Article II, Section 2 of the IASTA is that it does not
require a disputing party to attempt to negotiate if the other disputing party refuses
to negotiate ab initio.
4.20 That said, Qatar wishes to add that it makes this argument both because it
considers it correct as a matter of law and to highlight Joint Appellants’ lack of
good faith in every aspect of this proceeding. Their attempt to hide behind the
Article II, Section 2 negotiation requirement even as they adamantly—and now
admittedly—refused to talk with Qatar is an act of pure audacity. Qatar does not
make the argument presented here because it did not make a genuine attempt to
negotiate. As detailed in Section II below, it did so on multiple occasions and in
multiple fora.
194 IASTA, Art. II, Section 2 (BEUM Vol. II, Annex 2).
63
2. A genuine attempt to negotiate need only be made “with a view to
resolving the dispute”
4.21 In their Reply, Joint Appellants argue that Qatar’s formulation of the
subject-matter requirement of negotiation attempts is “wrong”.195 Immediately
thereafter, however, they state that “the difference between the Parties [on this
issue] appears to be one of emphasis rather than one in law”.196 Citing the Court’s
jurisprudence, Qatar’s Counter-Memorial showed that a negotiation attempt must
address the subject-matter of the dispute with “sufficient clarity”.197 Joint
Appellants now argue in their Reply that the subject-matter must be identified with
“sufficient specificity”.198
4.22 Although the two formulations may appear similar at first glance, the way
in which Joint Appellants seek to apply their “sufficient specificity” test leads to
an approach that is plainly inconsistent with the Court’s jurisprudence. Joint
Appellants assert, for example, that an attempt to negotiate must “identify the
specific obligations which form the subject-matter of the dispute”,199 and “identify
the relevant substantive obligations which are said to have been breached”.200 Joint
Appellants go so far as to say that the attempt must identify the “specific
substantive obligations under the IASTA”.201 These assertions are incorrect.
195 BEUR, para. 5.10.
196 Ibid., para. 5.10(b).
197 QCM (B), para. 4.15.
198 BEUR, para. 5.10(b) (emphasis added).
199 Ibid., Chapter V, Section 1(A)(3) heading (emphasis added).
200 Ibid., para. 5.37 (emphasis added).
201 Ibid., para. 5.64 (emphasis added). Joint Appellants also state that “[t]his 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”. Ibid., para. 5.37. However, as explained above, Joint Appellants were put on notice
64
4.23 The only support that Joint Appellants cite is the following passage from
Georgia v. Russian Federation:
“[T]hese negotiations must relate to the subjectmatter
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”.202
4.24 Joint Appellants misconstrue what the Court held. This passage states only
that the negotiations must “relate to the subject-matter of the dispute” (i.e., the
aviation prohibitions). The dispute, in turn, must “concern the substantive
obligations contained in the treaty” (i.e., obligations of international civil aviation).
The Court distinctly does not state that negotiations must identify specific
substantive obligations in the treaty.203 Indeed, the Court in that case held that the
negotiation requirement would have been satisfied if the negotiations between the
parties had covered only general subject matters covered by the treaty in question
(there, CERD). Specifically, the Court held that the requirement would have been
satisfied if there had been negotiations between the parties concerning
of a dispute relating to the interpretation or application of the IASTA a mere two days after the
imposition of the aviation prohibitions on 5 June 2017. See Letter from Fang Liu, ICAO Secretary
General, to Abdulla Nasser Turki Al-Subaey, Chairman of Qatar Civil Aviation Authority,
Reference No. AN 13/4/3/Open-AMO66892 (7 June 2017) (QCM (B) Vol. III, Annex 22). And
they refused to discuss that dispute not only then, but also in the ensuing debates before the ICAO
Council. See, e.g., ICAO Council, 211th Session, Summary Minutes of the Tenth Meeting, ICAO
Doc. C-MIN 211/10 (23 June 2017), paras. 15, 18, 20 (QCM (B) Vol. III, Annex 24).
202 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 161.
203 BEUR, para. 5.37.
65
“extermination” and “ethnic cleansing”, without specifying the substantive
obligations of CERD in question.204
4.25 It should also be emphasised that the passage quoted relates to the subjectmatter
requirement for negotiations that have commenced, not to attempts to
negotiate that were rebuffed and thus did not lead to actual negotiations.205 In the
latter situation, it does not make sense to impose as stringent a subject-matter
requirement as Joint Appellants advance, since negotiations did not actually take
place. Consistent with this logic, the Court in Georgia v. Russian Federation held
that attempts to negotiate need only to be made “with a view to resolving the
dispute”.206 That confirms the appropriate legal standard to be applied here. Joint
Appellants entirely miss this distinction.
3. Negotiations should be assessed with flexibility
4.26 Qatar’s Counter-Memorial also explained that what constitutes negotiations
“should be assessed with flexibility”207 and that “no specific format or procedure
is required”.208 Joint Appellants’ Reply first calls Qatar’s position in this respect
“wrong”.209 Immediately thereafter, however, it states that there is “apparent
agreement” between the Parties on this point.210 The latter view appears to be the
204 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 181.
205 Ibid., para. 161.
206 Ibid., para. 157.
207 QCM (B), para. 4.16.
208 Ibid., para. 4.17.
209 BEUR, para. 5.10.
210 Ibid., para. 5.10(c); see also ibid, para. 5.38 (noting that “there appears to be no substantive
disagreement between the Parties as to the applicable legal principles”).
66
right one. Indeed, Joint Appellants specifically state that they “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 diplomacy”.211
4.27 Joint Appellants dispute only the facts 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’”.212 As Qatar will show in the next section, its
actions, including in the ICAO context, plainly constituted a genuine attempt to
negotiate.
B. JOINT APPELLANTS MISAPPLY THE LEGAL STANDARD TO THE FACTS
4.28 Joint Appellants’ Reply maintain their incredible assertion that Qatar “has
not shown that at any point prior to the submission of its Application to ICAO on
30 October 2017, it took any concrete steps to initiate negotiations with the
Appellants” in respect of Qatar’s claims of breach of the IASTA.213 At the same
time, as stated, Joint Appellants never once deny that they entirely refused to
negotiate with Qatar, not just about the aviation prohibitions, but about anything at
all.214 The Court may thus find that any negotiation requirement in Article II,
Section 2 was satisfied without more, for the reasons explained above.
211 BEUR, para. 5.39.
212 Ibid., para. 5.40 (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, para. 157).
213 BEUR, para. 5.41.
214 See QCM (B), paras. 4.30-4.34, 4.54.
67
4.29 If, however, the Court finds it necessary to examine Qatar’s “genuine
attempts” to negotiate with Joint Appellants “with a view to resolving the dispute”
under the IASTA, the result would be no different. In its Counter-Memorial, Qatar
explained how it met the Article II, Section 2 negotiation requirement through
direct means,215 ICAO,216 the WTO,217 and third States.218 Joint Appellants’ Reply
does not deny any of the facts or evidence that Qatar put forward. Instead, they
quibble over what these facts and evidence mean in light of technical aspects of the
applicable legal standards in an attempt to avoid the conclusions that flow from the
undisputed record. The facts, however, speak for themselves, as Qatar will further
demonstrate below.
1. Qatar genuinely attempted to negotiate with Joint Appellants directly
4.30 Joint Appellants allege that “Qatar puts forward no evidence of even a
single attempt to settle the dispute with the Appellants by seeking to engage in
discussions as to the alleged breaches by the Appellants of their obligations under
the IASTA”.219 This is wrong on the law and on the facts. On the law, as stated,
Qatar’s genuine attempts to negotiate need only have been made “with a view to
resolving the dispute”; they did not need to “seek[] to engage in discussions as to
the alleged breaches”. On the facts, Qatar’s Counter-Memorial presented a
veritable mound of evidence of such attempts to settle the dispute.220
215 Ibid., Chapter 4, Section I.B.1.
216 Ibid., Chapter 4, Section I.B.2.
217 Ibid., Chapter 4, Section I.B.3.
218 Ibid., Chapter 4, Section I.B.4.
219 BEUR, para. 5.43 (emphasis omitted).
220 QCM (B), paras. 4.38-4.56.
68
4.31 Joint Appellants’ Reply attempts to distract the Court from Qatar’s
evidence by discussing its “original, abortive, applications” to the Council filed on
15 June 2017.221 Those applications, however, are not the applications relevant to
the present proceedings. The present appeal concerns only the applications Qatar
filed with the Council on 30 October 2017.
4.32 Joint Appellants next attempt to discredit the call between His Highness the
Amir of Qatar and the Crown Prince of Saudi Arabia on 8 September 2017.222 They
begin by emphasizing that Saudi Arabia is not a party to the present proceedings,223
just as they had done in their Memorial.224 Nevertheless, in circumstances where
Joint Appellants and Saudi Arabia are all acting in concert, and where none of Joint
Appellants are willing to communicate with Qatar, it is only reasonable for Qatar
to engage in dialogue with Saudi Arabia in an attempt to settle the dispute with
Joint Appellants. Joint Appellants also assert that “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 did not “concern[] ‘the substantive obligations
contained in the treaty in question’”.225 But, as explained, this is not the proper
subject-matter test for attempts to negotiate.226 The attempt must be made “with a
view to resolving the dispute”, which was indeed the case with the telephone call
between His Highness the Amir and the Crown Prince.227 Indeed, as stated in
221 BEUR, para. 5.45.
222 Ibid., para. 5.48. Notably, Joint Appellants do not dispute anymore that the phone call between
His Highness the Amir of Qatar and the Crown Prince of Saudi Arabia took place. Compare BEUM,
para. 6.78 to BEUR, para. 5.49.
223 BEUR, para. 5.50.
224 BEUM, paras. 6.77, 6.82.
225 BEUR, para. 5.49.
226 See supra Section I.A.2.
227 See QCM (B), paras. 4.48-4.49.
69
Qatar’s Counter-Memorial, an Emirati news agency recorded a Saudi Foreign
Ministry official’s statement in the aftermath of the call that “[t]he call was at the
request of Qatar and was a request for dialogue with the four countries [not just
Saudi Arabia] on the demands”.228 And according to Qatar News Agency, His
Highness the Amir also welcomed a proposal made by the Saudi Crown Prince “to
assign two envoys to settle [the] issues in dispute”,229 which included the aviation
prohibitions that Joint Appellants had excluded from consideration and appropriate
action by the ICAO Council during the preceding months.230
4.33 Joint Appellants also try to discredit Qatari official statements expressly
referencing “air links” and “the blockade”, claiming “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 IASTA”.231 But once
again, they are mistaken. To cite just the examples Joint Appellants’ Reply refers
to,232 the Qatari statements reported in the press on 28 June, 5 July and 22 July
2017 all seek to initiate negotiations;233 and all were made with a view to resolving
228 QCM (B), para. 4.45 (quoting “Hopes for Qatar crisis breakthrough raised, shattered within
minutes”, Gulf News (9 Sept. 2017) (QCM (B) Vol. IV, Annex 90)).
229 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept. 2017)
(QCM (B) Vol. IV, Annex 90).
230 See infra Section I.B.2.
231 BEUR, para. 5.53.
232 Joint Appellants take issue only with statements reported on 28 June 2017, 5 July 2017 and 22
July 2017, but these are not the only statements establishing Qatar’s attempts to negotiate with a
view to resolving the dispute. See QCM (B), para. 4.38.
233 ICAO Response to the Preliminary Objections (B), Exhibit 33, BBC, Qatar condemns Saudi
refusal to negotiate over demands (28 June 2017) (reporting His Excellency the Foreign Minister
of Qatar’s statement that Qatar “will engage in a constructive dialogue with the parties concerned
if they want to reach a solution and overcome this crisis”) (BEUM Vol. IV, Annex 25); ICAO
Response to the Preliminary Objections (B), Exhibit 39, Foreign Minister: Any Threat to Region is
Threat to Qatar (5 July 2017) (reporting His Excellency the Foreign Minister of Qatar’s statement
that “[t]he answer to our disagreements is not blockades and ultimatums. It is dialogue and reason.
We in Qatar are always open to both, and we welcome any serious efforts to resolve our differences
with our neighbours … And we always welcome dialogue and negotiations … Qatar continues to
70
all of the disputes arising from Joint Appellants’ 5 June 2017 measures, including
the dispute under the IASTA.234 That is all that international law requires in terms
of attempts to negotiate, as explained above.
4.34 In conclusion, Qatar’s attempts to negotiate through direct means were
sufficient in and of themselves to satisfy the Article II, Section 2 negotiation
requirement.
2. Qatar genuinely attempted to negotiate through ICAO
4.35 Joint Appellants admit that “an attempt to negotiation may be held to have
been made through the medium of diplomacy by conference or parliamentary
diplomacy”.235 They nevertheless challenge the adequacy of Qatar’s attempts to
negotiate through ICAO on the facts.
call for dialogue … Qatar stands ready to engage in a negotiations process with a clear framework
and set of principles that guarantee that our sovereignty is not infringed upon”.) (BEUM Vol. IV,
Annex 25); “Emir speech in full text: Qatar ready for dialogue but won’t compromise on
sovereignty”, The Peninsula (22 July 2017), p. 7 (reporting His Highness the Amir of Qatar’s
statement that Qatar is “ready for dialogue and for reaching settlements on all contentious issues”)
(QCM (B) Vol. IV, Annex 86).
234 ICAO Response to the Preliminary Objections (B), Exhibit 33, BBC, Qatar condemns Saudi
refusal to negotiate over demands (28 June 2017) (reporting His Excellency the Foreign Minister
of Qatar’s reference to Qatar’s “Gulf neighbours…refusing to negotiate over their demands for
restoring air, sea and land links”) (BEUM Vol. IV, Annex 25); ICAO Response to the Preliminary
Objections (B), Exhibit 39, Foreign Minister: Any Threat to Region is Threat to Qatar (5 July 2017)
(reporting His Excellency the Foreign Minister of Qatar’s repeated references to the “blockade” and
to the “extraordinary, unprovoked and hostile actions against Qatar”) (BEUM Vol. IV, Annex 25);
“Emir speech in full text: Qatar ready for dialogue but won’t compromise on sovereignty”, The
Peninsula (22 July 2017), p. 7 (reporting His Highness the Amir of Qatar’s statement that Qatar is
“ready for…reaching settlements on all contentious issues”) (QCM (B) Vol. IV, Annex 86). All of
these statements follow Qatar’s initiation of the Article 54(n) procedure and Joint Appellants’
submissions before the ICAO Council in the context of those proceedings seeking to exclude from
consideration and Council action the aviation prohibitions as such. QCM (B), paras. 4.60-4.63.
235 BEUR, para. 5.39.
71
4.36 Joint Appellants first challenge the relevance of the letters Qatar sent to the
ICAO Secretary General and the President of the Council on the grounds that the
letters “were not addressed to the Appellants, and in any event did not seek to
initiate negotiations in respect of the dispute relating to the IASTA”.236 Joint
Appellants entirely fail, however, to respond to the points Qatar made in its
Counter-Memorial on this issue.
4.37 The fact that the letters “were not addressed” to Joint Appellants is
immaterial. As Qatar explained in its Counter-Memorial,237 upon receiving Qatar’s
letters, the ICAO Secretary General immediately “brought the matter to the
attention of the relevant Representatives on the Council of ICAO”, which included
representatives of Egypt and the UAE.238 Moreover, on 19 June 2017, the President
of the Council transmitted all of Qatar’s letters to all Council delegations, again
including Egypt and the UAE.239 Joint Appellants do not deny any of this in their
Reply. Their complaint that the letters “were not addressed to [them]” is therefore
meritless.
4.38 Moreover, Joint Appellants’ contention that the letters “did not seek to
initiate negotiations in respect of the dispute relating to the IASTA” is simply false.
For example, Qatar’s 8 June 2017 letter to the President of the Council specified
236 BEUR, para. 5.56.
237 QCM (B), para. 4.59, fn. 391.
238 Letter from Fang Liu, ICAO Secretary General to Abdulla Nasser Turki Al-Subaey, Chairman
of Qatar Civil Aviation Authority, Reference No. AN 13/4/3/Open-AMO66892 (7 June 2017)
(QCM (B) Vol. III, Annex 22).
239 Email from Olumuyiwa Benard Aliu, President of the ICAO Council, to All Council Delegations
(19 June 2017) (QR (B) Vol. II, Annex 4).
72
that the aviation prohibitions violated Article I, Section 1 of the IASTA and
requested the intervention of the Council on this matter.240
4.39 Similarly, Qatar’s 17 June 2017 letter to the President of the Council
requested that the Council “include this top-urgent item to the Work Programme
of the ongoing ICAO Council 211th Session and [undertake] urgent actions to
restore the safe, secured and efficient flow of air traffic and immediate removal of
the current blockade exercised unlawfully against Qatar-registered aircraft…”241
None of the Joint Appellants provided any response of any kind.
4.40 Both letters plainly meet any requirement, including under Joint
Appellants’ own case, of attempting to negotiate “through the medium of
diplomacy by conference or parliamentary diplomacy”.242
4.41 Joint Appellants next seek to discount the Parties’ exchanges in the context
of the procedure Qatar initiated pursuant to Article 54(n) of the Chicago
Convention, arguing that they “cannot be regarded as constituting negotiations”
because they “were limited to issues relating to safety of aviation and contingency
routes”.243 Joint Appellants also claim that Qatar’s complaints about their
240 ICAO Response to the Preliminary Objections (B), Exhibit 3, Letter from Abdulla Nasser Turki
Al-Subaey, Chairman of Qatar Civil Aviation Authority, to Dr. Olumuyiwa Benard Aliu, President
of ICAO, 2017/15984 (8 June 2017) (BEUM Vol. IV, Annex 25).
241 ICAO Response to the Preliminary Objections (B), Exhibit 1, Letter from Abdulla Nasser Turki
Al-Subaey, Chairman of Qatar Civil Aviation Authority, to Olumuyiwa Benard Aliu, President of
the ICAO Council (17 June 2017) (BEUM Vol. IV, Annex 25) (emphasis added).
242 BEUR, para. 5.39.
243 Ibid., para. 5.58.
73
violations of the IASTA in the Article 54(n) proceedings were “mere protests or
disputations”, and thus cannot constitute negotiations.244
4.42 This is not an accurate description of the facts. Qatar initiated the Article
54(n) procedure with a view to resolving the same dispute over the aviation
prohibitions that it was later constrained to bring before the ICAO Council pursuant
to Article II, Section 2. If the procedure ultimately only addressed issues relating
to the safety of aviation and contingency routes, that is only because Joint
Appellants refused to engage in any way at all on any other subject.
4.43 Qatar’s Request under Article 54(n) did not only raise “issues relating to
safety of aviation and contingency routes”.245 It also expressly called for the urgent
intervention of the ICAO Council to “urge the Blocking States to lift all the
restrictions over the high seas”,246 and to “examine and consider” Joint Appellants’
“international airspace blockade over the High Seas against Qatar-registered
aircraft and the State of Qatar”.247 And it did not only “broadcast [Qatar’s]
accusations before the ICAO Council”.248 It also called on the Council to “urge
244 Ibid., para. 5.59.
245 Ibid., para. 5.58.
246 ICAO Response to the Preliminary Objections (B), Exhibit 10, Council – Extraordinary Session:
Request of the State of Qatar for Consideration by the ICAO Council under Article 54(n) of the
Chicago Convention, ICAO Doc. C-WP/14641, p. 1 (BEUM Vol. IV, Annex 25).
247 Request of the State of Qatar for Consideration by the ICAO Council under Article 54(n) of the
Chicago Convention (15 June 2017), p. 1 (“Background”) (BEUM Vol. V, Annex 31) (emphasis
added).
248 BEUR, para. 5.60.
74
[Joint Appellants] to cease these unjustified measures against the State of
Qatar”.249
4.44 Joint Appellants’ response was uncompromising. As Qatar recalled in its
Counter-Memorial—and the Reply does not dispute—Appellants Egypt and the
UAE refused to enter into any discussion of the aviation prohibitions at the ICAO
Council’s 211th Session on 23 June 2017.250 And all Joint Appellants reiterated
their refusal in their joint working paper submitted prior to the Council’s
Extraordinary Session on 31 July 2017.251 They did the same at the Extraordinary
Session itself.252
4.45 In their Memorial, among other writings of publicists, Joint Appellants
cited Judge Buergenthal’s authoritative book on ICAO.253 Qatar’s Counter-
249 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 (“Conclusion”) (BEUM Vol. V, Annex 31) (emphasis
added).
250 ICAO Council, 211th Session, Summary Minutes of the Tenth Meeting, ICAO Doc. C-MIN
211/10 (23 June 2017), para. 18 (the Emirati representative agreeing to that statement); Ibid., para.
20 (the Egyptian representative stating that ICAO should “not delve into political considerations”)
(QCM (B) Vol. III, Annex 24).
251 ICAO Response to the Preliminary Objections (B), Exhibit 8, Response to Qatar’s Submission
Under Article 54 (n) Presented by Bahrain, Egypt, Saudi Arabia, and the United Arab Emirates,
ICAO Doc. C-WP/14640 (19 July 2017), para. 5.1(b) (inviting the Council to defer the discussion
on the aviation prohibitions as a “non-urgent matter[]” and “limit its deliberations to the urgent
Article 54 (n) matters which are related to the safety of international civil aviation”) (BEUM Vol.
IV, Annex 25).
252 ICAO Response to the Preliminary Objections (B), Exhibit 10, ICAO Council, Extraordinary
Session, Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), paras. 32-33
(Appellant UAE stating on behalf of all Joint Appellants that “their airspace closures were
legitimate, justified, and a proportionate response to Qatar’s actions and were permitted under
international law”, and reiterated the position stated in their working paper that “the Council should
limit its deliberations to the urgent Article 54 n) matter which was related to the safety of
international civil aviation, and … defer the other non-urgent matters”.) (BEUM Vol. IV, Annex
25).
253 See BEUM, fn. 173 (citing T. Buergenthal, Law-making in the International Civil Aviation
Organization, 1969, Part III (BEUM Vol. VI, Annex 125).
75
Memorial quoted a passage from the same book where Judge Buergenthal wrote:
“The dispute between the United States and Czechoslovakia over the launching of
balloons demonstrates how, within the ICAO framework, parliamentary diplomacy
can take the place of direct negotiations”.254 There, Czechoslovakia brought a
complaint to ICAO’s attention (not under Article II, Section 2 of the IASTA or
Article 84 of the Chicago Convention) and the United States, not unlike Joint
Appellants, argued that, aside from the safety aspects of the dispute, ICAO was not
the proper forum for dealing with the matter.255 The United States further denied
that the launching of the balloons violated the Chicago Convention,256 and refused
to give the assurances requested by Czechoslovakia that no further balloons would
be released into its airspace.257
4.46 After describing this situation, Judge Buergenthal concludes:
“[I]f both sides had remained adamant in their
respective positions, and if Czechoslovakia had
thereupon referred the dispute to the ICAO Council
under Article 84 of the Convention, it could properly
have pointed to the proceedings in the Council and
Assembly to sustain the jurisdictional requirement
that the dispute ‘cannot be settled by
negotiation’”.258
254 QCM (B), para. 4.19 (quoting T. Buergenthal, Law-making in the International Civil Aviation
Organization, 1969, Part III, p. 131 (BEUM Vol. VI, Annex 125) (emphasis added)).
255 T. Buergenthal, Law-making in the International Civil Aviation Organization, 1969, Part III, pp.
132-133 (BEUM Vol. VI, Annex 125).
256 Ibid., p. 136.
257 Ibid.
258 Ibid.
76
4.47 The present dispute is no different. Qatar’s genuine attempts to negotiate
through ICAO satisfied the negotiation requirement under Article II, Section 2 of
the IASTA.
3. Qatar genuinely attempted to negotiate through the WTO
4.48 In their Reply, Joint Appellants also discount Qatar’s genuine attempts to
negotiate over the subject matter of this civil aviation dispute through the WTO
because its Requests for Consultations concerned “breaches of distinct
obligations”.259 However, they never even try to come to terms with the fact that,
as Qatar showed in its Counter-Memorial, its Requests for Consultations with
Bahrain and the UAE expressly stated that the subject-matter of the requested
consultations would include Joint Appellants’ “prohibition on Qatari aircraft from
accessing [their] airspace”, as well as their “prohibition on flights to and from [their
territories] operated by aircraft registered in Qatar, including prohibiting landing
of Qatari Aircraft at airports [in their territories]”.260 Qatar’s Requests for
259 BEUR, para. 5.61.
260 ICAO Response to the Preliminary Objections (B), Exhibit 11, World Trade Organization,
Bahrain — Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of
Intellectual Property Rights, WT/DS527/1 (4 Aug. 2017) (BEUM Vol. IV, Annex 25); ICAO
Response to the Preliminary Objections (B), Exhibit 12, World Trade Organization, United Arab
Emirates — Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of
Intellectual Property Rights, WT/DS526/1 (4 Aug. 2017) (BEUM Vol. IV, Annex 25)). Qatar
maintains that the aviation prohibitions imposed by Bahrain and the UAE violated their obligations
not only under various WTO agreements, but also under the IASTA. As the Southern Bluefin Tuna
tribunal noted: “There is no reason why a given act of a State may not violate its obligations under
more than one treaty. There is frequently a parallelism of treaties, both in their substantive content
and in their provisions for settlement of disputes arising thereunder”. Southern Bluefin Tuna (New
Zealand-Japan, Australia-Japan), Decision of 4 August 2000, UNRIAA, Vol. XXIII, p. 40, para.
52. In view of this parallelism, there is no question that settling one of the disputes through
negotiations would settle the other one as well. The WTO negotiations therefore must also apply to
satisfying the negotiation requirement under the IASTA.
77
Consultations therefore meet the subject-matter requirement for attempts to
negotiate.261
4.49 The Reply also discounts the Requests because they were addressed to two
of the three Joint Appellants, not Egypt. As Qatar explained in its Counter-
Memorial, however, this is an artificial, excessively formalistic distinction in this
context of this dispute. Joint Appellants have at all times been in lock-step, acting
in concert.262 They fail to respond meaningfully to this point in their Reply.263
4. Qatar genuinely attempted to negotiate through third parties
4.50 Finally, Joint Appellants summarily dismiss Qatar’s genuine attempts to
negotiate through third parties. They assert, without any explanation: “(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 IASTA”.264
4.51 The first argument is incoherent. Attempts to negotiate through third parties
are, to state the obvious, different from attempts to negotiate directly. Indeed, the
Reply elsewhere admits that attempts to negotiate may be indirect. Specifically,
Joint Appellants state that in the Tehran Hostages case:
“[T]he requirement in Article XXI(2) of the Iran-
United States Treaty of Amity that the dispute was
‘not satisfactorily adjusted by diplomacy’ was easily
261 See supra Section I.A.2.
262 QCM (B), para. 4.71.
263 BEUR, para. 5.63.
264 Ibid., para. 5.64.
78
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”.265
4.52 Moreover, it cannot be the case that international law requires attempts to
negotiate through third parties to be addressed directly to the opposing party in
circumstances, like here, where that party has made it clear that it has no interest in
direct talks.
4.53 As for their second argument, Qatar has already explained that the
negotiation requirement does not require reference to the “specific substantive
obligations” of the treaty in question, as Joint Appellants mistakenly claim. That
goes well beyond what the Court’s jurisprudence constante requires. Rather, the
attempts need only be made “with a view to resolving the dispute”, which was the
case with each one of Qatar’s attempts, as explained in its Counter-Memorial,266
and above.267
II. The ICAO Council Properly Held that Qatar’s Application and
Memorial Complied with Article 2(g) of the ICAO Rules for the
Settlement of Differences
4.54 Joint Appellants’ Reply repeats the argument first stated in their
Application:268 that Article 2(g) of the ICAO Rules for the Settlement of
265 BEUR, fn. 433 (emphasis added).
266 QCM (B), paras. 4.72-4.83.
267 See supra Section I.B.
268 ICJ Application (B), para. 19(ii).
79
Differences requires not just a “statement” on negotiations, but also “appropriate[]
substantiat[ion]” of the statement.269
4.55 In its Counter-Memorial, Qatar explained how Joint Appellants’
interpretation of Article 2(g) not only contravenes the text of the provision (in
English and French), but also contradicts the practice of the Council.270 Indeed, the
Council found Cuba’s Memorial in Cuba v. United States admissible even though
it did not even contain a specific Article 2(g) statement,271 and the Council similarly
found the United States’ Memorial in United States v. 15 EU Member States
admissible even though the United States did not provide any evidence
substantiating its Article 2(g) statement therein.272 In their Reply, Joint Appellants
entirely fail to respond to these arguments, apparently conceding their force.
4.56 The Reply also repeats the contrived argument from Joint Appellants’
Memorial273 that, even if Article 2(g) were a requirement of form, Qatar’s
statement did not satisfy it.274 In truth, this argument is not really an alternative
one, as it presupposes that Article 2(g) requires “appropriate[] substantiat[ion]” of
the statement,275 which is not true. In any case, as Qatar explained in its Counter-
Memorial,276 its Article 2(g) statement easily satisfied the requirement. Indeed,
269 BEUR, para. 5.69.
270 QCM (B), paras. 4.86-4.87.
271 ICAO Council, Cuba v. United States, Memorial of Cuba (11 July 1966), para. 9 (QCM (B) Vol.
II, Annex 11).
272 ICAO Council, United States v. 15 EU Member States, Memorial of the United States, p. 16 (14
Mar. 2000) (QCM (B) Vol. II, Annex 12).
273 BEUR, paras. 6.98-6.99.
274 Ibid., paras. 5.70-5.71.
275 This is most evident in ibid., paras. 5.73, 5.75-5.76.
276 QCM (B), paras. 4.88-4.89.
80
Article 2(g) cannot be read as imposing a more stringent requirement than that
contained in Article II, Section 2, which, as explained above,277 does not require
negotiations if one side entirely refuses to negotiate. And even if there were some
kind of deficiency (quod non), Qatar cured it when it amended its statement in its
Response to Joint Appellants’ Preliminary Objections.278
4.57 Finally, it should be emphasised that, as the Court stated in the 1972 ICAO
Council Appeal case, whether or not the Council has jurisdiction is “an objective
question of law” to be answered without regard to the procedure followed before
the Council.279 As a result, even if Qatar did not comply with the Article 2(g)
requirement (quod non), it should not affect the Court’s determination of the
Council’s jurisdiction.
*
4.58 For all the above reasons, the Court should deny Joint Appellants’ Third
Ground of Appeal.
277 See above Section I.A.1.
278 QCM (B), para. 4.90.
279 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
81
THE COURT SHOULD DENY JOINT APPELLANTS’ FIRST GROUND
OF APPEAL
5.1 Qatar’s Counter-Memorial set out four independent reasons why the Court
should reject Joint Appellants’ First Ground of Appeal, asking that the Decision of
the ICAO Council “be set aside”.280 Joint Appellants’ Reply does not undermine
any of them. It fails to address several of Qatar’s key arguments and its responses
to those that it does address are entirely unpersuasive.
5.2 For example, and most remarkably, Joint Appellants chose not to address,
let alone dispute, the Court’s characterisation of its appellate function under Article
84 of the Chicago Convention in the 1972 ICAO Council Appeal case. In that case,
the Court understood its appellate function vis-à-vis the jurisdictional decision at
issue in terms of deciding an objective question of law “the answer to which cannot
depend on what occurred before the Council”.281 The Reply dares not mention this
aspect of the Court’s decision, let alone argue why it does not apply equally here.
280 BEUR, para. 3.1. The first reason is that, consistent with the Court’s decision in the 1972 ICAO
Council Appeal case, the Court does not need to rule on the alleged procedural violations because
they are irrelevant in answering the objective question of law before it, namely, the question of the
Council’s jurisdiction over Qatar’s claims. QCM (B), Chapter 5.I. The second reason is that far
from being “manifestly flawed and in violation of the fundamental principles of due process”
(BEUR, para. 3.1), the procedure adopted by the ICAO Council to dispose of Joint Appellants’
Preliminary Objections was entirely consistent with the applicable procedural framework and its
previous practice. QCM (B), Chapter 5.II. The third is that, even if (quod non) the Council violated
any of the procedural rules it was bound to follow, those violations did not prejudice in any
fundamental way the requirements of a just procedure. QCM (B), Chapter 5.III. And the fourth is
that the Joint Appellants waived their right to appeal the Decision on account of several alleged
procedural irregularities. QCM (B), paras. 5.38, 5.32.
281 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
82
5.3 Section I of this Chapter recalls the Court’s central holding on this aspect
of India’s appeal in the 1972 ICAO Council Appeal case and shows why Joint
Appellants’ efforts to argue for a different outcome in this case are unavailing. The
Council’s Decision in this case must stand so long as it “reached the right
conclusion”, even if it did so “in the wrong way”.282 This Section also addresses
Joint Appellants’ misplaced attempt to rely on the Court’s subsidiary reason not to
inquire into the alleged procedural irregularities in the 1972 ICAO Council Appeal
case. Several of the “grave and widespread” defects in the procedure adopted by
the ICAO Council that Joint Appellants allege283 are the same as the irregularities
“strenuously argued” by India in that case.284 The Court ruled that the latter did not
“prejudice in any fundamental way the requirements of a just procedure”285 and
there is no reason to come to a different conclusion concerning the former.
5.4 Section II shows that, in any event, Joint Appellants’ procedural
complaints are meritless. The ICAO Council did not commit any procedural errors,
let alone any errors that undermined the requirements of a just procedure. Indeed,
the Council’s actions were entirely consistent with the applicable procedural
framework. Joint Appellants’ First Ground of Appeal should be therefore
dismissed.
282 Ibid.
283 BEUR, para. 3.3.
284 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 44.
285 Ibid., para. 45.
83
I. The Court Should Decline to Exercise Its Supervisory Authority in
Respect of the So-Called Procedural Irregularities
A. WHETHER THE COUNCIL HAS JURISDICTION IS AN “OBJECTIVE QUESTION OF
LAW”, THE ANSWER TO WHICH DOES NOT TURN ON THE NATURE OF THE PROCEDURE
BEFORE THE COUNCIL
5.5 Qatar respectfully invites the Court to decline to exercise its supervisory
authority over the alleged procedural irregularities about which Joint Appellants
complain. Not only did they never happen, they are also irrelevant to the objective
question of law before the Court: namely, the Council’s jurisdiction over Qatar’s
claims under the IASTA. For the reasons explained in the preceding two Chapters,
the ICAO Council properly decided that it has jurisdiction over Qatar’s claims.
Joint Appellants’ Second and Third Grounds of Appeal therefore fail, and with
them so does the First.
5.6 As Qatar explained in its Counter-Memorial,286 this is how the Court
disposed of India’s complaints about the alleged procedural irregularities the 1972
ICAO Council Appeal case―the only prior case to come to the Court on appeal
from an ICAO Council decision. Much like Joint Appellants here,287 India argued
that
“irrespective of the correctness in law or otherwise
of the Council’s decision assuming jurisdiction in
the case from which India is now appealing, it was
vitiated by various procedural irregularities, and
286 QCM (B), paras. 5.6-5.12.
287 See, e.g., BEUR, para. 6.2.
84
should accordingly, on that ground alone, be
declared null and void”.288
5.7 The Court disagreed. It concluded that its “task in the present proceedings
[was] to give a ruling as to whether the Council ha[d] jurisdiction in the case”.289
That task required the Court to answer only “an objective question of law, the
answer to which cannot depend on what occurred before the Council”.290 Having
concluded that the ICAO Council had correctly upheld its jurisdiction in the
underlying case, the Court did not deem it “necessary or even appropriate” to
examine India’s allegations any further.291
5.8 Joint Appellants cite the portion of the Court’s 1972 Judgment where it
described the purpose of the appeal under the “Chicago Treaties”.292 But they never
once mention how the Court discharged that function vis-à-vis India’s procedural
complaints. They try instead to distract the Court and lead it down a dead-end path.
They argue that the ICAO Council was “structurally incapable of adjudicating upon
the Appellants’ Preliminary Objections in a proper judicial manner” and therefore,
they say, “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…”.293
288 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 44.
289 Ibid., para. 45.
290 Ibid.
291 Ibid. (emphasis added).
292 BEUR, para. 3.17 (quoting Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Judgment, I.C.J. Reports 1972, para. 26).
293 BEUR, paras. 3.8, 3.11.
85
5.9 Qatar does not consider it either “necessary” or “appropriate” for the Court
to address this argument. It is not necessary because, unlike India,294 Joint
Appellants do not even suggest that, but for the procedural irregularities they
allege, the ICAO Council would have upheld their preliminary objection.
Accordingly, even if their complaints had merit (quod non),295 “the position would
be that the Council would have reached the right conclusion in the wrong way.
Nevertheless, it would have reached the right conclusion”.296 In terms of
procedural economy, it would make no sense to reverse a substantially correct
decision on procedural grounds, only to have the ICAO Council reach the same
decision again in a different proceeding.297
5.10 It is not appropriate because what Joint Appellants are really asking the
Court to do is expand its appellate function and review what they call the “sparse
and antiquated” ICAO Rules in order to give the ICAO Council “guidance as to
how to conduct judicial proceedings before it”.298 Even if the Court’s supervisory
294 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 44 (noting India’s argument that “but for these alleged irregularities, the result
before the Council would or might have been different”).
295 See infra Chapter 5.II.
296 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45 (emphasis added). In view of the preceding two Chapters, it would be no
different had Joint Appellants made this allegation.
297 See Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years
of Jurisprudence (2013), Vol. I, p. 737 (discussing the Court’s ruling on India’s allegations of
procedural irregularities in light of the “general principle of procedural economy”.). The fact that
the decision is substantively correct also implies that the alleged procedural irregularities did not
“materially [impair] the exercise of any of the fundamental procedural rights and directly cause[] a
‘mis-decision’”.). V.S. Mani, International Adjudication: Procedural Aspects (1980), p. 53.
298 BEUR, para. 3.21; see also ibid. (“…to date the ICAO Council has handled only seven disputes
judicially … As the guardian 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”.);
para. 3.16 (“[i]t is indeed the function of the Court to set and supervise judicial decision-making
standards in the international legal system. There can therefore be no serious dispute that failure to
86
authority extended to a review of the procedure followed in the underlying
proceedings,299 a “properly conducted judicial process” within the framework of
the IASTA can only mean a process conducted in accordance with the rules
designed and approved by the ICAO Council to settle disagreements between
abide by fundamental guarantees of due process entitles—indeed requires—the Court to set aside a
decision that emanates from a flawed process”.) (internal footnote omitted).
299 Qatar notes in this regard that none of the authorities cited by Joint Appellants establishes the
proposition that Article II, Section 2 of the IASTA and Article 84 of the Chicago Convention confer
a right of appeal against procedural irregularities. BEUR, paras. 3.13-3.15. Judge Jiménez de
Aréchaga’s view that the right of appeal under Article II, Section 2 of the IASTA also comprises
“whether [the ICAO Council’s] decision was validly adopted in accordance with the essential
principles of procedure which must govern the quasi-judicial function entrusted to the organ of the
first instance” was expressed in his separate opinion, and was not adopted by the Court majority.
Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, Separate
Opinion of Judge Jiménez de Aréchaga, I.C.J. Reports 1972, para. 37. As Joint Appellants admit,
the Statute of the Administrative Tribunal of the United Nations expressly permits applicants to
appeal a judgment if the Tribunal had “committed a fundamental error of procedure which has
occasioned a failure of justice”. Application for Review of Judgment No. 158 of the United Nations
Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, para. 12; BEUR, fn. 185. And in
the Arbitral Award of 31 July 1989 case, the Court emphasised that “these proceedings allege the
inexistence and nullity of the Award rendered by the Arbitration Tribunal and are not by way of
appeal from it or application for revision of it”. Arbitral Award of 31 July 1989 (Guinea-Bissau v.
Senegal), Judgment, I.C.J. Reports 1991, para. 25. If anything, therefore, the case stands for the
reverse proposition, namely, that a right of appeal does not encompass a right of review of
allegations of procedural irregularities in the underlying proceedings. Indeed, Professor Thirlway
has contrasted that decision with the 1972 ICAO Council Appeal case to say that
“If the Court is seised solely of a recours en nullité, on the authority of the
Arbitral Award of 31 July 1989, it is not required to determine, and therefore
presumably unable to say, whether the first jurisdiction did or did not arrive at the
correct conclusion. It would therefore seem that that in such circumstances the
Court would have to determine whether or not there had been procedural error,
and if found there had, to draw the appropriate consequences”.
H. Thirlway, “Procedural Aspects of the ICJ”, in Fifty Years of the International Court of Justice
(V. Lowe & M. Fitzmaurice eds., 1996), p. 400. Relatedly, Professor Cheng has noted that
“…nullity or revision of a final judgment is distinct from reconsideration of a
judgment subject to appeal. In the latter case, the object is to decide whether a
judgment which is not yet final has been well or ill decided and to reform it, if
necessary, by a hierarchically superior court. In the case of appeal, the principle
of res judicata is not juridically affected; for a decision is not final until it is no
longer subject to appeal”.
Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (2006), p.
372.
87
Member States.300 To the extent that Joint Appellants ask the Court to rectify what
they perceive as shortcomings in the framework created by the ICAO Council—a
task which they themselves admit properly belongs to the organs of the ICAO301—
they are asking the Court to overstep its supervisory function.
5.11 In any case, Joint Appellants criticism of the ICAO dispute settlement
system is unwarranted. Joint Appellants find it “astounding”, for example, that
when ICAO Council Member representatives are acting in proceedings under
Article II, Section 2 of the IASTA, they do so on behalf of their appointing
States.302 However, unlike other international adjudicatory bodies, such as, for
example, the Court, the ICAO Council is composed of individuals acting in a
representative capacity on behalf of ICAO Member States, not in their personal
capacity.303 In the words of the United States’ representative at the Pakistan v. India
300 The goal of the working group designated by the ICAO Council to draft the ICAO Rules was to
“arrive at a set of rules as simplified and as flexible as possible in order to provide workable
machinery to the Council, taking into account the many ways in which this body differs from the
conventional type of court or arbitral tribunal”. ICAO Council, 19th Session, Working Paper:
Report to Council of the Working Group on Rules for Settlement of Differences, ICAO Doc. CWP/
1457 (13 Mar. 1953), p. 2 (QR (B) Vol. II, Annex 1) (emphasis added).
301 See BEUR, fn. 195 (referring to the ICAO Secretariat’s direction in September 2018 to the ICAO
Legal Committee to consider whether the ICAO Rules needed to be revised and “realigned with the
current ICJ Rules”. 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 (BEUM
Vol. V, Annex 54).
302 BEUR, para. 3.3.
303 Article 50 of the Chicago Convention provides:
“a) The Council shall be a permanent body responsible to the Assembly. It shall
be composed of thirty-six contracting States elected by the Assembly… b) In
electing the members of the Council, the Assembly shall give adequate
representation to 1) the States of chief importance in air transport; 2) the States
not otherwise included which make the largest contribution to the provision of
facilities for international civil air navigation; and 3) the States not otherwise
included whose designation will insure that all the major geographic areas of the
world are represented on the Council… c) No representative of a Contracting
State on the Council shall be actively associated with the operation of an
international air service or financially interested in such service”.
88
hearing, a decision of the ICAO Council under Article II, Section 2 of the IASTA
is a “decision of [the] governments [sitting at the Council], not of the individuals
who sit at this Council table”.304 It is entirely consistent with the judicial function
of such individuals to receive external advice on questions of law.305 In any event,
and as stated in Qatar’s Counter-Memorial, Joint Appellants have pointed to no
evidence that the Council delegates acted on instruction when they overwhelmingly
rejected their preliminary objections.306
5.12 A closer look at the degree of similarity between the procedural violations
alleged here and those India alleged in the 1972 ICAO Council Appeal case, the
Chicago Convention, Art. 50 (BEUM Vol. II, Annex 1) (emphasis added)
Tellingly, Joint Appellants’ only support for their proposition that it is “settled law” that “once the
individual adjudicator has been designated by the State, it is that individual who must act, in their
personal capacity, not on instruction” is an authority discussing this Court and the Judges
comprising it. BEUR, para. 3.10 and fn. 180.
304 ICAO Council, 74th Session, Minutes of the Sixth Meeting, ICAO Doc. 8956-C/1001 (29 July
1971), para. 16 (QCM (B) Vol. II, Annex 8).
305 At the ICAO Council hearing in the Pakistan v. India case, the representative of the United
Kingdom stated, for example, that “[i]t is not unique for a body of persons other than professional
judges to sit in a judicial capacity, at any rate not in the United Kingdom. It is usual in such
circumstances for the body to have recourse to legal advice on points of strict law”. ICAO Council,
74th Session, Minutes of the Sixth Meeting, ICAO Doc. 8956-C/1001 (29 July 1971), para. 18 (QCM
(B) Vol. II, Annex 8). More generally, Heads of State who were not jurists have frequently served
as adjudicators of inter-State disputes in the past. Writing almost contemporaneously with the
adoption of the IASTA and the Chicago Convention, Judge Hudson wrote in that regard that “[t]he
decision in such case is usually prepared by a jurist or a group of jurists, whose names are seldom
announced, working under the direction of the Chief of State”. Manley O. Hudson, International
Tribunals: Past and Future (1944), pp. 17-18.
306 QCM (B), para. 5.40. Instead, Joint Appellants speculate that the Decision “had been
predetermined”, given that “several of the governments which participate in the ICAO Council had
made political statements about the underlying dispute between the Parties”. BEUR, para. 3.8 and
fn. 177. A mere perusal of the statements in question, however, shows that they were merely
intended to underscore the importance of implementing promptly contingency measures for the
safety of civil aviation in the Gulf region. See 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 (BEUM Vol. V, Annex 41).
89
underlying facts and applicable procedural framework all further confirm that the
First Ground of Appeal is entirely without merit.
B. JOINT APPELLANTS’ ATTEMPT TO DISTINGUISH THE PRESENT CASE FROM
THE 1972 ICAO COUNCIL APPEAL CASE FAILS
5.13 Joint Appellants’ Reply suggests that the only reason why the Court
declined to rule on the alleged procedural irregularities India complained about in
the 1972 ICAO Council Appeal case was because such irregularities “were not
important enough to trigger [the Court’s] ‘supervisory authority’”.307 As Joint
Appellants see it, this case is different because the ICAO Council “did in fact
prejudice the requirement of a just procedure in a fundamental way”.308
5.14 As Qatar has explained,309 however, the actual reason the Court declined to
exercise its supervisory authority with respect to India’s procedural complaints was
not because they did “not prejudice in any fundamental way the requirements of a
just procedure”;310 it was because it considered them irrelevant in light of the fact
that the Council reached “the right conclusion” on the question of its jurisdiction.311
307 BEUR, para. 3.19; see also ibid., para. 3.40.
308 Ibid., para. 3.20.
309 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 46.
310 Ibid., para. 45.
311 Ibid.
90
5.15 In any event, the alleged procedural irregularities Joint Appellants raise are
very similar to those India raised before the Court in 1972. If the latter did not
prejudice the requirements of a just procedure, neither did the former.
5.16 The Court will recall that India complained that the ICAO Council failed to
state reasons in its decision,312 improperly framed the questions that were put to
vote,313 adopted its decision in breach of Article 52 of the Chicago Convention314
and voting procedures315 and improperly deliberated.316 The Court did not consider
any of these serious enough to vitiate the procedure before the Council. Joint
Appellants offer no reason why their substantially similar allegations—lack of
reasons and proper deliberations, breach of Article 52 of the Chicago Convention
312 I.C.J. Oral Arguments, Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Minutes of the public sitting held at the Peace Palace, The Hague, from 19 June to 3 July,
and on 18 August 1972, p. 614 (“The Rules for the Settlement of Differences require that the
Council must give reasons for its decision. In the present case the Council has given a decision
without any reasons at all, and such a decision is no decision in law”.).
313 Ibid., p. 596 (“The decision of the Council was vitiated by the fact that the questions were framed
in the wrong manner. The propositions put to vote were framed in a negative manner, namely, ‘The
Council has no jurisdiction …’, instead of being framed in a positive way, namely, ‘The Council
has jurisdiction …’”.).
314 Ibid.: “The decision of the Council as regards the Complaint is directly contrary to Article 52 of
the Convention which provides that ‘decisions by the Council shall require approval by a majority
of its members’. The Council's decision that it had jurisdiction to consider the Respondent's
Complaint was not supported by a majority of the Members of the Council… If the question had
been rightly framed and if the proposition that the Council had jurisdiction to consider the
Respondent’s Complaint had been put to vote, the decision of the Council would have been in
favour of the Applicant on the same pattern of voting.”
315 Ibid., p. 607 (“The decision of the Council was further vitiated by the fact that the propositions
put to vote in respect of Pakistan’s Application and Complaint were neither introduced nor seconded
by any member of the Council as required in Rules 41 and 46 of the Rules of Procedure for the
Council”.).
316I.C.J. Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
Memorial submitted by the Government of India (22 Dec. 1971), para. 93 (3) (“Although some of
the members asked for time to consider the issues of far-reaching importance which had been raised
by the Applicant and asked for verbatim notes of the oral hearing, their request was turned down,
with the result that some of the judges were unable to participate in the deliberations and in the final
decision of the Council”.).
91
and of the applicable voting procedures and improper drafting of the questions put
to vote—warrant a different conclusion here.
5.17 The Reply is hard-pressed to identify differences between Joint Appellants’
procedural complaints and India’s. They therefore cast about for others and argue
that the fact that the Council scheduled one half-day session for the hearing on their
Preliminary Objections;317 they were allotted the same amount of time with Qatar
at the hearing;318 the Council proceeded to hold a vote immediately after hearing
oral submissions;319 and the Council adopted the Decision by secret ballot (even
though it is expressly authorised to do so under the procedural framework
governing its operation320) somehow means that the putative procedural violations
were “greater in number and magnitude than those at issue in Pakistan v. India—
so much so that the … Decision must be recognized as nullity”.321 Qatar will show
in the next Section that all of these allegations, as well as the ones that substantially
overlap with India’s complaints in the 1972 ICAO Council Appeal case, are entirely
unfounded.
II. The ICAO Council Properly Discharged Its Functions Under Article II,
Section 2
5.18 Even if the Court were to consider the merits of Joint Appellants’
procedural complaints, their First Ground of Appeal would still have to be rejected.
317 BEUR, para. 3.20(a).
318 Ibid., para. 3.20(b).
319 Ibid., para. 3.20(e), (f).
320 See QCM (B), para. 5.30; BEUR, para. 3.20(g).
321 BEUR, para. 3.20.
92
As Qatar explained in its Counter-Memorial322 and will detail further below,323 the
ICAO Council procedure was entirely consistent with the letter and the spirit of the
1957 ICAO Rules for the Settlement of Differences (“ICAO Rules”) and the Rules
of Procedure for the Council.
A. THE ABSENCE OF OPEN DELIBERATIONS ON THE SUBSTANTIVE ISSUES IN
DISPUTE AND OF REASONS FOLLOWS FROM THE COUNCIL’S DECISION TO PROCEED
WITH A VOTE BY SECRET BALLOT AS ALLOWED UNDER ITS RULES
5.19 Qatar explained in its Counter-Memorial that the absence of open
deliberations on the substantive issues in dispute and of reasons in the Decision are
natural consequences of the ICAO Council’s decision to vote by secret ballot.324
Qatar further explained that the Council’s decision was entirely consistent with the
approach followed in Brazil v. United States, the most recent Council practice at
that time. Indeed, that case was expressly mentioned in the Mexican
Representative’s proposal to proceed directly to a vote by secret ballot.325 None of
the Council Member States voting in that case, which included Appellants Egypt
and the UAE (the latter actually proposed the vote by secret ballot in that case)
322 See QCM (B), Chapter 5.II.
323 Joint Appellants appear to have effectively dropped their claim in the Application and the
Memorial that the ICAO Council incorrectly required 19 votes to uphold the Preliminary
Objections. BEUM, para. 3.1(c). Even though Joint Appellants formally maintain this complaint
(see BEUR, para. 3.33(b)), they say nothing in response to Qatar’s rebuttal in the Counter-Memorial
that the number of votes required by the ICAO Council was consistent with the text of Article 52
of the Chicago Convention and its consistent application by the Council and even if there was some
merit in Joint Appellants’ allegation, the ensuing procedural error would be harmless. QCM (B),
paras. 5.50-5.59.
324 QCM (B), para. 5.29. Joint Appellants do not dispute that the applicable procedural framework
expressly permits votes by secret ballot. ICAO Council, Rules of Procedure for the Council, ICAO
Doc. 7559/10 (2014), Rule 50 (QCM (B) Vol. II, Annex 15) (emphasis added).
325 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 106 (BEUM Vol. V, Annex 53); see also QCM (B),
para. 5.35.
93
complained about the absence of open deliberations on the substantive issues in
dispute prior to disposing of the United States’ objection.326
5.20 The same is true in the present case: none of the Joint Appellants
challenged, let alone raised an objection under Articles 34 (c) and 36 of the Rules
of Procedure of the Council,327 the Council’s decision to proceed directly to a vote
by secret ballot. As a result, Joint Appellants’ procedural complaint should be
deemed waived.328
5.21 In their Reply, Joint Appellants offer four arguments in response, none of
which has merit.
5.22 First, Joint Appellants argue that “neither the ICAO Rules nor the ICAO
Rules of Procedure for the Council … prevent deliberations or even contemplate
that there will be none”.329 That may be true, but they also do not expressly
contemplate deliberations. In any event, despite Joint Appellants’ protestations to
the contrary,330 the minutes of the 26 June 2018 ICAO Council meeting make clear
326 QCM (B), paras. 5.35-5.37.
327 See ICAO Council, Rules of Procedure for the Council, ICAO Doc. 7559/10 (2014) Rule 34 (c)
“During the discussions of any matter, a Representative may raise a point of order or any other
matter related to the interpretation or application of these Rules. The point of order … shall be
decided immediately by the President”. (QCM (B) Vol. II, Annex 15); and ibid., Rule 36: “Rulings
given by the President during a meeting of the Council on the interpretation or application of these
Rules of Procedure may be appealed by any Member of the Council and the appeal shall be put to
vote immediately. The ruling of the President shall stand unless overruled by a majority of the votes
cast”. (QCM (B) Vol. II, Annex 15).
328 QCM (B), para. 5.38 (citing Appeal Relating to the Jurisdiction of the ICAO Council, Judgment,
Separate Opinion of Judge Jiménez de Aréchaga, I.C.J. Reports 1972, para. 42).
329 BEUM, para. 3.24.
330 Ibid., para. 3.25.
94
that deliberations were held,331 just not on the substantive issues of the case—again,
a corollary of the Council’s decision to proceed directly to a vote by secret ballot.332
5.23 Second, Joint Appellants disagree with Qatar and argue that the Council did
hold deliberations in Brazil v. United States, and it could have done the same in the
present case.333 In fact, however, the Council adopted the same approach in both
cases. As stated, the Council did hold deliberations in this case—just not on the
substantive issues in dispute, because that would be incompatible with its decision
to proceed with a vote by secret ballot. That is also what the Council did in Brazil
v. United States.334 Qatar’s argument therefore stands.
5.24 Third, Joint Appellants assert that “the President [of the Council]
intervened at the hearing to observe that proceeding to a vote without deliberations
331 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, paras. 106-118 (BEUM Vol. V, Annex 53).
332 Joint Appellants never explain how open deliberations on the substantive issues in dispute is
consistent with the concept of vote by secret ballot. Qatar recalls that the term “Secret Ballot” is
defined in the ICAO Council Rules of Procedure as “a ballot where the marking of the ballot paper
by a Representative takes place in private and cannot be overseen by any person other than the
Representative’s Alternate. All ballot papers distributed should be exactly alike so that it cannot be
determined how any one Representative voted”. ICAO Council, Rules of Procedure for the Council,
ICAO Doc. 7559/10 (2014), Definitions, p. 2 (QCM (B) Vol. II, Annex 15) (emphasis added).
Open deliberations on substantive issues would therefore defeat the stated purpose of the vote by
“Secret Ballot”, as would open deliberations in the presence of the Parties.
333 BEUM, para. 4.50.
334 Joint Appellants generally cite to the Council’s decision in Brazil v. United States but fail to
indicate where one can find the evidence of deliberations. See BEUM, fn. 296 (citing Decision of
the ICAO Council on the Preliminary Objections in the Matter “Brazil v. United States”, 23 June
2017 (BEUM Vol. V, Annex 32)). Such evidence can be found in the minutes of the Council
meeting discussing the United States’ preliminary objection. See ICAO Preliminary Objections (B),
Exhibit 2, ICAO Council – 211th Session, Summary Minutes of the Ninth Meeting of 21 June 2017,
ICAO document C-MIN 211/9, 5 July 2017, para. 92 (BEUM Vol. III, Annex 24). A mere perusal
of these paragraphs make it clear that only one Member State expressed a view on the merit of the
United States’ jurisdiction objection, Cuba, and this was before Appellant UAE’s proposal that the
Council proceed with a vote by secret ballot. Ibid., paras. 94-95. After the Council agreed to vote
by secret ballot, the deliberations or discussions involved procedural matters only.
95
would be a departure from the Council’s own previous practice”.335 The sole basis
for Joint Appellants’ assertion, however, is the corrections to the hearing transcript
proposed by Appellants UAE and Bahrain on 2 August 2018, after the institution
of these proceedings before the Court. Moreover, the alleged intervention by the
President of the Council is not included in the official minutes of the hearing.336
The Council thus rejected Joint Appellants’ proposed insertion.337
5.25 In any event, the alleged statement Joint Appellants seek to attribute to the
President of the Council (even if he made it) is not what they make it seem. As
stated in Appellant Bahrain’s proposed amendments, the President of the Council
merely “wished to be sure on whether there ought to be deliberations”.338
5.26 Fourth, and finally, Joint Appellants argue that “in every decision handed
down since the Court’s judgment in the India v. Pakistan appeal, the Council has
provided reasons for its decisions”.339 However, as Qatar explained in its Counter-
335 BEUR, para. 3.25 (citing Bahrain and UAE comments on draft Minutes C-MIN 214.8 Closed
circulated by the Secretariat, 2 August 2018, Bahrain comments, para. 108 (BEUR Vol. II, Annex
8)).
336 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 41 (BEUM Vol. V, Annex 53).
337 The ICAO Secretary General prepares “Draft Minutes” of each meeting within six weeks of the
session. The Secretary General submits the “Draft Minutes” to the President of the Council, who
then distributes them to Representatives for comment. After the Representatives submit their
comments, the Council will adopt the final minutes “through written procedure or at a subsequent
meeting”. See ICAO Council, Rules of Procedure for the Council, ICAO Doc. 7559/10 (2014), Rule
57(b): “The Secretary General shall prepare Draft Minutes of each meeting within six weeks of the
session of the Council to which they relate. These shall be submitted to the President for agreement,
distributed to Representatives who shall have ten working days to comment thereon and adopted by
the Council either through written procedure or at a subsequent meeting” (QCM (B) Vol. II, Annex
15).
338 Bahrain and UAE comments on draft Minutes C-MIN 214.8 Closed circulated by the Secretariat,
2 August 2018, Bahrain comments, para. 108 (BEUR Vol. II, Annex 8).
339 BEUR, para. 3.27.
96
Memorial,340 while this may be true for decisions adopted by roll call,341 it is
distinctly not true for decisions adopted by secret vote.342 Joint Appellants maintain
their refusal to acknowledge this distinction. They also never reconcile their
complaint with their acknowledgment elsewhere in their Reply that the lack of
reasons in the Council decision in the 1972 ICAO Council Appeal case was “not
important enough to trigger [the Court’s] ‘supervisory authority’”.343
5.27 In the end, the absence of open deliberations on the substantive issues in
dispute and of reasons in the Decision is consistent with the ICAO Rules and the
Council’s decision to vote by secret ballot.
B. JOINT APPELLANTS ARE WRONG TO ASSERT THAT THE COUNCIL DID NOT
OPENLY DELIBERATE ON CERTAIN PROCEDURAL MATTERS
5.28 Joint Appellants’ Reply also seeks to expand the scope of their procedural
complaints under the rubric of “absence of deliberations” to include the Council’s
alleged failure to deliberate on the majority required to rule on Joint Appellants’
Preliminary Objections and the question put to vote.344 Again, the ICAO Council
meeting minutes proves them wrong. The minutes make clear that
340 QCM (B), para. 5.35.
341 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, para. 6.2 (BEUR Vol. II, Annex 7).
342 Decision of the ICAO Council on the Preliminary Objection of the United States in the Matter
“Brazil v. United States”, 23 June 2017 (BEUM Vol. V, Annex 32).
343 BEUR, para. 3.19; see also ibid., para. 3.40.
344 Ibid., para. 3.23.
97
• The decision as to the majority required to rule on Joint Appellants’
jurisdictional objections was taken not by the Director of Legal Affairs, as
Joint Appellants falsely allege,345 but by the Council itself.346 In taking this
decision, the Council expressly considered that
“[u]nder Article 52 of the Chicago Convention,
decisions by the Council required approval by a
majority of its Members. In line with the consistent
practice of the Council in applying that provision in
previous cases, including in the Pakistan v. India
dispute, since the Council comprised 36 Members,
acceptance of the Respondents’ preliminary
objections in both Application (A) and Application
(B) required 19 positive votes”.347
A request by the UAE Representative that the Council reconsider its
decision was similarly addressed by the Council and declined “in the
absence of any desire on the part of the Council to determine what
constituted the voting majority other than the relevant provisions of the
Chicago Convention …”348 The only involvement of the Director of Legal
Affairs in this process was to “read the text of Article 52 of the Chicago
345 Ibid., para. 3.23(a).
346 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 106 (BEUM Vol. V, Annex 53).
347 Ibid. Qatar recalls once again that Joint Appellants have failed to respond to any of Qatar’s
arguments in the Counter-Memorial showing that the Council’s decision on this issue was entirely
consistent with the terms of Article 52 and the Council’s previous practice. Therefore, even if their
procedural complaint that the Council failed to deliberate on this issue somehow has merit, quod
non, the fact remains that the decision of the Council was substantively correct.
348 Ibid., para. 118.
98
Convention and recite[] to the Council the factual historical records of
previous Council decisions, no more, no less”.349
• The President of the Council did not “ignor[e] the Appellants’ repeated
clarifications that there were in fact two distinct Preliminary Objections
which were to be assessed separately”.350 To the contrary, the minutes of
the meeting record that the President of the Council fully understood that
“in essence for each of Qatar’s Application (A) and Application (B) the
Respondents had a preliminary objection for which they provided two
justifications”, and he “took the point made by [counsel for Appellant
Bahrain] that the voting on each preliminary objection applied to both of
the justifications provided therefore”.351 To argue in spite of this, as Joint
Appellants do, that the President of the Council “conflated the two
objections into one, and the ICAO Council disposed of the two Preliminary
Objections raised by the Appellants as a single plea”, and that “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”,352 is untenable.353
349 Ibid., para. 111.
350 BEUR, para. 3.23(b). The minutes the Council meeting record only one such “clarification”,
however. See 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 (BEUM Vol. V, Annex 53).
351 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 122 (BEUM Vol. V, Annex 53).
352 BEUR, para. 3.20(c).
353 Relatedly, Joint Appellants argue that the President of the Council put to vote a question other
than what was introduced and seconded at the hearing, in breach of the requirements under Rules
40 and 45 of the Rules of Procedure of the Council. BEUR, para. 3.33(c). In its Counter-Memorial,
Qatar explained that the original motion made by the Mexican Representative, and seconded by the
Representative of Singapore, which unquestionably meets the requirements of Rules 40 and 45, was
99
5.29 The minutes of the Council meeting also make clear that Joint Appellants’
complaint regarding the question that was put to vote has been waived. Contrary to
their claim,354 Joint Appellants did not object under Articles 34 and 36 of the ICAO
Rules of Procedure or otherwise challenge the decision of the Council as to the
wording of the question put to vote.
5.30 The ICAO Council therefore properly decided on the majority required to
rule on Joint Appellants’ Preliminary Objections and the question put to vote.
never changed or modified. QCM (B), para. 5.60. The President of the Council made this abundantly
clear when he responded to Appellant Bahrain’s observations by recalling that “both of the
Respondents’ … preliminary objections related to the jurisdiction of the Council” as well as the text
of Article 5(1) of the ICAO Rules, stating that “[i]f the Respondent questions the jurisdiction of the
Council to handle the matter presented by the Applicant, he shall file a preliminary objection setting
out the basis of the objection”. ICAO Council – 214th Session, Summary Minutes of the Eighth
Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para. 122 (BEUM Vol. V,
Annex 53).
354 Joint Appellants allege that they did object “through counsel who intervened to clarify the
importance of properly understanding, and ruling upon, each Preliminary Objection separately”.
BEUR, para. 3.36(d). As is evident from the actual minutes of the Council meeting, counsel did no
such thing:
“As explained by Mr. Petrochilos (Legal Advisor, Bahrain Delegation), the first
preliminary objection was that the real issue in dispute was not an issue of the
interpretation or application of the Chicago Convention or the Transit Agreement.
The second preliminary objection was that the dispute was not one which cannot
be settled by negotiation as was required by the jurisdictional clauses of those two
treaties. As accepting either one of those preliminary objections had the effect of
disposing of the case here and now, Mr. Petrochilos suggested that the appropriate
wording of the question for the secret ballot for each Application would be “Do
you accept either one of the two preliminary objections formulated by the
Respondents in respect of each of the Applications?”
ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018,
ICAO document C-MIN 214/8, 23 July 2018, para. 122 (BEUM Vol. V, Annex 53)
100
C. JOINT APPELLANTS HAD AMPLE OPPORTUNITY TO PRESENT THEIR CASE
BEFORE THE ICAO COUNCIL
5.31 In its Counter-Memorial, Qatar explained that Joint Appellants were
granted two opportunities to brief the issue of jurisdiction in writing as well as an
opportunity to present oral arguments.355 Qatar also pointed to the fact that Joint
Appellants acted “collectively” before the ICAO Council (as they do now before
the Court) and they should therefore not be heard to complain that the Council
treated them in the exact same manner for purposes of allocating time at the
hearing.356 In any event, Joint Appellants failed to explain how or why the
opportunities to present their arguments that they were granted were not enough or
what prejudice they suffered from not having had more, given the identity of the
legal issues in dispute.357
5.32 Joint Appellants’ Reply maintains that the scheduling of “only one half-day
session” for the hearing did not “permit them sufficient time properly to co-ordinate
and present their case”.358 This continues to be a mere assertion. They never explain
why the time allotted to them, in conjunction with the two opportunities to submit
arguments in writing, and the identity of the legal issues in dispute, did not afford
them a “reasonable opportunity to present their case” (which as they now admit is
what the ICAO Rules safeguards).359 What argument that was not already in the
written pleadings were they precluded from making at the hearing? How did that
deprive them of their “reasonable opportunity”? Would the outcome have been any
355 QCM (B), para. 5.42.
356 Ibid., paras. 5.44, 5.47.
357 Ibid., paras. 5.42, 5.46.
358 BEUR, para. 3.29.
359 Ibid., para. 3.31.
101
different had they had more time, and why? Joint Appellants never engage with
these questions and hence there is no way to know.
5.33 Joint Appellants do say, however, that “[t]he good administration 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 eventual
unevenness among the Parties’”.360 The Council can hardly be faulted for improper
balancing here. Despite Qatar’s protests, it granted Joint Appellants two
opportunities to submit written pleadings on the jurisdictional issues.361 Joint
Appellants took full advantage of both, submitting in total 80 pages on their two
preliminary objections.362 Qatar, by contrast, submitted one brief, 58 pages long.363
Joint Appellants were also granted a hearing, which is at the discretion of the
Council.364 In these circumstances, it is difficult to see how granting Joint
360 Ibid., (quoting R. Kolb, “General Principles of Procedural Law”, in The Statute of the
International Court of Justice: A Commentary (A. Zimmermann, C. Tomuschat, K. Oellers-Frahm
and C. Tams eds., 2019), p. 969.).
361 QCM (B), paras. 5.19.
362 Preliminary Objections of the Arab Republic of Egypt, the Kingdom of Bahrain and the United
Arab Emirates in re Application (B) of the State of Qatar Relating to the Disagreement Arising
under the International Air Services Transit Agreement done at Chicago on 7 December 1944, 19
March 2018 (BEUM Vol. III, Annex 24); Rejoinder to the State of Qatar’s Response to the
Respondents’ Preliminary Objections of the Arab Republic of Egypt, the Kingdom of Bahrain and
the United Arab Emirates in re Application (B) of the State of Qatar Relating to the Disagreement
Arising under the International Air Services Transit Agreement done at Chicago on 7 December
1944, 12 June 2018 (BEUM Vol. IV, Annex 26).
363 Joint Appellants take issue with Qatar’s suggestion that, in view of Joint Appellants’ two
opportunities to brief the issue of the Council’s jurisdiction compared to Qatar’s one, if a party was
prejudiced by the decision of the Council to schedule only one half-day session for the hearing, that
was Qatar. QCM (B), para. 5.22. They argue that if Qatar felt that it was being prejudiced it should
not have “declined to ask to be allowed to file a second-round written submission”. BEUR, fn. 214.
This is rich coming from Joint Appellants who apparently are happy with the fact that with every
passing day that their wrongful aviation prohibitions remain in place the risk to the safety and
efficiency of civil aviation in the region and the financial detriment to Qatar’s national air carrier
are getting higher. Seeking “to be allowed to file a second-round written submission” was never an
option for Qatar.
364 Under Article 12 of the ICAO Rules for the Settlement of Differences, the ICAO Council may
admit oral arguments at its sole discretion. ICAO, Rules for the Settlement of Differences, approved
102
Appellants even more time at the hearing would equalise the putative procedural
“unevenness among the Parties”.
5.34 In sum, Joint Appellants enjoyed ample, and much more than sufficient,
opportunities to present their case before the Council.
*
5.35 For the reasons stated above, as well as those presented in its Counter-
Memorial, Qatar respectfully requests that the Court reject Joint Appellants’ First
Ground of Appeal.
on 9 April 1957; amended on 10 November 1975, Art. 12(2) (BEUM Vol. II, Annex 6); see also
Thomas Buergenthal, Law-making in the International Civil Aviation Organization (1969), p.189
(“An interesting feature of the Rules is their emphasis on written proceedings. The parties do not
have the right to an oral hearing, although the Council may in its discretion accord it. Even the
final arguments of the parties must be presented in writing, ‘but oral arguments may be admitted at
the discretion of the Council.’ This policy against oral proceedings is probably designed to reduce
the time that the Council would have to devote to a given case”.) (BEUM Vol. VI, Annex 125)
(emphasis added).
103
SUBMISSIONS
On the basis of the facts and law set forth in this Rejoinder, Qatar
respectfully requests the Court to reject Joint Appellants’ appeal and affirm the
ICAO Council’s Decision of 29 June 2018 dismissing Joint Appellants’
preliminary objection to the Council’s jurisdiction and competence to adjudicate
Qatar’s Application (B) of 30 October 2017.
Respectfully submitted,
____________________________
Dr. Mohammed Abdulaziz Al-Khulaifi
AGENT OF THE STATE OF QATAR
29 July 2019
105
CERTIFICATION
I certify that all Annexes are true copies of the documents referred to and that the
translations provided are accurate.
____________________________
Dr. Mohammed Abdulaziz Al-Khulaifi
AGENT OF THE STATE OF QATAR
29 July 2019
ICAO CORRESPONDENCE AND DOCUMENTS
Annex 1 ICAO Council, 19th Session, Working Paper: Report to Council of the
Working Group on Rules for Settlement of Differences, ICAO Doc.
C-WP/1457 (13 Mar. 1953)
Annex 2 International Air Services Transit Agreement (7 Dec. 1944) (entry into
force: 30 Jan. 1945), Trilingual Version, ICAO Doc. 7500 (1954)
Annex 3 Convention on International Civil Aviation (7 Dec. 1944) (entry into
force: 4 Apr. 1947), Quadrilingual Version, ICAO Doc. 7300/9 (9th ed.
2006)
Annex 4 Email from Olumuyiwa Benard Aliu, President of the ICAO Council, to
All Council Delegations (19 June 2017)
Annex 5 Letter from Abdulla Nasser Turki Al-Subaey, President of Qatar Civil
Aviation Authority, to Dr. Olumuyiwa Benard Aliu, President of ICAO
Council (20 Feb. 2019)
QATARI GOVERNMENT DOCUMENTS
Annex 6 Qatar Civil Aviation Authority, Air Navigation Department, Reply to
Conclusion 17/19 MIDANPIRG/17, Assessment of Contingency Routes
(7 July 2019)
PRESS ARTICLES
Annex 7 “Custodian of the Two Holy Mosques welcomes Islamic personalities
and heads of Hajj delegations at the annual reception in Mina”, Al Riyadh
(28 Oct. 2012), available at http://www.alriyadh.com/779832#
Annex 8 David D. Kirkpatrick, “Journalist Joins His Jailer’s Side in a Bizarre
Persian Gulf Feud”, The New York Times (1 July 2017), available at
https://www.nytimes.com/2017/07/01/world/middleeast/qatar-egyptunited-
arab-emirates-mohamed-fahmy.html
VOLUME II
ANNEXES
107
Annex 9 J. Malsin & S. Said, “Saudi Arabia Promised Support to Libyan Warlord in
Push to Seize Tripoli”, The Wall Street Journal (12 Apr. 2019), available
at https://www.wsj.com/articles/saudi-arabia-promised-support-tolibyan-
warlord-in-push-to-seize-tripoli-11555077600
Annex 10 Patrick Wintour, “Libya crisis: Egypt’s Sisi backs Haftar assault on Tripoli”,
The Guardian (14 Apr. 2019), available at https://www.theguardian.
com/world/2019/apr/14/libya-crisis-egypt-sisi-backs-haftar-assaulton-
tripoli
Annex 11 Ramadan Al Sherbini, “Iran to face ‘strong response’ if it closes Strait
of Hormuz”, Gulf News (20 June 2019) available at https://gulfnews.
com/world/gulf/saudi/iran-to-face-strong-response-if-it-closes-straitof-
hormuz-1.64730838
Annex 12 BBC, About the BBC (last accessed: 8 July 2019), available at https://
www.bbc.com/aboutthebbc
Annex 13 Al Jazeera, About Us (last accessed: 8 July 2019), available at https://
www.aljazeera.com/aboutus/
BOOKS, JOURNAL ARTICLES, REPORTS
Annex 14 Merriam-Webster’s Collegiate Dictionary (11th ed., 2009)
Annex 15 Kenneth L. Marcus, “Accusations in a Mirror”, Loyola University
Chicago Law Journal, Vol. 43 (2012)
Annex 16 African Commission on Human and Peoples’ Rights, 16th Extraordinary
Session, Resolution on Human Rights Abuses in Egypt, ACHPR Res.
287 (EXT.OS/XVI) (20-29 July 2014)
Annex 17 International Commission of Jurists, Egypt’s Judiciary: A Tool of
Repression (Sept. 2016), available at https://www.icj.org/wp-content/
uploads/2016/10/Egypt-Tool-of-repression-Publications-Reports-
Thematic-reports-2016-ENG-1.pdf
108
OTHER DOCUMENTS
Annex 18 United Nations Office of the High Commissioner for Human Rights,
Egypt: Justice and reconciliation increasingly failing after second wave of
mass death sentences (15 May 2014), available at https://www.ohchr.org/
EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14596&LangID=E
Annex 19 “Libya detention centre airstrike could amount to a war crime says UN,
as Guterres calls for independent investigation”, UN News (3 July 2019),
available at https://news.un.org/en/story/2019/07/1041792
109
Rejoinder of the State of Qatar