Volume IV (Annexes 25-26)

INTERNATIONAL COURT OF JUSTICE
APPEAL RELATING TO THE JURISDICTION OF
THE ICAO COUNCIL UNDER ARTICLE 84 OF
THE CONVENTION ON INTERNATIONAL CIVIL AVIATION
(BAHRAIN, EGYPT, SAUDI ARABIA AND UNITED ARAB EMIRATES v. QATAR)
MEMORIAL OF THE KINGDOM OF BAHRAIN,
THE ARAB REPUBLIC OF EGYPT,
THE KINGDOM OF SAUDI ARABIA,
AND THE UNITED ARAB EMIRATES
Volume IV of VII
Annexes 25 – 26
27 DECEMBER 2018

LIST OF ANNEXES
VOLUME IV
ICAO pleadings
Annex 25
Response of the State of Qatar to the Preliminary Objections of the Respondents; In re Application (A) of the State of Qatar Relating to the Disagreement on the interpretation and application of the Convention on International Civil Aviation (Chicago, 1944),
30 April 2018
897
Annex 26
Rejoinder to the State of Qatar’s Response to the Respondents’ Preliminary Objections of the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia and the United Arab Emirates In Re Application (A) of the State of Qatar Relating to the Disagreement Arising under the Convention on International Civil Aviation done at Chicago on
7 December 1944, 12 June 2018
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Annex 25
Response of the State of Qatar to the Preliminary Objections of the Respondents; In re Application (A) of the State of Qatar Relating to the Disagreement on the interpretation and application of the Convention on International Civil Aviation (Chicago, 1944),
30 April 2018
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Annex 26
Rejoinder to the State of Qatar’s Response to the Respondents’ Preliminary Objections of the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia and the United Arab Emirates In Re Application (A) of the State of Qatar Relating to the Disagreement Arising under the Convention on International Civil Aviation done at Chicago on 7 December 1944, 12 June 2018
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Before the Council of the International Civil Aviation Organization (ICAO) Under the ICAO Rules for the Settlement of Differences (Doc. 7782/2) REJOINDER TO THE STATE OF QATAR’S RESPONSE TO THE RESPONDENTS’ PRELIMINARY OBJECTIONS OF THE ARAB REPUBLIC OF EGYPT, THE KINGDOM OF BAHRAIN, THE KINGDOM OF SAUDI ARABIA AND THE UNITED ARAB EMIRATES In Re Application (A) of the State of Qatar Relating to the Disagreement Arising under the Convention on International Civil Aviation done at Chicago on 7 December 1944 H.E. Sherif Fathi Agent for the Arab Republic of Egypt H.E. Kamal Bin Ahmed Mohamed Agent for the Kingdom of Bahrain H.E. Dr. Nabeel bin Mohamed Al-Amudi Agent for the Kingdom of Saudi Arabia H.E. Sultan Bin Saeed Al Mansoori Agent for the United Arab Emirates 12 June 2018
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ii TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................................ iii I. INTRODUCTION ..................................................................................................................1 II. THE COUNCIL CAN AND MUST DETERMINE THE RESPONDENTS’ OBJECTIONS AS A PRELIMINARY ISSUE .......................................................................3 III. FIRST PRELIMINARY OBJECTION: THE COUNCIL DOES NOT HAVE JURISDICTION OVER THE “REAL ISSUE” IN DISPUTE ...............................................9 Introduction ...................................................................................................................9 A. The First Preliminary Objection is Based on the “Real Issue” in Dispute, Not on B.the Political Nature of the Dispute ..............................................................................10 Qatar Has no Answer to the “Real Issue” Rule ...........................................................12 C. The “Real Issue” in this Case, Objectively Assessed, Does Not Concern Civil D.Aviation .......................................................................................................................13 The First Preliminary Objection is Supported by the Principle of Specialty ..............16 E. The First Preliminary Objection Should Not be Joined to the Merits ........................17 F. Conclusion: The Council Does Not Have Jurisdiction over Qatar’s Claims ..............19 G.IV. SECOND PRELIMINARY OBJECTION: QATAR FAILED TO SATISFY THE PRECONDITION OF NEGOTIATION IN ARTICLE 84 OF THE CHICAGO CONVENTION AND THE CORRESPONDING PROCEDURAL REQUIREMENT IN ARTICLE 2(G) OF THE RULES ........................................................................................20 Introduction .................................................................................................................20 A. Under Article 84 of the Chicago Convention the Condition of Prior Negotiations B.Must Be Satisfied Before an Application Is Made to the Council ..............................22 Qatar Has Failed to Establish that It Attempted Negotiations ....................................29 C.V. SUBMISSIONS FOR RELIEF ............................................................................................37 LIST OF EXHIBITS ................................................................................................................... A-1
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iii EXECUTIVE SUMMARY This Rejoinder is submitted by the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia, and the United Arab Emirates [the Respondents] in order to address the Response of the State of Qatar [Qatar] filed on 30 April 2018, to the Preliminary Objections of the Respondents filed on 19 March 2018. The Respondents’ First Preliminary Objection is that the ICAO Council [henceforth, the Council] does not have jurisdiction over the “real issue” in dispute. The dispute concerns Qatar’s multiple, grave, and persistent breaches of international obligations essential to the security of the Respondents, which compelled the Respondents to enact a basket of lawful countermeasures, including the measures of which Qatar now complains. The “real issue” in this case thus concerns matters such as the principle of non-intervention, subversion and terrorism. All of these are matters clearly falling outside of the Council’s jurisdiction. Qatar conceded in its Response that adjudication of its claims on the merits will require the Council to determine “on the facts and in law” whether the conditions for the imposition and continuation of the countermeasures have been met. Such a determination would, in turn, require the Council to conduct a detailed factual inquiry into Qatar’s activities in relation to certain terrorist organizations and interference in the domestic affairs of its neighbours and to assess the lawfulness of Qatar’s activities against its obligations under, among others, the Riyadh Agreements, the International Convention for the Suppression of the Financing of Terrorism, Security Council Resolution 1373 (2001) and customary international law. Qatar mischaracterises the Respondents’ First Preliminary Objection as alleging that Qatar’s claim involves a political question. But the Respondents do not claim that if a dispute has political elements that is per se sufficient to exclude a tribunal’s or court’s jurisdiction. Qatar’s argument is a straw man that intends to distract from the full force of the First Preliminary Objection made by the Respondents. The Council is not the proper forum for a dispute that turns on whether Qatar has breached multiple obligations that are outside, and different from, the Chicago Convention. The Council is not well-suited or equipped to handle disputes of this nature, nor is it competent to do so. It is respectfully submitted that it must decline jurisdiction, or in the alternative, find that the Application of Qatar is inadmissible. With respect to the Second Preliminary Objection, Qatar now claims in its Response to have actually attempted negotiations. Qatar’s changing, contradictory and unsubstantiated position on its compliance with Article 84 of the Chicago Convention lacks credibility. The case law of the ICJ makes clear that the requirement of prior negotiations, such as that which is contained in Article 84 of the Chicago Convention, is a precondition to the existence of jurisdiction. The evidence put forward by Qatar, however, demonstrates that Qatar made no genuine attempt to initiate negotiations with the Respondents in relation to the interpretation or application of the Chicago Convention, whether prior to bringing the dispute to the Council or thereafter. 1386
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iv If the Council were to accept jurisdiction on the basis that the applicant could subsequently seek negotiations and re-submit the application, it would leave the requirement of prior negotiations in Article 84 without any effect, since applicants would have no incentive to attempt negotiations prior to submitting a dispute to the Council, as the failure to do so would not trigger any consequences. Qatar’s positions on the Respondents’ two preliminary objections are internally contradictory and show the weakness of Qatar’s case. In its response to the Respondents’ First Preliminary Objection, Qatar contests that the “real issue” in this case concerns wider matters that are outside the Council’s jurisdiction, stating that the subject-matter of the dispute instead concerns the Chicago Convention only. But as to the Second Preliminary Objection, Qatar affirmatively pleads that it has invited negotiations on the entire, broader dispute. Qatar cannot have it both ways. If the present dispute is to be understood as relating solely to breaches of the Chicago Convention and its Annexes, as Qatar alleges, then it follows that the required attempt to negotiate must relate to the alleged breach of the Chicago Convention and its Annexes. Yet, none of the statements offered by Qatar as evidence of negotiations or of attempts at negotiation refers to the Chicago Convention and its Annexes; rather they are broad-brush statements as to Qatar’s alleged willingness “to sit and talk” or the “importance of dialogue”. If Qatar insists that the dispute is not about the wider issues between the parties, it must necessarily concede that it has failed to comply with the prior negotiations requirement in Article 84. Conversely, if Qatar claims that the references to a broader political dialogue satisfy the prior negotiations requirement in Article 84, it must acknowledge that that dispute is about wider issues that fall outside the Council’s jurisdiction. Either way, the Council must find that it does not have jurisdiction. Finally, Qatar incorrectly argues that, to the extent that the Respondents’ objections are properly to be characterised as objections to admissibility, the Council has no power to decide them as a preliminary issue. The Respondents’ primary position in their two Preliminary Objections is that the Council lacks jurisdiction. However, and in the alternative, to the extent that the two objections also address admissibility, the Council may decide on them as a preliminary matter, as they have the requisite exclusively preliminary character. The Respondents therefore respectfully reiterate their request to the Council that it decide as a preliminary matter to accept their Preliminary Objections and therefore decide either that it lacks jurisdiction to resolve the claims raised by Qatar in Application (A) or, in the alternative, that Qatar’s claims are inadmissible. Annex 26
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1 I. INTRODUCTION 1. Pursuant to the Council’s decision of 28 May 2018 and in accordance with Article 28 of the Rules for the Settlement of Differences [the Rules], this Rejoinder is submitted by the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia, and the United Arab Emirates in order to address the Response of Qatar, filed on 30 April 2018, to the Preliminary Objections of the Respondents filed on 19 March 2018. 2. In their Preliminary Objections dated 19 March 2018, the Respondents respectfully submitted that the Council has no jurisdiction to address the claims raised in Qatar’s Application (A) and Memorial, or that, in the alternative, the Council should decline to hear Qatar’s claims and declare them inadmissible. 3. The two preliminary objections made by the Respondents are as follows: (a) The dispute falls outside the subject-matter of Article 84 of the Chicago Convention: resolving the disagreement between Qatar and the Respondents would necessarily require the Council to determine the Respondents’ invocation of countermeasures and whether Qatar was complying with fundamental international law obligations entirely unrelated to the Chicago Convention. Indeed, it is Qatar’s non-compliance with those different obligations, and the Respondents’ measures in response, that form the real issue in dispute. (b) In any event, Qatar has failed to comply with: (a) the necessary precondition to the existence of jurisdiction of the Council, contained in Article 84 of the Chicago Convention, of first attempting to resolve the disagreement with the Respondents through negotiations prior to submitting its claims to the Council; and (b) the procedural requirement in Article 2(g) of the Rules of establishing and expressly affirming in its Memorial that negotiations to settle the disagreement had taken place between the parties but were not successful. 4. This Rejoinder responds to Qatar’s arguments, which are new in large measure. Before doing so, the Respondents set out a list of points on which the parties apparently agree: (a) When performing functions under Article 84 of the Chicago Convention, the Council acts in a judicial or quasi-judicial capacity, and any such distinction between the two has no practical significance.1 1 Response of the State of Qatar to the Preliminary Objections of the Respondents in Re Application (A) of the State of Qatar Relating to the Disagreement on the interpretation and application of the Convention on International Civil Aviation (Chicago, 1944) and of its Annexes, Montreal, 1 May 2018 [Response of Qatar], para. 14 (“Nevertheless, the State of Qatar does not believe that it is necessary to decide whether the Council, 1388
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2 (b) The Council has the power to determine its own jurisdiction, within the confines of Article 84 of the Chicago Convention.2 Though Qatar disputes the scope of this power by suggesting that the Council may not determine questions of admissibility as preliminary matters in exercise of its Kompetenz-kompetenz. (c) The jurisprudence of the International Court of Justice [ICJ or the Court] is highly relevant to determining matters of law or procedure before the Council.3 (d) Article 22 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts [ILC Articles] reflects the customary international law principle that “the 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”.4 (e) If the Council were to find that it had jurisdiction and proceed to the merits, it would necessarily find itself considering (in Qatar’s words) “wider question[s]” as to Qatar’s support and financing of terrorism.5 Indeed, Qatar has declared that it intends to “show, at the stage of the merits, on the facts and in law, that the conditions for the imposition and continuation of the alleged countermeasures by the Respondents have not been met”.6 5. The main areas of disagreement between the parties for the purposes of these proceedings are relatively few: (a) Insofar as the Council considers either one of the Respondents’ objections to go to admissibility, whether it can determine disputes as to admissibility at the preliminary objections phase. when performing Article 84 functions, acts in a judicial or quasi-judicial capacity nor what the difference would practically entail”.). 2 Preliminary Objections of the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia and the United Arab Emirates in Re Application (A) of the State of Qatar Relating to the Disagreement Arising under the Convention on International Civil Aviation done at Chicago on 7 December 1944, 19 March 2018 [Preliminary Objections], para. 24(c); Response of Qatar, para. 15. 3 Preliminary Objections, para. 16. Response of Qatar, para. 11, notes that “the Respondents rely heavily on case law from the ICJ and tribunals”, without seeking to contradict its relevance. Qatar goes on also to rely heavily on ICJ case law (see, e.g., Response of Qatar, paras. 17-21, 25-31, 37-43), from which it is to be inferred that it likewise does not dispute the relevance of such cases. 4 Response of Qatar, para. 78; Preliminary Objections, paras. 36-40. Citing the International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts (2001), in Report of the International Law Commission on the Work of its Fifty-third Session (2001), UN doc A/56/10, chapter IV, reproduced in ILC Yearbook 2001, vol. II(2), pp. 31 et seq [ILC Articles]. 5 Response of Qatar, paras. 76-77. 6 Ibid., para. 82. Annex 26
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3 (b) Whether the Respondents’ preliminary objections are legally capable of being joined to the merits on grounds that they do not have an exclusively or predominantly preliminary character, and whether as a matter of proper process they should in fact be so joined. (c) Whether the “real issue” in the dispute before the Council, properly characterised, concerns not only the alleged “breaches by the Respondents of the Chicago Convention and its Annexes”7 but rather, fundamentally, the question of Qatar’s compliance with its international obligations, including the Riyadh Agreements and other obligations concerning its support and financing of terrorism.8 If the latter, the consequence is that the Council does not have jurisdiction under Article 84 of the Chicago Convention. (d) Whether Qatar failed to fulfil the procedural and substantive precondition of negotiation prior to filing its Application before the Council, and the legal scope of that precondition. If Qatar has failed to fulfil the precondition of negotiation, the consequence is that the Council does not have jurisdiction under Article 84 of the Chicago Convention. II. THE COUNCIL CAN AND MUST DETERMINE THE RESPONDENTS’ OBJECTIONS AS A PRELIMINARY ISSUE 6. The Respondents have submitted in their Preliminary Objections, pursuant to Article 5 of the Rules for the Settlement of Differences, that: (a) The Council lacks jurisdiction to resolve the claims raised by Qatar; or (b) In the alternative, Qatar’s claims are inadmissible. 7. Under Article 5 of the Rules, a respondent State which questions the jurisdiction of the Council to handle the matter presented by the applicant State “shall file a preliminary objection” setting out the basis of the objection,9 and, if such a preliminary objection has been filed, the Council “shall decide the question as a preliminary issue”.10 8. This is reflective of a fundamental and well-established principle of international law that an international court or tribunal may adjudicate a dispute between States only to the extent that those States have consented to the exercise of such jurisdiction. 7 Ibid., para. 48. 8 Preliminary Objections, paras. 30, 33, 65. 9 Article 5(1) of the Rules. 10 Article 5(4) of the Rules. 1390
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4 9. The scope of the parties’ consent to the jurisdiction of the Council is defined in Article 84 of the Chicago Convention. As explained in the Respondents’ Preliminary Objections, Article 84 refers only to disagreements relating to the “interpretation and application” of the Chicago Convention. That is a subject-matter limitation of the Council’s jurisdiction. Conversely, disputes or disagreements that are different from and/or extend beyond the interpretation and application of the Chicago Convention fall outside of the scope of the Council’s jurisdiction. 10. It is also well-established in international law that, even if an international court or other adjudicatory body decides that it has jurisdiction over a particular dispute – that is to say, its constitutive instruments confer upon it the power to adjudicate the dispute – it is also required to consider whether the circumstances are such that it must decline to exercise such jurisdiction, for example because of a reason that affects the possibility or propriety of its deciding the dispute at this juncture. The latter type of considerations, called “admissibility” considerations, are inherent to the exercise of the judicial function. Qatar is plainly wrong in arguing the contrary. Qatar is also wrong in seeking to distance jurisdiction from admissibility: both are related to an adjudicator’s ability to determine a dispute; and, as a matter of principle, both fall to be considered and determined at the threshold before briefing and consideration of the substance of the dispute. 11. Reflecting these well-established principles of international law, international courts and tribunals have addressed objections to the jurisdiction and the admissibility of a claim as preliminary issues where such objections possess an “exclusively preliminary character”, that is to say, where the objections can be considered without entering into the evidential debate necessary to determine the underlying merits of the claims.11 The ICJ has recognised that a party raising preliminary objections is entitled to have them resolved preliminarily.12 12. Qatar does not dispute that the Respondents are entitled to file objections to the jurisdiction of the Council or as to the admissibility of its claims. Nor does it dispute that the Council is empowered to determine the Respondents’ objections to the jurisdiction of the Council as a preliminary matter. Still, it relies on Article 5(1) of the Rules to argue that, to the extent that they are properly characterised as objections to admissibility, the Council has no power to 11 The ICJ has in the past decided that an objection does not have an exclusively preliminary character where the issue raised in the objection was so closely related to the merits of the dispute that, based on the case-file before it, the objection may not be fully addressed. See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) I.C.J. Reports 1984, p. 392 [Military and Paramilitary Activities in and against Nicaragua], p. 425, para. 76; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon/Nigeria: Equatorial Guinea intervening) I.C.J. Reports 1998, p. 275, p. 324, para. 116. Investment-arbitration tribunals have adopted the same approach. See, e.g., Glamis Gold, Ltd v United States of America, UNCITRAL, Procedural Order No. 2 (revised), 31 May 2005, para. 12(c); Philip Morris Asia Ltd v Australia, UNCITRAL, PCA Case No. 2012-12, Procedural Order No. 8 Regarding Bifurcation of the Procedure, 14 April 2014, paras. 108-109. 12 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007, p. 832 [Territorial and Maritime Dispute], p. 852, para. 51; Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), ICJ Reports 1972, p. 46, at p. 56, para. 18(a)-(c) Annex 26
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5 decide on the Respondents’ objections as a preliminary issue. Rather, Qatar argues that the Respondents may raise their objections only at the merits stage.13 13. Qatar attempts to interpret Article 5(1) narrowly by contrasting it to Article 79(1) of the current version of the ICJ’s Rules of Court, which expressly permits a respondent State to make an objection to the jurisdiction of the Court or to the admissibility of the application. In Qatar’s view, the explicit reference only to the jurisdiction of the Council in Article 5(1) of the Rules signifies that the Council is not empowered to address objections to the admissibility of a claim as a preliminary matter. 14. Qatar’s argument is misconceived at various levels. Qatar does not dispute a respondent’s right to file an objection to the admissibility of a claim under Article 5(1) of the Rules, despite the fact that that provision refers explicitly only to jurisdictional objections. To this extent, Qatar accepts that the well-established principle of international law referenced above applies to the Council. It fails to explain why the Council is then barred from considering issues of admissibility separately from the merits, as is the case for jurisdictional objections. There is no satisfactory explanation for Qatar’s inconsistent position. Given that considerations of admissibility prevent any determination of the merits,14 matters of admissibility should be determined as a preliminary matter, unless specific reasons of fairness, propriety, or procedural efficiency compel joining them to the merits. No such reasons exist here. 15. Qatar’s superficial comparison also ignores the fact that Article 36(6) of the ICJ’s Statute (the constitutive document of the Court) refers only to the Court’s ability to decide on a dispute as to whether the Court has jurisdiction. There is no reference to objections to the admissibility of a claim in the Statute. Incidentally, the distinction between jurisdiction and admissibility was only introduced into the Rules of Court in 1972.15 Notwithstanding this, the Court has, since its inception, considered that it was empowered to address objections as to admissibility before any further proceedings on the merits.16 In the case of the Northern Cameroons for instance, the Court did not find it “necessary to consider all the objections, nor to determine whether all of them are objections to jurisdiction or to admissibility or based on other 13 Response of Qatar, paras. 22-24. 14 Cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 412 [Application of the Convention on the Prevention and Punishment of the Crime of Genocide], at p. 456, para. 120. 15 The ICJ’s 1946 Rules of Court provided that, “A preliminary objection must be filed by a party at the latest before the expiry of the time-limit fixed for the delivery of its first pleading”. The 1972 ICJ Rules of Court, and the 1978 Rules of Court (currently in force), refer to any objection by the respondent “to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits”. 16 In taking this course, the ICJ followed the practice of its predecessor, the PCIJ: see e.g. Panevezys-Saldutiskis Railway Case, 1939, P.C.I.J., Series A/B, No. 2, p. 4, a case decided under the PCIJ’s 1936 Rules (which were in substantially similar form to the ICJ’s 1946 Rules), where the Court observed that the relevant provision: “covers more than objections to the jurisdiction of the Court. Both the wording and the substance of the Article show that it covers any objection of which the effect will be, if the objection is upheld, to interrupt further proceedings in the case, and which it will therefore be appropriate for the Court to deal with before enquiring into the merits” (at p. 16). 1392
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6 grounds”.17 Whenever the problem has arisen, the Court had no hesitation in re-characterising the objection and examining its merits, without dwelling on any error of characterisation which the objecting State may have committed.18 The reason is that, as noted above, such objections have equivalent effect to jurisdictional objections: they preclude consideration of the substance of the dispute. 16. In any event, this debate generated by Qatar is in fact unnecessary. As the Respondents explained in their Preliminary Objections,19 the Council has developed its own practice on the basis of Article 5(1) of the Rules and confirmed that it can address issues of admissibility as a preliminary matter. Qatar seeks to disregard such practice of the Council. 17. In 2000, in United States v. 15 European States, the Council dealt with a number of objections to the admissibility of a claim in proceedings under Article 84 of the Chicago Convention.20 The Council considered as preliminary matters the three objections which the Respondents characterised as going to admissibility. It rejected two of the objections, and it joined to the merits the third – relating to the scope of relief that the Council is entitled to provide – on the basis that the objection was not preliminary in nature. This decision confirms the Council’s understanding that it is authorised to consider issues of admissibility as a preliminary matter under Article 5(1). It also confirms that only exceptionally are objections to admissibility to be joined to the merits – in that case because, in the circumstances, the objection could not be said to be of an exclusively preliminary character. 18. Qatar does not contest that the Council has previously considered issues of admissibility as preliminary objections in Article 84 proceedings. Qatar limits itself to dismissing this decision as erroneous but fails to explain – because it cannot explain – why this may be so and why the Council should depart from its previous practice.21 17 Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 27. See also Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 10; Pajzs, Csáky, Esterházy, Judgment, 1936, P.C.I.J., Series A/B, No. 68, p. 51; Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, p. 216, para. 43; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, pp. 23-24, para. 43. 18 See in particular Interhandel (Switzerland v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 26; Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 177, para. 29; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 456, para. 120; Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 123, para. 48. 19 Preliminary Objections, para. 29. 20 Decision of the ICAO Council on the Preliminary Objections in the Matter “United States v 15 European States (2000)”, 16 November 2000. 21 Response of Qatar, para. 23. Annex 26
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7 19. Also, in the Article 84 proceedings between Brazil and the United States in 2017, the United States raised an objection to the admissibility of the dispute on the basis that it was time-barred (extinctive prescription). Qatar alleges that the Council correctly applied Article 5(1) by not addressing that objection as a preliminary matter.22 But Qatar misses the point: the Council in fact reaffirmed and followed its prior practice. 20. As Qatar itself highlights, in the Brazil v. United States case, the United States submitted that: While ICAO’s Rules for the Settlement of Differences do not explicitly mention admissibility, the Council has, and should now, consider issues of admissibility as permissible bases for making a Preliminary Objection under Article 5 of the Rules on Settlement of Differences.23 21. At the hearing in on 21 June 2017, Brazil accepted that the objection raised by the United States went to the admissibility of its claim but did not contest that the Council could address it preliminarily.24 ICAO’s Bureau of Legal Affairs and External Relations also confirmed that the Council may decide to join to the merits objections which did not possess an exclusively preliminary character, citing to the Council’s decision in the United States v. 15 European States.25 22. The Council accepted this position. It concluded that the preliminary objection of the United States did not possess “an exclusively preliminary character” in the circumstances of the case, and decided to defer consideration of it until after having been briefed on the relevant facts, which were part of the merits. The Council thus again confirmed that it was able to deal with admissibility objections as a preliminary matter. Indeed, the very fact that the Council joined the objection to the merits on that basis confirms its understanding that it would have ruled upon the objection at the preliminary phase if, on the facts pleaded in support of it, the admissibility objection had had the requisite “exclusively preliminary character”. * 23. Although Qatar is, in the light of the foregoing, wrong on the law, the salient point here is that both of the Respondents’ preliminary objections may properly be characterised as going to the Council’s jurisdiction. 24. As regards the first preliminary objection, Qatar asserts that “defences such as countermeasures are to be considered at the stage of the merits, not at the preliminary 22 Ibid., paras. 23-24. 23 Brazil v. United States, Preliminary Objections of the United States, fn. 18 (quoted in Response of Qatar, para. 23). 24 Council – 211th session, Summary Minutes of the Ninth Meeting, 21 June 2017, C-MIN 211/9, para. 51. 25 Ibid., para. 93. 1394
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8 objections stage”.26 By this assertion Qatar presumably intends to invite the Council to join the Respondents’ objection to the merits. 25. But the question whether or not the Council may deal at all with the substance of the parties’ real dispute must be resolved at the threshold. And that is the question which must be resolved to address the Respondents’ preliminary objections. 26. Article 5(4) of the Rules does not give the Council the option of joining preliminary objections to the merits, whether such objections may be characterised as regarding jurisdiction or admissibility. Article 5(4) states plainly: “If a preliminary objection has been filed, the Council, after hearing the parties, shall decide the question as a preliminary issue before any further steps are taken under these Rules” (emphasis added). 27. It is notable that the Council has never joined a jurisdictional objection to the merits. 28. In the light of Article 5(4) of the Rules, that is unsurprising, and the Respondents submit that the Council’s past practice should be followed in the present dispute. The Respondents’ primary position is that their two objections go to the Council’s jurisdiction, rather than affecting the admissibility of Qatar’s claim, on the basis that the claim is outside the scope of disputes which fall within the jurisdiction of the Council, as defined in Article 84 of the Chicago Convention. Consequently, Article 5(4) of the Rules requires that the Council resolve both objections before any further steps may be taken. 29. However, in the alternative, the Respondents submit that the Council may regard the two objections as going to admissibility, and that in such a case, the Council may decide on them as a preliminary matter, as they have the requisite exclusively preliminary character. As discussed in Section III.F below, the Council can and should rule upon the Respondents’ First Preliminary Objection based on countermeasures without prejudging whether the Respondents would in fact succeed on their countermeasures defence if the matter were to go to the merits phase. Qatar appears to accept that the Council may determine the Second Preliminary Objection at the preliminary phase to the extent it is properly characterised as a jurisdictional objection. In any event, that objection likewise does not require any prejudging of the merits of the Respondents' countermeasures defence. 26 Response of Qatar, para. 73; see also Response of Qatar, para. 32 (“[T]he claim by the Respondents that the Council does not have jurisdiction to consider the present case because the State of Qatar has allegedly breach[ed] [sic] certain international obligations which entitled the Respondents to adopt ‘countermeasures’ goes precisely to the substance or merits of this case”.). Annex 26
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9 III. FIRST PRELIMINARY OBJECTION: THE COUNCIL DOES NOT HAVE JURISDICTION OVER THE “REAL ISSUE” IN DISPUTE Introduction A.30. Qatar seeks to mischaracterise the Respondents’ First Preliminary Objection as alleging that Qatar’s claim involves a political question rather than a dispute which may be resolved by application of law.27 This is incorrect. Rather, the objection is based on the principle that the Council does not have jurisdiction if, objectively, the “real issue” of the matter brought before it falls outside the scope of Article 84 of the Chicago Convention. That is the case here. Qatar’s complaint relates to measures which were adopted by way of lawful countermeasures as part of a broader reaction to Qatar’s persistent breach of fundamental international obligations that have nothing whatsoever to do with civil aviation. That is the “real issue” in dispute. 31. Thus, the scope of the dispute that Qatar purports to bring to the Council is well outside the Council’s jurisdiction. If it proceeds to the merits, the Council will necessarily be required to determine the question of countermeasures, as a circumstance precluding the wrongfulness of the Respondents’ measures, including the measures of which Qatar complains. As Qatar accepts, were the Council to exercise jurisdiction, it would thus have to determine questions of Qatar’s compliance with non-ICAO international law obligations, including the Riyadh Agreements, counter-terrorism obligations and obligations relating to the non-interference in the internal affairs of other States. As Qatar has previously acknowledged, the “real issue” in dispute concerns “matters unrelated to air navigation and air transport”.28 When Qatar failed to comply with these obligations, the Respondents adopted a comprehensive basket of measures including those now complained of, but also the severance of diplomatic relations and economic relations with Qatar. These measures were imposed with the object of inducing Qatar to comply with its international obligations, inter alia, to prevent, suppress and criminalise support for, and the funding of, terrorists and terrorist organisations, and the respect for the principle of non-interference in the internal affairs of States. To the extent that these measures might prima facie be considered to be at variance with the Respondents’ obligations under the Chicago Convention, they are justified as constituting lawful countermeasures. 32. There can be no question of the Council severing Qatar’s complaint from the nature of the Respondents’ measures as countermeasures. There is nothing to sever: all of the Respondents’ 27 Ibid., paras. 33-34 (“[S]ome preliminary observations may be made on the issues raised by the Respondents, that there are wider or broader issues in play which would prevent the Council from assuming jurisdiction or that the Application becomes inadmissible. It is in their nature for tribunals or courts to adjudicate legal issues, even if these would occur in the context of wider political differences between the parties. The fact that a legal dispute has wider underlying elements does mean that such dispute falls outside the jurisdiction of the Council or is inadmissible”.). 28 Application (A) by the State of Qatar in relation to the disagreement on the interpretation and application of the Convention on the International Civil Aviation (Chicago, 1944) and its Annexes, dated 30 October 2017 [Application (A) by Qatar], para. g. 1396
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10 measures were expressly adopted as countermeasures in response to Qatar’s multiple and grave breaches of its international obligations. This was stated in plain terms from the outset by all Respondent States, as described at paragraphs 54–63 of the Preliminary Objections. It follows that Qatar’s complaint cannot be assessed on the merits by deferring consideration of the Respondents’ countermeasures defence. That would amount to ignoring the true nature of the Respondents’ measures and to compromising the Respondents’ legal position. 33. It is noted for completeness that it is incorrect for Qatar to argue that by stating that they rely on countermeasures, the Respondents somehow admit that their actions are in breach.29 For the avoidance of any doubt, the Respondents reiterate that their Preliminary Objections were made entirely without prejudice as to the question whether their actions were otherwise in breach of their obligations under the Chicago Convention.30 The point is simply that, in accordance with well-settled law, the character of these measures as lawful countermeasures precludes any question that they might otherwise be wrongful under the narrow lens of the Chicago Convention.31 The First Preliminary Objection is Based on the “Real Issue” in Dispute, Not on the B.Political Nature of the Dispute 34. Qatar aims to confuse by addressing an argument on a point that the Respondents do not make, namely that the Council is without jurisdiction because the dispute has political aspects. It argues that: It is in their nature for tribunals or courts to adjudicate legal issues, even if these would occur in the context of wider political differences between the parties. The fact that a legal dispute has wider underlying elements does mean that such dispute falls outside the jurisdiction of the Council or is inadmissible.32 35. But that is not the Respondents’ objection. The objection is rather that the measures complained of by Qatar inexorably call for consideration of a dispute which is different from and outside the scope of the Council’s jurisdiction. 36. The Respondents agree that the fact that a dispute has political elements is not per se sufficient to exclude a tribunal’s or court’s jurisdiction to adjudicate upon it based on applicable legal standards. But nothing turns on this for present purposes, because as just noted that is not the reason for which Qatar’s claim is outside the Council’s jurisdiction. Qatar is also wrong in 29 Response of Qatar, para. 83. 30 Preliminary Objections, para. 8 (“The present Preliminary Objections are naturally submitted without prejudice to the Respondents’ position on the merits of the claims made by Qatar, as set out in Application (A) and the accompanying Memorial, regarding the alleged breach by the Respondents of their obligations under the Chicago Convention”.). 31 ILC Articles, Article 22. 32 Response of Qatar, para. 34. Annex 26
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11 suggesting that the ICJ has rejected the principle that when its jurisdiction is limited in terms of subject-matter it must be satisfied that it has jurisdiction – that is, has the necessary consent of the parties – to determine the “real issue” in dispute. None of the cases cited by Qatar support this allegation. 37. Qatar relies on dicta of the Court in United States Diplomatic and Consular Staff in Tehran, in which the Court found it had jurisdiction to hear a claim under the Vienna Conventions on Diplomatic and Consular Relations despite Iran’s invocation of the broader political grievances it had with the United States:33 [L]egal disputes between sovereign States by their very nature are likely to occur in political contexts, and often form only one element in a wider and longstanding political dispute between the States concerned. Yet never has the view been put forward before that, because a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should decline to resolve for the parties the legal questions at issue between them. Nor can any basis for such a view of the Court’s functions or jurisdiction be found in the Charter or the Statute of the Court; if the Court were, contrary to its settled jurisprudence, to adopt such a view, it would impose a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes. 38. In the Military and Paramilitary Activities in and against Nicaragua case, the Court affirmed that it would not decline to hear a case “merely because it had political implications”;34 or again, in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict that “the fact that this question also has political aspects … does not suffice to deprive it of its character as a ‘legal question’” for the purposes of an advisory opinion.35 39. But citation of these cases by Qatar does not answer the Respondents’ objection. The fact that the Respondents’ measures were adopted – and expressly so36 – as lawful countermeasures and are relied upon as such means that they must be analysed from that perspective. The Respondents do not contest that the end result of such an assessment is a question on which Qatar may disagree. But that disagreement is not one which the Council may resolve. If the Council took it upon itself to do so, it would necessarily – and Qatar accepts this – have to determine a dispute well beyond the scope of its limited subject-matter jurisdiction.37 The Council must therefore decline to exercise jurisdiction, not because that dispute has political elements, but because the “real issue” in dispute is different from the subject-matter of its competence under Article 84 of the Chicago Convention. 33 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3, p. 20, para. 37. 34 Military and Paramilitary Activities in and against Nicaragua, p. 435, para. 96 (emphasis added). 35 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996, p. 66, p. 11, para. 16. 36 Preliminary Objections, paras. 53-57. 37 Response of Qatar, paras. 73, 76-77; and cf. para. 48. 1398
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12 Qatar Has no Answer to the “Real Issue” Rule C.40. Qatar’s strategy of mischaracterising the Respondents’ objections and focusing on political questions serves to mask its inability to answer the Respondents’ case. Importantly, Qatar does not deny that the “real issue” rule is a jurisdictional bar. Rather, Qatar seeks to minimise or ignore its significance. 41. As the Respondents set out in their Preliminary Objections, and Qatar does not dispute, it is a necessary part of the function of the Council sitting under Article 84 to “isolate the real issue in the case and to identify the object of the claim”. The Council “must ascertain the true subject of the dispute, the object and purpose of the claim”.38 42. As an arbitral tribunal constituted under Part XV of the United Nations Convention on the Law of the Sea [UNCLOS] recently confirmed in the Chagos Islands arbitration, an “incidental connection between the dispute and some matter regulated by the Convention is insufficient to bring the dispute, as a whole, within the ambit” of the title of jurisdiction.39 The tribunal in that case declined to exercise jurisdiction because it found that the “real issue” – or, as Qatar puts it, the “heart of the claim” – concerned a dispute over sovereignty over land. It was not a dispute concerning the interpretation or application of UNCLOS.40 Mauritius sought to contest the Marine Protection Area created by the United Kingdom under that Convention on the basis that the United Kingdom was not the competent “coastal State”, because (so Mauritius argued) it lacked sovereignty over the islands. The tribunal concluded that the parties’ disagreement was “simply one aspect of a larger dispute” as to which State had sovereignty over the Chagos Islands.41 The tribunal concluded that:42 [W]here a dispute concerns the interpretation or application of the Convention, the jurisdiction of a court or tribunal pursuant to Article 288(1) extends to making such findings of fact or ancillary determinations of law as are necessary to resolve the dispute presented to it (see Certain German Interests in Polish Upper Silesia, Preliminary Objections, Judgment of 25 August 1925, P.C.I.J. Series A, No. 6, p. 4 at p. 18). Where the “real issue in the case” and the “object of the claim” (Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 457 at p. 466, para. 30) do not relate to the interpretation or application of the 38 Preliminary Objections, para. 31; citing Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253, p. 262, para. 29; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 457, p. 466, para. 30; see also 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, Arbitral Award of 8 March 2015 [Chagos Islands Arbitration], para. 220. 39 Chagos Islands Arbitration, para. 220. Pursuant to Article 288 UNCLOS, the jurisdiction of a court or tribunal constituted under Part XIV is limited to “any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with [Part XV]”. 40 Response of Qatar, para. 46. 41 Chagos Islands Arbitration, para. 212. 42 Ibid., paras. 220-221. Annex 26
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13 Convention, however, an incidental connection between the dispute and some matter regulated by the Convention is insufficient to bring the dispute, as a whole, within the ambit of Article 288(1). … The Parties’ dispute regarding sovereignty over the Chagos Archipelago does not concern the interpretation or application of the Convention. For this reason, the tribunal found that it did not have jurisdiction to address the issue. 43. Similarly in Larsen v. Hawaii, an arbitral tribunal declined to exercise jurisdiction in a claim brought by a Hawaiian national against the named respondent, the “Hawaiian Kingdom”, as a pretext for having the tribunal determine the question of who has sovereignty over Hawaii.43 The tribunal determined that the “gist of the dispute” submitted to it was in reality a dispute between each of them and a third party, namely the United States, and that there was no real dispute to be decided as between the two parties.44 The tribunal further held that it could not decide this dispute without evaluating the position of a necessary third party (i.e. the United States).45 44. The purpose of the “real issue” rule is to ensure that a court exercises jurisdiction only over the subject-matter for which States have given their consent under the terms of the agreement by which the parties have conferred jurisdiction upon the court. That this should be so is self-evident when one considers the position of adjudicatory bodies of limited, subject-matter-specific jurisdiction, as is the case for the Council. Such bodies may not, on the one hand, encroach upon the jurisdiction which other (plenary- or specific-jurisdiction) bodies may have over the “real dispute”; nor, on the other hand, may they purport to issue binding and final determinations that could then be invoked before other dispute resolution fora. If an adjudicatory body were to fail to observe these fundamental limits to its role, it would impermissibly compromise the legal position of the disputing parties. 45. Applying the relevant rules here leads only to one conclusion. The Council is not the proper, competent forum for a dispute that turns on whether Qatar has breached multiple obligations that are outside, and different from, the Chicago Convention. That is not a peripheral or ancillary question here. It is, as we now turn to see, the only dispute. The “Real Issue” in this Case, Objectively Assessed, Does Not Concern Civil Aviation D.46. While Qatar has (wrongly) sought to characterise the “real issue” as one concerning the alleged “breach by the Respondents of the Chicago Convention and its Annexes”,46 it does 43 Larsen v. The Hawaiian Kingdom, PCA Case No. 1999-01, Award, 5 February 2001. 44 Ibid., para. 12.8. 45 Ibid., para. 12.15; citing Monetary Gold removed from Rome in 1943, Preliminary Objections, Judgment, I.C.J. Reports 1954, p. 19. 46 Ibid., para. 44. 1400
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14 concede that the dispute is much wider than its claims. Qatar says that “the Council can examine any wider question at the stage of the merits”, including “the allegations that [Qatar] supports terrorism, or terrorism financing etc”.47 Similarly, in its Application, Qatar states that the “real issue” in dispute concerned what Qatar calls an ultimatum that the Respondents gave Qatar “on matters unrelated to air navigation and air transport”.48 Moreover, in responding to the Respondents’ Second Preliminary Objection, regarding Qatar’s failure to negotiate, it is striking that all of the examples Qatar gives of its alleged attempts to negotiate relate to the dispute arising under the Riyadh Agreements and related international obligations.49 It ill-behoves Qatar now to argue that the “real issue” between the parties is a different one, only to serve its tactical purposes in this litigation. 47. By conceding that the dispute between the parties is much wider than its claim, Qatar inches towards accepting the reality of the situation: the dispute is not only broader, it is in fact different from one concerning obligations under the Chicago Convention. The dispute is about Qatar’s failure to abide by – and indeed reneging on – fundamental obligations of a completely different character, namely those relating to counter-terrorism and non-interference in the Respondents’ internal affairs, in violation of the Riyadh Agreements and other international instruments.50 48. At the same time, and contrary to its acknowledgement that the dispute is in fact much wider, Qatar suggests that the “real issue” in dispute is a subjective matter to be decided by Qatar. Qatar goes on to suggest that its characterization binds the Council, which must simply look at Qatar’s Application and Memorial. Qatar says: The “real” issue before the Council is the breach by the Respondents of the Chicago Convention and its Annexes; this is what the Applicant (Qatar) has put before the Council in the Application and Memorial and it is plain and clear what the State of Qatar is requesting from the Council.51 49. But as Qatar admits in discussing the Nuclear Tests ICJ Judgment, it is the “Court’s duty to isolate the real issue in the case and to identify the object of the claim”;52 or, in Qatar’s words, it is for the Court to ascertain objectively “the object of the claim or the relief which [the Applicant] was seeking from the Court”.53 47 Ibid., paras. 76-77. 48 Application (A) by Qatar, para. g. 49 See below, paras. 107-109. 50 Preliminary Objections, paras. 42-63. 51 Response of Qatar, paras. 43-44. 52 Nuclear Test (Australia v. France; New Zealand v. France) Judgment, I.C.J. Reports 1974, p. 352, paras. 29-30. 53 Response of Qatar, para. 44. Annex 26
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15 50. Qatar must thus admit that the question of determining the “real issue” in dispute is an objective one, for the Council to determine.54 The Council cannot simply accept at face value the characterisation of the dispute as Qatar has presented it. It must instead undertake its own analysis to determine the real subject-matter and scope of that dispute; as the Court has recently emphasised, “[t]he matter is one of substance, not of form”.55 If the scope of the dispute that the Council would have to decide goes beyond its jurisdiction under Article 84 of the Chicago Convention, then it must decline to exercise jurisdiction.56 51. Finally, Qatar argues that a defence does not form part of the dispute for the purposes of determining jurisdiction, purporting to rely on the Judgment of the ICJ in the ICAO Council (India v. Pakistan) case.57 The Court in that case noted that the Council could not:58 be deprived of jurisdiction merely because considerations that are claimed to lie outside the [ICAO] 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. … [The ICAO Council’s] competence must depend on the character of the dispute submitted to it and on the issues thus raised – not on the defences on the merits, or other considerations, which would become relevant only after jurisdictional issues had been settled. 52. Qatar’s reliance on this case is misplaced. The case must be viewed in the context of India’s Preliminary Objections to the Council’s jurisdiction, which were that the Chicago Convention and IASTA had been terminated or suspended and a dispute on that score was not one concerning the “interpretation or application” of the relevant ICAO treaties within the meaning of their jurisdictional provisions, meaning that the dispute fell entirely outside the Council’s 54 See Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015, p. 592, p. 602 [Obligation to Negotiate Access to the Pacific Ocean], para. 26 (“It is for the Court itself, however, to determine on an objective basis the subject-matter of the dispute between the parties, that is, to ‘isolate the real issue in the case and to identify the object of the claim.’”). See also Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 3, pp. 26-27, para. 50 (“‘[W]hether there exists an international dispute is a matter for objective determination’ by the Court… [which] ‘must turn on an examination of the facts.’”) (citations omitted); and Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of 6 June 2018, [Immunities and Criminal Proceedings], para. 48 (“it is for the Court itself to determine on an objective basis the subject-matter of the dispute between the parties, by isolating the real issue in the case and identifying the object of the claim”). 55 Immunities and Criminal Proceedings, para. 48 56 Obligation to Negotiate Access to the Pacific Ocean, p. 610, para. 53. 57 Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 46, p. 61, para. 27; Response of Qatar, para. 71. 58 India v. Pakistan, para. 27; Response of Qatar, para. 71. 1402
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16 competence.59 India also sought to argue that the Council did not even have jurisdiction to determine its own jurisdiction,60 a point rejected by the Court.61 But, importantly, it was not India’s case, as is the Respondents’ in the present proceedings, that the real dispute was outside the Council’s jurisdiction. 53. Indeed, the ICAO Council Judgment shows that the Court (and therefore the Council, too) was bound to determine for itself the “real issue” in dispute. The methodology of the Court was first to determine the character of the dispute before it and then to consider whether it disclosed a “disagreement … relating to the interpretation or application” of the Chicago Convention. The Court considered that the proper characterization of the dispute concerned whether or not those treaties had been suspended or terminated. This, the Court held, was a matter falling within the Council’s competence.62 The disputing party that had purported to bind the Council by unilateral determination of the content of the dispute was India in that case. It is Qatar in the present case. 54. The Respondents’ objection in this case is quite different from India’s. The objection asks the Council to recognise that, properly characterised, the “real issue” of the parties’ dispute concerns the compliance by Qatar with international-law obligations that are completely separate to and different from the Chicago Convention. No such objection was considered by the Council or the Court in the India v. Pakistan case. * 55. To conclude, the reason for which the Council cannot exercise jurisdiction has nothing to do with political questions, as Qatar would have the Council believe. Rather, it is the question of how the subject-matter of the dispute between the parties is to be characterised, a matter which it is for the Council (subject to the Court’s supervisory jurisdiction) objectively to determine based on its own assessment of the parties’ pleaded cases. As the Respondents showed in their Preliminary Objections, this dispute is in reality about Qatar’s non-compliance with fundamental duties entirely unrelated to civil aviation, perforce falling outside the Council’s mandate set out in Article 84 of the Chicago Convention. The First Preliminary Objection is Supported by the Principle of Specialty E.56. Qatar’s argument that the principle of specialty is not a basis for a preliminary objection is also misplaced, as the Respondents do not assert it as such.63 Moreover, Qatar’s argument that the 59 See India v. Pakistan, p. 62, para. 29; see also, Memorial of India, I.C.J. Pleadings, Oral Arguments, Documents, 30 August 1971, p. 25, p. 26, para. 5. 60 India v. Pakistan, Judgment, para. 31 (“the Parties are in disagreement as to whether the Treaties ever were (validly) suspended ot replaced by something else; as to whether they are in force between the Parties or not; and as to whether India’s action in relation to Pakistan overflights was such as not to involve the Treaties”.). 61 India v. Pakistan, Judgment, para. 15. 62 India v. Pakistan, p. 64, para. 32. 63 Response of Qatar, para. 49. Annex 26
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17 principle of specialty is at best a matter of admissibility and thus cannot be determined by the Council preliminarily is wrong as a matter of law, for reasons already explained above.64 57. Qatar argues that the ICJ has rejected the principle of specialty as a basis for declining jurisdiction. But the Respondents do not ask the Council to rely on the principle of specialty as a standalone preliminary objection. Rather, the principle of specialty provides an additional rationale for why the Council must decline to determine a dispute that involves issues different from those covered by the ICAO treaties, because it is not competent to decide matters of a State’s compliance with other international law obligations. In other words, the Council’s limited jurisdiction is explicable by the principle of specialty and the two are mutually reinforcing of each other. 58. As already noted, Qatar concedes that adjudication of its claims on the merits will require the Council to determine “on the facts and in law” whether the conditions for the imposition and continuation of the countermeasures have been met. Such a determination will, in turn, require the Council to conduct a detailed factual inquiry into Qatar’s activities in relation to certain terrorist organizations and the domestic affairs of its neighbours and to assess the lawfulness of Qatar’s activities in light of its obligations under, among others, the Riyadh Agreements, the International Convention for the Suppression of the Financing of Terrorism, Security Council Resolution 1373 (2001) and customary international law. Such a factual and legal assessment requires considerable expertise on technical and legal matters. The Council has considerable specialist expertise in the technical aspects of aviation enshrined in the Chicago Convention. But is not well-suited or equipped to handle disputes about violation of sovereignty, breach of the principle of non-intervention, subversion and terrorism.65 The First Preliminary Objection Should Not be Joined to the Merits F.59. Qatar argues that “defences such as countermeasures are to be considered at the stage of the merits, not at the preliminary objections stage”.66 By this statement, Qatar presumably intends to invite the Council to join the Respondents’ objection to the merits. 60. As already explained, the Council is prevented by Article 5(4) of the Rules from joining an objection as to jurisdiction to the merits.67 The Respondents have also demonstrated that, in particular, their First Preliminary Objection concerns the scope of the Council’s jurisdiction under Article 84 of the Chicago Convention, and is therefore a quintessential jurisdictional objection. Therefore the Council need only address the possibility of joining the Respondents’ objections to the merits if it considers that they are to be properly characterised as implicating solely questions of admissibility. In that case, the jurisprudence of the ICJ is relevant to determining whether a matter should be joined to the merits. 64 See above, Part II; Response of Qatar, para. 50. 65 Preliminary Objections, para. 70. 66 Response of Qatar, paras. 73, 75. 67 See above, Part II. 1404
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18 61. In the words of the Court, “[i]n principle, a party raising preliminary objections is entitled to have them resolved preliminarily…”.68 Nevertheless, on occasion, an objection may be found not to have an exclusively preliminary character. In such a case, it may be joined to the merits if compelling reasons justify this. 62. The key considerations for the Council in determining if an objection has an exclusively preliminary character are whether it has “all the facts necessary to rule on” the Respondents’ objections, and whether the objections can be resolved “without determining the dispute, or elements thereof, on the merits”.69 The mere fact that a decision on jurisdiction may touch upon certain aspects of the merits does not mean, of itself, that it must be joined to the merits. 63. Qatar also refers to two cases in which a tribunal or court considered countermeasures at the merits stage, apparently in an attempt to suggest that somehow this means that the Respondents’ objection must be joined to the merits.70 However, in neither of these two cases did the respondent State make preliminary objections, and it was clear that the court or tribunal did in fact have jurisdiction: (a) In the Air Services Agreement arbitral award, the basis of the tribunal’s jurisdiction was a Special Agreement between France and the United States, which expressly submitted to the tribunal both the question of France’s alleged violation of the United States-France Air Services Agreement, and whether the United States had a right to impose the countermeasures it adopted in response.71 Moreover, the invocation of countermeasures by the United States did not alter the “real issue” in dispute, since the countermeasures in question had been confined to suspension of performance of obligations under the Air Services Agreement. Indeed, the tribunal recognised that the countermeasures were part of the “essential circumstances” of the case.72 (b) Similarly, no preliminary objections were raised in the Gabčíkovo-Nagymaros Project case.73 That is unsurprising, as the ICJ’s jurisdiction in that case was likewise based on a Special Agreement between the parties that defined in broad terms the 68 Territorial and Maritime Dispute, p. 852, para. 51. See above, para. 12. 69 Obligation to Negotiate Access to the Pacific Ocean, p. 592, para. 53 (“In the present case, the Court considers that it has all the facts necessary to rule on Chile’s objection and that the question whether the matters in dispute are matters “settled” or “governed” by the 1904 Peace Treaty can be answered without determining the dispute, or elements thereof, on the merits (Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 852, para. 51). Consequently, the Court finds that it is not precluded from ruling on Chile’s objection at this stage”). 70 Response of Qatar, para. 73. 71 Air Services Agreement of 27 March 1946 between the United States of America and France (1978) Vol. XVIII Reports of International Arbitral Awards (RIAA) 417, 418. (Paragraph (B) of the Compromis submitted to the arbitral tribunal the question: “Under the circumstances in question, did the United States have the right to undertake such action as it undertook under Part 213 of the Civil Aeronautics Board’s Economic Regulations?”). 72 Ibid, p. 443, para. 80 (one of the “essential circumstances of the case” concerned “the principle of the legitimacy of ‘counter-measures’”.). 73 Gabčíkovo -Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7. Annex 26
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19 dispute that the Court was required to resolve.74 Again, the purported countermeasures considered by the Court were confined to the non-performance of obligations under the same international agreement as the main claim, so no question as to the “real issue” arose. 64. These cases therefore shed no light on the question as to whether the “real issue” objection made by the Respondents should be joined to the merits. Qatar alleges that this objection, relating as it does to countermeasures, “is not one of jurisdiction or admissibility” because it “goes precisely to the substance or merits of this case”.75 That is, with respect, wrong. 65. The Respondents do not ask the Council to prejudge the lawfulness of their countermeasures, nor is it necessary for the Council to engage with the merits of this question in order to decide their objection as a preliminary matter. Nevertheless, the Respondents provided an overview of their position in order to demonstrate what is the only possible good-faith characterization of the parties’ dispute. Conclusion: The Council Does Not Have Jurisdiction over Qatar’s Claims G.66. Qatar’s solution would be to have the Council determine “any wider question at the stage of the merits”.76 These are the matters that Qatar has so far avoided touching upon at all, as to its financing and support of terrorism and interference in the Respondents’ internal affairs.77 None of these matters falls within the scope of the Council’s jurisdiction under Article 84 of the Chicago Convention. 67. The Respondents’ position has been from the outset that the measures complained of form a part of a package of lawful countermeasures adopted in response to Qatar’s multiple, grave, and persistent breaches of international obligations essential to the security of the Respondents. This is the “real issue” in dispute, and it is one that is clearly not a “disagreement between two or more contracting States relating to the interpretation or application” of the Chicago Convention and its Annexes. The Council does not have jurisdiction to adjudicate on issues that are different from and plainly go beyond the scope of its mandate under Article 84 of the Chicago Convention. 74 Ibid., p. 11, para. 2. 75 Response of Qatar, para. 32. See also Response of Qatar, para. 75. 76 Ibid., para. 76. 77 Ibid., paras. 76-77. 1406
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20 IV. SECOND PRELIMINARY OBJECTION: QATAR FAILED TO SATISFY THE PRECONDITION OF NEGOTIATION IN ARTICLE 84 OF THE CHICAGO CONVENTION AND THE CORRESPONDING PROCEDURAL REQUIREMENT IN ARTICLE 2(G) OF THE RULES Introduction A.68. The Respondents’ Second Preliminary Objection regarding the lack of prior negotiations is based on both Article 84 of the Chicago Convention and Qatar’s non-compliance with the requirement of Article 2(g) of the Rules. 69. Nevertheless, in Qatar’s discussion of the Respondents’ Second Preliminary Objection, Qatar proceeds as if the Respondents’ objections were raised solely by reference to Article 2(g) of the Rules. Qatar’s Response does not directly engage with the fact that the requirement actually arises under Article 84 of the Chicago Convention. Instead, it devotes significant attention at the outset of its discussion to issues which relate solely to the Respondents’ reliance on Article 2(g) of the Rules (which was invoked in addition to and in the alternative to their reliance on Article 84 of the Chicago Convention) and questions of pleading/procedure. In particular, it argues amongst other things, that: (a) The requirement in Article 2(g) of the Rules requiring a statement is a purely formalistic one and Qatar is “at liberty” to amend its pleading or submissions at any time prior to the Council ruling upon the case.78 (b) Qatar in fact attempted negotiations prior to bringing the case to the Council and Qatar is entitled to place these new facts before the Council at this stage.79 70. Further, Qatar does not contest the Respondents’ position that, in its Application and Memorial, Qatar did not indicate that it had attempted to initiate negotiations prior to submitting the case to the Council and that it failed to provide any evidence showing that it had done so.80 71. As explained in the Preliminary Objections, Article 84 of the Chicago Convention is the only possible basis for the Council’s jurisdiction over the disagreements submitted by Qatar to the Council in Application (A); it expressly requires that, to be submitted to the Council, the disagreement must be one “which cannot be settled by negotiation” (emphasis added). 72. The approach chosen by Qatar in its Response is incapable of disguising the fact that it has no real response to the Respondents’ position as to the meaning and effect of Article 84 of the Chicago Convention. In particular, Qatar does not engage with or in any way attempt to contest the position taken by the Respondents in their Preliminary Objections that: 78 Ibid., para. 86. 79 Ibid., para. 98. 80 Preliminary Objections, paras. 100-106. Annex 26
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21 (a) Article 84 of the Chicago Convention contains a precondition of negotiation which constitutes a limit upon the consent of the Contracting States, and which must be satisfied before the Council can have jurisdiction to adjudicate upon a disagreement submitted to it;81 (b) both as a matter of the ordinary meaning of the words of Article 84 of the Chicago Convention, and as a matter of ICJ precedent in relation to similarly worded clauses, the precondition of negotiations “requires – at the very least – a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute”.82 73. Instead, Qatar’s principal argument appears to be that the date on which the condition of negotiation must be fulfilled “is not as settled in law as the Respondents claim”.83 Although Qatar’s position is not clearly stated, the implication from the paragraphs which follow and the decisions relied upon by Qatar84 appears to be that negotiations need not be attempted prior to filing an application with the Council, and that it is sufficient if negotiations are attempted after an Application has been submitted. 74. Qatar’s new position as adopted in its Response not only lacks merit, as discussed below, but is also evidently inconsistent with the position it previously took in its Application. There, Qatar acknowledged that it had not attempted negotiations and instead argued that it was excused from doing so on the basis that any attempt to negotiate would have been futile.85 Qatar now claims to have actually attempted negotiations (although it is notable that none of the multiple press statement and other materials constitutes such an attempt, and it can point to no evidence of any such attempt actually having been made). Qatar’s changing, contradictory and unsubstantiated position lacks credibility. 75. Qatar also makes reference, in general terms, to other matters relating to the content of the requirement of negotiations. None of these matters, however, assist it: 81 Ibid., paras. 80-89. 82 Ibid., paras. 90-94. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, I.C.J. Reports 2011, p. 70 [Application of the International Convention on the Elimination of All Forms of Racial Discrimination], p. 132, para. 157; see also Questions Relating to the Obligation to Extradite or Prosecute (Belgium v. Senegal), I.C.J. Reports 2012, p. 422 [Questions Relating to the Obligation to Extradite or Prosecute], p. 446, para. 57; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017 [Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination], para. 43. See also Mavrommatis Palestine Concessions, 1924, PCIJ, Series A, No. 2, p. 13 (quoted in Response of Qatar, para. 95), where the Permanent Court’s discussion of when the precondition of negotiation might be held to be fulfilled proceeded on the basis that, at a minimum, “discussion should have been commenced”. 83 Response of Qatar, para. 99. 84 Ibid., paras. 100-101. 85 Application (A) by Qatar, para. g. 1408
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22 (a) Qatar’s observations in relation to the duration of negotiations86 depend on a mischaracterisation of the Respondents’ case and attacking a position that the Respondents did not take. The Respondents did not argue, as Qatar attempts to suggest, that there is any minimum duration for negotiations. Qatar’s arguments in this regard are an attack on a straw man and entirely irrelevant. (b) Qatar’s discussion as to the content of the discussions required in order to qualify as negotiations87 likewise goes nowhere. Although suggesting that Qatar “did not have to refer to the Chicago Convention and its Annexes in its negotiations or attempts to negotiate with the Respondents”88, Qatar is nevertheless forced, in light of the relevant decisions of the ICJ, to accept the Respondents’ position that, in order to satisfy the precondition of negotiations, any attempt to initiate negotiations must relate to the subject-matter of the dispute and must concern the substantive obligations contained in the treaty in question.89 As discussed further below, contrary to Qatar’s assertions, none of the statements relied upon by Qatar show that it ever in fact did so. Under Article 84 of the Chicago Convention the Condition of Prior Negotiations Must Be B.Satisfied Before an Application Is Made to the Council 76. On the express terms of Article 84 of the Chicago Convention, a disagreement between two or more contracting States as to the interpretation or application of the Chicago Convention may only be submitted to the Council if the disagreement “cannot be settled by negotiation”. Further, and importantly, in terms of its context within Article 84 as a whole, that requirement precedes the words “on the application of any State concerned in the disagreement”. 77. As such, on its ordinary meaning, Article 84 clearly envisages a specific sequence of steps to be taken. First, an attempt to settle the disagreement by negotiations must be made. Second, where those negotiations cannot result in a settlement of the disagreement, any of the States concerned may then make an application submitting the disagreement to the Council for decision. The steps are consecutive and the Council has jurisdiction to consider and render a decision on a disagreement only if there has been compliance with those steps. 78. Qatar’s implicit suggestion90 that it is sufficient if negotiations are attempted after the Application has been filed finds no support in the text of Article 84 of the Chicago Convention, and notably Qatar puts forward no other support for its position. Instead, the approach suggested by Qatar is in direct contradiction to what is required by Article 84, 86 Response of Qatar, paras. 103-108. 87 Ibid., paras. 109-110. 88 Ibid., para. 110. 89 See Preliminary Objections, paras. 95-96. See e.g. Application of the International Convention on the Elimination of All Forms of Racial Discrimination, p. 133, para. 161. 90 Response of Qatar, para. 99. Annex 26
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23 pursuant to which an attempt to negotiate must precede the making of an application to the Council. 79. In this context, Qatar’s suggestion that “negotiations are futile and the parties are deadlocked, and that the disagreement cannot be settled by negotiations”,91 attempts to ignore the holding of the ICJ in Application of the International Convention on the Elimination of All Forms of Racial Discrimination, as affirmed in subsequent decisions, that the requirement of negotiations in provisions such as Article 84 “requires—at the very least—a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute.”92 In light of this, it is impermissible for Qatar not to make any attempt to negotiate and then simply to assert that any negotiations, if attempted would have been futile – an attempt must at the least have been made. 80. Qatar’s reliance on the decisions in South West Africa and Mavrommatis93 in this regard does not assist it insofar as both decisions concerned cases in which there was in fact held to have been negotiations between the parties,94 and the observations in the passages relied upon by Qatar are to be read against that background. For instance, in South West Africa, in the passage immediately preceding that quoted by Qatar, the Court observed: in the present cases, it is evident that a deadlock on the issues of the dispute was reached and has remained since, and that no modification of the respective contentions has taken place since the discussions and negotiations in the United Nations.95 81. Further, to the extent that the passages from Mavrommatis relied upon by Qatar may be understood as constituting statements of principle applicable more generally independent of the specific facts of the case, they are fully consistent with the Respondents’ position; notably, in the passage quoted by Qatar, the Permanent Court observed that “it may suffice that discussions should have been commenced, and that this discussion may have been short; this will be the case where a deadlock is reached, or if finally a point is reached, at which one of the Parties definitely declares himself unable, or refuses, to give way”.96 The Permanent Court was thus clearly proceeding on the basis that some effort to initiate negotiations should at least 91 Response of Qatar, para. 210. 92 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, p. 132, para. 157; see also Questions Relating to the Obligation to Extradite or Prosecute, p. 446, para. 57; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, para. 43. 93 Response of Qatar, para. 209; cf. ibid., paras. 95-97. 94 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, I.C.J. Reports 1962, p. 319, at p. 345-346 (where the Court observed that there had been collective negotiations in the context of the United Nations); Mavrommatis Palestine Concessions, 1924, PCIJ, Series A, No. 2, p. 14. 95 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objectionss, I.C.J. Reports 1962, p. 319, at p. 346 (emphasis added). 96 Mavrommatis Palestine Concessions, 1924, PCIJ, Series A, No. 2, p. 13 (emphasis added); quoted in Response of Qatar at para. 95. 1410
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24 have been attempted, before deadlock was then reached; it was not suggesting that, in the absence of any attempt at negotiations whatsoever, it was permissible to infer that any such negotiations would necessarily have been futile.97 82. As noted above, Qatar suggests that the date on which the prior negotiation condition must be met is “not as settled in law as the Respondents claim”.98 In support, it refers to the ICJ’s decision in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) and to the dissenting opinion of five ICJ judges in Application of the International Convention on the Elimination of All Forms of Racial Discrimination.99 83. As set out in the Respondents’ Preliminary Objections, however, it is well-established in international law that matters impacting upon jurisdiction must, in principle, be established as at the date of the commencement of an action.100 In this regard, it bears noting that in Application of the International Convention on the Elimination of All Forms of Racial Discrimination, the Court concluded that the requirements contained in the jurisdictional clause in Article 22 of the Convention on the Elimination of Racial Discrimination [CERD] (including the precondition of negotiation) constituted “preconditions to be fulfilled before the seisin of the Court”,101 and, further that it “imposes preconditions which must be satisfied before resorting to the Court”.102 84. Similarly, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), the Court reiterated what it regarded as: the general rule […] namely “the jurisdiction of the Court must normally be assessed on the date of the filing of the act instituting proceedings.” […] it is normally by reference to the date of the filing of the instrument instituting proceedings that it must be determined whether those conditions are met.103 85. The decision upholding Russia’s preliminary objection based on a failure to comply with a requirement of prior negotiations in Application of the International Convention on the Elimination of All Forms of Racial Discrimination is the most recent decision of the ICJ which 97 See also e.g. South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, I.C.J. Reports 1962, p. 319, at p. 346 (quoted in Response of Qatar at para. 97, where the Court framed the test for deadlock as being that “no reasonable probability exists that further negotiations would lead to a settlement” [emphasis added]. 98 Response of Qatar, para. 99. 99 Ibid., paras. 100-101. 100 Preliminary Objections, para. 25. 101 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, p. 128, para. 141 (emphasis added). 102 Ibid., p. 130, para. 148 (emphasis added). 103 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, p. 437, para. 79. Annex 26
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25 deals with the question and constitutes the most authoritative current pronouncement by the Court in this regard. 86. Notably, Qatar, whilst relying on and quoting at considerable length from the dissenting opinion in Application of the International Convention on the Elimination of All Forms of Racial Discrimination, omits to make any mention of the decision of the Court itself. Qatar’s attempt to ignore the opinion of the Court is unsurprising given that it is directly at odds with its position. In particular, the Court: (a) reviewed prior cases concerning compromissory clauses containing a comparable requirement of prior negotiations; (b) noted that in each of those cases the Court had interpreted the reference to negotiations as constituting a precondition to seisin; and (c) held unambiguously that the precondition of negotiation had to be fulfilled before the seisin of the Court.104 87. As noted in the Respondents’ Preliminary Objections, the formulation of Article 84 of the Chicago Convention is similar to that of Article 22 of the CERD.105 Given the close similarities in language between the two provisions, there is no basis (and Qatar has suggested none) on which to conclude that Article 84 of the Chicago Convention establishes a rule different in effect than that in Article 22 of CERD with respect to when the precondition of negotiation must be met. 88. Further, the policy reasons identified by the Court in Application of the International Convention on the Elimination of All Forms of Racial Discrimination as underlying the precondition of negotiation106 are equally relevant in the context of Article 84 of the Chicago Convention in this case. First, by requiring that an applicant must attempt negotiations prior to submitting an application to the Council, Article 84 of the Chicago Convention ensures that a respondent has notice of the dispute and of its scope. Second, the precondition requires parties first to explore mutually acceptable solutions to the dispute thereby avoiding adjudication by the Council. Finally, the prior negotiations requirement represents an express limit on the Council’s jurisdiction as agreed to by the parties to the Chicago Convention; that limitation is one to which the Council is bound to give effect. 89. Quite apart from the fact that the dissenting opinion in Application of the International Convention on the Elimination of All Forms of Racial Discrimination is obviously inconsistent 104 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, p. 128, para. 141. 105 See Preliminary Objections, para. 85. 106 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, pp. 124-125, para. 131; and see Preliminary Objections, para. 82. 1412
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26 with the decision of the Court in this respect, Qatar in any case significantly overstates the views of the dissenting judges and their relevance to the present case. 90. First, the dissenting judges expressly recognised that the Court: has consistently interpreted compromissory clauses providing for the submission to the Court of disputes which ‘cannot be settled’ (in French : ‘qui ne peuvent pas être réglés’ or ‘qui ne sont pas susceptibles d’être réglés’) by negotiation as meaning that the Court cannot exercise jurisdiction unless an attempt at negotiation has been made and has led to deadlock, that is to say that there is no reasonable hope — or no longer any — for a settlement of the dispute by diplomatic means. This line of case law dates back to the Judgment in the Mavrommatis Palestine Concessions case …107 91. Second, the dissenting judges made clear their view that the question of whether the dispute could not be settled by negotiations was fact-specific. In that case, the Court emphasised that “any reasonable possibility of settling the dispute by negotiation had been exhausted by the date on which the proceedings were instituted, so that the conditions on the Court’s exercise of its jurisdiction were satisfied”. 108 By contrast, in the present case, Qatar has failed to demonstrate unequivocally that all possibility of setting the dispute had been exhausted when the proceedings were instituted. 92. Third, Qatar mistakenly seizes on the statement of the dissenting judges that the decision was “the first in which the Court has found that it lacks jurisdiction solely on the basis that a condition of prior negotiation has not been fulfilled”.109 It thereafter suggests that Application of the International Convention on the Elimination of All Forms of Racial Discrimination, is “the only case where the Court did not find jurisdiction because of the negotiation condition”,110 and that “in every single case, bar one […] where the question arose before the ICJ, it decided that the condition of negotiation has been met”.111 93. Qatar, however, misunderstands what the dissenting judges were saying, and as a result is mistaken insofar as it asserts that the Court had never, prior to Application of the International Convention on the Elimination of All Forms of Racial Discrimination, declined jurisdiction on the basis of a failure to comply with an express requirement of prior negotiation. 94. For instance, in Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v. Rwanda), the DRC had relied upon multiple and disparate jurisdictional bases under various 107 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, p. 83, para. 28. 108 Ibid., p. 83, para. 28. 109 Ibid., p. 100, para. 63, quoted at Response of Qatar, para. 101. 110 Response of Qatar, para. 107. 111 Ibid., para. 210. Annex 26
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27 treaties in an attempt to found the jurisdiction of the Court over its claims. The jurisdictional bases relied upon included the compromissory clause contained in Article 29 of the Convention on the Elimination of All Forms of Discrimination against Women [CEDAW], which requires any dispute “which is not settled by negotiation” to be submitted to arbitration and confers jurisdiction on the ICJ in the event that an arbitration cannot be organised within six months of a request for arbitration being made. 95. The Court rejected the DRC’s attempt to found the jurisdiction of the Court upon Article 29 of CEDAW on the twin grounds that “the evidence has not satisfied the Court that the DRC in fact sought to commence negotiations in respect of the interpretation or application of the Convention”,112 and that the DRC had made no attempt to initiate arbitration proceedings.113 96. Similarly, in the same case, the DRC had also attempted to base the Court’s jurisdiction on the compromissory clause contained in Article 75 of the WHO Constitution, which gives the ICJ jurisdiction over “Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly…”. The Court likewise found it had no jurisdiction, inter alia, on the basis that the DRC had: not proved that the other preconditions for seisin of the Court established by that provision have been satisfied, namely that it attempted to settle the question or dispute by negotiation with Rwanda.114 97. Qatar’s attempt to rely on the dissenting opinion in Application of the International Convention on the Elimination of All Forms of Racial Discrimination, and to disregard the decision of the Court on this point, is thus self-evidently flawed. 98. The other basis put forward by Qatar for its assertion that the date on which the conditions for the Court’s jurisdiction must be fulfilled is not “settled in law” is the decision of the Court in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia); there the Court did not treat the fact that a precondition for its jurisdiction had been fulfilled only subsequent to the filing of the application instituting proceedings as depriving it of jurisdiction over the claim. That decision, however, provides no support for Qatar’s position. 99. First, the unfulfilled condition upon the filing of the Application in the Croatia v. Serbia case was one going to the Court’s jurisdiction ratione personae under its Statute; as such, the decision there is not on point because this case concerns the non-fulfillment of an express precondition contained in the compromissory clause which forms the basis for the Council’s jurisdiction. 112 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, ICJ Reports 2006, p. 6, pp. 40-41, para. 91. 113 Ibid., pp. 40-41, para. 92. 114 Ibid., p. 43, para. 100. 1414
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28 100. Second, and by contrast, in the subsequent decision in Application of the International Convention on the Elimination of All Forms of Racial Discrimination, the Court, over the dissent of five judges upon which Qatar strongly relies, found that it was without jurisdiction and declined to apply that approach to an express requirement of prior negotiations contained in a compromissory clause. The Court’s decision in this regard is directly on point here, and provides clear authority for the proposition that an express jurisdictional requirement of prior negotiations contained in a compromissory clause must be complied with prior to submission of a dispute under the relevant dispute resolution mechanism. 101. There are strong policy reasons underlying the decision of the Court in Application of the International Convention on the Elimination of All Forms of Racial Discrimination, and for the Council to give effect to the requirement of negotiations in Article 84 of the Chicago Convention. As the ICJ held as regards the equivalent requirement in Article 22 of the CERD, such requirements constitute an express limitation on the consent of Contracting States, and must therefore be fulfilled prior to the filing of an application.115 As a consequence, the Council has no authority to override or bypass it; if the precondition is not fulfilled, the only conclusion can be that the Council is without jurisdiction. 102. Moreover, if the Council were to accept jurisdiction on the basis that the applicant could subsequently seek negotiations and re-submit the application, it would have the effect of rendering the requirement of prior negotiations in Article 84 nugatory, since applicants would have no incentive to attempt negotiations prior to submitting a dispute to the Council, as the failure to do so would not trigger any consequences. If such an approach were adopted, no applicant would ever bother to attempt negotiations and the purposes justifying the inclusion of such a requirement would be fundamentally undermined. 103. Third, and in any event, Qatar quotes selectively also from the decision in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), including by omitting to set out statements by the Court that directly contradict the position adopted by it in this case. In particular, immediately before the first passage quoted by Qatar at paragraph 100 of its Response, the Court confirmed that, in principle, jurisdictional conditions must be satisfied as at the time of the filing of an application; the ICJ observed that: it must be emphasized that a State which decides to bring proceedings before the Court should carefully ascertain that all the requisite conditions for the jurisdiction of the Court have been met at the time proceedings are instituted. If this is not done and regardless of whether these conditions later come to be fulfilled, the Court must in principle decide the question of jurisdiction on the basis of the conditions that existed at the time of the institution of the proceedings.116 115 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, p. 128, para. 141. 116 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, p. 438, para. 80. Annex 26
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29 104. In the present case, Qatar, by its own acknowledgement, did not “carefully ascertain that all requisite conditions for the jurisdiction” of the Council had been met at the time it instituted the proceedings.117 As a consequence, it has failed to comply with an express precondition to the jurisdiction of the Council, and the Respondents’ preliminary objection to the jurisdiction must be upheld. Qatar Has Failed to Establish that It Attempted Negotiations C.105. In any event, Qatar has failed to demonstrate that it in fact made any attempt to initiate negotiations as required by Article 84 of the Chicago Convention. 106. As noted earlier, Qatar’s position on whether it attempted negotiations prior to making its Application has changed and is inconsistent. Whereas, in its Application and Memorial, Qatar acknowledged that it had not attempted negotiations (and attempted to justify its non-compliance with the express requirements of Article 84 on the basis that any such attempt would have been futile), in its Response it conveniently changes its position and now argues that it did in fact attempt negotiations. Qatar’s changing and inconsistent position lacks credibility. In any event, its new position is unsupported by the factual record it puts forward, insofar as none of the alleged instances of “negotiations” mentioned by Qatar in its Response satisfy the requirements of Article 84 of the Chicago Convention. 107. Moreover, Qatar has in its Response strongly contested the Respondents’ view that the “real issue” in this case concerns wider matters that are outside the Council’s jurisdiction. Qatar argues instead that the “core issue” in this case “is the disagreement relating to the interpretation or application of the Chicago Convention and its Annexes”.118 108. If however, the present dispute is to be understood as relating solely to breaches of the Chicago Convention and its Annexes, as Qatar alleges, then it follows that the required attempt to negotiate must relate specifically to the alleged breach of the Chicago Convention and its Annexes. Yet, none of the statements offered by Qatar as evidence of negotiations or of attempts at negotiation refers to the Chicago Convention and its Annexes. They are entirely general statements as to Qatar’s alleged willingness “to sit and talk”119 or the “importance of dialogue”.120 109. Qatar cannot have it both ways. It cannot claim that the dispute does not involve wider issues in its responses to Respondents’ countermeasures argument, while arguing, at the same time, that vague references to a broader political dialogue or mediation satisfy the requirement of prior negotiations. If Qatar seeks to insist that the dispute is not about the wider issues between the parties, it must necessarily concede that it failed to comply with the prior negotiations 117 Ibid., p. 438, para. 80. 118 Ibid., paras. 43-44; see also above, para. 48. 119 Ibid., para. 128. 120 Ibid., para. 162. 1416
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30 requirement in Article 84. Conversely, if Qatar claims that the references to a broader political dialogue satisfy the prior negotiations requirement in Article 84, it must necessarily concede that the dispute is about wider issues that fall outside the Council’s jurisdiction. 110. In any case, as will become apparent, Qatar has failed to attempt any negotiations with the Respondents regardless of how the subject-matter of the dispute is to be construed. 111. It is convenient first to deal with Qatar’s reliance on events within proceedings before ICAO and the World Trade Organization [WTO] as constituting the requisite attempt to negotiate, before dealing with the various other materials relied upon by Qatar in this regard. (1) There were no negotiations nor attempts to negotiate within ICAO 112. Qatar alleges that “there has [sic] been negotiations between the parties within the framework of ICAO”.121 This is a gross mischaracterization of the events that took place within ICAO, including in the proceedings pursuant to Article 54(n) of the Chicago Convention. At no point in these proceedings did any negotiations take place, nor did Qatar attempt to initiate any such negotiations before ICAO. 113. In support of its allegation, Qatar refers to: (i) six letters written by Qatari authorities to the President of the Council or the ICAO Secretary General; and (ii) the record of Council’s Extraordinary Session of 31 July 2017.122 None of these documents constitute evidence of prior negotiations. 114. As regards the six letters referred to by Qatar,123 these were addressed to either the Council President or to the Secretary-General of ICAO. Nowhere in these letters is there an invitation to negotiate addressed to Respondents, and Qatar does not attempt to explain how letters not addressed to Respondents could constitute such an invitation. As a consequence, the letters cannot be regarded as constituting a “genuine attempt to negotiate”. 115. As for the discussion at the Council Extraordinary Session of 31 July 2017, held pursuant to Qatar’s request under Article 54(n) of the Chicago Convention, at no point did Qatar indicate that it was pursuing negotiations under Article 84 of the Chicago Convention, and at no point did any such negotiations take place. Further, Qatar’s requests were directed to the Council and not to Respondents. This is clear from the action requested in Qatar’s Working Paper (C-WP/14541), which provided: PROPOSED ACTION BY THE COUNCIL 3.1 The Council is invited to: 121 Response of Qatar, para. 120. 122 See ibid., paras. 113, 120. 123 Ibid., para. 112. Annex 26
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31 a) urge the Blocking States to lift all the restrictions over the high seas to accommodate traffic flow within their respective FIRs for Qatar departures and arrivals. Alternatively; b) provide alternative routes/route segments to transit through airspace over the high seas; and c) urge the Blocking States which are Contracting Parties to the International Air Services Transit Agreement 1944, to comply in good faith with their obligations concerning over-flight freedom stipulated in this multilateral treaty in order to allow Qatar-registered aircraft to resume normal transit flights within the airspace of the Arab Republic of Egypt, the Kingdom of Bahrain and the United Arab Emirates. 116. None of these actions proposed by Qatar constitutes an attempt to negotiate with Respondents. On the contrary, the request seeks to obtain the imposition of a particular remedial result via the Council. 117. Qatar also mischaracterises the course of events insofar it attempts to rely on the fact that Respondents participated in the Council Extraordinary Session and offered a response to Qatar’s allegations.124 As explained in Respondents’ Preliminary Objections, the ICJ has distinguished negotiations from assertion by States of their respective positions or views: In determining what constitutes negotiations, the Court observes that negotiations are distinct from mere protests or disputations. Negotiations entail more than the plain opposition of legal views or interests between two parties, or the existence of a series of accusations and rebuttals, or even the exchange of claims and directly opposed counter-claims. As such, the concept of “negotiations” differs from the concept of “dispute”, and requires—at the very least—a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute.125 118. Thus, the fact that Respondents may have replied to and contested Qatar’s allegations in the context of the Article 54(n) proceedings does not establish that there were negotiations, nor that Qatar had attempted negotiations. 119. It is to be noted that Qatar has abandoned, and no longer places any reliance upon the supposed “conference call with officials of the Respondents” which allegedly took place on 5-6 June 2017 and which was relied upon in its Memorial.126 Nevertheless, Qatar now attempts to suggest that the meetings coordinated by the ICAO MID Regional Office to review contingency routes in some manner satisfied the requirement of prior negotiations under 124 Ibid., paras. 113-120. 125 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, p. 132, para. 157; see also Questions Relating to the Obligation to Extradite or Prosecute, p. 446, para. 57; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, para. 43. 126 See Application (A) and Memorial of the State of Qatar, sec. (g). 1418
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32 Article 84. However, these were discussions at technical level that did not address the disagreement between the parties relating to the interpretation or application of the Chicago Convention or its Annexes, or the wider issues that form part of the dispute. Nor can it be said that these discussions involved an attempt by Qatar to negotiate with a view to settling the disagreement before submitting the dispute to the Council. 120. In any event, as reflected in the summary of the session, the Council: (a) repeatedly emphasised the “technical” nature of the discussions;127 and (b) was careful to emphasise “the need to clearly differentiate between any actions that it, as a governing body, might consider taking in relation to Article 54 n) of the Convention on International Civil Aviation … and any actions that it might consider taking in relation to Article 84 thereof, which provided a process for the settlement of any disagreement between Contracting States concerning the interpretation or application of the Convention and its Annexes which cannot be settled by negotiation”.128 121. To conclude, Qatar has failed to establish that any negotiations within the meaning of Article 84 of the Chicago Convention took place or were attempted within the framework of ICAO. (2) The proceedings commenced before the WTO against Bahrain, Saudi Arabia and the UAE do not constitute negotiations for the purposes of Article 84 of the Chicago Convention 122. Qatar also relies upon the requests for consultations addressed to Bahrain, Saudi Arabia, and the UAE in the context of the WTO. As an initial point, Qatar did not request consultations within the WTO with the Arab Republic of Egypt. Thus, there is no basis on which Qatar can allege that the requests for consultations constitute an attempt to negotiate with the Arab Republic of Egypt.129 As for the other three Respondents, the requests for consultations within the WTO do not satisfy the requirement of negotiation in Article 84 of the Chicago Convention. 123. As discussed above and in the Respondents’ Preliminary Objections, Article 84 of the Chicago Convention requires that the complaining party attempt prior negotiations with respect to any disagreement “relating to the interpretation or application of [the Chicago] Convention and its Annexes”. 124. The requests for consultations made by Qatar in the WTO concern a different dispute to that submitted to the Council, which Qatar argues concerned only the interpretation or application of the Chicago Convention or its Annexes; as such, they cannot satisfy the prior negotiations requirement of Article 84. In particular, in its requests for consultations, Qatar raised concerns 127 C-DEC Extraordinary Session (2017), paras. 1, 3, 6, 8, 9. 128 Ibid., para. 2 (emphasis added). 129 Cf. Response of Qatar, para 126, where Qatar implicitly acknowledges that this is the case. Annex 26
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33 only that the various measures taken by Respondents (including the airspace closures) were inconsistent with their “obligations under the WTO covered agreements”,130 and then purported to raise claims under the General Agreement on Tariffs and Trade 1994, the General Agreement on Trade in Services, and the Agreement on Trade-related Aspects of Intellectual Property Rights. 125. While the requests for consultations admittedly refer, amongst other things, to the prohibition of Qatari aircraft accessing the Respondents’ airspace and the restriction on flights to and from Respondents respective territories operated by aircraft registered in Qatar, they make no reference to the alleged breaches of the Chicago Convention, which Qatar argues constitutes the “disagreement” in the present case.131 126. As noted above, however, the case-law of the ICJ makes clear that “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”.132 Thus, if Qatar is correct that the subject-matter in this case concerns the interpretation or application of the Chicago Convention or any allegation of breach by the relevant Respondents, this is clearly different to from the subject-matter of the WTO requests for consultations, such that those requests cannot and do not satisfy the requirement of prior negotiation of Article 84 of the Chicago Convention. However, even on the Respondents’ case, that the “real issue” concerns Qatar’s compliance with its international obligations, any discussions within the WTO do not satisfy the precondition of negotiations, as they also did not concern the “real issue” of Qatar’s breaches of international law. (3) Qatar has not otherwise demonstrated that it attempted to negotiate with the Respondents 127. In addition to its reliance on events within ICAO and the WTO, in its Response, Qatar sets out a long list of press statements, interviews, and statements allegedly made to officials of third States in its attempt to show that it attempted to negotiate with the Respondents. Even if those statements were in fact made, and the reports of them put forward by Qatar are true and accurate, these self-serving statements do nothing to support Qatar in meeting its burden of showing that there was a “genuine attempt” by it to settle the disagreement or dispute by negotiations prior to submission to the Council. Moreover, it is striking that all of these so-called attempts to negotiate appear to relate to the crisis as a whole, thereby contradicting Qatar’s claim that this dispute is restricted to the Chicago Convention and its Annexes only. 130 See WT/DS526/1, para. 9; WT/DS527/1, para. 9; WT/DS528/1, para. 9. 131 Response of Qatar, para. 43. 132 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, p. 133, para. 161; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, para. 43. 1420
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34 128. Qatar itself admits that there were “few direct contacts between the parties”,133 and this is borne out by the Exhibits. In particular, the vast majority of the statements relied upon were either supposedly made to third parties (and subsequently reported by the media) or constitute press releases issued by Qatar to the world at large. 129. Further, and in any case, a significant proportion of the statements (in particular those set out at paragraphs 190-200 and at Exhibits 75 to 85) were made after the date of filing of Qatar’s Application on 30 October 2017. As explained above, such statements cannot fulfill the requirement that an attempt should have been made to negotiate prior to the submission of the disagreement to the Council. As such, these statements are entirely irrelevant also on this ground. 130. Further, none of the statements relied upon by Qatar refers to the issues relating to the interpretation and application of the Chicago Convention, which, in Qatar’s view, constitutes the disagreement between the parties, or even more generally to aviation matters. The statements relied upon thus fail to satisfy the test articulated by the ICJ in Application of the International Convention on the Elimination of All Forms of Racial Discrimination and affirmed in subsequent cases pursuant to which “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”.134 131. Examination of Qatar’s Response and the accompanying exhibits merely confirm the clear absence of any “genuine attempt” by Qatar to settle the disagreement by negotiation with the Respondents. Instead, it is clear that the tactic adopted by Qatar was to publicly assert its openness to dialogue and its willingness to negotiate, but then to take no concrete steps to actually attempt to initiate negotiations. 132. The only instance of alleged direct contact with any of the Respondents relied upon by Qatar, occurring prior to the filing of the Application on 30 October 2017, is a purported telephone conversation between Qatar and the Kingdom of Saudi Arabia on 8 September 2017. 133. No official Qatari source is cited by Qatar in this regard, and Qatar relies only on press reports as to the supposed content of the conversation. At a minimum, one would have expected Qatar’s assertion as to the content of the call to have been backed up by a transcript or contemporaneous note, or an official statement from Qatar. By contrast, a contemporaneous official Saudi Press Release immediately contested the Qatari reports as to the call’s content. Qatar’s unsupported assertions as to the contents of the call are an insufficient basis for the Council to reach any findings of fact in this regard. 133 Response of Qatar, para. 176. 134 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, p. 133, para. 161; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, para. 43. Annex 26
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35 134. In any event, it is notable that Qatar does not itself claim that it offered to negotiate in that phone call, nor does it offer a direct account of the contents of the call. Further, and whilst the contents of the call are disputed, it is striking how tentative Qatar is as to the contents of the conversation between the Emir of Qatar and the Crown Prince of the Kingdom of Saudi Arabia, limiting itself to stating that “it seems both stressed the need to resolve the crisis by sitting down to dialogue”.135 135. It is notable that Qatar does not assert, and neither party at any point claimed (or is reported as having claimed) that there had been any specific discussion as to the subject of compliance with relevant international obligations in the field of civil aviation, including in particular obligations under the Chicago Convention and the International Air Services Transit Agreement. 136. Even if the content of the discussion were as Qatar suggests in its Response (which is not admitted), such a discussion as to the need for dialogue, couched in the most general terms, and in the context of a far-wider dispute between the parties, self-evidently does not constitute either negotiations in relation to the interpretation or application of the Chicago Convention or an attempt to initiate negotiations in that regard. Therefore, even if Qatar is correct that the subject-matter of this dispute concerns only the Chicago Convention, it admits that it has not satisfied the precondition of negotiation in this respect. 137. In any event, even putting matters at their highest, the purported phone call on 8 September 2017 was only with Saudi Arabia, and there is no suggestion by Qatar or any evidence that Qatar at any point attempted to contact any of the other Respondent States in order to seek to negotiate. Neither did it make any genuine attempt to do so through other channels, such as via Kuwait. (4) Qatar Has Publicly Taken the Position that It Was not Willing to Negotiate with the Respondents 138. Qatar alleges in its Response that it has on “innumerable occasions requested to negotiate” with the Respondents.136 As discussed above, that assertion is not borne out by the record. In fact, the reality is that Qatar has made conflicting statements about its willingness to engage in negotiations. 139. For example, Qatar’s Foreign Minister was quoted as stating in early June 2017: “[On] decisions that affect Qatari sovereignty and foreign policy outside the collective security of the GCC, we do not accept any dictates and we 135 Response of Qatar, para.176 (emphasis added). 136 Ibid., para. 202. 1422
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36 will not negotiate about them” or even discuss them, he said in response to a question about the fate of al-Jazeera. . .”.137 140. Further, the Qatari Foreign Minister is reported to have declared that Qatar would not negotiate with its neighbors to resolve the Gulf dispute unless they first lifted the trade and travel boycott they had imposed.138 141. In this regard, the Qatari Foreign Minister made it clear that Qatar was unwilling to negotiate until its preconditions had been met: “Qatar is under blockade, there is no negotiation. They have to lift the blockade to start negotiations,” Sheikh Mohammed bin Abdulrahman Al Thani told reporters on Monday, ruling out discussions over Qatar's internal affairs, including the fate of the Doha-based Al Jazeera Media Network. “Until now we didn't see any progress about lifting the blockade, which is the precondition for anything to move forward,” he added.139 142. Further, in its Response, Qatar itself refers to an interview from July 2017, in which its Foreign Minister stated that “any demand that affects the sovereignty of the State of Qatar would not be discussed”.140 143. As the statements quoted above demonstrate, Qatar’s contentions regarding its willingness to negotiate are contradicted by the public statements made by its own Minister of Foreign Affairs. 144. In this regard, Qatar’s original “Application” and “Complaint” dated 8 June 2017, and accompanying Memorials are also of significance. Surprisingly, Qatar omits to mention these documents when cataloguing its various communications to ICAO from June 2017, and despite the fact that they are mentioned in its letters of 13 June 2017.141 Those applications proved abortive; they were rejected by the ICAO Secretariat as failing to comply with the formal requirements of the Rules, and as a result, proceedings were not formally commenced. 137 Exhibit 24, Qatari FM: We will not negotiate al-Jazeera or our foreign policy with Gulf countries, THE NEW ARAB (10 June 2017), https://www.alaraby.co.uk/english/news/2017/6/10/qatar-says-al-jazeera-…. 138 Exhibit 25, T. Finn & J. Irish, Qatar says it will not negotiate unless neighbors lift 'blockade', REUTERS (19 June 2017), https://www.reuters.com/article/us-gulf-qatar/qatar-says-it-will-not-ne…. 139 Exhibit 26, Qatar FM: We won't negotiate until blockade is lifted, AL JAZEERA (19 June 2017), https://www.aljazeera.com/news/2017/06/qatar-fm-won-negotiate-blockade-…. 140 Response of Qatar, para. 154, Qatar Exhibit 41. 141 Response of Qatar: Qatar Exhibit 4 Letter from Qatar to Secretary General of ICAO, 13 June 2017 (ref. 2017/15993); Qatar Exhibit 5 Letter from Qatar to Secretary General of ICAO, 13 June 2017 (ref. 2017/15994); see also Qatar Exhibit 6: Letter from Qatar to Secretary General of ICAO, 15 June 2017 (ref. 2017/15995). Annex 26
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37 145. Nevertheless, it bears noting that the sections of those documents apparently intended to comply with the requirements of Article 2(g) of the Rules and to substantiate compliance with the requirement of prior negotiation under Article 84 of the Chicago Convention confirm that Qatar had already at that stage, very shortly after the adoption of the airspace closures, formed the view that, in light of the breaking-off of diplomatic relations, “negotiations are no longer possible”. 142 Qatar’s position is likewise apparent from its Request under Article 54(n) of the Chicago Convention, dated 15 June 2017, which contains a similar statement.143 (5) Conclusion 146. It is clear that Qatar set its mind against attempting to initiate negotiations with the Respondents; the evidence put forward by Qatar itself demonstrates that, thereafter, in accordance with that position, it in fact made no genuine attempt to so initiate negotiations prior to filing its Application (as was required) or even subsequently. 147. Even if Qatar were able to rely upon an attempt to negotiate occurring after the filing of the Application (which is denied for the reasons set out above), in these circumstances the only conclusion that can be drawn is that Qatar has failed to comply with a necessary precondition to the jurisdiction of the Council. As a consequence, the Council should find that it is not competent to adjudicate upon Qatar’s claims, and dismiss Qatar’s Application on that basis. V. SUBMISSIONS FOR RELIEF 148. The submissions for relief of Qatar should be rejected in full. 149. The Respondents respectfully reiterate their request that the Council, ruling in proceedings as a preliminary matter, accept their Preliminary Objections and therefore decide: (a) that it lacks jurisdiction to resolve the claims raised by Qatar in Application (A); or (b) in the alternative, that Qatar’s claims are inadmissible. 142 Memorial (A) of the State of Qatar, p. 9; Memorial (B) of the State of Qatar, pp. 5-6. 143 Response of Qatar: Exhibit 6: Letter from Qatar to Secretary General of ICAO, 15 June 2017 (ref. 2017/15995), Annex: 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. 1424
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A-1 LIST OF EXHIBITS The exhibits are listed in order of appearance. Number Title 24. ‘Qatari FM: We will not negotiate al-Jazeera or our foreign policy with Gulf countries’, 10 June 2017, available at: https://www.alaraby.co.uk/english/news/2017/6/10/qatar-says-al-jazeera-… 25. ‘Qatar says it will not negotiate unless neighbors lift “blockade” ’, 19 June 2017, available at: https://www.reuters.com/article/us-gulf-qatar/qatar-says-it-will-not-ne… 26. ‘Qatar FM: We won’t negotiate until blockade is lifted’, 19 June 2017, available at: https://www.aljazeera.com/news/2017/06/qatar-fm-won-negotiate-blockade-… Annex 26
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Exhibit24'Qatari FM: We will not negotiate al-Jazeera or our foreign policy with Gulf countries', 10 June 2017
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June 10, 2017alaraby.co.uk/english/news/2017/6/10/qatar-says-al-jazeera-foreign-policy-are-sovereign-non-negotiable-mattersHomepage : News : Qatari FM: We will not negotiate al-Jazeera or our foreign policy with GulfcountriesThe New ArabQatari FM: We will not negotiate al-Jazeera or our foreign policywith Gulf countriesQatar is staging a diplomatic offensive to counter the blockade in the Gulf [Anadolu]Date of publication: 10 June, 2017Qatar will not negotiate sovereign and internal matters including Doha-based al-Jazeera underpressure from Saudi Arabia and the United Arab EmiratesQatar will not negotiate sovereign and internal matters including Doha-based al-Jazeera underpressure from Saudi Arabia and the United Arab Emirates, the foreign minister said onSaturday following a meeting with his Russian counterpart in Moscow.Speaking to Russia's RT Arabic, Sheikh Mohammed bin Abdul Rahman al-Thani said Qatarwould only negotiate matters related to 'GCC collective security', and said his government stillhad hopes for the Kuwaiti efforts to contain the crisis. 1/3
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"[On] decisions that affect Qatari sovereignty and foreign policy outside the collective securityof the GCC, we do not accept any dictates and we will not negotiate about them" or evendiscuss them, he said in response to a question about the fate of al-Jazeera, the Qatar-basedmedia network whose independent line has long riled up Riyadh and Abu Dhabi.Some pro-Emirati commentators last week suggested Qatar would have to shut down al-Jazeera in return for restoring Gulf ties.On Monday, Saudi Arabia, the United Arab Emirates, Egypt and Bahrain led a string ofcountries that cut ties with Qatar over what they say is the emirate's financing of extremistgroups and its ties to Iran, Saudi Arabia's regional arch-rival.Qatar vehemently denies the claims, and says it is the victim of an orchestrated campaign toforce Doha to change its foreign policy.Qatar's foreign minister fired back at the Gulf countries leading the blockade of his country,saying that there was "no clarity" in their accusations or demands."Qatar is accused of having a hidden relationship with Iran, but its relations with Iran are clear,transparent and time-tested," said al-Thani, noting that the UAE does more trade with Iran thanQatar does.He denied that Qatar supported Egypt's outlawed Islamist movement, the Muslim Brotherhood,and Hamas, the Palestinian Islamist group that controls the Gaza Strip, stressing it was alegitimate resistance group to all Arab countries, including Gulf countries.He laso dismissed as "fantasy" a Saudi media report that he had met in Baghdad with the headof Iran's Qods Force, controlled by Iran's powerful Revolutionary Guards.He said Qatar remained committed to a Kuwaiti-led mediation effort, but that he had yet toreceive a clear list of demands.On Saturday, Russian foreign minister Sergei Lavrov told Qatar's foreign minister of Moscow'sconcern over Arab nations cutting ties with the Gulf state and called for talks to solve the crisis."As a matter of policy we do not interfere in the internal affairs of other countries or theirbilateral relations with each other. But it does not give us joy when relations between ourpartners deteriorate," Lavrov told Sheikh al-Thani at talks in Moscow.Lavrov said Moscow was ready to act "with the consent and the interest of the partiesinvolved" to help resolve the diplomatic row."We call for all contradictions to be resolved at the negotiation table through a mutuallyrespectful dialogue," Lavrov said, adding Arab states should unite to effectively fight terrorism.Sheikh Mohammed said Qatar was committed to solving the issue via a dialogue and that heconsidered the Cooperation Council for the Arab States of the Gulf as the most appropriateformat for such talks.2/3
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Exhibit25'Qatar says it will not negotiate unless neighbors lift "blockade" ', 19 June 2017
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Qatar says it will not negotiate unless neighbors lift'blockade'reuters.com/article/us-gulf-qatar/qatar-says-it-will-not-negotiate-unless-neighbors-lift-blockade-idUSKBN19A1G6World NewsJune 19, 2017 / 7:34 AM / a year agoDOHA/PARIS (Reuters) - Qatar will not negotiate with its neighbors to resolve the Gulf disputeunless they first lift the trade and travel boycott they imposed two weeks ago, its foreignminister said, but added Doha still believed a solution was possible.Turkish APC drives at their military base in Doha, Qatar June 18, 2017. Qatar NewsAgency/Handout via REUTERSThe United Arab Emirates, which along with Saudi Arabia, Egypt and Bahrain imposed themeasures to isolate Qatar, said the sanctions could last for years unless Doha accepteddemands that the Arab powers plan to reveal in coming days.Qatar has denied accusations by its neighbors that it funds terrorism, foments regionalinstability or has cosied up to their enemy Iran. The dispute has opened a rift among some ofthe main U.S. allies in the Middle East, with President Donald Trump backing tough measuresagainst Qatar even as his State Department and Defense Department have sought to remainneutral.On Monday Qatar held war games with Turkish troops, showing off one of its few remainingstrong alliances after two weeks of unprecedented isolation.Foreign Minister Sheikh Mohammed bin Abdulrahman al-Thani said Doha was ready to“engage and address” the concerns of other Gulf Arab states in what he described as a properdialogue with pre-determined principles, but reiterated that sanctions must be lifted first.“Until now we didn’t see any progress about lifting the blockade, which is the condition foranything to move forward,” Sheikh Mohammed said. The countries that imposed the sanctionshave denied that they amount to a blockade.Sheikh Mohammed said he planned to travel to Washington next week to discuss theeconomic effect of the “blockade” and its effects on the global fight against terrorism.1/3
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“We have a very strong partnership with the U.S. We are partners together in the globalcoalition of countering terrorism. We have been talking to them since the crisis started,” hesaid.UAE Minister of State for Foreign Affairs Anwar Gargash said earlier on Monday said thatthose seeking to isolate Qatar had no intention of backing down unless their demands weremet.“Qatar will realize that this is a new state of affairs and isolation can last years,” Gargash toldreporters in Paris.“If they want to be isolated because of their perverted view of what their political role is, then letthem be isolated. They are still in a phase of denial and anger,” he said, adding that a list ofgrievances for Qatar to address would be completed in the coming days.Qatar has relished support from Turkey during the dispute. Its state-funded pan-Arab AlJazeera news channel showed footage of a column of armored personnel carriers flying theTurkish flag inside the Tariq bin Ziyad military base in Doha.It reported that additional Turkish troops had arrived in Qatar on Sunday for the exercises,although military sources in the region told Reuters the operation actually involved Turkishtroops who were already present rather than new arrivals.Turkish APC drives at their military base in Doha, Qatar June 18, 2017. Qatar NewsAgency/Handout via REUTERSThe dispute is a major test for the United States, close allies with both sides and which housesthe headquarters of its air power in the Middle East at an air base in Qatar.Washington has sent mixed signals despite Trump’s firm personal backing for the sanctions.Trump called Qatar a “funder of terrorism at a very high level,” but five days later the Pentagonapproved selling Qatar $12 billion of warplanes.The chairman of the U.S. Joint Chiefs of Staff said on Monday that military operations againstIslamic State from Qatar were continuing while acknowledging some friction.“But what I said last week remains true, in that we have continued to be able to operate, eventhrough that friction,” Marine General Joseph Dunford told reporters in Washington.“BASELESS PROPAGANDA”Qatar, the world’s richest country per capita, has used its wealth over the past decade to exertinfluence abroad, backing factions in civil wars and revolts across the Middle East. It has said itis now being punished for straying from its neighbors’ backing for authoritarian hereditary andmilitary rulers.2/3
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“It is unfortunate that our neighbors have chosen to invest their time and resources in abaseless propaganda campaign,” Sheikh Saif Bin Ahmed al-Thani, director of Qatar’sGovernment Communications Office, said in a statement on Monday, calling the terrorismaccusations a “publicity stunt.”The Qatar Financial Centre, which administers special rules for foreign-owned companiesoperating in Qatar, said on Monday it has no plans to take any action against Saudi Arabian,Emirati or Bahraini firms in response to their governments’ sanctions against Doha. “It remainsbusiness as usual, and we intend to keep it that way,” its chief executive Yousef al-Jaida said.Jaida said Qatar’s government was also prepared to support local banks if foreign institutionswithdraw deposits from them because of the economic boycott.Turkey is one of the few powerful countries in the region willing to openly show its support forQatar. Two days after the sanctions were imposed, its parliament fast-tracked legislation toallow more troops to be deployed to Qatar, where about 90 Turkish soldiers are stationedunder a 2014 agreement.Turkey has said it would deploy 3,000 ground troops at the base, primarily to serve as a venuefor joint exercises.Qatar has only 300,000 citizens enjoying the wealth produced by the world’s largest exports ofliquefied natural gas. The rest of its 2.7 million people are foreign migrant workers, mostlymanual laborers employed on vast construction projects that have crowned the tiny desertpeninsula with skyscrapers as well as stadiums for the 2022 soccer world cup.The sanctions have disrupted its main routes to import goods by land from Saudi Arabia andby sea from big container ships docked in the United Arab Emirates. But it so far has avoidedeconomic collapse by quickly finding alternative routes, and it said its vast financial reserveswould meet any challenges.Qatar has said the sanctions have also brought personal hardship for its citizens who live inneighboring countries or have relatives there. The countries that imposed the sanctions gaveQataris two weeks to leave, which expired on Monday.Thousands of Qataris have been unable to board flights to the UAE, Saudi Arabia and Bahrain,and cut off from relatives in those countries.The Qatari government communications director, Sheikh Saif, said Saudi, Emirati, andBahraini families had been “forcibly recalled” on Monday by their governments despite beinginvited by Qatar to stay.Editing by Sami Aboudi, Peter Graff, Toni ReinholdOur Standards:The Thomson Reuters Trust Principles.3/3
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Exhibit26'Qatar FM: We won't negotiate until blockade is lifted', 19 June 2017
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6/11/2018Qatar FM: We won't negotiate until blockade is lifted | Qatar News | Al Jazeerahttps://www.aljazeera.com/news/2017/06/qatar-fm-won-negotiate-blockade-… FM says Gulf states have to lift blockade before Doha takes part in any talks onending Gulf diplomatic crisis./Qatar will not negotiate with Arab states that have cut economic and travel ties with itunless they reverse their measures and lift a blockade against it, its foreign minister hassaid.
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6/11/2018Qatar FM: We won't negotiate until blockade is lifted | Qatar News | Al Jazeerahttps://www.aljazeera.com/news/2017/06/qatar-fm-won-negotiate-blockade-… is under blockade, there is no negotiation. They have to lift the blockade to startnegotiations," Sheikh Mohammed bin Abdulrahman Al Thani told reporters onMonday, ruling out discussions over Qatar's internal affairs, including the fate of theDoha-based Al Jazeera Media Network."Until now we didn't see any progress about lifting the blockade, which is theprecondition for anything to move forward," he added.Speaking from the capital, Doha, the minister said Qatar had still not received anydemands from Saudi Arabia, the United Arab Emirates (UAE) and Bahrain, who severedrelations with two weeks ago, triggering the worst Gulf Arab crisis in years.Anything that relates to the affairs of the six-nation Gulf Cooperation Council is subjectto negotiation, he said, referring to the body comprising Qatar, Saudi Arabia, the UAE,Bahrain, Kuwait and Oman."Anything not related to them is not subject to negotiation. No one has the right tointerfere in my affairs. Al Jazeera is Qatar's affairs, Qatari foreign policy on regionalissues is Qatar's affairs. And we are not going to negotiate on our own affairs," he said.The minister said Kuwait's ruler was the sole mediator in the crisis and that he waswaiting for specific demands from Gulf states in order to take resolution efforts forward."We cannot just have (vague) demands such as 'the Qataris know what we want fromthem, they have to stop this or that, they have to be monitored by a foreign monitoringmechanism.'"The crisis hit civilian travel and some food imports, ratcheted up tensions in the Gulf andsowed confusion among businesses. However, it has not affected energy exports fromQatar, the world's biggest exporter of liquefied natural gas (LNG).The minister said Qatar would rely on other states if the boycott continued, includingSaudi Arabia's regional rival, Iran."We have a backup plan which depends mainly on Turkey, Kuwait and Oman," he said.X
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6/11/2018Qatar FM: We won't negotiate until blockade is lifted | Qatar News | Al Jazeerahttps://www.aljazeera.com/news/2017/06/qatar-fm-won-negotiate-blockade-… "Iran has facilitated for us the sky passages for our aviation and we are cooperating withall countries that can ensure supplies for Qatar."
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