Rejoinder of the State of Qatar

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

i
Table of Contents
INTRODUCTION ................................................................... 1
THE REAL ISSUE IN DISPUTE BEFORE THE COURT IS
JOINT APPELLANTS’ AVIATION PROHIBITIONS, NOT
THEIR FALSE ACCUSATIONS OF BREACH OF THE
RIYADH AGREEMENTS ...................................................... 9
I. Joint Appellants’ Aviation Prohibitions Violate the
Chicago Convention and Its Annexes ............................ 10
II. Joint Appellants’ “Real Issue in Dispute” Theory Is
Transparently Pretextual ................................................. 14
THE COURT SHOULD DENY JOINT APPELLANTS’
SECOND GROUND OF APPEAL ....................................... 23
I. The Fact that the Parties Have a Dispute About Other
Matters Does Not Change the Real Issue in Dispute in
This Case ........................................................................ 25
II. The Real Issue Test Calls for an Objective Identification
of the “Object of the Claim” ........................................... 30
III. This Dispute Falls Squarely Within the Jurisdiction of the
ICAO Council Under the “Real Issue” Test ................... 33
A. The ICAO Council is competent to decide Joint
Appellants’ countermeasures defence ........................ 36
B. The ICAO Council could decide this dispute without
reaching the merits of Joint Appellants’
countermeasures defence ........................................... 42
IV. The Adjudication of Qatar’s Claims by the ICAO Council
Is Entirely Consistent with Judicial Propriety ................ 48
THE COURT SHOULD DENY JOINT APPELLANTS’
THIRD GROUND OF APPEAL ........................................... 51
I. The ICAO Council Properly Decided that Qatar Satisfied
the Article 84 Negotiation Requirement......................... 52
ii
A. Joint Appellants misunderstand the relevant legal
standard ...................................................................... 52
1. Article 84 does not require a disputing Party to
attempt to negotiate if the other side entirely
refuses to negotiate ........................................ 52
2. A genuine attempt to negotiate need only be
made “with a view to resolving the dispute” . 60
3. Negotiations should be assessed with
flexibility ........................................................ 63
B. Joint Appellants misapply the legal standard to the
facts ............................................................................ 64
1. Qatar genuinely attempted to negotiate with
Joint Appellants directly ................................ 65
2. Qatar genuinely attempted to negotiate through
ICAO .............................................................. 68
3. Qatar genuinely attempted to negotiate through
the WTO......................................................... 73
4. Qatar genuinely attempted to negotiate through
third parties .................................................... 75
II. The ICAO Council Properly Held that Qatar’s
Application and Memorial Complied with Article 2(g) of
the ICAO Rules for the Settlement of Differences ......... 76
THE COURT SHOULD DENY JOINT APPELLANTS’
FIRST GROUND OF APPEAL ............................................ 79
I. The Court Should Decline to Exercise Its Supervisory
Authority in Respect of the So-Called Procedural
Irregularities ................................................................... 81
A. Whether the Council has jurisdiction is an “objective
question of law”, the answer to which does not turn on
the nature of the procedure before the Council .......... 81
iii
B. Joint Appellants’ attempt to distinguish the present
case from the 1972 ICAO Council Appeal case fails 87
II. The ICAO Council Properly Discharged Its Functions
Under Article 84 ............................................................. 89
A. The absence of open deliberations on the substantive
issues in dispute and of reasons follows from the
Council’s decision to proceed with a vote by secret
ballot as allowed under its Rules ............................... 90
B. Joint Appellants are wrong to assert that the Council
did not openly deliberate on certain procedural
matters ........................................................................ 94
C. Joint Appellants had ample opportunity to present their
case before the ICAO Council ................................... 97
SUBMISSIONS ........................................................................................... 101
CERTIFICATION ....................................................................................... 103
LIST OF ANNEXES ................................................................................... 105

i
GLOSSARY OF ACRONYMS, ABBREVIATIONS AND DEFINED
TERMS
1972 ICAO Council Appeal case Appeal Relating to the Jurisdiction of the
ICAO Council (India v. Pakistan)
The Court’s 1972 Judgment Appeal Relating to the Jurisdiction of the
ICAO Council (India v. Pakistan),
Judgment, I.C.J. Reports 1972
ARSIWA Articles on the Responsibility of States for
Internationally Wrongful Acts
ATS Air Traffic Service
Bahrain The Kingdom of Bahrain
BESUM Memorial of the Kingdom of Bahrain, the
Arab Republic of Egypt, the Kingdom of
Saudi Arabia, and the United Arab
Emirates (27 Dec. 2018)
BESUR Reply of the Kingdom of Kingdom of
Bahrain, the Arab Republic of Egypt, the
Kingdom of Saudi Arabia, and the United
Arab Emirates (27 May 2019)
CAT Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment (1984)
CERD International Convention on the
Elimination of All Forms of Racial
Discrimination (1969)
Chicago Convention Convention on International Civil
Aviation, Chicago, 7 December 1944
Egypt The Arab Republic of Egypt
EU European Union
ii
FATF Financial Action Task Force
FIR Flight Information Regions
GCC Gulf Cooperation Council
IASTA International Air Services Transit
Agreement, Chicago, 7 December 1944
ICAO International Civil Aviation Organization
ICAO Council or Council Council of the International Civil Aviation
Organization
ICAO Application (A) Application (A) of the State of Qatar;
Relating to the Disagreement on the
Interpretation and Application of the
Convention on International Civil Aviation
(Chicago, 1944) and its Annexes, 30
October 2017
ICAO Council Decision (A) or
Decision
Decision of the ICAO Council on the
Preliminary Objection in the Matter: the
State of Qatar and the Arab Republic of
Egypt, the Kingdom of Bahrain, the
Kingdom of Saudi Arabia and the United
Arab Emirates (2017) – Application (A),
29 June 2018
ICAO Memorial (A) Memorial appended to Application (A) of
the State of Qatar, Disagreement on the
Interpretation and Application of the
Convention International Civil Aviation
(Chicago, 1944) and its Annexes, 30
October 2017
ICAO Preliminary Objections (A) Preliminary Objections of the Arab
Republic of Egypt, the Kingdom of
Bahrain, the Kingdom of Saudi Arabia and
the United Arab Emirates in re Application
(A) of the State of Qatar Relating to the
Disagreement Arising under the
Convention on International Civil Aviation
iii
done at Chicago on 7 December 1944, 19
March 2018
ICAO Rejoinder (A)
Rejoinder to the State of Qatar’s Response
to the Respondents’ Preliminary
Objections of the Arab Republic of Egypt,
the Kingdom of Bahrain, the Kingdom of
Saudi Arabia and the United Arab Emirates
in re Application (A) of the State of Qatar
Relating to the Disagreement Arising
under the Convention on International
Civil Aviation done at Chicago on 7
December 1944, 12 June 2018
ICAO Response to the
Preliminary Objections (A)
Response of the State of Qatar to the
Preliminary Objections of the
Respondents; in re Application (A) of the
State of Qatar Relating to the
Disagreement on the Interpretation and
Application of the Convention on
International Civil Aviation
done at Chicago on 7 December 1944, 30
April 2018
ICAO Rules 1957 ICAO Rules for the Settlement of
Differences
ICJ Application (A) Joint Application Instituting Proceedings,
Appeal Against a Decision of the ICAO
Council dated 29 June 2018 on Preliminary
Objections (Application (A), Kingdom of
Bahrain, Arab Republic of Egypt, the
Kingdom of Saudi Arabia and the United
Arab Emirates v. State of Qatar), 4 July
2018
ILC International Law Commission
IMF International Monetary Fund
iv
Joint Appellants The Kingdom of Bahrain, the Arab
Republic of Egypt, the Kingdom of Saudi
Arabia and the United Arab Emirates
NOTAM Notice to Airmen
Qatar The State of Qatar
QCM (A) Counter-Memorial of the State of Qatar (25
February 2019)
QR (A) Rejoinder of the State of Qatar (29 July
2019)
QNA Qatar News Agency
Saudi Arabia Kingdom of Saudi Arabia
TFTC Terrorist Financing Targeting Center
United Arab Emirates UAE
UNCLOS United Nations Convention on the Law of
the Sea
VCLT Vienna Convention on the Law of Treaties
WTO World Trade Organization
1
INTRODUCTION
1.1 Pursuant to the Order of the Court dated 27 March 2019, the State of Qatar
(“Qatar”) respectfully submits this Rejoinder responding to the Reply of the
Kingdom of Bahrain (“Bahrain”), the Arab Republic of Egypt (“Egypt”), the
Kingdom of Saudi Arabia (“Saudi Arabia”) and the United Arab Emirates (“UAE”,
and collectively with Bahrain, Egypt and Saudi Arabia, “Joint Appellants”) dated
27 May 2019.1
1.2 In its Counter-Memorial, Qatar showed that the Court previously rejected
arguments that were substantially identical to those Joint Appellants now present
in the form of their First and Second Grounds of Appeal. Specifically, in its
Judgment in Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan) (the “1972 ICAO Council Appeal case”), the Court dismissed India’s
arguments that the Council’s decision on jurisdiction was (1) vitiated by procedural
irregularities,2 and (2) substantively wrong because India presented a defence that
raised issues outside the ambit of the Chicago Convention.3
1.3 With respect to the first argument, the Court held that the question before it
was limited only to an “objective question of law” (i.e., whether or not the Council
1 Reply of the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia, and
the United Arab Emirates (27 May 2019) (hereinafter “BESUR”).
2 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
3 Ibid., para. 27.
2
had jurisdiction), the answer to which “cannot depend on what occurred before the
Council”.4 The procedural complaints India raised were therefore irrelevant.
1.4 With respect to the second argument, the Court ruled that “the Council
[cannot] be deprived of jurisdiction merely because considerations that are claimed
to lie outside the Treaties may be involved if, irrespective of this, issues concerning
the interpretation or application of these instruments are nevertheless in question”.5
1.5 In their Memorial, Joint Appellants chose not to come to terms with the
import of the Court’s 1972 Judgment for their arguments in this case. The Reply is
no different: it neither makes any serious effort to distinguish this case from that
one, nor argues that the Court’s decision in that case was somehow incorrect. The
Court can therefore reject Joint Appellants’ First and Second Grounds of Appeal
for the same reasons it rejected India’s identical arguments in the 1972 ICAO
Council Appeal case.
1.6 Concerning the aspect of the Court’s prior decision that is relevant to their
First Ground of Appeal, Joint Appellants suggest that the Court rejected India’s
arguments about the alleged procedural irregularities only because those
irregularities “did not ‘prejudice in any fundamental way the requirements of a just
procedure’”.6 That is not true, however. The primary basis of the Court’s decision
was, as stated, that the Court was required only to answer an objective question of
law. The statement Joint Appellants cite was made only as an additional reason to
reject India’s argument. In any event, Joint Appellants overlook the fact that the
4 Ibid., para. 45.
5 Ibid., para. 27.
6 BESUR, para. 1.5(b) (quoting Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Judgment, I.C.J. Reports 1972, paras. 44-45).
3
alleged procedural irregularities they raise are virtually identical to those India
raised in the prior case. If those putative irregularities did not “prejudice in any
fundamental way the requirements of a just procedure” there, they do not do so
here either.
1.7 Instead of confronting the consequences of the Court’s 1972 Judgment for
their First Ground of Appeal, Joint Appellants present an irrelevant and largely
repetitive narrative in which they attempt to impugn the conduct of the ICAO
Council, and indeed the entire dispute resolution system under the Chicago
Convention (to which they, of course, consented when they ratified the
Convention). This narrative is irrelevant for the reasons already stated. Moreover,
Qatar will show again in this Rejoinder that the Council did not in fact commit any
procedural errors, let alone any errors that undermined in any way the requirements
of a just procedure.
1.8 Concerning the aspect of the Court’s 1972 Judgment that is relevant to their
Second Ground of Appeal, Joint Appellants say only that “the India v. Pakistan
case did not concern a question of countermeasures”.7 They do not, however, make
any effort to show why this distinction makes a difference. It does not. The Court’s
1972 ruling was not limited to the specific defence India presented in that case. Its
holding was phrased in broad terms. Indeed, the Court’s wording could scarcely
have been any more categorical. It stated: “The fact that a defence on the merits is
cast in a particular form, cannot affect the competence of the tribunal or other organ
concerned,—otherwise parties would be in a position themselves to control that
7 BESUR, para. 4.27.
4
competence, which would be inadmissible”.8 This applies as much to Joint
Appellants’ countermeasures defence as any other.
1.9 Joint Appellants attempt to sustain their Second Ground of Appeal by
rehashing the arguments from their Memorial. They contend that the “real issue”
in dispute in this case relates to Qatar’s alleged violations of its counter-terrorism
and other obligations. According to Joint Appellants, the issues in dispute in this
case cannot be severed from that other dispute. This argument not only runs afoul
of the Court’s Judgment in the 1972 ICAO Council Appeal case, it is also
inconsistent with the Court’s settled jurisprudence that the fact that a particular
dispute arises in a broader context does not deprive the Court of jurisdiction
(another subject on which the Reply is silent). The reality is that the one and only
dispute before the Council, and now before the Court, concerns Joint Appellants’
violations of the Chicago Convention and its Annexes.
1.10 Joint Appellants’ arguments in support of their Third Ground of Appeal
concerning the Chicago Convention’s negotiation requirement are equally
unconvincing. Qatar showed in its Memorial that Joint Appellants’ stance on the
subject of negotiations was clear and emphatic: they refused to talk at any time on
any subject until Qatar capitulated to their so-called 13 Demands, which
themselves were non-negotiable.
1.11 The Reply does not deny that Joint Appellants were at all times unwilling
to negotiate. It argues instead that even in such circumstances, international law
requires Qatar to have made a “genuine attempt” to negotiate with them which,
8 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27.
5
they say, it did not do. Joint Appellants are mistaken on the law and the facts. On
the law, States are not required to make an attempt to negotiate in the face of an
explicit, total refusal to talk ab initio. Nothing in the Court’s case law dictates such
a pointlessly formalistic approach. But in any event, on the facts, the record shows
that Qatar not only made a genuine attempt to negotiate with Joint Appellants over
the aviation dispute, it made many such attempts over a lengthy period of time and
in multiple fora, including in ICAO. The Reply’s efforts to question those facts and
raise doubts about the extent to which Qatar’s multi-faceted efforts to engage with
Joint Appellants constituted a “genuine attempt” to negotiate are entirely
unpersuasive.
1.12 For these reasons, as more fully elaborated in the remaining chapters of this
Rejoinder, the Court should reject Joint Appellants’ arguments, dismiss their
appeal and find that the ICAO Council correctly determined that it has jurisdiction
over the dispute Qatar submitted to it nearly two years ago.
1.13 As it did in its Counter-Memorial, Qatar will address Joint Appellants’
grounds of appeal in a different order than they are presented in their pleadings. It
will start with the two grounds challenging the ICAO Council’s jurisdiction that
Joint Appellants presented before the Council. That is, Qatar will first answer Joint
Appellants’ Second Ground of Appeal and then answer their Third Ground of
Appeal. Qatar will deal with Joint Appellants’ First Ground of Appeal relating to
the alleged procedural irregularities last.
1.14 The main text of this Counter-Memorial consists of five chapters, followed
by Qatar’s Submissions. After this Introduction, Chapter 2 briefly recalls the
factual background to Joint Appellants’ aviation prohibitions, the central element
of this dispute under the Chicago Convention and its Annexes. In particular, the
6
Chapter addresses Joint Appellants’ baseless assertions that the aviation
prohibitions were imposed with notice, in cooperation with outside authorities and
in a proportionate manner. Additionally, Chapter 2 demonstrates that Joint
Appellants’ false allegations concerning Qatar’s alleged support for terrorism and
other matters are a poorly disguised artifice for trying to avoid the jurisdiction of
the ICAO Council.
1.15 Chapter 3 addresses Joint Appellants’ Second Ground of Appeal and
demonstrates why the Reply’s arguments that the ICAO Council lacks jurisdiction
are unpersuasive. Consistent with the Court’s jurisprudence constante, Chapter 3
first shows that the fact that the Parties have a dispute on other subjects does not
mean that the real issue in dispute in this case concerns matters other than those
that form the object of the claim Qatar submitted to the ICAO Council. The Chapter
also explains the many reasons why the dispute falls squarely within the
jurisdiction of the ICAO Council under the “real issue” test. In particular, it shows
that the ICAO Council is competent to decide Joint Appellants’ countermeasure
defence, although the Council may well be able to decide this dispute without ever
reaching the merits of that defence. Finally, Chapter 3 disposes of Joint Appellants’
repurposed jurisdictional argument in the guise of an objection to the admissibility
and makes clear that the adjudication of Qatar’s claims by the ICAO Council is
entirely consistent with judicial propriety.
1.16 Chapter 4 explains why Joint Appellants’ Third Ground of Appeal is
equally without merit. Joint Appellants not only misunderstand the legal standard
governing the negotiation requirement in Article 84 of the Chicago Convention,
but they also misapply that standard to the facts of the case. The Chapter
demonstrates how Qatar fulfilled the negotiation requirement by attempting to
negotiate with Joint Appellants over the aviation prohibitions on multiple occasions
7
and in multiple fora, only to be rebuffed by Joint Appellants at every turn. Chapter
4 also refutes Joint Appellants’ arguments that Qatar failed to fulfil the requirement
set forth in Article 2(g) of the ICAO Rules for the Settlement of Differences.
1.17 Chapter 5 addresses Joint Appellants’ First Ground of Appeal. It first
discusses Joint Appellants’ complete failure to address the Court’s Judgment in the
1972 ICAO Council Appeal case, in which it held that its task at this stage is only
to rule on “an objective question of law”, which “cannot depend on what occurred
before the Council”. Qatar then shows that the procedural irregularities that Joint
Appellants allege in this case are virtually identical to the ones India alleged in the
1972 ICAO Council Appeal case. Accordingly, even if the Court were to address
the merits of Joint Appellants’ First Ground of Appeal, it would find that none of
the alleged procedural irregularities prejudiced in any fundamental way the
requirements of a just procedure in this case any more than they did in the 1972
ICAO Council Appeal case. Lastly, Chapter 5 demonstrates that the procedure
adopted by the ICAO Council was entirely consistent with the applicable
procedural framework and the practice of the Council. The alleged procedural
irregularities Joint Appellants raise are therefore meritless.
1.18 This Rejoinder concludes with Qatar’s Submissions.

9
THE REAL ISSUE IN DISPUTE BEFORE THE COURT IS JOINT
APPELLANTS’ AVIATION PROHIBITIONS, NOT THEIR FALSE
ACCUSATIONS OF BREACH OF THE RIYADH AGREEMENTS
2.1 This case concerns one subject: Joint Appellants’ aviation prohibitions,
imposed in violation of their obligations under the Chicago Convention and its
Annexes. The only matter now before the Court concerns the ICAO Council’s
decision that it has jurisdiction to address the merits of those violations.
2.2 Hoping to divert attention away from their aviation prohibitions and
reframe the dispute, Joint Appellants continue to press their false and irrelevant
accusations that Qatar supports terrorism and extremism, and has interfered in their
internal affairs. In their view, Qatar’s categorical rejection of those accusations in
its Counter-Memorial constitutes confirmation that “[t]he real dispute between the
Parties concerns Qatar’s violations of the Riyadh Agreements and other
international law obligations”.9 Qatar disagrees. The fact that Qatar chose to expose
Joint Appellants’ baseless claims for what they are—a pretext designed to shield
them from responsibility for the aviation prohibitions—does not change the nature
of the dispute before the Council or the question before the Court.
2.3 The ICAO Council rightly ignored Joint Appellants’ false accusations as
irrelevant. Qatar trusts that the Court will do the same.
9 See, e.g., BESUR, Chapter II, Section 1.A heading; para. 2.3 (“Qatar has admitted that there does
in fact exist a dispute between the Parties which goes well beyond civil aviation and relates to
matters different from civil aviation”.).
10
2.4 This Chapter proceeds as follows: Section I addresses Joint Appellants’
response to the only facts that are relevant to the real issue in dispute between the
Parties: Joint Appellants’ violations of the Chicago Convention and its Annexes. It
shows that far from being “proportionate countermeasures to Qatar’s wrongful
actions”,10 the manner in which Joint Appellants implemented the aviation
prohibitions highlights their lack of good faith. The lack of good faith is made even
more evident in light of the international praise Qatar has received for its efforts in
the fight against terrorism and extremism, an inconvenient fact that Joint
Appellants chose to ignore in favour of their false narrative. That evidence, Joint
Appellants’ key admissions in this regard, and their strained attempt to insist on
their false accusations are addressed in Section II.
I. Joint Appellants’ Aviation Prohibitions Violate the Chicago Convention
and Its Annexes
2.5 Qatar explained in its Counter-Memorial how Joint Appellants
implemented their sweeping, unprecedented aviation prohibitions and why they
violate the Chicago Convention and its Annexes. Joint Appellants reply, correctly,
that “the scope and legality of the airspace restrictions under the Chicago
Convention are matters going to the merits … and thus are not for the Court to
determine in the present proceedings in any case”.11 Yet in the same breath, they
argue that the aviation prohibitions were imposed as “proportionate”
countermeasures.12
10 Ibid., Chapter II, Section 2 heading.
11 Ibid., para. 2.3; see also ibid., para. 2.35.
12 Ibid., Chapter II, Section 2 heading; see also ibid., para. 2.3.
11
2.6 It bears emphasis at the outset that Joint Appellants do not deny that to this
day, Qatar-registered aircraft are prohibited from overflying their territories, and
from taking off and landing at their airports.13 Nor do they deny that they have
forced Qatar-registered aircraft to utilise a limited number of contingency routes.
All of these actions that have compromised the efficiency of civil aviation and led
to the danger of congestion.14
2.7 Unable to deny the undeniable, Joint Appellants’ Reply seeks instead to
establish the alleged proportionality of their so-called “countermeasures” by
claiming that they notified the aviation prohibitions in advance. They also
congratulate themselves for their alleged cooperation in establishing contingency
routes in the aftermath of the aviation prohibitions.15 Joint Appellants’ arguments
only serve to underscore the lack of good faith underlying both their actions and
their attempt to escape the ICAO Council’s jurisdiction. While their arguments are
irrelevant to the question before the Court, Qatar does not wish the allegations that
they make to go unchallenged. Accordingly, the following paragraphs summarise
the main points of Qatar’s response.
2.8 Joint Appellants claim, for example, that the aviation prohibitions were
“timely and proper” and adopted “in accordance with all relevant rules and safety
requirements, and in full cooperation with all relevant authorities, including
ICAO”.16 They do not, however, provide any evidence that any notice whatsoever
was given, let alone that it was given at least seven days in advance (as the then-
13 Counter-Memorial of the State of Qatar (25 Feb. 2019) (hereinafter “QCM (A)”), para. 2.20.
14 Ibid., para. 2.21.
15 BESUR, para. 2.37.
16 Ibid., paras. 2.36-2.37.
12
applicable version of Annex 15 required17). They also provide no evidence of any
cooperation with any outside authority, including ICAO, in imposing their aviation
prohibitions. In fact, no such cooperation ever took place.
2.9 Nor can Joint Appellants reconcile their assertions with 1) the immediate,
widespread disruption the aviation prohibitions caused,18 and 2) the aviation safety
incidents resulting from the back-dating of the NOTAMs that affected several
aircraft en route in Yemen airspace on 5 June 2017.19 These very real and
indisputable consequences not only substantiate the fact that the prohibitions were
issued without prior warning, but also highlight Joint Appellants’ disregard for the
effects of their prohibitions on ordinary civil aviation passengers around the
world.20
2.10 Joint Appellants also claim that they “promptly adopted contingency
measures in order to preserve the safety of civil aviation”.21 But the record
17 Convention on International Civil Aviation, Annex 15: Aeronautical Information Services (15th
ed., July 2016), Standard 5.1.1.4 (“At least seven days’ advance notice shall be given of the
activation of established danger, restricted or prohibited areas and of activities requiring temporary
airspace restrictions other than for emergency operations”.) (QCM (A) Vol. II, Annex 16).
18 QCM (A), para. 2.11 (“Over 70 flights, scheduled by multiple carriers, were cancelled on 6 June.
Hundreds of passengers, including pilgrims who were seeking to perform the Umrah pilgrimage,
were left stranded and forced to rebook and reroute their travel plans. Over the first week of the
aviation prohibitions, tens of thousands of seat reservations for flights into and out of Doha across
all airlines and for all forward travel dates were cancelled”.) (internal footnotes omitted).
19 Ibid., para. 2.12.
20 Indeed, the “safe and orderly” development of civil aviation is one of the core purposes of the
Chicago Convention, and the Convention’s focus on the safety of civil aviation passengers is just
one reason why provisions like Article 82 of the Convention establish the undertaking of ICAO
Members “not to enter into any … obligations and understandings [inconsistent with the terms of
the Chicago Convention]”. Convention on International Civil Aviation, signed at Chicago on 7
December 1944 (hereinafter “Chicago Convention”), Preamble and Art. 82 (BESUM Vol. II,
Annex 1).
21 BESUR, para. 2.37.
13
demonstrates that they only agreed to five out of the seven contingency routes in
effect after significant delay and only after the intervention of the ICAO Council,
including at its extraordinary session of 31 July 2017.22 A comparison of Figure 1
and Figure 3 from Qatar’s Counter-Memorial clearly shows the reduction in routes
available to Qatar-registered aircraft.23
2.11 Joint Appellants also do not deny that there are substantially fewer routes
available for Qatar-registered aircraft now than before the aviation prohibitions, a
circumstance that has seriously compromised the safety, security, regularity and
economy of civil aviation.24 For example, whereas Qatar-registered aircraft had
five different air traffic routes through the UAE FIR available before the
prohibitions, they now have only one.25 The aviation prohibitions have also caused
22 QCM (A), para. 2.19. Joint Appellants self-servingly misconstrue praise for region-wide
“improvements of the implemented contingency plan” as praise for their own actions. BESUR, para.
2.39, fn. 144 (citing ICAO Council, Third ATM Contingency Coordination Meeting for Qatar,
Summary of Discussions, ICAO Doc. ACCM/3 (5-6 Sept. 2017), para. 6.2 (QCM (A) Vol. III,
Annex 27). The efforts of the ICAO Council and ICAO’s Middle East Regional Office in fact prove
Qatar’s point that it was only after ICAO’s intervention that most of the contingency routes were
ultimately approved, though it took quite some time for several such routes. See QCM (A), paras.
2.16-2.19.
23 See QCM (A), paras. 2.14, 2.20.
24 Ibid., para. 2.21. See also Qatar Civil Aviation Authority, Air Navigation Department, Reply to
Conclusion 17/19 MIDANPIRG/17, Assessment of Contingency Routes (7 July 2019), p. 2: “The
present contingency arrangements do not support current operating traffic levels and therefore do
not support predicted traffic growth within the Region. Routinely, and particularly with regard to
inbound traffic peak periods to Doha, it is obvious that existing contingency routes are ‘not fit for
purpose’[,] result in regular overload situations (inbound) and significant delays to outbound traffic
from Doha. This, in addition to managing the traffic with increased coordination outside of the
current Letters of Agreement (LOAs)[,] poses a Significant Safety Concern” (QR (A) Vol. II,
Annex 6) (emphasis in original).
25 QCM (A), para. 2.19. And while there is still a lot to be said regarding the contingency routes
Joint Appellants eventually agreed to, it is the on-going violations of the Chicago Convention that
are at issue here—it is because of these violations that contingency routes became even necessary
to access the high seas or the airspace of third countries.
14
an increased number of incidents involving military traffic in close proximity to
Qatar-registered civilian aircraft.26
2.12 In sum, Joint Appellants’ aviation prohibitions constitute serious, flagrant
and ongoing violations of the Chicago Convention and its Annexes that threaten
the safety, security, regularity and economy of civil aviation to this day. It is that
dispute that the ICAO Council has affirmed its jurisdiction to adjudicate.
II. Joint Appellants’ “Real Issue in Dispute” Theory Is Transparently
Pretextual
2.13 In its Counter-Memorial, Qatar exposed Joint Appellants’ allegations about
Qatar’s “support for extremism and terrorism, and its interference in the affairs of
other States”27 for what they are: a false pretext for avoiding the jurisdiction of the
Council to decide upon their violations of the Chicago Convention and its Annexes.
2.14 Joint Appellants’ Reply largely ignores Qatar’s showing of the pretextual
nature of their allegations. Joint Appellants do not deny their media campaign
against Qatar—described by the United Nations Office of the High Commissioner
26 See Letter from Abdulla Nasser Turki Al-Subaey, President of Qatar Civil Aviation Authority, to
Dr. Olumuyiwa Benard Aliu, President of ICAO Council (20 Feb. 2019) (QR (A) Vol. II, Annex
5). Appellant Bahrain also denies that immediately after the imposition of the aviation prohibitions,
it informed Qatar of its intention to intercept militarily any Qatar-registered aircraft operating in its
FIR. BESUR, para. 2.46. This threat, which was noted in Qatar’s Memorial before the ICAO
Council (Memorial appended to Application (A) of the State of Qatar; Disagreement on the
Interpretation and Application of the Convention on International Civil Aviation (Chicago, 1944)
and its Annexes, 30 October 2017, Section (c) (BESUM Vol. III, Annex 23)), was reported by
letter to ICAO. ICAO Response to the Preliminary Objections (A), Exhibit 3, Letter from Adbulla
Nasser Turki Al-Subaey, Chairman of Qatar Civil Aviation Authority, to Dr. Olumuyiwa Benard
Aliu, President of ICAO, 2017/15984 (8 June 2017), [PDF] p. 970 (BESUM Vol. IV, Annex 25).
Qatar will be pleased to submit further information regarding this threat at the appropriate phase of
the proceedings before the ICAO Council.
27 See, e.g., BESUR, para. 2.4.
15
for Human Rights as a “widespread defamation and hatred campaign against
Qatar”28—which began with the illegal hacking of the Qatar News Agency
(“QNA”) website on 24 May 2017, as established through an investigation by
international experts.29
2.15 Joint Appellants also do not deny the fact that Qatar continues to cooperate
with them on counter-terrorism measures under the auspices of the Terrorist
Financing Targeting Center (“TFTC”). That cooperation pre-dates the adoption of
the aviation prohibitions and continues to this day.30 In fact, Joint Appellants say
nothing at all about the voluminous evidence demonstrating Qatar’s leading role in
international and multilateral counter-terrorism efforts.31
2.16 Instead, Joint Appellants misconstrue Qatar’s position on the Muslim
Brotherhood in the Counter-Memorial. Qatar did not state that the Muslim
Brotherhood is a “legitimate political organization” as Joint Appellants appear to
suggest.32 Rather, Qatar pointed out the fact that the Muslim Brotherhood is not a
UN-designated terrorist organisation, or listed as such in the GCC terrorist
28 ICAO Response to the Preliminary Objections (A), Exhibit 77, OHCHR Technical Mission to
the State of Qatar, 17-24 November 2017, Report on the Impact of the Gulf Crisis on Human Rights
(December 2017), paras. 14, 20 (BESUM Vol. IV, Annex 25).
29 QCM (A), para. 2.57; ICAO Response to the Preliminary Objections (A), Exhibit 80, Deputy PM
and FM: Investigations Proved Involvement of 2 Siege Countries in QNA Hacking (10 Jan. 2018),
p. [PDF] 1346 (noting cooperation of FBI and British National Crime Agency in hacking
investigation) (BESUM Vol. IV, Annex 25); Letter from Muhammad Bin Abdul Rahman Al Thani,
Minister of Foreign Affairs of the State of Qatar, to Abdullatif Bin Rashid Al Zayani, GCC
Secretary General (7 Aug. 2017) (QCM (A) Vol. III, Annex 39).
30 QCM (A), para. 2.32.
31 Ibid., paras. 2.33 (describing Qatar’s leading role in the Global Counterterrorism Task Force),
2.41, fn. 112 (discussing Qatar’s efforts with the Community Engagement and Resilience Fund,
where it is the only GCC-member contributing country; the UN Security Council’s Counter
Terrorism Committee; and the Global Coalition against ISIS, for which Qatar hosts the coalition’s
central command, among other international efforts).
32 BESUR, para. 2.8.
16
organisations list, facts that Joint Appellants do not deny.33 Nor did Qatar argue
that the Muslim Brotherhood is “unobjectionable because Bahrain has not banned
it as an organization”.34 Instead, Qatar merely highlighted Joint Appellants’
hypocrisy in seeking to justify their aviation prohibitions over Qatar’s alleged
support for the Muslim Brotherhood when several other States, including Appellant
Bahrain, allow members of that group to serve in elected government.35
2.17 Finally, Joint Appellants do not deny their own records of supporting
terrorism and extremist groups.36 They say only that their records are “wholly
irrelevant” to the issues before the Court.37 On that point at least, Qatar agrees—
none of these accusations, including those made by Joint Appellants against Qatar,
are relevant to this case, and they should be ignored by the Court. However, since
the false allegations against Qatar are the centrepiece of their contrived
jurisdictional objection, Qatar has raised Joint Appellants’ records on these issues,
33 Ibid., para. 2.21.
34 Ibid., para. 2.25.
35 Qatar also pointed out that:
“because there are Muslim Brotherhood-affiliated political parties and societies
in countries across the Middle East and North Africa, including members of
parliament and government officials, it is natural for such individuals to appear
from time-to-time on news channels like Al Jazeera. Indeed, for many years
Appellant Bahrain has had members of a Muslim Brotherhood-affiliated political
party serve in its Parliament, and Bahrain’s Foreign Minister has recognised that
the party respects the rule of law”.
QCM (A), para. 2.55. In truth, Joint Appellants have not taken issue with either of these statements.
36 Joint Appellants’ record of support for terrorism and extremism includes: involvement of their
nationals and jurisdictions in the 11 September 2001 attacks against the United States of America
(Ibid., para. 2.28); involvement in terrorist financing for South-Asia-based terrorist organisations
(Ibid., para. 2.34); Saudi Arabia’s failing record on counter-terrorism financing according to the
Financial Action Task Force and the EU (Ibid., paras. 2.35-2.36); Joint Appellants’ status as top
sources of foreign terrorist fighters (Ibid., para. 2.49); and Saudi Arabia and the UAE’s record of
supplying arms to ISIS and Al-Qaida (Ibid., para 2.49).
37 BESUR, paras. 1.12, 2.2.
17
and their refusal to acknowledge them, to further demonstrate the pretextual nature
of their “accusations in a mirror”38 and their “real issue” in dispute defence.
2.18 Rather than deny any of the above, Joint Appellants use their Reply to
reiterate many of the same false accusations stated in their Memorial, accusations
that Qatar continues to deny categorically. Those accusations remain as baseless—
and irrelevant—today as they were then, and generally do not merit further
response beyond that set forth in Qatar’s Counter-Memorial.39 A few matters,
however, are noteworthy.
2.19 Joint Appellants waste a great deal of energy unnecessarily discussing and
interpreting the provisions of the Riyadh Agreements and the circumstances in
which they were concluded.40 This is part of their effort to maintain their baseless
“real issue in dispute” argument. To that end, they even reiterate the view that Qatar
effectively repudiated the Riyadh Agreements,41 seemingly undeterred by Qatar’s
unambiguous statement that it “continues to consider [them] binding”.42
38 “Accusations in a mirror” is “a rhetorical practice in which one falsely accuses one’s enemies of
conducting, plotting, or desiring to commit precisely the same transgressions that one [commits or]
plans to commit against them”. Kenneth L. Marcus, “Accusations in a Mirror”, Loyola University
Chicago Law Journal, Vol. 43 (2012), p. 359 (QR (A) Vol. II, Annex 15).
39 QCM (A), paras. 2.25-2.60.
40 See BESUR, paras. 2.5-2.14. Because the Riyadh Agreements are not relevant to the jurisdiction
of the ICAO Council to adjudicate the instant dispute regarding the interpretation or application of
the Chicago Convention and its Annexes, Qatar will not engage in a substantial textual analysis of
them, and reserves all relevant rights for the merits stage of this dispute, where any potential
countermeasures defence, however baseless, is more appropriately considered.
41 Ibid., para. 2.8.
42 QCM (A), para. 2.52, fn. 144. Qatar notes that Joint Appellants now accept the proper revised
translation of the 19 February 2017 letter submitted with Qatar’s Counter-Memorial. BESUR, fn.
50.
18
2.20 They also continue to cite to their own officials’ statements at
implementation meetings of the Riyadh Agreements,43 without once
acknowledging Qatar’s comprehensive rebuttals or the concerns Qatar expressed
about Joint Appellants’ conduct in the very same meetings44 and other contexts.45
In any event, no matter how many pages Joint Appellants devote to the Riyadh
Agreements and their self-serving arguments based on them, they remain irrelevant
to the civil aviation dispute at issue here, and the ICAO Council’s jurisdiction over
it.
2.21 Additionally, Joint Appellants continue to maintain falsely that Qatar is in
breach of its obligations under the Riyadh Agreements and other rules of
international law. They allege, for example, that Qatar has failed to prosecute or
extradite Mr. Yusuf Al-Qaradawi, a “designated terrorist[] living in and operating
from Qatar”.46 Mr. Qaradawi is not, however, on any UN terrorist designation list,
and Interpol rescinded the warrant by which Egypt sought his arrest (a fact Joint
Appellants were forced to admit).47 They chafe at Qatar describing him as a “Sunni
43 See, e.g., BESUR, paras. 2.9-2.10.
44 See Fourth Report of the Follow-up Committee on the Implementation of the Riyadh Agreement
Mechanism, 15 July 2014, [PDF] pp. 1815, 1819 (noting the failure of the UAE to act on individuals
interfering in Qatar’s internal affairs and on media offences against Qatar) (BESUM Vol. V, Annex
64); Summary of Discussions in the Sixth Meeting of their Highnesses and Excellencies the
Ministers of Foreign Affairs, Jeddah, 30 August 2014, [PDF] p. 1833 (BESUM Vol. V, Annex 65).
45 QCM (A), paras. 2.44-2.45.
46 BESUR, para. 2.13.
47 QCM (A) para. 2.46; BESUR para. 2.22, fn. 94. Joint Appellants respond in a footnote to the
unlawful arrest, detention and imprisonment of Mr. Al-Qaradawi’s daughter and her husband in
Egypt by citing to the very same charges which the UN Human Rights Council’s Working Group
on Arbitrary Detentions found to “lack a legal basis” and to be “arbitrary”. UN Human Rights
Council, Working Group on Arbitrary Detention, Opinions adopted by the Working Group on
Arbitrary Detention at its eighty-first session, UN Doc A/HRC/WGAD/2018/26 (17-26 Apr. 2018),
para. 59.
19
theologian”, in spite of the awards and praise that Joint Appellants themselves
previously bestowed upon him for his scholarship.48
2.22 Joint Appellants’ other allegations about Qatar’s ostensible support for
terrorism and extremism, and interference in their internal affairs likewise do not
withstand scrutiny. Citing decisions of Egypt’s courts,49 Joint Appellants accuse
Qatar of having “supported openly the Muslim Brotherhood and undermined
Egypt’s stability”.50 But they studiously ignore the evidence of politicisation and
lack of independence of Egypt’s courts,51 a long-standing and internationallyrecognised
problem that renders any decisions or evidence cited from them
unreliable.52
48 QCM (A) para. 2.46 (noting the UAE’s awarding Mr. Al-Qaradawi the 2012 “international figure
of the year prize” awarded by UAE Vice President and Prime Minister Sheikh Mohammed bin
Rashid Al Maktoum, and Saudi Arabia awarding him the King Faisal Prize for Islamic Studies);
see also “Custodian of the Two Holy Mosques welcomes Islamic personalities and heads of Hajj
delegations at the annual reception in Mina”, Al Riyadh (28 Oct. 2012) (depicting a picture of Saudi
King Abdullah greeting and welcoming Mr. Al-Qaradawi) (QR (A) Vol. II, Annex 7).
49 See BESUR, para. 2.13, fn. 71; see also ibid., para. 2.23.
50 Ibid., para. 2.13.
51 QCM (A) para. 2.50.
52 See, e.g., International Commission of Jurists, Egypt’s Judiciary: A Tool of Repression (Sept.
2016), p. 7: “Egypt’s judiciary has frequently failed to fulfil its essential role in upholding the rule
of law and safeguarding human rights throughout the transition period. … Egypt’s judges and
prosecutors have become to be seen as a primary tool in the repression of political opponents,
journalists and human rights defenders. Furthermore, an examination of individual cases
demonstrates that criminal proceedings against political opponents, journalists and human rights
defenders have been marred by a litany of violations of internationally recognised rights” (QR (A)
Vol. II, Annex 17).
See also United Nations Office of the High Commissioner for Human Rights, Egypt: Justice and
reconciliation increasingly failing after second wave of mass death sentences (15 May 2014)
(“Egypt’s legal system is in critical need of being reformed, in line with international and regional
standards”) (QR (A) Vol. II, Annex 18); African Commission on Human and Peoples’ Rights, 16th
Extraordinary Session, Resolution on Human Rights Abuses in Egypt, ACHPR Res. 287
(EXT.OS/XVI) (20-29 July 2014) (“Deploring the blatant disregard for the most basic guarantees
20
2.23 Joint Appellants also repeatedly attempt to portray media coverage of the
Muslim Brotherhood with which they disagree as official Qatari State policy in
violation of the Riyadh Agreements.53 These accusations are based solely on their
own flawed and internationally condemned54 understanding of freedom of the
press,55 statements by a discredited former Al Jazeera journalist56 and other outright
of fair trial and due process by courts and tribunals as well as the lack of independence of the
judiciary”.) (QR (A) Vol. II, Annex 16).
53 See, e.g., BESUR paras. 2.21, 2.24-2.25, 2.27-2.29, 2.32-2.34. It is telling that Joint Appellants’
purported evidence of offensive broadcasting on Al Jazeera is astonishingly dated—six new sources
that they annex to their Reply and two other sources from their Memorial that they cite in their
Reply, pre-date the First Riyadh Agreement of November 2013, making those alleged pieces of
evidence completely irrelevant to their already-irrelevant claims of Qatari violation of Riyadh
Agreement obligations. See Ibid., fns. 72, 117, 118, 120, 123, 124. To be clear, Qatar had no role
in the selection of these speakers or their content, and Qatar rejects hateful and offensive speech no
matter the speaker. But censorship of such speech requires a legal process that includes meeting
certain legal and evidentiary thresholds that must balance the right to freedom of expression
consistent with Qatar’s obligations under the International Covenant on Civil and Political Rights.
54 QCM (A), para. 2.56; Committee to Protect Journalists, Data & Research (2018) (QCM (A) Vol.
IV, Annex 124). See also United Nations Human Rights Council, Annex to the Report of the Special
Rapporteur on extrajudicial, summary or arbitrary executions: Investigation into the unlawful
death of Mr. Jamal Khashoggi, UN Doc. A/HRC/41/CRP.1 (19 June 2019), paras. 1, 2 (the report
concluded that the murder of Saudi journalist Jamal Khashoggi “constituted an extrajudicial killing
for which the State of the Kingdom of Saudi Arabia is responsible”).
55 Tellingly, Joint Appellants construe Article 3(d) of the Supplementary Riyadh Agreement as
proof of Qatar’s control over Al Jazeera (see BESUR, paras. 2.8, 2.31), without understanding that
such obligations are not inconsistent with the existence of a free and independent press when those
obligations are enforced through application of neutral, generally applicable laws regarding
incitement, consistent with Qatar’s international obligations. Similarly, Al-Jazeera’s ownership by
Qatar is entirely consistent with the concept of editorial independence. Like the British Broadcasting
Corporation (“BBC”), which maintains editorial independence regardless of the fact that it was
established by a UK Royal Charter and is funded by a tax administered by the UK Government, Al
Jazeera too retains editorial independence despite being State-owned and receiving partial funding
from the State of Qatar. QCM (A), para. 2.55; BBC, About the BBC (last accessed: 8 July 2019)
(QR (A) Vol. II, Annex 12); Al Jazeera, About Us (last accessed: 8 July 2019) (QR (A) Vol. II,
Annex 13).
56 BESUR, paras. 2.27, 2.33 (citing M. Fahmy, “The Price of Aljazeera’s Politics”, The Washington
Institute for Near East Policy, 26 June 2015 (BESUR Vol. II, Annex 34); “How Qatar Used and
Abused Its Al Jazeera Journalists”, The New York Times, 2 June 2015 (BESUR Vol. II, Annex
33)). Joint Appellants, however, fail to disclose that Mr. Fahmy has publicly lied about his
collaboration with Joint Appellants and that he has received at least $250,000 in support from the
UAE to pursue a public and legal effort to malign Al Jazeera and Qatar after his release from an
Egyptian jail. David D. Kirkpatrick, “Journalist Joins His Jailer’s Side in a Bizarre Persian Gulf
Feud”, The New York Times (1 July 2017) (QR (A) Vol. II, Annex 8).
21
falsehoods.57 They go so far as to allege that Al Jazeera’s fact-based coverage of
the massacre of over 800 protesters in Raba’a Square in Egypt on 14 August 2013
constitutes evidence of Qatar’s support for the Muslim Brotherhood.58 In fact, the
international community roundly condemned Egypt for that atrocity.59
2.24 Finally, Joint Appellants cite to some new materials in an attempt to justify
their accusations about Qatar’s support for extremist groups.60 They claim, for
example, that funds raised by Qatari-based charities may have been distributed to
extremist groups. Their five year-old source is not only badly dated, it also cites
only the speculative fears of analysts, no hard facts.61 Nowhere do Joint Appellants
acknowledge or rebut the various sources cited in Qatar’s Counter-Memorial that
detail its robust counter-terror financing efforts,62 which have “leapfrogged” those
of Joint Appellants,63 one of which has been singled out for criticism on terrorist
financing by entities such as the Financial Action Task Force and the EU.64
57 For example, Joint Appellants refer to the results of an online Al Jazeera poll in 2015, whereby
respondents indicated that “they supported ISIL”, presumably as an example of Al Jazeera’s
“promot[ion] [of] hatred and violence”, conveniently overlooking the fact that the document they
cite to substantiate their allegation expressly states that “[t]he voting results do not represent the
opinion of Al-Jazeera”. BESUR, para. 2.27; “Voting”, Al Jazeera, 28 May 2015 (BESUR Vol. II,
Annex 32).
58 BESUR, para. 2.24.
59 See, e.g., “UN rights chief urges talks to save Egypt from further disastrous violence”, UN News
(15 Aug. 2013) (noting statements by UN High Commissioner for Human Rights, several UN
Special Rapporteurs and UN Security Council meeting on the situation in Egypt) (QCM (A) Vol.
IV Annex 127).
60 BESUR, paras. 2.17-2.18.
61 Ibid., para 2.17, fn. 79.
62 QCM (A), paras. 2.30-2.31.
63 ICAO Response to the Preliminary Objections (A), Exhibit 47, Tillerson Tries Shuttle Diplomacy
in Qatar Dispute (11 July 2017) (BESUM Vol. IV, Annex 25).
64 FATF-MENAFATF, Anti-money laundering and counter-terrorist financing measures – Saudi-
Arabia, Fourth Round Mutual Evaluation Report, FATF, Paris (Sept. 2018), pp. 3-4 (QCM (A)
22
2.25 The more Joint Appellants’ repeat false allegations like these, the clearer
their desperate “accusations in a mirror” strategy becomes.
*
2.26 The dispute Qatar presented to the ICAO Council is a straightforward
dispute concerning Joint Appellants’ 5 June 2017 aviation prohibitions, which were
imposed in violation of the Chicago Convention and its Annexes. Those
prohibitions exist to this day and continue to pose safety risks to civil aviation. Joint
Appellants go to great lengths to manufacture an artificial jurisdictional defence,
asserting that the existence of other disputes relating to their false allegations about
Qatar’s support for terrorism and extremism, and interference in their internal
affairs somehow subsumes this very real and discrete dispute under the Chicago
Convention and its Annexes. But, as discussed in detail in the following Chapters
of this Rejoinder, this transparent attempt to deprive the ICAO Council of its
jurisdiction over the merits of this dispute fails on all counts.
Vol. IV, Annex 120); S. Kalin & F. Guarascio, “EU adds Saudi Arabia to draft terrorism financing
list: sources”, Reuters (25 Jan. 2019) (QCM (A) Vol. IV, Annex 104).
23
THE COURT SHOULD DENY JOINT APPELLANTS’
SECOND GROUND OF APPEAL
3.1 Joint Appellants’ Second Ground of Appeal is that this case falls outside
the ICAO Council’s jurisdiction ratione materiae because the “real issue in dispute
between the Parties does not relate to the interpretation or application of the
Chicago Convention”.65 Joint Appellants claim instead that it relates to Qatar’s
alleged “support of terrorism and its other internationally wrongful acts, which
gave rise to the countermeasures imposed by the Appellants”.66 Joint Appellants
also argue that even if their “real issue” argument fails, the dispute is not “as a
matter of judicial propriety and fairness, capable of being decided by the ICAO
Council without deciding the disputed issues relating to Qatar’s support for
terrorism and its interference in other States’ internal affairs and the
countermeasures relied upon by the Appellants”.67
3.2 Qatar already showed all the reasons why these arguments fail in its
Counter-Memorial. Joint Appellants’ “jurisdictional objection” is inconsistent with
the plain text of Article 84 of the Chicago Convention, its interpretation or
application by the Court in the 1972 ICAO Council Appeal case and the
jurisprudence of the Court on the characterisation of international disputes.68
Accepting it would also pose grave dangers to the international adjudicatory
65 BESUR, para. 4.1.
66 Ibid., para. 4.7(a).
67 Ibid., para. 4.7(b). Joint Appellants raise their objection under the Second Ground of Appeal “both
as a matter of jurisdiction and as a matter of admissibility” of Qatar’s application to the ICAO
Council. Ibid., para. 4.1. As explained in Qatar’s Counter-Memorial and further below, this dual
nature of their objection makes no difference whatsoever. QCM (A), para. 3.72; infra, paras. 3.56-
3.58.
68 See QCM (A), paras. 3.6-3.15.
24
system: respondent States could always avoid compulsory dispute settlement
brought pursuant to a treaty compromissory clause merely by self-servingly
asserting a “lawful” countermeasures defence.69 The Council’s jurisdiction under
Article 84 plainly includes the jurisdiction to decide Joint Appellants’
countermeasures defence on the merits. Joint Appellants’ repurposing of the very
same arguments in the guise of their “admissibility objection”, resting as they do
on the assumption that Article 84 does not give the Council competence to pass
judgment on the “substantive justification”70 of their countermeasures defence,
cannot deny the Council’s jurisdiction to decide the merits of their violations.
3.3 Joint Appellants’ Reply does not meaningfully engage with these
arguments. Instead, when Joint Appellants respond at all, they mischaracterise
Qatar’s position and ignore the Court’s consistent case law. None of the arguments
they present in their Reply can change the outcome here. The one and only object
of the claim Qatar submitted to the ICAO Council concerns Joint Appellants’
violations of the Chicago Convention, nothing else. And it would be entirely
consistent with judicial propriety and fairness for the ICAO Council to adjudicate
this claim. Joint Appellants’ Second Ground of Appeal must therefore be rejected.
3.4 The remainder of this Chapter is structured as follows: Section I shows that,
consistent with established Court jurisprudence, the fact that the Parties have a
dispute about other matters does not mean that the real issue in the proceedings
before the ICAO Council is something other than what is asserted in Qatar’s
Application. Section II clarifies the Parties’ agreement that the “real issue” test
relies upon the objective identification of the “object of the claim”. Section III
69 See ibid., paras. 3.4, 3.19-3.28.
70 BESUR, para. 4.53.
25
explains the many reasons why the dispute falls squarely within the jurisdiction of
the ICAO Council under the “real issue” test. Finally, Section IV disposes of Joint
Appellants’ repurposed jurisdictional argument under the guise of an objection to
the admissibility of Qatar’s claims.
I. The Fact that the Parties Have a Dispute About Other Matters Does Not
Change the Real Issue in Dispute in This Case
3.5 Chapter IV of Joint Appellants’ Reply opens with a red herring. Joint
Appellants try to make it seem as if Qatar’s Counter-Memorial contains an
important concession. They assert: “Qatar’s Counter-Memorial significantly
narrows the issues between the Parties” because Qatar supposedly “now accepts
that there is a dispute between the Parties arising out of its own conduct and the
countermeasures adopted by the Appellants in response”.71 In their view, this
somehow establishes the “inexorable conclusion” that the “real issue” in dispute
“does not concern the Chicago Convention”.72
3.6 Joint Appellants are so eager to press this point that they mischaracterise
Qatar’s position. Qatar has always accepted that there is a dispute between the
Parties concerning Qatar’s compliance with its counter-terrorism and noninterference
obligations under international law. It made that clear in its pleadings
before the ICAO Council73 and again in its Counter-Memorial.74 The existence of
71 Ibid., para. 4.2.
72 Ibid., para. 4.13.
73 See 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, paras.
75-77, 82 (BESUM Vol. IV, Annex 25).
74 See QCM (A), Chapter 2, Section II.B.1, para. 3.37.
26
that dispute is notorious and indisputable. That fact does not have the consequences
that Joint Appellants suggest, however. Just because there is another, “broader”75
dispute between the Parties does not mean, as Joint Appellants claim, that the issues
in dispute in this case “cannot be severed from the broader dispute”.76 In fact, they
can, and must, be.
3.7 Whatever the state of affairs before 5 June 2017, when Joint Appellants
adopted the aviation prohibitions they created a new dispute between the Parties
under the Chicago Convention that did not previously exist. The mere fact that
those prohibitions were allegedly imposed in the context of the broader dispute
does not deprive that new dispute of its separate existence as a matter of law. The
Court’s jurisprudence could not be clearer in that regard.
3.8 In Certain Iranian Assets, for example, the United States, much like Joint
Appellants here, argued that Iran was “not seeking the settlement of a legal dispute
concerning the provisions of the Treaty [of Amity], but [was] attempting to embroil
the Court in ‘a broader strategic dispute’”.77 The U.S. further argued that the
“actions of which Iran complains cannot be separated from their context, namely
Iran’s long-standing violations of international law …”.78
3.9 The Court disagreed. In its February 2019 Judgment on Preliminary
Objections, the Court stated that “applications that are submitted to it often present
a particular dispute that arises in the context of a broader disagreement between
75 BESUR, para. 4.14(b).
76 Ibid., p. 84, Section 2 heading.
77 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, I.C.J. Judgment of 13 February 2019, para. 34 (emphasis added).
78 Ibid. (emphasis added).
27
parties”.79 According to the Court, the only relevant questions were (1) “whether
the acts of which [Applicant] complains fall within the provisions of” the treaty in
question (there, the 1955 Treaty of Amity), and (2) “whether, as a consequence,
the dispute is one which the Court has jurisdiction ratione materiae to entertain”
under that treaty’s compromissory clause.80
3.10 Joint Appellants nowhere argue that the acts about which Qatar complains
do not fall within the provisions of the Chicago Convention and its Annexes.
Neither in their pleadings before the Council or before the Court do Joint
Appellants argue that the aviation prohibitions do not implicate those provisions or
that there is not a dispute over them.81 The consequence is inescapable: the dispute
is one which the Council “has jurisdiction ratione materiae to entertain”.
3.11 Joint Appellants’ Reply makes no effort to reconcile their position with this
aspect of the Court’s Judgment in Certain Iranian Assets. Indeed, they do not
address it at all.
3.12 Nor do they make any effort to come to terms with the Court’s virtually
identical holding in Bolivia v. Chile. There, the Court had no difficulty rejecting
Chile’s argument that Bolivia’s Application “obfuscate[d] the true subject-matter
of Bolivia’s claim—territorial sovereignty and the character of Bolivia’s access to
the Pacific Ocean”.82 In its 2015 Judgment on Preliminary Objections, the Court
stressed that “applications that are submitted to the Court often present a particular
79 Ibid., para. 36 (emphasis added).
80 Ibid.
81 See, e.g., BESUR, paras. 4.7(a), 4.14.
82 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, para. 32.
28
dispute that arises in the context of a broader disagreement between parties”.83
The mere fact that they do so does not convert the real issue in dispute in a
particular case into the subject of the broader disagreement.84
3.13 Other similar cases on which Joint Appellants maintain a studied silence
include:
• United States Diplomatic and Consular Staff in Tehran (United States
v. Iran);85
• Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States);86
• Border and Transborder Armed Actions (Nicaragua v. Honduras)87
and;
83 Ibid. (emphasis added).
84 Ibid.: “The Court considers that, while it may be assumed that sovereign access to the Pacific
Ocean is, in the end, Bolivia’s goal, a distinction must be drawn between that goal and the related
but distinct dispute presented by the Application, namely, whether Chile has an obligation to
negotiate Bolivia’s sovereign access to the sea and, if such an obligation exists, whether Chile has
breached it. The Application does not ask the Court to adjudge and declare that Bolivia has a right
to sovereign access”.
85 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, I.C.J.
Reports 1980, para. 37: “legal disputes between sovereign States by their very nature are likely to
occur in political contexts, and often form only one element in a wider and long-standing political
dispute between the States concerned. Yet never has the view been put forward before that, because
a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should
decline to resolve for the parties the legal questions at issue between them. Nor can any basis for
such a view of the Court's functions or jurisdiction be found in the Charter or the Statute of the
Court; if the Court were, contrary to its settled jurisprudence, to adopt such a view, it would impose
a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of
international disputes”.
86 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, para. 96 (“…the Court has never
shied away from a case brought before it merely because it had political implications or because it
involved serious elements of the use of force”.).
87 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, para. 54:
29
• Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation).88
3.14 Joint Appellants’ demurral in the face of this long, unbroken chain of case
law is as striking as it is telling. It also makes their assertion that it is Qatar that
“seeks to distance itself from the well-established practice of the Court”89 all the
more curious. Joint Appellants’ Reply cites only two cases to support its “real
issue” argument: the Aegean Sea case and the Chagos Islands arbitration.90 Neither
supports their position, however. In fact, for the reasons Qatar will explain in the
next subsection, both cases only underscore the strength of Qatar’s argument.
“There is no doubt that the issues of which the Court has been seised may be
regarded as part of a wider regional problem. The Court is not unaware of the
difficulties that may arise where particular aspects of a complex general situation
are brought before a Court for separate decision. Nevertheless, as the Court
observed in the case concerning United States Diplomatic and Consular Staff in
Tehran, ‘no provision of the Statute or Rules contemplates that the Court should
decline to take cognizance of one aspect of a dispute merely because that dispute
has other aspects, however important …’”.
88 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 32 (“One situation may contain disputes which relate to more than one body of law and
which are subject to different dispute settlement procedures”) (also citing United States Diplomatic
and Consular Staff in Tehran (United States v. Iran), Judgment, I.C.J. Reports 1980, paras. 36-37;
Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, para. 54). The only thing that Joint Appellants say with respect to
those cases is that “many” of them “involved variations on the political question doctrine”. BESUR,
para. 4.16. Qatar fails to see how this discounts their relevance to the application of the “real issue”
test nor do Joint Appellants offer any explanation to that effect. But even if Joint Appellants are
correct, quod non, as a matter of fact most of those cases clearly involved parallel legal disputes,
either extant or possible. See, e.g., Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011, para. 32; Obligation to Negotiate Access to the Pacific Ocean
(Bolivia v. Chile), Preliminary Objections, Judgment, I.C.J. Reports 2015, para. 32; Military and
Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, paras. 94, 96.
89 BESUR, para. 4.12.
90 Ibid., paras. 4.16-4.17.
30
3.15 Joint Appellants’ mere invocation of a broader dispute between the Parties
therefore cannot change the nature of the issue in dispute in this case. Indeed, Qatar
cannot help but note that at least one of the Joint Appellants, the UAE, itself appears
not to believe the “real issue” argument.
3.16 The Court is aware that there is a separate case pending between Qatar and
the UAE relating to the latter’s violations of the Convention on the Elimination of
All Forms of Racial Discrimination (“CERD”). That case, like this one, relates to
certain measures the UAE took on 5 June 2017, allegedly in response to Qatar’s
violations of, among other things, the Riyadh Agreements. But the UAE has not
argued in that case that the Court lacks jurisdiction because the “real issue” in
dispute is something other than the UAE’s violations of CERD. If the UAE truly
considered that its “real issue” argument had merit in this case, it surely would have
made it in that case too. Qatar considers the fact that it has not revealing.
II. The Real Issue Test Calls for an Objective Identification of the “Object
of the Claim”
3.17 The Parties agree on one thing: the “proper characterization of a dispute ‘is
a matter for objective assessment’”.91 They appear to disagree, however, on the
manner for determining exactly what the “real issue” in dispute in a particular case
is.
3.18 Relying on the extensive jurisprudence on this issue, Qatar’s Counter-
Memorial explained that the Court will determine the proper characterisation of the
91 Ibid., para. 4.10.
31
dispute by “identifying the object of the claim” before the ICAO Council.92 Joint
Appellants take this to mean that Qatar is suggesting that “only an applicant’s
pleadings are to be taken into account in determining the real issue in dispute”.93
However, it is not, and has never been, Qatar’s position that in conducting its
assessment the Court may only take account of Qatar’s pleadings before the ICAO
Council. Qatar happily accepts that the Court may look beyond those pleadings to
the written and oral pleadings of Joint Appellants, as well as other surrounding
materials. That said, the essential point remains that the purpose of examining all
the relevant materials is to identify “the real subject of the dispute”, “the exact
nature” of the claims submitted to international adjudication.94
3.19 The relevant “claim” is, of course, the applicant’s claim. The focus of the
inquiry is thus an objective assessment of what Qatar is seeking from the ICAO
Council. The Court has been clear that it will give “particular attention to the
formulation of the dispute chosen by the applicant” and “take[] account of the facts
that the applicant presents as the basis for its claim”.95
92 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections,
I.C.J. Judgment of 6 June 2018, para. 48; QCM (A), paras. 3.44-3.50 (citing Appeal Relating to the
Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, para. 28;
Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, paras. 12, 83;
Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, paras. 22, 32-33; In the matter of an arbitration before an Arbitral
Tribunal constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea
(Republic of the Philippines v. People’s Republic of China), PCA Case No. 2013-19, Award on
Jurisdiction and Admissibility (29 Oct. 2015), paras. 152-153; In the matter of the Chagos Marine
Protected Area Arbitration (Republic of Mauritius v. United Kingdom of Great Britain and
Northern Ireland), PCA Case No. 2011-03, Award (18 Mar. 2015), paras. 209, 211-212).
93 BESUR, para. 4.10.
94 Memorial of the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia,
and the United Arab Emirates (27 Dec. 2018) (hereinafter “BESUM”), para. 5.54 (quoting Fisheries
Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, para. 29)
95 See, e.g., Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary
Objections, I.C.J. Judgment of 6 June 2018, para. 48; Fisheries Jurisdiction (Spain v. Canada),
32
3.20 The two cases where an international court or tribunal has determined that
it was without jurisdiction as a result of the “real issue” test, cited in the Reply,96
confirm Qatar’s point. Tellingly, Joint Appellants do not take the trouble to explain
why they think the first such case, Aegean Sea Continental Shelf, helps them. It
does not. As explained in Qatar’s Counter-Memorial, the Court rejected Greece’s
claim in that case because its object, as stated in Greece’s first submission,
necessarily required the adjudication of a matter that was outside of the parties’
consent as a result of Greece’s reservation to the applicable title of jurisdiction.97
3.21 The second case, Chagos Islands, which Joint Appellants claim is “closely
analogous” to the instant case given that “the aviation countermeasures are merely
one, incidental aspect, of a broader dispute which involves a bloc of
countermeasures”,98 is no different. As explained in Qatar’s Counter-Memorial,99
a faithful reading of the Chagos Islands Award shows that the arbitral tribunal
declined jurisdiction over one of Mauritius’s submissions (the first) not just
because it was part of a “broader dispute”, as Joint Appellants claim.100 It did so
because Mauritius was actually looking for a judicial pronouncement that would
“state that Mauritius is the ‘coastal State’ in relation to the Chagos Archipelago”.101
In other words, the object of Mauritius’s claim was actually a determination the
Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, para. 30; Territorial and Maritime Dispute
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), para. 38.
96 BESUR, para. 4.16.
97 See QCM (A), para. 3.45.
98 BESUR, para. 4.17.
99 QCM (A), paras. 3.50-3.51.
100 BESUR, para. 4.17.
101 In the matter of the Chagos Marine Protected Area Arbitration (Republic of Mauritius v. United
Kingdom of Great Britain and Northern Ireland), PCA Case No. 2011-03, Award (18 Mar. 2015),
para. 211.
33
United Kingdom did not have sovereignty over the Chagos Archipelago, a matter
plainly outside the scope of U.N. Convention on the Law of the Sea (“UNCLOS”).
3.22 It bears mention that notwithstanding the decision that it lacked jurisdiction
over Mauritius’s first submission, the tribunal did not come to the same conclusion
with respect to another of Mauritius’s submissions (the fourth), which concerned
“the manner in which the [marine protected area] was declared” by the United
Kingdom.102 The tribunal considered that issue “distinct from the matter of
sovereignty” and thus within its jurisdiction.103 The mere existence of a “larger
dispute”104 was therefore not a sufficient reason to deny jurisdiction over any and
all of Mauritius’s claims.
III. This Dispute Falls Squarely Within the Jurisdiction of the ICAO
Council Under the “Real Issue” Test
3.23 Joint Appellants do not seriously dispute that in determining the proper
characterisation of the dispute before the ICAO Council, the Court is guided by the
true object of Qatar’s claim. Here, the unmistakable object of Qatar’s claim before
the Council is to secure a decision that the aviation prohibitions violate the
provisions of the Chicago Convention and its Annexes, including Articles 2, 3bis,
4, 5, 6, 9, 12, 37 and 89 of the Convention.105 In its Application, Qatar asked the
Council:
“- To determine that the Respondents violated by
their actions against the State of Qatar their
102 Ibid., para. 210.
103 Ibid. (emphasis added).
104 Ibid., para. 212. The “larger dispute” was about “land sovereignty over the Chagos Archipelago”.
105 See QCM (A), paras. 2.22, 3.31-3.35.
34
obligations under the Chicago Convention, its
Annexes and other rules of international law,
- To deplore the violations by the Respondents of the
fundamental principles of the Chicago Convention
and its Annexes,
- To urge the Respondents to withdraw, without
delay, all restrictions imposed on the Qatar
registered aircraft and to comply with their
obligations under the Chicago Convention and its
Annexes [and]
- To urge the Respondents to negotiate in good faith
the future harmonious cooperation in the region to
safeguard the safety, security regularity and
economy of international civil aviation”.106
3.24 Just like their argument about the existence of a broader dispute between
the Parties,107 Joint Appellants’ assertion of a countermeasures defence does not,
and cannot, change the object of Qatar’s claim before the Council. The Court’s
decision in the 1972 ICAO Council Appeal case—the only prior case to come to it
on appeal from a Council decision—is unambiguous in that respect. Faced with an
argument from India that was very similar to the one Joint Appellants now make,108
the Court rejected it in emphatic terms:
“[T]he Council [cannot] be deprived of jurisdiction
merely because considerations that are claimed to
lie outside the Treaties may be involved if,
irrespective of this, issues concerning the
interpretation or application of these instruments
106 Application (A) of the State of Qatar; Relating to the Disagreement on the Interpretation and
Application of the Convention on International Civil Aviation (Chicago, 1944) and its Annexes, 30
October 2017, [PDF] pp. 592-593 (BESUM Vol. III, Annex 23).
107 See supra Section I.
108 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, paras. 27, 31; see also QCM (A), para. 3.24.
35
are nevertheless in question. The fact that a defence
on the merits is cast in a particular form, cannot
affect the competence of the tribunal or other organ
concerned,—otherwise parties would be in a
position themselves to control that competence,
which would be inadmissible. As has already been
seen in the case of the competence of the Court, so
with that of the Council, its competence must depend
on the character of the dispute submitted to it and on
the issues thus raised—not on those defences on the
merits, or other considerations, which would
become relevant only after the jurisdictional issues
had been settled”.109
3.25 The Court continued in the next paragraph:
“[T]he legal issue that has to be determined by the
Court really amounts to this, namely whether the
dispute, in the form in which the Parties placed it
before the Council, and have presented it to the Court
in their final submissions … is one that can be
resolved without any interpretation or application of
the relevant Treaties at all. If it cannot, then the
Council must be competent”.110
3.26 Qatar made these points in its Counter-Memorial.111 Joint Appellants have
little to say in reply. The only time Joint Appellants mention the Court’s 1972
Judgment in Chapter IV of the Reply is to state simply: “The Appellants recall that
the India v. Pakistan case did not concern a question of countermeasures”.112 But
109 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27 (emphasis added).
110 Ibid., para. 28 (emphasis added).
111 QCM (A), paras. 3.19-3.28.
112 BESUR, para. 4.27.
36
they never explain why this alleged distinction should make a difference. It does
not.
3.27 As explained in Qatar’s Counter-Memorial, the Court’s holding in the 1972
ICAO Council Appeal case was stated in general terms; it did not turn on the
particular defence that India asserted in that case.113 Here, like there, “[t]he fact that
a defence on the merits is cast in a particular form, cannot affect the competence
of the tribunal or other organ concerned,—otherwise parties would be in a position
themselves to control that competence, which would be inadmissible”.114
3.28 Joint Appellants invocation of a countermeasures defence therefore cannot
change the real issue in dispute before the Council. Nor does the object of Qatar’s
claim involve the adjudication of issues falling outside the scope of the Parties’
consent, as shown in the two sections that follow.
A. THE ICAO COUNCIL IS COMPETENT TO DECIDE JOINT APPELLANTS’
COUNTERMEASURES DEFENCE
3.29 The Parties’ consent to the jurisdiction of the ICAO Council is not as
narrow as Joint Appellants make it out to be.115
3.30 A dispute between two or more contracting States to the Chicago
Convention may call for the ICAO Council, under the supervision of the Court, to
pass judgment on State actions taken “for reasons of military necessity or public
113 QCM (A), para. 3.25.
114 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27.
115 See, e.g., BESUR, para. 4.27.
37
safety”;116 “in exceptional circumstances or during a period of emergency, or in the
interest of public safety”;117 in a situation of “war” or “national emergency”.118 All
these determinations may involve factual matters and international obligations
going beyond civil aviation that “in some manner derogate[] from, provide[] an
exception to, or otherwise qualif[y] the scope of the principal substantive
obligations”.119 On Joint Appellants’ own case, there can be no question that such
matters “form[] an integral part of the material scope of the Court’s jurisdiction as
to the ‘interpretation or application’ of the Treaty”.120
3.31 Nor can it be disputed that, aside from these concepts in the Chicago
Convention, the ICAO Council may also take into account “any relevant rules of
international law applicable in the relations between the parties”121 when
interpreting the provisions of the Convention. In neither circumstance can it be said
that the consideration of obligations lying outside the Chicago Convention by the
Council amounts to an improper expansion of its jurisdiction. Despite Joint
Appellants’ obfuscation, it is just the same with Joint Appellants’ countermeasures
defence.
3.32 It is also undisputed between the Parties that, in principle, the ICAO
Council has jurisdiction to apply the rules on the international responsibility of
116 Chicago Convention, Art. 9(a) (BESUM Vol. II, Annex 1).
117 Ibid., Art. 9(b).
118 Ibid., Art. 89.
119 BESUR, para. 4.43.
120 Ibid., fn. 300 (citing Alleged Violations of the 1955 Treaty of Amity, Economic Relations and
Consular Rights (Islamic Republic of Iran v. United States of America), Request for the Indication
of Provisional Measures, Order of 3 October 2018, para. 42).
121 Vienna Convention on the Law of Treaties (adopted 22 May 1969), 1155 U.N.T.S. 331, Art.
31(3)(c); see also Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment,
I.C.J. Reports 2003, paras. 39-42.
38
States for internationally wrongful acts.122 One such rule provides basis for Joint
Appellants’ assertion of Qatar’s alleged violations of obligations lying outside the
Chicago Convention as a circumstance precluding the wrongfulness of their
aviation prohibitions. Under Article 22 of the International Law Commission’s
(“ILC”) Articles on Responsibility of States for Internationally Wrongful Acts
(“ARSIWA”),
“[t]he wrongfulness of an act of a State not in
conformity with an international obligation towards
another State is precluded if and to the extent that the
act constitutes a countermeasure taken against the
latter State in accordance with chapter II of Part
Three”.123
3.33 In this context, the ICAO Council also has jurisdiction to determine whether
a Member State must be deemed an “injured State”;124 that is, a State entitled to
react to an internationally wrongful act by the taking of countermeasures in breach
of the Chicago Convention, for purposes of adjudicating its responsibility under
international law.
122 See, e.g., The Arctic Sunrise Arbitration (Netherlands v. Russia), PCA Case No. 2014-02, Award
on the Merits (14 Aug. 2015), para. 190 (“In order properly to interpret and apply particular
provisions of the Convention, it may be necessary for a tribunal to resort to foundational or
secondary rules of general international law such as the law of treaties or the rules of State
responsibility”.) (internal footnotes omitted). Indeed, Joint Appellants nowhere suggest, for
example, that the Council lacks competence to adjudicate a “reciprocal countermeasures” defence.
123 International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts (2001), in Report of the International Law Commission on the Work of its Fiftythird
Session (2001), document A/56/10, Chapter V, reproduced in ILC Yearbook 2001, Vol. II(2)
(hereinafter “International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongful Acts (2001)”), Art. 22 (BESUM Vol. II, Annex 13). Chapter II of Part
III of the Articles sets out the objects and limits of countermeasures (Article 49), obligations not
affected by countermeasures (Article 50), the fundamental principle of proportionality governing
their operation and invocability (Article 51), conditions relating to resort to countermeasures
(Article 52) and the termination of countermeasures (Article 53).
124 Ibid., Arts. 42, 49.
39
3.34 Joint Appellants are unable to point to a single limitation on the scope of
the body of rules of international law that the Council has jurisdiction to apply:
they point to no support for their assertion that the Council cannot address their
non-reciprocal countermeasures defence. They therefore urge the Court to read
such a limitation into the terms “relating to the interpretation [or] application of
[the] Convention]” in Article 84.125 Joint Appellants allege that Qatar, by
suggesting that the Council has jurisdiction to address their countermeasures
defence, is proposing an “expansive interpretation” of these terms.126 As they see
it, Qatar’s response “go[es] against the practice of the Court, which has consistently
interpreted compromissory clauses in accordance with the ordinary rules of treaty
interpretation”.127 Joint Appellants are mistaken.
3.35 Qatar is not proposing an “expansive” interpretation of Article 84. Nor is it
proposing that Article 84 be interpreted other than in accordance with the ordinary
rules of treaty interpretation. To the contrary, Qatar proposes only that it be
interpreted in a manner consistent with the many other compromissory clauses just
like it.
3.36 Article 84 is unremarkable; it is a garden-variety compromissory clause. If
a dispute in which an applicant alleges violations of the Chicago Convention ceased
to concern the “interpretation or application” of the Convention merely because the
respondent asserted a non-reciprocal countermeasures defence, the same would be
true for other treaties that contain materially identical compromissory clauses.
125 See, e.g., BESUR, paras. 4.19-4.20.
126 Ibid., para. 4.19.
127 Ibid., para. 4.22.
40
3.37 For example, much like Article 84 of the Chicago Convention, Article 286
of UNCLOS provides: “Any dispute concerning the interpretation or application
of this Convention shall, where no settlement has been reached by recourse to
section 1, be submitted at the request of any party to the dispute to the court or
tribunal having jurisdiction under [Section 2 of Part XV]”.128
3.38 On Joint Applicants’ theory, a respondent State could void the jurisdiction
of the relevant court or tribunal—frequently this Court—over a dispute concerning
alleged violations of UNCLOS merely by interposing a defence of non-reciprocal
countermeasures. Such a result would not only be absurd, it would seriously
undermine the entire system of inter-State adjudication.
3.39 Joint Appellants appear mindful of the uncomfortable consequences of their
position. They therefore try to make it seem that the problem is not a serious one.
They argue that the danger Qatar points to does not arise because Qatar’s argument
supposedly
“rests on a critical and unstated assumption that the
Parties’ dispute is to be characterized solely by
reference to the narrow manner in which Qatar has
now sought to formulate its claim. Given that the real
issue in dispute between the Parties does not concern
matters cognisable under the Chicago Convention,
Qatar’s reasoning breaks down”.129
3.40 This argument, of course, assumes its own conclusion. In other words, Joint
Appellants argument would only have traction if they were correct that the “real
issue” in dispute is what they say it is. But they are not correct for all the reasons
128 United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December
1982, 1833 UNTS 3, Art. 286 (BESUM Vol. II, Annex 9).
129 BESUR, para. 4.26.
41
Qatar has already explained. Their attempt to minimise the systemic dangers of
their argument therefore fails.
3.41 Joint Appellants also argue that the danger Qatar highlights “would only be
a concern if respondent States abusively invoked countermeasures in bad faith, in
circumstances lacking any foundation in fact”.130 This is no answer. On Joint
Appellants’ theory of the case, the ICAO Council would not have jurisdiction to
consider a countermeasures defence and therefore would have no ability to even
reach the issue of bad faith. There would thus be no check against abuse.
3.42 Moreover, in Qatar’s view, the possibility that Joint Appellants point to is
exactly what is happening in this case. Contrary to their pretensions,131 Joint
Appellants’ countermeasures defence is not presented in good faith. The purpose
of Chapter 2 of Qatar’s Counter-Memorial, and of the present Rejoinder, is
precisely to show that Joint Appellants’ countermeasures defence is “lacking any
foundation in fact”.132 In those chapters, Qatar showed that their allegations
concerning Qatar’s supposed support for terrorism and interference in their internal
affairs crumble upon even cursory analysis. Their countermeasures defence is
entirely pretextual in nature and therefore should not be allowed to operate as a bar
to the Council’s jurisdiction under the artifice of the “real issue” test.
130 Ibid., para. 4.27.
131 Ibid.
132 Ibid.
42
B. THE ICAO COUNCIL COULD DECIDE THIS DISPUTE WITHOUT REACHING THE
MERITS OF JOINT APPELLANTS’ COUNTERMEASURES DEFENCE
3.43 As Qatar explained in its Counter-Memorial, there are several ways in
which the ICAO Council might decide the dispute submitted to it without ever
having to enter into a discussion of the “substantive justification”133 of Joint
Appellants’ countermeasures defence.134 That being the case, it would be
anomalous to find that the Council lacks jurisdiction under Article 84 based on a
notional eventuality that, while theoretically possible, may never come to pass.
3.44 As they do with so many other elements of Qatar’s Counter-Memorial, Joint
Appellants mischaracterise Qatar’s position. They claim that Qatar raised these
points because it supposedly “all but concedes [that] the ICAO Council does not
have jurisdiction over the question whether the Appellants’ countermeasures were
justified by Qatar’s prior conduct”.135 That is not the case. The point is far simpler:
the assumption that lies at the heart of Joint Appellants’ case—namely, that the
disagreement Qatar submitted to the ICAO Council “would necessarily require the
Council to adjudicate upon matters falling outside its jurisdiction”136—is
unfounded. As stated, there are several ways in which the Council could decide this
dispute without having to answer—to again use Joint Appellants’ words—“the
133 Ibid., para. 4.53.
134 See QCM (A), paras. 3.58-3.69.
135 BESUR, para. 4.33; see also ibid., para. 4.5 (“Qatar all but accepts that the Council lacks
jurisdiction under Article 84 of the Chicago Convention, including in respect of the Appellants’
invocation of countermeasures”).
136 Ibid., para. 4.33 (emphasis added).
43
question whether the Appellants’ countermeasures were justified by Qatar’s prior
conduct”.137
3.45 One such way, of course, would be if the Council found that the aviation
prohibitions do not violate the Chicago Convention.138 In that case, the question of
circumstances precluding wrongfulness would not arise. Joint Appellants have no
response to this point.
3.46 Another such way would be for the Council to decide that Joint Appellants
did not comply with the preconditions set by international law for the adoption of
countermeasures, including the procedural conditions of notice and an offer of
negotiation, among others.139
3.47 In this respect, Qatar notes that Joint Appellants have never argued either
before the Council or the Court that they gave Qatar the necessary notice or offered
to negotiate with it prior to the adoption of the aviation prohibitions. Indeed, as
Qatar has shown, the aviation prohibitions were adopted without prior warning.140
The Council would therefore be well justified in rejecting Joint Appellants’
countermeasures defence on this ground alone.
3.48 Joint Appellants complain that “[f]or the ICAO Council to consider only
the procedural aspects of countermeasures, without also considering Qatar’s
transgressions that gave rise to them in the first place, would be incoherent, and
137 Ibid.
138 See QCM (A), paras. 3.57-3.58.
139 See International Law Commission, Articles on Responsibility of States for Internationally
Wrongful Acts (2001), Art. 52(1).
140 See QCM (A), paras. 1.12, 2.5, 4.28.
44
result in an inchoate and partial decision”.141 It is difficult to understand why that
would be the case, however, given that Joint Appellants do not dispute that a
countermeasures defence would be invalidated in case it fails to meet the
procedural requirements set out in Article 52(1) of ARSIWA. In such case, the
“substantive justification” of the defence would not need to be addressed.
3.49 In any event, Joint Appellants’ complaint is beside the point. The point is
not that the Council cannot consider the substantive aspects of Joint Appellant’s
defence. In Qatar’s view as stated above,142 it can. Article 84 of the Chicago
Convention gives it that authority, just like every other body empowered to decide
a dispute concerning the “interpretation or application” of a given treaty. The point
is simply that the Council may not even have to address the substantive aspects of
Joint Appellants’ defence.
3.50 The ICAO Council could also conclude that the Chicago Convention
excludes as lex specialis recourse to (non-reciprocal) countermeasures.143 This is
plainly an issue relating to the “interpretation or application” of the Chicago
Convention that is unmistakably within the Council’s jurisdiction.144 If the Council
141 BESUR, para. 4.54.
142 See supra Section III.A.
143 See QCM (A), paras. 3.59-3.67.
144 The opposing views of the Parties about whether countermeasures are available under the
Chicago Convention “cannot but be indicative of a direct conflict of views as to the meaning of the
[Convention], or in other words of a ‘disagreement … relating to [its] interpretation or
application’:—and if there is even one provision … as to which this is so, then the Council is
invested with jurisdiction, were it but the only such provision to be found, which is clearly not the
case”. Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 43.
45
were to so decide, the substance of Joint Appellants countermeasures argument
would be rendered entirely irrelevant.
3.51 Joint Appellants’ Reply contains a number of arguments as to why, in their
view, the Chicago Convention does not exclude countermeasures.145 As they
acknowledge,146 the issue is not ripe for decision at this time; it is a matter for
decision by the Council when this matter returns to it for decision on the merits.
Qatar will therefore not burden the Court by unnecessarily prolonging the debate
on this point. It will confine itself to just three observations for purposes of
highlighting the extent to which Joint Appellants are content to take liberties with
the law to make their case.
3.52 Joint Appellants argue that Qatar’s lex specialis argument “fails to engage
with the terms of the Riyadh Agreements, which clearly establish a broad and freestanding
right of Contracting States to adopt ‘appropriate action’—without
restriction or qualification—in case of another Contracting State’s noncompliance”.
147 Qatar disagrees with this proposition, and in particular Joint
Appellants’ suggestion that this “right” goes beyond the customary international
law right of countermeasures and/or prevails over the Chicago Convention.148
145 BESUR, paras. 4.34-4.47.
146 Ibid., para. 4.33 (“Each of Qatar’s three suggestions would require the Council to determine, in
whole or in part, the Appellants’ claim of countermeasures on the merits, which is improper at the
jurisdictional phase of the proceedings”.).
147 Ibid., para. 4.35.
148 Ibid., para. 2.7.
46
3.53 On the other hand, Qatar agrees with Joint Appellants that this is “a matter
for argument only at the merits stage” before the ICAO Council.149 Qatar would be
remiss not to point out, however, that pursuant to Article 82 of the Chicago
Convention, Joint Appellants have undertaken “not to enter into any … obligations
and understandings [which are] inconsistent with the terms of [the Chicago]
Convention”.150 As Qatar pointed out in its Counter-Memorial, the International
Law Commission (“ILC”) Report on the Fragmentation of International Law has
identified clauses of that precise character as “an express exception to the lex
posterior rule, designed to guarantee the normative power of the earlier treaty”.151
Even though Joint Appellants question the “intransgressible” nature of the
substantive obligations under the ICAO Convention,152 they entirely fail to account
for this provision.
3.54 Joint Appellants also claim that “aviation-related countermeasures are wellknown
in State practice”.153 The instances of practice they cite are, however, beside
the point here. The examples Joint Appellants invoke relating to the U.S.-France
149 Ibid., para. 4.36.
150 Chicago Convention, Art. 82 (BESUM Vol. II, Annex 1) (emphasis added). See QCM (A), para.
3.64 and fn. 270 (“To the extent that Joint Appellants base their countermeasures defence on the
Riyadh Agreements, this provision alone defeats their claim”.).
151 International Law Commission, Fragmentation of International Law: Difficulties Arising from
the Diversification and Expansion of International Law, Report of the Study Group of the
International Law Commission, UN Doc. A/CN.4/L.682 (13 Apr. 2006), para. 268 (some emphasis
added).
152 BESUR, paras. 4.39, 4.43. Joint Appellants are also wrong to suggest that as long as the
obligations under the Chicago Convention are not “given a status akin to jus cogens”, the issue of
exclusion of countermeasures does not arise. Ibid., para. 4.39. The ILC Commentary on Article 50
ARSIWA—which Joint Appellants quote—clearly rejects such view: “States may agree between
themselves on other rules of international law which may not be the subject of countermeasures,
whether or not they are regarded as peremptory norms under general international law”. Ibid.,
para. 4.41 fn. 328 (quoting International Law Commission, Draft Articles on Responsibility of
States for Internationally Wrongful Acts (2001), Art. 50, p. 133, para. 10 (BESUM Vol. II, Annex
13) (emphasis added)).
153 BESUR, para. 4.45.
47
1978 arbitration, Poland and the Soviet Union, South Africa and Yugoslavia all
concern landing rights granted under bilateral treaties,154 matters not governed by
the Chicago Convention. And the one example they cite that does at least in part
involve overflight—the E.U. ban on North Korean carriers155—was imposed
pursuant to paragraph 21 of U.N. Security Council Resolution 2270 adopted on 2
March 2016,156 not as a countermeasure.157
3.55 Finally, Joint Appellants wrongly assert that “specific, express agreement”
is required to exclude countermeasures158 and that they are always available “even
where … treaties already provide exceptions for different circumstances”.159
Nothing in the work of the ILC, however, suggests that countermeasures must be
explicitly excluded. On the contrary, by underscoring that derogation clauses and
the prohibition of reservations can be indicative of a lex specialis excluding
154 See ibid., para. 4.45(a), (b), (c), (d). Joint Appellants refer in particular to the European Union’s
Council Regulation n°1901/98 of 7 September 1998 concerning a ban on flights of Yugoslav
carriers between the Federal Republic of Yugoslavia and the European Community (BESUR, fn.
342), but they fail to note that Article 3, paragraph 2, of that Regulation specifies that “[n]othing
[therein] shall be construed as limiting any existing rights of Yugoslav carriers and aircraft
registered in the FRY other than rights to land in or to take off from the territory of the Community”.
155 Ibid., para. 4.45(e).
156 UN Security Council, Resolution 2270, UN Doc. S/RES/2270 (2 Mar. 2016), para. 21: “Decides
that all States shall deny permission to any aircraft to take off from, land in or overfly, unless under
the condition of landing for inspection, their territory, if they have information that provides
reasonable grounds to believe that the aircraft contains items the supply, sale, transfer or export of
which is prohibited by resolutions 1718 (2006), 1874 (2009), 2087 (2013), 2094 (2013) or this
resolution, except in the case of an emergency landing, and calls upon all States, when considering
whether to grant overflight permission to flights to assess known risk factors”.
157 Joint Applicants misrepresent the facts of this ban. Citing only UNSC Resolution 1718 (2006),
they assert that the EU landing, taking off and overflying bans “are separate from the sanctions
required by the United Nations Security Council”. BESUR, para. 4.45(e). As the text of UNSC
Resolution 2270 quoted in the previous footnote shows, that is plainly incorrect.
158 BESUR, para. 4.41.
159 Ibid., para. 4.41, fn. 330. Joint Appellants purport to illustrate their point by invoking the practice
of Nazi Germany in relation to the Locarno Treaty. Ibid., fn. 330. Qatar considers it telling that Joint
Appellants look to that practice for legal guidance.
48
countermeasures,160 the ILC makes clear that countermeasures may be excluded by
implication. Indeed, treaties that are silent on the issue have been interpreted as
excluding countermeasures.161 Such treaties include the Vienna Conventions on
Diplomatic Relations and on Consular Relations, which the Court has held to
“exclude[] the possibility of recourse to countermeasures”,162 even though they do
not contain a “specific, express agreement” to that effect.
3.56 Qatar reiterates that the point of this discussion is not that the Court should
decide all these issues now. The point is simply that it is entirely possible that the
Council will never have occasion to deal with the substance of Joint Appellants’
claim that Qatar’s actions justified the aviation prohibitions. Joint Appellants’
request that the Court disregard this possibility is another way in which they seek
to impermissibly control the competence of the Council, and ultimately of the
Court itself.
IV. The Adjudication of Qatar’s Claims by the ICAO Council Is Entirely
Consistent with Judicial Propriety
3.57 Joint Appellants maintain their argument that even if the Council has
jurisdiction, Qatar’s claims should be deemed inadmissible as a matter of “judicial
propriety”.163 As they see it, “it would be ‘incompatible with the fundamental
principle of the consensual basis of international jurisdiction’” for the Council to
160 See QCM (A), para. 3.59-3.63.
161 See Court of Justice of the European Communities, Commission v. Grand Duchy of Luxembourg
and Belgium, joined cases 90 and 91/63, Judgment (13 Nov. 1964), Rep. 1964, p. 626.
162 BESUR, para. 4.47 (discussing United States Diplomatic and Consular Staff in Tehran (United
States v. Iran), Judgment, I.C.J. Reports 1980, paras. 83-86).
163 BESUR, para. 4.29.
49
exercise jurisdiction.164 This argument need not detain the Court long. It is an
obvious repurposing of their jurisdictional argument as an objection to
admissibility.
3.58 According to Joint Appellants, “the simple point is that the Council cannot
properly determine the civil aviation issues of the dispute without also adjudicating
the broader aspects of the dispute which fall outside of its jurisdiction, including
the Appellants’ reliance on countermeasures”.165 Their admissibility argument thus
assumes the premise of their jurisdictional argument. If the latter fails (as it does
for all the reasons Qatar has explained), so too does the former. Joint Appellants’
countermeasures defence does not “fall outside” the Council’s jurisdiction; it falls
squarely within it.
3.59 Additionally, as explained in Qatar’s Counter-Memorial, by analogy to the
logic of forum prorogatum, a respondent State presenting a defence on the merits
should be deemed to have consented to it being duly examined should the relevant
international court or tribunal find itself with jurisdiction.166 To recall once again
the words of the Court in the 1972 ICAO Council Appeal case, the opposite would
be tantamount to allowing a “defence on the merits” to negative “the competence
of the tribunal or other organ concerned”.167
164 Ibid., para. 4.28 (quoting BESUM, para. 5.2(b)).
165 BESUR, para. 4.28.
166 QCM (A), para. 3.73, fn. 290.
167 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27.
50
3.60 No issue of consent or “judicial propriety” therefore arises. Joint
Appellants’ admissibility argument must be rejected.
*
3.61 The dispute between the Parties relates to the interpretation or application
of the Chicago Convention and its Annexes. The Council therefore has jurisdiction.
In line with the Court’s prior jurisprudence, Qatar cannot be deprived of its right
to have its claims heard simply because Joint Appellants make unilateral assertions
that the “real issue” in dispute between the Parties concerns matters falling outside
the scope of the Convention. The ICAO Council properly dismissed Joint
Appellants’ Preliminary Objection, and the Court should do the same with respect
to the Second Ground of Appeal.
51
THE COURT SHOULD DENY JOINT APPELLANTS’ THIRD GROUND
OF APPEAL
4.1 Joint Appellants’ Third Ground of Appeal is that the Council erred in
rejecting their objection relating to prior negotiations.168 They claim that the
Council’s decision is wrong for two reasons. First, Qatar allegedly did not comply
with the negotiation requirement in Article 84 of the Chicago Convention, which
Joint Appellants characterise as the “jurisdictional limb”169 of their objection.
Second, “in the alternative”,170 Qatar allegedly did not comply with the requirement
in Article 2(g) of the ICAO Rules for the Settlement of Differences, which Joint
Appellants characterise as “giv[ing] rise to a question of admissibility”.171
4.2 Both arguments are without merit for the reasons explained below.
Accordingly, Joint Appellants’ Third Ground of Appeal fails, just like the other
two. Section I of this Chapter deals with Joint Appellants’ misguided complaint
168 Joint Appellants allege in their Reply that the Decision adopted by the ICAO Council “provides
no basis to conclude that the Council held that Qatar had in fact ‘satisfied the negotiation
requirement’”. BESUR, para. 5.5. However, later in their argument, Joint Appellants admit that the
ICAO Council “reject[ed] the Appellants’ Preliminary Objections in this regard”. Ibid., para. 5.79.
They did the same in their Joint Application (Joint Application Instituting Proceedings, Appeal
Against a Decision of the ICAO Council dated 29 June 2018 on Preliminary Objections
(Application (A), Kingdom of Bahrain, Arab Republic of Egypt, the Kingdom of Saudi Arabia and
the United Arab Emirates v. State of Qatar), 4 July 2018 (hereinafter “ICJ Application (A)”), para.
31) and in their Memorial, where they actually stated that the Council had “not accept[ed] the
Appellants’ Second Preliminary Objection”. BESUM, para. 6.1. The Decision of the ICAO Council
itself expressly states that the Council “decide[d] that the preliminary objection of the Respondents
is not accepted” Decision of the ICAO Council on the Preliminary Objection in the Matter: the State
of Qatar and the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia
and the United Arab Emirates (2017) – Application (A), 29 June 2018 (BESUM Vol. V, Annex
52).
169 BESUR, para. 5.8; see also ibid., para. 5.78.
170 Ibid., para. 5.2; see also ibid., para. 5.78.
171 See, e.g., ibid., paras. 5.1-5.2.
52
that the ICAO Council erred in rejecting their objection based on Article 84 of the
Chicago Convention. Section I.A explains why Joint Appellants misunderstand the
applicable legal standard. Section I.B shows how Joint Appellants misapply that
standard to the facts of the case. Section II then deals with Joint Appellants’
equally misguided complaint that Qatar did not comply with Article 2(g) of the
ICAO Rules for the Settlement of Differences.
I. The ICAO Council Properly Decided that Qatar Satisfied the Article 84
Negotiation Requirement
A. JOINT APPELLANTS MISUNDERSTAND THE RELEVANT LEGAL STANDARD
4.3 In Section I.A of Chapter V of their Reply, Joint Appellants challenge three
elements of Qatar’s position concerning the legal standard governing the
negotiation requirement, characterising all three of them as “wrong”.172 In this
section, Qatar responds to those challenges and shows why it is Joint Appellants
who are mistaken.
1. Article 84 does not require a disputing Party to attempt to negotiate if the
other side entirely refuses to negotiate
4.4 Qatar’s Counter-Memorial showed that after severing diplomatic relations,
Joint Appellants at all times took the view that there was “nothing to negotiate”
with Qatar unless it adhered to their facially unreasonable 13 Demands, which
themselves were “non-negotiable”.173 Qatar also explained that Article 84 of the
172 Ibid., para. 5.10.
173 QCM (A), paras. 1.12, 4.30, 4.41.
53
Chicago Convention does not require a disputing party to attempt to negotiate if
the other disputing party refuses to negotiate ab initio,174 as Joint Appellants did.
4.5 Joint Appellants’ Reply does not argue that they were open to negotiation
with Qatar about the aviation prohibitions (or any other subject). They never once
dispute the fact that they refused to negotiate ab initio. Indeed, they maintain that
position to this day. As recently as 20 June 2019, for example, Saudi Arabia’s
Foreign Minister reportedly stated that dialogue with Qatar was “ruled out …
unless it changes its behavior”.175
4.6 Rather than argue that dialogue with Qatar was possible, Joint Appellants
instead take the position that, even in such circumstances, the first disputing party
must still make an attempt to negotiate.176 Qatar considers this self-evidently
absurd.
4.7 It is true that the Court in both Georgia v. Russian Federation and
Obligation to Extradite or Prosecute held that the “precondition of negotiation”
requires “at the very least … a genuine attempt … to engage in discussions with
the other disputing party, with a view to resolving the dispute”.177 But neither case
involved the circumstance presented here: the counter-party’s immediate and total
refusal to talk at any time, in any forum, on any subject. The question of the
174 Ibid., paras. 4.20, 4.36.
175 Ramadan Al Sherbini, “Iran to face ‘strong response’ if it closes Strait of Hormuz”, Gulf News
(20 June 2019) (QR (A) Vol. II, Annex 11).
176 BESUR, paras. 5.10(a), 5.11-5.31.
177 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 157; Questions Relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Judgment, I.C.J. Reports 2012, para. 57.
54
application of the negotiation requirement in such circumstances was not before
the Court in those two cases. Joint Appellants’ insistence on the “genuine attempt”
language is therefore misplaced.
4.8 Interpreting Article 84 of the Chicago Convention to require a disputing
party to attempt to negotiate even in the face of the other disputing party’s absolute
refusal would be inconsistent with good faith as well as the object and purpose of
the requirement, not to mention common sense. If no talks are possible on any
subject, no purpose could be served by insisting that States nevertheless make a
futile, entirely formalistic attempt to negotiate merely for purposes of “checking
the box”.
4.9 This reading of Article 84 would in no way negate the “three distinct
functions” of a negotiation requirement the Court identified in Georgia v. Russian
Federation.178
4.10 A disputing party that refuses ab initio to negotiate can hardly claim that it
is not already aware of the existence of the other party’s claims, or of their scope
and subject-matter. Indeed, why decline to negotiate if those claims are not
disputed? This is certainly the case with Joint Appellants. Not only were they fully
178 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 131: “[i]t is not unusual in compromissory clauses conferring jurisdiction on the Court
and other international jurisdictions to refer to resort to negotiations. Such resort fulfills three
distinct functions. In the first place, it gives notice to the respondent State that a dispute exists and
delimits the scope of the dispute and its subject-matter … In the second place, it encourages the
Parties to attempt to settle their dispute by mutual agreement, thus avoiding recourse to binding
third-party adjudication. In the third place, prior resort to negotiations or other methods of peaceful
dispute settlement performs an important function in indicating the limit of consent given by States
…”.
55
informed of Qatar’s complaints from the outset,179 they also expressly refused to
discuss them on multiple occasions, both before the ICAO Council180 and
publicly.181
4.11 A disputing party’s absolute refusal to negotiate also discharges the
negotiation requirement’s second function as well: settlement by mutual agreement
is obviously impossible, making recourse to binding third-party adjudication
unavoidable.
4.12 Finally, considering that the negotiation requirement in Article 84 is
dispensed of by virtue of a disputing party’s ab initio refusal does not undermine
in any way its function “in indicating the limit of consent given by States”.182
179 As explained in Qatar’s Memorial, and has not been contested in Joint Appellants’ Reply, two
days after the imposition of the aviation prohibitions, on 7 June 2017, the ICAO Secretary General
replied to Qatar’s June 5 appeal, stating that she had “brought the matter to the attention of the
relevant Representatives on the Council of ICAO”. Letter from Fang Liu, ICAO Secretary General,
to Abdulla Nasser Turki Al-Subaey, Chairman of Qatar Civil Aviation Authority, Reference No.
AN 13/4/3/Open-AMO66892 (7 June 2017) (QCM (A) Vol. III, Annex 22). At the time, three of
the Joint Appellants (Egypt, Saudi Arabia and the UAE) were among the thirty-six Member States
serving on the ICAO Council. They were thus formally notified of Qatar’s complaint. None of them,
however, provided any response of any kind. To the contrary, they later expressly excluded from
consideration and appropriate action by the ICAO Council the question of the lawfulness of the
aviation prohibitions. QCM (A), paras. 4.60-4.63.
180 See QCM (A), paras. 4.60-4.62.
181 ICAO Response to the Preliminary Objections (A), Exhibit 58, Foreign Ministers of Saudi
Arabia, Bahrain, UAE and Egypt: Measures taken against Qatar are sovereign, and we all are
negatively impacted when terrorism and extremism become stronger (30 July 2017) (stating that
“there is no negotiation over the 13 demands” and that “we made a decision not to allow our airspace
or borders to be used and this is our sovereign right”) (BESUM Vol. IV, Annex 25).
182 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 131.
56
4.13 Joint Appellants argue that they are right to insist that an attempt to
negotiate be made because “reaching a conclusion as to the failure or futility of
negotiations necessarily presupposes that a genuine attempt to negotiate has at the
very least been made”.183 They are mistaken. An absolute and total refusal to talk
not only makes it possible to reach the conclusion that negotiations would be futile,
it makes that conclusion unavoidable.
4.14 Qatar’s interpretation of Article 84 is entirely consistent with the
interpretation of procedural requirements in several specialised areas of
international law. For example, in the law of diplomatic protection, local remedies
generally need to be exhausted, but one need not even attempt to exhaust them if
such remedies are futile.184 Similarly, in human rights law, complainants are
generally required to exhaust local remedies, but once again they do not even need
to attempt to pursue such remedies where they are evidenced to be futile.185 And in
183 BESUR, para. 5.20.
184 International Law Commission, Draft Articles on Diplomatic Protection (2006), in Official
Records of the General Assembly, Sixty-first Session, UN Doc. A/61/10, Art. 15(a) (“Local remedies
do not need to be exhausted where: (a) There are no reasonably available local remedies to provide
effective redress, or the local remedies provide no reasonable possibility of such redress”);
International Law Commission, Draft Articles on Diplomatic Protection, with commentaries
(2006), Art. 15(3): “In this form the test is supported by judicial decisions which have held that
local remedies need not be exhausted where the local court has no jurisdiction over the dispute in
question; the national legislation justifying the acts of which the alien complains will not be
reviewed by local courts; the local courts are notoriously lacking in independence; there is a
consistent and well-established line of precedents adverse to the alien; the local courts do not have
the competence to grant as appropriate and adequate remedy to the alien; or the respondent State
does not have an adequate system of judicial protection”.
See also Claim of Finnish shipowners against Great Britain in respect of the use of certain Finnish
vessels during the war (Finland, Great Britain), Award (9 May 1934), UNRIAA, Vol. III, p. 1503
(“The parties in the present case, however, agree—and rightly—that the local remedies rule does
not apply where there is no effective remedy”.).
185 Cyprus v. Turkey (app. no. 25781/94), Judgment (ECtHR 10 May 2001), para. 99 (“The Court
recalls…that the exhaustion rule is inapplicable where an administrative practice…has been shown
to exist and is of such a nature as to make proceedings futile or ineffective …”.); Earl Pratt and
Ivan Morgan v. Jamaica, Human Rights Committee, Communication Nos. 210/1986 and 225/1987,
Views (6 Apr. 1989), para. 12.3 (“That the local remedies rule does not require resort to appeals
57
international investment law, investors are sometimes subject to requirements of
litigation before the courts of the host State contained in investment treaties, but
investors are not even required to attempt local litigation when it is proven to be
futile.186
4.15 Qatar also observes that the language of Article 84 of the Chicago
Convention is different from both Article 22 of CERD and Article 30(1) of the
Convention Against Torture (“CAT”), the jurisdictional titles in Georgia v. Russian
Federation and Obligation to Extradite or Prosecute, respectively.
4.16 Article 84 of the Chicago Convention provides:
“If any disagreement between two or more
contracting States relating to the interpretation or
application of this Convention and its Annexes
cannot be settled by negotiation, it shall, on the
application of any State concerned in the
that objectively have no prospect of success, is a well established principle of international law and
of the Committee's jurisprudence”.); Case of Akdivar and Others v. Turkey (app. no. 21893/93),
Judgment (ECtHR 16 Sept.1996), para. 67 (holding that the application could not be rejected for
failure to exhaust local remedies (Ibid., para. 76) because of “obstacles to the proper functioning of
the system of the administration of justice” (Ibid., para. 70), even though the applicants “did not
even make the slightest attempt” to exhaust local remedies (Ibid., para. 56)); Case of Hornsby v.
Greece (app. no. 18357/91), Judgment (ECtHR 19 Mar. 1997), paras. 36-37 (holding that local
remedies were futile and thus did not need to be exhausted, even though the applicants did not even
attempt to initiate proceedings before civil courts and the administrative authorities).
186 See, e.g., Ambiente Ufficio S.p.A. and others v. Argentine Republic, ICSID Case No. ARB/08/9,
Decision on Jurisdiction and Admissibility (8 Feb. 2013), paras. 594, 620 (holding that the local
litigation requirement was inapplicable because “having recourse to the Argentine domestic courts
and eventually to the Supreme Court …would have accordingly been futile” (Ibid., para. 620), even
though “Claimants did not submit the dispute to Argentine courts” (Ibid., para. 594); ST-AD GmbH
v. Republic of Bulgaria, PCA Case No. 2011-06 (ST-BG), Award on Jurisdiction (18 July 2013),
paras. 364-365 (holding that “every treaty or rule of international law has to be interpreted in good
faith. As a consequence, it can be considered that there is an implied condition that if there is a clear
and insuperable futility in following a required procedure, this procedure might, in these specific
circumstances, be dispensed of”.) (emphasis added).
58
disagreement, be decided by the Council.”187
4.17 Unlike Article 22 of CERD and Article 30(1) of CAT,188 Article 84 of the
Chicago Convention is prefaced by the conditional conjunction “if”.189 “If” means:
“in the event that”; “allowing that”; “on the assumption that”; and “on condition
that”. 190 It is thus a conjunction used to express a condition that is necessary in
order for something to happen. Particularly when paired with the use of the term
“cannot”,191 which denotes impossibility, the use of “if” in Article 84 clearly calls
187 Chicago Convention, Art. 84 (BESUM Vol. II, Annex 1).
188 Article 22 of CERD provides: “Any dispute between two or more States Parties with respect to
the interpretation or application of this Convention, which is not settled by negotiation or by the
procedures expressly provided for in this Convention, shall, at the request of any of the parties to
the dispute, be referred to the International Court of Justice for decision, unless the disputants agree
to another mode of settlement”. International Convention on the Elimination of All Forms of Racial
Discrimination, (1969) 660 U.N.T.S. 195 (12 Mar.1969) (entry into force: 4 Jan. 1969), Art. 22.
Article 30(1) of CAT provides in relevant part: “Any dispute between two or more States Parties
concerning the interpretation or application of this Convention which cannot be settled through
negotiation shall, at the request of one of them, be submitted to arbitration”. Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (1984) 1465 U.N.T.S.
85 (26 June 1984) (entry into force: 26 June 1987), Art. 30(1). Both provisions establish negotiation
requirements that directly modify the word “dispute”. Article 84 of the Chicago Convention, on the
other hand, establishes its negotiation requirement through an “if” clause. Chicago Convention, Art.
84 (“If any disagreement between two or more contracting States relating to the interpretation or
application of this Convention and its Annexes cannot be settled by negotiation, it shall, on the
application of any State concerned in the disagreement, be decided by the Council”.) (BESUM Vol.
II, Annex 1).
189 The conjunction “if” appears in all of the other equally authoritative versions of the Convention.
The French text provides: “Si un désaccord … ne peut être réglé par voie de négociation …”. The
Russian text provides: “Если какое-либо разногласие … не может быть урегулировано путем
переговоров …”. The Spanish text provides: “Si surge un desacuerdo … que no pueda ser
solucionado mediante negociaciones …”. Convention on International Civil Aviation (7 Dec. 1944)
(entry into force: 4 Apr. 1947), Quadrilingual Version, ICAO Doc. 7300/9 (9th ed. 2006), Art. 84
(QR (A) Vol. II, Annex 3) (emphasis added).
190 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed., 2009), p. 617 (QR (A) Vol. II,
Annex 14).
191 The term “cannot” also appears in all of the other equally authoritative versions of the
Convention. The French text provides: “Si un désaccord … ne peut être réglé par voie de
négociation …”. The Russian text provides: “Если какое-либо разногласие … не может быть
урегулировано путем переговоров …”. The Spanish text provides: “Si surge un desacuerdo …
que no pueda ser solucionado mediante negociaciones …”. Convention on International Civil
Aviation (7 Dec. 1944) (entry into force: 4 Apr. 1947), Quadrilingual Version, ICAO Doc. 7300/9
(9th ed. 2006), Art. 84 (QR (A) Vol. II, Annex 3) (emphasis added).
59
for an objective assessment of fact:192 the impossibility of settlement by negotiation
of a “disagreement between two or more contracting States relating to the
interpretation or application of this Convention and its Annexes”.193
4.18 In making this objective assessment, the Court may be guided by the
existence of a “genuine attempt” to negotiate which subsequently failed or became
futile. But there is no reason why it may not be equally guided by a disputing
party’s refusal ab initio to enter into negotiations, which no less demonstrates that
the disagreement “cannot be settled by negotiation”.
192 In this sense, although Qatar recognises the differences in the wording of the two provisions,
Article 84 is akin to Article XXI(2) of the US-Iran Treaty of Amity, Economic Relations and
Consular Rights, which the Court recently held to be “descriptive in character”. Alleged Violations
of the 1955 Treaty of Amity, Economic Relations and Consular Rights (Islamic Republic of Iran v.
United States of America), Request for the Indication of Provisional Measures, Order, I.C.J. Reports
2018, para. 50. In its Counter-Memorial, Qatar cited the Tehran Hostages, where the Court had its
first occasion to interpret and apply that provision, as an example of a case where one State, in that
case Iran, refused to negotiate ab initio. QCM (A), para. 4.8. Joint Appellants raise three objections
to the relevance of this case, none of which holds particular merit. First, Joint Appellants attempt
to distinguish the case on the basis of the precise wording of Article XXI(2). BESUR, para. 5.26.
True, the language of Article 84 of the Chicago Convention and that of Article XXI(2) of the USIran
Treaty of Amity are different, but so is the language of Article 22 of CERD at issue in Georgia
v. Russian Federation). As explained above, the introduction of the negotiation requirement by the
conditional conjunction “if” calls for an objective assessment of non-settlement of the dispute as a
matter of fact. Second, Joint Appellants point out that the words “immediate and total refusal” cited
by Qatar in its Counter-Memorial were used by the Court in discussing another aspect of Article
XXI(2). BESUR, para. 5.27. Again, this is a meaningless distinction. The point is that the Court
used these words to describe Iran’s conduct, and ultimately relaxed its application of the negotiation
requirement as a result of Iran’s complete refusal to negotiate. Third, and finally, Joint Appellants
assert that, in the Tehran Hostages case, “the United States had in fact made genuine attempts to
initiate negotiations with Iran”. BESUR, para. 5.28. Joint Appellants fail, however, to specify what
these alleged “attempts” were. The Court’s Judgment specifies only three such attempts: (1) the
dispatch of a special emissary who “denied all contact with Iranian officials [and] never entered
Iran”; 2) requests for help by the US Chargé d’affaires during the assault on the embassy; and (3) a
letter sent by the United States to the President of the Security Council. United States Diplomatic
and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, paras. 18, 28, 47. If this conduct can
be considered as “genuine attempts” to negotiate, then, as explained below in Section I.B, Qatar
most certainly satisfied the negotiation requirement in the present case.
193 Chicago Convention, Art. 84 (BESUM Vol. II, Annex 1).
60
4.19 In conclusion, the only reasonable, good faith interpretation of the
negotiation requirement of Article 84 of the Chicago Convention is that it does not
require a disputing party to attempt to negotiate if the other disputing party refuses
to negotiate ab initio.
4.20 That said, Qatar wishes to add that it makes this argument both because it
considers it correct as a matter of law and to highlight Joint Appellants’ lack of
good faith in every aspect of this proceeding. Their attempt to hide behind the
Article 84 negotiation requirement even as they adamantly—and now admittedly—
refused to talk with Qatar is an act of pure audacity. Qatar does not make the
argument presented here because it did not make a genuine attempt to negotiate.
As detailed in Section II below, it did so on multiple occasions and in multiple fora.
2. A genuine attempt to negotiate need only be made “with a view to
resolving the dispute”
4.21 In their Reply, Joint Appellants argue that Qatar’s formulation of the
subject-matter requirement of negotiation attempts is “wrong”.194 Immediately
thereafter, however, they state that “the difference between the Parties [on this
issue] appears to be one of emphasis rather than one in law”.195 Citing the Court’s
jurisprudence, Qatar’s Counter-Memorial showed that a negotiation attempt must
address the subject-matter of the dispute with “sufficient clarity”.196 Joint
194 BESUR, para. 5.10.
195 Ibid., para. 5.10(b).
196 QCM (A), para. 4.15.
61
Appellants now argue in their Reply that the subject-matter must be identified with
“sufficient specificity”.197
4.22 Although the two formulations may appear similar at first glance, the way
in which Joint Appellants seek to apply their “sufficient specificity” test leads to
an approach that is plainly inconsistent with the Court’s jurisprudence. Joint
Appellants assert, for example, that an attempt to negotiate must “identify the
specific obligations which form the subject-matter of the dispute”,198 and “identify
the relevant substantive obligations which are said to have been breached”.199 Joint
Appellants go so far as to say that the attempt must identify the “specific
substantive obligations under the Chicago Convention”.200 These assertions are
incorrect.
4.23 The only support that Joint Appellants cite is the following passage from
Georgia v. Russian Federation:
“[T]hese negotiations must relate to the subjectmatter
of the treaty containing the compromissory
clause. In other words, the subject-matter of the
197 BESUR, para. 5.10(b) (emphasis added).
198 Ibid., Chapter V, Section 1(A)(3) heading (emphasis added).
199 Ibid., para. 5.37 (emphasis added).
200 Ibid., para. 5.64 (emphasis added). Joint Appellants also state that “[t]his requirement of
specificity is particularly important in a situation such as the present, where the dispute alleged by
Qatar forms only one part of a much broader international dispute between the Parties, as Qatar
acknowledges”. Ibid., para. 5.37. However, as explained above, Joint Appellants were put on notice
of a dispute relating to the interpretation or application of the Chicago Convention a mere two days
after the imposition of the aviation prohibitions on 5 June 2017. See Letter from Fang Liu, ICAO
Secretary General, to Abdulla Nasser Turki Al-Subaey, Chairman of Qatar Civil Aviation
Authority, Reference No. AN 13/4/3/Open-AMO66892 (7 June 2017) (QCM (A) Vol. III, Annex
22). And they refused to discuss that dispute not only then, but also in the ensuing debates before
the ICAO Council. See, e.g., ICAO Council, 211th Session, Summary Minutes of the Tenth Meeting,
ICAO Doc. C-MIN 211/10 (23 June 2017), paras. 15, 18, 20 (QCM (A) Vol. III, Annex 24).
62
negotiations must relate to the subject-matter of the
dispute which, in turn, must concern the substantive
obligations contained in the treaty in question”.201
4.24 Joint Appellants misconstrue what the Court held. This passage states only
that the negotiations must “relate to the subject-matter of the dispute” (i.e., the
aviation prohibitions). The dispute, in turn, must “concern the substantive
obligations contained in the treaty” (i.e., obligations of international civil aviation).
The Court distinctly does not state that negotiations must identify specific
substantive obligations in the treaty.202 Indeed, the Court in that case held that the
negotiation requirement would have been satisfied if the negotiations between the
parties had covered only general subject matters covered by the treaty in question
(there, CERD). Specifically, the Court held that the requirement would have been
satisfied if there had been negotiations between the parties concerning
“extermination” and “ethnic cleansing”, without specifying the substantive
obligations of CERD in question.203
4.25 It should also be emphasised that the passage quoted relates to the subjectmatter
requirement for negotiations that have commenced, not to attempts to
negotiate that were rebuffed and thus did not lead to actual negotiations.204 In the
latter situation, it does not make sense to impose as stringent a subject-matter
requirement as Joint Appellants advance, since negotiations did not actually take
place. Consistent with this logic, the Court in Georgia v. Russian Federation held
201 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 161.
202 BESUR, para. 5.37.
203 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 181.
204 Ibid., para. 161.
63
that attempts to negotiate need only to be made “with a view to resolving the
dispute”.205 That confirms the appropriate legal standard to be applied here. Joint
Appellants entirely miss this distinction.
3. Negotiations should be assessed with flexibility
4.26 Qatar’s Counter-Memorial also explained that what constitutes negotiations
“should be assessed with flexibility”206 and that “no specific format or procedure
is required”.207 Joint Appellants’ Reply first calls Qatar’s position in this respect
“wrong”.208 Immediately thereafter, however, it states that there is “apparent
agreement” between the Parties on this point.209 The latter view appears to be the
right one. Indeed, Joint Appellants specifically state that they “do not dispute that
as a matter of principle, an attempt to negotiate may be held to have been made
through the medium of diplomacy by conference or parliamentary diplomacy”.210
4.27 Joint Appellants dispute only the facts and “in particular whether Qatar’s
actions in international organisations, including in the context of ICAO, qualify as
a ‘genuine attempt … to engage in discussions with the other disputing party, with
a view to resolving the dispute’”.211 As Qatar will show in the next section, its
205 Ibid., para. 157.
206 QCM (A), para. 4.16.
207 Ibid., para. 4.17.
208 BESUR, para. 5.10.
209 Ibid., para. 5.10(c); see also ibid, para. 5.38 (noting that “there appears to be no substantive
disagreement between the Parties as to the applicable legal principles”).
210 Ibid., para. 5.39.
211 Ibid., para. 5.40 (quoting Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011, para. 157).
64
actions, including in the ICAO context, plainly constituted a genuine attempt to
negotiate.
B. JOINT APPELLANTS MISAPPLY THE LEGAL STANDARD TO THE FACTS
4.28 Joint Appellants’ Reply maintain their incredible assertion that Qatar “has
not shown that at any point prior to the submission of its Application to ICAO on
30 October 2017, it took any concrete steps to initiate negotiations with the
Appellants” in respect of Qatar’s claims of breach of the Chicago Convention and
its Annexes.212 At the same time, as stated, Joint Appellants never once deny that
they entirely refused to negotiate with Qatar, not just about the aviation
prohibitions, but about anything at all.213 The Court may thus find that any
negotiation requirement in Article 84 was satisfied without more, for the reasons
explained above.
4.29 If, however, the Court finds it necessary to examine Qatar’s “genuine
attempts” to negotiate with Joint Appellants “with a view to resolving the dispute”
under the Chicago Convention and its Annexes, the result would be no different.
In its Counter-Memorial, Qatar explained how it met the Article 84 negotiation
requirement through direct means,214 ICAO,215 the WTO,216 and third States.217
Joint Appellants’ Reply does not deny any of the facts or evidence that Qatar put
forward. Instead, they quibble over what these facts and evidence mean in light of
212 BESUR, para. 5.41.
213 See QCM (A), paras. 4.30-4.34, 4.54.
214 Ibid., Chapter 4, Section I.B.1.
215 Ibid., Chapter 4, Section I.B.2.
216 Ibid., Chapter 4, Section I.B.3.
217 Ibid., Chapter 4, Section I.B.4.
65
technical aspects of the applicable legal standards in an attempt to avoid the
conclusions that flow from the undisputed record. The facts, however, speak for
themselves, as Qatar will further demonstrate below.
1. Qatar genuinely attempted to negotiate with Joint Appellants directly
4.30 Joint Appellants allege that “Qatar puts forward no evidence of even a
single attempt to settle the dispute with the Appellants by seeking to engage in
discussions as to the alleged breaches by the Appellants of their obligations under
the Chicago Convention”.218 This is wrong on the law and on the facts. On the law,
as stated, Qatar’s genuine attempts to negotiate need only have been made “with a
view to resolving the dispute”; they did not need to “seek[] to engage in discussions
as to the alleged breaches”. On the facts, Qatar’s Counter-Memorial presented a
veritable mound of evidence of such attempts to settle the dispute.219
4.31 Joint Appellants’ Reply attempts to distract the Court from Qatar’s
evidence by discussing its “original, abortive, applications” to the Council filed on
15 June 2017.220 Those applications, however, are not the applications relevant to
the present proceedings. The present appeal concerns only the applications Qatar
filed with the Council on 30 October 2017.
4.32 Joint Appellants next attempt to discredit the call between His Highness the
Amir of Qatar and the Crown Prince of Saudi Arabia on 8 September 2017.221 They
218 BESUR, para. 5.43 (emphasis omitted).
219 QCM (A), paras. 4.38-4.56.
220 BESUR, para. 5.45.
221 Ibid., para. 5.48. Notably, Joint Appellants do not dispute anymore that the phone call between
His Highness the Amir of Qatar and the Crown Prince of Saudi Arabia took place. Compare
BESUM, para. 6.78 to BESUR, para. 5.49.
66
assert that “the telephone conversation did not go beyond a general call for dialogue
in relation to the wider dispute between the Parties as a whole” and did not
“concern[] ‘the substantive obligations contained in the treaty in question’”.222 But,
as explained, this is not the proper subject-matter test for attempts to negotiate.223
The attempt must be made “with a view to resolving the dispute”, which was indeed
the case with the telephone call between His Highness the Amir and the Crown
Prince.224 Indeed, as stated in Qatar’s Counter-Memorial, an Emirati news agency
recorded a Saudi Foreign Ministry official’s statement in the aftermath of the call
that “[t]he call was at the request of Qatar and was a request for dialogue with the
four countries on the demands”.225 And according to Qatar News Agency, His
Highness the Amir also welcomed a proposal made by the Saudi Crown Prince “to
assign two envoys to settle [the] issues in dispute”,226 which included the aviation
prohibitions that Joint Appellants had excluded from consideration and appropriate
action by the ICAO Council during the preceding months.227
4.33 Joint Appellants also try to discredit Qatari official statements expressly
referencing “air links” and “the blockade”, claiming “they do not identify nor seek
to initiate negotiations in relation to the dispute as to the Appellants’ compliance
with their relevant substantive obligations contained in the Chicago
Convention”.228 But once again, they are mistaken. To cite just the examples Joint
222 BESUR, para. 5.49.
223 See supra Section I.A.2.
224 See QCM (A), paras. 4.48-4.49.
225 Ibid., para. 4.45 (quoting “Hopes for Qatar crisis breakthrough raised, shattered within minutes”,
Gulf News (9 Sept. 2017) (QCM (A) Vol. IV, Annex 90)).
226 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept. 2017)
(QCM (A) Vol. IV, Annex 90).
227 See infra Section I.B.2.
228 BESUR, para. 5.53.
67
Appellants’ Reply refers to,229 the Qatari statements reported in the press on 28
June, 5 July and 22 July 2017 all seek to initiate negotiations;230 and all were made
with a view to resolving all of the disputes arising from Joint Appellants’ 5 June
2017 measures, including the dispute under the Chicago Convention and its
Annexes.231 That is all that international law requires in terms of attempts to
negotiate, as explained above.
229 Joint Appellants take issue only with statements reported on 28 June 2017, 5 July 2017 and 22
July 2017, but these are not the only statements establishing Qatar’s attempts to negotiate with a
view to resolving the dispute. See QCM (A), para. 4.38.
230 ICAO Response to the Preliminary Objections (A), Exhibit 34, BBC, Qatar condemns Saudi
refusal to negotiate over demands (28 June 2017) (reporting His Excellency the Foreign Minister
of Qatar’s statement that Qatar “will engage in a constructive dialogue with the parties concerned
if they want to reach a solution and overcome this crisis”) (BESUM Vol. IV, Annex 25); ICAO
Response to the Preliminary Objections (A), Exhibit 40, Foreign Minister: Any Threat to Region is
Threat to Qatar (5 July 2017) (reporting His Excellency the Foreign Minister of Qatar’s statement
that “[t]he answer to our disagreements is not blockades and ultimatums. It is dialogue and reason.
We in Qatar are always open to both, and we welcome any serious efforts to resolve our differences
with our neighbours … And we always welcome dialogue and negotiations … Qatar continues to
call for dialogue … Qatar stands ready to engage in a negotiations process with a clear framework
and set of principles that guarantee that our sovereignty is not infringed upon”.) (BESUM Vol. IV,
Annex 25); “Emir speech in full text: Qatar ready for dialogue but won’t compromise on
sovereignty”, The Peninsula (22 July 2017), p. 7 (reporting His Highness the Amir of Qatar’s
statement that Qatar is “ready for dialogue and for reaching settlements on all contentious issues”)
(QCM (A) Vol. IV, Annex 86).
231 ICAO Response to the Preliminary Objections (A), Exhibit 34, BBC, Qatar condemns Saudi
refusal to negotiate over demands (28 June 2017) (reporting His Excellency the Foreign Minister
of Qatar’s reference to Qatar’s “Gulf neighbours…refusing to negotiate over their demands for
restoring air, sea and land links”) (BESUM Vol. IV, Annex 25); ICAO Response to the Preliminary
Objections (A), Exhibit 40, Foreign Minister: Any Threat to Region is Threat to Qatar (5 July 2017)
(reporting His Excellency the Foreign Minister of Qatar’s repeated references to the “blockade” and
to the “extraordinary, unprovoked and hostile actions against Qatar”) (BESUM Vol. IV, Annex
25); “Emir speech in full text: Qatar ready for dialogue but won’t compromise on sovereignty”, The
Peninsula (22 July 2017), p. 7 (reporting His Highness the Amir of Qatar’s statement that Qatar is
“ready for…reaching settlements on all contentious issues”) (QCM (A) Vol. IV, Annex 86). All of
these statements follow Qatar’s initiation of the Article 54(n) procedure and Joint Appellants’
submissions before the ICAO Council in the context of those proceedings seeking to exclude from
consideration and Council action the aviation prohibitions as such. QCM (A), paras. 4.60-4.63.
68
4.34 In conclusion, Qatar’s attempts to negotiate through direct means were
sufficient in and of themselves to satisfy the Article 84 negotiation requirement.
2. Qatar genuinely attempted to negotiate through ICAO
4.35 Joint Appellants admit that “an attempt to negotiation may be held to have
been made through the medium of diplomacy by conference or parliamentary
diplomacy”.232 They nevertheless challenge the adequacy of Qatar’s attempts to
negotiate through ICAO on the facts.
4.36 Joint Appellants first challenge the relevance of the letters Qatar sent to the
ICAO Secretary General and the President of the Council on the grounds that the
letters “were not addressed to the Appellants, and in any event did not seek to
initiate negotiations in respect of the dispute relating to the Chicago
Convention”.233 Joint Appellants entirely fail, however, to respond to the points
Qatar made in its Counter-Memorial on this issue.
4.37 The fact that the letters “were not addressed” to Joint Appellants is
immaterial. As Qatar explained in its Counter-Memorial,234 upon receiving Qatar’s
letters, the ICAO Secretary General immediately “brought the matter to the
attention of the relevant Representatives on the Council of ICAO”, which included
representatives of Egypt, Saudi Arabia and the UAE.235 Moreover, on 19 June
2017, the President of the Council transmitted all of Qatar’s letters to all Council
232 BESUR, para. 5.39.
233 Ibid., para. 5.56.
234 QCM (A), para. 4.59, fn. 391.
235 Letter from Fang Liu, ICAO Secretary General to Abdulla Nasser Turki Al-Subaey, Chairman
of Qatar Civil Aviation Authority, Reference No. AN 13/4/3/Open-AMO66892 (7 June 2017)
(QCM (A) Vol. III, Annex 22).
69
delegations, again including Egypt, Saudi Arabia and the UAE.236 Joint Appellants
do not deny any of this in their Reply. Their complaint that the letters “were not
addressed to [them]” is therefore meritless.
4.38 Moreover, Joint Appellants’ contention that the letters “did not seek to
initiate negotiations in respect of the dispute relating to the Chicago Convention”
is simply false. For example, Qatar’s 5 June 2017 letter to the ICAO Secretary
General stated that the aviation prohibitions were “not in accordance with the Spirit
of the Chicago Convention” and invited her to “consider bringing this issue to the
attention of the ICAO Council”.237
4.39 Similarly, Qatar’s 17 June 2017 letter to the President of the Council
requested that the Council “include this top-urgent item to the Work Programme
of the ongoing ICAO Council 211th Session and [undertake] urgent actions to
restore the safe, secured and efficient flow of air traffic and immediate removal of
the current blockade exercised unlawfully against Qatar-registered aircraft…”238
None of the Joint Appellants provided any response of any kind.
236 Email from Olumuyiwa Benard Aliu, President of the ICAO Council, to All Council Delegations
(19 June 2017) (QR (A) Vol. II, Annex 4).
237 ICAO Response to the Preliminary Objections (A), Exhibit 2, Letter from Abdulla Nasser Turki
Al-Subaey, Chairman of Qatar Civil Aviation Authority, to Fang Liu, ICAO Secretary General (5
June 2017) (BESUM Vol. IV, Annex 25); see also ICAO Response to the Preliminary Objections
(A), Exhibit 3, Letter from Abdulla Nasser Turki Al-Subaey, Chairman of Qatar Civil Aviation
Authority, to Dr. Olumuyiwa Benard Aliu, President of ICAO, 2017/15984 (8 June 2017) (BESUM
Vol. IV, Annex 25).
238 ICAO Response to the Preliminary Objections (A), Exhibit 1, Letter from Abdulla Nasser Turki
Al-Subaey, Chairman of Qatar Civil Aviation Authority, to Olumuyiwa Benard Aliu, President of
the ICAO Council (17 June 2017) (BESUM Vol. IV, Annex 25) (emphasis added).
70
4.40 Both letters plainly meet any requirement, including under Joint
Appellants’ own case, of attempting to negotiate “through the medium of
diplomacy by conference or parliamentary diplomacy”.239
4.41 Joint Appellants next seek to discount the Parties’ exchanges in the context
of the procedure Qatar initiated pursuant to Article 54(n) of the Chicago
Convention, arguing that they “cannot be regarded as constituting negotiations”
because they “were limited to issues relating to safety of aviation and contingency
routes”.240 Joint Appellants also claim that Qatar’s complaints about their
violations of the Chicago Convention in the Article 54(n) proceedings were “mere
protests or disputations”, and thus cannot constitute negotiations.241
4.42 This is not an accurate description of the facts. Qatar initiated the Article
54(n) procedure with a view to resolving the same dispute over the aviation
prohibitions that it was later constrained to bring before the ICAO Council pursuant
to Article 84. If the procedure ultimately only addressed issues relating to the safety
of aviation and contingency routes, that is only because Joint Appellants refused to
engage in any way at all on any other subject.
4.43 Qatar’s Request under Article 54(n) did not only raise “issues relating to
safety of aviation and contingency routes”.242 It also expressly called for the urgent
intervention of the ICAO Council to “urge the Blocking States to lift all the
239 BESUR, para. 5.39.
240 Ibid., para. 5.58.
241 Ibid., para. 5.59.
242 Ibid., para. 5.58.
71
restrictions over the high seas”,243 and to “examine and consider” Joint Appellants’
“international airspace blockade over the High Seas against Qatar-registered
aircraft and the State of Qatar”.244 And it did not only “broadcast [Qatar’s]
accusations before the ICAO Council”.245 It also called on the Council to “urge
[Joint Appellants] to cease these unjustified measures against the State of Qatar,
in order to ensure the rights of the State of Qatar under the Chicago Convention
are fully respected”.246
4.44 Joint Appellants’ response was uncompromising. As Qatar recalled in its
Counter-Memorial—and the Reply does not dispute—Appellants Egypt, Saudi
Arabia and the UAE refused to enter into any discussion of the aviation prohibitions
at the ICAO Council’s 211th Session on 23 June 2017.247 And all Joint Appellants
reiterated their refusal in their joint working paper submitted prior to the Council’s
243 ICAO Response to the Preliminary Objections (A), Exhibit 10, Council – Extraordinary Session:
Request of the State of Qatar for Consideration by the ICAO Council under Article 54(n) of the
Chicago Convention, ICAO Doc. C-WP/14641, p. 1 (BESUM Vol. IV, Annex 25).
244 Request of the State of Qatar for Consideration by the ICAO Council under Article 54(n) of the
Chicago Convention (15 June 2017), p. 1 (“Background”), pp. 6-8 (“Violations of the Chicago
Convention”) (BESUM Vol. V, Annex 31) (emphasis added).
245 BESUR, para. 5.60.
246 Request of the State of Qatar for Consideration by the ICAO Council under Article 54(n) of the
Chicago Convention (15 June 2017), p. 10 (“Conclusion”) (BESUM Vol. V, Annex 31) (emphasis
added).
247 ICAO Council, 211th Session, Summary Minutes of the Tenth Meeting, ICAO Doc. C-MIN
211/10 (23 June 2017), para. 15 (the Saudi representative stating that “the focus of the discussion
should rest on safety, security and air navigation”); Ibid., para. 18 (the Emirati representative
agreeing to that statement); Ibid., para. 20 (the Egyptian representative stating that ICAO should
“not delve into political considerations”) (QCM (A) Vol. III, Annex 24).
72
Extraordinary Session on 31 July 2017.248 They did the same at the Extraordinary
Session itself.249
4.45 In their Memorial, among other writings of publicists, Joint Appellants
cited Judge Buergenthal’s authoritative book on ICAO.250 Qatar’s Counter-
Memorial quoted a passage from the same book where Judge Buergenthal wrote:
“The dispute between the United States and Czechoslovakia over the launching of
balloons demonstrates how, within the ICAO framework, parliamentary diplomacy
can take the place of direct negotiations”.251 There, Czechoslovakia brought a
complaint to ICAO’s attention (not under Article 84) and the United States, not
unlike Joint Appellants, argued that, aside from the safety aspects of the dispute,
ICAO was not the proper forum for dealing with the matter.252 The United States
further denied that the launching of the balloons violated the Chicago
248 ICAO Response to the Preliminary Objections (A), Exhibit 8, Response to Qatar’s Submission
Under Article 54 (n) Presented by Bahrain, Egypt, Saudi Arabia, and the United Arab Emirates,
ICAO Doc. C-WP/14640 (19 July 2017), para. 5.1(b) (inviting the Council to defer the discussion
on the aviation prohibitions as a “non-urgent matter[]” and “limit its deliberations to the urgent
Article 54 (n) matters which are related to the safety of international civil aviation”) (BESUM Vol.
IV, Annex 25).
249 ICAO Response to the Preliminary Objections (A), Exhibit 10, ICAO Council, Extraordinary
Session, Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), paras. 32-33
(Appellant UAE stating on behalf of all Joint Appellants that “their airspace closures were
legitimate, justified, and a proportionate response to Qatar’s actions and were permitted under
international law”, and reiterated the position stated in their working paper that “the Council should
limit its deliberations to the urgent Article 54 n) matter which was related to the safety of
international civil aviation, and … defer the other non-urgent matters”.) (BESUM Vol. IV, Annex
25).
250 See BESUM, fn. 173 (citing T. Buergenthal, Law-making in the International Civil Aviation
Organization, 1969, Part III (BESUM Vol. VI, Annex 125).
251 QCM (A), para. 4.19 (quoting T. Buergenthal, Law-making in the International Civil Aviation
Organization, 1969, Part III, p. 131 (BESUM Vol. VI, Annex 125) (emphasis added)).
252 T. Buergenthal, Law-making in the International Civil Aviation Organization, 1969, Part III, pp.
132-133 (BESUM Vol. VI, Annex 125).
73
Convention,253 and refused to give the assurances requested by Czechoslovakia that
no further balloons would be released into its airspace.254
4.46 After describing this situation, Judge Buergenthal concludes:
“[I]f both sides had remained adamant in their
respective positions, and if Czechoslovakia had
thereupon referred the dispute to the ICAO Council
under Article 84 of the Convention, it could properly
have pointed to the proceedings in the Council and
Assembly to sustain the jurisdictional requirement
that the dispute ‘cannot be settled by
negotiation’”.255
4.47 The present dispute is no different. Qatar’s genuine attempts to negotiate
through ICAO satisfied the negotiation requirement.
3. Qatar genuinely attempted to negotiate through the WTO
4.48 In their Reply, Joint Appellants also discount Qatar’s genuine attempts to
negotiate over the subject matter of this civil aviation dispute through the WTO
because its Requests for Consultations concerned “breaches of distinct
obligations”.256 However, they never even try to come to terms with the fact that,
as Qatar showed in its Counter-Memorial, its Requests for Consultations with
Saudi Arabia, Bahrain and the UAE expressly stated that the subject-matter of the
requested consultations would include Joint Appellants’ “prohibition on Qatari
aircraft from accessing [their] airspace”, as well as their “prohibition on flights to
253 Ibid., p. 136 (BESUM Vol. VI, Annex 125).
254 Ibid.
255 Ibid.
256 BESUR, para. 5.61.
74
and from [their territories] operated by aircraft registered in Qatar, including
prohibiting landing of Qatari Aircraft at airports [in their territories]”.257 Qatar’s
Requests for Consultations therefore meet the subject-matter requirement for
attempts to negotiate.258
4.49 The Reply also discounts the Requests because they were addressed to three
of the four Joint Appellants, not Egypt. As Qatar explained in its Counter-
Memorial, however, this is an artificial, excessively formalistic distinction in this
context of this dispute. Joint Appellants have at all times been in lock-step, acting
in concert.259 They fail to respond meaningfully to this point in their Reply.260
257 QCM (A), para. 4.67 (quoting ICAO Response to the Preliminary Objections (A), Exhibit 11,
World Trade Organization, Saudi Arabia — Measures Relating to Trade in Goods and Services,
and Trade-Related Aspects of Intellectual Property Rights, WT/DS528/1 (4 Aug. 2017) (BESUM
Vol. IV, Annex 25); ICAO Response to the Preliminary Objections (A), Exhibit 12, World Trade
Organization, Bahrain — Measures Relating to Trade in Goods and Services, and Trade-Related
Aspects of Intellectual Property Rights, WT/DS527/1 (4 Aug. 2017) (BESUM Vol. IV, Annex 25);
ICAO Response to the Preliminary Objections (A), Exhibit 13, World Trade Organization, United
Arab Emirates — Measures Relating to Trade in Goods and Services, and Trade-Related Aspects
of Intellectual Property Rights, WT/DS526/1 (4 Aug. 2017) (BESUM Vol. IV, Annex 25)). Qatar
maintains that the aviation prohibitions imposed by Saudi Arabia, Bahrain and the UAE violated
their obligations not only under various WTO agreements, but also under the Chicago Convention.
As the Southern Bluefin Tuna tribunal noted: “There is no reason why a given act of a State may
not violate its obligations under more than one treaty. There is frequently a parallelism of treaties,
both in their substantive content and in their provisions for settlement of disputes arising
thereunder”. Southern Bluefin Tuna (New Zealand-Japan, Australia-Japan), Decision of 4 August
2000, UNRIAA, Vol. XXIII, p. 40, para. 52. In view of this parallelism, there is no question that
settling one of the disputes through negotiations would settle the other one as well. The WTO
negotiations therefore must also apply to satisfying the negotiation requirement under the Chicago
Convention.
258 See supra Section I.A.2.
259 QCM (A), para. 4.71.
260 BESUR, para. 5.63.
75
4. Qatar genuinely attempted to negotiate through third parties
4.50 Finally, Joint Appellants summarily dismiss Qatar’s genuine attempts to
negotiate through third parties. They assert, without any explanation: “(a) none of
the requests or statements was addressed to the Appellants; and (b) all of the
requests were in general terms, and failed to refer to the specific substantive
obligations under the Chicago Convention”.261
4.51 The first argument is incoherent. Attempts to negotiate through third parties
are, to state the obvious, different from attempts to negotiate directly. Indeed, the
Reply elsewhere admits that attempts to negotiate may be indirect. Specifically,
Joint Appellants state that in the Tehran Hostages case:
“[T]he requirement in Article XXI(2) of the Iran-
United States Treaty of Amity that the dispute was
‘not satisfactorily adjusted by diplomacy’ was easily
satisfied in the absence of diplomatic relations
between Iran and the United States, with the Foreign
Interests Section of the Embassy of Switzerland in
Tehran serving as the channel for communication
between the States”.262
4.52 Moreover, it cannot be the case that international law requires attempts to
negotiate through third parties to be addressed directly to the opposing party in
circumstances, like here, where that party has made it clear that it has no interest in
direct talks.
4.53 As for their second argument, Qatar has already explained that the
negotiation requirement does not require reference to the “specific substantive
261 Ibid., para. 5.64.
262 Ibid., fn. 433 (emphasis added).
76
obligations” of the treaty in question, as Joint Appellants mistakenly claim. That
goes well beyond what the Court’s jurisprudence constante requires. Rather, the
attempts need only be made “with a view to resolving the dispute”, which was the
case with each one of Qatar’s attempts, as explained in its Counter-Memorial,263
and above.264
II. The ICAO Council Properly Held that Qatar’s Application and
Memorial Complied with Article 2(g) of the ICAO Rules for the
Settlement of Differences
4.54 Joint Appellants’ Reply repeats the argument first stated in their
Application:265 that Article 2(g) of the ICAO Rules for the Settlement of
Differences requires not just a “statement” on negotiations, but also “appropriate[]
substantiat[ion]” of the statement.266
4.55 In its Counter-Memorial, Qatar explained how Joint Appellants’
interpretation of Article 2(g) not only contravenes the text of the provision (in
English and French), but also contradicts the practice of the Council.267 Indeed, the
Council found Cuba’s Memorial in Cuba v. United States admissible even though
it did not even contain a specific Article 2(g) statement,268 and the Council similarly
found the United States’ Memorial in United States v. 15 EU Member States
admissible even though the United States did not provide any evidence
263 QCM (A), paras. 4.72-4.83.
264 See supra Section I.B.
265 ICJ Application (A), para. 19(ii).
266 BESUR, para. 5.69.
267 QCM (A), paras. 4.86-4.87.
268 ICAO Council, Cuba v. United States, Memorial of Cuba (11 July 1966), para. 9 (QCM (A)
Vol. II, Annex 11).
77
substantiating its Article 2(g) statement therein.269 In their Reply, Joint Appellants
entirely fail to respond to these arguments, apparently conceding their force.
4.56 The Reply also repeats the contrived argument from Joint Appellants’
Memorial270 that, even if Article 2(g) were a requirement of form, Qatar’s
statement did not satisfy it.271 In truth, this argument is not really an alternative
one, as it presupposes that Article 2(g) requires “appropriate[] substantiat[ion]” of
the statement,272 which is not true. In any case, as Qatar explained in its Counter-
Memorial,273 its Article 2(g) statement easily satisfied the requirement. Indeed,
Article 2(g) cannot be read as imposing a more stringent requirement than that
contained in Article 84, which, as explained above,274 does not require negotiations
if one side entirely refuses to negotiate. And even if there were some kind of
deficiency (quod non), Qatar cured it when it amended its statement in its Response
to Joint Appellants’ Preliminary Objections.275
4.57 Finally, it should be emphasised that, as the Court stated in the 1972 ICAO
Council Appeal case, whether or not the Council has jurisdiction is “an objective
question of law” to be answered without regard to the procedure followed before
the Council.276 As a result, even if Qatar did not comply with the Article 2(g)
269 ICAO Council, United States v. 15 EU Member States, Memorial of the United States (14 Mar.
2000), p. 16 (QCM (A) Vol. II, Annex 12).
270 BESUR, paras. 6.98-6.99.
271 Ibid., paras. 5.70-5.71.
272 This is most evident in ibid., paras. 5.73, 5.75-5.76.
273 QCM (A), paras. 4.88-4.89.
274 See above Section I.A.1.
275 QCM (A), para. 4.90.
276 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
78
requirement (quod non), it should not affect the Court’s determination of the
Council’s jurisdiction.
*
4.58 For all the above reasons, the Court should deny Joint Appellants’ Third
Ground of Appeal.
79
THE COURT SHOULD DENY JOINT APPELLANTS’ FIRST GROUND
OF APPEAL
5.1 Qatar’s Counter-Memorial set out four independent reasons why the Court
should reject Joint Appellants’ First Ground of Appeal, asking that the Decision of
the ICAO Council “be set aside”.277 Joint Appellants’ Reply does not undermine
any of them. It fails to address several of Qatar’s key arguments and its responses
to those that it does address are entirely unpersuasive.
5.2 For example, and most remarkably, Joint Appellants chose not to address,
let alone dispute, the Court’s characterisation of its appellate function under the
Chicago Convention in the 1972 ICAO Council Appeal case. In that case, the Court
understood its appellate function vis-à-vis the jurisdictional decision at issue in
terms of deciding an objective question of law “the answer to which cannot depend
on what occurred before the Council”.278 The Reply dares not mention this aspect
of the Court’s decision, let alone argue why it does not apply equally here.
277 BESUR, para. 3.1. The first reason is that, consistent with the Court’s decision in the 1972 ICAO
Council Appeal case, the Court does not need to rule on the alleged procedural violations because
they are irrelevant in answering the objective question of law before it, namely, the question of the
Council’s jurisdiction over Qatar’s claims. QCM (A), Chapter 5.I. The second reason is that far
from being “manifestly flawed and in violation of the fundamental principles of due process”
(BESUR, para. 3.1), the procedure adopted by the ICAO Council to dispose of Joint Appellants’
Preliminary Objections was entirely consistent with the applicable procedural framework and its
previous practice under Article 84 of the Chicago Convention. QCM (A), Chapter 5.II. The third is
that, even if (quod non) the Council violated any of the procedural rules it was bound to follow,
those violations did not prejudice in any fundamental way the requirements of a just procedure.
QCM (A), Chapter 5.III. And the fourth is that the Joint Appellants waived their right to appeal the
Decision on account of several alleged procedural irregularities. QCM (A), paras. 5.38, 5.32.
278 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
80
5.3 Section I of this Chapter recalls the Court’s central holding on this aspect
of India’s appeal in the 1972 ICAO Council Appeal case and shows why Joint
Appellants’ efforts to argue for a different outcome in this case are unavailing. The
Council’s Decision in this case must stand so long as it “reached the right
conclusion”, even if it did so “in the wrong way”.279 This Section also addresses
Joint Appellants’ misplaced attempt to rely on the Court’s subsidiary reason not to
inquire into the alleged procedural irregularities in the 1972 ICAO Council Appeal
case. Several of the “grave and widespread” defects in the procedure adopted by
the ICAO Council that Joint Appellants allege280 are the same as the irregularities
“strenuously argued” by India in that case.281 The Court ruled that the latter did not
“prejudice in any fundamental way the requirements of a just procedure”282 and
there is no reason to come to a different conclusion concerning the former.
5.4 Section II shows that, in any event, Joint Appellants’ procedural
complaints are meritless. The ICAO Council did not commit any procedural errors,
let alone any errors that undermined the requirements of a just procedure. Indeed,
the Council’s actions were entirely consistent with the applicable procedural
framework. Joint Appellants’ First Ground of Appeal should be therefore
dismissed.
279 Ibid.
280 BESUR, para. 3.3.
281 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 44.
282 Ibid., para. 45.
81
I. The Court Should Decline to Exercise Its Supervisory Authority in
Respect of the So-Called Procedural Irregularities
A. WHETHER THE COUNCIL HAS JURISDICTION IS AN “OBJECTIVE QUESTION OF
LAW”, THE ANSWER TO WHICH DOES NOT TURN ON THE NATURE OF THE PROCEDURE
BEFORE THE COUNCIL
5.5 Qatar respectfully invites the Court to decline to exercise its supervisory
authority over the alleged procedural irregularities about which Joint Appellants
complain. Not only did they never happen, they are also irrelevant to the objective
question of law before the Court: namely, the Council’s jurisdiction over Qatar’s
claims under the Chicago Convention. For the reasons explained in the preceding
two Chapters, the ICAO Council properly decided that it has jurisdiction over
Qatar’s claims. Joint Appellants’ Second and Third Grounds of Appeal therefore
fail, and with them so does the First.
5.6 As Qatar explained in its Counter-Memorial,283 this is how the Court
disposed of India’s complaints about the alleged procedural irregularities the 1972
ICAO Council Appeal case―the only prior case to come to the Court on appeal
from an ICAO Council decision. Much like Joint Appellants here,284 India argued
that
“irrespective of the correctness in law or otherwise
of the Council’s decision assuming jurisdiction in
the case from which India is now appealing, it was
vitiated by various procedural irregularities, and
283 QCM (A), paras. 5.6-5.12.
284 See, e.g., BESUR, para. 6.2.
82
should accordingly, on that ground alone, be
declared null and void”.285
5.7 The Court disagreed. It concluded that its “task in the present proceedings
[was] to give a ruling as to whether the Council ha[d] jurisdiction in the case”.286
That task required the Court to answer only “an objective question of law, the
answer to which cannot depend on what occurred before the Council”.287 Having
concluded that the ICAO Council had correctly upheld its jurisdiction in the
underlying case, the Court did not deem it “necessary or even appropriate” to
examine India’s allegations any further.288
5.8 Joint Appellants cite the portion of the Court’s 1972 Judgment where it
described the purpose of the appeal under the “Chicago Treaties”.289 But they never
once mention how the Court discharged that function vis-à-vis India’s procedural
complaints. They try instead to distract the Court and lead it down a dead-end path.
They argue that the ICAO Council was “structurally incapable of adjudicating upon
the Appellants’ Preliminary Objections in a proper judicial manner” and therefore,
they say, “it falls to the Court, as the guardian of the integrity of the international
judicial process, to exercise its supervisory authority in order to provide the
Council with necessary direction on how to comply with the duties of due
process…”.290
285 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 44.
286 Ibid., para. 45.
287 Ibid.
288 Ibid. (emphasis added).
289 BESUR, para. 3.17 (quoting Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Judgment, I.C.J. Reports 1972, para. 26).
290 BESUR, paras. 3.8, 3.11.
83
5.9 Qatar does not consider it either “necessary” or “appropriate” for the Court
to address this argument. It is not necessary because, unlike India,291 Joint
Appellants do not even suggest that, but for the procedural irregularities they
allege, the ICAO Council would have upheld their preliminary objection.
Accordingly, even if their complaints had merit (quod non),292 “the position would
be that the Council would have reached the right conclusion in the wrong way.
Nevertheless, it would have reached the right conclusion”.293 In terms of
procedural economy, it would make no sense to reverse a substantially correct
decision on procedural grounds, so only to have the ICAO Council reach the same
decision again in a different proceeding.294
5.10 It is not appropriate because what Joint Appellants are really asking the
Court to do is expand its appellate function and review what they call the “sparse
and antiquated” ICAO Rules in order to give the ICAO Council “guidance as to
how to conduct judicial proceedings before it”.295 Even if the Court’s supervisory
291 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 44 (noting India’s argument that “but for these alleged irregularities, the result
before the Council would or might have been different”).
292 See infra Chapter 5.II.
293 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45 (emphasis added). In view of the preceding two Chapters, it would be no
different had Joint Appellants made this allegation.
294 See Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years
of Jurisprudence (2013), Vol. I, p. 737 (discussing the Court’s ruling on India’s allegations of
procedural irregularities in light of the “general principle of procedural economy”.). The fact that
the decision is substantively correct also implies that the alleged procedural irregularities did not
“materially [impair] the exercise of any of the fundamental procedural rights and directly cause[] a
‘mis-decision’”.). V.S. Mani, International Adjudication: Procedural Aspects (1980), p. 53.
295 BESUR, para. 3.21; see also ibid. (“…to date the ICAO Council has handled only seven disputes
judicially … As the guardian of the international judicial process, it falls to the Court to exercise its
supervisory authority in respect of procedural deficiencies by the ICAO Council in this case”.);
para. 3.16 (“[i]t is indeed the function of the Court to set and supervise judicial decision-making
standards in the international legal system. There can therefore be no serious dispute that failure to
84
authority under Article 84 of the Chicago Convention extended to a review of the
procedure followed in the underlying proceedings,296 a “properly conducted
judicial process” within the framework of the Chicago Convention can only mean
a process conducted in accordance with the rules designed and approved by the
abide by fundamental guarantees of due process entitles—indeed requires—the Court to set aside a
decision that emanates from a flawed process”.) (internal footnote omitted).
296 Qatar notes in this regard that none of the authorities cited by Joint Appellants establishes the
proposition that Article 84 of the Chicago Convention confer a right of appeal against procedural
irregularities. BESUR, paras. 3.13-3.15. Judge Jiménez de Aréchaga’s view that the right of appeal
under Article 84 also comprises “whether [the ICAO Council’s] decision was validly adopted in
accordance with the essential principles of procedure which must govern the quasi-judicial function
entrusted to the organ of the first instance” was expressed in his separate opinion, and was not
adopted by the Court majority. Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Judgment, Separate Opinion of Judge Jiménez de Aréchaga, I.C.J. Reports 1972, para.
37. As Joint Appellants admit, the Statute of the Administrative Tribunal of the United Nations
expressly permits applicants to appeal a Judgment if the Tribunal had “committed a fundamental
error of procedure which has occasioned a failure of justice”. Application for Review of Judgment
No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973,
para. 12; BESUR, fn. 185. And in the Arbitral Award of 31 July 1989 case, the Court emphasised
that “these proceedings allege the inexistence and nullity of the Award rendered by the Arbitration
Tribunal and are not by way of appeal from it or application for revision of it”. Arbitral Award of
31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, para. 25. If anything,
therefore, the case stands for the reverse proposition, namely, that a right of appeal does not
encompass a right of review of allegations of procedural irregularities in the underlying
proceedings. Indeed, Professor Thirlway has contrasted that decision with the 1972 ICAO Council
Appeal case to say that
“If the Court is seised solely of a recours en nullité, on the authority of the
Arbitral Award of 31 July 1989, it is not required to determine, and therefore
presumably unable to say, whether the first jurisdiction did or did not arrive at the
correct conclusion. It would therefore seem that that in such circumstances the
Court would have to determine whether or not there had been procedural error,
and if found there had, to draw the appropriate consequences”.
H. Thirlway, “Procedural Aspects of the ICJ”, in Fifty Years of the International Court of Justice
(V. Lowe & M. Fitzmaurice eds., 1996), p. 400. Relatedly, Professor Cheng has noted that
“…nullity or revision of a final judgment is distinct from reconsideration of a
judgment subject to appeal. In the latter case, the object is to decide whether a
judgment which is not yet final has been well or ill decided and to reform it, if
necessary, by a hierarchically superior court. In the case of appeal, the principle
of res judicata is not juridically affected; for a decision is not final until it is no
longer subject to appeal”.
Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals
(2006), p. 372
85
ICAO Council to settle disagreements between Member States.297 To the extent
that Joint Appellants ask the Court to rectify what they perceive as shortcomings
in the framework created by the ICAO Council—a task which they themselves
admit properly belongs to the organs of the ICAO298—they are asking the Court to
overstep its supervisory function.
5.11 In any case, Joint Appellants criticism of the ICAO dispute settlement
system is unwarranted. Joint Appellants find it “astounding”, for example, that
when ICAO Council Member representatives are acting in Article 84 proceedings,
they do so on behalf of their appointing States.299 However, unlike other
international adjudicatory bodies, such as, for example, the Court, the ICAO
Council is composed of individuals acting in a representative capacity on behalf of
ICAO Member States, not in their personal capacity.300 In the words of the United
297 The goal of the working group designated by the ICAO Council to draft the ICAO Rules was to
“arrive at a set of rules as simplified and as flexible as possible in order to provide workable
machinery to the Council, taking into account the many ways in which this body differs from the
conventional type of court or arbitral tribunal”. ICAO Council, 19th Session, Working Paper:
Report to Council of the Working Group on Rules for Settlement of Differences, ICAO Doc. CWP/
1457 (13 Mar. 1953), p. 2 (QR (A) Vol. II, Annex 1) (emphasis added).
298 See BESUR, fn. 195 (referring to the ICAO Secretariat’s direction in September 2018 to the
ICAO Legal Committee to consider whether the ICAO Rules needed to be revised and “realigned
with the current ICJ Rules”. ICAO, Working Paper of the Secretariat submitted to the Legal
Committee for consideration at its 37th Session, ICAO document LC/37-WP/3-2, 27 July 2018,
para. 3.2.1 (BESUM Vol. V, Annex 54).
299 BESUR, para. 3.3.
300 Article 50 of the Chicago Convention provides:
“a) The Council shall be a permanent body responsible to the Assembly. It shall
be composed of thirty-six contracting States elected by the Assembly … b) In
electing the members of the Council, the Assembly shall give adequate
representation to 1) the States of chief importance in air transport; 2) the States
not otherwise included which make the largest contribution to the provision of
facilities for international civil air navigation; and 3) the States not otherwise
included whose designation will insure that all the major geographic areas of the
world are represented on the Council … c) No representative of a Contracting
State on the Council shall be actively associated with the operation of an
international air service or financially interested in such service”.
86
States’ representative at the Pakistan v. India hearing, a decision of the ICAO
Council under Article 84 of the Chicago Convention is a “decision of [the]
governments [sitting at the Council], not of the individuals who sit at this Council
table”.301 It is entirely consistent with the judicial function of such individuals to
receive external advice on questions of law.302 In any event, and as stated in Qatar’s
Counter-Memorial, Joint Appellants have pointed to no evidence that the Council
delegates acted on instruction when they overwhelmingly rejected their
preliminary objections.303
5.12 A closer look at the degree of similarity between the procedural violations
alleged here and those India alleged in the 1972 ICAO Council Appeal case, the
Chicago Convention, Art. 50 (BESUM Vol. II, Annex 1) (emphasis added)
Tellingly, Joint Appellants’ only support for their proposition that it is “settled law” that “once the
individual adjudicator has been designated by the State, it is that individual who must act, in their
personal capacity, not on instruction” is an authority discussing this Court and the Judges
comprising it. BESUR, para. 3.10 and fn. 180.
301 ICAO Council, 74th Session, Minutes of the Sixth Meeting, ICAO Doc. 8956-C/1001 (29 July
1971), para. 16 (QCM (A) Vol. II, Annex 8).
302 At the ICAO Council hearing in the Pakistan v. India case, the representative of the United
Kingdom stated, for example, that “[i]t is not unique for a body of persons other than professional
judges to sit in a judicial capacity, at any rate not in the United Kingdom. It is usual in such
circumstances for the body to have recourse to legal advice on points of strict law”. ICAO Council,
74th Session, Minutes of the Sixth Meeting, ICAO Doc. 8956-C/1001 (29 July 1971), para. 18 (QCM
(A) Vol. II, Annex 8). More generally, Heads of State who were not jurists have frequently served
as adjudicators of inter-State disputes in the past. Writing almost contemporaneously with the
adoption of the Chicago Convention, Judge Hudson wrote in that regard that “[t]he decision in such
case is usually prepared by a jurist or a group of jurists, whose names are seldom announced,
working under the direction of the Chief of State”. Manley O. Hudson, International Tribunals:
Past and Future (1944), pp. 17-18.
303 QCM (A), para. 5.40. Instead, Joint Appellants speculate that the Decision “had been
predetermined”, given that “several of the governments which participate in the ICAO Council had
made political statements about the underlying dispute between the Parties”. BESUR, para. 3.8 and
fn. 177. A mere perusal of the statements in question, however, shows that they were merely
intended to underscore the importance of implementing promptly contingency measures for the
safety of civil aviation in the Gulf region. See ICAO Council – Summary Minutes of the Meeting
of the Extraordinary Session of 31 July 2017, concerning the Request of Qatar – Item under Article
54(n) of the Chicago Convention, 22 August 2017, paras 69-84 (BESUM Vol. V, Annex 41).
87
underlying facts and applicable procedural framework all further confirm that the
First Ground of Appeal is entirely without merit.
B. JOINT APPELLANTS’ ATTEMPT TO DISTINGUISH THE PRESENT CASE FROM
THE 1972 ICAO COUNCIL APPEAL CASE FAILS
5.13 Joint Appellants’ Reply suggests that the only reason why the Court
declined to rule on the alleged procedural irregularities India complained about in
the 1972 ICAO Council Appeal case was because such irregularities “were not
important enough to trigger [the Court’s] ‘supervisory authority’”.304 As Joint
Appellants see it, this case is different because the ICAO Council “did in fact
prejudice the requirement of a just procedure in a fundamental way”.305
5.14 As Qatar has explained,306 however, the actual reason the Court declined to
exercise its supervisory authority with respect to India’s procedural complaints was
not because they did “not prejudice in any fundamental way the requirements of a
just procedure”;307 it was because it considered them irrelevant in light of the fact
that the Council reached “the right conclusion” on the question of its jurisdiction.
5.15 In any event, the alleged procedural irregularities Joint Appellants raise are
very similar to those India raised before the Court in 1972. If the latter did not
prejudice the requirements of a just procedure, neither did the former.
304 BESUR, para. 3.19; see also ibid., para. 3.40.
305 Ibid., para. 3.20.
306 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 46.
307 Ibid., para. 45.
88
5.16 The Court will recall that India complained that the ICAO Council failed to
state reasons in its decision,308 improperly framed the questions that were put to
vote,309 adopted its decision in breach of Article 52 of the Chicago Convention310
and voting procedures311 and improperly deliberated.312 The Court did not consider
any of these serious enough to vitiate the procedure before the Council. Joint
Appellants offer no reason why their substantially similar allegations—lack of
reasons and proper deliberations, breach of Article 52 of the Chicago Convention
and of the applicable voting procedures and improper drafting of the questions put
to vote—warrant a different conclusion here.
308 I.C.J. Oral Arguments, Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Minutes of the public sitting held at the Peace Palace, The Hague, from 19 June to 3 July,
and on 18 August 1972, p. 614 (“The Rules for the Settlement of Differences require that the
Council must give reasons for its decision. In the present case the Council has given a decision
without any reasons at all, and such a decision is no decision in law”.).
309 Ibid., p. 596 (“The decision of the Council was vitiated by the fact that the questions were framed
in the wrong manner. The propositions put to vote were framed in a negative manner, namely, ‘The
Council has no jurisdiction …’, instead of being framed in a positive way, namely, ‘The Council
has jurisdiction …’”.).
310 Ibid.: “The decision of the Council as regards the Complaint is directly contrary to Article 52 of
the Convention which provides that ‘decisions by the Council shall require approval by a majority
of its members’. The Council's decision that it had jurisdiction to consider the Respondent's
Complaint was not supported by a majority of the Members of the Council. … If the question had
been rightly framed and if the proposition that the Council had jurisdiction to consider the
Respondent’s Complaint had been put to vote, the decision of the Council would have been in
favour of the Applicant on the same pattern of voting”.
311 Ibid., p. 607 (“The decision of the Council was further vitiated by the fact that the propositions
put to vote in respect of Pakistan’s Application and Complaint were neither introduced nor seconded
by any member of the Council as required in Rules 41 and 46 of the Rules of Procedure for the
Council”.).
312I.C.J. Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
Memorial submitted by the Government of India (22 Dec. 1971), para. 93(3) (“Although some of
the members asked for time to consider the issues of far-reaching importance which had been raised
by the Applicant and asked for verbatim notes of the oral hearing, their request was turned down,
with the result that some of the judges were unable to participate in the deliberations and in the final
decision of the Council”.).
89
5.17 The Reply is hard-pressed to identify differences between Joint Appellants’
procedural complaints and India’s. They therefore cast about for others and argue
that the fact that the Council scheduled one half-day session for the hearing on their
Preliminary Objections;313 they were allotted the same amount of time with Qatar
at the hearing;314 the Council proceeded to hold a vote immediately after hearing
oral submissions;315 and the Council adopted the Decision by secret ballot (even
though it is expressly authorised to do so under the procedural framework
governing its operation316) somehow means that the putative procedural violations
were “greater in number and magnitude than those at issue in Pakistan v. India—
so much so that the … Decision must be recognized as nullity”.317 Qatar will show
in the next Section that all of these allegations, as well as the ones that substantially
overlap with India’s complaints in the 1972 ICAO Council Appeal case, are entirely
unfounded.
II. The ICAO Council Properly Discharged Its Functions Under Article 84
5.18 Even if the Court were to consider the merits of Joint Appellants’
procedural complaints, their First Ground of Appeal would still have to be rejected.
As Qatar explained in its Counter-Memorial318 and will detail further below,319 the
313 BESUR, para. 3.20(a).
314 Ibid., para. 3.20(b)
315 Ibid., para. 3.20(e), (f).
316 See QCM (A), para. 5.30; BESUR, para. 3.20(g).
317 BESUR, para. 3.20.
318 See QCM (A), Chapter 5.II.
319 Joint Appellants appear to have effectively dropped their claim in the Application and the
Memorial that the ICAO Council incorrectly required 19 votes to uphold the Preliminary
Objections. BESUM, para. 3.1(c). Even though Joint Appellants formally maintain this complaint
(see BESUR, para. 3.33(b)), they say nothing in response to Qatar’s rebuttal in the Counter-
Memorial that the number of votes required by the ICAO Council was consistent with the text of
Article 52 of the Chicago Convention and its consistent application by the Council and even if there
90
ICAO Council procedure was entirely consistent with the letter and the spirit of the
1957 ICAO Rules for the Settlement of Differences (“ICAO Rules”) and the Rules
of Procedure for the Council.
A. THE ABSENCE OF OPEN DELIBERATIONS ON THE SUBSTANTIVE ISSUES IN
DISPUTE AND OF REASONS FOLLOWS FROM THE COUNCIL’S DECISION TO PROCEED
WITH A VOTE BY SECRET BALLOT AS ALLOWED UNDER ITS RULES
5.19 Qatar explained in its Counter-Memorial that the absence of open
deliberations on the substantive issues in dispute and of reasons in the Decision are
natural consequences of the ICAO Council’s decision to vote by secret ballot.320
Qatar further explained that the Council’s decision was entirely consistent with the
approach followed in Brazil v. United States, the most recent practice under Article
84 at that time. Indeed, that case was expressly mentioned in the Mexican
Representative’s proposal to proceed directly to a vote by secret ballot.321 None of
the Council Member States voting in that case, which included Appellants Saudi
Arabia, Egypt and the UAE (the latter actually proposed the vote by secret ballot
in that case) complained about the absence of open deliberations on the substantive
issues in dispute prior to disposing of the United States’ objection.322
was some merit in Joint Appellants’ allegation, the ensuing procedural error would be harmless.
QCM (A), paras. 5.50-5.59. Finally, Joint Appellants concede that in spite of what they alleged in
their Memorial, Appellant Saudi Arabia agreed to the concurrent presentation and consideration of
arguments on the two preliminary objections. Compare BESUM, para. 3.58 to BESUR, para. 3.32.
320 QCM (A), para. 5.29. Joint Appellants do not dispute that the applicable procedural framework
expressly permits votes by secret ballot. ICAO Council, Rules of Procedure for the Council, ICAO
Doc. 7559/10 (2014), Rule 50 (QCM (A) Vol. II, Annex 15) (emphasis added).
321 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 106 (BESUM Vol. V, Annex 53); see also QCM (A),
para. 5.35.
322 QCM (A), paras. 5.35-5.37.
91
5.20 The same is true in the present case: none of the Joint Appellants
challenged, let alone raised an objection under Articles 34 (c) and 36 of the Rules
of Procedure of the Council,323 the Council’s decision to proceed directly to a vote
by secret ballot. As a result, Joint Appellants’ procedural complaint should be
deemed waived.324
5.21 In their Reply, Joint Appellants offer four arguments in response, none of
which has merit.
5.22 First, Joint Appellants argue that “neither the ICAO Rules nor the ICAO
Rules of Procedure for the Council … prevent deliberations or even contemplate
that there will be none”.325 That may be true, but they also do not expressly
contemplate deliberations. In any event, despite Joint Appellants’ protestations to
the contrary,326 the minutes of the 26 June 2018 ICAO Council meeting make clear
323 See ICAO Council, Rules of Procedure for the Council, ICAO Doc. 7559/10 (2014) Rule 34(c)
“During the discussions of any matter, a Representative may raise a point of order or any other
matter related to the interpretation or application of these Rules. The point of order … shall be
decided immediately by the President”. (QCM (A) Vol. II, Annex 15); and ibid., Rule 36: “Rulings
given by the President during a meeting of the Council on the interpretation or application of these
Rules of Procedure may be appealed by any Member of the Council and the appeal shall be put to
vote immediately. The ruling of the President shall stand unless overruled by a majority of the votes
cast”.
324 QCM (A), para. 5.38 (citing Appeal Relating to the Jurisdiction of the ICAO Council, Judgment,
Separate Opinion of Judge Jiménez de Aréchaga, I.C.J. Reports 1972, para. 42).
325 BESUM, para. 3.24.
326 Ibid., para. 3.25.
92
that deliberations were held,327 just not on the substantive issues of the case—again,
a corollary of the Council’s decision to proceed directly to a vote by secret ballot.328
5.23 Second, Joint Appellants disagree with Qatar and argue that the Council did
hold deliberations in Brazil v. United States, and it could have done the same in the
present case.329 In fact, however, the Council adopted the same approach in both
cases. As stated, the Council did hold deliberations in this case—just not on the
substantive issues in dispute, because that would be incompatible with its decision
to proceed with a vote by secret ballot. That is also what the Council did in Brazil
v. United States.330 Qatar’s argument therefore stands.
5.24 Third, Joint Appellants assert that “the President [of the Council]
intervened at the hearing to observe that proceeding to a vote without deliberations
327 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, paras. 106-118 (BESUM Vol. V, Annex 53).
328 Joint Appellants never explain how open deliberations on the substantive issues in dispute is
consistent with the concept of vote by secret ballot. Qatar recalls that the term “Secret Ballot” is
defined in the ICAO Council Rules of Procedure as “a ballot where the marking of the ballot paper
by a Representative takes place in private and cannot be overseen by any person other than the
Representative’s Alternate. All ballot papers distributed should be exactly alike so that it cannot be
determined how any one Representative voted”. ICAO Council, Rules of Procedure for the Council,
ICAO Doc. 7559/10 (2014), Definitions, p. 2 (QCM (A) Vol. II, Annex 15) (emphasis added).
Open deliberations on substantive issues would therefore defeat the stated purpose of the vote by
“Secret Ballot”, as would open deliberations in the presence of the Parties.
329 BESUM, para. 4.50.
330 Joint Appellants generally cite to the Council’s decision in Brazil v. United States but fail to
indicate where one can find the evidence of deliberations. See BESUM, fn. 296 (citing Decision of
the ICAO Council on the Preliminary Objections in the Matter “Brazil v. United States”, 23 June
2017 (BESUM Vol. V, Annex 32)). Such evidence can be found in the minutes of the Council
meeting discussing the United States’ preliminary objection. See ICAO Preliminary Objections (A),
Exhibit 2, ICAO Council – 211th Session, Summary Minutes of the Ninth Meeting of 21 June
2017, ICAO document C-MIN 211/9, 5 July 2017, para. 92 (BESUM Vol. III, Annex 24). A mere
perusal of these paragraphs make it clear that only one Member State expressed a view on the merit
of the United States’ jurisdiction objection, Cuba, and this was before Appellant UAE’s proposal
that the Council proceed with a vote by secret ballot. Ibid., paras. 94-95. After the Council agreed
to vote by secret ballot, the deliberations or discussions involved procedural matters only.
93
would be a departure from the Council’s own previous practice”.331 The sole basis
for Joint Appellants’ assertion, however, is the corrections to the hearing transcript
proposed by Appellants UAE and Bahrain on 2 August 2018, after the institution
of these proceedings before the Court. Moreover, the alleged intervention by the
President of the Council is not included in the official minutes of the hearing.332
The Council thus rejected Joint Appellants’ proposed insertion.333
5.25 In any event, the alleged statement Joint Appellants seek to attribute to the
President of the Council (even if he made it) is not what they make it seem. As
stated in Appellant Bahrain’s proposed amendments, the President of the Council
merely “wished to be sure on whether there ought to be deliberations”.334
5.26 Fourth, and finally, Joint Appellants argue that “in every decision handed
down since the Court’s judgment in the India v. Pakistan appeal, the Council has
provided reasons for its decisions”.335 However, as Qatar explained in its Counter-
331 BESUR, para. 3.25 (citing Bahrain and UAE comments on draft Minutes C-MIN 214.8 Closed
circulated by the Secretariat, 2 August 2018, Bahrain comments, para. 108 (BESUR Vol. II, Annex
8)).
332 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 41 (BESUM Vol. V, Annex 53).
333 The ICAO Secretary General prepares “Draft Minutes” of each meeting within six weeks of the
session. The Secretary General submits the “Draft Minutes” to the President of the Council, who
then distributes them to Representatives for comment. After the Representatives submit their
comments, the Council will adopt the final minutes “through written procedure or at a subsequent
meeting”. See ICAO Council, Rules of Procedure for the Council, ICAO Doc. 7559/10 (2014), Rule
57(b): “The Secretary General shall prepare Draft Minutes of each meeting within six weeks of the
session of the Council to which they relate. These shall be submitted to the President for agreement,
distributed to Representatives who shall have ten working days to comment thereon and adopted by
the Council either through written procedure or at a subsequent meeting”. (QCM (A) Vol. II,
Annex 15).
334 Bahrain and UAE comments on draft Minutes C-MIN 214.8 Closed circulated by the Secretariat,
2 August 2018, Bahrain comments, para. 108 (BESUR Vol. II, Annex 8).
335 BESUR, para. 3.27.
94
Memorial,336 while this may be true for decisions adopted by roll call,337 it is
distinctly not true for decisions adopted by secret vote.338 Joint Appellants maintain
their refusal to acknowledge this distinction. They also never reconcile their
complaint with their acknowledgment elsewhere in their Reply that the lack of
reasons in the Council decision in the 1972 ICAO Council Appeal case was “not
important enough to trigger [the Court’s] ‘supervisory authority’”.339
5.27 In the end, the absence of open deliberations on the substantive issues in
dispute and of reasons in the Decision is consistent with the ICAO Rules and the
Council’s decision to vote by secret ballot.
B. JOINT APPELLANTS ARE WRONG TO ASSERT THAT THE COUNCIL DID NOT
OPENLY DELIBERATE ON CERTAIN PROCEDURAL MATTERS
5.28 Joint Appellants’ Reply also seeks to expand the scope of their procedural
complaints under the rubric of “absence of deliberations” to include the Council’s
alleged failure to deliberate on the majority required to rule on Joint Appellants’
Preliminary Objections and the question put to vote.340 Again, the ICAO Council
meeting minutes proves them wrong. The minutes make clear that
336 QCM (A), para. 5.35.
337 Settlement of Differences: United States and 15 European States (2000), Note on Procedure:
Preliminary Objections (Working Paper Presented by the President of the Council), ICAO
document C-WP/11380, 9 November 2000, para. 6.2 (BESUR Vol. II, Annex 7).
338 Decision of the ICAO Council on the Preliminary Objection of the United States in the Matter
“Brazil v. United States”, 23 June 2017 (BESUM Vol. V, Annex 32).
339 BESUR, para. 3.19; see also ibid., para. 3.40.
340 Ibid., para. 3.23.
95
• The decision as to the majority required to rule on Joint Appellants’
jurisdictional objections was taken not by the Director of Legal Affairs, as
Joint Appellants falsely allege,341 but by the Council itself.342 In taking this
decision, the Council expressly considered that
“[u]nder Article 52 of the Chicago Convention,
decisions by the Council required approval by a
majority of its Members. In line with the consistent
practice of the Council in applying that provision in
previous cases, including in the Pakistan v. India
dispute, since the Council comprised 36 Members,
acceptance of the Respondents’ preliminary
objections in both Application (A) and Application
(B) required 19 positive votes”.343
A request by the UAE Representative that the Council reconsider its
decision was similarly addressed by the Council and declined “in the
absence of any desire on the part of the Council to determine what
constituted the voting majority other than the relevant provisions of the
Chicago Convention …”344 The only involvement of the Director of Legal
Affairs in this process was to “read the text of Article 52 of the Chicago
Convention and recite[] to the Council the factual historical records of
previous Council decisions, no more, no less”.345
341 Ibid., para. 3.23(a).
342 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 106 (BESUM Vol. V, Annex 53).
343 Ibid. Qatar recalls once again that Joint Appellants have failed to respond to any of Qatar’s
arguments in the Counter-Memorial showing that the Council’s decision on this issue was entirely
consistent with the terms of Article 52 and the Council’s previous practice. Therefore, even if their
procedural complaint that the Council failed to deliberate on this issue somehow has merit, quod
non, the fact remains that the decision of the Council was substantively correct.
344 Ibid., para. 118.
345 Ibid., para. 111.
96
• The President of the Council did not “ignor[e] the Appellants’ repeated
clarifications that there were in fact two distinct Preliminary Objections
which were to be assessed separately”.346 To the contrary, the minutes of
the meeting record that the President of the Council fully understood that
“in essence for each of Qatar’s Application (A) and Application (B) the
Respondents had a preliminary objection for which they provided two
justifications”, and he “took the point made by [counsel for Appellant
Bahrain] that the voting on each preliminary objection applied to both of
the justifications provided therefore”.347 To argue in spite of this, as Joint
Appellants do, that the President of the Council “conflated the two
objections into one, and the ICAO Council disposed of the two Preliminary
Objections raised by the Appellants as a single plea”, and that “unlike in
Pakistan v. India, the Council fundamentally misunderstood and could not
properly have applied its collective mind to the objections that were before
it”,348 is untenable.349
346 BESUR, para. 3.23(b). The minutes the Council meeting record only one such “clarification”,
however. See ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June
2018, ICAO document C-MIN 214/8, 23 July 2018, para. 121 (BESUM Vol. V, Annex 53).
347 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 122 (BESUM Vol. V, Annex 53).
348 BESUR, para. 3.20(c).
349 Relatedly, Joint Appellants argue that the President of the Council put to vote a question other
than what was introduced and seconded at the hearing, in breach of the requirements under Rules
40 and 45 of the Rules of Procedure of the Council. BESUR, para. 3.33(c). In its Counter-Memorial,
Qatar explained that the original motion made by the Mexican Representative, and seconded by the
Representative of Singapore, which unquestionably meets the requirements of Rules 40 and 45, was
never changed or modified. QCM (A), para. 5.60. The President of the Council made this
abundantly clear when he responded to Appellant Bahrain’s observations by recalling that “both of
the Respondents’ … preliminary objections related to the jurisdiction of the Council” as well as the
text of Article 5(1) of the ICAO Rules, stating that “[i]f the Respondent questions the jurisdiction
of the Council to handle the matter presented by the Applicant, he shall file a preliminary objection
setting out the basis of the objection”. ICAO Council – 214th Session, Summary Minutes of the
97
5.29 The minutes of the Council meeting also make clear that Joint Appellants’
complaint regarding the question that was put to vote has been waived. Contrary to
their claim,350 Joint Appellants did not object under Articles 34 and 36 of the ICAO
Rules of Procedure or otherwise challenge the decision of the Council as to the
wording of the question put to vote.
5.30 The ICAO Council therefore properly decided on the majority required to
rule on Joint Appellants’ Preliminary Objections and the question put to vote.
C. JOINT APPELLANTS HAD AMPLE OPPORTUNITY TO PRESENT THEIR CASE
BEFORE THE ICAO COUNCIL
5.31 In its Counter-Memorial, Qatar explained that Joint Appellants were
granted two opportunities to brief the issue of jurisdiction in writing as well as an
opportunity to present oral arguments.351 Qatar also pointed to the fact that Joint
Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para. 122 (BESUM
Vol. V, Annex 53).
350 Joint Appellants allege that they did object “through counsel who intervened to clarify the
importance of properly understanding, and ruling upon, each Preliminary Objection separately”.
BESUR, para. 3.36(d). As is evident from the actual minutes of the Council meeting, counsel did
no such thing:
“As explained by Mr. Petrochilos (Legal Advisor, Bahrain Delegation), the first
preliminary objection was that the real issue in dispute was not an issue of the
interpretation or application of the Chicago Convention or the Transit Agreement.
The second preliminary objection was that the dispute was not one which cannot
be settled by negotiation as was required by the jurisdictional clauses of those two
treaties. As accepting either one of those preliminary objections had the effect of
disposing of the case here and now, Mr. Petrochilos suggested that the appropriate
wording of the question for the secret ballot for each Application would be “Do
you accept either one of the two preliminary objections formulated by the
Respondents in respect of each of the Applications?”.
ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018,
ICAO document C-MIN 214/8, 23 July 2018, para. 122 (BESUM Vol. V, Annex 53).
351 QCM (A), para. 5.42.
98
Appellants acted “collectively” before the ICAO Council (as they do now before
the Court) and they should therefore not be heard to complain that the Council
treated them in the exact same manner for purposes of allocating time at the
hearing.352 In any event, Joint Appellants failed to explain how or why the
opportunities to present their arguments that they were granted were not enough or
what prejudice they suffered from not having had more, given the identity of the
legal issues in dispute.353
5.32 Joint Appellants’ Reply maintains that the scheduling of “only one half-day
session” for the hearing did not “permit them sufficient time properly to co-ordinate
and present their case”.354 This continues to be a mere assertion. They never explain
why the time allotted to them, in conjunction with the two opportunities to submit
arguments in writing, and the identity of the legal issues in dispute, did not afford
them a “reasonable opportunity to present their case” (which as they now admit is
what the ICAO Rules safeguards).355 What argument that was not already in the
written pleadings were they precluded from making at the hearing? How did that
deprive them of their “reasonable opportunity”? Would the outcome have been any
different had they had more time, and why? Joint Appellants never engage with
these questions and hence there is no way to know.
5.33 Joint Appellants do say, however, that “[t]he good administration of justice
requires that particular attention be given to the proper balancing of the written
pleadings allowed and the time for oral presentations to ‘equalize eventual
352 Ibid., paras. 5.44, 5.47.
353 Ibid., paras. 5.42, 5.46.
354 BESUR, para. 3.29.
355 Ibid., para. 3.31.
99
unevenness among the Parties’”.356 The Council can hardly be faulted for improper
balancing here. Despite Qatar’s protests, it granted Joint Appellants two
opportunities to submit written pleadings on the jurisdictional issues.357 Joint
Appellants took full advantage of both, submitting in total 80 pages on their two
preliminary objections.358 Qatar, by contrast, submitted one brief, 58 pages long.359
Joint Appellants were also granted a hearing, which is at the discretion of the
Council.360 In these circumstances, it is difficult to see how granting Joint
356 Ibid. (quoting R. Kolb, “General Principles of Procedural Law”, in The Statute of the
International Court of Justice: A Commentary (A. Zimmermann, C. Tomuschat, K. Oellers-Frahm
and C. Tams eds., 2019), p. 969.).
357 QCM (A), paras. 5.19.
358 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 (BESUM Vol. III, Annex 24); Rejoinder to the State of
Qatar’s Response to the Respondents’ Preliminary Objections of the Arab Republic of Egypt, the
Kingdom of Bahrain, 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 (BESUM Vol.
IV, Annex 26).
359 Joint Appellants take issue with Qatar’s suggestion that, in view of Joint Appellants’ two
opportunities to brief the issue of the Council’s jurisdiction compared to Qatar’s one, if a party was
prejudiced by the decision of the Council to schedule only one half-day session for the hearing, that
was Qatar. QCM (A), para. 5.22. They argue that if Qatar felt that it was being prejudiced it should
not have “declined to ask to be allowed to file a second-round written submission”. BESUR, fn.
214. This is rich coming from Joint Appellants who apparently are happy with the fact that with
every passing day that their wrongful aviation prohibitions remain in place the risk to the safety and
efficiency of civil aviation in the region and the financial detriment to Qatar’s national air carrier
are getting higher. Seeking “to be allowed to file a second-round written submission” was never an
option for Qatar.
360 Under Article 12 of the ICAO Rules for the Settlement of Differences, the ICAO Council may
admit oral arguments at its sole discretion. ICAO, Rules for the Settlement of Differences, approved
on 9 April 1957; amended on 10 November 1975, Art. 12(2) (BESUM Vol. II, Annex 6); see also
Thomas Buergenthal, Law-making in the International Civil Aviation Organization (1969), p.189
(“An interesting feature of the Rules is their emphasis on written proceedings. The parties do not
have the right to an oral hearing, although the Council may in its discretion accord it. Even the
final arguments of the parties must be presented in writing, ‘but oral arguments may be admitted at
the discretion of the Council.’ This policy against oral proceedings is probably designed to reduce
the time that the Council would have to devote to a given case”.) (BESUM Vol. VI, Annex 125)
(emphasis added).
100
Appellants even more time at the hearing would equalise the putative procedural
“unevenness among the Parties”.
5.34 In sum, Joint Appellants enjoyed ample, and much more than sufficient,
opportunities to present their case before the Council.
*
5.35 For the reasons stated above, as well as those presented in its Counter-
Memorial, Qatar respectfully requests that the Court reject Joint Appellants’ First
Ground of Appeal.
101
SUBMISSIONS
On the basis of the facts and law set forth in this Rejoinder, Qatar
respectfully requests the Court to reject Joint Appellants’ appeal and affirm the
ICAO Council’s Decision of 29 June 2018 dismissing Joint Appellants’
preliminary objection to the Council’s jurisdiction and competence to adjudicate
Qatar’s Application (A) of 30 October 2017.
Respectfully submitted,
____________________________
Dr. Mohammed Abdulaziz Al-Khulaifi
AGENT OF THE STATE OF QATAR
29 July 2019

103
CERTIFICATION
I certify that all Annexes are true copies of the documents referred to and that the
translations provided are accurate.
____________________________
Dr. Mohammed Abdulaziz Al-Khulaifi
AGENT OF THE STATE OF QATAR
29 July 2019

ICAO CORRESPONDENCE AND DOCUMENTS
Annex 1 ICAO Council, 19th Session, Working Paper: Report to Council of the
Working Group on Rules for Settlement of Differences, ICAO Doc.
C-WP/1457 (13 Mar. 1953)
Annex 2 International Air Services Transit Agreement (7 Dec. 1944) (entry into
force: 30 Jan. 1945), Trilingual Version, ICAO Doc. 7500 (1954)
Annex 3 Convention on International Civil Aviation (7 Dec. 1944) (entry into
force: 4 Apr. 1947), Quadrilingual Version, ICAO Doc. 7300/9 (9th ed.
2006)
Annex 4 Email from Olumuyiwa Benard Aliu, President of the ICAO Council, to
All Council Delegations (19 June 2017)
Annex 5 Letter from Abdulla Nasser Turki Al-Subaey, President of Qatar Civil
Aviation Authority, to Dr. Olumuyiwa Benard Aliu, President of ICAO
Council (20 Feb. 2019)
QATARI GOVERNMENT DOCUMENTS
Annex 6 Qatar Civil Aviation Authority, Air Navigation Department, Reply to
Conclusion 17/19 MIDANPIRG/17, Assessment of Contingency Routes
(7 July 2019)
PRESS ARTICLES
Annex 7 “Custodian of the Two Holy Mosques welcomes Islamic personalities
and heads of Hajj delegations at the annual reception in Mina”, Al Riyadh
(28 Oct. 2012), available at http://www.alriyadh.com/779832#
Annex 8 David D. Kirkpatrick, “Journalist Joins His Jailer’s Side in a Bizarre
Persian Gulf Feud”, The New York Times (1 July 2017), available at
https://www.nytimes.com/2017/07/01/world/middleeast/qatar-egyptunited-
arab-emirates-mohamed-fahmy.html
VOLUME II
ANNEXES
105
Annex 9 J. Malsin & S. Said, “Saudi Arabia Promised Support to Libyan Warlord in
Push to Seize Tripoli”, The Wall Street Journal (12 Apr. 2019), available
at https://www.wsj.com/articles/saudi-arabia-promised-support-tolibyan-
warlord-in-push-to-seize-tripoli-11555077600
Annex 10 Patrick Wintour, “Libya crisis: Egypt’s Sisi backs Haftar assault on Tripoli”,
The Guardian (14 Apr. 2019), available at https://www.theguardian.
com/world/2019/apr/14/libya-crisis-egypt-sisi-backs-haftar-assaulton-
tripoli
Annex 11 Ramadan Al Sherbini, “Iran to face ‘strong response’ if it closes Strait
of Hormuz”, Gulf News (20 June 2019) available at https://gulfnews.
com/world/gulf/saudi/iran-to-face-strong-response-if-it-closes-straitof-
hormuz-1.64730838
Annex 12 BBC, About the BBC (last accessed: 8 July 2019), available at https://
www.bbc.com/aboutthebbc
Annex 13 Al Jazeera, About Us (last accessed: 8 July 2019), available at https://
www.aljazeera.com/aboutus/
BOOKS, JOURNAL ARTICLES, REPORTS
Annex 14 Merriam-Webster’s Collegiate Dictionary (11th ed., 2009)
Annex 15 Kenneth L. Marcus, “Accusations in a Mirror”, Loyola University
Chicago Law Journal, Vol. 43 (2012)
Annex 16 African Commission on Human and Peoples’ Rights, 16th Extraordinary
Session, Resolution on Human Rights Abuses in Egypt, ACHPR Res.
287 (EXT.OS/XVI) (20-29 July 2014)
Annex 17 International Commission of Jurists, Egypt’s Judiciary: A Tool of
Repression (Sept. 2016), available at https://www.icj.org/wp-content/
uploads/2016/10/Egypt-Tool-of-repression-Publications-Reports-
Thematic-reports-2016-ENG-1.pdf
106
OTHER DOCUMENTS
Annex 18 United Nations Office of the High Commissioner for Human Rights,
Egypt: Justice and reconciliation increasingly failing after second wave of
mass death sentences (15 May 2014), available at https://www.ohchr.org/
EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14596&LangID=E
Annex 19 “Libya detention centre airstrike could amount to a war crime says UN,
as Guterres calls for independent investigation”, UN News (3 July 2019),
available at https://news.un.org/en/story/2019/07/1041792
107