Counter-Memorial of the State of Qatar

INTERNATIONAL COURT OF JUSTICE

APPEAL RELATING TO THE JURISDICTION OF THE ICAO COUNCIL UNDER ARTICLE II, SECTION 2, OF THE 1944
INTERNATIONAL AIR SERVICES TRANSIT AGREEMENT

THE KINGDOM OF BAHRAIN, THE ARAB REPUBLIC OF EGYPT, AND THE UNITED ARAB EMIRATES
v.
THE STATE OF QATAR

COUNTER-MEMORIAL OF THE STATE OF QATAR

VOLUME I

25 FEBRUARY 2019

Table of Contents
CHAPTER 1 INTRODUCTION 1
I. Procedural History 1
II. Overview of Qatar’s Arguments 4
III. Structure of Qatar’s Counter-Memorial 8
CHAPTER 2 JOINT APPELLANTS’ “REAL DISPUTE” ARGUMENT IS AN ARTIFICE FOR ESCAPING SCRUTINY OF THEIR
AVIATION PROHIBITIONS 12
I. Joint Appellants Imposed the Aviation Prohibitions in Breach of the IASTA
13
II. Joint Appellants’ Accusations Are False 23
A. Joint Appellants’ allegations of support of terrorism and extremism are false
24
B. Joint Appellants’ allegations about Qatar’s “systematic interference” in their internal affairs
are false 34
C. Joint Appellants’ allegations of Qatar’s use of media to incite violence and hatred are false
.41
CHAPTER 3 THE COURT SHOULD DENY JOINT APPELLANTS’ SECOND GROUND OF APPEAL
47
I. The ICAO Council Is Empowered to Exercise Its Dispute Settlement Functions “to Their Full
Extent” 49
II. The Dispute Qatar Submitted to the ICAO Council “Relates to the Interpretation or Application”
of the IASTA 55
A. Joint Appellants’ countermeasures defence has no bearing on the assessment of the “real
issue” in dispute 56
i

B. Joint Appellants’ countermeasures defence, even if it were relevant, does not convert
this dispute into one over which the Council does not have jurisdiction
60
1. Qatar’s pleadings before the ICAO Council indicate that the subject-matter of the dispute
falls squarely within the scope of the IASTA 61
2. The object of Qatar’s claims relates solely to the interpretation or application of the
IASTA 67
3. The Council does not need to address the merits of Joint Appellants’ countermeasures
defence to decide this case 73
III. The Adjudication of Qatar’s Claims by the ICAO Council Is Entirely Consistent with
Judicial Propriety 82
CHAPTER 4 THE COURT SHOULD DENY JOINT APPELLANTS’ THIRD GROUND OF APPEAL
86
I. The Council Properly Held that Qatar Satisfied the Negotiation Requirement
87
A. The law requires a genuine attempt to negotiate with a view to resolving the dispute
87
B. Qatar genuinely attempted to negotiate with a view to resolving the dispute
94
1. Qatar unsuccessfully tried to settle the dispute through direct means 97
2. Qatar unsuccessfully tried to settle the dispute through ICAO 111
3. Qatar tried unsuccessfully to settle the dispute through the WTO. 116
ii

4. Qatar tried unsuccessfully to settle the dispute through other States 119
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 125
CHAPTER 5 THE COURT SHOULD DENY JOINT APPELLANTS’ FIRST GROUND OF APPEAL
128
I. The Court Does Not Need to Rule on the Alleged Procedural Violations
129
II. The ICAO Council Properly Discharged Its Functions under Article II, Section 2 of the IASTA
and Article 84 of the Chicago Convention 132
A. Joint Appellants were afforded ample opportunity to plead their case
132
1. The Council extended Joint Appellant’s time-limits for the filing of their first responsive
brief 132
2. The ICAO Council gave Joint Appellants every opportunity to make their case in writing
134
3. The Council also afforded Joint Appellants an opportunity to present their arguments orally
135
4. The Council soundly rejected Joint Appellants’ preliminary objections..137
B. Joint Appellants’ procedural complaints are baseless
138
1. The absence of open deliberations on the substantive issues in dispute and of reasons
follows from the Council’s decision to proceed with a vote by
iii

secret ballot as allowed under its rules 141
2. Joint Appellants were allocated sufficient time to present their case before the council
146
3. The ICAO Council required the correct number of votes to decide the preliminary objections
151
4. The ICAO Council properly rejected both of Joint Appellants’ preliminary objections
156
III. The Alleged Procedural Irregularities Did Not Prejudice “in Any Fundamental Way” the
“Requirements of a Just Procedure” 157
SUBMISSIONS
163
CERTIFICATION
164
LIST OF ANNEXES
165

iv

GLOSSARY OF ACRONYMS, ABBREVIATIONS AND DEFINED
TERMS

1972 ICAO Council Appeal Appeal Relating to the Jurisdiction of the
ICAO Council (India v. Pakistan),
Judgment, I.C.J. Reports 1972

ARSIWA Articles on the Responsibility of States for Internationally Wrongful Acts

ATS Air Traffic Service

Bahrain The Kingdom of Bahrain

Chicago Convention Convention on International Civil
Aviation, Chicago, 7 December 1944

Egypt The Arab Republic of Egypt

EU European Union

FATF Financial Action Task Force

FIR Flight Information Regions

GCC Gulf Cooperation Council

IASTA International Air Services Transit Agreement, Chicago, 7 December 1944
ICAO International Civil Aviation Organization ICAO Council or Council
Council of the International Civil Aviation
Organization

ICAO Application (B) Application (B) of the State of Qatar;
Relating to the Disagreement on the Interpretation and Application of the International Air
Services Transit Agreement (Chicago, 1944) and its Annexes, 30 October 2017

i

ICAO Council Decision (B) or Decision
Decision of the ICAO Council on the Preliminary Objection in the Matter: the State of
Qatar and the Arab Republic of Egypt, the Kingdom of Bahrain and the United Arab Emirates
(2017) – Application (B), 29 June 2018

ICAO Memorial (B) Memorial appended to Application (B) of
the State of Qatar, Disagreement on the Interpretation and Application of the International Air
Services Transit Agreement (Chicago,1944), 30 October 2017

ICAO Preliminary Objections (B) Preliminary Objections of the Arab
Republic of Egypt, the Kingdom of Bahrain and the United Arab Emirates in re Application (B) of the
State of Qatar Relating to the Disagreement Arising under the International Air Services Transit
Agreement done at Chicago on 7 December 1944, 19 March 2018

Rejoinder to the State of Qatar’s Response to the Respondents’ Preliminary Objections of the Arab
Republic of Egypt, the Kingdom of Bahrain and the United

ICAO Rejoinder (B)

ICAO Response to Preliminary Objections (B)
Arab Emirates in re Application (B) of the State of Qatar Relating to the Disagreement Arising
under the International Air Services Transit Agreement done at Chicago on 7 December
1944, 12 June
2018

Response of the State of Qatar to the Preliminary Objections of the
Respondents; in re Application (B) of the State of Qatar Relating to the Disagreement on the
Interpretation and Application of the International Air Services Transit Agreement done
at Chicago on 7 December 1944, 30 April 2018

ii

ICAO Rules 1957 ICAO Rules for the Settlement of
Differences

ICJ Application (B) Joint Application Instituting Proceedings,
Appeal Against a Decision of the ICAO Council dated 29 June 2018 on Preliminary Objections
(Application (B), Kingdom of Bahrain, Arab Republic of Egypt and the United Arab Emirates v. State
of Qatar), 4 July 2018

ILC International Law Commission

IMF International Monetary Fund

Joint Appellants The Kingdom of Bahrain, the Arab
Republic of Egypt and the United Arab Emirates

NOTAM Notice to Airmen

Qatar The State of Qatar

QCM (B) Appeal Relating to the Jurisdiction of the ICAO Council under Article II,
Section 2, of the 1944 International Air Services Transit Agreement (The Kingdom of Bahrain, the
Arab Republic of Egypt and the United Arab Emirates v. The State of Qatar), Counter-Memorial of the
State of Qatar (25 February 2019)

QNA Qatar News Agency Saudi Arabia Kingdom of Saudi
Arabia
TFTC Terrorist Financing Targeting Center United Arab Emirates UAE

iii

UNCLOS United Nations Convention on the Law of the Sea

VCLT Vienna Convention on the Law of Treaties

WTO World Trade Organization

iv

CHAPTER 1 INTRODUCTION
1.1 Pursuant to the Order of the Court dated 25 July 2018, the State of Qatar (“Qatar”)
respectfully submits this Counter-Memorial responding to the Memorial of the Kingdom of Bahrain
(“Bahrain”), the Arab Republic of Egypt (“Egypt”) and the United Arab Emirates (“UAE”, and
collectively with Bahrain and Egypt, “Joint Appellants”), submitted on 27 December 2018.1

1.2 Although the Court fixed 27 May 2019 as the applicable time-limit, Qatar has elected to
submit this Counter-Memorial early. It does so in view of the urgency of the matters in dispute as
well as the limited nature of these proceedings, which involve only an appeal from a jurisdictional
decision of the Council of the International Civil Aviation Organization (“ICAO Council” or
“Council”).

I. Procedural History

1.3 As Qatar will explain in greater detail in Chapter 2, this case arises from Joint Appellants’
sudden imposition on 5 June 2017 of far-reaching prohibitions on all Qatar-registered aircraft from
flying to or from Joint Appellants’ airports and from overflying their national airspaces and
Flight Information Regions (“FIR”) (the “aviation prohibitions”). Acting pursuant to Article II,
Section 2 of the International Air Services Transit Agreement (“IASTA”),2 on 30 October 2017 Qatar
filed an Application and Memorial with the ICAO Council detailing Joint

1 Memorial of the Kingdom of Bahrain, the Arab Republic of Egypt and the United Arab Emirates (27
Dec. 2018) (hereinafter “BEUM”).
2 International Air Services Transit Agreement, (1944) 84 U.N.T.S. 389 (7 Dec. 1944) (entry into
force: 30 Jan. 1945) (hereinafter “IASTA”), Art. II (BEUM Vol. II, Annex 2).

1

Appellants’ violations of the IASTA, and requesting the Council to adjudge and declare the aviation
prohibitions unlawful.3

1.4 On 19 March 2018, Joint Appellants raised two preliminary objections to the Council’s
jurisdiction to hear the dispute.4 In particular, Joint Appellants argued that (1) deciding the
dispute would require the Council to consider international legal matters falling outside the IASTA
(i.e., whether the aviation prohibitions constitute lawful countermeasures) (“First Preliminary
Objection”); and (2) Qatar had failed to comply with the negotiation requirement under Article II,
Section 2 of the of the IASTA (“Second Preliminary Objection”). After a further exchange of briefs
and oral hearings,5 the ICAO Council issued a decision on 29 June 2018 rejecting Joint Appellants’
preliminary objections (the “Council Decision” or “Decision”).6 The Council did so by a vote of 18
to two, with five abstentions.

3 Application (B) of the State of Qatar; Relating to the Disagreement on the Interpretation and
Application of the International Air Services Transit Agreement (Chicago, 1944), 30 October 2017
(hereinafter “ICAO Application (B)”) (BEUM Vol. III, Annex 23).
4 Preliminary Objections of the Arab Republic of Egypt, the Kingdom of Bahrain and the United Arab
Emirates in Re Application (B) of the State of Qatar Relating to the Disagreement Arising under the
International Air Services Transit Agreement done at Chicago on 7 December 1944, 19 March 2018
(hereinafter “ICAO Preliminary Objections (B)”) (BEUM Vol. III, Annex 24).
5 Response of the State of Qatar to the Preliminary Objections of the Respondents in re Application
(B) of the State of Qatar Relating to the Disagreement on the Interpretation and Application of the
International Air Transit Agreement (Chicago, 1944), 30 April 2018 (hereinafter “ICAO Response to
Preliminary Objections (B)”) (BEUM Vol. IV, Annex 25); Rejoinder to the State of Qatar’s Response
to the Preliminary Objections of the Arab Republic of Egypt, the Kingdom of Bahrain and the United
Arab Emirates n re Application (B) of the State of Qatar Relating to the Disagreement Arising under
the International Air Transit Agreement done at Chicago on 7 December 1944, 12 June 2018
(hereinafter “ICAO Rejoinder (B)”) (BEUM Vol. IV, Annex 26); ICAO Council – 214th Session, Summary
Minutes of the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para. 6
(BEUM Vol. V, Annex 53).
6 Decision of the ICAO Council on the Preliminary Objection in the Matter: the State of Qatar and
the Arab Republic of Egypt, the Kingdom of Bahrain and the United Arab Emirates (2017) –
Application (B), 29 June 2018 (hereinafter “ICAO Council Decision (B)”) (BEUM, Vol. V, Annex 52).

2

1.5 Exercising their right under Article II, Section 2 of the IASTA to appeal from the decisions
of the Council to the Court, Joint Appellants instituted these proceedings by means of a Joint
Application dated 4 July 2018 (“Joint Application (B)”).7 They raise three grounds of appeal. In
particular, Joint Appellants ask that the Court adjudge and declare:

• That the Council Decision is “null and void”, and should be “set aside” because the procedure
adopted by the ICAO Council “manifestly violated fundamental principles of due process and the
right to be heard” (“First Ground of Appeal”);8
• That the ICAO Council erred in fact and in law in rejecting their First Preliminary Objection to
the effect that the “present dispute would require the Council to determine issues that fall
outside its jurisdiction: to rule on the lawfulness of the countermeasures adopted by the [Joint
Appellants], including certain airspace restrictions” (“Second Ground of Appeal”);9 and
• That the ICAO Council erred in fact and in law in rejecting their Second Preliminary Objection to
the effect that Qatar did not comply with “the necessary precondition to the existence of
jurisdiction of the Council, contained in Article II, Section 2 of the IASTA, and by reference
Article
84 of the Chicago Convention, of first attempting to resolve the disagreement regarding the
airspace restrictions with the [Joint

7 Joint Application Instituting Proceedings, Appeal Against a Decision of the ICAO Council dated 29
June 2018 on Preliminary Objections (Application (B), Kingdom of Bahrain, Arab Republic of Egypt
and the United Arab Emirates v. State of Qatar), 4 July 2018 (hereinafter “ICJ Application (B)”).
8 Ibid., paras. 28, 30, 33(3).
9 Ibid., para. 20(i), 31.

3

Appellants] through negotiations prior to submitting its claims to the Council …” (“Third Ground of
Appeal”).10

II. Overview of Qatar’s Arguments

1.6 Qatar will show in the subsequent chapters of this Counter-Memorial that all three grounds
of appeal are baseless. Indeed, in its 1972 Judgment in Appeal Relating to the Jurisdiction of the
ICAO Council (India v. Pakistan) (“the 1972 ICAO Council Appeal case”), the Court rejected
arguments that were substantially identical to those that Joint Appellants now present as their
first two grounds of appeal.

1.7 Like Joint Appellants, India argued in that case that the ICAO Council’s decision was
“vitiated” by procedural irregularities.11 The Court disagreed. It viewed its appellate function in
respect of jurisdictional decisions of the ICAO Council in terms of “giv[ing] a ruling as to
whether the Council [had] jurisdiction in the case”.12 Making that ruling required the Court to
answer only “an objective question of law”, which “cannot depend on what occurred before the
Council”.13

10 Ibid. para 20 (ii), 32.
11 I.C.J. Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
Memorial submitted by the Government of India (22 Dec. 1971), para. 93.
12 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45. On two past occasions, the Court has defined the appellate function to
involve a decision of whether the adjudicator in the first instance was substantively right or
wrong. See Case concerning the Arbitral Award made by the King of Spain on 23 December 1906
(Honduras v. Nicaragua), Judgment of 18 November 1960, I.C.J. Reports 1960, p. 214; Arbitral Award
of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, para. 24.
13 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.

4

The procedural irregularities India alleged were therefore irrelevant. So too are the alleged
procedural irregularities that Joint Appellants identify in their Memorial.

1.8 Qatar considers it telling that Joint Appellants never once mention the aspect of the
Court’s decision in the 1972 ICAO Council Appeal case relating to its appellate function in respect
of jurisdictional decisions of the ICAO Council, which is fully dispositive of their First Ground
of Appeal.

1.9 Like Joint Appellants, India also argued that its dispute with Pakistan was “in the realm of
political confrontation between two States … and these matters of political confrontation … are
outside the ambit of the Council’s competence”.14 The Court easily rejected this argument too,
holding:

“[T]he Council [cannot] be deprived of jurisdiction merely because considerations that are claimed
to lie outside the Treaties may be involved if, irrespective of this, issues concerning the
interpretation or application of these instruments are nevertheless in question. The fact that a
defence on the merits is cast in a particular form, cannot affect the competence of the tribunal or
other organ concerned,—otherwise parties would be in a position themselves to control that
competence, which would be inadmissible. As has already been seen in the case of the competence of
the Court, so with that of the Council, its competence must depend on the character of the dispute
submitted to it and on the issues thus raised—not on those defences on the merits, or other
considerations, which would become

14 I.C.J. Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
Memorial submitted by the Government of India (22 Dec. 1971), para. 79.

5

relevant only after the jurisdictional issues had been settled”.15
1.10 In contrast to their wholesale failure to address the aspect of the Court’s Judgment in the
1972 ICAO Council Appeal case that fully disposes their procedural arguments, Joint Appellants do
at least try to argue that this case is different from that one. Joint Appellants argue that the
“considerations that are claimed to lie outside” the IASTA in this case are somehow distinguishable
from those at play in the 1972 ICAO Council Appeal because they relate to the law of
countermeasures (as opposed to the issues relating to the law of treaties that India raised). The
reasons this argument is unavailing are explained in detail in Chapter
3. But as is obvious from the language quoted above, the Court’s reasoning in the 1972 ICAO Council
Appeal case was stated in general terms and made clear that any “defence on the merits … cannot
affect the competence of the tribunal or other organ concerned”.

1.11 Joint Appellants appear to hope that they can get a different result than that compelled by
the Court’s jurisprudence by presenting an extended—and irrelevant—polemic about Qatar’s alleged
support for terrorism and interference in their internal affairs that is said to make the aviation
prohibitions lawful countermeasures. Not only are these allegations wholly without merit, as Qatar
will amply show in Chapter 2, they are also entirely beside the point. Joint Appellants’ assertions
still constitute a defence on the merits that “cannot affect the competence” of the ICAO Council.

15 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27 (emphasis added).

6

1.12 Joint Appellants’ final argument that Qatar failed to fulfil the negotiation requirement
contained in Article II, Section 2 of the IASTA (and by reference Article 84 of the Chicago
Convention16) is as unconvincing as their other two. Having imposed the aviation prohibitions
without any prior warning, Joint Appellants immediately stated that there was “nothing to
negotiate” with Qatar,17 and then issued demands with which they said (and still say) Qatar must
comply before they will consider even discussing lifting the aviation prohibitions. They have
repeatedly and emphatically stated that these demands are “non-negotiable”. The Court’s
jurisprudence is clear that when a State is faced with such a refusal to talk on any issue, the
negotiation requirement is discharged. If a State refuses to come to the negotiation table at all,
no purpose can be served by insisting on negotiations.

1.13 In any event, Qatar will show in Chapter 4 that it made multiple genuine attempts to negotiate
with Joint Appellants in several fora, including directly, within the ICAO institutional framework,
as well as with the facilitation of third States. Joint Appellants rebuffed all of these efforts at
every turn. For them now to insist that Qatar failed to satisfy the negotiation requirement of the
IASTA is as cynical as it is wrong.

16 Convention on Civil Aviation, (1994) 15 U.N.T.S. 295 (7 Dec. 1944) (entry into force: 4 Apr.
1947) (hereinafter “Chicago Convention”), Art. 84 (BEUM Vol. II, Annex 1).
17 Jon Gambrell, “Emirati diplomat to AP: ‘Nothing to negotiate’ with Qatar”, Associated Press (7
June 2017) (QCM (B) Vol. IV, Annex 72).

7

III. Structure of Qatar’s Counter-Memorial

1.14 The remaining chapters of this Counter-Memorial will explain in detail all the reasons that
Joint Appellants’ appeal must be rejected. Rather than address Joint Appellants’ grounds of appeal
in the order they are presented in the Memorial, Qatar will address them starting with the
preliminary objections that were presented before the ICAO Council. That is, Qatar will first
answer Joint Appellants’ Second Ground of Appeal, which reiterates their First Preliminary
Objection, and then answer their Third Ground of Appeal, which reiterates their Second Preliminary
Objection. Qatar will deal with Joint Appellants’ First Ground of Appeal relating to the alleged
procedural irregularities last.

1.15 In addition to being consistent with the order of presentation before the Council, Qatar
considers proceeding in this way to be in line with the Court’s approach in 1972 ICAO Council
Appeal case. Because “giv[ing] a ruling as to whether the Council has jurisdiction in the case”
involves only “an objective question of law” that “cannot depend on what occurred before the
Council”,18 Joint Appellants’ arguments rise or fall on the basis of their Second and Third Grounds
of Appeal. Qatar will therefore address those first.

1.16 The main text of this Counter-Memorial consists of five chapters, followed by Qatar’s
Submissions. After this Introduction, mindful of the Court’s admonition in the 1972 ICAO Appeal
case to put before the Court only what is relevant to these proceedings,19 Chapter 2 recounts the
factual background to Joint Appellants’

18 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
19 Ibid., para. 11 (“…with the substance of this dispute as placed before the Council, and the
facts and contentions of the Parties relative to it, the Court has nothing whatever to do in the
present
8

imposition of the aviation prohibitions in violation of the IASTA. This Chapter also exposes the
disingenuousness of Joint Appellants’ baseless and immaterial accusations that Qatar supports
terrorism and interferes in Joint Appellants’ internal affairs. In Qatar’s view, the fact that
Joint Appellants are reduced to raising such easily falsifiable claims in an attempt to justify the
aviation prohibitions raises serious questions about the motivations underpinning their entire
course of conduct, including their decision to appeal from an evidently sound decision of the ICAO
Council.

1.17 Chapter 3 addresses Joint Appellants’ Second Ground of Appeal. Joint Appellants’ attempts to
impose a priori restrictions on the ICAO Council’s jurisdiction are inconsistent with its mandate
to exercise its dispute settlement functions to their full extent when issues concerning the
interpretation or application of the IASTA are in dispute―as is the case here. Joint Appellants’
transparent attempt to broaden the dispute by invoking a countermeasures defence cannot control the
jurisdiction of the Council. If it were allowed to do so, it would not only increase the potential
for abuse inherent in the concept of countermeasures, it would also undermine the entire system of
international dispute settlement.

1.18 The simple fact is that Qatar’s claims cannot be resolved without any interpretation or
application of the IASTA. Indeed, both the availability of a countermeasures defence as a matter of
principle and whether the conditions for their exercise have been met indisputably fall within the
jurisdiction of the Council. As a result, Joint Appellants’ assertion of a countermeasures defence
cannot in any

proceedings, except in so far as these elements may relate to the purely jurisdictional issue which
alone has been referred to it, namely the competence of the Council to hear and determine the
case”.).

9

way undermine the fact that the dispute before the Council relates to the interpretation and
application of the IASTA. This Chapter concludes by showing that the adjudication of Qatar’s claims
by the ICAO Council was entirely consistent with judicial propriety.

1.19 Chapter 4 explains why the Court should deny Joint Appellants’ Third Ground of Appeal. The
record demonstrates that Qatar fulfilled the negotiation requirement in Article II, Section 2 of
the IASTA by attempting to negotiate with Joint Appellants over the aviation prohibitions on
multiple occasions, through multiple avenues and in multiple fora, only to be rebuffed by Joint
Appellants at every turn. Moreover, contrary to what Joint Appellants allege, Qatar duly complied
with the requirements of Article 2(g) of the ICAO Rules for the Settlement of Differences.

1.20 Chapter 5 shows that Joint Appellants’ complaints about the putative procedural irregularities
before the ICAO Council are baseless. First, consistent with the Court’s decision in the 1972 ICAO
Council Appeal case, the Court need not rule on Joint Appellants’ procedural complaints because the
Council Decision was objectively correct. Second, even if the Court were to depart from its ruling
in the 1972 ICAO Council Appeal case and consider Joint Appellants’ procedural complaints, this
Chapter makes clear there were no irregularities in the procedure adopted by the Council. The
Council conducted the proceedings and adopted its decision in accordance with the provisions of the
IASTA, the ICAO Rules for the Settlement of Differences, the Rules of Procedure for the Council and
its own practice. In addition, none of the procedural complaints Joint Appellants identify in their
Memorial prejudiced in any fundamental way the requirements of just procedure.

10

1.21 This Counter-Memorial concludes with Qatar’s submissions.

11

CHAPTER 2

JOINT APPELLANTS’ “REAL DISPUTE” ARGUMENT IS AN ARTIFICE FOR ESCAPING SCRUTINY OF THEIR AVIATION
PROHIBITIONS

2.1 This Chapter sets forth the factual background to the dispute regarding Joint Appellants’
violations of the IASTA that gave rise to Qatar’s October 2017 Application B before the ICAO
Council. It also responds to the false accusations about Qatar’s alleged “failure to confront
terrorism and extremism”, “state- sponsored dissemination of hate speech and incitement” and
“violation of the principle of non-intervention” that Joint Appellants make in their Memorial.20

2.2 Qatar has chosen to respond to Joint Appellants’ accusations with reluctance. It could have
rested on the fact that they are—to use the words of the Court in the 1972 ICAO Council Appeal
case—plainly unrelated to the “purely jurisdictional issue which alone has been referred to it”.21
That is the approach Qatar took when Joint Appellants made similar charges before the ICAO Council
in an attempt to justify their first jurisdictional objection (raised in these proceedings as their
Second Ground of Appeal). The Council had no difficulty seeing them for what they are. Qatar trusts
that the Court would have done the same even without the aid of responsive argument.

2.3 Qatar has chosen to respond now only to protect the integrity of these proceedings before the
principal judicial organ of the United Nations. Far from “confirm[ing] the conclusion that the
dispute is indeed unrelated to air navigation

20 Many of these false and malicious accusations are repeated throughout Joint Appellants’
pleadings, but they can be found in most detail in BEUM Chapter II.
21 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 11.

12

and transport”,22 Joint Appellants’ cynical (and easily disproved) accusations only underscore how
unjustifiable their actions since 5 June 2017 have been.

2.4 The remainder of this Chapter takes up these points in turn. Section I details Joint
Appellants’ unlawful imposition of the aviation prohibitions in violation of the IASTA, as well as
Qatar’s attempts to mitigate their impact through dialogue under the auspices of ICAO. Section II
puts Joint Appellants’ baseless allegations about Qatar’s alleged violations of the Riyadh
Agreements and other rules of international law into proper context and shows them for what they
are: an artifice to avoid scrutiny of the aviation prohibitions that are the subject of this case.

2.5 Before taking up these points, Qatar notes that although the Kingdom of Saudi Arabia (“Saudi
Arabia”) is not a party to these proceedings, it has at all times acted in concert with Joint
Appellants, including with respect to the aviation prohibitions. Qatar will therefore also describe
Saudi Arabia’s conduct in this Chapter for purposes of giving the Court the fullest possible
picture of all relevant conduct.

I. Joint Appellants Imposed the Aviation Prohibitions in Breach of the
IASTA

2.6 On 5 June 2017 (10 Ramadan 1438), Joint Appellants imposed a blanket prohibition on all
Qatar-registered aircraft from flying to or from their airports and from overflying their
national airspaces and Flight Information Regions

22 BEUM, para. 2.2.

13

(“FIR”23).24 This unprecedented closure of airspace was communicated without prior warning (itself
a violation of the IASTA25) through Notices to Airmen (“NOTAMs”) from Joint Appellants’ respective
Civil Aviation Authorities.26

23 A flight information region (FIR) is a specified sector of airspace in which a certain entity
provides flight information and alerting services. A State’s management of an FIR is not
determinative of sovereignty over airspace within the FIR. See ICAO, Assembly Resolution A 38- 12:
Consolidated statement of continuing ICAO policies and associated practices related specifically to
air navigation, ICAO Doc. 10022 (entered into force as of 4 Oct. 2013), Appendix G, para. 7 (“the
approval by the Council of regional air navigation agreements relating to the provision by a State
of air traffic services within airspace over the high seas does not imply recognition of
sovereignty of that State over the airspace concerned”.) (QCM (B) Vol. II, Annex 14).

24 The aviation prohibitions are only part of an array of measures seeking to sever all relations
among the Parties. Indeed, on that same day, 5 June 2017, Joint Appellants, inter alia, severed
diplomatic relations with Qatar and closed their land and sea borders to travel and trade with
Qatar with immediate effect. Appellants Bahrain and the UAE, as well as Saudi Arabia, also demanded
that all Qatari residents and visitors leave their territories within fourteen days. See Kingdom of
Bahrain Ministry Foreign Affairs News Details, “Statement of the Kingdom of Bahrain on the
severance of diplomatic relations with the State of Qatar”, 5 June 2017 (BEUM Vol. V, Annex 73);
ICAO Preliminary Objections (B), Exhibit 6, Declaration of the Arab Republic of Egypt, 4 June 2017
(BEUM Vol. III, Annex 24); ICAO Preliminary Objections (B), Exhibit 9, Declaration of the United
Arab Emirates, 5 June 2017 (BEUM Vol. III, Annex 24); “The Kingdom severs diplomatic and consular
relations with Qatar”, Saudi Ministry of Foreign Affairs (5 June 2017) (QCM (B) Vol. III, Annex
48). In its Order of 23 July 2018, the Court found that some of the measures adopted on 5 June 2017
by the UAE “may constitute acts of racial discrimination” under the International Convention on the
Elimination of All Forms of Racial Discrimination. Application of the International Convention on
the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Request for
the Indication of Provisional Measures, Order (23 July 2018), para. 54.
25 Article I, Section 2 of the IASTA provides that “[t]he exercise of the foregoing privileges
shall be in accordance with the provisions of … the Convention on International Civil Aviation”.
The “foregoing privileges” are the privileges “to fly across its territory without landing” and “to
land for non-traffic purposes”. (IASTA Art. I, Section 1 (BEUM Vol. II, Annex 2). Thus, the Chicago
Convention and its Annexes govern the exercise of the privileges granted by the IASTA. And the
then-applicable 15th edition of Annex 15 of the Chicago Convention required that States give at
least seven days’ advance notice before establishing prohibited areas, other than for emergency
operations, which is not the case here. Convention on International Civil Aviation, Annex 15:
Aeronautical Information Services (15th ed., July 2016), Standard 5.1.1.4 (“At least seven days’
advance notice shall be given of the activation of established danger, restricted or prohibited
areas and of activities requiring temporary airspace restrictions other than for emergency
operations”.) (QCM (B) Vol. II, Annex 16).

14

2.7 Saudi Arabia sent its first NOTAM revoking the authorisation of Qatar- registered aircraft from
landing at Saudi Arabian airports at 04:42 AM on 5 June.27 The NOTAM was said to be effective as of
04:35 AM that same day (i.e., seven minutes before it was released).28 Saudi Arabia issued a second
NOTAM at 09:37 AM that prohibited Qatar-registered aircraft from overflying “Saudi Arabian
airspace”, effective as of 12:01 AM on 6 June.29 Subsequent NOTAMs issued on 5 June at 10:04 AM
and 11:41 AM required all non-Saudi-registered aircraft flying to or from Qatari airports through
Saudi Arabian airspace to coordinate with Saudi Arabia’s General Authority of Civil Aviation,
effective as of 12:01AM on 6 June.30

2.8 Purportedly acting on behalf of the Republic of Yemen, Saudi Arabia also issued a NOTAM at 3:46
PM on 6 June prohibiting all Qatar-registered aircraft from overflying Yemeni airspace.31 Like the
first Saudi NOTAM, its operative force was back-timed to 3:35 PM, eleven minutes before it was
issued.32

2.9 For its part, the UAE issued a NOTAM banning all Qatar-registered aircraft from overflying the
UAE FIR (which includes UAE territory and large portions of the high seas in the Arabian Gulf) and
landing at UAE aerodromes (which include

26 The NOTAMs were released globally through the international distribution channels for NOTAMs,
and the aviation prohibitions were also communicated through public statements in various media.
27 ICAO Response to Preliminary Objections (B), Exhibit 5, NOTAMS Issued by the Respondents, [PDF]
p. 975 (BEUM Vol. IV, Annex 25).
28 Ibid.
29 Ibid.
30 Ibid.
31 ICAO Response to Preliminary Objections (B), Exhibit 5, NOTAMS Issued by the Respondents, [PDF]
p. 977 (BEUM Vol. IV, Annex 25).
32 Ibid.

15

airports, airfields and military landing strips) at 08:37 AM on 5 June.33 It also required all
non-UAE-registered operators intending to use UAE airspace to fly to or from Qatar to seek prior
approval from the UAE’s General Civil Aviation Authority by providing them with a copy of the
detailed flight manifest at least 24 hours prior to departure.

2.10 Bahrain issued NOTAMs at 11:17 AM and 11:22 AM on 5 June banning all flights between
Bahrain and Qatar, and all Qatar-registered aircraft from overflying “Bahrain airspace”,
respectively.34 Bahrain issued two additional NOTAMs at 11:29 AM and 11:59 AM that day, specifying
that all flights affected by the previous two NOTAMs should use two specific entry and exits routes
in the Bahrain FIR. Because the Bahrain FIR fully encompasses Qatar’s territory and much of the
high seas surrounding it, this had the effect of closing off the rest of the airspace over the
Arabian Gulf high seas.35 Bahrain also informed Qatar of its intent to establish a so-called
“buffer zone” adjacent to its territorial waters, threatening to intercept militarily any
Qatar-registered aircraft entering it.36 Two days later, on 7 June, Bahrain issued another NOTAM
requiring all non-Bahrain-

33 ICAO Response to Preliminary Objections (B), Exhibit 5, NOTAMS Issued by the Respondents, [PDF]
p. 974 (BEUM Vol. IV, Annex 25).
34 ICAO Response to Preliminary Objections (B), Exhibit 5, NOTAMS Issued by the Respondents, [PDF]
pp. 971-973 (BEUM Vol. IV, Annex 25).
35 See ICAO Council, First ATM Contingency Coordination Meeting For Qatar, Summary of Discussions,
ICAO Doc. ACCM/1 (6 July 2017), Appendix A at 4-5 (map indicating that prior Westbound routes were
prohibited by NOTAM, leaving only two available routes for entry into and exit from Doha for
Qatar-registered aircraft) (QCM (B) Vol. III, Annex 26). See also infra Figure 2: Two ATS Routes
Available Post-Aviation Prohibition.
36 ICAO Response to Preliminary Objections (B), Exhibit 3, Letter from Adbulla Nasser Turki Al-
Subaey, Chairman of Qatar Civil Aviation Authority, to Dr. Olumuyiwa Benard Aliu, President of
ICAO, 2017/15984 (8 June 2017) (BEUM Vol. IV, Annex 25).

16

registered operators intending to use Bahraini airspace to fly to or from Qatar to obtain approval
from Bahrain’s Civil Aviation Authority.37

2.11 Egypt acted at 12:25 PM on 5 June when it issued a NOTAM banning all Qatar-registered aircraft
from overflying the Cairo FIR (which includes portions of the high seas over the Mediterranean
Sea38) and departing or landing at Egyptian aerodromes.39 The same NOTAM also required all
non-Egypt-registered operators intending to use the Cairo FIR for travel to or from Qatar to obtain
prior approval from the Egypt Civil Aviation Authority.40

2.12 Individually and collectively, Joint Appellants’ aviation prohibitions caused immediate and
widespread disruption and confusion. Over 70 flights, scheduled by multiple carriers, were
cancelled on 6 June.41 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.42 Over
the first week of the aviation prohibitions, tens of thousands of seat reservations for

37 ICAO Response to Preliminary Objections (B), Exhibit 5, NOTAMS Issued by the Respondents, [PDF]
p. 971-973 (BEUM Vol. IV, Annex 25).
38 See ICAO, Interactive Map, “Cairo FIR” (QCM (B) Vol. III, Annex 33).
39 ICAO Response to Preliminary Objections (B), Exhibit 5, NOTAMS Issued by the Respondents, [PDF]
p. 976 (BEUM Vol. IV, Annex 25).
40 Ibid.
41 “Gulf blockade disrupts Qatar Airways flights”, Al Jazeera (7 June 2017) (QCM (B) Vol. IV, Annex
73).
42 “Qatar row: Air travellers hit by grounded flights”, BBC (5 June 2017) (QCM (B) Vol. IV, Annex
68); Naveed Siddiqui, “550 Pakistani pilgrims stranded in Qatar flown to Muscat”, Dawn (6 June
2017) (QCM (B) Vol. IV, Annex 70).

17

flights into and out of Doha across all airlines and for all forward travel dates were cancelled.43

2.13 The aviation prohibitions also jeopardised the security and safety of at least five aircraft
that were en-route in Yemen airspace on 5 June, since the NOTAM restricting that airspace was
back-timed. These en-route flights were required to make urgent, unexpected route changes that
resulted in the filing of two Air Safety Occurrence Reports.44

2.14 Qatar immediately notified the ICAO Council of Joint Appellants’ actions and requested its
urgent intervention at least to allow overflight of international airspace over the high seas lying
within Joint Appellants’ FIRs.45 On 8 June 2017, Qatar formally requested that an extraordinary
session of the ICAO Council be convened under Article 54(n) of the Chicago Convention.46 The ICAO
Council scheduled an extraordinary meeting for 31 July 2017 to consider Qatar’s request.

43 “Slump in travel to and from Qatar as thousands of airline bookings are cancelled”, The National
(13 June 2017) (QCM (B) Vol. IV, Annex 77).
44 Any event that has or could have significance in the context of aviation safety should be
reported in an Air Safety Occurrence Report, consistent with the provisions of ICAO Annex 13 on
Aircraft accident and incident investigation.
45 Letter from Adbulla Nasser Turki Al-Subaey, Chairman of Qatar Civil Aviation Authority, to Fang
Liu, ICAO Secretary General (5 June 2017) (QCM (B) Vol. III, Annex 21). See also ICAO Council, 21st
Session, Summary of Decisions, ICAO Doc. C-DEC 211/10 (27 June 2017), para. 21(a) (describing
efforts of ICAO Middle East Regional Office since 5 June) (QCM (B) Vol. III, Annex 25).
46 ICAO Response to Preliminary Objections (B), Exhibit 3, Letter from Adbulla Nasser Turki Al-
Subaey, Chairman of Qatar Civil Aviation Authority, to Dr. Olumuyiwa Benard Aliu, President of
ICAO, 2017/15984 (8 June 2017) (BEUM Vol. IV, Annex 25). Article 54(n) of the Chicago Convention
provides that the Council shall “[c]onsider any matter relating to the Convention which any
contracting State refers to it”. (Chicago Convention, Art. 54(n) (BEUM Vol. II, Annex 1). As
previously noted, Article I, Section 2 of the IASTA incorporates the Chicago Convention to govern
the exercise of the privileges granted in Article I, Section 1 of the IASTA. (IASTA Art. I, Section
2 (BEUM Vol. II, Annex 2)).

18

2.15 In the Memorial, Joint Appellants allege that they “cooperated extensively and in a timely
manner with both ICAO and Qatar to agree to and complement contingency routes and related
contingency arrangements and to avoid unnecessary disruption of air traffic”.47 This is not true.
Figure 1 (immediately following this page) shows that prior to 5 June 2017, Qatar’s national
carrier, Qatar Airways, had access to 13 regular Air Traffic Service (“ATS”) routes48 available for
flights into and out of Doha, including operations flying over Joint Appellants’ territories.

2.16 After the aviation prohibitions went into effect, Qatari-registered aircraft were prohibited
from transiting Joint Appellants’ territory and national airspace. They were restricted to using
only two routes, both over the high seas in the Bahrain FIR,49 as reflected in Figure 2
(immediately following Figure 1).

2.17 It was only after ICAO’s intervention after Qatar’s repeated appeals to it (given that all
channels of communication with the relevant authorities of Joint Appellants had been effectively
shut off since 5 June 2017, as will be discussed below50), and about a week after the imposition of
the measures, that Joint Appellants issued NOTAMs revising the scope of their aviation
prohibitions to

47 BEUM, para. 2.54. “Contingency plans are intended to provide alternative facilities and services
to those provided for in the regional air navigation plan when those facilities and services are
temporarily not available. Contingency arrangements are therefore temporary in nature, remain in
effect only until the services and facilities of the regional air navigation plan are reactivated
and, accordingly, do not constitute amendments to the regional plan requiring processing in
accordance with the ‘Procedure for the Amendment of Approved Regional Plans’”. (Chicago Convention,
Annex 11: Air Traffic Services (14th ed., July 2016), Attachment C, p. ATT C-1 (QCM (B) Vol. II,
Annex 17).
48 ATS routes are designated routes for channelling the flow of air traffic as necessary for the
provision of air traffic service, pursuant to ICAO regulations.
49 See ICAO Council, First ATM Contingency Coordination Meeting For Qatar, Summary of Discussions,
ICAO Doc. ACCM/1 (6 July 2017), Appendix A at 4-5 (QCM (B) Vol. III, Annex 26).
50 See infra Chapter 4, paras. 4.28, 4.29.

19

THIRTEEN ATS ROUTES AVAILABLE PRE-AVIATION PROHIBITIONS

Source: Qatar Civil Aviation Authority

Figure 1

TWO ATS ROUTES AVAILABLE POST-AVIATION PROHIBITIONS

Source: Qatar Airways

Figure 2

apply only to their respective national airspaces,51 which still left them in violation of Article
I, Section 1 of the IASTA. On 11 June, Bahrain restored two modified ATS routes for traffic flows
to and from the West over the high seas off of Bahrain.52

2.18 On 13 June, Qatar submitted a proposal for a contingency route over UAE territory, which the
UAE rejected.53 A separate proposal for a contingency route via the Bahrain FIR over the high seas
was presented on 18 June. It was approved on 20 June and began operation on 22 June.54 Additional
proposals for contingency routes over the high seas areas of the UAE FIR were proposed on 20 June
and remained under consideration into August.

2.19 By 22 June 2017, more than two weeks after the introduction of the aviation prohibitions, only
two additional modified ATS airways had been re-opened and only one contingency route had been
established—all by Bahrain in the Bahrain FIR (which, as stated, encompasses Qatar and the high
seas surrounding it), but still none over Joint Appellants’ territory. The other Joint Appellants
continued to reject or delay consideration of all of Qatar’s proposals to open additional routes.55

51 Bahrain and Egypt issued their revised NOTAMs on 10 June, while the UAE issued its revised NOTAM
on 12 June. ICAO Response to Preliminary Objections (B), Exhibit 5, NOTAMS Issued by the
Respondents, [PDF] pp. 971-976 (BEUM Vol. IV, Annex 25).
52 ICAO Council, First ATM Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO
Doc. ACCM/1 (6 July 2017), Appendix A, pp. 9-10 (QCM (B) Vol. III, Annex 26).
53 ICAO Council, First ATM Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO
Doc. ACCM/1 (6 July 2017), Appendix B, pp. 14-20 (QCM (B) Vol. III, Annex 26).
54 Ibid., para. 6.4.
55 See Appendices of Working Paper 14640: Contingency Arrangements and ATM Measures in the MID
Region by Kingdom of Bahrain, Arab Republic of Egypt, Kingdom of Saudi Arabia and United
20

2.20 Following the 31 July 2017 extraordinary session of the ICAO Council convened at Qatar’s
request, the Council issued a decision “urging all ICAO Member States to continue to collaborate,
in particular, to promote the safety, security, efficiency and sustainability of international
civil aviation”.56 That same day, the UAE approved an additional inbound contingency route over the
high seas, but with limited air traffic volume permitted; that contingency route was opened as of 7
August 2017.57 The day after the extraordinary session of the Council, Egypt also approved a
contingency route over the high seas portion of the Cairo FIR, but the route was of little to no
operational value.58

2.21 As shown in Figure 3 (immediately following this page), little has changed since 30 October
2017, when Qatar submitted its Application B to the ICAO Council under Article II, Section 2 of the
IASTA.59 The prohibition of taking off

Arab Emirates (2017) (providing maps and timing of the routes that Joint Appellants ultimately
agreed to open) (QCM (B) Vol. IV, Annex 135).
56 ICAO Council, ICAO Annual Report 2017: Settlement of Differences (QCM (B) Vol. II, Annex 18).
57 Appendices of Working Paper 14640: Contingency Arrangements and ATM Measures in the MID Region
by Kingdom of Bahrain, Arab Republic of Egypt, Kingdom of Saudi Arabia and United Arab Emirates
(2017) (indicating the UAE’s acceptance on 7 August 2017 of the T665 westbound proposal for Qatar
Airways arrivals) (QCM (B) Vol. IV, Annex 135).
58 ICAO Response to the Preliminary Objections (B), Exhibit 10, Council – Extraordinary Session,
Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (Closed) (31 July 2017), para. 41
(indicating that contingency route in Cairo FIR would open the following day, 1 August 2017) (BEUM
Vol. IV, Annex 25); ICAO Council, Third ATM Contingency Coordination Meeting for Qatar, Summary of
Discussions, ICAO Doc. ACCM/3 (5-6 Sept. 2017), para. 6.5 (noting the lack of use of the Cairo FIR
contingency route T565) (QCM (B) Vol. III, Annex 27).
59 The only changes have been (1) to increase air traffic into T665 (see ICAO Council, Third ATM
Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/3 (5-6 Sept.
2017), para. 6.12.1 (QCM (B) Vol. III, Annex 27) and (2) to open a new inbound route to Doha in the
Bahrain FIR, which became operative only on 31 January 2019 (see ICAO Council, Fourth ATM
Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/4 (28 Apr. 2018)
(QCM (B) Vol. III, Annex 34).

21

SEVEN ATS ROUTES AVAILABLE AS OF 4 FEBRUARY 2019

Source: Qatar Civil Aviation Authority

Figure 3

and landing at Joint Appellants’ airports and overflying their territories remains in effect to
this day, in violation of Article I, Section 2 of the IASTA.

2.22 As a result of the aviation prohibitions, Qatar Airways has had to cancel more than 50 flights
a day and discontinue operations serving 18 destinations in Joint Appellants’ territory, accounting
for approximately 18% of its overall seating capacity.60 The aviation prohibitions have also forced
Qatar Airways to use limited and less convenient air routes for the destinations that it continues
to serve, leading to dangerous congestion and compromising the efficiency of civil aviation in
light of increases in flight times and fuel consumption occasioned by the required rerouting.61

2.23 As set forth in its 30 October 2017 Application B before the ICAO Council, Qatar challenges
the aviation prohibitions as violations of Article I of the IASTA. In particular, the prohibitions
violate “[t]he privilege to fly across their territories without landing” and “to land for
non-traffic purposes”.62 The Council upheld its jurisdiction over these claims in the Council
Decision that is the subject of the appeal now before the Court.63

2.24 It is this simple reality that Joint Appellants seek to confuse with their false accusations
about Qatar’s supposed support of terrorism and extremism and

60 Zahraa Alkhalisi, “Arab blockade is nightmare for Qatar Airways”, CNN (6 June 2017) (QCM
(B) Vol. IV, Annex 71).
61 Max Bearak, “Three maps explain how geopolitics has Qatar Airways in big trouble”, Washington
Post (7 June 2017) (demonstrating the added flight time and fuel consumption caused by the aviation
prohibitions) (QCM (B) Vol. IV, Annex 74).
62 ICAO Application (B) (BEUM Vol. III, Annex 23).
63 ICAO Council Decision (B) (BEUM, Vol. V, Annex 52).

22

interference with their domestic affairs. Qatar will show the baselessness of Joint Appellants’
charges below.

II. Joint Appellants’ Accusations Are False

2.25 In their Memorial, Joint Appellants claim that the aviation prohibitions reflect their
“considered assessments of Qatar’s numerous and ongoing violations of international legal
obligations”.64 They assert that these ostensible violations consist of the “fail[ure] to suppress
the activities of terrorists and extremists living within its borders and … to prosecute such
terrorists and extremists”; “systematic[] interfere[nce] in the internal affairs of the Appellants
and other States”; and “use[] [of] … State-owned and controlled media – in particular the Al
Jazeera network – to incite hatred and violence”.65 Joint Appellants’ “evidence” for these very
serious charges consists almost entirely of media reports and their own official statements.

2.26 Qatar will explain in Chapter 3 why Joint Appellants’ attempt to obfuscate the real issues in
dispute fails as a matter of law. Here, Qatar shows that it also has no foundation in fact and,
indeed, has been rejected by the international community at large. The fact that Joint Appellants
are reduced to hiding behind such baseless allegations raises questions about the true motivations
for their entire course of conduct, including their decision to appeal the Council Decision to the
Court. Joint Appellants are not genuinely concerned about Qatar’s (non-existent) support for
terrorism or interference in their internal affairs. What they really want is to force Qatar to
abandon its commitment to freedom of expression and political tolerance—a commitment that,
regrettably, Joint Appellants view as a threat.

64 BEUM, para. 2.7.
65 Ibid.

23

A. JOINT APPELLANTS’ ALLEGATIONS OF SUPPORT OF TERRORISM AND EXTREMISM ARE FALSE

2.27 Joint Appellants contend that Qatar “has a long history of supporting extremist and terrorist
groups in the Middle East and North Africa”.66 However, the “evidence” they provide in support of
this grave charge, much of which is quite dated, collapses under scrutiny. Their claim is also
flatly contradicted by the larger international community, including specialised organisations
mandated to combat the financing of terrorism, the Gulf Cooperation Council (“GCC”), the European
Union (“EU”) and the United States of America, which have consistently recognised Qatar’s
leadership role in countering terrorism and extremism—and increasingly expressed concerns about
Joint Appellants’ own record in this area.

2.28 Joint Appellants cite, for example, a 16-year-old New York Times article for the proposition
that a Qatari official “helped” the architect of the 9/11 World Trade Center terrorist attack,
Khalid Shaikh Mohammad, “evade a January 1996 arrest warrant issued by the United States for his
terrorist activities …”.67 But the very same article proves the accusation baseless when it quotes
the then-U.S. Ambassador to Qatar as saying, “I have no information that would lead me to conclude
that the Qatar government tipped off Khalid Shaikh Mohammed”, as well as other U.S. officials who
conceded that there is no “hard evidence” to substantiate the allegation.68

66 BEUM, para. 2.9.
67 “Threats and Responses: Counterterrorism; Qaeda Aide Slipped Away Long Before Sept. 11 Attack”,
The New York Times, 8 March 2003 (BEUM Vol. VI, Annex 100); see also BEUM, para. 2.10.
68 Ibid.

24

2.29 Joint Appellants’ assertion is not without irony. All 19 of the 9/11 hijackers were citizens
of one of the three Appellants in this case and Saudi Arabia: two were citizens of the UAE, one was
a citizen of Egypt and 15 were citizens of Saudi Arabia.69 None were Qatari. Indeed, Saudi Arabia
will soon have to face allegations of its involvement in helping to plan the 9/11 terrorist
attacks, having recently lost a motion to dismiss a lawsuit to that effect in the United States.70
The UAE also faces potential exposure in those actions given that many of the hijackers travelled
through the UAE and significant financial resources were transmitted through UAE banks to the
hijackers and other Al-Qaida operatives.71

2.30 Next, Joint Appellants contend that in 2003 (i.e., 16 years ago) Qatar provided “safe haven”
for Zelimkhan Yandarbiyev,72 a former president of Chechnya who they say was placed on the UN
Security Council Al-Qaida Committee list for allegedly fundraising for terrorist groups, and was
the subject of a Russian extradition request, which Qatar refused to honour.73 Joint Appellants,
however, fail to mention that Mr. Yandarbiyev was added to the UN Security Council list only a few
months before he was assassinated in Doha in February 2004.74 Moreover, the 2008 report from the
International Monetary Fund (“IMF”)

69 “September 11 Hijackers Fast Facts”, CNN (27 July 2013) (QCM (B) Vol. IV, Annex 64).
70 Jonathan Stempel, “Saudi Arabia must face U.S. lawsuits over Sept. 11 attacks”, Reuters (28 Mar.
2018) (QCM (B) Vol. IV, Annex 97).
71 Jamie Merrill, “REVEALED: 9/11 families could sue UAE for alleged role in attacks”, Middle East
Eye (14 July 2017) (QCM (B) Vol. IV, Annex 83).
72 BEUM, para. 2.10.
73 Ibid. See also International Monetary Fund, Qatar: Detailed Assessment Report on Anti-Money
Laundering and Combating the Financing of Terrorism, 19 June 2018, published October 2008, p. 46,
para. 184 (BEUM Vol. VII, Annex 130).
74 Mr. Yandarbiyev was placed on the UN Security Council list on 26 June 2003. United Nations Press
Release SC/7803, “Security Council Committee Adds Names of 17 Individuals to Al-Qaida Section of
Consolidated List”, 26 June 2003 (BEUM Vol. VI, Annex 89).

25

on which Joint Appellants rely to support this contention, expressly references Qatari authorities’
statements that “the purpose of [their] refusal [to extradite Mr. Yandarbiyev to Russian
authorities] was to ensure [his] protection”.75 Qatar’s concerns appear to have been well-founded,
given that two Russians were subsequently tried and convicted of killing him.76

2.31 The same 2008 IMF report notably concluded that “there is currently no evidence of significant
[money laundering] in the country”, the “level of predicate offenses appears very low in Qatar in
comparison to other countries”, “Qatar ranks among the less corrupted countries in the region”, and
“[n]o major terrorist activity has been recorded in the country”.77 The report also made certain
recommendations and comments regarding the criminalisation of terrorist financing,78 which have all
since been implemented. Qatar Law No. 4 of 2010 not only criminalised money laundering and
terrorism financing, but it also established a National Committee for Anti-Money Laundering and
Anti-Terrorist Financing with authority to freeze assets and impose travel bans.79 In 2017, Qatar
also amended its counterterrorism legislation to establish a domestic terrorist listing mechanism
based on, but separate from, the UN Security Council Sanctions Committee’s designated
list.80

75 International Monetary Fund, Qatar: Detailed Assessment Report on Anti-Money Laundering and
Combating the Financing of Terrorism, 19 June 2008, published October 2008, p. 46, para. 184 (BEUM
Vol. VII, Annex 130).
76 Steven Lee Myers, “Qatar Court Convicts 2 Russians in Top Chechen’s Death”, New York Times
(1 July 2004) (QCM (B) Vol. IV, Annex 60).
77 International Monetary Fund, Qatar: Detailed Assessment Report on Anti-Money Laundering and
Combating the Financing of Terrorism, 19 June 2008, published October 2008, pp. 19-20, paras. 59-63
(BEUM Vol. VII, Annex 130).
78 Ibid., p. 47, para. 185.
79 State of Qatar, Law No. 4 of 2010 on Combating Money Laundering and Terrorism Financing (18 Mar.
2010) (QCM (B) Vol. III, Annex 44).
80 State of Qatar, Decree No. 11 of 2017 to Amend Law No. 3 of 2004 (13 July 2017) (QCM (B) Vol.
III, Annex 45).

26

Designations and prosecutions have already been undertaken utilising these frameworks and
mechanisms.81

2.32 Joint Appellants also mention a 2014 statement made by the U.S. Under Secretary for Terrorism
and Financial Intelligence, Mr. David Cohen, who described Qatar as a “permissive jurisdiction” for
terrorist financing.82 That characterisation stands in stark contrast with the IMF report just
cited, and the fact that Qatar was the first State to negotiate and sign a detailed
counterterrorism agreement with the United States.83 After the signing of this agreement, the U.S.
Secretary of State stated that “on the issue of terrorism financing, Qatar had now leapfrogged its
rivals”.84

2.33 In this respect, Qatar also notes that on 22 May 2017, two weeks before the imposition of the
aviation prohibitions, it joined the Terrorist Financing Targeting Center (“TFTC”), a partnership
between the United States and the GCC Member States designed to help disrupt terrorist financial
networks. Qatar attended TFTC

81 See, e.g., Noah Browning, “Qatar puts 28 people and entities on new terrorism list”, Reuters (22
Mar. 2018) (QCM (B) Vol. IV, Annex 95).
82 ICAO Preliminary Objections (B), Exhibit 19, Remarks of Under Secretary for Terrorism and
Financial Intelligence David Cohen before the Center for a New American Security on Confronting New
Threats in Terrorist Financing, 3 April 2014 (BEUM Vol. III, Annex 24); see also BEUM., para. 2.11.
83 U.S. Department of State, Press Availability with Qatari Foreign Minister Sheikh Mohammed bin
Abdulrahman al-Thani, (11 July 2017) (QCM (B) Vol. III, Annex 49). The Qatar-U.S. Counterterrorism
Memorandum of Understanding had been negotiated between the parties for approximately a year before
it was signed on 11 July 2017. N. Gaouette & Z. Cohen, “US and Qatar broker counterterrorism
agreement”, CNN (11 July 2017) (QCM (B) Vol. IV, Annex 82). See also
U.S. Department of State, Joint Statement of the Inaugural United States-Qatar Strategic Dialogue
(30 Jan. 2018) (“United States thanked Qatar for its action to counter terrorism and violent
extremism in all forms, including by being one of the few countries to move forward on a bilateral
Memorandum of Understanding with the United States”.) (QCM (B) Vol. III, Annex 51).
84 ICAO Response to Preliminary Objections (B), Exhibit 46, Tillerson Tries Shuttle Diplomacy in
Qatar Dispute (11 July 2017) (BEUM Vol. IV, Annex 25).

27

meetings held after the imposition of the aviation prohibitions and the other measures of 5 June
2017, in July 2017, March 2018 and May 2018 and jointly designated with other TFTC members 11
individuals and two entities as terrorist financiers on 25 October 2017,85 and a further 28
individuals as terrorist financiers on 22 March 2018.86 Even as they accuse Qatar of supporting
“terrorism and extremism” before the Court, the UAE, Bahrain and Saudi Arabia continue to work
constructively and without complaint with Qatar within the framework of the TFTC.87

2.34 Qatar is also a founding member of and among the largest contributors to the Global
Counterterrorism Task Force, which coordinates and funds local initiatives to counter terrorism by
30 different countries, including China, Russia, India, France, Germany, Japan, Turkey, the United
Kingdom, Saudi Arabia and Appellants Egypt and the UAE.88

2.35 Here again, Qatar cannot help but note the irony in Joint Appellants’ allegations. The UAE and
Saudi Arabia are reportedly significant hubs for fundraising activities for South Asia-based
terrorist groups, including the Afghan

85 “Qatar’s sanctions hit 13 facilitators of terrorism”, Qatar Tribune (26 Oct. 2017) (QCM (B) Vol.
IV, Annex 93).
86 Noah Browning, “Qatar puts 28 people and entities on new terrorism list”, Reuters (22 Mar. 2018)
(QCM (B) Vol. IV, Annex 95).
87 U.S. Embassy & Consulate in the UAE, Meeting of the Terrorist Financing Targeting Center Member
States Convenes in Kuwait (6 Mar. 2018) (QCM (B) Vol. III, Annex 52); “Co-Led by US, Saudi Arabia,
TFTC Members Meet in Kuwait”, Kuwait News Agency (11 May 2018) (QCM (B) Vol. IV, Annex 98). Qatar’s
security cooperation with Appellants Bahrain, Saudi Arabia and UAE also continues unabated. At the
last GCC Summit in December 2018, Saudi Arabia’s Foreign Minister Adel al Jubeir recognised this
reality, stating that “the dispute would not affect military cooperation”. Stephen Kalin, “Qatar
rift overshadows Gulf Arab summit as emir stays away”, Reuters (8 Dec. 2018) (QCM (B) Vol. IV,
Annex 102).
88 U.S. Department of State, Global Counterterrorism Forum Co-Chairs: About the Global
Counterterrorism Forum (GCTF) (23 Sept. 2014) (QCM (B) Vol. III, Annex 46).

28

Taliban, Lashkar-e-Taiba and the Haqqani Network.89 These activities include donor fundraising,
money laundering and extortion of expatriate populations. UAE banks have also been accused of
facilitating the transfer of funds to terrorists and terrorist groups, including those responsible
for the 9/11 attacks and the 2008 Mumbai attacks.90

2.36 In addition, a September 2018 report of the Financial Action Task Force91 (“FATF”) on Saudi
Arabia found that “Saudi Arabia is not effectively investigating and prosecuting individuals
involved in larger scale or professional [money laundering] activity”, “is not effectively
confiscating the proceeds of crime” and “does not effectively seek international co-operation from
other countries to pursue money laundering and the proceeds of crime”.92 This means that every
year, billions of dollars in criminal proceeds leave Saudi Arabia without a trace.93

89 Declan Walsh, “WikiLeaks cables portray Saudi Arabia as a cash machine for terrorists”, The
Guardian (5 Dec. 2010) (QCM (B) Vol. IV, Annex 62); G. Jaffe & M. Ryan, “A Dubai shopping trip and
a missed chance to capture the head of the Taliban”, Washington Post (24 Mar. 2018) (noting
evidence of frequent trips by the Taliban leader to Dubai) (QCM (B) Vol. IV, Annex 96). Saudi
Arabia and the UAE were also two of the only three States that recognised the Taliban as the
legitimate government of Afghanistan in the late 1990s. Adrian Guelke, Terrorism and Global
Disorder (2006), p. 55 (QCM (B) Vol. IV, Annex 109).
90 “Protests outside UAE Embassy in New Delhi over 26/11 terror funding allegations”, New India
Express (6 Aug. 2017) (QCM (B) Vol. IV, Annex 87).
91 The Financial Task Force is a G7 initiative to combat money laundering and terrorist financing.
Its objectives include setting standards and promoting effective implementation of legal,
regulatory and operational measures for combating money laundering, terrorist financing and other
related threats to the integrity of the international financial system; monitoring the progress of
its members in implementing necessary measures; and reviewing money laundering and terrorist
financing techniques and counter-measures. Financial Action Task Force (FATF), Who we are (QCM (B)
Vol. IV, Annex 130).
92 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 (B) Vol. IV, Annex
120).
93 Dominic Dudley, “Saudi Arabia Accused Of Turning A Blind Eye To International Terrorism
Financing By Global Watchdog”, Forbes (25 Sept. 2018) (QCM (B) Vol. IV, Annex 101).

29

2.37 Saudi Arabia was also recently placed on the EU’s “list of countries that pose a threat to
the bloc because of lax controls against terrorism financing and money laundering”.94 Countries on
the EU list “have strategic deficiencies in their anti-money laundering and countering the
financing of terrorism regimes that pose significant threats to the financial system of the
Union”.95 The EU list does not include Qatar.

2.38 Joint Appellants also accuse Qatar of “refus[ing] to take action to suppress the
terrorism-related activities of, or to prosecute, internationally designated terrorists based in
Qatar”.96 Joint Appellants name four individuals who have been placed on the UN Security Council
ISIL (Da’esh) & Al-Qaida Sanctions Committee list: Khalifa Muhammad Turki Al-Subaiy (designated in
2008);97 Abd Al-Rahman bin ‘Umayr Al-Nu’aymi (designated in 2014);98 Sa’d bin Sa’d

94 S. Kalin & F. Guarascio, “EU adds Saudi Arabia to draft terrorism financing list: sources”,
Reuters (25 Jan. 2019) (QCM (B) Vol. IV, Annex 104). See also Francesco Guarascio, “EU adds Saudi
Arabia to dirty-money blacklist, upsets UK, U.S.”, Reuters (13 Feb. 2019) (QCM (B) Vol. IV, Annex
107).
95 S. Kalin & F. Guarascio, “EU adds Saudi Arabia to draft terrorism financing list: sources”,
Reuters (25 Jan. 2019) (QCM (B) Vol. IV, Annex 104).
96 BEUM, paras. 2.15, 2.37.
97 ICAO Preliminary Objections (B), Exhibit 15, Narrative Summary: QDi.253 Khalifa Muhammad Turki
Al-Subaiy, United Nations sanctions list issued by the Security Council Commission pursuant to
Security Council Resolutions 1267 (1999) 1989 (2011) and 2253 (2015) concerning ISIL (Da’esh)
Al-Qaida and Associated Individuals, Groups, Undertakings and Entities, last updated 3 February
2016 (BEUM Vol. III, Annex 24).
98 ICAO Preliminary Objections (B), Exhibit 16, Narrative Summary: QDi.334 ‘Abd al-Rahman bin
‘Umayr al-Nu’aymi, United Nations sanctions list issued by the Security Council Commission pursuant
to Security Council Resolutions 1267 (1999) 1989 (2011) and 2253 (2015) concerning ISIL (Da’esh)
Al-Qaida and Associated Individuals, Groups, Undertakings and Entities, last updated 13 May 2016
(BEUM Vol. III, Annex 24).

30

Muhammad Shariyan al-Ka’bi (designated in 2015);99 and Abd al-Latif bin Abdallah Salih Muhammad
al-Kawari (designated also in 2015).100

2.39 Qatar, however, has met its obligation to enforce the UN sanctions applicable to these
individuals (arms embargo, asset freeze and travel ban), and at no time has any UN body found that
Qatar violated any such obligation. Qatar arrested and imprisoned Al-Subaiy for six months in 2008
for a conviction for terrorism financing.101 And it has also placed all of them on its National
Counter Terrorism Committee terrorist designation list,102 a step that will facilitate their
prosecution for any crimes for which sufficient evidence may be gathered.

2.40 Joint Appellants further suggest that Qatar’s reservation to an 18 February 2015 League of
Arab States resolution supporting Egypt’s unilateral use of force in Libya somehow shows that Qatar
supports terrorism.103 They are mistaken.

99 Security Council Committee Pursuant to Resolutions 1267 (1999), 1989 (2011) and 2253 (2015)
Concerning ISIL (Da’esh) Al-Qaida and Associated Individuals, Groups, Undertakings and Entities,
Narrative Summaries of Reasons for Listing QDi.382 Sa’d bin Sa’d Muhammad Shariyan al-Ka’bi, United
Nations Security Council Subsidiary Organs (last updated 21 September 2015) (BEUM Vol. VI, Annex
96).
100 Security Council Committee Pursuant to Resolutions 1267 (1999), 1989 (2011) and 2253 (2015)
Concerning ISIL (Da’esh) Al-Qaida and Associated Individuals, Groups, Undertakings and Entities,
Narrative Summaries of Reasons for Listing QDi.380 Abd al-Latif bin Abdallah Salih Muhammad
al-Kawari, United Nations Security Council Subsidiary Organs (last updated 21 September 2015) (BEUM
Vol. VI, Annex 95).
101 ICAO Preliminary Objections (B), Exhibit 15, Narrative Summary: QDi.253 Khalifa Muhammad Turki
Al-Subaiy, United Nations sanctions list issued by the Security Council Commission pursuant to
Security Council Resolutions 1267 (1999) 1989 (2011) and 2253 (2015) concerning ISIL (Da'esh)
Al-Qaida and Associated Individuals, Groups, Undertakings and Entities, last updated 3 February
2016 (BEUM Vol. III, Annex 24).
102 See State of Qatar, Ministry of Interior, National Counter Terrorism Committee, National
Terrorist Designation Lists, Designation Order No. 2 (21 Mar. 2018) (designating Al-Nu’aymi, al-
Ka’bi and al-Kawari) (QCM (B) Vol. III, Annex 41); State of Qatar, Ministry of Interior, National
Counter Terrorism Committee, National Terrorist Designation Lists, Designation Order No. 4 (28 Aug.
2018) (designating Al-Subaiy) (QCM (B) Vol. III, Annex 43).
103 BEUM, para. 2.35.

31

Qatar recalled its Ambassador to Cairo over this insulting suggestion when Egypt first made it in
2015.104 Qatar’s reservation stemmed from concerns about the unilateral use of force in a fellow
Member State of the Arab League, the possibility of civilian casualties and the desire not to
strengthen any particular party in the Libyan civil war before the conclusion of the then-ongoing
UN-sponsored peace talks.105 Notably, the Secretary General of the GCC Abdul Latif al-Zayani (from
Bahrain) said at the time that Egypt’s accusations were “unfounded, contradict reality, and ignore
the sincere efforts by Qatar, as well as the Gulf Co-operation Council and Arab states, in
combating terrorism and extremism at all levels”.106

2.41 Finally, Joint Appellants allege, based on media reports from the BBC and the Washington Post,
that Qatar paid hundreds of millions of dollars to terrorists, armed militant groups and Iran’s
Islamic Revolutionary Guard Corps “as a purported ransom payment for the release of the kidnapped
members of the Qatari royal family”.107 However, the articles in question make it clear that their
reporting is based in part on communications hacked and edited by a State hostile to Qatar,108
which casts doubt on the reliability of the information. The full version of the Washington Post
article also records Qatar’s “consistent[] den[ial] [of] reports that it paid terrorist
organizations as part of the deal”,109 and Iraqi Prime Minister

104 “Qatar recalls envoy to Egypt in row over Libya strikes”, BBC News (19 Feb. 2015) (QCM (B) Vol.
IV, Annex 67).
105 Ibid.
106 Ibid.
107 BEUM, para. 2.47.
108 Paul Wood, “‘Billion Dollar Ransom’: Did Qatar Pay Record Sum?”, BBC, 17 July 2018 (BEUM Vol.
VI, Annex 120); “Hacked Phone Messages Shed Light on Massive Payoff that Ended Iraqi Hostage
Affair”, The Washington Post, Undated (BEUM Vol. VI, Annex 121).
109 Joby Warrick, “Hacked Messages Show Qatar Appearing to Pay Hundreds of Millions to Free
Hostages”, The Washington Post, 28 April 2018 (BEUM Vol. VI, Annex 117).

32

Haider al-Abadi’s statement that the funds in question were received by the Government of Iraq,
which still had possession of them.110 The BBC article Joint Appellants cite likewise confirms that
Qatar intended the funds for the Government of Iraq and that Iraq had possession of them.111
Unsurprisingly, no member of the United Nations Security Council gave any credence to Egypt’s
“call[] … to open an investigation into Qatar’s payment as a ransom to terrorist groups”.112

2.42 In sum, all of Joint Appellants’ allegations about Qatar’s alleged “support of terrorism
and extremism” are false. International bodies tasked with monitoring terrorist and extremist
activities, including terrorist financing, as well as other important international actors, agree
that Qatar is and has long been a regional and global leader in anti-terrorism cooperation.113

110 Maher Chmaytelli, “Iraq says it still has Qatari money sent to free ruling family members”,
Reuters (11 June 2017) (QCM (B) Vol. IV, Annex 76).
111 Paul Wood, “‘Billion Dollar Ransom’: Did Qatar Pay Record Sum?”, BBC, 17 July 2018 (BEUM Vol.
VI, Annex 120).
112 BEUM, para. 2.47.
113 Moreover, aside from a party in good standing to fifteen multilateral agreements relating to
security and counter-terrorism and several bilateral treaties and arrangements in the area of
security cooperation, Qatar is the only GCC-member country that is a contributing member of the
Community Engagement and Resilience Fund, the first global effort to support local community
efforts to build resilience to violent extremism. Global Community Engagement and Resilience Fund,
Donor Frequently Asked Questions (last accessed: 2 Feb. 2019) (QCM (B) Vol. IV, Annex 132). Qatar
has also pledged $10 million to its goals and objectives in May of 2018, and while at the December
2018 Doha Forum, His Highness the Amir pledged $75 million over 5 years ($15 million annually) to
the UN Security Council’s Counter Terrorism Committee. State of Qatar, Ministry of Justice, “Qatar
Doubles Contribution to Global Community Engagement & Resilience Fund” (30 May 2018) (QCM (B) Vol.
III, Annex 42); Doha Forum, “Qatar Announces Half a Billion USD in Funds to UN Agencies”, (Dec.
2018) (QCM (B) Vol. IV, Annex 126). In addition, Qatar hosts the central command base of the
79-member Global Coalition against ISIS, as well as the largest U.S. military base in the region.
Global Coalition, 79 Partners (last accessed: 1 Feb. 2019) (QCM (B) Vol. IV, Annex 131); Jamie
McIntyre, “US base in Qatar still running the fight against ISIS amid diplomatic rift in the Middle
East”, Washington Examiner (5 June 2017) (QCM
(B) Vol. IV, Annex 69). See also Ministry of Defence of United Kingdom, Defence Secretary hosts
Qatari counterpart at historic Horse Guards (16 Jan. 2018) (QCM (B) Vol. III, Annex 50) (recording
U.K. Defence Secretary Mr. Gavin Williamson’s statement that “Qatar is a vital partner
33

2.43 Qatar concludes on this point by noting that it is not alone in doubting Joint Appellants’
sincerity in claiming that Qatar’s alleged support of terrorism is the reason for the aviation
prohibitions and other coercive measures. On 20 June 2017, the spokeswoman for the U.S. State
Department bluntly asked:

“Were the actions really about their concerns about Qatar’s alleged support for terrorism, or were
they about the long-simmering grievances between and among the GCC countries?”114

B. JOINT APPELLANTS’ ALLEGATIONS ABOUT QATAR’S “SYSTEMATIC
INTERFERENCE” IN THEIR INTERNAL AFFAIRS ARE FALSE

2.44 Joint Appellants also accuse Qatar of “purposeful and systematic intervention in the[ir]
internal affairs”, in violation of the Riyadh Agreements and international law.115 To the
extent that this allegation is premised on Qatar’s

in the fight against Daesh, hosting the headquarters of the coalition air campaign which is still
coordinating strikes on targets in Syria every day”.); “Qatar’s efforts in combating terrorism win
German praise”, Gulf Times (14 July 2018) (QCM (B) Vol. IV, Annex 100) (recording German Minister
of Defence Ms. Ursula von der Leyen’s praise of Qatar for “making great efforts within the ranks of
the [NATO] alliance … to combat terrorism and eliminate it completely”.); U.S. Department of State,
Secretary Pompeo’s Meeting with Qatari Foreign Minister Al Thani (26 June 2018) (QCM (B) Vol. III,
Annex 53) (recording U.S. Secretary of State Mr. Michael Pompeo’s appreciation of “the Foreign
Minister for Qatar’s continued efforts on counterterrorism and countering terrorism financing”).
114 A. Gearan & K. DeYoung, “State Department issues unusual public warning to Saudi Arabia and UAE
over Qatar rift”, Washington Post (20 June 2017) (QCM (B) Vol. IV, Annex 78) (emphasis added). The
“long-simmering grievances” mentioned by the State Department relate to differences in policy
between various GCC members.
115 BEUM, para. 2.43. The Riyadh Agreements refer to the First Riyadh Agreement of 23 November
2013, its Implementing Mechanism of 17 April 2014 and the Supplementary Riyadh Agreement of 16
November 2014 (BEUM Vol. II, Annexes 19-21). These instruments, adopted under the auspices of the
GCC, seek to foster dialogue and cooperation in addressing threats to regional security, stability
and peace.

34

supposed “support for terrorist groups and extremist ideologies”,116 Qatar has already refuted it
above. To the extent it is premised on other matters, Qatar addresses it below.

2.45 Joint Appellants contend that Qatar has breached its obligation under the Riyadh Agreements to
provide “[n]o support … through direct security work or through political influence” to the Muslim
Brotherhood.117 In particular, Joint Appellants refer to Qatar’s allegedly “hostile public
statements condemning Egypt’s designation of the Muslim Brotherhood as a terrorist
organization”,118 which Egypt decried as a “gross interference in [its] domestic affairs”,119 and
which led to Joint Appellants’ recalling their Ambassadors from Qatar in March 2014.120

2.46 The “hostile public statements” in question were in fact concerns Qatar expressed in the
context of indiscriminate killings of protesters in Egypt—the most notable being the massacre of
over 800 protesters in Rab’a Square on 14 August 2013—following the ouster of former Egyptian
President Mohammad Morsi.121 Qatar’s concerns were entirely reasonable given reports of “the
increasing numbers of victims of demonstrations in Egypt and the killing of a large number of
people

116 BEUM, para. 2.43.
117 First Riyadh Agreement, 23 and 24 November 2013, Art. 2 (BEUM Vol. II, Annex 19).
118 BEUM, para. 2.19.
119 Statement of the Arab Republic of Egypt Ministry of Foreign Affairs, “The Egyptian Ministry of
Foreign Affairs summons the Qatari Ambassador to Cairo”, 4 January 2014 (BEUM Vol. V, Annex 59).
120 BEUM, para. 2.20.
121 Human Rights Watch, All According to Plan: The Rab’a Massacre and Mass Killings of Protesters
in Egypt (12 Aug. 2014) (QCM (B) Vol. IV, Annex 112).

35

across the country”.122 Qatar was also concerned that “the decision to convert [popular] political
movements to terrorist organizations and converting demonstrations into terrorist acts” would not
be conducive to ending the violence, and called for “dialogue between the society’s political
components and the state
… without exclusion nor eradication”.123 Several UN bodies and world leaders echoed Qatar’s
statements, and similarly urged restraint and condemned the killing of peaceful protesters.124

2.47 Joint Appellants claim that Qatar’s alleged support for the Muslim Brotherhood in breach of
the Riyadh Agreements is further evidenced by its 2015 refusal to extradite Yusuf Al-Qaradawi, a
Sunni theologian and chairman of the International Union of Muslim Scholars based in Doha.125 But
they fail to mention that the Interpol red notice, issued at Egypt’s request and on the basis of
which it sought Al-Qaradawi’s extradition, was withdrawn because the accusations against him were
baseless.126 They also omit the fact that the Vice President and Prime

122 “Qatar criticizes Egypt’s designation of the Muslim Brotherhood as a terrorist organization”,
BBC Arabic, 4 January 2014 (BEUM Vol. VI, Annex 104).
123 Ibid.
124 See, e.g., “UN rights chief urges talks to save Egypt from further disastrous violence”, UN
News (15 Aug. 2013) (QCM (B) Vol. IV, Annex 127) (noting statements by UN High Commissioner for
Human Rights, several UN Special Rapporteurs and UN Security Council meeting on the situation in
Egypt).
125 BEUM, para. 2.33.
126 “Interpol removes red notice against Islamic scholar Yusuf Al Qaradawi”, TRT World (13 Dec.
2018) (QCM (B) Vol. IV, Annex 103). Qatar also notes that Joint Appellants designated Mr. Al-
Qaradawi as terrorist after the imposition of the aviation prohibitions and other measures of 5
June 2017. See Kingdom of Bahrain Ministry Foreign Affairs News Details, “Statement by the Kingdom
of Saudi Arabia, the Arab Republic of Egypt, the United Arab Emirates, and the Kingdom of Bahrain”,
9 June 2017 (BEUM Vol. V, Annex 74). Moreover, Joint Appellants’ allegation that Mr. Al-Qaradawi
“has been supported by the highest levels of the Qatari leadership” simply because he was
photographed and dined together with His Highness the Amir of Qatar at a “banquet for scholars,
judges and imams” does not withstand scrutiny. BEUM, para. 2.33; “Amir Hosts Iftar banquet for
scholars, judges and imams”, Gulf Times, 30 May 2018 (BEUM Vol. VI, Annex 118).

36

Minister of the UAE, Sheikh Mohammed bin Rashid Al Maktoum, personally awarded Mr. Al-Qaradawi the
“international figure of the year” prize in 2012,127 and that Saudi Arabia awarded him the King
Faisal Prize for Islamic Studies,128 one of the highest accolades in the Muslim world.

2.48 Joint Appellants similarly ignore the international condemnation of Egypt’s illegal detention
of Mr. Al-Qaradawi’s daughter, Ola Qaradawi and her husband for over 500 days only because of their
familial ties with Mr. Al-Qaradawi.129 Recently, the UN Human Rights Council’s Working Group on
Arbitrary Detention found, inter alia, that their arrest, detention and imprisonment by the
Egyptian authorities “lack a legal basis and are thus arbitrary”.130

2.49 Joint Appellants also allege that “[t]he Muslim Brotherhood presence in Qatar has had grave
consequences”.131 They refer to the 11 December 2016 terrorist attack targeting Coptic Christian
worshippers at Abbaseya, Egypt, and a statement from the Egyptian Ministry of Interior claiming
that the culprit, an Egyptian national, had been radicalised in Qatar.132 Joint Appellants provide
no corroborating evidence for this assertion. Interestingly, the Ministry of Interior’s

127 “Video: Dubai ruler praises Al-Qaradawi for his scholarly achievements”, Middle East Monitor
(12 Apr. 2014) (QCM (B) Vol. IV, Annex 65).
128 King Faisal Prize, Professor Yousef A. Al-Qaradawi, Winner of the 1994 KFP Prize for Islamic
Studies (last accessed: 15 Feb. 2019) (QCM (B) Vol. IV, Annex 134).
129 UN Human Rights Council, Working Group on Arbitrary Detention, Opinions adopted by the Working
Group on Arbitrary Detention at its eighty-first session, UN Doc A/HRC/WGAD/2018/261 (7-26 Apr.
2018), para. 79.
130 Ibid., para. 59.
131 BEUM, para. 2.34.
132 Official Statement of the Ministry of Interior of the Arab Republic of Egypt, 12 December 2016
(BEUM Vol. V, Annex 71); see also BEUM, para. 2.34.

37

statement also refers to the culprit’s repeated travels to North Sinai,133 which, according to the
U.S. Department of State, constitutes a “terrorist safe haven” used by the ISIS-Sinai Province as a
base to plan attacks there and in mainland Egypt.134

2.50 In fact, by most accounts, Egypt is among the top 15 sources of foreign terrorist fighters for
ISIS. Saudi Arabia is number two.135 Other accounts indicate that over 100 Bahrainis may have
joined ISIS, a significant number given the size of Bahrain’s population, and express concerns
about possible links between Bahrain’s security forces and ISIS.136 Still other reports indicate
that arms supplied by Saudi Arabia often ended up in ISIS’s hands in Iraq and Syria.137 An
investigation by CNN found that the UAE and Saudi Arabia transferred weapons to “al Qaeda-linked
fighters, hard-line Salafi militias, and other factions waging war in Yemen”.138 A separate
investigation by Amnesty International found that

133 Official Statement of the Ministry of Interior of the Arab Republic of Egypt, 12 December 2016
(BEUM Vol. V, Annex 71).
134 U.S. Department of State, Bureau of Counterterrorism and Countering Violent Extremism, Country
Reports on Terrorism, Chapter 4: Terrorist Safe Havens (Update to 7120 Report) (2017) (QCM (B) Vol.
III, Annex 47).
135 FATF, “Financing of the Terrorist Organisation Islamic State in Iraq and the Levant (ISIL)”
(Feb. 2015), p. 21 (QCM (B) Vol. IV, Annex 113); E. Benmelech & E.F. Klor, “What Explains the Flow
of Foreign Fighters to ISIS?”, National Bureau of Economic Research, Working Paper 22190 (Apr.
2016), p. 16 (QCM (B) Vol. IV, Annex 114); Susan B. Glasser, “Martyrs’ in Iraq Mostly Saudis”,
Washington Post (15 May 2005) (QCM (B) Vol. IV, Annex 61); see also Hernán Longo, “Sharing
information in order to fight against terrorism”, ICAO, Hong Kong ICAO TRIP Regional Seminar, p. 6,
(QCM (B) Vol. II, Annex 19).
136 Ala’a Shehabi, “Why is Bahrain Outsourcing Extremism?”, Foreign Policy (29 Oct. 2014) (QCM (B)
Vol. IV, Annex 66).
137 Bethan McKernan, “US and Saudi Arabia arms significantly enhanced Isis’ military capabilities,
report reveals”, The Independent (15 Dec. 2017) (QCM (B) Vol. IV, Annex 94).
138 N. Elbagir, S. Abdelaziz, M.A. El Gheit & L. Smith-Spark, “Sold to an ally, lost to an enemy”,
CNN (Feb. 2019) (QCM (B) Vol. IV, Annex 106).

38

the UAE was “recklessly supplying militias” accused of war crimes with advanced weaponry.139

2.51 Joint Appellants next refer to a 2017 judgment of Egypt’s Court of Cassation, which allegedly
“confirms that between 2011 and 2013, former President Morsi and other leadership figures in the
then Muslim Brotherhood Government were paid by Qatari intelligence agents to disclose military and
other secret information vital to Egypt’s national security”.140 There are, however, serious
questions about the quality of evidence offered in the case, and the politicisation of all aspects
of the proceedings due to the strained relations between Egypt and Qatar141—indeed, the judgment in
question was rendered after the imposition of the aviation prohibitions and other measures of 5
June 2017. Not only that, but a few months before the judgment, the legal framework for the
selection of the heads of judicial bodies in Egypt was amended to give the President “discretionary
power for selecting, without review, the chief justices of the judiciary, revoking the neutral
criterion of seniority…”. President el-Sisi exercised that power for the first time just prior to
the issuance of the judgment in question.142

2.52 Lastly, Joint Appellants accuse Qatar of “offer[ing] lucrative financial incentives to
selected Bahraini nationals … who held or had held sensitive and

139 “Yemen: UAE recklessly supplying militias with windfall of Western arms”, Amnesty International
(6 Feb. 2019) (“the UAE has become a major conduit for armoured vehicles, mortar systems, rifles,
pistols, and machine guns – which are being illicitly diverted to unaccountable militias accused of
war crimes and other serious violations”) (QCM (B) Vol. IV, Annex 133).
140 BEUM, para. 2.44; Morsi and others v. Public Prosecution, Case No. 32611, Judgment of the Court
of Cassation of the Arab Republic of Egypt (Criminal Chamber), 16 September 2017 (BEUM Vol. VII,
Annex 137).
141 “Qatar Espionage case”, The Tahrir Institute for Middle East Policy (last accessed: 14 Feb.
2019) (QCM (B) Vol. IV, Annex 121).
142 “The Battle over Appointing Judges in Egypt”, Carnegie Endowment for International Peace
(16 Jan. 2018) (QCM (B) Vol. IV, Annex 119).

39

high-level offices”, to “naturalize as Qatari citizens and emigrate to Qatar”.143 Joint Appellants’
own evidence reflects the fact that Qatar has denied and continues to deny this charge.144
Unsurprisingly, Joint Appellants offer no further evidence supporting it.

2.53 In sum, all of Joint Appellants’ accusations about Qatar’s supposedly “systematic
interference” in their internal affairs dissolve on analysis. In fact, it is Joint Appellants who,
through the imposition of the aviation prohibitions and other coercive measures, have purposefully
and systematically sought to intervene in Qatar’s internal affairs in breach of the Riyadh
Agreements and international law.145 Instead of raising their grievances (whatever they may really
be) within the framework of the regional mechanisms for dialogue and dispute settlement,146 Joint

143 BEUM, para. 2.45.
144 Fourth Report of the Follow-up Committee on the Implementation of the Riyadh Agreement
Mechanism, 15 July 2014 (BEUM Vol. V, Annex 64); see also ICAO Response to Preliminary Objections
(B), Exhibit 79, Deputy PM and FM: Investigations Proved Involvement of 2 Siege Countries in QNA
Hacking (10 Jan. 2018) (indicating that Bahrain’s concerns regarding naturalisation were resolved
in 2014) (BEUM Vol. IV, Annex 25).
145 See ICAO Response to Preliminary Objections (B), Exhibit 42, Qatar’s Siege A Clear Violation of
Riyadh Agreement, Director of Government Communication Office Says (10 July 2017) (BEUM Vol. IV,
Annex 25). Joint Appellants go as far as to allege that Qatar has repudiated the Riyadh Agreements
by way of a letter to the Secretary General of the GCC dated 19 February 2017. However, Qatar’s
letter is mistranslated to state that the parties “have made no effort to implement the Riyadh
Agreement and the mechanism of its implementation”. Letter of 19 February 2017 from the Minister of
Foreign Affairs of the State of Qatar to the Secretary-General of the GCC (BEUM Vol. V, Annex 72)
(emphasis added). In fact, the proper translation of this sentence is that the parties “have spared
absolutely no effort in the implementation of the Riyadh Agreement and the mechanism of its
execution”. Letter from Mohamed Bin Abdul Rahman Bin Jassim Al Thani, Minister of Foreign Affairs
of the State of Qatar, to Abdul Latif Bin Rashid Al-Zayani, Secretary- General of the GCC (19 Feb.
2017) (QCM (B) Vol. III, Annex 40) (emphasis added). In view of this fact, Qatar’s letter called
the other parties to the Agreements to “agree to terminate” the Riyadh Agreements. Ibid. (emphasis
added). In no way does this letter amount to a repudiation of the Agreements, which Qatar continues
to consider binding.
146 The First Riyadh Agreement affirms its basis in the “main system” of the GCC, including its
emphasis on dialogue and its dispute resolution provision contained in Article 10 of the GCC
Charter. Article 10, titled “Commission for the Settlement of Disputes”, provides:

40

Appellants chose to impose the aviation prohibitions and other coercive measures, which they have
said will not be withdrawn until such time as Qatar capitulates to their demands. As His Excellency
the Foreign Minister of Qatar, Sheikh Mohammed bin Abdulrahman Al-Thani, put it: “[T]he blockading
countries were demanding that we must surrender our sovereignty as the price for ending the
siege—something they knew Qatar would never do”.147

C. JOINT APPELLANTS’ ALLEGATIONS OF QATAR’S USE OF MEDIA TO INCITE VIOLENCE AND HATRED ARE FALSE

2.54 Joint Appellants allege further that Qatar supported the rise of “groups like Al-Qaida, Hamas,
and the Muslim Brotherhood”, and that the “state-owned and - controlled media network Al Jazeera
[has] served as a platform for [the Muslim Brotherhood] to propound its calls for extremism and
violence … against the Egyptian Government”, in breach of the Riyadh Agreements.148

“The Cooperation Council shall have a commission called ‘Commission for the Settlement of Disputes’
and shall be attached to the Supreme Council. The Supreme Council shall form Commission for every
case separately based on the nature of the dispute. If a dispute arises over interpretation or
implementation of the Charter and such dispute is not resolved within the Ministerial Council or
the Supreme Council, the Supreme Council may refer such dispute to the Commission for Settlement of
Disputes. The Commission shall submit its recommendations or opinion, as applicable, to the Supreme
Council for appropriate action”.
Charter of the Co-operation Council for the Arab States of the Gulf, concluded at Abu Dhabi on 25
May 1981, 1288 UNTS 151, Art. 10 (BEUM Vol. II, Annex 8). See also ICAO Response to Preliminary
Objections (B), Exhibit 79, Deputy PM and FM: Investigations Proved Involvement of 2 Siege
Countries in QNA Hacking (10 Jan. 2018) (noting the dispute settlement provisions of GCC Charter
and Riyadh Agreements) (BEUM Vol. IV, Annex 25).
147 ICAO Response to Preliminary Objections (B), Exhibit 39, Foreign Minister: Any Threat to Region
is Threat to Qatar (6 July 2017) (BEUM Vol. IV, Annex 25).
148 BEUM, para. 2.13.

41

2.55 These allegations are disproved in the first instance by the international esteem in which Al
Jazeera is held. Al Jazeera is widely recognised for its independent, objective and fact-based
reporting that includes detailed analysis and diverse perspectives.149 The high regard for Al
Jazeera is reflected by the international reaction to Joint Appellants’ demand that it be shut
down. The UN Special Rapporteur on freedom of expression, Mr. David Kaye, said that the closure of
Al Jazeera would “strike a major blow against media pluralism in a region already suffering from
severe restrictions on reporting and media of all kinds”.150 Reporters without Borders condemned
Joint Appellants’ efforts to stifle media freedom and freedom of expression, calling the demand to
shutdown Al Jazeera “an unacceptable act of blackmail”.151

2.56 Qatar has a long-standing policy of supporting freedom of expression—for which it has paid,
and continues to pay, a dear price. Qatar has no role in determining who appears (or does not
appear) on Al Jazeera. The network has complete journalistic, editorial independence. Further,
neither Mr. Al-Qaradawi, whose appearances on Al Jazeera are singled out for criticism by Joint
Appellants,152 nor the institution of which he is chairman are designated as terrorists by the
United Nations Security Council—or Qatar, for that matter.153 Nor

149 Aram Bakshian Jr., “The Unlikely Rise of Al Jazeera”, The Atlantic (10 Jan. 2012) (QCM (B) Vol.
IV, Annex 63). Unsurprisingly, Joint Appellants’ statement that “[t]hey are not alone in exposing
that, while purporting to be a ‘news outlet’, Al Jazeera serves as an instrument to destabilize the
region” is not accompanied by a single source. See BEUM, para. 2.42.
150 ICAO Response to Preliminary Objections (B), Exhibit 33, BBC, Qatar condemns Saudi refusal to
negotiate over demands (28 June 2017) (BEUM Vol. IV, Annex 25).
151 “Unacceptable call for Al Jazeera’s closure in Gulf crisis”, Reporters Without Borders (28 June
2017) (QCM (B) Vol. IV, Annex 122).
152 BEUM, paras. 2.18, 2.33.
153 As explained above, Joint Appellants designated Mr. Al-Qaradawi as a terrorist only after the
unilateral coercive measures of 5 June 2017.

42

is the Muslim Brotherhood a UN-designated terrorist organisation, or listed as such in the GCC
terrorist organisations list.154 In fact, 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,155 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.156

2.57 Ultimately, Qatar and Joint Appellants appear to have a fundamental difference of views as to
media independence and what constitutes media incitement.157 That a news organisation’s coverage of
an issue may be inconsistent

154 Letter from Abdul Latif Bin Rashid Al-Zayani, GCC Secretary General, to Khalid Bin Mohamed Al
Ativa, Minister of Foreign Affairs of the State of Qatar (19 May 2014) (QCM (B) Vol. III, Annex
38). Nor is Hamas listed on the GCC terrorist organisations list or designated as a terrorist
organisation by the UN or Qatar.
155 Political organisations affiliated with the Muslim Brotherhood actively participate in
electoral politics and serve in government in countries throughout the Middle East and North Africa
region, including Morocco, Tunisia, Jordan, Kuwait, Yemen, Libya, Iraq, Algeria and Bahrain. See C.
Alexander & S. Dodge, “Muslim Brotherhood Is at the Heart of Gulf Standoff With Qatar”, Bloomberg
(7 June 2017) (listing several countries in which the Muslim Brotherhood participates in government
and politics) (QCM (B) Vol. IV, Annex 75); Marc Lynch, “In Uncharted Waters: Islamist Parties
Beyond Egypt’s Muslim Brotherhood”, Carnegie Endowment for International Peace (16 Dec. 2016)
(describing the various levels of political participation of Muslim Brotherhood-affiliated groups
in several countries) (QCM (B) Vol. IV, Annex 115).
156 Kylie Moore-Gilbert, “A Band of (Muslim) Brothers? Exploring Bahrain’s Role in the Qatar
Crisis”, Middle East Institute (3 Aug. 2017) (“[T]he Brotherhood’s Bahrain affiliate operates as a
legal political society and has won seats in Bahrain’s parliament on a number of occasions”.) (QCM
(B) Vol. IV, Annex 117); Ibrahim Hatlani, “Bahrain Between its Backers and the Brotherhood”,
Carnegie Endowment for International Peace (20 May 2014) (“Bahrain’s foreign minister Khaled bin
Ahmed Al Khalifa commented at a press conference in Pakistan that his government was not labelling
the political arm of the local Brotherhood branch, known as the Islamic Minbar, a terrorist
organization. He stated that the group has respected the rule of law and has not acted against the
security of the country”.) (QCM (B) Vol. IV, Annex 111).
157 This is also evident in the statistics compiled by the Committee to Protect Journalists in
2018: 25 journalists were imprisoned in Egypt; 16 journalists were imprisoned in Saudi Arabia and;
6
43

with a particular State’s preferred narrative does not mean that the news organisation is promoting
extremism. To the contrary, it is doing its job.

2.58 It should also be recalled that the aviation prohibitions and other measures adopted on 5 June
2017 were preceded by an anti-Qatar media campaign—in clear violation of the Riyadh Agreements’
prohibition on media incitement—that began with the illegal hacking of the Qatar News Agency
(“QNA”) website on 24 May 2017. The hackers attributed fabricated statements to His Highness the
Amir of Qatar Sheikh Tamim bin Hamad Al-Thani,158 with third-party reports attributing the
cyber-attack to the UAE.159 Qatar’s investigation of the incident, which was

journalists were imprisoned in Bahrain. By contrast, zero journalists were imprisoned in Qatar.
Committee to Protect Journalists, Data & Research (2018) (QCM (B) Vol. IV, Annex 124). At the same
time, the UN Special Rapporteur on extrajudicial, summary or arbitrary killings, Ms. Agnès
Callamard, has launched an international inquiry into the murder of journalist Jamal Khashoggi,
seeking to “review and evaluate, from a human rights perspective, the circumstances surrounding the
killing” at the Saudi Consulate in Istanbul, Turkey in October 2018. Office of the High
Commissioner for Human Rights, Independent human rights expert to visit Turkey to launch
international inquiry into Khashoggi case (25 Jan. 2019) (QCM (B) Vol. IV, Annex 129). Saudi
Arabia’s trial of some of the suspects involved in the murder has been deemed “insufficient” by the
UN Office of the High Commissioner for Human Rights. “Khashoggi trial in Saudi Arabia falls short
of independent, international probe needed: UN rights chief”, UN News (4 Jan. 2019) (QCM
(B) Vol. IV, Annex 128).
158 See Peter Salisbury, “The fake-news hack that nearly started a war this summer was designed for
one man: Donald Trump”, Quartz (20 Oct. 2017) (QCM (B) Vol. IV, Annex 92).
159 K. DeYoung & E. Nakashima, “UAE orchestrated hacking of Qatari government sites, sparking
regional upheaval, according to U.S. intelligence officials”, Washington Post (16 July 2017) (QCM
(B) Vol. IV, Annex 84). See also C. Bing and J. Schectman, “Inside the UAE’s secret hacking team of
American mercenaries”, Reuters (30 Jan. 2019) (QCM (B) Vol. IV, Annex 105) (noting that the UAE
hacking operations also targeted Qatar and Qatar’s leadership). See also ICAO Response to
Preliminary Objections (B), Exhibit 79, Deputy PM and FM: Investigations Proved Involvement of 2
Siege Countries in QNA Hacking (10 Jan. 2018), p. [PDF] 1329 (noting cooperation of FBI and British
National Crime Agency in hacking investigation) (BEUM Vol. IV, Annex 25).

44

assisted by international experts from third-party States, confirmed the hacking and found
compelling evidence of the involvement of some of the Joint Appellants.160

2.59 Qatar also appealed to the Secretary General of the GCC, expressing concern over the
propagation of false information by media under the jurisdiction and control of the UAE and Saudi
Arabia.161 However, this did not prevent Joint Appellants from using the QNA hacking as the
immediate pretext for their later actions. Nor did it stem the flow of misinformation.162 During
its technical mission to Qatar in November 2017, the Office of the High Commissioner for Human
Rights found a “widespread defamation and hatred campaign against Qatar and Qataris in various
media linked to the four countries as well as on social media” that “may amount to a form of
incitement”.163

2.60 State-controlled media channels and outlets in Joint Appellants’ and Saudi Arabia’s
territories also exacerbated the fear and confusion generated by the aviation prohibitions
themselves. On 9 August 2017, the Saudi-controlled news network Al Arabiya published a video
simulation of a military jet shooting down a Qatar Airways civilian airplane with an air-to-air
missile, with an accompanying

160 Letter from Muhammad Bin Abdul Rahman Al Thani, Minister of Foreign Affairs of the State of
Qatar, to Abdulatif Bin Rashid Al Zayani, GCC Secretary General (7 Aug. 2017) (QCM (B) Vol. III,
Annex 39).
161 Ibid.
162 See ICAO Response to Preliminary Objections (B), Exhibit 42, Qatar Siege a Clear Violation of
Riyadh Agreement, Director of Government Communications Office Says (10 July 2017) (BEUM Vol. IV,
Annex 25); ICAO Response to Preliminary Objections (B), Exhibit 79, Deputy PM and FM:
Investigations Proved Involvement of 2 Siege Countries in QNA Hacking (10 Jan. 2018) (BEUM Vol. IV,
Annex 25).
163 ICAO Response to Preliminary Objections (B), Exhibit 76, OHCHR Technical Mission to the State
of Qatar, 17-24 November 2017, Report on the Impact of the Gulf Crisis on Human Rights (December
2017), paras. 14, 20 (BEUM Vol. IV, Annex 25).

45

voice-over stating that international law permits States to shoot down any aircraft that violated a
State’s national airspace.164

2.61 Such incitement to hatred and propaganda through the media represents a clear violation of the
Riyadh Agreements’ restrictions on media incitement.165 Joint Appellants’ accusations are not only
meritless, they are also more appropriately lodged against Joint Appellants themselves.

*

2.62 As recounted above, starting on 5 June 2017, Joint Appellants imposed the aviation
prohibitions in violation of their obligations under the IASTA. In an effort to justify their
unlawful actions, they assert against Qatar baseless accusations for which they are the actual
guilty parties. In addition to having soundly refuted Joint Appellants’ allegations, the following
Chapters confirm the ICAO Council’s jurisdiction to hear the dispute between the Parties regarding
their violations of the IASTA.

164 “Emergency corridors opened before Qatar Airways”, Al Arabiya (9 Aug. 2017) (QCM (B) Vol. IV,
Annex 88). See also Kevin Jon Heller, “Saudi Arabia Threatens to Shoot Down a Qatari Airways
Plane”, OpinioJuris (18 Aug. 2017) (QCM (B) Vol. IV, Annex 123) (arguing that through this video
“Saudi Arabia is threatening to engage in state terrorism – the use of violence to spread panic
among Qatari civilians in order to persuade the Qatari government to supposedly stop supporting
terrorist groups”.).
165 See ICAO Response to Preliminary Objections (B), Exhibit 79, Deputy PM and FM: Investigations
Proved Involvement of 2 Siege Countries in QNA Hacking (10 Jan. 2018) (noting media incitement by
Joint Appellants in violation of Riyadh Agreements) (BEUM Vol. IV, Annex 25).

46

CHAPTER 3

THE COURT SHOULD DENY JOINT APPELLANTS’ SECOND GROUND OF APPEAL

3.1 Joint Appellants’ First Preliminary Objection to the jurisdiction of the ICAO Council and
their Second Ground of Appeal to the Court posits that

“the ICAO Council was without jurisdiction, or in the alternative … the claims made by Qatar were
inadmissible, on the grounds that ... [t]he present dispute would require the Council to determine
issues that fall outside its jurisdiction: to rule on the lawfulness of the countermeasures adopted
by the Applicants, including certain airspace restrictions, the Council would be required to rule
on Qatar’s compliance with critical obligations under international law entirely unrelated to, and
outwith, the IASTA...”.166
3.2 Joint Appellants frame this objection “in two alternative ways”:

(1) As an objection to the jurisdiction of the ICAO Council “insofar as, when properly
characterized, the real issue in dispute between the Parties cannot be confined to matters relating
to the interpretation or application of the IASTA, but concerns the wider dispute between the
Parties”; and

(2) “[I]n the alternative”, “as going to the admissibility of Qatar’s claims … insofar as final
adjudication by the ICAO Council of Qatar’s claims would necessarily involve the Council
adjudicating upon matters that fall outside the narrow scope of its

166 ICJ Application (B), para. 20(i) (emphasis added).

47

jurisdiction under the IASTA, as to which the Appellants have not consented to it deciding”.167
3.3 This Chapter demonstrates why both arguments fail as a matter of law and thus why the ICAO
Council properly rejected Joint Appellants’ First Preliminary Objection.

3.4 Before turning to that demonstration, however, it is important to underscore the dangers to the
international legal order that lurk in Joint Appellants’ arguments. The crux of those arguments is
that a body empowered to adjudicate a dispute concerning the “interpretation or application” of a
specific treaty is deprived of that power whenever the respondent State asserts a defence based on
lawful “non- reciprocal” countermeasures. The perils of this position, were the Court to accept it,
are self-evident. Respondent States would be able to avoid compulsory dispute settlement brought
pursuant to a treaty compromissory clause whenever they so choose merely by asserting a “lawful”
countermeasures defence—a defence that, like all other forms of self-help, is already vulnerable to
abuse.168 The law of countermeasures would thus become a trump card that would undermine the entire
system of international dispute settlement. In Qatar’s view, that is the real significance of the
jurisdictional and admissibility questions raised in Joint Appellants’ Second Ground of Appeal.

167 BEUM, para. 5.2.
168 International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, with commentaries (2001), in Report of the International Law Commission on the work
of its fifty-third session, UN Doc. A/56/10 (hereinafter “, Draft Articles on Responsibility of
States for Internationally Wrongful Acts, with commentaries”), p. 128, para. 2. That potential for
abuse is even more acute in the present case, as explained in Chapter 2 of the present Counter-
Memorial.`

48

3.5 The remainder of this Chapter is structured as follows: Section I disposes of Joint
Appellants’ attempts to impose a priori restrictions on the ICAO Council’s jurisdiction over
disputes “relating to the interpretation or application” of the IASTA. Section II demonstrates that
the dispute Qatar submitted to the Council is indeed such a dispute and that Joint Appellants’
countermeasures defence does not change this conclusion. Finally, Section III addresses Joint
Appellants’ alternative argument that, notwithstanding the above, Qatar’s claim would be
inadmissible for reasons of “judicial propriety”.

I. The ICAO Council Is Empowered to Exercise Its Dispute Settlement Functions “to Their Full
Extent”

3.6 Joint Appellants argue that in light of the “principle of speciality”, the Council’s
jurisdiction under Article II, Section 2 of the IASTA169 “must be regarded as circumscribed and as
limited to matters falling with its particular area of specialization”, namely, “international
civil aviation”.170

169 Article II, Section 2 of the IASTA reads:
“If any disagreement between two or more contracting States relating to the interpretation or
application of this Agreement cannot be settled by negotiation, the provisions of Chapter XVIII of
the above-mentioned Convention shall be applicable in the same manner as provided therein with
reference to any disagreement relating to the interpretation or application of the above-mentioned
Convention”.
IASTA, Art. II, Section 2 (BEUM Vol. II, Annex 2). By “above-mentioned Convention”, the IASTA
refers to the Chicago Convention (BEUM Vol. II, Annex 1). In this Counter-Memorial, Qatar employs
the words “disagreement” and “dispute” interchangeably, without conceding that the word
“disagreement” in Article 84 is completely synonymous with the word “dispute” as used in many other
compromissory clauses.
170 BEUM, paras. 5.13, 5.23.

49

3.7 However, the principle of speciality does not limit the Council’s functions under Article II,
Section 2, as Joint Appellants appear to suggest.171 It does the opposite, in fact. In a key
paragraph of its Advisory Opinion in Legality of the Use by a State of Nuclear Weapons in Armed
Conflict that Joint Appellants studiously ignore, the Court stressed that the principle of
speciality has a dual meaning. While an international organisation “is not a State, but an
international institution with a special purpose” that “only has the functions bestowed upon it by
the Definitive Statute with a view to the fulfilment of that purpose”,172 it has power “to exercise
these functions to their full extent, in so far as the Statute does not impose restrictions upon
it”.173

3.8 In the area of international civil aviation, the Council is therefore empowered to exercise
the dispute settlement functions Article II, Section 2, gives it “to their full extent”. This
means, at very least, that the Council has jurisdiction to decide disputes “relating to the
interpretation or application” of the IASTA notwithstanding a disputing party’s defences raising
issues falling outside the Agreement, or the fact that the dispute in question arises in the
context of a broader dispute between the parties.

3.9 Neither Article II, Section 2, nor any other provision of the Agreement or the Chicago
Convention to which the IASTA refers imposes restrictions upon the Council’s power to decide
disputes. Joint Appellants appear to recognise this. They thus suggest that the restrictions they
seek to impose on the Council’s power can

171 Ibid., paras. 5.11, 5.17.
172 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J.
Reports 1996, para. 25 (citing Jurisdiction of the European Commission of the Danube, Advisory
Opinion, P.C.I.J., Series B, No. 14, p. 64).
173 Ibid. (emphasis added).

50

be inferred from the aims and objectives of ICAO as set out in Article 44 of the Chicago Convention
and “the logic of the overall system contemplated by the [UN] Charter”.174 They are mistaken.

3.10 ICAO’s aims and objectives include “insur[ing] that the rights of contracting States are
fully respected and that every contracting State has a fair opportunity to operate international
airlines”; “avoid[ing] discrimination between contracting States”; and “promot[ing] safety of
flight in international air navigation”.175 The Council’s exercise of jurisdiction over the dispute
created by Joint Appellants’ sudden imposition of the aviation prohibitions serves these aims and
objectives; it does not undermine them.

3.11 In this respect, it bears recalling that the IASTA is a “complementary agreement”176 to the
Chicago Convention that established ICAO, which is a specialised agency of the United Nations
within the meaning of Article 57 of the UN Charter. The principles that guide it, as well as the
activities it undertakes pursuant to those principles, must therefore be considered to give effect
to the Purposes of the United Nations, defined in Article 1 of the Charter. Those include
“bring[ing] about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes”; “develop[ing] friendly
relations among nations … and … tak[ing] other appropriate measures to strengthen universal
peace”; and “achiev[ing] international co-

174 BEUM, paras. 5.16 (citing Legality of the Use by a State of Nuclear Weapons in Armed Conflict,
Advisory Opinion, I.C.J. Reports 1996, para. 26), 5.19.
175 Chicago Convention, Arts. 44(f)-(h) (BEUM Vol. II, Annex 1).
176 Interpretation of the air transport services agreement between the United States of America and
Italy, Award of 17 July 1965, UNRIAA, Vol. XVI, pp. 75-108 at p. 96.

51

operation in solving international problems of an economic, social, cultural, or humanitarian
character”.177

3.12 The Preamble of the Chicago Convention itself explicitly links ICAO to these purposes. It
indicates that the “development of international civil aviation can greatly help to create and
preserve friendship and understanding among the nations and peoples of the world, yet its abuse can
become a threat to the general security”, and that “it is desirable to avoid friction and to
promote … cooperation between nations and peoples upon which the peace of the world depends”.178
Again, the Council’s exercise of jurisdiction over this dispute can only serve these objectives,
not undermine them.

3.13 Nor do any restrictions on the Council’s dispute settlement functions follow from “pragmatic
considerations relating to the composition of the ICAO Council and the experience and expertise of
the representatives of its Members”, as Joint Appellants wrongly claim.179 Their assertion that the
Council is “ill-equipped to resolve complex legal disputes between States in areas falling outside
the narrow

177 Charter of the United Nations, 1 U.N.T.S. 16 (26 June 1945) (entry into force: 24 Oct.
1945),
Art. 1.
178 Chicago Convention, Preamble (BEUM Vol. II, Annex 1). In the course of its history, ICAO has
notably acted within the limits of its competences and purposes when it condemned the policies of
apartheid and racial discrimination in South Africa. ICAO Assembly, Resolution A15-7: Condemnation
of the Policies of Apartheid and Racial Discrimination of South Africa, ICAO Doc. 8528 (22 June-16
July 1965) (QCM (B) Vol. II, Annex 1). ICAO further decided to stop inviting South Africa to attend
ICAO meetings because it acted in flagrant contradiction with the Preamble of the Chicago
Convention by maintaining its apartheid policies. See ICAO Assembly, Resolution A18-4: Measures to
be taken in pursuance of Resolutions 2555 and 2704 of the United Nations General Assembly in
relation to South Africa, ICAO Doc. 8958 (15 June-7 July 1971) (QCM (B) Vol. II, Annex 2). In light
of ICAO’s objectives, and the Council’s previous practice, Joint Appellants’ suggestion that its
field of operation is merely “technical” is plainly false. BEUM, para. 5.23.
179 BEUM, para. 5.25.

52

and specialist compass of the rules of international law relating to international civil
aviation”180 is contradicted by the Council’s dispute resolution practice.181 Moreover, ICAO Member
States are free to include in their delegations to the Council experts with a wide variety of
skills and knowledge, or even private lawyers.182 And the Council itself can take expert advice on
any difficult legal question, be it of domestic or international law, should it consider it
necessary.183

3.14 The Court’s jurisprudence eliminates any remaining doubts about the Council’s power to
exercise its dispute settlement functions to their full extent. In the 1972 ICAO Council Appeal
case, the Court made clear that the Council’s jurisdiction under Article 84 of the Chicago
Convention—to which Article II, Section 2, of the IASTA refers—is complemented by the
appeal mechanism

180 Ibid.
181 For example, in Pakistan v. India, the parties presented arguments concerning the termination
and suspension of treaties under general international law. See, e.g., ICAO Council, 74th Session,
Minutes of the Second Meeting, ICAO Doc. 8956-C/1001 (27 July 1971) (QCM (B) Vol. II, Annex 4);
ICAO Council, 74th Session, Minutes of the Third Meeting, ICAO Doc. 8956-C/1001 (27 July 1971) (QCM
(B) Vol. II, Annex 5); ICAO Council, 74th Session, Minutes of the Fourth Meeting, ICAO Doc.
8956-C/1001 (28 July 1971) (QCM (B) Vol. II, Annex 6); ICAO Council – 74th
Session, Minutes of the Fifth Meeting, ICAO document 8987-C/1004, 28 July 1971 (BEUM Vol. V, Annex
27). In United States v. 15 European States, the parties presented arguments concerning the
adequacy of negotiations and the exhaustion of local remedies, and the Council rendered a decision
on these issues of public international law. See, e.g., ICAO Council, 161st Session, Summary
Minutes of the Fourth Meeting, ICAO Doc. C-MIN 161/4 (15 Nov. 2000) (QCM (B) Vol. II, Annex 13);
ICAO Preliminary Objections (B), Exhibit 1, Summary Minutes of the Council, Sixth Meeting 161st
Session, ICAO document C-MIN 161/6, 16 November 2000 (BEUM Vol. III, Annex 24). In Brazil v. United
States, the parties presented arguments concerning the temporal limitations in making claims under
general international law, and the Council once again rendered a decision on this issue. See, e.g.,
ICAO Preliminary Objections (B), Exhibit 2, ICAO Council – 211th Session, Summary Minutes of the
Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017 (BEUM Vol. III, Annex 23);
ICAO Council, 211th Session, Ninth Meeting: Summary of Decisions, ICAO Doc. C-DEC 211/9 (21 June
2017) (QCM (B) Vol. III, Annex 23).
182 Indeed, Appellant Bahrain did so at the hearing before the ICAO Council. See 214th Session,
Summary Minutes of Eighth Meeting (26 June 2018), ICAO Doc. C-MIN 214/8, para. 121 (BEUM Vol. V,
Annex 53).
183 ICAO Rules, Art. 8 (BEUM Vol. II, Annex 6).

53

established in the same article, which ensures that the Council performs its functions within the
scope of its jurisdiction. In the words of the Court:

“In … providing for judicial recourse by way of appeal to the Court against decisions of the
Council concerning interpretation and application … the Chicago Treaties gave member States, and
through them the Council, the possibility of ensuring a certain measure of supervision by the Court
over those decisions. To this extent, these Treaties enlist the support of the Court for the good
functioning of the Organization, and therefore the first reassurance for the Council lies in the
knowledge that means exist for determining whether a decision as to its own competence is in
conformity or not with the provisions of the treaties governing its action”.184
3.15 Accordingly, neither the principle of speciality, nor the aims and objectives of ICAO, or any
“pragmatic considerations” limit the Council’s jurisdiction over disputes “relating to the
interpretation or application” of the IASTA. To the contrary, the Council is empowered to exercise
its jurisdiction “to its full extent”. That is exactly what it did in its Decision of 29 June 2018
on Qatar’s Application B.

184 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 26 (emphasis added); see also ibid., Separate Opinion of Judge de Castro, para.
7; ibid., Separate Opinion of Judge Dillard, p. 105; ibid., Declaration of Judge Lachs, p. 75 (“…
the Council, in view of its limited experience on matters of procedure, and being composed of
experts in other fields than law, is no doubt in need of guidance, and it is surely this Court
which may give it. Such guidance would be of great importance for the further conduct of this case
and future cases, and in the interest of the confidence of States entrusting it with the resolution
of disagreements arising in the field of civil aviation.”).

54

II. The Dispute Qatar Submitted to the ICAO Council “Relates to the Interpretation or Application”
of the IASTA

3.16 Joint Appellants observe that Article II, Section 2, of the IASTA “circumscribe[s] ratione
materiae [the Council’s jurisdiction] to matters relating to the ‘interpretation or application’ of
the IASTA”.185 Qatar agrees; the meaning of the terms of Article II, Section 2, is clear. Joint
Appellants argue, however, that the dispute Qatar brought before the Council only raises issues of
the interpretation or application of the IASTA “on its face”, and that it “concerns only one
element of the real dispute between the Parties”.186 As they see it, “[t]he real subject-matter of
the dispute … concerns Qatar’s failure to abide by … fundamental obligations of a completely
different character” that fall outside the Council’s jurisdiction.187 Joint Appellants also argue
that “[a]ny final adjudication on [Qatar’s] claims … would necessarily and inevitably require the
ICAO Council to consider and rule upon matters which undoubtedly fall outside its limited
jurisdiction ratione materiae”.188 This is because, they say, “the airspace restrictions were
adopted … as lawful countermeasures”.189

3.17 Joint Appellants’ argument on these issues is repetitive in the extreme. They devote a full
chapter of their Memorial,190 as well as sections in two other chapters, to the alleged “real
issue” in dispute.191 The terms “real issue” and “real dispute”

185 BEUM, para. 5.11.
186 Ibid., para. 5.27.
187 Ibid., paras. 5.28-5.29.
188 Ibid., para. 5.30 (some emphasis added).
189 Ibid.
190 Ibid., Chapter II.
191 Ibid., Chapter I, Section 3; Chapter V, Sections 3 and 4.

55

appear no fewer than 67 times in the Memorial, as if repeating the same erroneous arguments might
somehow give them merit. It does not.

3.18 Qatar’s response will be more concise. Joint Appellants’ countermeasures defence does not
deprive the Council of its jurisdiction over the dispute Qatar submitted to it because (1) it is
irrelevant to the Court’s assessment of the “real issue” in dispute (Section II.A); and (2) even if
it were somehow relevant (quod non), it would not convert this dispute into one over which the
Council has no jurisdiction (Section II.B).

A. JOINT APPELLANTS’ COUNTERMEASURES DEFENCE HAS NO BEARING ON THE ASSESSMENT OF THE “REAL ISSUE”
IN DISPUTE

3.19 In the Introduction to their Memorial, Joint Appellants assert that “[t]he issues of
jurisdiction and admissibility raised by the … second ground of appeal are novel and a matter of
first impression, whether in the jurisprudence of the Court or of other international
tribunals”.192 This claim is refuted by the Court’s jurisprudence. In the prior case involving an
appeal from a decision of the ICAO Council, the Court overwhelmingly rejected a substantially
similar argument from the appellant party.

3.20 Specifically, in the 1972 ICAO Council Appeal case, India argued that the dispute Pakistan
raised before the Council did not relate to the interpretation or application of the Chicago
Convention because, in its view, it required the Council to determine international law matters
outside of the Chicago Convention (namely, whether the Chicago Convention was validly
suspended and/or terminated as

192 Ibid., para. 1.32 (emphasis added).

56

between India and Pakistan). Similar to what Joint Appellants argue here, India argued that the
Council had neither jurisdiction nor the necessary expertise to rule upon such matters.193

3.21 The dangers of this argument were immediately obvious to the Court. If a defence on the merits
could affect the competence of the Council, the “parties would be in a position themselves to
control that competence, which would be inadmissible”.194 In the Court’s view, the jurisdiction of
the ICAO Council “must depend on the character of the dispute submitted to it and on the issues
thus raised—not on those defences on the merits, or other considerations, which would become
relevant only after the jurisdictional issues had been settled”.195 It made no difference if such
considerations “are claimed to lie outside the Treaties”. The Council cannot be deprived of its
jurisdiction “if, irrespective of this, issues concerning the interpretation or application of
these instruments are nevertheless in question”.196

193 See ICAO Council, 74th Session, Minutes of the Second Meeting, ICAO Doc. 8956-C/1001 (27 July
1971), p. 23 (QCM (B) Vol. II, Annex 4); Appeal Relating to the Jurisdiction of the ICAO Council,
Memorial of India, paras. 68-85; Reply of India, paras. 44, 63-74; Oral Arguments, pp. 504-523 (Mr.
Palkhivala).
194 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27.
195 Ibid. (emphasis added). See also ibid., para. 31 (“[A] mere unilateral affirmation of …
contentions—contested by the other party—cannot be utilized so as to negative the Council’s
jurisdiction. The point is not that these contentions are necessarily wrong but that their validity
has not yet been determined. Since therefore the Parties are in disagreement as to whether the
Treaties ever were (validly) suspended or replaced by something else; as to whether they are in
force between the Parties or not: and as to whether India’s action in relation to Pakistan
overflights was such as not to involve the Treaties, but to be justifiable aliter et aliunde:—these
very questions are in issue before the Council and no conclusions as to jurisdiction can be drawn
from them, at least at this stage, so as to exclude ipso facto and a priori the competence of the
Council”.) (emphasis added).
196 Ibid., para. 27. Joint Appellants argue that the Court’s Judgment “foreshadowed the application
of the real issue test as it has been developed in subsequent cases, but did not need to apply it
in that
57

3.22 As did the Council when the same argument was before it, the Court overwhelmingly rejected
India’s appeal.197 It affirmed the ICAO Council’s jurisdiction by a vote of 14 to two. Even the two
dissenting Judges did not take the view that the ICAO Council lacked jurisdiction to address the
merits of Pakistan’s application.198

3.23 It is just the same here. Joint Appellants are effectively trying—to borrow the Court’s
language—to “control [the] competence” of the Council by casting a “defence on the merits … in a
particular form” (i.e., countermeasures). As long as “issues concerning the interpretation or
application of [the IASTA] are nevertheless in question”—and Joint Appellants admit they
are199—their unilateral assertions “cannot be utilized so as to negative the Council’s
jurisdiction”.200

case.” BEUM, para. 5.89. However, the text of the Judgment leaves no room for ambiguity. Later in
the Judgment, the Court expressly stated that “the legal issue that has to be determined by the
Court really amounts to this, namely whether the dispute, in the form in which the Parties placed
it before the Council, and have presented it to the Court in their final submissions … is one that
can be resolved without any interpretation or application of the relevant Treaties at all. If it
cannot, then the Council must be competent”. Ibid., para. 28 (emphasis added).
197 The ICAO Council rejected India’s objection by a vote of 20 to zero, with four abstentions. See
ICAO Council, Action of the Council: Seventy-fourth Session, ICAO Doc. 8987-C/1004 (8 July 1971,
27-29 July 1971, 28 September – 17 December 1971), p. 43 (QCM (B) Vol. II, Annex 3).
198 See Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment,
Dissenting opinion of Judge Morozov, I.C.J. Reports 1972, pp. 157-163; Appeal Relating to the
Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, Dissenting opinion of Judge
Nagendra Singh, I.C.J. Reports 1972, para. 19 (stating that he was “not express[ing] any views on
the merits of the issue of jurisdiction”).
199 BEUM, paras. 5.27 (stating that claim submitted to the ICAO Council by Qatar “on its face
rais[es] issues of the interpretation and application of the IASTA”), 5.30 (“Qatar’s claims in the
ICAO Application are ... carefully framed so as only to allege breaches by the Appellants of their
obligations under the IASTA”.).
200 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, paras. 27, 31.

58

3.24 Joint Appellants wisely choose not to argue that the Court decided the 1972 ICAO Council
Appeal case wrongly. Instead, they try to limit the reach of the Court’s holding to defences
“aris[ing] within the bounds of the IASTA”, whereas their “good faith invocation of countermeasures
took the dispute outside of the scope of the Convention”.201 But the Court’s 1972 Judgment
forecloses this maneuver. Just like Joint Appellants’ invocation of countermeasures, India’s
defence was “claimed to lie outside the [t]reaties”.202 The Court described India’s argument as
follows:

“[India’s] contention is to the effect that since India
… was not invoking any right that might be afforded by the Treaties, but was acting outside them on
the basis of a general principle of international law, ‘therefore’ the Council, whose jurisdiction
was derived from the Treaties, and which was entitled to deal only with matters arising under them,
must be incompetent”.203
3.25 Moreover, the Court did not distinguish between defences arising within and outside the
Chicago Convention when it held that the jurisdiction of the ICAO Council “must depend on the
character of the dispute submitted to it … not on those defences on the merits, or other
considerations, which would become relevant only after the jurisdictional issues had been
settled”.204

201 BEUM, paras. 5.90-5.91 (emphasis added, Joint Appellants probably mean “outside the scope of
the IASTA”). As shown in Chapter 2 of this Counter-Memorial, Joint Appellants’ invocation of
countermeasures is far from having been made in good faith.
202 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 27.
203 Ibid., para. 31 (emphasis added).
204 Ibid., para. 27.

59

3.26 More fundamentally, there is no reason why a defence “aris[ing] within the bounds of the
Chicago Convention [or of the IASTA]” should be treated differently than a defence that raises
issues “claimed to lie outside the treaties”. If either type of defence were allowed to affect the
competence of the Council (or of any other international court or tribunal), a disputing party
would still be in a position itself “to control that competence, which would be inadmissible”.205

3.27 The implications of Joint Appellants’ position cannot be overstated. Were the Court to adopt
it, there would be nothing to stop a respondent State from invoking a “lawful countermeasures”
defence in any proceeding before the ICAO Council to escape judicial scrutiny of its actions.
Indeed, there would be nothing to stop a respondent State in any proceeding before any
international court or tribunal with limited jurisdiction ratione materiae from doing the same.

3.28 For the reasons the Court already explained in the 1972 ICAO Council Appeal case, Joint
Appellants’ countermeasures defence has no bearing on the assessment of the “real issue” in
dispute.

B. JOINT APPELLANTS’ COUNTERMEASURES DEFENCE, EVEN IF IT WERE RELEVANT, DOES NOT CONVERT THIS
DISPUTE INTO ONE OVER WHICH THE
COUNCIL DOES NOT HAVE JURISDICTION

3.29 The Court need not look beyond its Judgment in the 1972 ICAO Council Appeal case to conclude
that the Council properly dismissed Joint Appellants’ First Preliminary Objection. But even if the
Court were to depart from its previous

205 Ibid. (emphasis added).

60

jurisprudence and consider Joint Appellants’ defence in its assessment of the “real issue” in
dispute, its ultimate conclusion would be exactly the same.

3.30 Qatar agrees with Joint Appellants that the proper characterisation of a dispute “is a matter
for objective assessment”,206 and that “it is the Court’s duty to isolate the real issue in the
case”.207 Qatar also agrees that the formulation of the dispute as set out in an applicant’s
pleadings,208 and the “object of the claim” and its relation to the interpretation or application
of the treaty in question,209 play an important role in this regard. But Qatar disagrees with the
conclusion Joint Appellants purport to draw from these considerations. As shown below, both such
considerations confirm the conclusion that the Council properly upheld its jurisdiction.

1. Qatar’s pleadings before the ICAO Council indicate that the subject- matter of the dispute falls
squarely within the scope of the IASTA

3.31 Joint Appellants argue that “even on a characterization based only on Qatar’s pleadings, it
is clear that the dispute before the ICAO Council concerns

206 BEUM, para. 5.45.
207 Ibid., para. 5.49 (citing Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
para. 29; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, para. 30);
Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment,
I.C.J. Reports 2015, para. 26.
208 BEUM, paras. 5.48 (citing Interhandel Case (Switzerland v. United States of America),
Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 21; Right of Passage over Indian
Territory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, pp. 33-34; Appeal Relating to
the Jurisdiction of the ICAO Council, Judgment, (India v. Pakistan), Judgment, I.C.J. Reports 1972,
paras. 22, 36). See also Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile),
Preliminary Objections, Judgment, I.C.J. Reports 2015, para. 26; Territorial and Maritime Dispute
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007, para. 38;
209 BEUM, paras. 5.53, 5.59-5.67.

61

matters falling beyond the scope of the IASTA”.210 This is demonstrably false for several reasons.

3.32 First, Qatar’s Application and Memorial to the ICAO Council clearly state a dispute
“relating to the interpretation or application” of the IASTA both in fact and in law. In its
Application, Qatar stated that the dispute was occasioned by the fact that:

“On 5 June 2017 the Governments of the Respondents announced, with immediate effect and without any
previous negotiation or warning, that Qatar-registered aircraft are not permitted to fly to or from
the airports within their territories and are barred from their respective national air spaces”.211
3.33 The Application further stated that:

“The actions of the Respondents continue to have serious impact on the safety, security, regularity
and economy of civil aviation in the region. Qatar Airways, the national carrier of the Applicant,
operates some 800 flights per day and carries thousands of passengers of many nationalities
world-wide. The travel plans and bookings of thousands of travelers of many nationalities were
upset, families forcibly separated and bookings/ticketing by Qatar Airways were not honored by the
Respondents’ airlines. Qatar Airways operations were barred from established international airways,
including those over the high seas. Rerouting the flights to limited corridors

210 Ibid., para. 5.77.
211 ICAO Application (B), p. 1 (BEUM Vol. III, Annex 23).

62

extends the flight times and fuel consumption and causes considerable economic losses”.212

3.34 Qatar’s Memorial before the Council reiterated these facts and argued that “[b]y their actions
starting on 5 June 2017 and lasting to the present time the Respondents violated the letter and
spirit of the International Air Services Transit Agreement”.213 The Memorial specified that the
actions complained of violated “[t]he privilege to fly across the [Respondents’] territor[ies]
without landing, and [t]he privilege to land for non-traffic purposes”, both privileges granted by
IASTA’s parties for “each other in scheduled international air services.214

3.35 A dispute over whether measures adopted by a State party to a treaty violate the provisions of
that treaty is by definition a dispute “relating to the interpretation or application” of its
provisions.215

3.36 Second, neither Qatar’s request that the Council determine, based on the very same facts,
violations of “other rules of international law”216 nor Qatar’s brief reference in the Memorial to
the context in which the aviation prohibitions were

212 Ibid.
213 ICAO Memorial (B), p. 4 (BEUM Vol. III, Annex 23).
214 Ibid.
215 The Court has on numerous occasions exercised its jurisdiction under the compromissory clause
of a treaty to declare that a State has violated a provision of that treaty. See, e.g., Questions
Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits, Judgment, I.C.J.
Reports 2012, paras. 49-52; Application of the Interim Accord of 13 September 1995 (FYROM v.
Greece), Judgment, I.C.J. Reports 2011, para. 58; Avena and Other Mexican Nationals (Mexico v.
United States), Judgment, I.C.J. Reports 2004, paras. 27-28; Oil Platforms (Iran v. United States),
Judgment, I.C.J. Reports 2003, para. 31; LaGrand (Germany v. United States), Jurisdiction,
Admissibility, Merits, Judgment, I.C.J. Reports 2001, para. 42.
216 ICAO Application (B), p. 2; ICAO Memorial (B), Section (e) (1)-(2) (BEUM Vol. III, Annex 23).

63

imposed217 can be reasonably construed as reflecting Qatar’s “recogni[tion]” that the factual
dispute arose following the Joint Appellants’ decision to impose countermeasures.218 And even if
they could, they would still be irrelevant to the assessment of the “real issue” in dispute. The
Court has made clear that to identify the subject-matter of the dispute “[i]n particular, it takes
account of the facts that the applicant identifies as the basis for its claim”.219 As is evident
from its Application and Memorial before the Council, Qatar’s claims are based solely on the
aviation prohibitions.

3.37 Joint Appellants nevertheless expend considerable effort trying to show that Qatar’s Response
before the Council “implicitly acknowledged that there exists a dispute between the Parties as to
whether it has breached its other international obligations outside the IASTA”.220 Their effort is
wasted. Qatar readily acknowledges that there is a dispute between the Parties concerning Qatar’s
compliance with its counterterrorism and non-interference obligations, including under the Riyadh
Agreements. It thus never “shifted its position”221 or “sought to modify the way it had
characterized the dispute”222 before the ICAO Council in light of Joint Appellants’ First
Preliminary Objection, as Joint Appellants wrongly suggest.

217 ICAO Memorial (B), Section (g) (BEUM Vol. III, Annex 23).
218 BEUM, para. 5.74.
219 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, para. 26.
220 BEUM, para. 5.40; see also ibid., para. 5.81.
221 Ibid., para. 1.5.
222 Ibid., para. 5.75.

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3.38 As explained in Chapter 2, Qatar denies in the strongest possible terms that it has ever
violated any of the obligations Joint Appellants claim. But that is not the point here. The mere
fact that the Parties’ dispute involving other matters co-exists with the dispute about the
aviation prohibitions does not convert those other matters into the “real issue” in dispute before
the Council. The Court has repeatedly decided disputes that were intertwined with other
disagreements between the litigating States. Each and every time, it has ruled that the existence
of other, related disputes did not deprive it of jurisdiction.223

3.39 Indeed, the Court has made clear that

“legal disputes between sovereign States by their very nature are likely to occur in political
contexts, and often form only one element in a wider and 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

223 See, e.g., United States Diplomatic and Consular Staff in Tehran (United States v. Iran),
Judgment, I.C.J. Reports 1980, para. 37; Border and Transborder Armed Actions (Nicaragua v.
Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, para. 54; Application of
the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, para. 32; Military and
Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, para. 96; Legality of the Use by a State of Nuclear
Weapons in Armed Conflict, Advisory Opinion, I.C.J. reports 1996, para. 16; Alleged violations of
the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v.
United States of America), Provisional Measures, Order (3 Oct. 2018), para. 38.

65

role of the Court in the peaceful solution of international disputes”.224
3.40 Similarly, in Bolivia v. Chile, the Court rejected Chile’s argument that Bolivia’s Application
“obfuscate[d] the true subject-matter of Bolivia’s claim— territorial sovereignty and the character
of Bolivia’s access to the Pacific Ocean”.225 The Court stressed that “applications that are
submitted to the Court often present a particular dispute that arises in the context of a broader
disagreement between parties”.226

3.41 The Court confirmed this view in its most recent jurisprudence.227

3.42 To conclude on this point, Joint Appellants admit—in line with the Court’s jurisprudence—that
the formulation of the dispute in Qatar’s ICAO Application

224 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, I.C.J.
Reports 1980, para. 37 (emphasis added).
225 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, para. 32.
226 Ibid., para. 32 (emphasis added). See also In the matter of an arbitration before an Arbitral
Tribunal constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea
(Republic of the Philippines v. People’s Republic of China), PCA Case No. 2013-19, Award on
Jurisdiction and Admissibility (29 Oct. 2015), para. 152 (“There is no question that there exists a
dispute between the Parties concerning land sovereignty over certain maritime features in the South
China Sea … The Tribunal does not accept, however, that it follows from the existence of a dispute
over sovereignty that sovereignty is also the appropriate characterisation of the claims the
Philippines has submitted in these proceedings. In the Tribunal’s view, it is entirely ordinary and
expected that two States with a relationship as extensive and multifaceted as that existing between
the Philippines and China would have disputes in respect of several distinct matters … The Tribunal
agrees with the International Court of Justice in United States Diplomatic and Consular Staff in
Tehran that there are no grounds to ‘decline to take cognizance of one aspect of a dispute merely
because that dispute has other aspects, however important.’”).
227 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights
(Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment (13 Feb.
2019), para. 36: “As the Court has observed, applications that are submitted to it often present a
particular dispute that arises in the context of a broader disagreement between parties”.

66

and Memorial merit “particular attention”.228 And despite their attempts to obfuscate the true
subject-matter of the dispute, Qatar’s pleadings before the Council make it clear that it falls
squarely within the ambit of the IASTA. An analysis of the object of Qatar’s claims, undertaken
below, confirms this conclusion.

2. The object of Qatar’s claims relates solely to the interpretation or application of the IASTA

3.43 Joint Appellants devote several paragraphs of their Memorial to a discussion of how “[t]he
‘real issue’ test may determine [the Court’s] jurisdiction ratione materiae”.229 Each and every
case they refer to in the context of this discussion, however, confirms the conclusion that Qatar’s
claims relate to the interpretation or application of the IASTA, and thus that the Council properly
found that it has jurisdiction.

3.44 Before turning to those cases, it is worth recalling once again the Court’s judgment in the
1972 ICAO Council Appeal case. As the Court put it in that case,

“the legal issue that has to be determined by the Court really amounts to this, namely whether the
dispute, in the form in which the Parties placed it before the Council, and have presented it to
the Court in their final submissions … is one that can be resolved without any interpretation or
application of

228 BEUM, para. 5.71.
229 Ibid., paras. 5.53, 5.56-5.70.

67

the relevant Treaties at all. If it cannot, then the Council must be competent”.230

3.45 The same emphasis on the “legal issue that has to be determined by the Court” permeates all of
the cases Joint Appellants discuss in their Memorial. In the Aegean Sea Continental Shelf case,231
for example, Greece characterised the dispute before the Court as one relating to the delimitation
of the continental shelf, and hence outside the scope of its reservation to the title of
jurisdiction (which excluded disputes “relating to the territorial status of Greece”). The Court
rejected this argument by looking to the first submission in Greece’s Application, which requested
the Court to “adjudge and declare … that [certain Greek islands] … [were] entitled to the portion
of the continental shelf which appertains to them according to the applicable principles and rules
of international law”.232 The Court considered that “[t]he very essence of the dispute” was the
“entitlement of those Greek islands to a continental shelf”. The object of the claim stated in
Greece’s Application, the delimitation of the boundary, was “a secondary question to be decided
after, and in the light of, the decision upon the first basic question”.233

3.46 Similarly, in Bolivia v. Chile, the Court looked to the object of Bolivia’s claims before the
Court, as stated in its Application, to reject Chile’s objection that “the true subject-matter of
Bolivia’s claim” was “territorial sovereignty and the

230 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 28 (emphasis added).
231 This case is discussed at paragraph 5.53 of the Memorial. Joint Appellants admit that “[w]hile
the Court may not have used the language of ‘real issue’ from the Nuclear Tests cases, it
nevertheless applied the test in substance.” Ibid.
232 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, para. 12.
233 Ibid., para. 83 (emphasis added).

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character of Bolivia’s access to the Pacific Ocean”234 (matters that were outside the Court’s
jurisdiction235). The Court held that

“while it may be assumed that sovereign access to the Pacific Ocean is, in the end, Bolivia’s goal,
a distinction must be drawn between that goal and the related but distinct dispute presented by the
Application, namely, whether Chile has an obligation to negotiate Bolivia’s sovereign access to the
sea and, if such an obligation exists, whether Chile has breached it. The Application does not ask
the Court to adjudge and declare that Bolivia has a right to sovereign access.236
3.47 Joint Appellants point out that Chile had also objected to the Court’s jurisdiction on grounds
that “Bolivia had framed the Application in an artificially narrow fashion, because the relief
sought by Bolivia would lead to negotiations with a judicially predetermined outcome on matters
falling outside of the Court’s jurisdiction”.237 The Court rejected that argument as well,
recalling again that “Bolivia [did] not ask [it] to declare that it has a right to sovereign access
to the sea nor to pronounce on the legal status of the 1904 Peace Treaty”.238 As Joint Appellants
admit, the Court accepted that Bolivia’s claims “could be determined

234 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, para. 32.
235Ibid., para. 22.
236 Ibid., para. 32 (emphasis added).
237 BEUM, para. 5.59 (citing Obligation to Negotiate Access to the Pacific Ocean (Bolivia v.
Chile), Preliminary Objections, Judgment, I.C.J. Reports 2015, para. 33).
238 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections,
Judgment, I.C.J. Reports 2015, para. 33.

69

[by the Court] without touching on the question of Bolivia’s substantive right to sovereign access
to the sea”.239

3.48 The same principle is also expressed in the two cases decided by arbitral tribunals
constituted under Annex VII of the United Nations Convention on the Law of the Sea (“UNCLOS”) that
Joint Appellants refer to: the South China Sea and Chagos Marine Protected Area cases.240 In the
former case, the tribunal considered that the Philippines’ claims “were properly characterized as
claims not concerning sovereignty”, because the tribunal considered itself, as Joint Appellants
point out, “able to determine the dispute without resolving questions of sovereignty, whether
implicitly or explicitly”.241

3.49 In the latter case, the tribunal reached the opposite conclusion. It declined to exercise
jurisdiction in respect of certain of Mauritius’s claims because it determined that the ‘real
issue’ between the parties concerned a dispute over territorial sovereignty, rather than the
interpretation or application of UNCLOS.242 The claims in question were presented in Mauritius’
first submission, which asked the tribunal to adjudge and declare that “the United Kingdom is not
entitled to

239 BEUM, para. 5.59 (emphasis added).
240 Ibid., paras. 5.60-5.66.
241 Ibid., para. 5.66 (citing In the matter of an arbitration before an Arbitral Tribunal
constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea (Republic
of the Philippines v. People’s Republic of China), PCA Case No. 2013-19, Award on Jurisdiction and
Admissibility (29 Oct. 2015), paras. 152-153).
242 BEUM, para. 5.61.

70

declare [a marine protected area] or other maritime zones because it is not the ‘coastal State’
within the meaning of [UNCLOS]”.243

3.50 The tribunal acknowledged the existence of an interpretive dispute over the meaning of the
term “coastal State” which existed alongside the dispute between the Parties with respect to
sovereignty over the Chagos Archipelago”.244 Employing a novel test that asked “where the relative
weight of the dispute lies”, the tribunal concluded that “the Parties’ dispute with respect to
Mauritius’ First Submission is properly characterized as relating to land sovereignty over the
Chagos Archipelago. The Parties’ differing views on the ‘coastal State’ for the purposes of the
Convention are simply one aspect of this larger dispute”.245 The reasons for that were twofold:
because prior to the initiation of the arbitration there was “scant evidence that Mauritius was
specifically concerned with the United Kingdom’s implementation of the Convention” and because the
“consequences of a finding that the United Kingdom is not the coastal State extend well beyond the
question of the validity of the [marine protected area]”.246

3.51 These cases have a common thread: international courts and tribunals will determine the “real
issue” in dispute by reference to the stated object of the applicant State’s claims.247 The South
China Sea and Chagos Marine Protected

243 In the matter of the Chagos Marine Protected Area Arbitration (Republic of Mauritius v. United
Kingdom of Great Britain and Northern Ireland), PCA Case No. 2011-03, Award (18 Mar. 2015), para.
158.
244 Ibid., paras. 209, 211.
245 Ibid., paras. 211-212.
246 Ibid., para. 212.
247 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
71

Area cases suggest that the jurisdictional inquiry may go beyond the claims as submitted by the
applicant State and delve into “the actual objective” of those claims.248 Even if the latter
inquiry were warranted in this case, the conclusion would be the same: the true object of Qatar’s
claims relates to the interpretation or application of the IASTA.

3.52 This is evident from Qatar’s Application to ICAO, in which it asked the Council:

“- To determine that the Respondents violated by their actions against the State of Qatar their
obligations under the International Air Services Transit Agreement (IASTA) and other rules of
international law,

- To deplore the violations by the Respondents of the fundamental principles of the IASTA,

- To urge the Respondents to withdraw, without delay, all restrictions imposed on the Qatar-
registered aircraft and to comply with their obligations under the IASTA and

- To urge the Respondents to negotiate in good faith the future harmonious cooperation in the
region to safeguard the safety, security[,] regularity and economy of international civil
aviation”.249

1978, para. 83; Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary
Objections, Judgment, I.C.J. Reports 2015, para. 32.
248 In the matter of an arbitration before an Arbitral Tribunal constituted under Annex VII to the
1982 United Nations Convention on the Law of the Sea (Republic of the Philippines v. People’s
Republic of China), PCA Case No. 2013-19, Award on Jurisdiction and Admissibility (29 Oct. 2015),
para. 152.
249 ICAO Application (B), p. 2 (BEUM Vol. III, Annex 23).

72

3.53 None of Qatar’s claims, reiterated in the Memorial,250 “can be resolved without any
interpretation or application of the relevant Treaties at all”.251

3.54 Nor does their “actual objective” lie outside the IASTA. Just the opposite. Qatar seeks a
determination that the aviation prohibitions violate the IASTA. It is Joint Appellants, not Qatar,
that introduced allegations concerning the breach of international obligations lying outside that
framework in an attempt to justify their breaches of the IASTA.252 But those allegations have
nothing to do with the object of Qatar’s claims before the Council, which can be resolved without
any adjudication of the merits of Joint Appellants’ defence, as explained in the following section.

3. The Council does not need to address the merits of Joint Appellants’ countermeasures defence to
decide this case

3.55 In light of the Court’s jurisprudence, the “real issue” in dispute before the Council is
plainly the violations of the IASTA occasioned by Joint Applicants’ aviation prohibitions. There
are still other reasons that confirm this conclusion.253 Far from being “necessary aspects of the
dispute between the Parties”,254 the merits

250 ICAO Memorial (B), Section (f) (BEUM Vol. III, Annex 23).
251 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 28.
252 Qatar recalls in this respect that the Court “[has] repeatedly exercised the power to exclude,
when necessary, certain contentions or arguments which were advanced by a party as part of the
submissions, but which were regarded by the Court, not as indications of what the party was asking
the Court to decide, but as reasons advanced why the Court should decide in the sense contended for
by that party”. Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, para. 29.
253 Qatar offers these additional observations without prejudice to its arguments on the merits of
Joint Appellants’ countermeasures defence.
254 BEUM, para. 5.39.

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of Joint Appellants’ countermeasures defence need not even be addressed by the Council in order to
decide Qatar’s claims.

3.56 At the outset, States’ entitlement to countermeasures under international law is governed by
the “secondary rules of State responsibility”.255 As such, countermeasures “provide[] a shield
against an otherwise well-founded claim for the breach of an international obligation”.256 In
Gabčíkovo-Nagymaros Project, the Court first concluded that Czechoslovakia had committed an
internationally wrongful act, and then secondarily examined “whether such wrongfulness may be
precluded on the ground that the measure so adopted was in response to Hungary’s prior failure to
comply with its obligations under international law”.257

3.57 This means that Joint Appellants’ countermeasures defence is at most—in the words of the Court
in the Aegean Sea Continental Shelf case—“a secondary question to be decided after, and in the
light of, the decision upon the first basic question”;258 namely, whether the aviation prohibitions
are otherwise wrongful. Indeed, if the Council finds that they are not,259 the countermeasures
issue does not even arise. Joint Appellants’ countermeasures defence therefore only becomes an

255 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries,
p. 31, para. 3.
256 Ibid., p. 71, para. 1 (emphasis added).
257 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, para. 82.
258 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, para. 83
(emphasis added).
259 Qatar notes in this respect that in spite of their invocation of countermeasures, Joint
Appellants do not concede that the aviation prohibitions were wrongful under the IASTA. Indeed,
Joint Appellants’ “good faith” invocation of countermeasures is “entirely without prejudice to the
Appellants’ position on the merits of the claim made by Qatar under the IASTA.” BEUM, fn. 142; see
also ibid., fn. 354 (“The accuracy of this statement of facts is not a matter for the Court at this
stage, and the Appellants reserve their rights in this regard.”).

74

issue if the Council finds that their conduct is otherwise wrongful. But even in that case, there
are at least three reasons why the Council could decide Qatar’s claims without addressing the
merits of Joint Appellants’ countermeasures defence.

3.58 First, the Council could find that, as lex specialis, the IASTA and the Chicago Convention,
which governs the exercise of the freedoms of the air provided under the Agreement,260 exclude
countermeasures as a circumstance precluding wrongfulness.261 “States may agree between themselves
on … rules of international law which may not be the subject of countermeasures …”.262 This
possibility is reflected in Article 55 of the International Law Commission’s (“ILC”) Articles on
the Responsibility of States for Internationally Wrongful Acts (“ARSIWA”), which provides that the
Articles “do not apply where and to the extent that the conditions for the existence of an
internationally wrongful act or the

260 Under Article I, Section 2, of the IASTA, the “exercise of the foregoing privileges [i.e. the
freedoms of the air defined under Section 1] shall be in accordance … with the provisions of the
Convention on International Civil Aviation … drawn up at Chicago on December 7, 1944”. (BEUM Vol.
II, Annex 2) (citation omitted). Article I, Section 2, of the IASTA operates as a clause de renvoi
inter-conventionnel to the Chicago Convention, bringing the provisions of the Convention into play
whenever obligations under the IASTA are applicable. (Mathias Forteau, Les renvois
inter-conventionnels, in Annuaire français de droit international, Vol. 49 (2003) (QCM (B) Vol. IV,
Annex 136).
261 As Joint Appellants admit, at the jurisdictional phase before the Council, Qatar argued that
the question of countermeasures was “one for the merits” and that at that stage of the proceedings
it “will provide a robust defence on the facts and in law”. BEUM, paras. 5.35-5.38 (citing ICAO
Response to Preliminary Objections (B), paras. 76-78, 82 (BEUM Vol. IV, Annex 25) and ICAO Council
–214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO Doc. C- MIN 214/8, 23
July 2018, para. 62 (BEUM Vol. V, Annex 53)). To infer from these responses that Qatar “did not
dispute the availability, in principle, of countermeasures as a circumstance precluding the
wrongfulness of the airspace restrictions under general international law”, or that “Qatar did not
seek to suggest that the IASTA precludes States parties from resorting to countermeasures” is
incorrect. See BEUM, paras. 2.59-2.60. In any event, Qatar here confirms that at the merits stage
of the dispute it will challenge the availability of countermeasures as a circumstance precluding
wrongfulness under the framework of the IASTA on grounds of lex specialis.
262 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries, p. 133, para. 10.

75

content or implementation of the international responsibility of a State are governed by special
rules of international law”.263

3.59 In this respect, Qatar recalls that “[t]o the extent that derogation clauses or other treaty
provisions (e.g. those prohibiting reservations) are properly interpreted as indicating that the
treaty provisions are ‘intransgressible’, they may entail the exclusion of countermeasures”.264 The
Council could very well find that the provisions of the Chicago Convention, which govern the
exercise of the rights under the IASTA, do exactly that. Indeed, the Convention contains only one
derogation clause, Article 89, entitled “War”, which provides:

“In case of war, the provisions of this Convention shall not affect the freedom of action of any of
the contracting States affected, whether as belligerents or as neutrals. The same principle shall
apply in the case of any contracting State which declares a state of national emergency and
notifies the fact to the Council”.265
3.60 In the absence of war or a state of national emergency duly declared and notified to the ICAO
Council—neither of which exists here—States may not lawfully derogate from their obligations under
the Convention266 or under the IASTA by the effect of its Article 1, Section 2. Tellingly, no other
State before

263 International Law Commission, Articles on Responsibility of States for Internationally Wrongful
Acts (2001) (hereinafter “ARSIWA”), Art. 55.
264 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries,
p. 133, para. 10 (emphasis added).
265 Chicago Convention, Art. 89 (BEUM Vol. II, Annex 1).
266 Ruwantissa Abeyratne, Convention on International Civil Aviation, A Commentary (2014), p. 149
(“Therefore, unless a State is at war (which the Convention does not define) or has declared a
state of national emergency, it would be bound by the provisions of the Convention”) (QCM (B) Vol.
IV, Annex 110).

76

Joint Appellants has ever sought to justify non- performance of obligations under the Chicago
Convention or the IASTA on grounds of countermeasures.267 By contrast, States have invoked Article
89.268

3.61 Countermeasures are inconsistent with the scheme of the IASTA in another critical respect.
Countermeasures are, by their very nature, discriminatory. They must always target the specific
State that the injured State considers responsible for an internationally wrongful act.269 Yet a
large number of the provisions of the Chicago Convention, which governs IASTA obligations, 270 and
the IASTA itself,271 expressly prohibit discrimination among aircraft of ICAO member States.

267 This is not surprising. The tit-for-tat risk inherent in countermeasures is potentially
destructive of the smooth and interdependent operation of civil aviation worldwide. In ICAO’s
75-year history, and despite periods of grave political tension between States, actions like the
far-reaching aviation prohibitions at issue in this case are very exceptional.
268 When Israel became a member of ICAO in 1949, Egypt and Iraq relied on Article 89 to deny to
Israeli aircraft the right to fly over their respective territories because of the official state
of war that then existed between them and Israel. See Ruwantissa Abeyratne, Convention on
International Civil Aviation, A Commentary (2014), p. 677, referring to ICAO Doc. 6922-C/803, Annex
A, at 125 which reproduces the letter from the Government of Egypt to ICAO dated 16 Oct. 1949 (QCM
(B) Vol. IV, Annex 110).
269 ARSIWA, Art. 49, para. 1; see also Draft Articles on Responsibility of States for
Internationally Wrongful Acts, with commentaries, pp. 129-131; Gabčíkovo-Nagymaros Project
(Hungary/Slovakia), Judgment, I.C.J. Reports 1997, para. 83.
270 See, e.g., Chicago Convention, Art. 9(b) (conferring on Member States the right “temporarily to
restrict or prohibit flying over the whole or any part of its territory” in exceptional
circumstances or during a period of emergency, or in the interest of public safety, “on condition
that such restriction or prohibition shall be applicable without distinction of nationality to
aircraft of all other States.”) (BEUM Vol. II, Annex 1) (emphasis added).
271 The IASTA prohibits “any discrimination between airlines operating on the same route” when
“reasonable commercial service” is charged at a stop made for non-traffic purposes: see IASTA, Art.
I, Section 3 (BEUM Vol. II, Annex 2).

77

Indeed one of the “aims and objectives of the Organization” is precisey to “[a]void discrimination
between contracting States”.272

3.62 In addition, even though the Chicago Convention or the IASTA do not prohibit reservations, no
State party has ever made a reservation to any of its provisions—or submit any request to that
effect before the Council or any other organ of the organisation.273 All ICAO member States accept
the IASTA and the Chicago Convention without reservation.

3.63 Finally, pursuant to Article 83 of the Chicago Convention, ICAO Member States have undertaken
“not to enter into any … obligations and understanding [which are inconsistent with the terms of
the Chicago Convention]”.274 The ILC Report on the Fragmentation of International Law identifies
clauses of that type as “an express exception to the lex posterior rule, designed to guarantee the
normative power of the earlier treaty”.275

272 Chicago Convention, Art. 44(g) (BEUM Vol. II, Annex 1) (emphasis added).
273 Article 20(3) of the Vienna Convention on the Law of Treaties (“VCLT”) provides that “[w]hen a
treaty is a constituent instrument of an international organization and unless it otherwise
provides, a reservation requires the acceptance of the competent organ of that organization.”
Vienna Convention on the Law of Treaties (adopted 22 May 1969), 1155 U.N.T.S. 331, Art. 20(3). See
also International Law Commission, Guide to Practice on Reservations to Treaties, Conclusion 2.8.8,
in Yearbook of the International Law Commission 2011, Vol. II, Part II, UN Doc.
A/CN.4/SER.A/2011/Add.1, p. 26. This provision can be seen as reflective of customary international
law. See International Law Commission, 59th Session, Twelfth report on reservations to treaties by
Mr. Alain Pellet, Special Rapporteur, UN Doc. A/CN.4.584 (15 May 2007), pp. 45- 46, paras. 67-68.
274 Chicago Convention, Art. 82 (BEUM Vol. II, Annex 1) (emphasis added). To the extent that Joint
Appellants base their countermeasures defence on the Riyadh Agreements, this provision alone
defeats their claim.
275 International Law Commission, Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law, Report of the Study Group of the
78

3.64 If the Council were to conclude that, as a result of the aforementioned provisions of the
IASTA, the Chicago Convention governing the exercise of rights thereunder, and other elements,
countermeasures are disallowed as a circumstance precluding the wrongfulness of the aviation
prohibitions, there can be no question that it could also decide Qatar’s claims “without touching”
on the question of the alleged breaches of the international obligations Joint Appellants try to
hide behind. Indeed, the very question whether the IASTA excludes countermeasures is in itself a
question “relating to the interpretation or application of this Agreement”. Joint Appellants’
countermeasures defence cannot possibly deprive the Council of its jurisdiction to decide this
issue.

3.65 The United States Diplomatic and Consular Staff in Tehran case illustrates all of the
foregoing points. In that case, Iran, just like Joint Appellants here, claimed that its conduct was
justified by prior unlawful activities of the United States.276 Iran did not specifically refer to
the theory of countermeasures and the Court noted that it failed to “explain on what legal basis
... these allegations ... constitute a relevant answer to the United States’ claims”.277
Nevertheless, after having found Iran responsible for breaches of diplomatic and consular law, the
Court considered that it was bound to examine whether Iran’s unlawful conduct “might be justified
by the existence of special circumstances”.278 The Court did not consider Iran’s

International Law Commission, UN Doc. A/CN.4/L.682 (13 Apr. 2006), para. 268 (some emphasis added).
276 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, paras.
37-38.
277 Ibid., para. 82.
278 Ibid., para. 80. Commenting on the Court’s judgment, E. Cannizzaro and B. Bonafè write:
“Although the Court did not unveil the legal qualification of the
special circumstances which could have justified the Iranian
conduct, there is little doubt that it referred to the regime of
79

defence to fall outside its jurisdiction as circumscribed by the jurisdictional titles invoked by
the United States.279 Nor did the Court consider that such a defence deprived it of its
jurisdiction to entertain the United States’ claims.

3.66 The Court ultimately concluded that there was no need to examine Iran’s defence because “even
if the alleged criminal activities of the United States in Iran could be considered as having been
established, the question would remain whether they could be regarded by the Court as constituting
a justification of Iran’s conduct and thus a defence to the United States’ claims”.280 The Court
found that not to be the case because “diplomatic law itself provides the necessary means of
defence against, and sanction for, illicit activities by members of diplomatic or consular
missions”.281

3.67 Second, even if countermeasures were an available defence under the IASTA, the “real issue” in
dispute would remain firmly rooted in the Agreement. This is also because countermeasures are only
a temporary bar to State responsibility, not a defence in limine.282 The Council could still find
the aviation

countermeasures under the customary law of state responsibility.”
E. Cannizzaro & B. Bonafè, “Fragmenting International Law through Compromissory Clauses? Some
Remarks on the Decision of the ICJ in the Oil Platforms Case”, European Journal of International
Law, Vol. 16, No. 3 (2005), p. 492 (QCM (B) Vol. IV, Annex 108).
279 Namely, the Optional Protocols to the Vienna Conventions of 1961 and 1963 on Diplomatic and
Consular Relations, and the 1955 Treaty of Amity, Economic Relations and Consular Rights between
Iran and the United States.
280 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, para. 83.
281 Ibid (emphasis added).
282 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries,
p. 71, para. 2 (“[C]ircumstances precluding wrongfulness … do not annul or terminate the
obligation; rather they provide a justification or excuse for non-performance while the
circumstance in question subsists”.).

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prohibitions wrongful under the IASTA and simply take judicial notice of Joint Appellants’
countermeasures defence. The fact that the legal consequences of such a finding would be precluded
“for the time being”283 does not mean that the Council’s judgment would not be “capable of
effective application”.284 As soon as the preclusive effect of the countermeasures defence ceased,
the Council’s judgment would entitle Qatar to demand, pursuant to Article 27 of ARSIWA:285
(1) Joint Appellants’ compliance with their obligations under the Chicago Convention, which
includes the cessation of the aviation prohibitions,286 and (2) compensation for any material loss
caused by Joint Appellants’ breaches of the Convention.

3.68 Third and finally, the Council could assess the legality of Joint Appellants’ countermeasures
defence without addressing the substantive premise thereof (i.e., Qatar’s alleged noncompliance
with its obligations under international law beyond the framework of the Chicago Convention). The
Council unquestionably has jurisdiction to assess whether Joint Appellants complied with the other
necessary conditions governing countermeasures.287 For example, questions relating to the

283 Ibid., p. 75, Art. 22, para. 4.
284 Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 1963, p. 22.
285 ARSIWA, Art. 27.
286 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries, p. 75, Art. 27, p. 86, para. 3.
287 Joint Appellants conceded that the “real issue” in dispute “continues to fall within [an
international court’s or tribunal’s] jurisdiction although it implicates other aspects in
peripheral or ancillary fashion”. BEUM, para. 5.67 (citing Certain German Interests in Polish Upper
Silesia (Germany v. Poland), Preliminary Objections, Judgment, 1925, P.C.I.J., Series A, No. 6, p.
18); see also ibid., para. 5.61 (citing In the matter of the Chagos Marine Protected Area
Arbitration (Republic of Mauritius v. United Kingdom of Great Britain and Northern Ireland), PCA
Case No. 2011-03, Award (18 Mar. 2015), para. 220).

81

conditions that must be met before the adoption of countermeasures,288 including procedural
preconditions, can all be examined and decided without delving into Qatar’s alleged breaches of
international law.

3.69 For all the foregoing reasons, and consistent with the Court’s longstanding jurisprudence,
Joint Appellants’ violations of the IASTA are unmistakably the “real issue” in the dispute Qatar
submitted to the ICAO Council. The Council was therefore correct in finding that it has
jurisdiction to hear Qatar’s claims.

III. The Adjudication of Qatar’s Claims by the ICAO Council Is Entirely Consistent with Judicial
Propriety

3.70 Joint Appellants argue that “[e]ven if the Court were to … conclude that the ICAO Council
in principle has jurisdiction over Qatar’s claims … that is not the end of the analysis of the ICAO
Council’s competence to hear the dispute”.289

3.71 Actually, it is. Joint Appellants’ “alternative argument” on the admissibility of Qatar’s
claims is not really an “alternative” one. It is, at root, an obvious repurposing of their errant
jurisdictional objection.290 Here once again they assert that if the Council were to pass upon
their countermeasures defence it would adjudicate “beyond the[] bounds”291 of Article II, Section
2, without their consent.

288 See ARSIWA, Art. 52.
289 BEUM, para. 5.96.
290 Hence, it can be dispensed with on the same ground and without determining whether questions of
admissibility of claims may be raised as a preliminary matter before the Council, an issue to
which, curiously, Joint Appellants devoted 24 pages of their Memorial.
291 BEUM, para. 5.118; see also ibid., paras. 5.119-5.124.

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The argument is no more convincing when dressed up in these new clothes than it was in the old
ones.

3.72 As shown above, the Council does not need to pass judgment on Qatar’s compliance with its
international obligations owed to Joint Appellants outside the framework of the IASTA in order to
adjudicate Qatar’s claims under that framework. Whether countermeasures remain an available defence
to wrongfulness under the IASTA is by definition for the Council to decide in the first
instance;292 countermeasures do not rule out in limine a breach of the IASTA;293 and they are
subject to Joint Appellants’ compliance with necessary conditions that transcend their substantive
premise.294

3.73 Moreover, none of the closed set of exceptional circumstances which gave rise to the doctrine
of judicial propriety in the Court’s jurisprudence apply here. Qatar’s claims have not become
devoid of purpose (Northern Cameroons)295 or object (Nuclear Tests)296 by virtue of Joint
Appellants’ countermeasures defence; none of the factors identified in Free Zones has the remotest
connection to this

292 See supra, paras. 3.58-3.66.
293 See supra, para. 3.67.
294 See supra, para. 3.68. Even if the Council needed to determine the substantive premise of the
alleged countermeasures, Joint Appellants must be deemed to have implicitly consented to this
determination via forum prorogatum. The doctrine of forum prorogatum “is relevant … in determining
… the extent to which [the respondent State] may tacitly have accepted jurisdiction over matters
not covered by the original title relied on”. Hugh Thirlway, The International Court of Justice
(2016), p. 53. There is no reason why the same logic should not apply to the respondent State when
raising a countermeasures defence.
295 Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, p. 38.
296 Nuclear Tests (Australia v. France), Judgment, para. 62.

83

case;297 the dispute is plainly not a “non-legal one” (Haya de la Torre);298 there is no issue of
adjudicating the international responsibility of a State that is not party to the proceedings
before the Council (Monetary Gold);299 and Qatar is not trying to circumvent the limits of the ICAO
Council’s contentious jurisdiction (Western Sahara).300

3.74 In fact, what would offend judicial propriety would be accepting Joint Appellants’
submissions, not Qatar’s. It is they who seek to prevent the Council from exercising its
jurisdictional powers “to their full extent”.301 And it is they who are trying to circumvent the
principle of consent by trying to control the Council’s jurisdiction by means of (baseless)
unilateral assertions.

3.75 Tellingly, Joint Appellants close their judicial propriety argument with the peculiar
assertion that “in order not to compromise [their] position, the only possible solution would be
for the ICAO Council expressly to leave undecided the Appellants’ invocation of countermeasures,
merely recognizing it as a defence available under general international law that would dispose
entirely of the alleged unlawfulness of the … measures”.302 In other words, Joint Appellants
suggest that it would be proper for the Council to declare that a countermeasures defence is

297 Free Zones (France/Switzerland), Order of 19 August 1929, P.C.I.J. Series A, No. 22, p. 15;
Free Zones (France/Switzerland), Judgment of 7 June 1932, P.C.I.J. Series A/B, No. 46, pp. 161-
162.
298 BEUM, para. 5.100.
299 Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and
Northern Ireland and United States of America), Preliminary Question, Judgment, p. 32.
300 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, para. 33.
301 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J.
Reports 1996, para. 25.
302 BEUM, para. 5.133.

84

available to them, but improper for it to consider that defence. In Qatar’s view, such a confused
conception of judicial propriety shows only one thing: that Joint Appellants’ admissibility
argument is logically and legally unsound, and must therefore be rejected.

*

3.76 The present dispute relates to the interpretation and application of the IASTA. The Council
therefore has jurisdiction. In line with the Court’s prior jurisprudence, that is the end of the
debate. Qatar cannot be deprived of its right to have its claims heard by Joint Appellants’
unilateral assertions that the “real dispute” between the Parties concerns international
obligations falling outside the scope of the Agreement. Accordingly, the Council properly dismissed
Joint Appellants’ First Preliminary Objection, and the Court should do the same with respect to the
Second Ground of Appeal.

85

CHAPTER 4

THE COURT SHOULD DENY JOINT APPELLANTS’ THIRD GROUND OF APPEAL

4.1 Joint Appellants’ Second Preliminary Objection before the ICAO Council and Third Ground of
Appeal in these proceedings is that the Council incorrectly found that it had jurisdiction because:

1. Qatar allegedly did not comply with “the precondition of negotiation contained in Article II,
Section 2 of the IASTA”;303 and
2. Qatar allegedly did not comply with “the requirements of Article 2(g)”304 of the ICAO Rules for
the Settlement of Differences.
4.2 Joint Appellants base both claims on the assertion that Qatar “has failed to show that it in
fact made a genuine attempt, or indeed any attempt at all, to initiate negotiations about the
airspace restrictions … prior to submitting [its Application] to the ICAO Council”.305

4.3 This Chapter demonstrates that the ICAO Council did not err in upholding its jurisdiction
over Application B. The record shows that in spite of Joint Appellants’ total refusal to negotiate,
Qatar made many genuine attempts to do so with them with a view to resolving the dispute over the
aviation prohibitions.

303 BEUM, para. 6.1.
304 Ibid., para. 6.1. Article 2(g) provides: “Any Contracting State submitting a disagreement to
the Council for settlement (hereinafter referred to as “the applicant”) shall file an application
to which shall be attached a memorial containing: … (g) A statement that negotiations to settle the
disagreement had taken place between the parties but were not successful.” (ICAO Council, Rules for
the Settlement of Differences, Art. 2(g) (BEUM Vol. II, Annex 6)).
305 BEUM, para. 6.4.

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Indeed, the evidence in this respect is overwhelming, as is the evidence showing that Joint
Appellants rebuffed Qatar’s efforts at every turn by insisting on “non- negotiable” preconditions
(Section I).

4.4 Qatar’s Memorial to the ICAO Council also fully complied with Article 2(g) of the ICAO
Rules for the Settlement of Differences. And even assuming arguendo that it did not, any ostensible
noncompliance was later cured and is not appealable to the Court in any event (Section II).

I. The Council Properly Held that Qatar Satisfied the Negotiation
Requirement

A. THE LAW REQUIRES A GENUINE ATTEMPT TO NEGOTIATE WITH A VIEW TO RESOLVING THE DISPUTE

4.5 Article II, Section 2 of the IASTA provides in relevant part:

“If any disagreement between two or more contracting States relating to the interpretation or
application of this Agreement cannot be settled by negotiation, the provisions of Chapter XVIII of
the [Chicago] Convention shall be applicable in the same manner as provided therein with reference
to any disagreement relating to the interpretation or application of the [Chicago] Convention”.306

306 IASTA, Art. II(2) (BEUM Vol. II, Annex 2) (emphasis added). In particular, Article 84 provides
in relevant part:
“If any disagreement between two or more contracting States relating to the interpretation or
application of this Convention and its Annexes cannot be settled by negotiation, it shall, on the
application of any State concerned in the disagreement, be decided by the Council. No member of the
Council shall vote in the consideration by the Council of any dispute to which it is a party. Any
contracting State may, subject to Article 85,
87

4.6 The Court has explained the contents of negotiation requirements like that stated in Article
II, Section 2 on many occasions. In Georgia v. Russian Federation, the Court held that such
requirements call for “at the very least … a genuine attempt by one of the disputing parties to
engage in discussions with the other disputing party, with a view to resolving the dispute”.307 The
Court added that where “negotiations are attempted or have commenced … the precondition of
negotiation is met only when there has been a failure of negotiations, or when negotiations have
become futile or deadlocked”.308

4.7 Joint Appellants agree with this description of the requirement in Georgia
v. Russian Federation.309 They therefore also agree that Article II, Section 2 does not require
that negotiations have actually taken place. As the Court stated, the requirement may be satisfied
by a genuine attempt by one of the disputing parties

appeal from the decision of the Council to an ad hoc arbitral tribunal agreed upon with the other
parties to the dispute or to the Permanent Court of International Justice. Any such appeal shall be
notified to the Council within sixty days of receipt of notification of the decision of the
Council.”

Chicago Convention, Art. 84 (BEUM Vol. II, Annex 1).
307 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 157 (emphasis added).
308 Ibid., para. 159 (citing to Mavrommatis Palestine Concessions (Greece v. Great Britain),
Jurisdiction, Judgment, 1924, P.C.I.J. Series A, No. 2, p. 13; South West Africa (Ethiopia v. South
Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, pp. 345-
346; United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, para. 51; Applicability of the Obligation to Arbitrate under Section
21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports
1988, para. 55).
309 BEUM, paras. 6.28-6.29, 6.36.

88

to engage in discussions with the other with a view to resolving the dispute if that attempt fails
or becomes futile.310

4.8 A negotiation requirement can also be discharged, however, when a disputing party is
confronted with an “immediate and total refusal” to negotiate on the other side. Such a blanket
refusal plainly excludes any possibility for an amicable settlement. This was precisely the
situation in United States Diplomatic and Consular Staff in Tehran. In that case, the Court held
that the Iranian Government’s “refusal … to enter into any discussion on the matter” despite the
United States’ protests was sufficient to discharge the negotiation requirement under Article XXI,
paragraph 2 of the Treaty of Amity, Economic Relations and Consular Rights between the United
States and Iran.311 Indeed, the Court’s Judgment makes no mention of any attempts by the United
States to negotiate after its efforts to make its views known to Iran were rebuffed.312

310 “[W]hether negotiations ... have taken place, and whether they have failed or become futile or
deadlocked, are essentially questions of fact ‘for consideration in each case”. Georgia v. Russian
Federation, Preliminary Objections, Judgment, I.C.J. Reports 2011, para. 160 (quoting Mavrommatis
Palestine Concessions, Jurisdiction, Judgment, 1924 P.C.I.J. Series A, No. 2, p. 13).
311 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, para. 51. Article XXI, paragraph 2 reads: “Any dispute between the
High Contracting Parties as to the interpretation or application of the present Treaty, not
satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice,
unless the High Contracting Parties agree to settlement by some other pacific means.” Joint
Appellants do not differentiate between requirements to negotiate as found in Article II, Section 2
of the IASTA and requirements to seek a satisfactory adjustment of a dispute by diplomacy as found
in Article XXI, paragraph 2 of the Treaty of Amity between the United States and Iran. See BEUM,
para. 6.53(b). The Court also does not differentiate between the requirement in Article XXI,
paragraph 2 and other negotiation requirements found in treaties. See Georgia v. Russian
Federation, Preliminary Objections, Judgment, I.C.J. Reports 2011, para. 133.
312 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, para. 47; see also id., para. 48.

89

4.9 This result makes perfect sense. A contrary rule would allow one party to a dispute to
frustrate the other’s access to a dispute settlement mechanism conditioned on negotiations, merely
by refusing to engage with it.

4.10 In addition to making good practical sense, this result is also consistent with what is
expected of States when they negotiate. In the North Sea Continental Shelf cases, the Court
explained that

“parties are under an obligation to enter into negotiations with a view to arriving at an
agreement, and not merely to go through a formal process of negotiation as a sort of prior
condition for the automatic application of a certain method of delimitation in the absence of
agreement; they are under an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists upon its own position without
contemplating any modification of it …”.313
4.11 If a State refuses even to come to the negotiation table, still less with the open mind that
international law requires, there is obviously no chance for meaningful exchanges and no chance
that the dispute can be resolved by negotiation.

4.12 Joint Appellants ignore these basic points when recounting the contents of the negotiation
requirement in their Memorial.314

313 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands), Judgment, I.C.J. Reports
1969, para. 85(a) (emphasis added).
314 In their Memorial, Joint Appellants cite to United States Diplomatic and Consular Staff in
Tehran only once and for a rather minor point. See BEUM, para. 6.53(b), fn. 438.

90

4.13 Joint Appellants, however, emphasise the fact that the attempt to negotiate must be made “with
a view to resolving the dispute”.315 But they inappropriately try to reframe this requirement in
more stringent terms. They assert that

“the negotiations, or the attempt to initiate negotiations, must directly concern the disagreement
between the two States submitted for adjudication and must have particularly addressed (or at least
have sought to address) the specific question of interpretation or application of the treaty that
gives rise to the dispute between the parties”.316
4.14 This is not what the Court held in Georgia v. Russian Federation. There, the Court stated
that for the negotiation requirement to be satisfied,

“it is not necessary that a State must expressly refer to a specific treaty in its exchanges with
the other State to enable it later to invoke that instrument before the Court …. [T]he exchanges
must refer to the subject-matter of the treaty with sufficient clarity to enable the State against
which a claim is made to identify that there is, or may be, a dispute with regard to that
subject-matter”.317
4.15 Joint Appellants are therefore wrong when they claim that the party attempting to negotiate
must have sought to address “the specific question of interpretation or application of the treaty
that gives rise to the dispute between the parties”.318 Rather, international law requires only
that the “subject-matter” of the

315 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 157; see BEUM, para. 6.27.
316 BEUM, para. 6.31 (emphasis added).
317 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 30 (emphasis added).
318 BEUM, para. 6.31 (emphasis added).

91

treaty giving rise to the dispute be addressed with “sufficient clarity” to enable the other
disputing party to conclude that “there is, or may be, a dispute with regard to that
subject-matter”.319

4.16 Finally, the Court has made clear that what constitutes “negotiation” should be assessed with
flexibility. In Mavrommatis Palestine Concessions, the Court’s predecessor held:

“Negotiations do not of necessity always presuppose a more or less lengthy series of notes and
despatches; it may suffice that a discussion should have been commenced, and this discussion may
have been very short; this will be the case if a deadlock is reached, or if finally a point is
reached at which one of the Parties definitely declares himself unable, or refuses, to give way,
and there can be therefore no doubt that the dispute cannot be settled by diplomatic
negotiation”.320
4.17 Similarly, no specific format or procedure is required. In the South West Africa cases, the
Court ruled that “collective negotiations” in the context of an international organisation should
not be distinguished from “direct negotiations” between the disputing parties, observing that “it
is not so much the form of negotiation that matters as the attitude and views of the Parties on the
substantive

319 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 30.
320 Mavrommatis Palestine Concessions (Greece v. Great Britain), Jurisdiction, Judgment, 1924,
P.C.I.J. Series A, No. 2, p. 13 (emphasis omitted). The Court continued: “But it is equally true
that if the diplomatic negotiations between the Governments commence at a point where the previous
discussions left off, it may well happen that the nature of the latter was such as to render
superfluous renewed discussion of the opposing contentions in which the dispute originated. No
general and absolute rule can be laid down in this respect. It is a matter for consideration in
each case.” Ibid.

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issues of the question involved”.321 Indeed, “diplomacy by conference or parliamentary diplomacy
has come to be recognized … as one of the established modes of international negotiations”.322

4.18 The Court reaffirmed this finding in Georgia v. Russian Federation, in which it stated that
“the Court has come to accept less formalism in what can be considered negotiations”.323

4.19 Judge Buergenthal echoed these points in his book on ICAO, writing as early as 1969 that

“The requirement of prior negotiations does not necessarily demand that the parties engage in
direct negotiations. It could undoubtedly also be satisfied by negotiations carried on in a
parliamentary or conference forum, provided both parties to the dispute participated therein on
opposite sides. The dispute between the United States and Czechoslovakia over the launching of
balloons demonstrates how, within the ICAO framework, parliamentary diplomacy can take the place of
direct negotiations”.324
4.20 In sum, Joint Appellants’ description of Article II, Section 2’s negotiation requirement in
the Memorial is incomplete—and, in certain critical respects,

321 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment, I.C.J. Reports 1962, pp. 345-346 (emphasis added).
322 Ibid., p. 346.
323 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 160.
324 Thomas Buergenthal, Law-making in the International Civil Aviation Organization (1969), p. 131
(BEUM Vol. VI, Annex 125) (emphasis added).

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wrong. They acknowledge that Article II, Section 2 does not require that negotiations have actually
taken place as long as there has been a genuine attempt to negotiate.325 They fail, however, to
acknowledge that a disputing party is not required to even attempt to negotiate when faced with the
other party’s “immediate and total refusal” to enter into any discussion on the matter. Finally,
Joint Appellants acknowledge that the attempt to negotiate must be made “with a view to resolving
the dispute”, but they improperly seek to impose stringent requirements that the Court has
specifically rejected when they allege that the attempt “must have particularly addressed … the
specific question of interpretation or application of the treaty that gives rise to the dispute
between the parties”.326

4.21 Qatar will demonstrate below that the negotiation requirement in Article II, Section 2 has
plainly been met in this case.

B. QATAR GENUINELY ATTEMPTED TO NEGOTIATE WITH A VIEW TO RESOLVING THE DISPUTE

4.22 Qatar submitted its Application to the ICAO Council on 30 October 2017.327 The disagreement
over the aviation prohibitions arose 147 days earlier, on 5 June 2017. As the record placed before
the Council shows, Qatar tried repeatedly during this interval to engage Joint Appellants in
negotiations through multiple avenues and in multiple fora, including through direct means (Section
I.B.1), ICAO (Section I.B.2), the World Trade Organization (“WTO”) (Section I.B.3) and the
facilitation of other States (Section I.B.4). Joint Appellants frustrated those

325 See BEUM, paras. 6.28-6.29, 6.36.
326 Ibid., paras. 6.28, 6.31.
327 ICAO Application (B) (BEUM Vol. III, Annex 23).

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efforts at every turn. At all times, they conditioned resolving the aviation dispute to Qatar’s
capitulation to their wider demands.

4.23 In these circumstances, there can be no question that the Article II, Section
2 negotiation requirement was satisfied and the ICAO Council correctly determined that it had
jurisdiction.

4.24 Before turning to those circumstances, however, it is important to dispel Joint Appellants’
argument based not on the facts of the case but on a patently incorrect characterisation of Qatar’s
Article 2(g) statement in its Memorial to the ICAO Council, which reads as follows:

“The Respondents did not permit any opportunity to negotiate the aviation aspects of their hostile
actions against the State of Qatar. They repeatedly gave an ultimatum to the State of Qatar on
matters unrelated to air navigation and air transport. The last contact with the Respondents was a
conference call with officials of the Respondents on 5 and 6 June 2017 that did not result in any
understanding. In fact, the crisis gradually escalated when the Respondents declared all Qatar’s
citizens and resident ‘undesirable’ (persona non grata) in their territories and ordered them to
leave the Respondents’ territories within 14 days. The severance of diplomatic relations makes
further negotiating efforts futile”.328
4.25 Joint Appellants claim that this statement constitutes “a clear and candid admission by Qatar
that it failed to make any attempt prior to the filing of its Application to engage in
negotiations with the Appellants in relation to the

328 ICAO Memorial (B), Section (g) (BEUM Vol. III, Annex 23) (emphasis added).

95

disagreement” and is thus an “implicit[] admi[ssion] that [Qatar] did not comply with the
jurisdictional precondition of negotiations under Article II, Section 2 of the IASTA”.329

4.26 Joint Appellants ironically base their argument on the first sentence of the statement:
“Respondents did not permit any opportunity to negotiate the aviation aspects of their hostile
actions …”.330 This is ironic because this fact, if true,331 would necessarily mean that the
negotiation requirement has been met.332 Moreover, the statement refers solely to Joint Appellants’
conduct and cannot be taken to mean that Qatar did not make any attempt to negotiate. All the more
so, given that at the end of its Article 2(g) statement, Qatar unequivocally states that “[t]he
severance of diplomatic relations makes further negotiating efforts futile”.333 If anything,
Qatar’s Article 2(g) statement was therefore “a clear and candid admission” that it had in fact
genuinely attempted to negotiate.

4.27 In light of the above, Joint Appellants’ claim that there is an inconsistency between Qatar’s
Memorial and Response to the Preliminary Objections before the

329 BEUM, para. 6.45; see also ibid., para. 6.59.
330ICAO Memorial (B), Section (g) (BEUM Vol. III, Annex 23); BEUM, para. 6.46.
331 Qatar obviously does not dispute that “[t]he policy rationales underlying the precondition of
negotiations in Article II, Section 2 of the IASTA would be frustrated if an Applicant were
permitted to unilaterally declare that negotiations would be futile before even attempting to
initiate them. If it were otherwise, the precondition of negotiation would easily be circumvented”.
(BEUM, para. 6.48). But the same policy rationales would equally be frustrated if a Respondent were
permitted to escape jurisdiction by declaring that their actions are non-negotiable only to later
insist that the Applicant should nevertheless have sought to negotiate with it.
332 See United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, paras. 47-48, 51-2.
333 ICAO Memorial (B), Section (g) (BEUM Vol. III, Annex 23) (emphasis added).

96

ICAO Council334 is without merit. As demonstrated below, Qatar made multiple genuine attempts to
negotiate with a view to resolving the dispute notwithstanding Joint Appellants’ refusal to engage
with it.

1. Qatar unsuccessfully tried to settle the dispute through direct means

4.28 The aviation prohibitions were not the only measure Joint Appellants took against Qatar on 5
June 2017. That same day, also without prior warning, they severed all diplomatic and consular
relations with Qatar, expelled Qatar’s diplomats from their territories, closed their embassies and
consulates in Doha and withdrew their own diplomats from Qatar.335

4.29 Joint Appellants argue that the “absence of diplomatic relations does not constitute an
obstacle to the ability of a State to attempt to initiate negotiations”,336

334 See BEUM, paras. 6.40, 6.59.
335 ICAO Preliminary Objections (B), Exhibit 6, Declaration of the Arab Republic of Egypt (16 Nov.
2014) (BEUM Vol. III, Annex 24); ICAO Preliminary Objections (B), Exhibit 7, Declaration of the
Kingdom of Bahrain (5 June 2017) (BEUM Vol. III, Annex 24); ICAO Preliminary Objections (B),
Exhibit 9, Declaration of the United Arab Emirates (5 June 2017) (BEUM Vol. III, Annex 24).
336 BEUM, para. 6.53(b). Joint Appellants seek to establish this proposition by reference to the
Court’s jurisprudence, but Qatar fails to see how that jurisprudence supports it. In both United
States Diplomatic and Consular Staff in Tehran and Oil Platforms, the Court had no difficulty
concluding that the negotiation requirement in Article XXI, paragraph 2 of the Treaty of Amity,
Economic Relations and Consular Rights between the United States and Iran was fulfilled. In the
former case, and as explained above, the Court reached that conclusion on the basis of the Iranian
Government’s “immediate and total refusal” to negotiate. See United States Diplomatic and Consular
Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, paras. 47-48,
51-52. In the latter, with respect to Iran’s claims under the Treaty, the United States did not
even challenge the jurisdiction of the Court on the basis that the negotiation requirement had not
been satisfied. Oil Platforms (Iran v. United States of America), Preliminary Objection, Judgment,
I.C.J. Reports 1996, para. 16. This suggests a recognition on the part of the United States of the
opposite conclusion from that drawn by Joint Appellants; namely, the absence of diplomatic
relations is an obstacle to the ability of a State to attempt to initiate negotiations. With
respect to the United States’ counter- claims under the Treaty, the Court similarly held that the
negotiation requirement had been satisfied without referring to any specific negotiations between
the parties. Oil Platforms (Iran v. United
97

but this ignores the reality of inter-State dialogue and communication. At the very least, the
absence of diplomatic channels between Qatar and Joint Appellants made it much more difficult for
Qatar even to attempt to negotiate. But the severance of relations also conveyed a message: Joint
Appellants had no interest in talking, let alone negotiating, with Qatar.

4.30 That message soon became explicit. Just two days after the imposition of the aviation
prohibitions, the Minister of State for Foreign Affairs of the UAE stated that there was “nothing
to negotiate” with Qatar.337 Then on 22 June 2017, Joint Appellants, together with Saudi Arabia,
issued the so-called 13 Demands.338 These included demands that Qatar “[s]cale down diplomatic ties
with Iran”; “shut down Al Jazeera and its affiliate stations”; “halt military cooperation with
Turkey inside of Qatar”; and “align [its] military, political, social and economic policies with
the other Gulf and Arab countries”.339 Qatar was also instructed to “[a]gree to all the demands
within 10 days”, and “[c]onsent to monthly compliance audits in

States of America), Merits, Judgment, I.C.J. Reports 2003, para. 107. This further suggests that
the absence of diplomatic relations may constitute an obstacle to negotiations. Joint Appellants’
reliance on Article 63 of the Vienna Convention on the Law of Treaties, providing that “[t]he
severance of diplomatic or consular relations between parties to a treaty does not affect the legal
relations established between them by treaty”, does not detract from this observation. BEUM, para.
6.53(b). While this may be true in terms of the continued legal bindingness of the treaty
provisions in question, which after all is the subject of Article 63, it says nothing as to whether
the relations established between the parties under that treaty may be affected as a matter of
fact.
337 Jon Gambrell, “Emirati diplomat to AP: ‘Nothing to negotiate’ with Qatar”, Associated Press (7
June 2017) (QCM (B) Vol. IV, Annex 72).
338 ICAO Response to the Preliminary Objections (B), Exhibit 27, State of Qatar Announces Receipt
of Paper Containing Demands from Siege Countries, Egypt (BEUM Vol. IV, Annex 25); ICAO Response to
the Preliminary Objections (B), Exhibit 28, List of demands by Saudi Arabia, other Arab nations
(BEUM Vol. IV, Annex 25).
339 ICAO Response to the Preliminary Objections (B), Exhibit 28, List of demands by Saudi Arabia,
other Arab nations (BEUM Vol. IV, Annex 25).

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the first year after agreeing to the demands, followed by quarterly audits in the second year, and
annual audits in the following 10 years”.340

4.31 Qatar considered Joint Appellants’ demands to be patently unreasonable.341 It was not alone.
The Secretary of State of the United States publicly stated that Joint Appellants’ demands were
“difficult to meet”.342 The United Kingdom’s Foreign Secretary similarly suggested that the demands
were not “realistic”.343 And the German Foreign Ministry characterised the 13 Demands as “very
provocative”.344

4.32 On 27 June 2017, the Minister of Foreign Affairs of Saudi Arabia confirmed that the 13
Demands were “non-negotiable”.345 Although Saudi Arabia is not a party to these proceedings, the
Foreign Minister was speaking on behalf of

340 ICAO Response to the Preliminary Objections (B), Exhibit 28, List of demands by Saudi Arabia,
other Arab nations (BEUM Vol. IV, Annex 25). On or about 19 July 2017, Appellants supplemented the
13 Demands with 6 Principles, focusing on compliance with the 2014 Riyadh Agreement and outcomes of
the 2017 Riyadh Summit, addressing extremism and refraining from acts of provocation and
interference in the affairs of other States. See “Arab countries’ six principles for Qatar ‘a
measure to restart the negotiation process’”, The National (19 July 2017) (QCM (B) Vol. IV, Annex
85); ICAO Response to the Preliminary Objections (B), Exhibit 57, Foreign Ministers of Saudi
Arabia, Bahrain, UAE and Egypt: Measures taken against Qatar are sovereign, and we all are
negatively impacted when terrorism and extremism become stronger (30 July 2017) (BEUM Vol. IV,
Annex 25).
341 ICAO Response to the Preliminary Objections (B), Exhibit 38, Qatari, German Foreign Ministers:
Dialogue Only Option to Resolve Crisis (4 July 2017), p. 3 (BEUM Vol. IV, Annex 25).
342 ICAO Response to the Preliminary Objections (B), Exhibit 29, Qatar demands difficult to meet,
says US (25 June 2017) (BEUM Vol. IV, Annex 25).
343 Ibid.
344 “Saudi demands from Qatar 'very provocative': Germany”, Reuters (26 June 2017) (QCM (B) Vol.
IV, Annex 80).
345 ICAO Response to the Preliminary Objections (B), Exhibit 33, Qatar condemns Saudi refusal to
negotiate over demands (28 June 2017) (BEUM Vol. IV, Annex 25).

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both Saudi Arabia and Joint Appellants (as his use of the term “we” below makes clear). He added:

“It’s very simple. We made our point. We took our steps and it’s up to the Qataris to amend their
behaviour. Once they do, things will be worked out. But if they don’t, they will remain isolated. …
If Qatar wants to come back into the [Gulf Cooperation Council] pool, they know what they have to
do”.346
4.33 The same day, the UAE’s Ambassador to the Russian Federation confirmed what would happen if
Qatar did not capitulate to the 13 Demands within the ten days they gave it: “[W]e’d no longer be
interested in bringing Qatar back into the Gulf and the Arab fold”.347

4.34 And as if there was any lingering doubt over the character of Joint Appellants’ demands of
Qatar, the following day, 28 June 2017, the Minister of Foreign Affairs of Saudi Arabia, again
speaking on behalf of both Saudi Arabia and Joint Appellants, reiterated: “Our demands on Qatar are
non-negotiable”.348

4.35 It is unclear to Qatar how Joint Appellants can in good faith take the view that Qatar failed
to discharge its obligation to negotiate when they themselves, after severing diplomatic relations,
took the view that there was “nothing to negotiate” unless Qatar adhered to their demands, which
themselves were “non-negotiable”.

346 ICAO Response to the Preliminary Objections (B), Exhibit 33, Qatar condemns Saudi refusal to
negotiate over demands (28 June 2017) (BEUM Vol. IV, Annex 25).
347 ICAO Response to the Preliminary Objections (B), Exhibit 30, Qatar facing indefinite isolation,
UAE says (27 June 2017) (BEUM Vol. IV, Annex 25).
348 Naser Al Wasmi, “UAE and Saudi put pressure on Qatar ahead of demands deadline”, The National
(28 June 2017) (QCM (B) Vol. IV, Annex 81) (emphasis added).

100

4.36 As stated, the Court has made clear that a disputing party’s “immediate and total refusal” to
negotiate, without more, dispenses with the need to examine the other party’s attempts to
negotiate.349 The Court has also suggested that when a disputing party “insists upon its own
position without contemplating any modification of it”, it is not complying with its obligation to
conduct itself so that the negotiations are “meaningful”.350

4.37 In this case, Joint Appellants have not only refused to negotiate, but have also expressly
conditioned any negotiation on acceptance of demands that themselves are non-negotiable. A
fortiori, the negotiation requirement is satisfied even without examining the details of Qatar’s
specific attempts to negotiate.

4.38 That said, the record shows that in spite of Joint Appellants’ severance of all diplomatic
channels of communication and their refusal to negotiate absent Qatar’s capitulation to their
demands, Qatar repeatedly and publicly asserted its openness to dialogue and negotiation, including
over the question of the aviation prohibitions.351 For example, on 11 September 2017,
Qatar’s Deputy Prime

349 See United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, para. 52.
350 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands), Judgment, I.C.J. Reports
1969, para. 85(a).
351 ICAO Response to the Preliminary Objections (B), Exhibits 15-17, 19-20, 22-25, 31, 33-39, 41,
43, 47-56, 58-62, 65-71, 73 (BEUM Vol. IV, Annex 25). Joint Appellants seek to discount Qatar’s
evidence postdating the date of filing of Qatar’s Application (30 October 2017), arguing that
“compliance with any preconditions for jurisdiction must be fulfilled as at the date of seisin”.
BEUM, paras. 6.75, 6.90-6.92. Although Qatar satisfied the negotiation requirement as of the date
of the submission of the dispute to the Council, Qatar does not concede that the negotiation
requirement must be satisfied as of that date. Qatar maintains that, although the Court generally
considers issues of jurisdiction and admissibility as of the date of the Application, this is not
an iron-clad rule. In Mavrommatis Palestine Concessions, the Court’s predecessor held that
“[e]ven
…if the application were premature because the Treaty of Lausanne had not yet been ratified, this
circumstance would now be covered by the subsequent deposit of the necessary ratifications”, noting
that “[t]he Court, whose jurisdiction is international, is not bound to attach to matters of form
101

Minister and Minister of Foreign Affairs stated before the UN Human Rights Council that Qatar was
ready to enter dialogue to end the Gulf crisis.352 Then, on 19 September 2017, His Highness the
Amir of Qatar spoke before the UN General Assembly, saying:

“[W]e have taken an open attitude towards dialogue without dictation, and have expressed our
readiness to resolve differences through compromises based on common undertakings. Resolving
conflicts by peaceful means is actually one of the priorities of our foreign policy. From here, I
renew the call for an unconditional dialogue based on mutual respect for sovereignty …”.353

the same degree of importance which they might possess in municipal law”. Mavrommatis Palestine
Concessions (Greece v. Great Britain), Jurisdiction, Judgment, 1924, P.C.I.J. Series A, No. 2,
p.
34. Much more recently, in Croatia v. Serbia, the Court held that the relevant date was that of the
decision on jurisdiction, not that of the filing of the Application because “it is not in the
interests of the sound administration of justice to compel the applicant to begin the proceedings
anew”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia
v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, para. 85. This logic is equally
applicable here given Joint Appellants’ intransigence. In any event, the Court has accepted that
“conduct subsequent to the application … may be relevant for various purposes”, in particular to
“confirm the existence of a dispute”. Obligations concerning Negotiations relating to Cessation of
the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary
Objections, Judgment, I.C.J. Reports 2016, para. 43. There is no reason why it should be otherwise
in the case of other requirements found in a jurisdictional clause. It follows that, at the very
least, Qatar’s evidence postdating 30 October 2017 may serve to confirm the futility of
negotiations already evident at that time.
352 Permanent Mission of the State of Qatar to the United Nations Office in Geneva, Switzerland, HE
the Foreign Minister delivers a statement before the 36th Session of the Human Rights Council (11
Sept. 2017) (QCM (B) Vol. III, Annex 54).
353 UN General Assembly, 72nd Session, General Debate, Address by His Highness Sheikh Tamim bin
Hamad Al-Thani, Amir of the State of Qatar (19 Sept. 2017), p. 4 (QCM (B) Vol. III, Annex 55).

102

4.39 Although Joint Appellants could have exercised their right to reply to Qatar’s address (as
Qatar did with respect to the UAE’s and Bahrain’s addresses354), they all remained silent after His
Highness the Amir of Qatar spoke.

4.40 Joint Appellants sweepingly dismiss these and other expressions of openness as a mere
“tactic”, accusing Qatar of “tak[ing] no concrete steps actually to attempt to initiate
negotiations”.355 It lies ill in the mouth of Joint Appellants to accuse Qatar of “tactics” when
they themselves first refused, and then conditioned any negotiation on prior acceptance of demands
that third States characterised as unrealistic356 and provocative.357

4.41 Joint Appellants further dismiss Qatar’s attempts to negotiate because they “were not
addressed to [them], but instead they were either addressed to third parties and subsequently
reported in the media or constitute press releases issued by Qatar to the world at large”.358 As
the Court has stressed, however, “it is not so much the form of negotiation that matters as the
attitude and views of the Parties

354 See UN General Assembly, 72nd Session, General Debate, Statement by His Highness Sheikh
Abdullah Bin Zayed Al Nahyan, Minister of Foreign Affairs and International Cooperation of the
United Arab Emirates (22 Sept. 2017) (QCM (B) Vol. III, Annex 57); UN General Assembly, 72nd
Session, General Debate, H.E. Mr. Shaikh Khalid Bin Ahmed Bin Mohamed Al Khalifa, Minister for
Foreign Affairs of Bahrain (22 Sept. 2017) (QCM (B) Vol. III, Annex 58). Qatar also exercised its
right to reply to Saudi Arabia’s address. See UN General Assembly, 72nd Session, General Debate,
H.E. Mr. Adel Ahmed Al-Jubeir, Minister of Foreign Affairs of Saudi Arabia, Summary of Statement
(23 Sept. 2017) (QCM (B) Vol. III, Annex 59).
355 BEUM, para. 6.61.
356 ICAO Response to the Preliminary Objections (B), Exhibit 29, Qatar demands difficult to meet,
says US (25 June 2017) (BEUM Vol. IV, Annex 25); “Qatar given 10 days to meet 13 sweeping demands
by Saudi Arabia”, The Guardian (23 June 2017) (QCM (B) Vol. IV, Annex 79).
357 “Saudi demands from Qatar 'very provocative': Germany”, Reuters (26 June 2017) (QCM (B) Vol.
IV, Annex 80).
358 BEUM, para. 6.76.

103

on the substantive issues of the question involved”.359 And Qatar’s attitude and views were clear:
it remained open to “unconditional dialogue”.360 Joint Appellants’ position was equally clear:
there was “nothing to negotiate” with Qatar.361

4.42 Indeed, the leaders of Joint Appellants never agreed to engage with Qatar directly or
indirectly. Qatar did, however, have a very brief telephone conversation with the Crown Prince of
Saudi Arabia, which has been acting in concert with Joint Appellants every step of the way since 5
June 2017. On 8 September 2017, with the facilitation of the President of the United States, His
Highness the Amir of Qatar called the Crown Prince of Saudi Arabia by telephone. As reported by the
official news agency of Saudi Arabia, the Saudi Press Agency, during this conversation, “the Emir
of Qatar expressed his desire to sit at the dialogue table and discuss the demands of the four
countries”.362 According to Qatar News Agency (“QNA”), His Highness the Amir also welcomed a
proposal made by the Saudi Crown Prince “to assign two envoys to settle [the] issues in
dispute”,363 which of course include the aviation prohibitions. Immediately after the call,
however, Saudi Arabia reversed course and announced the “suspension of any dialogue or
communication with the

359 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment, I.C.J. Reports 1962, p. 346 (emphasis added); see also Georgia v. Russian Federation,
Preliminary Objections, Judgment, I.C.J. Reports 2011, para. 160 (“[T]he Court has come to accept
less formalism in what can be considered negotiations …”).
360 UN General Assembly, 72nd Session, General Debate, Address by His Highness Sheikh Tamim bin
Hamad Al-Thani, Amir of the State of Qatar (19 Sept. 2017), p. 4 (QCM (B) Vol. III, Annex 55).
361 Jon Gambrell, “Emirati diplomat to AP: ‘Nothing to negotiate’ with Qatar”, Associated Press (7
June 2017) (QCM (B) Vol. IV, Annex 72).
362 “Saudi Arabia suspends dialogue, saying Qatar ‘distorting facts’”, The Guardian (8 Sept. 2017)
(QCM (B) Vol. IV, Annex 89) (emphasis added).
363 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept.
2017) (QCM (B) Vol. IV, Annex 90).

104

authority in Qatar”.364 It did this only because QNA failed to report that it was Qatar that had
initiated the call.365 The prospects of negotiation returned to zero, despite His Highness the Amir
of Qatar’s genuine attempt to negotiate.

4.43 Joint Appellants’ Memorial has difficulty characterising this call as something other than a
genuine attempt to negotiate. They make four rather defensive arguments, none of which have any
merit.

4.44 First, Joint Appellants argue that “the evidence of the content of the supposed conversation
is unreliable”, and criticise Qatar for “rel[ying] only on press reports” and not providing “a
transcript or contemporaneous note or an official statement from Qatar”.366 However, one of the
press reports on which Qatar relies originates from Saudi Arabia’s official news agency, which
expressly relays that “the Emir of Qatar expressed his desire to sit at the dialogue table and
discuss the demands of the four countries”.367 While there is some inconsistency in the press
accounts about whether the Saudi Crown Prince proposed the two envoys, all of the press accounts,
including those from Saudi Arabia and the UAE,368 agree on the general content of the conversation.

364 “Saudi Arabia suspends dialogue, saying Qatar ‘distorting facts’”, The Guardian (8 Sept. 2017)
(QCM (B) Vol. IV, Annex 89) (emphasis added).
365 “Qatar crisis: Saudi Arabia angered after emir's phone call”, BBC News (9 Sept. 2017) (QCM
(B) Vol. IV, Annex 91).
366 BEUM, para. 6.78.
367 “Saudi Arabia suspends dialogue, saying Qatar ‘distorting facts’”, The Guardian (8 Sept. 2017)
(QCM (B) Vol. IV, Annex 89).
368 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept.
2017) (QCM (B) Vol. IV, Annex 90); “Saudi Arabia suspends dialogue, saying Qatar ‘distorting
facts’”, The Guardian (8 Sept. 2017) (QCM (B) Vol. IV, Annex 89).

105

4.45 Second, Joint Appellants argue that “Qatar did not itself claim that it offered to negotiate
in the phone call”.369 Again, Qatar relies on the consensus description of the call in press
reports, as described above, which leaves no doubt that the call constituted a genuine attempt by
His Highness the Amir of Qatar to negotiate the dispute, including the aviation prohibitions, among
other things. In fact, a report from Gulf News, a news agency operating out of Dubai, UAE, records
a statement by a Saudi Foreign Ministry official stating that “[t]he call was at the request of
Qatar and was a request for dialogue with the four countries on the demands …”.370

4.46 Third, Joint Appellants argue that this phone conversation was only with Saudi Arabia, not
Joint Appellants.371 That, of course, is true. However, according to the account of the call by the
Saudi official news agency itself, His Highness the Amir “expressed his desire to sit at the
dialogue table and discuss the demands of the four countries to ensure the interests of all parties
…”.372 Given that in all their actions since June 2017, including with respect to the aviation
prohibitions, Saudi Arabia and Joint Appellants have acted jointly and in concert—and continue to
do so before the Court—it would be excessively formalistic to discount the call just because the
leaders of Joint Appellants were not on the line. Indeed, the account of the call by the Saudi
official news agency makes reference to “details … to be announced later after Saudi Arabia
concludes an understanding with Bahrain, the

369 BEUM, para. 6.79.
370 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept.
2017) (QCM (B) Vol. IV, Annex 90) (emphasis added).
371 BEUM, para. 6.82.
372 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept.
2017) (QCM (B) Vol. IV, Annex 90) (emphasis added).

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United Arab Emirates and Egypt”,373 which again demonstrates the degree of coordination between
Saudi Arabia and Joint Appellants.

4.47 Fourth, Joint Appellants argue that the telephone conversation did not concern “compliance
with relevant international obligations in the field of civil aviation”.374 Relatedly, they add
that:
“such a discussion as to the need for dialogue, couched in the most general terms, and in the
context of a far-wider dispute between the Parties, self- evidently does not constitute either
negotiations in relation to the interpretation or application of the IASTA or an attempt to
initiate negotiations in that regard”.375
4.48 As explained above, however, the negotiation requirement is satisfied as long as there is a
genuine attempt to negotiate “with a view to resolving the dispute”. All the press reports agree
that His Highness the Amir of Qatar “expressed his desire to sit at the dialogue table and discuss
the demands of the four countries”,376 which were raised in the context of measures which included
the aviation prohibitions. The same sources also say that His Highness the Amir

373 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept.
2017) (QCM (B) Vol. IV, Annex 90).
374 BEUM, para. 6.80.
375 Ibid., para. 6.81.
376 “Saudi Arabia suspends dialogue, saying Qatar ‘distorting facts’”, The Guardian (8 Sept. 2017)
(QCM (B) Vol. IV, Annex 89).

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and the Crown Prince were favourably predisposed to “assign[ing] two envoys to settle issues in
dispute”,377 one of which is the aviation prohibitions.

4.49 The fact that the “issues in dispute” include matters beyond just the aviation prohibitions
does not mean that the call should be discounted as a genuine attempt to negotiate an amicable
resolution of the Parties’ dispute under the IASTA. Nor can it be denied that the resolution of
those broader issues could also bring about the resolution of the aviation prohibitions.378 As
explained above, Joint Appellants’ view of the subject-matter of negotiations is excessively
formalistic and unsupported by the Court’s jurisprudence.379

377 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9 Sept.
2017) (QCM (B) Vol. IV, Annex 90).
378 This does not mean that the dispute under the IASTA is somehow subsumed under the broader
dispute between the Parties, nor does it mean that the “real issue” of the dispute lies outside of
the IASTA, as Joint Appellants allege at BEUM, para. 6.89. Qatar recalls the Court’s statement in
United States Diplomatic and Consular Staff in Tehran to the effect that
“legal disputes between sovereign States by their very nature are likely to occur in political
contexts, and often form only one element in a wider and long-standing political dispute between
the States concerned. Yet never has the view been put forward before that, because a legal dispute
submitted to the Court is only one aspect of a political dispute, the Court should decline to
resolve for the parties the legal questions at issue between them. Nor can any basis for such a
view of the Court’s functions or jurisdiction be found in the Charter or the Statute of the Court;
if the Court were, contrary to its settled jurisprudence, to adopt such a view, it would impose a
far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of
international disputes.”

United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment,
I.C.J. Reports 1980, para. 37 (emphasis added).
379 See supra, paras. 4.13-4.15.

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4.50 In any event, it is not true that Qatar’s attempts “did not deal with the specific
subject-matter of Qatar’s claims” under the IASTA.380 On 28 June 2017, the BBC reported that His
Excellency the Foreign Minister of Qatar “condemned its Gulf neighbours for refusing to negotiate
over their demands for restoring air, sea and land links”.381 “Air links” is an obvious reference
to the aviation prohibitions.
4.51 On 5 July 2017, His Excellency the Foreign Minister of Qatar stated: “The answer to our
disagreements is not blockades
and ultimatums. It is dialogue and reason. We in Qatar are always open to both, and we welcome any
serious efforts to resolve our differences with our neighbours … And we always welcome dialogue and
negotiations. … Qatar continues to call for dialogue … Qatar stands ready to engage in a
negotiations process with a clear framework and set of principles that guarantee that our
sovereignty is not infringed upon”.382
4.52 Although His Excellency the Foreign Minister did not expressly refer to the aviation
prohibitions in his speech, he repeatedly referred to the “blockade” and also referred to
“extraordinary, unprovoked and hostile actions against Qatar”.383 Such actions no doubt encompassed
the aviation prohibitions, among other measures.

380 BEUM, para. 6.83.
381 ICAO Response to the Preliminary Objections (B), Exhibit 33, Qatar condemns Saudi refusal to
negotiate over demands (28 June 2017) (BEUM Vol. IV, Annex 25) (emphasis added).
382 ICAO Response to the Preliminary Objections (B), Exhibit 39, Foreign Minister: Any Threat to
Region is Threat to Qatar (5 July 2017) (BEUM Vol. IV, Annex 25).
383 Ibid.

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4.53 On 22 July 2017, His Highness the Amir of Qatar delivered his first public address following
the imposition of the aviation prohibitions and other measures on 5 June 2017. He expressly stated
that Qatar is “ready for dialogue and for reaching settlements on all contentious issues in this
context”.384 The “contentious issues” included, of course, the aviation prohibitions, which His
Highness the Amir also specifically mentioned during his speech.385

4.54 Despite Qatar’s calls for negotiation, on 30 July 2017, Joint Appellants’ Foreign Ministers
reiterated their inflexibility. At a joint press conference with his counter-parts from Joint
Appellants, the Minister of Foreign Affairs of Saudi Arabia stated that “there is no negotiation
over the 13 demands”.386 Importantly, the Minister added that “we made a decision not to allow our
airspace or borders to be used and this is our sovereign right”.387 There is thus no doubt that the
subject- matter concerning which there could be “no negotiation” included, among other things, the
aviation prohibitions.

4.55 In conclusion, Qatar tried repeatedly to engage with Joint Appellants to settle the dispute
before it instituted proceedings before the ICAO Council on 30 October 2017. All of its efforts
were rebuffed, and even now there is no indication

384 “Emir speech in full text: Qatar ready for dialogue but won’t compromise on sovereignty”, The
Peninsula (22 July 2017), p. 7 (QCM (B) Vol. IV, Annex 86).
385 Ibid., p. 7 (“I also thank all those who opened their airspace and territorial waters when our
brothers closed theirs.”). See also ICAO Response to the Preliminary Objections (B), Exhibit 69,
Minister of State for Foreign Affairs Confirms Illegality of the Siege Imposed on Qatar (26 Sept.
2017) (BEUM Vol. IV, Annex 25).
386 ICAO Response to the Preliminary Objections (B), Exhibit 57, Foreign Ministers of Saudi Arabia,
Bahrain, UAE and Egypt: Measures taken against Qatar are sovereign, and we all are negatively
impacted when terrorism and extremism become stronger (30 July 2017) (BEUM Vol. IV, Annex 25).
387 Ibid.

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that this is going to change unless Qatar capitulates to Joint Appellants’ demands. On 27 May 2018,
Bahrain’s Foreign Minister stated that the circumstances did not indicate “any glimmer of hope” for
a solution.388 And as recently as 26 September 2018, the Saudi Minister of Foreign Affairs warned,
on behalf of Saudi Arabia and Joint Appellants, that “if [Qatar] [does not change] we’re patient
people. We’ll wait for ten, fifteen, twenty years, fifty years. … We have no issue”.389

4.56 The present situation is thus reminiscent of United States Diplomatic and Consular Staff in
Tehran. Just like Iran, Joint Appellants refused to enter into any discussions on any issue,
including on the aviation prohibitions. This can be seen in, among other things, their closure of
all diplomatic channels of communication, and their political leaders’ repeated statements that
they were unwilling to negotiate. The conclusion is therefore inescapable: just as in United States
Diplomatic and Consular Staff in Tehran, the negotiation requirement was satisfied.

2. Qatar unsuccessfully tried to settle the dispute through ICAO

4.57 Qatar also sought to engage Joint Appellants through ICAO’s institutional framework. The
record shows that Joint Appellants excluded the aviation prohibitions from the Council’s discussion
of Qatar’s request under Article 54(n)

388 “Bahrain sees ‘no glimmer of hope’ for ending Qatar crisis soon”, Reuters (27 May 2018) (QCM
(B) Vol. IV, Annex 99).
389 Council on Foreign Relations, A Conversation With Adel al-Jubeir (26 Sept. 2018) (QCM (B) Vol.
IV, Annex 125). Joint Appellants had reiterated their “firm position on the necessity of Doha
fulfilling the 13 demands” at an earlier meeting during the 29th Arab League Summit. See ICAO
Response to the Preliminary Objections (B), Exhibit 84, Arab Quartet stresses Qatar must meet 13
demands to mend ties (14 Apr. 2018) (BEUM Vol. IV, Annex 25).

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of the Chicago Convention,390 while denying their wrongfulness under the IASTA. The message was
once again clear: Qatar should look for prospects of amicable settlement of the dispute elsewhere.

4.58 At the outset, it bears recalling that—in the words of Judge Buergenthal— “within the ICAO
framework, parliamentary diplomacy can take the place of direct negotiations” provided that “both
parties to the dispute participated therein on opposite sides”.391 Indeed, the significance of
ICAO’s good offices cannot be overstated—notably, in none of the disputes formally submitted to it
did the Council have to render a decision on the merits because the parties were ultimately able to
settle their disputes amicably.392

4.59 It follows that Joint Appellants’ argument that Qatar’s engagement of the ICAO framework
should not be considered a “genuine attempt to negotiate” because Qatar sought to engage the ICAO
organs, not Joint Appellants, and did not include in its letters and requests an invitation to
negotiate addressed directly to them,393 is irrelevant. What is relevant is that Qatar engaged
ICAO’s organs since the very first day of the aviation prohibitions, informing them of its views on
the legality of those measures under the IASTA and asking for their intervention.394

390 Article 54(n) of the Chicago Convention provides that “[t]he Council shall … [c]onsider any
matter relating to the Convention which any contracting State refers to it”. (Chicago Convention,
Art. 54(n) (BEUM Vol. II, Annex 1)).
391 Thomas Buergenthal, Law-making in the International Civil Aviation Organization, 1969, Part
III, p. 131 (BEUM Vol. VI, Annex 125).
392 Paul Stephen Dempsey, Public International Air Law (2017), p. 921 (QCM (B) Vol. IV, Annex 116).
393 BEUM, paras. 6.65-6.66.
394 See ICAO Response to the Preliminary Objections (B), Exhibits 1-6 (BEUM Vol. IV, Annex 25).

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When informed of Qatar’s appeals, Joint Appellants first remained silent395 and then either refused
to discuss them at all or expressed the view that the aviation prohibitions do not give rise to a
breach of the IASTA.

4.60 Indeed, towards the end of the Council’s 211th Session, on 23 June 2017, when the Council
discussed how it would address Qatar’s request under Article 54(n) of the Chicago Convention,
seeking the intervention of the Council in connection with Joint Appellants’ aviation
prohibitions,396 Saudi Arabia and the two Appellants on the Council (Egypt and the UAE) refused to
discuss them. Saudi Arabia stated that “the focus of the discussion should rest on safety, security
and air navigation”.397 The UAE agreed.398 And Egypt foreshadowed Joint Appellants’ First
Preliminary Objection by warning ICAO to “not delve into political considerations”.399 The Council
nonetheless agreed to have an extraordinary session, later scheduled for 31 July 2017, to discuss
Qatar’s request.400

395 Two days after the imposition of the aviation prohibitions, on 7 June 2017, the ICAO Secretary
General replied to Qatar’s 5 June appeal, stating that she had “brought the matter to the attention
of the relevant Representatives on the Council of ICAO”. Letter from ICAO Secretary-General to
Chairman of the Qatar Civil Aviation Authority, Reference No. AN 13/4/3/Open-AMO66892 (7 June 2017)
(QCM (B) Vol. III, Annex 22). At the time, two of the Joint Appellants (Egypt and the UAE) were
among the thirty-six Member States serving on the ICAO Council. They were thus formally notified of
Qatar’s complaint. None of them, however, provided any response of any kind.
396 ICAO Council, 211th Session, Summary Minutes of the Tenth Meeting, ICAO Doc. C-MIN 211/10 (23
June 2017), para. 9 (“the intervention of the ICAO Council in the Matter of the Actions of the Arab
Republic of Egypt, the Kingdom of Saudi Arabia, the United Arab Emirates (UAE) and the Kingdom of
Bahrain to close their Airspace to aircraft registered in the State of Qatar”) (QCM
(B) Vol. III, Annex 24).
397 Ibid., para. 15.
398 Ibid., para. 18.
399 Ibid., para. 20.
400 Ibid., para. 53.

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4.61 Joint Appellants’ refusal to discuss the aviation prohibitions is also reflected in their
joint working paper submitted prior to the Council’s extraordinary session.401 Joint Appellants
again invited the Council to defer the discussion on the aviation prohibitions as a “non-urgent
matter[]” and “limit its deliberations to the urgent Article 54 (n) matters which are related to
the safety of international civil aviation”.402

4.62 The discussions at the extraordinary session of the Council, at which Qatar and all three
Appellants and Saudi Arabia were present,403 are even more revealing. Qatar complained of “the
successive NOTAMs and arbitrary action taken by the four blockading Member States starting on 5
June 2017, in flagrant violation of all relevant ICAO international Standards, as well as of
relevant ICAO instruments to which they were parties”.404 It also requested that Joint Appellants
“lift the unjust air blockade that had been imposed upon it by Bahrain, Egypt, Saudi Arabia and the
United Arab Emirates”, noting that “it was a dispute that touched upon the

401 ICAO Response to the Preliminary Objections (B), Exhibit 8, Response to Qatar’s Submission
Under Article 54 (n) Presented by Bahrain, Egypt, Saudi Arabia, and the United Arab Emirates, ICAO
Doc. C-WP/14640 (19 July 2017) (BEUM Vol. IV, Annex 25). Prior to the submission of that working
paper, the President of the Council invited Bahrain (and Qatar) to participate, without a vote, in
the extraordinary session on the grounds of special interest; both States accepted. ICAO Response
to the Preliminary Objections (B), Exhibit 10, ICAO Council, Extraordinary Session, Summary
Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), paras. 4-5 (BEUM Vol. IV, Annex 25).
402 ICAO Response to the Preliminary Objections (B), Exhibit 8, Response to Qatar’s Submission
Under Article 54 (n) Presented by Bahrain, Egypt, Saudi Arabia, and the United Arab Emirates, ICAO
Doc. C-WP/14640 (19 July 2017), para. 5.1(b) (BEUM Vol. IV, Annex 25).
403 ICAO Response to the Preliminary Objections (B), Exhibit 10, ICAO Council, Extraordinary
Session, Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), para. 5 (BEUM Vol.
IV, Annex 25).
404 ICAO Response to the Preliminary Objections (B), Exhibit 10, ICAO Council, Extraordinary
Session, Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), para. 11 (BEUM Vol.
IV, Annex 25).

114

Convention’s essence”.405 The UAE, on behalf of Joint Appellants and Saudi Arabia, argued that
“their airspace closures were legitimate, justified, and a proportionate response to Qatar’s
actions and were permitted under international law”,406 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”.407

4.63 Members of the Council well understood the intractable nature of the situation with which the
Council was faced. Spain, for example, stated that “it would have liked to have seen the matter at
hand resolved through negotiations between the five Parties” but “that had not been possible”.408

4.64 Although the Parties subsequently continued to have some additional exchanges on the issue
of contingency routes, the question of the aviation

405 Ibid., para. 14.
406 Ibid., para. 32. This statement was preceded by the statement of the Minister of Foreign
Affairs of Saudi Arabia at a joint press conference with his counterparts from Joint Appellants the
day before to the effect that “we made a decision not to allow our airspace or borders to be used
and this is our sovereign right”. ICAO Response to the Preliminary Objections (B), 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) (BEUM Vol. IV, Annex 25). A disputing party that consistently maintains the view that the
facts do not give rise to a dispute concerning the interpretation or application of a treaty cannot
be criticizing at the same time the other disputing party for failing to undertake a genuine
attempt to negotiate; rather, in these circumstances, it is obvious that the dispute cannot be
settled by negotiation. Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America),
Preliminary Objections, Judgment, I.C.J. Reports 1998, para. 21.
407 ICAO Response to the Preliminary Objections (B), Exhibit 10, ICAO Council, Extraordinary
Session, Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), para. 33 (BEUM Vol.
IV, Annex 25).
408 Ibid., para. 75 (emphasis added).

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prohibitions remained off the table. This situation persisted until Qatar filed its Application
with the Council under Article II, Section 2 (and, as explained above, it persists to the present
day).

4.65 In conclusion, Qatar’s efforts at multilateral diplomacy, just like its efforts at bilateral
diplomacy, failed to resolve the dispute. They were met at all times with Joint Appellants’ refusal
to discuss the aviation prohibitions or even to acknowledge the possibility that they may have
breached the IASTA. Although these exchanges took place in a multilateral setting, they nonetheless
qualify as genuine attempts to negotiate. As stated, the Court has made clear that “diplomacy by
conference or parliamentary diplomacy has come to be recognized … as one of the established modes
of international negotiations”.409 The Court has equally made clear that no specific format for
negotiations is required.410 Joint Appellants’ criticism of Qatar’s reliance on these exchanges is
therefore misplaced.

3. Qatar tried unsuccessfully to settle the dispute through the WTO

4.66 In addition to trying to settle the dispute through direct means and within the ICAO
framework, Qatar also tried to negotiate about the aviation prohibitions within the WTO framework.

4.67 Specifically, on 31 July 2017, Qatar asked Appellants Bahrain and the UAE, as well as Saudi
Arabia, “to enter into consultations concerning measures adopted in the context of coercive
attempts at economic isolation imposed …

409 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment, I.C.J. Reports 1962, p. 346.
410 See ibid.

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against the State of Qatar”.411 Qatar’s Request for Consultations expressly stated that the
measures included Bahrain’s, the UAE’s and Saudi Arabia’s “prohibition on Qatari aircraft from
accessing [their] airspace”, as well as their “prohibition on flights to and from [their
territories] operated by aircraft registered in Qatar, including prohibiting landing of Qatari
Aircraft at airports [in their territories]”.412

4.68 Bahrain, the UAE and Saudi Arabia, responded by joint letter dated 10 August 2017, in which
they “decline[d] to engage in consultations on this matter” because, they said, “the measures
referenced in the Request implement diplomatic and national security decisions with respect to
which all WTO members maintain full sovereignty”.413

4.69 In their Memorial, Joint Appellants claim that Qatar’s attempts to engage in consultations
within the WTO framework are irrelevant to the negotiation

411 ICAO Response to the Preliminary Objections (B), Exhibit 11, World Trade Organization, Bahrain
— Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of Intellectual
Property Rights, WT/DS527/1 (4 Aug. 2017) (BEUM Vol. IV, Annex 25); ICAO Response to the
Preliminary Objections (B), Exhibit 12, World Trade Organization, United Arab Emirates — Measures
Relating to Trade in Goods and Services, and Trade-Related Aspects of Intellectual Property Rights,
WT/DS526/1 (4 Aug. 2017) (BEUM Vol. IV, Annex 25); 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) (QCM (B) Vol. IV, Annex 137).
412 ICAO Response to the Preliminary Objections (B), Exhibit 11, World Trade Organization, Bahrain
— Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of Intellectual
Property Rights, WT/DS527/1 (4 Aug. 2017), para. 8(i) (BEUM Vol. IV, Annex 25); ICAO Response to
the Preliminary Objections (B), Exhibit 12, World Trade Organization, United Arab Emirates —
Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of Intellectual
Property Rights, WT/DS526/1 (4 Aug. 2017), para. 8(i) (BEUM Vol. IV, Annex 25); World Trade
Organization, Saudi Arabia — Measures Relating to Trade in Goods and Services, and Trade-Related
Aspects of Intellectual Property Rights, WT/DS528/1 (4 Aug. 2017), para. 8(i) (QCM (B) Vol. IV,
Annex 137).
413 ICAO Response to the Preliminary Objections (B), Exhibit 13, Letter from UAE, Bahrain, and
Saudi Arabia to Junichi Ihara, Chairman of the WTO Dispute Settlement Body (10 Aug. 2017), p. 2
(BEUM Vol. IV, Annex 25).

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requirement under Article II, Section 2 of the IASTA. This is true, they say, because the Request
for consultations “made no mention of the relevant obligations contained in the Chicago Convention
and IASTA that Qatar alleged in its Applications and Memorials had been breached”.414

4.70 As explained, however, Qatar was not required to expressly refer to the IASTA,415 only the
subject-matter of the dispute in question.416 By referring to the two Appellants’ prohibition on
Qatari aircraft from accessing their airspace, and their prohibition on flights to and from their
territories operated by aircraft registered in Qatar, Qatar plainly did that.

4.71 Joint Appellants’ other argument in this respect is equally unavailing. They argue that
Qatar’s request was not addressed to Egypt and hence “clearly cannot constitute an attempt to
initiate negotiations in [this] regard”.417 However, nothing in the response by Bahrain, the UAE
and Saudi Arabia to Qatar’s request for consultations deviates from similar statements made by
Egypt itself418 and on behalf of Egypt419 in ICAO, which betrays the degree of coordination among
Joint

414 BEUM, para. 6.73; see also ICAO Rejoinder (B), paras. 122-126 (BEUM Vol. IV, Annex 26).
415 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, para. 30.
416 See ibid.
417 BEUM, para. 6.72.
418 See ICAO Council, 211th Session, Summary Minutes of the Tenth Meeting, ICAO Doc. C-MIN 211/10
(23 June 2017), para. 20 (QCM (B) Vol. III, Annex 24).
419 See ICAO Response to the Preliminary Objections (B), Exhibit 10, ICAO Council, Extraordinary
Session, Summary Minutes, ICAO Doc. C-MIN Extraordinary Session (31 July 2017), para. 32 (BEUM Vol.
IV, Annex 25); ICAO Response to the Preliminary Objections (B), Exhibit 57, Foreign Ministers of
Saudi Arabia, Bahrain, UAE and Egypt: Measures taken against Qatar are sovereign, and we all are
negatively impacted when terrorism and extremism become stronger (30 July 2017) (BEUM Vol. IV,
Annex 25).

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Appellants and the artificiality of trying to draw distinctions between them in this context.

4. Qatar tried unsuccessfully to settle the dispute through other States

4.72 Joint Appellants argue that Qatar did not make any genuine attempt to negotiate “through other
channels, such as via the Emir of Kuwait”,420 but they nowhere bother to elaborate why this is so.
Again, the record proves them wrong. There were still more efforts to settle the dispute through
the intervention of other States. In particular, Kuwait and the United States actively pursued
efforts to bring the Parties together, but to no avail owing to Joint Appellants’ intransigence.

4.73 Already on 7 June 2017, His Highness the Emir of Kuwait was briefing His Highness the Amir of
Qatar “on his efforts in trying to resolve the crisis”.421 Three days later, His Excellency the
Foreign Minister of Qatar stated in a televised interview that His Highness the Emir of Kuwait’s
efforts were “ongoing”, and that Qatar “value[d] and appreciate[d]” the efforts, and would “not
lose hope” in the process.422 Then, on 12 June, His Excellency the Foreign Minister stated that
“Qatar is in contact with HH the Emir of Kuwait … on his mediation efforts”, and affirmed Qatar’s
openness to dialogue, adding that “Qatar is ready to discuss any requests, provided that they are
clear”.423 On 17 June 2017, he reemphasised the strong efforts of His Highness the Emir of Kuwait,
and noted that there were

420 BEUM, para. 6.82.
421 ICAO Response to the Preliminary Objections (B), Exhibit 18, HH the Emir Meets HH the Emir of
Kuwait (7 June 2017) (BEUM Vol. IV, Annex 25).
422 ICAO Response to the Preliminary Objections (B), Exhibit 21, The Foreign Minister’s Interview
with RT on GCC Crisis (10 June 2017) (BEUM Vol. IV, Annex 25).
423 ICAO Response to the Preliminary Objections (B), Exhibit 22, Foreign Minister: Qatar Focuses on
Solving Humanitarian Problems of Illegal Siege (12 June 2017) (BEUM Vol. IV, Annex 25).

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“continued visits by the Kuwaiti brothers to the countries that have undertaken those unfair
measures”.424

4.74 Joint Appellants’ issuance of their 13 Demands on 22 June 2017 threatened to derail the
process, but it did not stop the efforts of His Highness the Emir of Kuwait, who called for
unconditional dialogue. Qatar responded to His Highness’s appeal favourably,425 whereas Joint
Appellants did not.426 While acknowledging that “the Emir of Kuwait … has acted as a go-between
during this time of indirect communication”, the UAE press reported on 11 September 2017 that
“[e]ach of the quartet’s 13 demands are non-negotiable and non-divisible and are the bare minimum
required to return once more to normalcy between neighbors”.427

4.75 On 30 August 2017, in a joint press conference with the Russian Foreign Minister, His
Excellency the Foreign Minister of Qatar referred to

“the letters sent by HH the Emir of Kuwait to all the parties, which called for dialogue directly
and unconditionally. He noted that the State of Qatar was the only country to respond to the
Kuwaiti letter after a few days, in the contrary, none of the siege countries responded, in
continuation of their approach of not responding and ignoring any

424 ICAO Response to the Preliminary Objections (B), Exhibit 25, HE Foreign Minister Expresses
Surprise of Reaction of GCC Countries Blockading Qatar (17 June 2017) (BEUM Vol. IV, Annex 25).
425 ICAO Response to the Preliminary Objections (B), Exhibits 18, 32-35, 37-38, 41, 43-45, 47-48,
58-61, 64-67, 71-73 (BEUM Vol. IV, Annex 25).
426 ICAO Response to the Preliminary Objections (B), Exhibit 60, Foreign Minister Reiterates: Qatar
Welcomes Any Effort Supports Kuwaiti Mediation to Resolve Gulf Crisis (30 Aug. 2017) (BEUM Vol. IV,
Annex 25).
427 ICAO Response to the Preliminary Objections (B), Exhibit 64, UAE Press: Qatar has distorted
details of phone call (11 Sept. 2017) (BEUM Vol. IV, Annex 25) (emphasis added).

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mediation efforts, whether from Kuwait or any other friendly country …”.428
4.76 The “other friendly country” referred to in His Excellency’s statement was the United States,
which also tried to facilitate a resolution of the dispute, only to see its proposals ignored by
Joint Appellants.429 Two weeks after the announcement of the aviation prohibitions, the media
reported that the U.S. Secretary of State “has had more than 20 phone calls and meetings with
leaders from the gulf and elsewhere”.430 On 27 June 2017, the Secretary of State met with His
Excellency the Foreign Minister of Qatar, and expressed the importance of reaching a satisfactory
solution as soon as possible, as well as his readiness to provide support to achieve this.431
Referring to this meeting, His Excellency the Foreign Minister of Qatar stated: “We agree that the
State of Qatar will engage in a constructive dialogue with the parties concerned if they want to
reach a solution and overcome this crisis”.432

4.77 Joint Appellants were not open to negotiation, however. After holding talks with the U.S.
Secretary of State on 27 June 2017, the Saudi Foreign Minister

428 ICAO Response to the Preliminary Objections (B), Exhibit 60, Foreign Minister Reiterates: Qatar
Welcomes Any Effort Supports Kuwaiti Mediation to Resolve Gulf Crisis (30 Aug. 2017), pp. 1-2 (BEUM
Vol. IV, Annex 25).
429 Ibid., p. 2.
430 ICAO Response to the Preliminary Objections (B), Exhibit 26, State Dept. Lashes Out at Gulf
Countries Over Qatar Embargo (20 June 2017), p. 3 (BEUM Vol. IV, Annex 25); ICAO Response to the
Preliminary Objections (B), Exhibit 46, Tillerson Tries Shuttle Diplomacy in Qatar Dispute (11 July
2017) (BEUM Vol. IV, Annex 25).
431 ICAO Response to the Preliminary Objections (B) Exhibit 32, Foreign Minister Meets US
Counterpart (27 June 2017) (BEUM Vol. IV, Annex 25).
432 ICAO Response to the Preliminary Objections (B), Exhibit 31, Foreign Minister: Siege Countries’
Allegations Should be Supported by Evidence (27 June 2017) (BEUM Vol. IV, Annex 25).

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reiterated once again, on behalf of both Saudi Arabia and Joint Appellants, that the 13 Demands
were non-negotiable.433

4.78 On 11 July 2017, the media reported that the U.S. Secretary of State would take the Qatar-U.S.
memorandum of understanding on counterterrorism to “leaders in Saudi Arabia, United Arab Emirates
and Bahrain to see if it will be enough to end a standoff that has led [them] to blockade Qatar for
more than a month”.434 Two days later, representatives of Qatar, the United States and Kuwait met
to discuss the results of the U.S. Secretary of State’s visit to Saudi Arabia.435 At the meeting,
His Excellency the Foreign Minister of Qatar once again expressed Qatar’s openness “to constructive
dialogue”.436

4.79 On 25 July 2017, His Excellency the Foreign Minister of Qatar praised “the great efforts made
by U.S. Secretary of State Rex Tillerson during his recent visit to the Gulf countries, which came
out with proposals we are going to respond to”.437 However, five days later, his Saudi counterpart
reiterated at a joint press

433 ICAO Response to the Preliminary Objections (B), Exhibit 33, Qatar condemns Saudi refusal to
negotiate over demands (28 June 2017) (BEUM Vol. IV, Annex 25).
434 ICAO Response to the Preliminary Objections (B), Exhibit 46, Tillerson Tries Shuttle Diplomacy
in Qatar Dispute (11 July 2017) (BEUM Vol. IV, Annex 25).
435 ICAO Response to the Preliminary Objections (B), Exhibit 47, Foreign Minister Meets Kuwaiti
Minister of State for Cabinet Affairs, U.S. Secretary of State (13 July 2017) (BEUM Vol. IV, Annex
25).
436 Ibid.
437 ICAO Response to the Preliminary Objections (B), Exhibit 53, Qatar’s Foreign Minister Says
Visit to Washington Aims to Inform US Politicians about Negative Impacts of Gulf Crisis (25 July
2017), p. 1 (BEUM Vol. IV, Annex 25).

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conference with the Foreign Ministers of Joint Appellants that “there is no negotiation over the 13
demands”.438

4.80 As recounted earlier, the President of the United States intervened, facilitating a direct
call between His Highness the Amir of Qatar and the Crown Prince of Saudi Arabia on 8 September
2017.439 Although the conversation appeared to yield progress, the very next day, Saudi Arabia
accused Qatar of distorting facts and declared that “any dialogue or communication with [the]
authority in Qatar shall be suspended”.440

4.81 On 22 October 2017, the U.S. Secretary of State made clear that Saudi Arabia was not being
supportive. He announced that “I did in my meeting with the Crown Prince Mohammad bin Salman ask
him to please engage, please engage in dialogue”, but he concluded that “it’s not clear the parties
are ready to engage”.441 Although Saudi Arabia is not a party to these proceedings, its conduct
here, as before, equally reflects the attitude of Joint Appellants.

4.82 Indeed, as His Excellency the Foreign Minister of Qatar later explained:

438 ICAO Response to the Preliminary Objections (B), Exhibit 57, Foreign Ministers of Saudi Arabia,
Bahrain, UAE and Egypt: Measures taken against Qatar are sovereign, and we all are negatively
impacted when terrorism and extremism become stronger (30 July 2017) (BEUM Vol. IV, Annex 25).
439 ICAO Response to the Preliminary Objections (B), Exhibit 62, Emir holds telephone talks with US
President (9 Sept. 2017) BEUM Vol. IV, Annex 25).
440 ICAO Response to the Preliminary Objections (B), Exhibit 63, Official source: What was
published by Qatar News Agency is continuation of Qatari authority’s distortion of facts (9 Sept.
2017) (BEUM Vol. IV, Annex 25).
441 ICAO Response to the Preliminary Objections (B), Exhibit 72, Remarks With Qatari Foreign
Minister Sheikh Mohammed bin Abdulrahman al-Thani (22 Oct. 2017) (BEUM Vol. IV, Annex 25).

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“[T]he U.S. secretary of state visited Qatar and then Saudi Arabia and met with the siege
countries, and then returned to Doha with a proposal of principles and a roadmap and asked for a
response to this proposal within five days …. [We] responded to the roadmap and the list of
principles after the five days mentioned by the U.S. secretary of state …. After that, we asked
about the measures that should follow. The American response was that the siege countries did not
respond and therefore the matter stalled at that time”.442
4.83 Joint Appellants thus frustrated the efforts by Kuwait and the United States to facilitate a
resolution of the dispute. As best summarised by the U.S. Secretary of State in an interview
conducted a few days before the commencement of proceedings before the Council: “It’s up to the
leadership of the quartet when they want to engage with Qatar because Qatar has been very
clear—they are ready to engage”.443

4.84 For all these reasons, Qatar has clearly discharged its obligation to negotiate with Joint
Appellants the dispute under the IASTA occasioned by the aviation prohibitions. It tried repeatedly
to engage them through multiple avenues in multiple fora. Joint Appellants spurned every overture
at every turn. The ICAO Council was therefore correct in finding that Qatar had satisfied the
requirements of Article II, Section 2 of the IASTA and deciding that it has jurisdiction to address
the merits of Qatar’s claim.

442 ICAO Response to the Preliminary Objections (B), Exhibit 79, Deputy PM and FM: Investigations
Proved Involvement of 2 Siege Countries in QNA Hacking (10 Jan. 2018) (BEUM Vol. IV, Annex 25)
(emphasis added).
443 ICAO Response to the Preliminary Objections (B), Exhibit 70, Tillerson Faults Saudi-Led Bloc
for Failing to End Qatar Crisis (19 Oct. 2017) (BEUM Vol. IV, Annex 25).

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II. The ICAO Council Properly Held that Qatar’s Application and Memorial Complied with Article 2(g)
of the ICAO Rules for the
Settlement of Differences

4.85 Joint Appellants argue almost in passing that Qatar’s claim is inadmissible because the
Memorial it submitted to the Council did not comply with Article 2(g) of the ICAO Rules for the
Settlement of Differences. Article 2(g) provides:

“Any Contracting State submitting a disagreement to the Council for settlement … shall file an
application to which shall be attached a memorial containing: …
(g) A statement that negotiations to settle the disagreement had taken place between the parties
but were not successful”.444
4.86 Joint Appellants appear to misconstrue the nature of the Article 2(g) requirement. They claim
in their Application, for example, that it requires an applicant to “establish[] in its Memorial
that negotiations to settle the disagreement had taken place between the parties but were not
successful”.445 But that is not at all what Article 2(g) says. Article 2(g) states simply that the
applicant “shall file an application to which shall be attached a memorial containing: … [a]
statement that negotiations to settle the disagreement had taken place but were not successful”.446
Similarly, the French version of the Rules refers to “une déclaration attestant que des
négociations ont eu lieu entre les parties pour régler le désaccord, mais qu’elles n’ont pas
abouti”.447

444 ICAO Rules, Art. 2(g) (BEUM Vol. II, Annex 6).
445 ICJ Application (B), para. 19(ii) (emphasis added).
446 ICAO Rules, Art. 2(g) (BEUM Vol. II, Annex 6) (emphasis added).
447 ICAO Council, Règlement pour la Solution des Différends (1957, amended 10 Nov. 1971), Art. 2(g)
(QCM (B) Vol. II, Annex 10) (emphasis added).

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4.87 An applicant’s memorial to the ICAO Council is therefore required only to “state” (or
“attester”), not “establish” or “affirm”,448 that negotiations to settle the disagreement had taken
place but were not successful. This is quite obviously a requirement of form and has been treated
consistently as such by the Council. Indeed, in both Cuba v. United States and United States v. 15
EU Member States, allegations of fact sufficed for the Council to consider that the Article 2(g)
requirement had been met.449

4.88 Qatar’s Memorial to the Council satisfied the Article 2(g) requirement. The last page of the
Memorial contains “A statement of attempted negotiations” where Qatar stated: “The Respondents did
not permit any opportunity to negotiate the aviation aspects of their hostile actions”.450 Even if
Joint Appellants were correct that this is “an acknowledgement … that negotiations to settle the
disagreement have not taken place between the Parties”,451 their “immediate and total refusal” to
negotiate unless Qatar capitulated to their demands, which is reflected in this statement, would
have been enough to discharge the requirement that Article 2(g) purports to “reflect”452 for the
reasons explained above.453

448 BEUM, para. 6.97.
449 ICAO Council, Cuba v. United States, Memorial of Cuba (11 July 1966), para. 9 (QCM (B) Vol. II,
Annex 11); ICAO Council, United States v. 15 EU Member States, Memorial of the United States, p. 16
(14 Mar. 2000) (QCM (B) Vol. II, Annex 12).
450 ICAO Memorial (B), Section (g) (BEUM Vol. III, Annex 23).
451 BEUM, para. 6.97.
452 BEUM, para. 6.96.
453 See supra, para. 4.26.

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4.89 But as explained above,454 Joint Appellants are not correct. The last sentence of Qatar’s
Article 2(g) statement reads: “The severance of diplomatic relations makes further negotiating
efforts futile”.455 The use of the word “further” reflects what Qatar’s Response in the ICAO
proceedings and the present Chapter in this Counter-Memorial have amply shown: Qatar did attempt to
negotiate.

4.90 In sum, Qatar’s Memorial statement is more than enough to satisfy the Article 2(g)
requirement. And even if it were not, Qatar’s Response to Joint Appellants’ Preliminary Objections
formally amended its pleadings to include the statement: “Negotiations to settle the disagreement
had taken place between the parties but were not successful”.456 If somehow even that were not
enough, the minor procedural defect Joint Appellants allege would not be a proper basis for appeal
to the Court against the Council’s Decision of 29 June 2018, for the reasons explained in the
following Chapter concerning Joint Appellants’ First Ground of Appeal.

*

4.91 For all these reasons, the Court should deny Joint Appellants’ Third Ground of Appeal.

454 Ibid.
455 ICAO Memorial (B), Section (g) (BEUM Vol. III, Annex 23) (emphasis added).
456 ICAO Response to the Preliminary Objections (B), para. 91 (BEUM Vol. IV, Annex 25).

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CHAPTER 5

THE COURT SHOULD DENY JOINT APPELLANTS’ FIRST GROUND OF APPEAL

5.1 Consistent with the exaggerated tone of their entire submission, Joint Appellants’ First Ground
of Appeal posits that the procedure adopted by the ICAO Council in rejecting their preliminary
objections was “manifestly flawed and in violation of fundamental principles of due process, which
constitute general principles of law, as well as violations of the ICAO Council’s own applicable
procedural rules”.457 As Joint Appellants see it, “[t]hese failures were so grave and so widespread
as to denude the proceedings and the Decision of any judicial character”.458 The consequence of the
alleged violations, they say, is that the ICAO Council’s decision on jurisdiction is “null and
void, and should be set aside”.459 Joint Appellants are mistaken. Their arguments, and with them
their First Ground of Appeal, fail for at least three reasons.

5.2 First, as the Court held in the 1972 ICAO Council Appeal case, whether or not the ICAO
Council has jurisdiction is “an objective question of law” to be answered without regard to the
procedure followed before the ICAO Council.460 Even if they occurred (quod non), the alleged
procedural irregularities Joint Appellants point to are therefore irrelevant in determining whether
the ICAO Council correctly decided that it has jurisdiction to hear Qatar’s claim (Section I).

457 BEUM, para. 1.2(a) (emphasis added).
458 Ibid., para. 3.1 (emphasis added).
459 Ibid., para. 1.2(a).
460 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.

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5.3 Second, even assuming arguendo that the Court were to consider it necessary to rule on the
alleged procedural violations, and even if Joint Appellants could be heard to complain about them
now, having failed to do so at the hearing before the Council, none of the Council’s actions
constitutes the “grave” or “widespread” procedural irregularities Joint Appellants claim. In fact,
the ICAO Council complied with the applicable procedural framework and acted consistently with its
own practice (Section II).

5.4 Third, the ostensible procedural irregularities that Joint Appellants identify, even if they
occurred and were not waived (quod non), did not “prejudice in any fundamental way the requirements
of a just procedure”461 (Section III).

5.5 For all three reasons, each of which is independently sufficient, the Court should reject Joint
Appellants’ First Ground of Appeal.

I. The Court Does Not Need to Rule on the Alleged Procedural Violations

5.6 The Court has already effectively rejected the exact arguments Joint Appellants make in their
First Ground of Appeal. Specifically, in the 1972 ICAO Council Appeal case, India appealed from an
ICAO Council decision rejecting its preliminary objections in a dispute brought by Pakistan. Just
like Joint Appellants here, India argued that the ICAO Council’s decision was “vitiated” by
procedural irregularities.462 Indeed, the alleged procedural irregularities India invoked closely
resemble the ones Joint Appellants raise in this case: (1) the Council failed to state

461 Ibid., para. 45.
462 Ibid., para. 44.

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reasons in its decision;463 (2) the Council’s decision was vitiated by the fact that the questions
were framed in the wrong manner;464 and (3) it was not supported by a statutory majority.465

5.7 The Court rejected India’s arguments. But it first considered the nature of its appellate
function in respect of jurisdictional decisions of the ICAO Council. The Court viewed its role as
“giv[ing] a ruling as to whether the Council [had] jurisdiction in the case”.466 Making that ruling
required the Court only to answer “an objective question of law”467 that “cannot depend on what
occurred before the Council”.468 Because the Council had answered the “objective question of law”
concerning its jurisdiction correctly, the Court considered the procedural irregularities India
alleged irrelevant.

5.8 The Court explained:

“[I]f there were in fact procedural irregularities, the position would be that the Council would
have reached the right conclusion in the wrong way. Nevertheless it would have reached the right
conclusion. If, on the other hand, the Court had held that there was and is no jurisdiction, then,
even in the

463 I.C.J. Oral Arguments, Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Minutes of the public sitting held at the Peace Palace, The Hague, from 19 June to 3
July, and on 18 August 1972, p. 607.
464 I.C.J. Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
Memorial submitted by the Government of India (22 Dec. 1971), para. 93(1).
465 Ibid., para. 93(2).
466 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
467 Ibid.
468 Ibid.

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absence of any irregularities, the Council’s decision to assume it would have stood reversed”.469
5.9 It is therefore only appropriate to reverse a jurisdictional decision by the ICAO Council if it
did not “[reach] the right conclusion”. If it “reached the right conclusion”, even “in the wrong
way”, the decision must stand. For the reasons explained in Chapters 3 and 4 of this
Counter-Memorial, the Council plainly reached the right conclusion in this case. Joint Appellants’
argument of procedural violations is therefore irrelevant and should be rejected.

5.10 Joint Appellants’ never once mention this aspect of the Court’s holding in the 1972 ICAO
Council’s Appeal case in their Memorial, still less do they argue why the Court should take a
different approach here. Qatar considers Joint Appellants’ silence telling.

5.11 Joint Appellants only argue that “[a]s the guardian of the integrity of the international
judicial process, it falls to the Court to exercise its supervisory authority in respect of
procedural deficiencies by the ICAO Council”.470 But the drafters of the IASTA and the Chicago
Convention did not entrust the Court with the role of a “guardian of the integrity of the
international judicial process”.471 Rather, as the Court itself observed in its 1972 Judgment, the
appeal system established under Article II, Section 2 of the IASTA and Article 84 of the Chicago
Convention aims to “ensur[e] a certain measure of supervision by the Court” over the Council’s
decision-making, to provide “reassurance for the Council … that

469 Ibid. (emphasis added).
470 BEUM, para. 3.11.
471 Nor did they entrust the Court with the responsibility to “set and supervise judicial decision-
making standards in the international legal system”, as Joint Appellants boldly allege. Ibid. It is
for the ICAO Member States and Council to set the procedures for decision-making under Article 84.

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means exist for determining whether a decision as to its own competence is in conformity or not
with the provisions of the treaties governing its actions”.472

5.12 The fact that the Court found irrelevant India’s procedural complaints shows that the Court
did not consider that its “supervisory authority” reaches procedural questions. By assessing the
Council’s jurisdiction as an “objective question of law”, and making sure the Council gets it
right, the Court fully discharges the role entrusted to it under the IASTA and Chicago Convention.

II. The ICAO Council Properly Discharged Its Functions under Article II, Section 2 of the IASTA and
Article 84 of the Chicago Convention

5.13 Even if, for the sake of argument, the Court were to deem it appropriate to rule on the
putative procedural irregularities Joint Appellants raise, their First Ground of Appeal would still
have to be rejected because the complaints they raise are meritless. The Council proceedings were
entirely consistent with the letter and the spirit of the 1957 ICAO Rules for the Settlement of
Differences (“ICAO Rules”) and the Rules of Procedure for the Council.

A. JOINT APPELLANTS WERE AFFORDED AMPLE OPPORTUNITY TO PLEAD THEIR CASE

1. The Council extended Joint Appellant’s time-limits for the filing of their first responsive
brief

5.14 The IASTA proceedings before the Council began on 30 October 2017 when Qatar filed
Application (B) and its Memorial with the Secretary General of

472 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 26.

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ICAO.473 After verifying that Application (B) complied with the formal requirements of Article 2 of
the ICAO Rules, the Secretariat transmitted it and the Memorial to each of the Joint Appellants on
3 November 2017.474 On 20 November 2017, the Council fixed the time-limit for the filing of the
Counter-Memorials pursuant to Article 3(1)(c) of the ICAO Rules.475 The Council gave Joint
Appellants 12 weeks to file their Counter-Memorial (i.e., through 12 February 2018).476

5.15 Joint Appellants acted jointly in the proceedings before the Council from their very first
procedural act. Specifically, on 16 January 2018, Egypt asked for a six-week extension of the
time-limit to submit a Counter-Memorial on behalf of itself and the other Appellants. The Council
granted the request on 9 February 2018477 and set 26 March 2018 as the new time-limit for the
filing of the Counter- Memorial.478

473 ICAO Memorial (B) (BEUM Vol. III, Annex 23). See also ICAO Rules, Art. 2 (BEUM Vol. II, Annex
6).
474 Letter of 17 November 2017 from the Secretary-General of ICAO to the Appellants (BEUM Vol. V,
Annex 43).
475 See ICAO Rules, Art. 3(1)(c) (BEUM Vol. II, Annex 6).
476 Letter of 17 November 2017 from the Secretary-General of ICAO to the Appellants (BEUM, Vol. V,
Annex 43). Article 28 of the Rules leaves the fixing of time-limits for the filing of briefs to the
discretion of the ICAO Council. In general, however, the ICAO Council must fix time-limits with a
view to “avoid[ing] any possible delays and to ensure fair treatment of the party or the parties
concerned”. ICAO Rules, Art. 28 (BEUM Vol. II, Annex 6).
477 Letter of 9 February 2018 from the Secretary-General of ICAO to the Appellants (BEUM Vol. V,
Annex 45).
478 Ibid.

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2. The ICAO Council gave Joint Appellants every opportunity to make their case in writing

5.16 In lieu of submitting their respective Counter-Memorials, Joint Appellants decided to
challenge the ICAO Council’s jurisdiction. On 19 March 2018, they jointly submitted a document
titled “Preliminary Objections of the Arab Republic of Egypt, the Kingdom of Bahrain, and the
United Arab Emirates” (the “Preliminary Objections”) in accordance with Article 5 of the ICAO
Rules.479

5.17 Qatar was invited to present comments on the Preliminary Objections by 2 May 2016.480 It did
so within the time-limit set by the Council.481 Joint Appellants then took the unusual step of
asking to submit a reply to Qatar’s response.

5.18 The ICAO Council had never previously allowed a party to submit additional pleadings
following an applicant’s response to a preliminary objection. Qatar therefore opposed Joint
Appellants’ request.482 The Council nevertheless

479 ICAO Preliminary Objections (B) (BEUM Vol. III, Annex 24). Article 5 of the Rules allows a
respondent to challenge the jurisdiction of the Council through a “special pleading” which must be
filed “at the latest before the expiry of the time-limit set for delivery of the counter-memorial”.
According to the ICAO Rules, when a party files a preliminary objection, the proceedings on the
merits are suspended. See ICAO Rules, Art. 5(2) (BEUM Vol. II, Annex 6).
480 Letter from Fang Liu, ICAO Secretary General, to Essa Abdulla Al-Malki, Agent for the State of
Qatar (20 Mar. 2018) (QCM (B) Vol. III, Annex 32).
481 BEUM, 3.24.
482 Letter of 28 May 2018 from the Secretary-General of ICAO to the Appellants, attaching Email of
25 May 2018 from the Delegation of the State of Qatar to the Secretary-General of ICAO (BEUM Vol.
V, Annex 48). During the ICAO Council proceedings, Qatar complained about the prejudice resulting
from this improper shift in the position of the parties in the case. See, e.g., ICAO Council
– 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8,
23 July 2018, para. 41 (BEUM Vol. V, Annex 53).

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authorised them to file a “rejoinder” no later than 12 June 2018.483 This time, Joint Appellants
complied with the deadline.

5.19 The President’s decision to permit Joint Appellants to file a rejoinder meant that they were
given two opportunities to brief the Council in writing on the issue of jurisdiction, while Qatar
was only granted one.484

3. The Council also afforded Joint Appellants an opportunity to present their arguments orally

5.20 The day after Joint Appellants submitted their rejoinder, the President of the Council
notified the Parties that a hearing on the preliminary objections would take place during a
half-day session on 26 June 2018.485

5.21 In the same communication, the President invited the Parties to an informal briefing on the
topic of “Settlement of Disputes”, scheduled on 19 June 2018. Joint Appellants claim that, during
the informal briefing, they raised “strong objections” to the scheduling of “only one half-day
session for the hearing” because “it would

483 See Letter of 28 May 2018 from the Secretary-General of ICAO to the Appellants (BEUM Vol. V,
Annex 49); see also Letter of 28 May 2018 from the Secretary-General of ICAO to the Appellants,
attaching Email of 25 May 2018 from the Delegation of the State of Qatar to the Secretary-General
of ICAO (BEUM Vol. V, Annex 48).
484 Joint Appellants seem to suggest that Qatar is at fault for this because it “did not seek a
right of reply”. BEUM, para. 3.25. But after the President of the Council had decided that Article
7(1) of the ICAO Rules allowed Joint Appellants to file a rejoinder, seeking a “right of reply”
would have been futile. This is because the “rejoinder” is the last pleading under Article 7(4) of
the Rules. ICAO Rules, Art. 7(4) (BEUM Vol. II, Annex 6). Qatar could have exceptionally sought
permission from the Council to submit an additional pleading, but this would have required an
additional hearing at best, and therefore, more time before the ICAO Council could begin to
consider the merits of Joint Appellants’ jurisdictional objections—time that Qatar simply did not
have in view of the urgency of the situation.
485 Letter of 13 June 2018 from the President of the ICAO Council to the Appellants, attaching
Working Paper in respect of Application (B), ICAO document C-WP/14778, 23 May 2018 (BEUM Vol. V,
Annex 50).

135

not permit them sufficient time properly to coordinate and present their case”.486 These criticisms
are unfounded for at least two reasons.

5.22 First, under the ICAO Rules “oral arguments may be admitted at the discretion of the
Council”.487 It follows that the time allocated to the presentation is also subject to the
Council’s discretion. Allocating a half-day session to the hearing was entirely consistent with
past Council practice—less time was allotted to Brazil v. the United States, the immediately prior
case before the Council.488 Second, and irrespective of the practice of the Council, the only party
that could be said to have been prejudiced by the President’s decision was Qatar. Joint Appellants
had already enjoyed two opportunities to brief their objections in writing. In contrast, Qatar only
had one such opportunity and it was the party responding to the last written pleading before the
hearing.

5.23 At the 19 June 2018 briefing, the President also informed Joint Appellants “that [they] would
be treated as one side …”.489 Joint Appellants do not claim to have objected to that decision.

5.24 Joint Appellants also complain that “the precise schedule and format of the hearing remained
in a state of flux until … the day of the hearing”.490 It is unclear, however, how this placed
Joint Appellants at a disadvantage vis-a-vis Qatar. Qatar

486 BEUM, para. 3.27; see also ibid., para. 1.11.
487 See ICAO Rules, Art. 12(2) (BEUM Vol. II, Annex 6).
488 ICAO Preliminary Objections (B), Exhibit 2, ICAO Council – 211th Session, Summary Minutes of
the Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017, para. 9 (BEUM Vol. III,
Annex 24).
489 BEUM, para. 3.27.
490 Ibid.

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was in the exact same position. There is no valid argument that coordination proved difficult
because Joint Appellants were four States acting as a single party. They had, after all, already
formulated agreed-upon arguments in their written pleadings.

4. The Council soundly rejected Joint Appellants’ preliminary objections

5.25 The hearing took place as scheduled on 26 June 2018. The Parties made their arguments in two
rounds for each side. When they were done, the ICAO Council decided to vote by secret ballot.491
After concluding that a decision in the IASTA case would require approval by a majority of 19
votes492 and clarifying, in response to a query raised by Appellant Bahrain, that Joint Appellants
“had a preliminary objection for which they provided two justifications”,493 the Council voted on
the question “Do you accept the preliminary objection?”.494 Out of 25 Members of the Council
eligible to vote under IASTA, only two members voted in favour of accepting the objection; 18 voted
against it; and five abstained.495 Accordingly, Joint Appellants’ objections to the Council’s
jurisdiction were rejected.496

5.26 One day after the hearing, the Secretariat circulated a draft of the ICAO Council’s Decision
“so that [it] could be considered and approved” at the Council’s

491 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, paras. 106-108 (BEUM Vol. V, Annex 53).
492 Ibid., para. 112.
493 Ibid., para. 123.
494 Ibid., para. 126.
495 Ibid.
496 Ibid., para. 127.

137

next session, which took place on 29 June 2018.497 Joint Appellants did not complain about any
“grave” or “widespread” procedural irregularities when they sent their comments on the draft
Decision. Nor did they express any concern about what they now say was the Council’s failure to
adhere to its “fundamental duty”498 to provide reasons. They only thing they did do was point out
certain “inaccuracies related to the names of participants at the meeting”.499

B. JOINT APPELLANTS’ PROCEDURAL COMPLAINTS ARE BASELESS

5.27 Joint Appellants now claim that the ICAO Council’s Decision is “null and void” because the
procedure it adopted “was manifestly flawed and in violation of fundamental principles of due
process … as well as violations of the ICAO Council’s own applicable procedural rules”.500 In
particular, Joint Appellants allege that:

1. The ICAO Council failed to hold deliberations before proceeding to a vote by secret ballot, and
as a result the Council was unable to provide reasons in its Decision, in contravention of Article
15 of the ICAO Rules;501

497 ICAO Council – 214th Session, Summary Minutes of the Eleventh Meeting of 29 June 2018, ICAO
document C-MIN 214/11 (Draft), 10 September 2018, para. 1 (BEUM Vol. V, Annex 55).
498 BEUM, para. 3.49.
499 ICAO Council – 214th Session, Summary Minutes of the Eleventh Meeting of 29 June 2018, ICAO
document C-MIN 214/11 (Draft), 10 September 2018, para. 3 (BEUM Vol. V, Annex 55).
500 BEUM, para. 1.2(a).
501 Ibid., paras. 3.36-3.46, 3.65(b).

138

2. Insufficient time was allocated to the Joint Appellants to present their case before the ICAO
Council;502

3. The Council “abdicated” its duty to interpret the Chicago Convention and the IASTA by deferring
to the Director of the Bureau of Legal Affairs the question on the number of votes required to
uphold the Preliminary Objection;503 and
4. The ICAO Council incorrectly required 19 votes out of 33 members entitled to vote to uphold the
Preliminary Objections, even though Article 52 of the Chicago Convention provides only that a mere
“majority” is needed.504 (Throughout their Memorial, Joint Appellants misstate the number of
Members of the Council eligible to vote on Qatar’s Application (B) under IASTA, as well as the
results of the voting. The number of Members of the Council eligible to vote on Joint Appellants’
preliminary objections to Application (B) was 25, not 33.505 Only 25 of the 33 Members of the
Council are signatories of the IASTA. And under Article 66(b) of the Chicago Convention, Members of
the Council “who have not accepted the [IASTA]…shall not have the right to vote on any questions
referred to the Assembly or Council under the provisions of the relevant Agreement”.506 As
stated, out of the 25

502 Ibid., para. 3.58.
503 Ibid., para. 3.62.
504 Ibid., paras. 3.31, 3.59, 3.61, 3.65(a).
505 See ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, paras. 111, 126 (BEUM Vol. V, Annex 53).
506 Chicago Convention, Art. 66 (BEUM Vol. II, Annex 1). See also ICAO Council – 214th Session,
Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018,
para. 109 (BEUM Vol. V, Annex 53).

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Members of the Council eligible to vote, 18 voted against Joint Appellants’ preliminary objections,
two voted in favour, and five abstained.507
5.28 None of Joint Appellants’ allegations has merit. Qatar will address each in turn.508

507 See ICAO Preliminary Objections (B), Exhibit 2, ICAO Council – 211th Session, Summary Minutes
of the Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017, para. 126 (BEUM Vol.
III, Annex 24).
508 Joint Appellants also accuse the ICAO Council of failing to take “the safeguards necessary to
preserve the integrity of the process” because it did not take notice of or act upon the fact that
Mr. John Augustin, once a member of ICAO’s Legal and External Relations Bureau who advised the ICAO
Council during the Article 54(n) proceedings brought by Qatar in June 2017, later became an advisor
to Qatar and participated in the subsequent Article 84 proceedings. See BEUM, para.
3.4. Even though Joint Appellants only dedicate a few lines in their Memorial to this alleged
irregularity, and it is not included in the “grave” violations put forth in their Memorial, Qatar
considers it important to set the record straight about this scurrilous allegation. Contrary to
Joint Appellants’ claim, the fact that Mr. Augustin participated in the Article 54(n) proceedings
as a member of ICAO’s Legal and External Relations Bureau and later in the Article 84 proceedings
as a member of Qatar’s delegation does not pose any conflict of interest. First, Mr. Augustin gave
notice of his resignation from ICAO on 5 October 2017, several weeks before Qatar submitted its
Article 84 applications to the Council on 30 October 2017. Letter from John v. Augustin to Fang
Liu, ICAO Secretary General (5 Oct. 2017) (QCM (B) Vol. III, Annex 28). Even though his resignation
would only take effect in February 2018, he immediately took a leave of absence and did not perform
any duties within ICAO from the day he gave notice of his resignation. Mr. Augustin was only
appointed as advisor to Qatar’s Permanent Mission to ICAO in March 2018, that is after his
employment with ICAO had officially ended. Letter from Essa Abdulla Al-Malki, Qatar’s Permanent
Representative to ICAO, to Fang Liu, ICAO Secretary General (12 Mar. 2018) (QCM (B) Vol. III, Annex
30). Second, Joint Appellants have not cited to any particular rule of ethics or provision
prohibiting former ICAO staff from working for an ICAO Member State after the termination of their
employment with ICAO. This is not an oversight—there is no such rule. ICAO’s Secretariat, after
consulting with other U.N. agencies, recently concluded that “[t]here is…no cooling off period
preventing employees from joining any type of government service after their separation from UN
services” and recommended ICAO not to impose post-employment restrictions because, in fact, “many
staff members are released by their national administrations to join ICAO and these staff members
may return to their administrations upon separation from the Organization to continue their
career”. ICAO Council, 215th Session, Working Paper: Post- Employment Activities of ICAO Personnel,
ICAO Doc. HR-WP/56 (22 Aug. 2018), p. 2, paras. 2.1-
2.2 (QCM (B) Vol. III, Annex 37). Third, Mr. Augustin participated in proceedings which Joint
Appellants themselves suggest are of a different nature (see BEUM, paras. 6.69), and as a member of
ICAO’s Secretariat, which is a neutral party in any dispute or proceeding between the Parties.
Fourth, Joint Appellants do not indicate any negative or adverse impact Mr. Augustin’s
participation in the Article 54(n) proceedings as ICAO staff may have had or had on the Article 84
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1. The absence of open deliberations on the substantive issues in dispute and of reasons
follows from the Council’s decision to proceed with a vote by secret
ballot as allowed under its rules

5.29 Joint Appellants accuse the ICAO Council of “fail[ing] to engage in any deliberations before
proceeding to vote by secret ballot”,509 which resulted in no reasons being stated in the Decision
rejecting their preliminary objections.510 This is a disingenuous argument.511 The absence of open
deliberations and of reasons in the Decision are natural consequences of the Council’s decision to
vote by secret ballot.

5.30 There is no dispute that the applicable procedural framework expressly permits votes by secret
ballot. In particular, Rule 50 of the Rules of Procedure for the ICAO Council provides:

“Unless opposed by a majority of the Members of the Council, the vote shall be taken by secret
ballot if a request to that effect is supported, if made by a Member of the Council, by one other
Member, and, if made by the President, by two Members”.512

proceedings. Finally, Joint Appellants never complained of Mr. Augustin’s participation in the
Article 84 proceedings even though they were amply aware of Mr. Augustin’s new position in Qatar’s
Permanent Mission well before the Article 84 hearing. See Letter from President of ICAO Council to
Representatives of the Council, ICAO Doc. PRES OBA/2771 (15 May 2018) (QCM (B) Vol. III, Annex 35).
509 BEUM, para. 3.37.
510 Ibid., para. 3.45.
511 It is also misleading. The minutes of the hearing make it clear that there were deliberations
after the disputing parties’ closing arguments, just not on the substantive issues in dispute. ICAO
Council
– 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8,
23 July 2018, paras. 106-118 (BEUM Vol. V, Annex 53).
512 ICAO Council, Rules of Procedure for the Council, ICAO Doc. 7559/10 (2014), Rule 50 (QCM
(B) Vol. II, Annex 15) (emphasis added).

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5.31 Accordingly, provided a motion to that effect is supported by two Members of the Council, the
Council “shall” vote by secret ballot unless a majority of the Council decides otherwise.

5.32 By contrast, a motion that the ICAO Council decide in any other way, including by a roll call
with open vote, must be supported by the majority of the Council Members (that is, 19 Members).513

5.33 There can be no serious dispute that a decision to vote by secret ballot means that no open
deliberations are held. At the hearing before the Council, the Dean of the Council, the
Representative of Mexico,514 proposed that the Council “proceed directly to a vote by secret ballot
in order to take a decision on each of the [Joint Appellants’] preliminary objections …”.515 The
Representative of Singapore, in his capacity as First Vice-President of the Council, supported
Mexico’s proposal.516 The motion therefore carried.

5.34 None of Joint Appellants asked that open deliberations take place before proceeding to the
vote or placed an objection on the record.517 On the contrary, invoking “transparency in the
process” and acting on behalf of all four Appellants in the proceedings concerning Application
(A) and (B) (which were heard

513 Ibid.
514 The longest-serving representative of the Council Members serves as the Dean of the Council.
515 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 106 (BEUM Vol. V, Annex 53) (emphasis added).
516 Ibid., paras. 106-107.
517 By contrast, the Kingdom of Saudi Arabia, the United Arab Emirates and Egypt objected to “the
statement that 19 votes would constitute the voting majority required under Article 52 of the
Chicago Convention”. Ibid., paras. 113, 116, 117; see also ibid., paras. 129-130 (Saudi Arabia,
speaking on behalf of Joint Appellants, complaining again only of “the super voting majority
requirement”).

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concurrently), Saudi Arabia only asked for a roll call518—reflecting Joint Appellants’ recognition
that open deliberations are in fact not essential for the Council to function in a collegial
manner.

5.35 The Council’s approach was entirely consistent with its most recent practice—a fact that Joint
Appellants tellingly fail to address.519 In its proposal to proceed directly to a vote by secret
ballot, the Dean of the Council made express reference to “the Council’s recent experience with the
Settlement of Differences: Brazil and the United States”,520 in which the United States’
preliminary objection was also decided after a vote by secret ballot. There, as well, there were no
open deliberations before the vote.521 Neither Brazil nor the United States objected to the
Council’s decision to proceed directly to a secret vote without deliberations, or complained of any
procedural irregularity in this regard after the issuance of the decision in that case.

5.36 Indeed, it was actually one of the Joint Appellants, the UAE, that proposed a vote by secret
ballot in that case.522 The UAE did not then insist that in spite of

518 Ibid., para. 110. Saudi Arabia’s proposal was declined by the Council. Ibid.
519 Instead, Joint Appellants refer to the decision of the Council in United States v. 15 European
States, which, however, as explained below, was adopted after a vote by open ballot. BEUM, para.
3.49.
520 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 106 (BEUM Vol. V, Annex 53).
521 Decision of the ICAO Council on the Preliminary Objection of the United States in the Matter
“Brazil v. United States”, 23 June 2017 (BEUM Vol. V, Annex 32)
522 See ICAO Preliminary Objections (B), Exhibit 2, ICAO Council – 211th Session, Summary Minutes
of the Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017, para. 97 (BEUM Vol.
III, Annex 24). The UAE’s motion to vote by secret ballot was adopted without opposition.

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its proposal, open deliberations should take place. Nor did it complain of any procedural
irregularity in this regard after the fact.

5.37 Neither did the UAE, nor any of the disputing parties in that case, nor any other Council
Member, complain about the fact that the Council’s decision in Brazil v. the United States did not
state reasons. Notably, the Council Members deciding that case included, in addition to the UAE,
Appellant Egypt (as well as Saudi Arabia).523

5.38 In these circumstances, Joint Appellants’ complaints ring hollow, if they are not outright
waived.524

523 See ICAO Preliminary Objections (B), Exhibit 2, ICAO Council – 211th Session, Summary Minutes
of the Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017, para. 98 (BEUM Vol.
III, Annex 24); ICAO Council, 211th Session, Tenth Meeting, Summary of Decisions (23 June 2017),
ICAO Doc. C-DEC 211/10, Attachment (QCM (B) Vol. III, Annex 25). Qatar acknowledges that the
current Secretary-General of ICAO and Director of ICAO Legal and External Relations Bureau have
taken the position that the requirement of reasons under Article 15(2) of the ICAO Rules applies to
decisions of the Council taken pursuant to Article 5. Letter of 13 June 2018 from the President of
the ICAO Council to the Appellants, attaching Working Paper in respect of Application (B), ICAO
document C-WP/14778, 23 May 2018 (BEUM Vol. V, Annex 50); ICAO Presentation, “Informal briefing of
the Council on the Settlement of Differences”, by Dr. Jiefang Huang, Director of ICAO Legal and
External Relations Bureau, 19 June 2018 (BEUM Vol. V, Annex 51). These views, however, are not
binding on the Council. Ibid., Slide 13 (“… the role of the President of the Council,
Secretary-General, and the Secretariat is to provide guidance to the Council on procedural aspects
of the dispute. It is not their role to state the law, apply the law to the facts, provide legal
opinions or express views on the substance of the merits of the dispute to the Council”). (emphasis
added). The Council is therefore free to disregard this requirement when it decides to proceed
directly to a vote by secret ballot as it did in the present case and in Brazil and the United
States. It is also free to adhere to this requirement when it decides to adopt its decision by a
different method. Indeed, the Council’s decision in United States of America v. 15 European States,
which was adopted after a vote by open ballot, does contain—brief—reasons. See ICAO Preliminary
Objections (B), Exhibit 1, Summary Minutes of the Council, Sixth Meeting 161st Session, ICAO Doc.
C-MIN 161/6, 16 November 2000 (BEUM Vol. III, Annex 24).
524 See 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. 42 (“When the questions
were put to the vote, no member of the Council (and India was one of them) raised an objection, or
challenged the right of the President to act as he did. Therefore, the decisions adopted by the
Council on the basis of such propositions cannot be challenged now by the appellant on these
grounds.”).

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5.39 In any event, the aforementioned statement by Mexico’s Representative, in which he expressed
the view that a vote by secret ballot would be the most “efficient way forward”, was expressly
based on “the views of the many Council Representatives who had been consulted prior to the present
meeting”.525 This is sufficient to satisfy any requirement for collegiality in the Council’s
decision- making process.

5.40 Joint Appellants are left to speculate that the fact that a decision was taken in such a
“complex” and “novel” case “immediately after hearing the Parties and without any deliberations at
all” suggests that the result had been prejudged “possibly because the ICAO Council representatives
were acting on instructions from their governments rather than exercising a judicial function”.526
However, as explained above, this was not the first time that a party to a dispute before the
Council sought to evade its jurisdiction by invoking considerations extraneous to the framework of
the IASTA—far from it.527 Moreover, Joint Appellants have presented no evidence that Council
Members voted against their preliminary objection on instructions from their governments.528 More
importantly, even if they did, Qatar fails to see how it could mean that “there was no judicial
process to speak of”.529 Council Member representatives are not appointed to the Council in their
individual capacity. Indeed, when ICAO Council Member representatives are

525 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, paras. 106-107 (BEUM Vol. V, Annex 53) (emphasis added).
526 BEUM, para. 3.44.
527 See supra, paras. 3.24-3.26.
528 Unlike the minutes of the hearing in Pakistan v. India cited by Joint Appellants (see BEUM,
para. 3.44, fn. 214), the minutes of the hearing in this case do not record any intention of
Council Representatives to seek instructions from their governments.
529 BEUM., para. 3.34(a).

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acting in IASTA and Article 84 proceedings, discharging the judicial function in their own
individual capacity, rather than on behalf of their appointing States, is what would violate due
process, not the other way around.

5.41 In sum, Joint Appellants cannot impugn the Decision on the basis of the alleged absence of
deliberations prior to the vote. As the previous practice of the ICAO Council shows, open
deliberations on the substantive issues in dispute do not take place when its decision is adopted
by secret ballot. Nor can reasons be stated in such cases. Joint Appellants are fully aware of this
practice, having themselves contributed to it. A decision taken by a method established in the
Rules of Procedure and agreed to by the majority of the Council Members at the hearing simply
cannot be deemed procedurally defective.

2. Joint Appellants were allocated sufficient time to present their case before the council

5.42 Joint Appellants next argue that they were allocated “insufficient time … to present their
case to the ICAO Council”.530 As explained above, however, the Council granted them two
opportunities to brief the issue of jurisdiction, while Qatar only had one.531 It also afforded
them an opportunity to present oral arguments. Tellingly, Joint Appellants never explain how or why
all these opportunities to present their arguments were not enough or what prejudice they suffered
from not having more.532

530 Ibid., para. 3.2(a).
531 See supra, para. 5.18. The Council also extended the original time-limit for the submission of
Joint Appellants’ Counter Memorial. See supra, para. 5.15
532 In support of their allegation that the ICAO Council did not give them an opportunity to be
heard, Joint Appellants contrast the duration of the hearing in this case with the duration of the
hearing in the Pakistan v. India case of 1971. In the latter, as Joint Appellants state, “the ICAO
Council held five meetings (from 27 to 29 July 1971) to hear the Parties, deliberate, and decide on
a single
146

5.43 Joint Appellants complain that at the hearing, collectively, they “were given the same length
of time as Qatar, although each of [them] was appearing as a respondent party in its own right”.533
This was not a breach of due process. In fact, it was what due process required in the
circumstances: that each side be treated equally.

5.44 Joint Appellants themselves acted “collectively” on numerous occasions before the ICAO Council
(as they do now before the Court). They should therefore not be heard to complain that the Council
treated them in the exact same manner for purposes of allocating time at the hearing. The instances
in which Joint Appellants acted as a single party before the Council include:

• When Egypt requested an extension of time to file the Counter- Memorial on behalf of all Joint
Appellants;534

preliminary objection lodged by India”. BEUM, para. 3.28. There are, however, at least two reasons
why the hearing in Pakistan v. India case took longer. First, there was only one round of written
pleadings for the preliminary objection. See ICAO Council, 74th Session, Minutes of the Second
Meeting, ICAO Doc. 8956-C/1001 (27 July 1971), para. 2 (QCM (B) Vol. II, Annex 4). In this case,
however, and as explained above, the ICAO Council allowed Joint Appellants to present two
pleadings: a statement of preliminary objections and a rejoinder. Second, in the Pakistan v. India
case, the Council addressed Pakistan’s application under the Chicago Convention (Case No. 1) and
Pakistan’s complaint under the Transit Agreement (Case No. 2) separately. See ibid., para. 3 (QCM
(B) Vol. II, Annex 4); ICAO Council, 74th Session, Minutes of the Fifth Meeting, ICAO Doc. 8956-
C/1001 (28 July 1971), para. 34 (QCM (B) Vol. II, Annex 7). Here, Joint Appellants agreed to
address Applications A and B concurrently. ICAO Council – 214th Session, Summary Minutes of the
Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para. 2 (BEUM Vol. V,
Annex 53).
533 BEUM, para. 3.2(a).
534 See Letter from President of the ICAO Council to Representatives of the ICAO Council, ICAO Doc.
PRES OBA/273 (9 Feb. 2018) (QCM (B) Vol. III, Annex 29).

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• When the UAE filed a statement of preliminary objections on behalf of all Joint Appellants;535

• When Egypt requested authorisation to file a “rejoinder” on behalf of all Joint Appellants;536

• When Egypt filed the rejoinder on behalf of all Joint Appellants;537

• When, at the hearing before the ICAO Council, Saudi Arabia requested a vote by open ballot on
behalf of all four Appellants in the proceedings concerning Application (A) and Application (B);538
and

• When, at the hearing before the ICAO Council, Bahrain asked the President of the ICAO Council to
word the question put to vote differently on behalf of all Joint Appellants.539

535 Letter from Representative of UAE to the ICAO Council to Secretary General of the ICAO Council,
UAE-DEL/L-13-2018 (19 Mar. 2018) (QCM (B) Vol. III, Annex 31).
536 See Letter of 28 May 2018 from the Secretary-General of ICAO to the Appellants (BEUM Vol. V,
Annex 49).
537 Letter from Ahmed H. Mostafa Khedr, Representative of the Arab Republic of Egypt before ICAO,
to the ICAO Secretary General (12 June 2018) (transmitting the Rejoinder to Qatar’s Response to the
Preliminary objections, on behalf of Egypt, Bahrain, Saudi Arabia and the UAE) (QCM (B) Vol. III,
Annex 36).
538 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 110 (BEUM Vol. V, Annex 53).
539 Ibid., para. 122.

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5.45 In the previous multi-party case before it, US v. 15 EU States, the ICAO Council heard from
the 15 EU respondent States as a single party, not from each individually.540 Consistent with the
requirements of the ICAO Rules, doing so avoided “any possible delays”541 because the legal issues
involved were identical as to all of the respondent States. None of them objected.

5.46 Similarly, here, there can be no question that the legal issues in dispute are identical as to
all four Appellants. The ICAO Council was therefore right to hear from them collectively.542

5.47 It should also be recalled that Article 28(1) of the ICAO Rules provides that the Council
shall fix time-limits so “as to … ensure fair treatment of the party or parties concerned”.543
Because Joint Appellants were acting as a single party

540 See ICAO Council, 161st Session, Summary of the Fourth Meeting, ICAO Doc. C-MIN 161/4 (15 Nov.
2000) (QCM (B) Vol. II, Annex 13).
541 ICAO Rules, Art. 28(1) (BEUM Vol. II, Annex 6).
542 The Court’s practice reflects the same approach. It has accorded States acting “in concert” or
“in the same interest” the procedural rights of a single litigant. In the South West Africa cases,
for example, the Court held that applicants Ethiopia and Liberia had to choose a single judge ad
hoc because they were acting “in concert”. South West Africa Cases (Ethiopia v. South Africa;
Liberia
v. South Africa), Preliminary Objections, Judgment of 21 December 1962, I.C.J. Reports 1962, p.
7. Like Joint Appellants in the proceedings before the Council, Ethiopia and Liberia submitted a
single Memorial (and later in the proceedings, a single set of observations to South Africa’s
preliminary objections). See I.C.J. Pleadings, Volume I, South West Africa Cases (Ethiopia v. South
Africa; Liberia v. South Africa), Memorial Submitted by the Government of Liberia (15 Apr. 1961),
p. 211; Observations of the Governments of Ethiopia and Liberia (1 Mar. 1962), p. 417. Moreover, at
the oral proceedings on jurisdiction and admissibility, the Agents of Ethiopia and Liberia appeared
collectively on behalf of both applicant States, not as individual litigants. I.C.J. Pleadings,
Volume VII, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) (1966),
Minutes of the Public Hearings held at the Peace Palace, The Hague, from 2 to 22 October and on 21
December 1962, pp. ix-xi. In these appeal proceedings, Appellants filed what they themselves
labelled a “Joint Application”, in which they indicated their intention to appoint a single judge
ad hoc. ICJ Application (B), p. 1, para. 34. They also filed a joint Memorial. Appellants thus
acted “in concert” as a single party in the proceedings before the ICAO Council and continue to do
the same before the Court.
543 ICAO Rules, Art. 28(1) (BEUM Vol. II, Annex 6) (emphasis added).

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throughout the ICAO proceedings, it lies ill in their mouth now to fault the Council for allocating
them the same amount of time at the hearing as Qatar. Indeed, had they been allocated more time,
Joint Appellants would have gained a further procedural advantage, on top of the fact that theirs
was the last written word before the hearing,544 which would indeed be in violation of the
principle of equality of arms codified in Article 28 of the ICAO Rules.545

5.48 Joint Appellants finally complain that they were required to address Applications (A) and (B)
together, although Saudi Arabia was not a party in the proceedings concerning Application (B).546
Once again, Joint Appellants omit a key fact: all of them, including Saudi Arabia, expressly agreed
to proceed in this way. This agreement is recorded in the minutes of the hearing:

“The Parties and the Council agreed to the proposal of the President for the concurrent
presentation and consideration of the two above-mentioned items, on the understanding that the
Council would take separate decisions thereon given that Application
(A) and Application (B) related to two different

544 Letter of 28 May 2018 from the Secretary-General of ICAO to the Appellants, attaching Email of
25 May 2018 from the Delegation of Qatar to the Secretary-General of ICAO (BEUM Vol. V, Annex 48)
545 ICAO Rules, Art. 28(1) (BEUM Vol. II, Annex 6). At a minimum, the principle of equality of arms
does not mean mathematical equality. As the International Criminal Tribunal for the Former
Yugoslavia held in the Orić case, the question is whether the amount of time granted to a party to
present its case is “objectively adequate”. See Prosecutor v. Naser Orić, Case IT-03-68-AR73.2,
Interlocutory Decision on Length of Defense Case (20 July 2005), para. 8. Nothing in the minutes of
the meeting of the Council, recording the great degree of similarity of the Parties’ oral arguments
to their written pleadings, or indeed Joint Appellants’ Memorial, suggests that the Joint
Appellants were deprived of an opportunity to present their case adequately.
546 BEUM, para. 3.58.

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international air law instruments … and that there were different Respondents thereto”.547
5.49 To conclude, Joint Appellants’ complaint that they had less time to present their case is
baseless. The Council did not violate any procedural norms, let alone “fundamental” norms, in
treating them as a single party and allocating them the same amount of time at the oral hearing as
Qatar.

3. The ICAO Council required the correct number of votes to decide the preliminary objections

5.50 Joint Appellants also challenge the ICAO Council’s Decision arguing that the Council
“incorrectly required 19 votes to uphold the Preliminary Objections, out of 33 members entitled to
participate in the vote, even though Article 52 of the Chicago Convention provides only that a mere
‘majority’ is needed”.548 As stated, Joint Appellants misstate the number of Members of the Council
who actually voted on Application (B). As the representative of the UAE stated during the hearing
“in accordance with Article 66 b) of the Chicago Convention 25 Council Members were eligible to
vote”, and therefore, in his opinion “13 positive votes constituted a majority”.549 It appears that
Joint Appellants’ meant to argue in their Memorial that the ICAO Council should have required 13
votes.550

5.51 This is not an issue the Court need even consider. Even if Joint Appellants were right (which
they are not, as shown below), it would make no practical

547 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 2 (BEUM Vol. V, Annex 53) (italics added; underlining in
original).
548 BEUM, para. 3.65(a).
549 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 111 (BEUM Vol. V, Annex 53).
550 Ibid. See also BEUM, para. 3.2(c).

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difference in this case. As stated, the ICAO Council’s Decision on Joint Appellants’ preliminary
objections was adopted by a vote of 18 to two (with five abstentions), 11 votes short of the lesser
majority Joint Appellants argue the Council should have required. Put simply, even if the Council
erred, that error was entirely harmless.

5.52 In any event, Joint Appellants’ argument is defeated by the text of the Chicago Convention,
the IASTA and previous Council practice. Article 52 of the Chicago Convention provides that
“[d]ecisions of the Council shall require approval by majority of its members”.551 Under Article 53
of the Chicago Convention, “[n]o member of the Council shall vote in the consideration by the
Council of a dispute to which it is a party”.552 In addition, Article 66 b) of the Convention
states that Members of the Council “who have not accepted the [IASTA]…shall not have the right to
vote on any questions referred to the…Council under the provisions of the relevant agreement”.553

5.53 Construing the plain terms of Article 52, which refer to the majority of the Council members,
not voting members, the ICAO Legal Bureau concluded in a 1971 working paper that “a member of the
Council does not cease to be a member of that body solely because its voting power is taken away
for some particular

551 Chicago Convention, Art. 52 (BEUM Vol. II, Annex 1) (emphasis added). The Rules of Procedure
for the Council define “Majority of the Members of the Council” as “more than half of the total
membership of the Council”. See ICAO Council, Rules of Procedure for the Council, ICAO Doc. 7559/10
(2014), Preliminary Section, Definitions (QCM (B) Vol. II, Annex 15).
552 Chicago Convention., Art. 53 (BEUM Vol. II, Annex 1).
553 Ibid., Art. 66. See also ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of
26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para. 109 (BEUM Vol. V, Annex 53).

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occasion by a provision of the Convention”.554 In other words, even if a member of the ICAO Council
is not entitled to vote, it is still deemed a “member” for purposes of calculating the number of
votes required to constitute a majority under Article 52.

5.54 Given that it has 36 members, the Council properly decided that the “majority” required under
Article 52 was 19 members.555

5.55 The ICAO Council’s decision is consistent with its previous practice. The India v. Pakistan
case is one example, decided at a time when the Council had only 27 members. The Council deemed the
majority in terms of Article 52 of the Chicago Convention to comprise of 14 Members, even though
India was not entitled to vote due to its status as party to the dispute.556 Another, more recent,
example is the Brazil v. the United States case, where the ICAO Council similarly required a
majority of 19 votes even though only 34 Council Members were eligible to vote.557 Neither party
complained of any procedural irregularity. Nor did Egypt,

554 ICAO Council, 74th Session, Working Paper: Voting in the Council on Disagreements and
Complaints brought under the Rules on Settlement, ICAO Doc. C-WP/5465 (21 Oct. 1971), pp. 2- 3 (QCM
(B) Vol. II, Annex 9). See also the response by the President of the ICAO Council during the
Council’s deliberations in the India v. Pakistan dispute stating that the statutory majority
required for a vote remains invariable regardless of who is entitled to vote in ICAO Council (ICAO
Council, 74th Session, Minutes of the Sixth Meeting, ICAO Doc. 8956-C/1001 (29 July 1979), para.
141 (QCM (B) Vol. II, Annex 8)).
555 The representative of the UAE at the hearing, H.E. Al Mansoori, requested that the Council
reconsider the requirement of a majority of 19 positive votes for the approval of the preliminary
objections. The Council rejected the request, noting the “absence of any desire … to determine what
constituted the voting majority other than the relevant provisions of the Chicago Convention”. See
ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO document
C-MIN 214/8, 23 July 2018, paras. 9, 113, 116-118 (BEUM Vol. V, Annex 53).
556 ICAO Council, 74th Session, Minutes of the Sixth Meeting, ICAO Doc. 8956-C/1001 (29 July 1979),
paras. 60, 93 (QCM (B) Vol. II, Annex 8).
557 See ICAO Preliminary Objections (B), Exhibit 2, ICAO Council – 211th Session, Summary Minutes
of the Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017, paras. 97-98 (BEUM
Vol. III, Annex 24)

153

the UAE or Saudi Arabia, all of which participated in the vote, raise any such complaint.

5.56 In response to a request for clarification by Joint Appellants during the hearing, the
Director of Legal Affairs and External Relations Bureau stated that his office “had examined the
historical records of previous ICAO proceedings…and that it had been the consistent and unanimous
practice of the Council to require approval of its decisions by a majority of its Members, which
currently stood at 19”.558 Joint Appellants misrepresent this exchange to suggest that the ICAO
Council abdicated its duty to interpret the Chicago Convention by deferring to the Legal
Director.559 They are wrong. As the Director of Legal Affairs himself explained during the meeting,
he simply “read the text of Article 52 of the Chicago Convention and recited to the Council the
factual historical records of previous Council decisions, no more, no less”.560 He did not
“interpret” anything, as Joint Appellants wrongly contend. It is therefore not true that ICAO
Council abdicated its judicial function to the Director of Legal Affairs.

5.57 Joint Appellants finally argue that the Council’s interpretation of Article 52 would mean that
“the ICAO Council might find itself unable to render a decision in circumstances where fewer than
19 States were eligible to vote”, and that “[i]n

558 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 112 (BEUM Vol. V, Annex 53).
559 BEUM, para. 362.
560 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 114 (BEUM Vol. V, Annex 53) (emphasis added).

154

such circumstances, Article 52 of the Chicago Convention would have no effet utile; in fact the
provision would be deprived of any effet at all”.561

5.58 Such a circumstance is purely hypothetical. It has never happened in the 71-year history of
ICAO. Moreover, the fact that the Council’s interpretation of Article 52 may not produce effet in
one exceptional circumstance—and the circumstance Joint Appellants mention would be exceptional, to
say the least— does not mean that it violates the principle of effet utile. To use the words of the
Court and of its predecessor in the cases Joint Appellants themselves cite, the principle of effet
utile would be violated only if it could be shown that under the Council’s interpretation, Article
52 “could never be applied in practice”;562 or that it would be deprived of “all practical
effect”563 or of “any significance”.564 That is plainly not the case here, as the practice of the
Council over the last 71 years demonstrates.

5.59 For all these reasons, any potential complaint by Joint Appellants’ that the Council erred in
requiring 13 votes to uphold the preliminary objections to Application (B) is baseless.

561 BEUM, para. 3.61.
562 Lighthouses Case between France and Greece, Judgment, 1934, P.C.I.J., Series A/B, No 62, p. 27
(emphasis added).
563 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971, para. 66 (emphasis added).
564 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, para. 52
(emphasis added); see also Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J.
Reports 1994, para. 51.

155

4. The ICAO Council properly rejected both of Joint Appellants’ preliminary objections

5.60 Finally, Joint Appellants contend that the Decision is “vitiated at its foundation” because
the question that the President of the Council ultimately put to vote “was neither introduced nor
seconded by a Member of the ICAO Council as required by the [Rules of Procedure for the
Council]”.565 This is another unfortunate misrepresentation of what happened at the hearing. The
original motion made by the Dean of the Council, Mexico’s Representative, and seconded by the First
Vice-President of the Council, Singapore’s Representative, to vote by secret ballot on “each of the
[Joint Appellants] preliminary objections with respect to Application (A) and Application (B)” was
never changed or modified.566 Bahrain intervened to suggest a different wording to the question but
did not make a formal motion to that effect.567

5.61 The President of the Council did not think it necessary to change the wording of the
question. He considered it clear that “for each of Qatar’s Application (A) and Application (B) the
Respondents had a preliminary objection for which they provided two justifications”.568 The minutes
of the session also record that the President “took the point made by [Bahrain’s Legal Advisor]
that the voting on each preliminary objection applied to both of the justifications provided
therefor”.569

565 BEUM, para. 3.65(c).
566 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 107 (BEUM Vol. V, Annex 53).
567 Ibid., para. 121 (emphasis added).
568 Ibid., para. 123 (emphasis added).
569 Ibid. (emphasis added).

156

5.62 All of the Council’s voting Members were present during these exchanges. All were therefore
aware that Joint Appellants had provided “two justifications” for their challenge to the Council’s
jurisdiction. There was no confusion about the way the question put to vote was phrased. And even
if it could be said, for the sake of argument, that the President of the Council improperly
conflated the two preliminary objections, Joint Appellants failed to appeal the President’s
determination under Article 36 of the Rules of Procedure for the Council and therefore waived their
right to complain now.570

5.63 For all these reasons, Joint Appellants’ claim that the procedures adopted by the Council
were “manifestly flawed” is entirely unfounded and must be rejected.

III. The Alleged Procedural Irregularities Did Not Prejudice “in Any Fundamental Way” the
“Requirements of a Just Procedure”

5.64 As stated, the Court in the 1972 ICAO Council Appeal case considered India’s allegations of
procedural irregularities before the ICAO Council irrelevant to the “objective question of law”
before it; namely, whether or not the ICAO Council correctly decided that it had jurisdiction.571
The Court also held that there was an additional, equally compelling reason to reject India’s
argument: even

570 See ICAO Council, Rules of Procedure for the Council, ICAO Doc. 7559/10 (2014), Rule 36 (QCM
(B) Vol. II, Annex 15). See also Appeal Relating to the Jurisdiction of the ICAO Council, Judgment,
Separate opinion of Judge Jiménez de Aréchaga, I.C.J. Reports, para. 42 (“When the questions were
put to the vote, no member of the Council (and India was one of them) raised an objection, or
challenged the right of the President to act as he did. Therefore, the decisions adopted by the
Council on the basis of such propositions cannot be challenged now by the appellant on these
grounds”).
571 See supra Chapter V, Section I.

157

accepting they happened, the irregularities alleged “[did] not prejudice in any fundamental way the
requirements of a just procedure”.572

5.65 The Court did not explain in its Judgment in the 1972 ICAO Council Appeal case what the
“requirements of just procedure” are. At a minimum, they include a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.573 Nothing in the
record before the ICAO Council suggests that Joint Appellants were deprived of these basic
guarantees in any way. As the President of the Council reminded all the Members at the beginning of
the hearing, “the Council was sitting as a judicial body under article 84 of the Chicago
Convention, taking its decisions on the basis of the submission of written documents by the
Parties, as well on the basis of oral arguments”.574 Moreover, every procedural decision by the
ICAO Council leading to its ultimate Decision was properly justified under the Rules for the
Settlement of Differences,575 by reference to the practice of the ICAO Council,576 and in
consultation with ICAO’s Director of Legal Affairs.577

5.66 The Court will recall that in the 1972 ICAO Council Appeal case India complained in essence of
four alleged procedural irregularities: (1) the ICAO

572 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J.
Reports 1972, para. 45.
573 Charles T. Kotuby Jr & Luke Sobota, General Principles of Law and International Due Process
(2018), p. 59 (QCM (B) Vol. IV, Annex 118).
574 ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO
document C-MIN 214/8, 23 July 2018, para. 6 (BEUM Vol. V, Annex 53).
575 See, e.g., ICAO Council – 214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018,
ICAO document C-MIN 214/8, 23 July 2018, para. 122 (BEUM Vol. V, Annex 53).
576 See, e.g., ibid., para. 106.
577 See, e.g., ibid., para. 112.

158

Council failed to state reasons in its decision;578 (2) the decision of the ICAO Council was
vitiated by the fact that the questions were framed in the wrong manner;579 (3) the Council’s
decision on Pakistan’s Complaint was not supported by a statutory majority;580 and (4) some members
of the Council were not able to participate in the deliberations and in the final decision of the
Council.581

5.67 In this case, the putative procedural irregularities Joint Appellants identify closely
resemble India’s. According to Joint Appellants:

1. The ICAO Council failed to state reasons in its decision (this closely resembles India’s first
alleged procedural irregularity);582
2. The question submitted for vote was improperly framed, which resulted in the ICAO Council voting
on the wrong premise that there was only one objection to be decided583 (this closely resembles
India’s second alleged procedural irregularity);

578 I.C.J. Oral Arguments, Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Minutes of the public sitting held at the Peace Palace, The Hague, from 19 June to 3
July, and on 18 August 1972, p. 607.
579 I.C.J. Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
Memorial submitted by the Government of India (22 Dec. 1971), para. 93(1).
580 Ibid., para. 93(2).
581 Ibid., para. 93(3).
582 BEUM, para. 3.2 (e).
583 Ibid., para. 3.30.

159

3. The ICAO Council incorrectly required 19 votes to uphold the preliminary objections584 (this
closely resembles India’s third alleged procedural irregularity); and

4. The Council took its decision without any deliberation585 (this closely resembles India’s fourth
alleged procedural irregularity).

5.68 The Court did not consider that the substantially identical irregularities India alleged
would have prejudiced in any “fundamental way the requirements of a just procedure” in the 1972
ICAO Council Appeal case. The same is equally true here.

5.69 The remaining procedural complaints Joint Appellants raise are that:

1. They were allocated the same amount of time as Qatar although each of them was appearing as a
respondent in its own right;

2. The decision was taken by secret ballot despite the request by Joint Appellants for a roll call
with open vote.

5.70 For the reasons already explained, neither of these prejudiced the requirements of a just
procedure, still less in a fundamental way.

5.71 The fact that the ICAO Council allocated Joint Appellants the same amount of time as Qatar
does not mean they were not granted an adequate opportunity to present their case. As the Court’s
jurisprudence makes clear, the principle of procedural equality is met when the parties “have
had adequate and in large

584 Ibid., para. 3.65 (a).
585 Ibid., para. 3.37.

160

measure equal opportunities to present their case …”.586 Joint Appellants have failed to show that
the time allocated to them was inadequate to present their case to the Council, or that the time
they had was insufficient compared to the time Qatar had. In the end, Joint Appellants enjoyed
ample opportunities to present their case through written and oral submissions.587

5.72 Joint Appellants’ complaint that the vote was taken by secret ballot is equally unavailing. In
their view, the voting method was irregular since there was a request by Saudi Arabia for a roll
call.588 But as shown above, the vote was entirely consistent with the ICAO Council’s Rules of
Procedure and practice.589 Not only that, but in the one previous decision of the ICAO Council
adopted in this manner, it was one of the Joint Appellants, the UAE, that proposed a vote by secret
ballot to the Council.590

5.73 In sum, even if they occurred (quod non), none of the procedural irregularities Joint
Appellants complain of can be said to have deprived them of a just procedure before the ICAO
Council.

*

586 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon
a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion,
I.C.J. Reports 2012, para. 47.
587 See supra, paras. 5.16-5.20.
588 BEUM, para. 1.12.
589 See supra, paras. 5.29-5.34
590 See ICAO Preliminary Objections (B), Exhibit 2, ICAO Council – 211th Session, Summary Minutes
of the Ninth Meeting of 21 June 2017, ICAO document C-MIN 211/9, 5 July 2017, para. 97 (BEUM Vol.
III, Annex 24).

161

5.74 For all the reasons set forth above, Qatar respectfully requests the Court to reject Joint
Appellants’ First Ground of Appeal.

162

SUBMISSIONS

On the basis of the facts and law set forth in this Counter-Memorial, Qatar respectfully requests
the Court to reject Joint Appellants’ appeal and affirm the ICAO Council’s Decision of 29 June 2018
dismissing Joint Appellants’ preliminary objection to the Council’s jurisdiction and competence to
adjudicate Qatar’s Application (B) of 30 October 2017.

Respectfully submitted,

Dr. Mohammed Abdulaziz Al-Khulaifi AGENT OF THE STATE OF QATAR
25 February 2019

163

CERTIFICATION

I certify that all Annexes are true copies of the documents referred to and that the translations
provided are accurate.

Dr. Mohammed Abdulaziz Al-Khulaifi AGENT OF THE STATE OF QATAR
25 February 2019

164

LIST OF ANNEXES VOLUME II
FIGURES

Figure 1 Thirteen ATS Routes Available Pre-Aviation Prohibitions Figure 2 Two ATS
Routes Available Post-Aviation Prohibitions Figure 3 Seven ATS Routes Available as
of 4 February2019
ANNEXES

ICAO CORRESPONDENCE AND DOCUMENTS
Annex 1 ICAO Assembly, Resolution A15-7: Condemnation of the Policies of Apartheid and Racial
Discrimination of South Africa, ICAO Doc. 8528 (22 June-16 July 1965)

Annex 2 ICAO Assembly, Resolution A18-4: Measures to be taken in pursuance of Resolutions
2555 and 2704 of the United Nations General Assembly in relation to South Africa ICAO Doc. 8958 (15
June-7 July 1971)

Annex 3 ICAO Council, Action of the Council: Seventy-fourth Session, ICAO Doc. 8987-C/1004
(8 July 1971, 27-29 July 1971, 28
Sept.– 17 Dec. 1971)

Annex 4 ICAO Council, 74th Session, Minutes of the Second Meeting, ICAO Doc. 8956-C/1001
(27 July 1971)

Annex 5 ICAO Council, 74th Session, Minutes of the Third Meeting, ICAO Doc. 8956-C/1001 (27
July 1971)

Annex 6 ICAO Council, 74th Session, Minutes of the Fourth Meeting, ICAO Doc. 8956-C/1001
(28 July 1971)

165

Annex 7 ICAO Council, 74th Session, Minutes of the Fifth Meeting, ICAO Doc.
8956-C/1001 (28 July 1971)

Annex 8 ICAO Council, 74th Session, Minutes of the Sixth Meeting, ICAO Doc.
8956-C/1001 (29 July 1971)

Annex 9 ICAO Council, 74th Session, Working Paper: Voting in the Council on Disagreements and
Complaints brought under the Rules on Settlement, ICAO Doc. C-WP/5465 (21 Oct. 1971)

Annex 10 ICAO Council, Règlement pour la Solution des Différends
(1957, amended 10 Nov. 1971)

Annex 11 ICAO Council, Cuba v. United States, Memorial of Cuba (11 July 1996)

Annex 12 ICAO Council, United States v. 15 EU Member State, Memorial of the United States
(14 March 2000)

Annex 13 ICAO Council, 161st Session, Summary Minutes of the Fourth Meeting, ICAO Doc. C-MIN 161/4
(15 Nov. 2000)

Annex 14 ICAO Assembly, Resolution 38-12: Consolidated statement of continuing ICAO
policies and associated practices relatedspecifically to air navigation, ICAO Doc. 10022 (entered
into force as of 4 Oct.
2013)

Annex 15 ICAO Council, Rules of Procedure for the Council, ICAO Doc.
7559/10 (2014)

Annex 16 Convention on International Civil Aviation, Annex 15:Aeronautical Information Services
(15th ed., July 2016)

Annex 17 Convention on International Civil Aviation, Annex 11: Air Traffic Services (14th ed.,
July 2016)

Annex 18 ICAO Council, ICAO Annual Report: Settlement of Differences, available at
https://www.icao.int/annual-report-2017/Pages/
supporting-implementation-strategies-legal-and-external-relations-
services-settlement-of-differences.aspx (last accessed: 31 Jan.
2019)

Annex 19 Hernán Longo, “Sharing information in order to fight against terrorism”, ICAO, Hong Kong
ICAO TRIP Regional Seminar (2017), available at https://www.icao.int/Meetings/TRIP- HongKong-2017/
Documents/1.HERNAN%20LONGO.pdf

166

VOLUME III ANNEXES
ICAO CORRESPONDENCE AND DOCUMENTS
Annex 20 Convention on International Civil Aviation, Annex 17: Security (10th ed., Apr.
2017)

Annex 21 Letter from Abdulla Nasser Turki Al-Subaey, Chairman of Qatar Civil Aviation Authority, to
Fang Liu, ICAO Secretary General (5 June 2017)

Annex 22 Letter from Fang Liu, ICAO Secretary General, to Abdulla Nasser Turki Al-Subaey,
Chairman of Qatar Civil Aviation Authority, Reference No. AN 13/4/3/Open-AMO66892 (7 June 2017)

Annex 23 ICAO Council, 211th Session, Ninth Meeting: Summary of Decisions, ICAO Doc. C-DEC
211/9 (21 June 2017)

Annex 24 ICAO Council, 211th Session, Summary Minutes of the Tenth Meeting, ICAO Doc. C-MIN
211/10 (23 June 2017)

Annex 25 ICAO Council, 211th Session, Tenth Meeting, Summary of Decision, ICAO Doc. C-DEC
211/10 (23 June 2017)

Annex 26 ICAO Council, First ATM Contingency Coordination Meeting For Qatar, Summary of
Discussions, ICAO Doc. ACCM/1 (6 July 2017)

Annex 27 ICAO Council, Third ATM Contingency Coordination Meeting for Qatar, Summary of
Discussions, ICAO Doc. ACCM/3 (5-6 Sept.
2017)

Annex 28 Letter from John V. Augustin to Fang Liu, ICAO Secretary General (5 Oct. 2017)

Annex 29 Letter from President of ICAO Council to Representatives of the Council, ICAO Doc. PRES
OBA/273 (9 Feb. 2018)

Annex 30 Letter from Essa Abdulla Al-Malki, Permanent Representative of Qatar, to Fang Liu, ICAO
Secretary General (12 Mar. 2018)

167

Annex 31 Letter from Aysha Alhameli, Representative of UAE to ICAO Council to Fang
Liu, ICAO Secretary General, UAE-DEL/L-13-2018 (19 Mar. 2018)

Annex 32 Letter from Fang Liu, ICAO Secretary General, to Essa Abdulla Al- Malki, Agent for the
State of Qatar (20 Mar. 2018)

Annex 33 ICAO, Interactive Map, “Cairo FIR”, available at https://gis.icao.int/
icaoviewernew/#/41.3577/23.5481/6 (data updated: 17 Apr. 2018)

Annex 34 ICAO Council, Fourth ATM Contingency Coordination Meeting for Qatar, Summary of
Discussions, ICAO Doc. ACCM/4 (28 April 2018)

Annex 35 Letter from President, First Vice-President and Secretary General of ICAO Council to
Representatives on the Council, ICAO Doc. PRES OBA/2771 (15 May 2018)

Annex 36 Letter from Ahmed H. Mostafa Khedr, Representative of the Arab Republic of Egypt before
ICAO, to Fang Liu, ICAO Secretary General (12 June 2018)

Annex 37 ICAO Council, 215th Session, Working Paper: Post-Employment Activities of ICAO
Personnel, ICAO Doc. HR-WP/56 (22 Aug. 2018)

QATARI GOVERNMENT DOCUMENTS
Annex 38 Letter from Abdul Latif Bin Rashid Al-Ziyani, GCC Secretary General, to Khalid Bin
Mohamed Al Ativa, Minister of Foreign Affairs of the State of Qatar (19 May 2014)

Annex 39 Letter from Muhammad Bin Abdul Rahman Al Thani, Minister of Foreign Affairs of the State
of Qatar, to Abdulatif Bin Rashid Al Zayani, GCC Secretary General (7 Aug. 2017)

Annex 40 Letter from Mohamed Bin Abdul Rahman Bin Jassim Al Thani, Minister of Foreign Affairs of
State of Qatar, to Abdul Latif Bin Rashid Al-Ziyani, Secretary-General of GCC (19 Feb. 2017)

Annex 41 State of Qatar, Ministry of Interior, National Counter Terrorism Committee, National
Terrorist Designation Lists, Designation Order No. 2 (21 Mar. 2018)

168

Annex 42 State of Qatar, Ministry of Justice, “Qatar Doubles Contribution to Global
Community Engagement & Resilience Fund” (30 May 2018), available at
https://www.mofa.gov.qa/en/all-mofa-news/
details/2018/05/30/qatar-doubles-contribution-to-global-community- engagement-resilience-fund

Annex 43 State of Qatar, Ministry of Interior, National Counter Terrorism Committee, National
Terrorist Designation Lists, Designation Order No. 4 (28 Aug. 2018)

QATARI LEGISLATION
Annex 44 State of Qatar, Law No. 4 of 2010 on Combating Money Laundering and Terrorism
Financing (18 Mar. 2010)

Annex 45 State of Qatar, Decree No. 11 of 2017 to Amend Law No. 3 of 2004 (13 July 2017)

OTHER GOVERNMENT DOCUMENTS
Annex 46 U.S. Department of State, Global Counterterrorism Forum Co- Chairs: About the
Global Counterterrorism Forum (GCTF) (23 Sept. 2014), available at
https://www.state.gov/j/ct/rls/fs/fs/232003.htm

Annex 47 U.S. Department of State, Bureau of Counterterrorism and Countering Violent Extremism,
Country Reports on Terrorism, Chapter 4: Terrorist Safe Havens (Update to 7120 Report) (2017),
available at https://www.state.gov/j/ct/rls/crt/2017/282849.htm

Annex 48 “The Kingdom severs diplomatic and consular relations with Qatar”, Saudi Ministry of
Foreign Affairs (6 June 2017), available athttps://
www.mofa.gov.sa/sites/mofaen/ServicesAndInformation/news/
MinistryNews/Pages/ArticleID201765134958689.aspx

Annex 49 U.S. Department of State, Press Availability with Qatari Foreign Minister Sheikh Mohammed
bin Abdulrahman al-Thani (11 July 2017), available at
https://www.state.gov/secretary/20172018tillerson/ remarks/2017/07/272522.htm

Annex 50 Ministry of Defence of United Kingdom, Defence Secretary hosts Qatari
counterpart at historic Horse Guards (16 Jan. 2018), available at
https://www.gov.uk/government/news/defence-secretary-hosts-
qatari-counterpart-at-historic-horse-guards

169

Annex 51 U.S. Department of State, Joint Statement of the Inaugural United States-Qatar Strategic
Dialogue (30 Jan. 2018), available at https:// www.state.gov/r/pa/prs/ps/2018/01/277776.htm

Annex 52 U.S. Embassy & Consulate in the UAE, Meeting of the Terrorist Financing Targeting Center
Member States Convenes in Kuwait (6 Mar. 2018), available at https://ae.usembassy.gov/meeting-
terrorist-financing-targeting-center-member-states-convenes-kuwait- march-6-2018/

Annex 53 U.S. Department of State, Secretary Pompeo’s Meeting with Qatari Foreign Minister Al
Thani (26 June 2018), available at https://www. state.gov/r/pa/prs/ps/2018/06/283519.html

OFFICIAL STATEMENTS
Annex 54 Permanent Mission of the State of Qatar to the United Nations Office in
Geneva, Switzerland, HE the Foreign Minister delivers astatement before the 36th Session of the
Human Rights Council (11 Sept. 2017), available at
http://geneva.mission.qa/en/news/detail/2017/09/17/
he-the-foreign-minister-delivers-a-statement-in-front-of-the-36th-
session-of-the-human-rights-council

Annex 55 UN General Assembly, 72nd Session, General Debate, Address by His Highness Sheikh Tamim
bin Hamad Al-Thani, Amir of the State of Qatar (19 Sept. 2017)

Annex 56 UN General Assembly, 72nd Session, General Debate, Statement of H.E. Abdel Fattah
Al-Sisi, President of the Arab Republic of Egypt (19 Sept. 2017)

Annex 57 UN General Assembly, 72nd Session, General Debate, Statement by His Highness
Sheikh Abdullah Bin Zayed Al Nahyan, Minister of Foreign Affairs and International Cooperation of
the United Arab Emirates (22 Sept. 2017)

Annex 58 UN General Assembly, 72nd Session, General Debate, H.E. Mr. Shaikh Khalid Bin Ahmed Bin
Mohamed Al Khalifa, Minister for Foreign Affairs of Bahrain (22 Sept. 2017)

Annex 59 UN General Assembly, 72nd Session, General Debate, H.E. Mr. Adel Ahmed Al-Jubeir,
Minister of Foreign Affairs of Saudi Arabia, Summary of Statement (23 Sept. 2017)

170

VOLUME IV ANNEXES
PRESS ARTICLES
Annex 60 Steven Lee Myers, “Qatar Court Convicts 2 Russians in Top Chechen’s Death”, New
York Times (1 July 2004), available at https://www.
nytimes.com/2004/07/01/world/qatar-court-convicts-2- russians-in- top-chechen-s-death.html

Annex 61 Susan B. Glasser, “Martyrs’ in Iraq Mostly Saudis”, Washington Post (15 May
2005), available athttp://www.washingtonpost.com/wp-dyn/
content/article/2005/05/14/AR2005051401270.html

Annex 62 Declan Walsh, “WikiLeaks cables portray Saudi Arabia as a cash machine for terrorists”,
The Guardian (5 Dec. 2010), available at
https://www.theguardian.com/world/2010/dec/05/wikileaks-cables- saudi-terrorist-funding

Annex 63 Aram Bakshian Jr., “The Unlikely Rise of Al Jazeera”, The Atlantic (10 Jan.
2012), available at https://www.theatlantic.com/international/ archive/2012/01/the-
unlikely-rise-of-al-jazeera/251112/

Annex 64 “September 11 Hijackers Fast Facts”, CNN (27 July 2013), available at
https://www.cnn.com/2013/07/27/us/september-11th-hijackers-fast- facts/index.html

Annex 65 “Video: Dubai ruler praises Al-Qaradawi for his scholarly achievements”, Middle East
Monitor (12 Apr. 2014), available at https://www.middleeastmonitor.com/20140412-video-dubai-ruler-
praises-al-qaradawi-for-his-scholarly-achievements/

Annex 66 Ala’a Shehabi, “Why is Bahrain Outsourcing Extremism?”, Foreign Policy (29 Oct. 2014),
available at https://foreignpolicy. com/2014/10/29/why-is-bahrain-outsourcing-extremism/

Annex 67 “Qatar recalls envoy to Egypt in row over Libya strikes”, BBC News (19 Feb.
2015), available at https://www.bbc.com/news/world- middle- east-31532665

171

Annex 68 “Qatar row: Air travellers hit by grounded flights”, BBC (5 June 2017),
available athttps://www.bbc.com/news/world-middle-east-40159085

Annex 69 Jamie McIntyre, “US base in Qatar still running the fight against ISIS amid
diplomatic rift in the Middle East”, Washington Examiner (5 June 2017), available at
https://www.washingtonexaminer.com/us- base-in-
qatar-still-running-the-fight-against-isis-amid-diplomatic- rift-in-the- middle-east

Annex 70 Naveed Siddiqui, “550 Pakistani pilgrims stranded in Qatar flown to Muscat”, Dawn (6 June
2017), available at https://www.dawn.com/ news/1337785

Annex 71 Zahraa Alkhalisi, “Arab blockade is nightmare for Qatar Airways”, CNN (6 June
2017), available at https://money.cnn.com/2017/06/06/
news/qatar-airways-blockade-nightmare/index.html

Annex 72 Jon Gambrell, “Emirati diplomat to AP: ‘Nothing to negotiate’ with Qatar”,
Associated Press (7 June 2017), available at https://apnews.co m/3a69bad153e24102a4dd23a6111613ab

Annex 73 “Gulf blockade disrupts Qatar Airways flights”, Al Jazeera (7 June 2017),
available at https://www.aljazeera.com/news/2017/06/gulf-
blockade-disrupts-qatar-airways-flights-170606081841215.html

Annex 74 Max Bearak, “Three maps explain how geopolitics has Qatar Airways in big
trouble”, Washington Post (7 June 2017), available at https://
www.washingtonpost.com/news/worldviews/wp/2017/06/07/three-
maps-explain-how-geopolitics-has-qatar-airways-in-big-trouble/?utm_ term=.5f6aff93a5e6; (Video
recordings on CD-rom located at the end of this Volume)

Annex 75 C. Alexander & S. Dodge, “Muslim Brotherhood Is at the Heart of Gulf Standoff With
Qatar”, Bloomberg (7 June 2017), available at https://
www.bloomberg.com/graphics/2017-muslim-brotherhood

Annex 76 Maher Chmaytelli, “Iraq says it still has Qatari money sent to free ruling family
members”, Reuters (11 June 2017), available at https://
www.reuters.com/article/us-mideast-crisis-iraq-qatar/iraq-says-
it-still-has-qatari-money-sent-to-free-ruling-family-members- idUSKBN1920Y5

172

Annex 77 “Slump in travel to and from Qatar as thousands of airline bookings are
cancelled”, The National (13 June 2017), available at https://
www.thenational.ae/business/slump-in-travel-to-and-from-qatar-as-
thousands-of-airline-bookings-are-cancelled-1.80185

Annex 78 A. Gearan & K. DeYoung, “State Department issues unusual public warning to Saudi
Arabia and UAE over Qatar rift”, Washington Post (20 June 2017), available at
https://www.washingtonpost.com/world/
national-security/state-department-issues-unusual-public-warning-to-
saudi-arabia-and-uae-over-qatar-rift/2017/06/20/66294a58-55e9- 11e7- a204-ad706461fa4f_story.html

Annex 79 “Qatar given 10 days to meet 13 sweeping demands by Saudi Arabia”, The Guardian
(23 June 2017), available at https://www.theguardian.
com/world/2017/jun/23/close-al-jazeera-saudi-arabia-issues-qatar- with-13-demands-to-end-blockade

Annex 80 “Saudi demands from Qatar ‘very provocative’: Germany”, Reuters (26 June
2017), available at https://www.reuters.com/article/us-gulf-
qatar-germany/saudi-demands-from-qatar-very-provocative- germany- idUSKBN19H2A3

Annex 81 Naser Al Wasmi, “UAE and Saudi put pressure on Qatar ahead of demands deadline”, The
National (28 June 2017), available at https://
www.thenational.ae/world/uae-and-saudi-put-pressure-on-qatar- ahead-of-demands-deadline-1.92119

Annex 82 N. Gaouette & Z. Cohen, “US and Qatar broker counterterrorism agreement”, CNN (11 July
2017), available at https://www.cnn.
com/2017/07/11/politics/tillerson-qatar-terrorism-memorandum-of- understanding/index.html

Annex 83 Jamie Merrill, “REVEALED: 9/11 families could sue UAE for alleged role in
attacks”, Middle East Eye (14 July 2017), available at https://
www.middleeasteye.net/news/xxx-376213863

Annex 84 K. DeYoung & E. Nakashima, “UAE orchestrated hacking of Qatari government sites, sparking
regional upheaval, according to U.S. intelligence officials”, Washington Post (16 July 2017),
available
at https://www.washingtonpost.com/world/national-security/
uae-hacked-qatari-government-sites-sparking-regional-upheaval-
according-to-us-intelligence-officials/2017/07/16/00c46e54-698f- 11e7- 8eb5-cbccc2e7bfbf_story.html

173

Annex 85 “Arab countries’ six principles for Qatar ‘a measure to restart the negotiation
process”, The National (19 July 2017), available at https://
www.thenational.ae/world/gcc/arab-countries-six-principles-for-qatar-
a-measure-to-restart-the-negotiation-process-1.610314

Annex 86 “Emir speech in full text: Qatar ready for dialogue but won’t compromise on
sovereignty”, The Peninsula (22 July 2017), available at
https://thepeninsulaqatar.com/article/22/07/2017/Emir-speech- in-
full-text-Qatar-ready-for-dialogue-but-won%E2%80%99t- compromise-on-sovereignty

Annex 87 “Protests outside UAE Embassy in New Delhi over 26/11 terror funding allegations”,
New India Express (6 Aug. 2017), available at
http://www.newindianexpress.com/cities/delhi/2017/aug/06/
protests-outside-uae-embassy-in-new-delhi-over-2611-terror- funding- allegations-1639346.html

Annex 88 “Emergency corridors opened before Qatar Airways”, Al Arabiya (9 Aug. 2017)
available at https://www.youtube.com/ watch?v=gIqCPuto9gU; (Video recording on CD-rom located at
the end of this Volume); (Transcript of English subtitles and of Arabic original)

Annex 89 “Saudi Arabia suspends dialogue, saying Qatar ‘distorting facts’”, The Guardian (8 Sept.
2017), available at https://www.theguardian.com/
world/2017/sep/09/saudi-arabia-suspends-dialogue-saying-qatar- distorting-facts

Annex 90 “Hopes for Qatar crisis breakthrough raised, shattered within minutes”, Gulf News (9
Sept. 2017), available at https://gulfnews.com/world/
gulf/qatar/hopes-for-qatar-crisis-breakthrough-raised-shattered- within-minutes-1.2087108

Annex 91 “Qatar crisis: Saudi Arabia angered after emir’s phone call”, BBC News (9 Sept.
2017), available at https://www.bbc.com/news/world-middle- east-41209610

Annex 92 Peter Salisbury, “The fake-news hack that nearly started a war this summer was designed
for one man: Donald Trump”, Quartz (20 Oct. 2017), available at
https://qz.com/1107023/the-inside-story-of-the- hack-that-nearly-started-another-middle-east-war/

174

Annex 93 “Qatar’s sanctions hit 13 facilitators of terrorism”, Qatar Tribune (26 Oct. 2017),
available at http://www.qatar-tribune.com/news-details/ id/92566

Annex 94 Bethan McKernan, “US and Saudi Arabia arms significantly enhanced Isis’ military
capabilities, report reveals”, The Independent (15 Dec.
2017), available at https://www.independent.co.uk/news/world/
middle-east/isis-us-saudi-arabia-arms-fighters-jihadis-military-
capability-enhanced-weapons-syria-terrorism-a8112076.html

Annex 95 Noah Browning, “Qatar puts 28 people and entities on newterrorism list”, Reuters
(22 March 2018), available at https://www.reuters.com/
article/us-gulf-qatar-security/qatar-puts-28-people-and-entities-on-
new-terrorism-list-idUSKBN1GY222

Annex 96 G. Jaffe & M. Ryan, “ADubai shopping trip and a missed chance to capture the head of
the Taliban”, Washington Post (24 Mar. 2018), available at
https://www.washingtonpost.com/world/national-
security/a-dubai-shopping-trip-and-a-missed-chance-to-capture- the-
head-of-the-taliban/2018/03/24/0137dd66-2ba0-11e8-8ad6-
fbc50284fce8_story.html?utm_term=.1597ebb9b696

Annex 97 Jonathan Stempel, “Saudi Arabia must face U.S. lawsuits over Sept.
11 attacks”, Reuters (28 Mar. 2018), available at https://www.reuters.com/
article/us-usa-saudi-sept11/saudi-arabia- must-face-u-s-lawsuits-over-
sept-11-attacks-idUSKBN1H43A1

Annex 98 “Co-Led by US, Saudi Arabia, TFTC Members Meet in Kuwait”, Kuwait News Agency (11 May
2018), available at https://www.kuna.net.kw/ ArticleDetails.aspx?srcilaw&id2726718&language=en

Annex 99 “Bahrain sees ‘no glimmer of hope’ for ending Qatar crisis soon”, Reuters (27 May 2018),
available at https://af.reuters.com/article/ commoditiesNews/idAFL5N1SY020

Annex 100 “Qatar’s efforts in combating terrorism win German praise”, Gulf Times (14 July
2018), available at https://www.gulf- times.com/story/599458/
Qatar-s-efforts-in-combating-terrorism-win- German

175

Annex 101 Dominic Dudley, “Saudi Arabia Accused Of Turning A Blind Eye To International Terrorism
Financing By Global Watchdog”,
Forbes (25 Sept. 2018), available at https://www.forbes.com/sites/
dominicdudley/2018/09/25/saudi-arabia-accused-of-turning-
a-blind-eye-to-international-terrorism-financing-by-global- watchdog/#5bbd8f767630

Annex 102 Stephen Kalin, “Qatar rift overshadows Gulf Arab summit as emir stays away”, Reuters
(8 Dec. 2018), available at https://www.reuters.com/ article/us-gulf-qatar/qatar-rift-
overshadows-gulf-arab-summit-as- emir-stays-away- idUSKBN1O803S

Annex 103 “Interpol removes red notice against Islamic scholar Yusuf Al Qaradawi”, TRT World (13
Dec. 2018), available at https://www. trtworld.com/middle-east/interpol-removes-red-notice-against-
islamic-scholar-yusuf-al-qaradawi-22453

Annex 104 S. Kalin & F. Guarascio, “EU adds Saudi Arabia to draft terrorism financing list:
sources”, Reuters (25 Jan. 2019), available at
https://www.reuters.com/article/us-eu-saudi-moneylaundering/ eu-
adds-saudi-arabia-to-draft-terrorism-financing-list-sources- idUSKCN1PJ23J

Annex 105 C. Bing & J. Schectman, “Inside the UAE’s secret hacking team of American mercenaries”,
Reuters (30 Jan. 2019), available at https://
www.reuters.com/investigates/special-report/usa-spying-raven/

Annex 106 N. Elbagir, S. Abdelaziz, M.A. El Gheit & L. Smith-Spark, “Sold to an ally, lost to an
enemy”, CNN (Feb. 2019), available at https://edition.
cnn.com/interactive/2019/02/middleeast/yemen-lost-us-arms/

Annex 107 Francesco Guarascio, “EU adds Saudi Arabia to dirty-money blacklist, upsets UK,
U.S.”, Reuters (13 Feb. 2019), available at https://www.
reuters.com/article/us-eu-saudi-moneylaundering/eu- adds-saudi-
arabia-to-dirty-money-blacklist-upsets-britain- idUSKCN1Q215X

176

BOOKS, JOURNAL ARTICLES, REPORTS
Annex 108 E. Cannizzaro & B. Bonafè, “Fragmenting International Law through Compromissory Clauses?
Some Remarks on the Decision of the ICJ in the Oil Platforms Case”, European Journal of
International Law (2005), Vol. 16, No. 3 (2005)

Annex 109 Adrian Guelke, Terrorism and Global Disorder (2006)

Annex 110 Ruwantissa Abeyratne, Convention on International Civil Aviation, A Commentary (2014)

Annex 111 Ibrahim Hatlani, “Bahrain Between its Backers and the Brotherhood”, Carnegie Endowment
for International Peace (20 May 2014), available at http://carnegieendowment.org/sada/55653

Annex 112 Human Rights Watch, All According to Plan: The Rab’a Massacre and Mass Killings
of Protesters in Egypt, (12 Aug. 2014), available at
https://www.hrw.org/report/2014/08/12/all-according-plan/raba-
massacre-and-mass-killings-protesters-egypt

Annex 113 “Financing of the Terrorist Organisation Islamic State in Iraq and the Levant (ISIL)”,
FATF (Feb. 2015), available at http://www.fatf-
gafi.org/media/fatf/documents/reports/Financing-of-the-terrorist- organisation-ISIL.pdf

Annex 114 E. Benmelech & E.F. Klor, “What Explains the Flow of Foreign Fighters to ISIS?”,
National Bureau of Economic Research, Working Paper 22190 (April 2016), available at
https://www.nber.org/papers/w22190. pdf

Annex 115 Marc Lynch, “In Uncharted Waters: Islamist Parties Beyond Egypt’s Muslim Brotherhood”,
Carnegie Endowment for International Peace (16 Dec. 2016), available at https://carnegieendowment.
org/2016/12/16/in-uncharted-waters-islamist-parties-beyond-egypt-s- muslim-brotherhood-pub-66483
Annex 116 Paul Stephen Dempsey, Public International Air Law (2017) Annex 117
Kylie Moore-Gilbert, “ABand of (Muslim) Brothers? Exploring
Bahrain’s Role in the Qatar Crisis”, Middle East Institute (3 Aug.
2017), availableat https://www.mei.edu/publications/band-muslim- brothers-
exploring-bahrains-role-qatar-crisis#_ftnref16

177

Annex 118 C. Kotuby Jr. & L. Sobota, General Principles of Law and International Due Process (2018)

Annex 119 “The Battle over Appointing Judges in Egypt”, Carnegie Endowment for International
Peace (16 Jan. 2018), available at https:// carnegieendowment.org/sada/75274

Annex 120 FATF-MENAFATF, Anti-money laundering and counter-terrorist financing measures –
Saudi-Arabia, Fourth Round Mutual Evaluation Report, FATF, Paris (Sept. 2018), available
athttp://www.fatf- gafi.org/ publications/mutualevaluations/documents/mer-saudi- arabia-2018. html

OTHER DOCUMENTS
Annex 121 “Qatar Espionage case”, The Tahrir Institute for Middle East Policy, available at
https://timep.org/transitional-justice-project/phase-I/ qatar-espionage-case/ (last accessed: 14
Feb. 2019)

Annex 122 “Unacceptable call for Al Jazeera’s closure in Gulf crisis”, Reporters Without Borders
(28 June 2017), available at https://rsf.org/en/news/
unacceptable-call-al-jazeeras-closure-gulf-crisis

Annex 123 Kevin Jon Heller, “Saudi Arabia Threatens to Shoot Down a Qatari Airways Plane”,
OpinioJuris (18 Aug. 2017), available at http:// opiniojuris.org/2017/08/18/33233/

Annex 124 Committee to Protect Journalists, Data & Research (2018), available at
https://cpj.org/data/imprisoned/2018/?status=Imprisoned&
cc_fips%5B%5D=QA&start_year=2018&end_year=2018&group_ by=location

Annex 125 Council on Foreign Relations, A Conversation With Adel al-Jubeir (26 Sept. 2018),
available at https://www.cfr.org/event/conversation-adel- al-jubeir

Annex 126 Doha Forum, Qatar Announces Half a Billion USD in Funds to UN Agencies, (Dec. 2018),
available athttps://dohaforum.org/blog/press/
post/qatar-announces-half-a-billion-usd-in-funds-to-un-agencies/

178

Annex 127 “UN rights chief urges talks to save Egypt from further disastrous violence”, UN News
(15 Aug. 2013), available at https://news.un.org/
en/story/2013/08/446802-un-rights-chief-urges-talks-save-egypt- further-disastrous-violence

Annex 128 “Khashoggi trial in Saudi Arabia falls short of independent, international probe
needed: UN rights chief ”, UN News (4 Jan. 2019), available at
https://news.un.org/en/story/2019/01/1029772

Annex 129 Office of the High Commissioner for Human Rights, Independent human rights expert
to visit Turkey to launch international inquiry into Khashoggi case (25 Jan. 2019), available at
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?Ne wsID=24113&LangID=E

Annex 130 Financial Action Task Force (FATF), “Who we are”, available at
http:// www.fatf-gafi.org/about/ (last accessed: 1 Feb. 2019)

Annex 131 Global Coalition, 79 Partners, available at http://theglobalcoalition. org/en/partners/
(last accessed: 1 Feb. 2019)

Annex 132 Global Community Engagement and Resilience Fund, Donor Frequently Asked Questions,
available at https://www.gcerf.org/donor- frequently-asked-questions/ (last accessed: 2 Feb. 2019)

Annex 133 “Yemen: UAE recklessly supplying militias with windfall of Western arms”, Amnesty
International (6 Feb. 2019), available at https://www.
amnesty.org/en/latest/news/2019/02/yemen-uae-recklessly-supplying-
militias-with-windfall-of-western-arms/

Annex 134 King Faisal Prize, Professor Yousef A. Al-Qaradawi, Winnerof the 1994 KFP Prize
for Islamic Studies, available at https:// kingfaisalprize.org/professor-yousef-a-al-qaradawi/
(last accessed: 15 Feb. 2019)

Annex 135 Appendices of Working Paper 14640: Contingency Arrangements and ATM Measures
in the MID Region by Kingdom of Bahrain, Arab Republic of Egypt, Kingdom of Saudi Arabia and United
Arab Emirates (2017)

Annex 136 Mathias Forteau, Les renvois inter-conventionnels, in Annuaire français de droit
international, Vol. 49 (2003)

Annex 137 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)
179