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

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
(BAHRAIN, EGYPT AND UNITED ARAB EMIRATES v. QATAR)
REPLY OF THE KINGDOM OF BAHRAIN,
THE ARAB REPUBLIC OF EGYPT,
AND THE UNITED ARAB EMIRATES
Volume I of II
27 MAY 2019

TABLE OF CONTENTS
Page
CHAPTER I INTRODUCTION 1
CHAPTER II THE REAL ISSUE IN DISPUTE 12
Section 1. Qatar’s manifest violations of the Riyadh
Agreements and other international law obligations 14
A. The real dispute between the Parties concerns Qatar’s Violations of the Riyadh Agreements and other international law obligations 14
B. Qatar’s Unlawful Support for Terrorism and Extremism 21
C. Qatar’s Unlawful Support for the Muslim Brotherhood 25
D. Qatar’s Use of State-Owned Media as a Platform for Hate Speech and Extremism 30
Section 2. The Aviation Restrictions were imposed as
proportionate countermeasures to Qatar’s
wrongful actions 35
A. Bahrain 36
B. Egypt 38
C. UAE 39
CHAPTER III FIRST GROUND OF APPEAL: THE DECISION
OF THE ICAO COUNCIL FALLS TO BE SET
ASIDE DUE TO GRAVE VIOLATIONS OF DUE
PROCESS 42
Section 1. On Qatar’s own case, the ICAO Council is not apt
as a legal forum 43
Section 2. Due process falls within the Court’s appellate
jurisdiction 47
i
Section 3. Violations of due process and the ICAO Rules 53
A. Absence of deliberations as a collegial formation 54
B. Failure to deliver a reasoned decision 56
C. The Appellants did not have a reasonable
opportunity to be heard 58
D. Violation by the Council of the applicable
procedural rules 60
Section 4. The Appellants did not waive their right to appeal 62
Section 5. Conclusion: the Decision is a nullity ab initio 67
CHAPTER IV SECOND GROUND OF APPEAL: THE REAL
ISSUE OBJECTION SHOULD BE UPHELD BY
THE COURT 68
Section 1. The real issue in dispute does not concern “the
interpretation or application” of the IASTA 71
A. The “real issue” test is an objective one that
requires the Court to look beyond the
Applicant’s pleadings 71
B. The “real issue” in dispute does not concern civil
aviation 74
C. Respondent’s expansive reading of Article II,
Section 2 of the IASTA would extend it beyond
the limits of the States Parties’ consent 77
D. Upholding the “real issue” objection would pose
no risk to the international legal order 81
Section 2. The adjudication of Qatar’s Claims by the ICAO
Council would be inconsistent with judicial
propriety because the civil aviation aspects cannot
be severed from the broader dispute 83
Section 3. In any event, the Court should reject Qatar’s
suggestions as to how the ICAO Council might
accept jurisdiction without deciding
countermeasures 85
ii
A. Qatar wrongly invites the Court to find that countermeasures are excluded by the IASTA 86
B. The Court should reject Qatar’s suggestion
that the ICAO Council may determine the
Appellants’ conduct without determining their
countermeasures 97
C. The Court should reject Qatar’s suggestion
that the ICAO Council could determine only
the procedural aspects of countermeasures 99
Section 4. Conclusion 101
CHAPTER V THIRD GROUND OF APPEAL: THE
ICAO COUNCIL ERRED IN REJECTING THE
SECOND PRELIMINARY OBJECTION
RELATING TO PRIOR NEGOTIATIONS 103
Section 1. The Objection as to Jurisdiction 106
A. Legal standard for the precondition of negotiation 106
1. Introduction 106
2. The precondition of negotiations requires a “genuine attempt” to engage in negotiations 109
3. The need to identify the specific obligations which form the subject-matter of the dispute 117
4. The need for flexibility in assessing negotiations 120
B. Qatar has failed to show that it made any genuine attempt to negotiate 120
1. Qatar’s supposed efforts to settle the dispute through “direct means” 121
2. Supposed negotiations within ICAO 127
3. Supposed negotiations within the WTO 129
4. Supposed negotiations through third parties 130
iii
Section 2. The Objection as to Admissibility 130
Section 3. Conclusion 134
CHAPTER VI CONCLUSION 136
A. First ground of appeal 136
B. Second ground of appeal 136
C. Third ground of appeal 137
D. Conclusion 138
SUBMISSIONS 139
CERTIFICATION 141
LIST OF ANNEXES 143
iv
v
GLOSSARY OF PRINCIPAL DEFINED TERMS, ABBREVIATIONS
AND ACRONYMS
Appellants The Kingdom of Bahrain, the Arab Republic
of Egypt and the United Arab Emirates
Bahrain The Kingdom of Bahrain
CAT Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment, 10 December 1984
CERD International Convention on the Elimination
of All Forms of Racial Discrimination,
7 March 1966
Chicago Convention Convention on International Civil Aviation,
Chicago, 7 December 1944
Egypt The Arab Republic of Egypt
FIR(s) Flight Information Region(s)
First Riyadh Agreement First Riyadh Agreement, 23 and
24 November 2013
GCC Gulf Cooperation Council
IASTA International Air Services Transit Agreement,
Chicago, 7 December 1944
ICAO International Civil Aviation Organization
ICAO Application Application (B) of the State of Qatar;
Disagreement on the Interpretation and
Application of the International Air Services
Transit Agreement, (Chicago, 1944),
30 October 2017
viICAO CouncilCouncil of the International Civil Aviation OrganizationICAO Council DecisionorDecisionDecision of the Councilof the International Civil Aviation Organization on the Preliminary Objection in the Matter: The State of Qatar and The Arab Republic of Egypt, the Kingdom of Bahrain and the United Arab Emirates(2017) –Application (B),29 June 2018ICAO MemorialMemorial 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 2017ICAO MID OfficeICAO Middle East Regional OfficeICAOPreliminary ObjectionsPreliminary 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 2018ICAO RejoinderRejoinder 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 ArabEmirates In Re Application (B) of the State of Qatar Relating to the Disagreement under the International Air Services Transit Agreement done at Chicago on 7 December 1944, 12 June 2018viiICAO
vii
ICAO Response to the
Preliminary Objections
Response of the State of Qatar to the
Preliminary Objections of the Respondents;
In re Application (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 April 2018
ICAO Rules Rules for the Settlement of Differences,
approved by the ICAO Council on 9 April
1957, and amended on 10 November 1975;
ICAO document 7782/2
ICJ Application Joint Application Instituting Proceedings,
Appeal Against a Decision of the ICAO
Council dated 29 June 2018 on Preliminary
Objections (Application (B), Kingdom of
Bahrain, Arab Republic of Egypt and the
United Arab Emirates v. State of Qatar),
4 July 2018
ILC International Law Commission
Implementing Mechanism Mechanism Implementing the Riyadh
Agreement, 17 April 2014
MENA Middle East and North Africa
NOTAMs Notices to Airmen
Qatar State of Qatar
Riyadh Agreements First Riyadh Agreement, 23 and
24 November 2013
Mechanism Implementing the Riyadh
Agreement, 17 April 2014
Supplementary Riyadh Agreement,
16 November 2014
viiiRules of Procedure for the CouncilRules of Procedure for the Council, ninth edition, approved by the ICAO Council 2013, ICAO document7559/9Saudi ArabiaThe Kingdom of Saudi ArabiaSupplementary Riyadh AgreementSupplementary Riyadh Agreement, 16November 2014UAEThe United Arab Emirates1CHAPTERIINTRODUCTION1.1This
1
CHAPTER I
INTRODUCTION
1.1 This case concerns an appeal filed on 4 July 2018 by the Kingdom of
Bahrain, the Arab Republic of Egypt, and the United Arab Emirates (together,
the Appellants) against the Decision of the Council of the International Civil
Aviation Organization (ICAO Council) dated 29 June 2018 (Decision).
Following the first round of written submissions, by Order dated 27 March
2019, the Court authorized the submission of a Reply by the Appellants and a
Rejoinder by Qatar as the Respondent, and fixed 27 May 2019 as the time-limit
for the filing of the Reply. This Reply is submitted pursuant to that Order.
1.2 As required by Article 49(3) of the Rules of Court, this Reply is
directed to bringing out the issues that still divide the Parties in light of the
Counter-Memorial submitted by Qatar on 25 February 2019. The Appellants
note, however, that several of the arguments in Qatar’s Counter-Memorial are
substantially different to and contradict those that were presented before the
ICAO Council. Further, and as set out below, Qatar’s new position concedes
several important points that have significantly narrowed the issues that divide
the Parties.
1.3 By way of general observations, the Appellants note that Qatar’s
Counter-Memorial does not raise any issue as to the Appellants’ contentions
concerning the scope and character of the Court’s appellate jurisdiction under
Article II, section 2 of the International Air Services Transit Agreement
(IASTA)1. In particular, it does not challenge the assertion that the second and
third grounds of appeal (ie the ICAO Council’s lack of competence over the
1 QCM(B), para. 1.5; BEUM, Vol. II, Annex 2, International Air Services Transit
Agreement, signed at Chicago on 7 December 1944, Art. II, Section 2.
2real issuein dispute between the Parties and Qatar’s failure to satisfy the preconditionof negotiation) involve a de novoconsideration of the scope of the jurisdiction of the ICAO Council over Qatar’s ICAO Application2.1.4The Appellants observe furthermore that the Counter-Memorial does not respond to nor otherwise take issue with the following arguments: (a)that there is adistinction between jurisdiction and admissibility3;(b)that in addition to jurisdiction, admissibility may be raised as a distinct preliminaryobjection before the ICAO Council4;(c)that the same factual or legal situation may give rise to issues of both jurisdiction and admissibility5;and (d)that countermeasures constitute a circumstance precluding wrongfulness (assuming they are validly adopted)6. In addition, Qatar all but accepts that countermeasures in respect of obligationsregarding counter-terrorism and non-intervention, notably under the Riyadh Agreements,may in fact fall outside of the ICAO Council’s competence,although it then proceeds to contradict itself 2BEUM, paras 1.19-1.20.3QCM(B), para. 3.73; BEUM, paras 4.11-4.31; Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment,I.C.J. Reports 2003, p. 177, para. 29; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, pp. 456-457, paras 120-121.4BEUM, paras4.32-4.56; cf. QCM(B), para. 3.71,note290(merely noting that the objections as to admissibility can be resolved “without determining whether questions of admissibility of claims may be raised as a preliminary matter before the Council.”).5See BEUM,paras 4.30-4.31; Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 177, para. 29; see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, pp.456-457, paras120-121 and p. 460, para. 129; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, I.C.J. Reports 1996, p. 621, para. 42. This point is not contested by Qatar in its Counter-Memorial, see, e.g. QCM(B), paras3.71-3.75.6BEUM, paras 2.55-2.61; see QCM(B), para. 3.67(noting the “preclusive effect of the countermeasures defence”).
3
by maintaining that the Council may nevertheless pass judgment on certain
issues appertaining to countermeasures7.
1.5 In respect of the first ground of appeal (the absence of due process),
the Parties are in agreement that in exercising the judicial functions conferred
upon it by Article II, section 2 of the IASTA, the ICAO Council is required to
respect the fundamental principles of due process8. The Parties are also in
agreement on a number of factual matters, including that the Council arrived at
its Decision by secret ballot, that it did so without open deliberations, and that it
failed to deliver a reasoned decision9. The two principal issues that still divide
the Parties are as follows:
(a) First, Qatar invokes the judgment in Appeal Relating to the
Jurisdiction of the ICAO Council (India v. Pakistan) to support its
contention that the “supervisory authority” of the Court does not
encompass procedural questions so long as the Council “reached the
right conclusion”10. However, in that case, the Court found that the
irregularities alleged by India did not “prejudice in any fundamental
7 QCM(B), para. 3.55 (“the merits of Joint Appellants’ countermeasures defence need
not even be addressed by the Council in order to decide Qatar’s claims”); ibid.,
para. 3.67 (“[t]he Council could . . . find the aviation prohibitions wrongful under the
IASTA and simply take judicial notice of Joint Appellants’ countermeasures
defence”); ibid., para. 3.68 (“the Council could assess the legality of Joint
Appellants’ countermeasures defence without addressing the substantive premise
thereof. . . . The Council unquestionably has jurisdiction to assess whether Joint
Appellants complied with the other necessary conditions governing
countermeasures” (emphasis added)). Compare, ibid., para. 1.18 (“both the
availability of a countermeasures defence as a matter of principle and whether the
conditions for their exercise have been met indisputably fall within the jurisdiction of
the Council.”).
8 BEUM, paras 3.4-3.12; QCM(B), para. 5.65.
9 BEUM, paras 3.2(b), (f) and (e); QCM(B), paras 5.29-5.41.
10 QCM(B), paras 5.9 and 5.12.
4way the requirements of a just procedure”11.That stands in stark contrast to the manifest lack of due process in the present case. In fact, in another appellate proceeding decided immediately after India v. Pakistan, the Court clearly held that its supervisory authority extended to consideration of whether the original decision was reached in accordance with due process, such as the requirement that “judicial decisions ... should be reasoned”12.(b)Second, Qatar makes the astonishing assertion that because “Council Member representatives are not appointed to the Council in their individual capacity ... discharging the judicial function in their ownindividual capacity, rather than on behalf of their appointing States, is what would violate due process, not the other way around.”13In other words, Qatar not only acknowledges but even endorses the fact that delegates on the ICAO Council took instructions from their capitals as to how to vote on the Appellants’ Preliminary Objections, rather than approaching the dispute as neutral adjudicators. The Appellants’ position remains that it is a manifest “contradiction to hold that a representative who receives instructions from a state as to how he should act with respect to a particular disagreement could be seen to act judicially.”14Qatar’s argument confirms that the Council did not exercise its judicial function properly. The political statements by 11Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, pp. 69–70, paras 44-45.12Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion,I.C.J. Reports 1973, p. 210, para. 94.13QCM(B),para. 5.40.14BEUM,Vol. VI, Annex 126,G. F. Fitzgerald, “The Judgment of the International Court of Justice in the Appeal Relating to the Jurisdiction of the ICAO Council”, (1974) 12 Canadian Yearbook ofInternational Law153, p. 169 (emphasis added).
5
certain Council Members in support of Qatar, together with the
absence of open deliberations and the failure to deliver a reasoned
decision, are manifest violations of due process, rendering the Decision
a nullity ab initio.
1.6 In respect of the second ground of appeal (the ICAO Council’s lack of
competence over the “real issue” in dispute), “Qatar readily acknowledges that
there is a dispute between the Parties concerning Qatar’s compliance with its
counterterrorism and non-interference obligations, including under the Riyadh
Agreements.”15 This statement is in marked contrast with Qatar’s prior,
complete refusal to address the issue of countermeasures before the ICAO
Council and its insistence then that this was solely a matter for the merits16.
Despite Qatar’s contention that the breaches alleged by the Appellants are “an
artifice for escaping scrutiny of their aviation prohibitions”17, the factual
assertions in Chapter 2 of its Counter-Memorial—especially Qatar’s vigorous
defence of the Muslim Brotherhood and Al Jazeera—leave no doubt that there
is a very real and substantial dispute between the Parties, which does not
concern civil aviation issues. As set out below, the dispute includes in particular
Qatar’s violations of its express obligations under the 2013–14 Riyadh
Agreements, including to refrain from supporting extremism and terrorism, not
to support the Muslim Brotherhood, and to cease the use of Al Jazeera as a
15 QCM(B), para. 3.37.
16 BEUM, Vol. IV, Annex 25, Response of the State of Qatar to the Preliminary
Objections of the Respondents; In re Application (A) of the State of Qatar Relating to
the Disagreement on the interpretation and application of the Convention on
International Civil Aviation (Chicago, 1944) and its Exhibits, 30 April 2018, (ICAO
Response to the Preliminary Objections), paras 75–77.
17 QCM(B), Chapter 2 heading.
6platform for hate speech and thesupport of extremism18.The dispute also concerns the questionwhether the Appellants’ countermeasures were justified as a matter of customary international law or by virtue of Article 3of theImplementingMechanism19.1.7Qatar also contradicts its earlier arguments regarding the competence of the ICAO Council20. While arguing that the “availability” of and “conditions”21for the exercise of countermeasures fall within the Council’s jurisdiction, Qatar now contendsthat violations of obligations in respect of counter-terrorism and non-intervention—on which violations the lawfulness of countermeasures depends—may in fact fall outside the Council’s competence22.Qatarmaintains therefore that the Council has competence over the lawfulness of the civil aviationrestrictions irrespective of the lawfulness of the corresponding countermeasures. Qatar attempts to reconcile its contradictory positions by suggesting inter aliathat the Council should simply take judicial notice of the Appellants’ invocation of countermeasures without deciding its lawfulness23.1.8There are two keyissuesthat divide the Partieson that score:(a)Whether the subject-matter of the dispute encompasses not only the aviation restrictions but also the question of Qatar’s support of 18See below, Chapter II, especially paras 2.4-2.34.19BEUM,Vol.II, Annex20, Implementing Mechanism, 17April 2014, Art.3.20Cf BEUM, Vol. IV, Annex 25,ICAO Response to the Preliminary Objections, paras75–77.21QCM(B),paras 1.18 and 3.68.22See above, note7;QCM(B),paras3.55, 3.68 and 3.69,cf para. 1.18.23QCM(B), paras 3.67–3.68.7terrorism
7
terrorism and its other internationally wrongful acts, which gave rise to
the countermeasures imposed by the Appellants. This requires the
Court to determine the subject-matter of the dispute by application of
the “real issue” test24 and to determine whether it has jurisdiction over
that dispute, including as to the Appellants’ invocation of
countermeasures. (The jurisdictional objection.)
(b) If Qatar were correct that its Application concerns a dispute falling
prima facie within Article II, section 2 of the IASTA, whether that
dispute is, as a matter of judicial propriety and fairness, capable of
being decided by the ICAO Council without deciding the disputed
issues about Qatar’s support for terrorism and its interference in other
States’ internal affairs and the countermeasures relied upon by the
Appellants. (The admissibility objection.)
1.9 In respect of the third ground of appeal (the requirement under Article
II, Section 2 that the dispute be one which “cannot be settled by negotiation”),
Qatar asserts that the ICAO Council “properly held that Qatar satisfied the
negotiation requirement”25. Contrary to its earlier arguments before the
Council, Qatar now recognizes that negotiations are a precondition to
24 BEUM, paras 5.56-5.57. See Obligation to Negotiate Access to the Pacific Ocean
(Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015, p. 602,
para. 26; see also Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J.
Reports 2016, pp. 26-27, para. 50 (“‘[W]hether there exists an international dispute is
a matter for objective determination’ b y t he C ourt . . . [which] ‘must turn on an
examination of the facts.’”); Immunities and Criminal Proceedings (Equatorial
Guinea v. France), Preliminary Objections, Judgment of 6 June 2018, p. 17, para. 48
(“it is for the Court itself to determine on an objective basis the subject-matter of the
dispute between the parties, by isolating the real issue in the case and identifying the
object of the claim”).
25 QCM(B), Chapter 4, Section I heading.
8jurisdiction, and it no longer argues that the severance of diplomatic relations meant that negotiations were impossible26. It asserts instead that “the absence of diplomatic channels ...made it much more difficult for Qatar even to attempt to negotiate”27.1.10The Parties are largely in agreement as tothe applicable international law standard that “in the absence of evidence of a genuine attempt to negotiate, the precondition of negotiation is not met”, notwithstanding a few points on which they continue to disagree28.The principal issue that divides the Parties is whether Qatar in fact complied with this requirement. Qatar points to various communications, including statements before the ICAO Council, which it claims constitute genuine attempts to negotiateor to initiate negotiations. None of these, however, was specifically addressed to the Appellants, and none made reference to the subject-matter of the dispute in respect of the relevant obligations under the IASTA.In light of their content, the circumstances in which they were made, and the applicable requirements resulting from the Court’s prior jurisprudence, none can properly be regardedas constituting a “genuine attempt”to negotiate, such that the precondition is not satisfied and the ICAO Council was without jurisdiction.1.11This Reply consists ofsixchapters and is accompanied by onevolume of supporting documents.26Ibid., paras 4.6-4.7 and 4.29. 27Ibid.,para. 4.29.28Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p.133, para.159 (emphasis added).
9
1.12 Chapter II addresses the assertion in Qatar’s Counter-Memorial that
the Appellants’ “real dispute” argument is “an artifice for escaping scrutiny of
their aviation prohibitions”29. Its focus is on rebutting Qatar’s denials and
contradictions in respect of the breach by Qatar of its obligations under
international law, including in particular the 2013–14 Riyadh Agreements.
Those obligations consist, inter alia, of its express obligations to refrain from
supporting extremism and terrorism, to withdraw its support of the Muslim
Brotherhood, to cease the use of Al Jazeera as a platform for hate speech, and to
end all hostile Al Jazeera broadcasts against Egypt, particularly during the
period of exceptional instability from 2013 onwards. The Reply does not
address Qatar’s various counter-accusations against the Appellants, which are
baseless, and in any case wholly irrelevant to the issues before the Court; nor
does it address Qatar’s allegations as to breach by the Appellants of their
obligations, which form the merits of Qatar’s claims before the ICAO Council.
1.13 Chapter III addresses the first ground of appeal regarding lack of due
process. It concerns Qatar’s astounding argument that not following instructions
from capitals would have been a violation of due process. It also explains why
the Court should exercise its supervisory authority in respect of procedural
deficiencies in the Council’s adjudication of the claims submitted to it. The
Chapter discusses Qatar’s denial that the grave and widespread defects in the
procedure adopted by the ICAO Council mean that the Decision should be set
aside. Further it sets out why the Appellants cannot be held to have waived their
right to complain about those defects before the Court. The Appellants thus
invite the Court to set aside the Decision of the Council as a procedural nullity.
29 QCM(B), Chapter 2 heading.
101.14Chapter IVaddresses the second ground of appeal regarding the characterization of the real issuein disputeand the ICAO Council’s consequent lack of competence over the dispute between the Parties. It explainswhy the real issue in dispute does not concern “the interpretation or application” of the IASTA, meaning that there is no jurisdiction. Italso addresses Qatar’s denial that the claims are, nevertheless, inadmissible, as the aviation aspects cannot be severed from the broader dispute. Further,it explains why, in any event, the suggestion by Qatar that the Council does not have to decide (at least in full) the question of countermeasures should be rejected by the Court.The Chapter concludesthat the Court should find either that the ICAO Council lacks jurisdiction or, in the alternative, that the claim is inadmissible because it would be judicially improper for the Council to determine it.1.15Chapter Vaddresses the third ground of appeal regarding the precondition of negotiation. It explains why Qatar is wrong to assert that the precondition of negotiations has been satisfied.It sets out why, as a matter of law, without a “genuine attempt” to negotiate first being made, it is not possible to satisfy the preconditioneven where the disputing Party considers that anysuch attempt would be futile. Itfurtheraddresses why Qatar is wrong to suggest, as a matter of fact, that it complied with the precondition. In addition, the Chaptersets outwhy,in the alternative,Qatariswrong to deny that its claims are inadmissible as a result ofitsnon-compliance with Article 2(g) of the ICAO Rules for the Settlement of Differences (ICAO Rules).The Chapter concludes that the Court should hold that the ICAOCouncil is without jurisdiction due to Qatar’s failure to comply with the precondition of negotiations and, in any event, find that Qatar’s claim is inadmissible due to its failure to comply with the relevant procedural rules.
11
1.16 Chapter VI contains a short summary of the Appellants’ reasoning.
The Reply concludes with the Appellants’ Submissions.
12CHAPTERIITHE REAL ISSUE IN DISPUTE2.1This Chapter responds to Qatar’s assertions in Chapter 2 of its Counter-Memorial regarding the issues that comprise thereal dispute between the Parties. Contrary to its position before the ICAO Council that it would only address the issue of countermeasures at the merits stage of the proceedings30,“Qatar [now] readily acknowledges that there is a dispute between the Parties concerning Qatar’s compliance with its counterterrorism and non-interference obligations, including under the Riyadh Agreements”31.Further, Qatar maintainsthat the countermeasures taken by each of the Appellants in reaction to Qatar’s breaches of theseobligations (which Qatar denies) were “unjustifiable”32.2.2It is therefore odd that Qatar should go on to allegethat the Appellants’ position as to the implications of this dispute for the competence of the ICAO Council—the “real dispute” preliminary objection—is “an artifice for escaping scrutiny of their aviation prohibitions”33.And in fact, as set forth below, Qatar’s response on the elements of the dispute is most notable for its failure adequately to address the assertions raised by the Appellants in the Memorial. Qatar has pursued a strategy of deflection, by making baseless accusations against the Appellants that are wholly irrelevant to the question before the Court, which is 30BEUM, Vol. IV, Annex 25, Response of the State of Qatar to the Preliminary Objections of the Respondents; In re Application (A) of the State of Qatar Relating to the Disagreement on the interpretation and application of the Convention on International Civil Aviation (Chicago, 1944) and its Exhibits, 30April 2018, (ICAO Response to the Preliminary Objections), paras75–77.31QCM(B), para. 3.37.32Ibid., para. 2.3.33Ibid.,Chapter 2 heading.
13
that the civil aviation restrictions adopted by the Appellants are merely part of a
set of countermeasures, which were in turn adopted in the context of a broad
dispute that is wholly unrelated to civil aviation. By contrast with Qatar’s
strategy, this Chapter focuses on responding to those issues that properly belong
to the real issue in dispute between the Parties.
2.3 To be clear, the Appellants are not required to respond to any of these
factual matters, since Qatar has admitted that there does in fact exist a dispute
between the Parties which goes well beyond civil aviation and relates to matters
different from civil aviation34. Nevertheless, the Appellants are constrained to
correct some of the most egregious inaccuracies (to put the matter at its lowest)
set out in Qatar’s Counter-Memorial. Section 1(A) highlights Qatar’s failure to
address its responsibility for supporting extremist and terrorist groups and its
interference in the affairs of other States. The Counter-Memorial confirms that
Qatar has no convincing answer to the Appellants’ claims as to its violations of
these obligations, whether arising under the Riyadh Agreements or under
general international law. Sections 1(B) to 1(D) set out specific responses to
the most important of Qatar’s denials of breach of its international law
obligations. It focuses on Qatar’s support for terrorism and extremism,
including its continued support for the Muslim Brotherhood, and its support for
hate-speech and interference in the internal affairs of other States, through the
use of State-owned or -controlled media outlets, notably Al Jazeera. Finally,
Section 2 responds briefly to certain aspects of Qatar’s patently inaccurate
characterization of the airspace restrictions and the contingency measures
adopted by the Appellants. These restrictions were adopted by the Appellants as
legally justified and proportionate countermeasures in response to Qatar’s prior
34 Ibid., para. 3.37; see below; para. 4.2.
14wrongful conduct, while fully preserving the safety of civil aviation. In so doing, the Appellants note that the scope and legality of the airspace restrictions under theIASTAare matters goingto the meritsof Qatar’s claims to the ICAO Council, and thus are not for the Court to determine inthe present proceedingsin any case.Section 1.Qatar’s manifest violations of the Riyadh Agreements and other international law obligationsA.THE REAL DISPUTE BETWEEN THE PARTIES CONCERNS QATAR’SVIOLATIONS OF THE RIYADH AGREEMENTS AND OTHER INTERNATIONAL LAW OBLIGATIONS2.4In their Memorial, the Appellants explained how Qatar’s conduct in violation of its international law obligations—in particular its support for a variety of extremist and terrorist groups and its intervention in the affairs of other States—resulted in the adoption of various measures against Qatar, including the imposition of the airspace restrictions beginning on 5 June 201735.Those measures were adopted to induce Qatar to comply with its obligations and constitute valid countermeasures. Itssupport for extremism and terrorism,and its interference in the affairs of other States,arethus at the heart of the dispute between the Parties.2.5Paramount among the relevant international law obligations binding upon Qatar were those set out in the Riyadh Agreements36. While (or perhaps 35BEUM, Chapter II, particularly, paras 2.9-2.15,2.33-2.45and 2.47-2.49detailing Qatar’s Support for extremist and terrorist groups; paras 2.51-2.55 detailing the measures adopted by the Appellants to induce Qatar’s compliance with its obligations.As to the particular international law obligations, see, ibid.,para. 2.36.36BEUM, Vol. II, Annex 19, First Riyadh Agreement, 23 and 24 November 2013, Accession of the Kingdom of Bahrain and the United Arab Emirates to the Riyadh Agreement, 24 November 2013; BEUM,Vol. II, Annex 20, Implementing Mechanism, 17 April 2014; BEUM, Vol. II, Annex 21, Supplementary Riyadh Agreement, 16 November 2014. See also, BEUM, paras 2.16-2.31.15because)
15
because) these Agreements are critical to understanding the real dispute
between the Parties, Qatar almost entirely ignores them in its Counter-
Memorial37. These Agreements, however, were entered into precisely in an
attempt to resolve disputes between Qatar and other members of the Gulf
Cooperation Council (GCC), including in particular as regards Qatar’s conduct
with respect to Egypt. The Riyadh Agreements contain express and specific
obligations, which bear repetition38, including: non-interference in the internal
affairs of the other parties39; cessation of support for individuals or groups
inciting violence or hatred towards GCC States40; prohibiting persons inciting
violence or hatred towards GCC States from using State-controlled media as a
platform for expressing their views41; banning organizations or groups seeking
to undermine the stability of GCC States, such as terrorist or extremist groups42;
cessation of support for the Muslim Brotherhood and deportation of Muslim
Brotherhood figures who are not citizens of the State43; cessation of efforts to
weaken the security and stability of Egypt, including by ensuring that Al
Jazeera, particularly its Arabic language channels, cease airing antagonistic
media content directed against Egypt44; and cessation of support for political or
37 But see, e.g. QCM(B), paras 2.44-2.47 and 2.53.
38 See also, BEUM, paras 2.16-2.31.
39 BEUM, Vol. II, Annex 19, First Riyadh Agreement, 23 and 24 November 2013,
Art. 1.
40 Ibid, Arts. 1 and 2.
41 BEUM, Vol. II, Annex 20, Implementing Mechanism, 17 April 2014, Art. 1.
42 Ibid., Art. 1(b), (c) and (d).
43 Ibid., Art. 2(a) and (b).
44 BEUM, Vol. II, Annex 21, Supplementary Riyadh Agreement, 16 November 2014,
Art. 3(d).
16militia groups in Yemen, Syria or any other country lacking political stability if such groups pose a threat to the security and stability of GCC States45.2.6The Riyadh Agreements called upon Qatar to cease these activities and set up implementation mechanisms to monitor its conduct,through which the GCC States would meet to discuss complaints of non-compliance46.Theimplementation mechanisms also reinforcedother standing obligations in international law47.The Riyadh Agreements also established that, in the event of theirviolation by a party, each of the other parties would have the right to take any appropriate measures to protect their security and stability. This right is set forth in the following unqualified terms:“If any country of the GCC Countries fail[s]to comply with this mechanism,the other GCC Countries shall have the right to take an[y]appropriate action to protect their security and stability.”482.7Thus, Qatar was on notice that its compliance with the Riyadh Agreements would be continuously monitored;and Qatar had given advance consent to the otherparties takingappropriate action against it if it failed to live up to its commitments. The latter element is of course unusual in treaty practice, which bears out the extraordinary nature of the circumstances that the provision addressed. And the rightwhich it sets forth—“to take an[y]appropriate action”—is capacious, encompassing the customary law entitlement 45BEUM,Vol. II, Annex 19, First Riyadh Agreement, 23 and 24 November 2013, Art.3; BEUM, Vol. II, Annex 20, Implementing Mechanism, 17 April 2014, Art.2(c).46BEUM,Vol.II, Annex20, Implementing Mechanism, 17April 2014.47BEUM, paras 2.27, 2.36, 2.43 and 2.48. 48BEUM, Vol. II, Annex 20,Implementing Mechanism, 17April 2014,Art.3(emphasis added).
17
to countermeasures but also going beyond it. Furthermore, the
“appropriate[ness]” of the “action” to be taken is left to be judged by the State
taking it.
2.8 While Qatar acknowledges that the Riyadh Agreements are legally
binding49, Qatar’s Counter-Memorial confirms its purported repudiation of
these obligations50, including on the basis that the Appellants’ insistence that
Qatar live up to its obligations constitutes an imposition on its “sovereignty”51.
Qatar claims, for example, that Al Jazeera does not incite violence and that it
has no control over the content of its broadcasts52. But it does not explain why,
if Qatar indeed had no control over Al Jazeera, Qatar specifically committed to
“ceasing all media activity directed against the Arab Republic of Egypt in all
media platforms, whether directly or indirectly, including all the offenses
broadcasted on Al-Jazeera, Al-Jazeera Mubashir Masr, and to work to stop all
offenses in Egyptian media”53. Qatar insists similarly that the Muslim
49 QCM(B), para. 2.53, note 145.
50 See also, BEUM, para. 2.46. Qatar’s only response to the Appellants’ reliance on its
letter of 19 February 2017 repudiating its obligations under the Riyadh Agreements
is to quibble with an immaterial aspect of the translation: QCM(B), para. 2.53,
note 145. The Appellants are content to accept the revised translation proposed by
Qatar (QCM(B), Vol. III, Annex 40). A s i s clear on either translation, Qatar
considered that the Riyadh Agreements were no longer relevant, not in keeping with
the principles of the GCC, and that they were now “moot”, and as such, it called for
their termination. Qatar even called for an amendment of the GCC Charter. Seen in
light of Qatar’s continued thwarting of its obligations under the Riyadh Agreements,
this letter was viewed by the Appellant States as amounting to a repudiation of its
obligations under those Agreements.
51 QCM(B), para. 2.53; citing BEUM, Vol. IV, Annex 25, ICAO Response to
Preliminary Objections, Exhibit 40, Foreign Minister: Any Threat to Region is Threat
to Qatar dated 6 July 2017.
52 QCM(B), paras 2.55–5.57.
53 BEUM, Vol. II, Annex 21, Supplementary Riyadh Agreement, 16 November 2014,
Art. 3(d).
18Brotherhood is a legitimate political organization54. Again, Qatar fails to explain why it specifically committed to providing “[n]o support to the Muslim Brotherhood, whether financially or through media”55and likewise no support to “any of the organizations, groups or individuals that threaten the security and stability of the Council states”56.2.9Norhas Qatar responded to the irrefutable evidence provided by the Appellantsdemonstrating their disagreements with Qatar over its failure to adhere to the commitments laid out in the Riyadh Agreements, which culminated in the measures adopted on 5 June 2017. This evidence includes, inter alia, the withdrawal of the Appellants’ ambassadors from Qatar in February and March 2014 due to their belief that Qatarwas gravely failing to comply with its obligations under the Riyadh Agreements57; the agreed minutes from several meetings held in July and August 2014 between Qatar and the other signatories of the Riyadh Agreements,in which Qatar’s broken promises to implement the agreements were again raised58; and the evidence that Qatar called for the termination of the Riyadh Agreements and the renegotiation of the GCC Charter in February 201759.54QCM(B), para. 2.56.55BEUM, Vol. II, Annex 20,Implementing Mechanism, 17 April 2014, Art. 2(a)-(b). 56BEUM, Vol. II, Annex 19,First Riyadh Agreement, 23 and 24 November 2013, Art.2. 57BEUM, paras 2.19-2.20.58See BEUM, para. 2.26;BEUM, Vol. V, Annex 64, Fourth Report of the Follow-up Committee on the Implementation of the Riyadh Agreement Mechanism, 15 July 2014; BEUM, Vol. V, Annex 65, Summary of Discussions in the Sixth Meeting of their Highnesses and Excellencies the Ministers of Foreign Affairs, Jeddah, 30August 2014.59BEUM, para. 2.46;BEUM, Vol. V, Annex 72,Letter of 19 February 2017 from the Minister of Foreign Affairs of the State of Qatar to the Secretary-General of the GCC; QCM(B), Vol. III, Annex 40, Letter from Mohamed Bin Abdul Rahman Bin
19
2.10 For instance, in the July 2014 meeting of the Implementation
Committee, the UAE representative complained that the “State of Qatar did not
implement the basic provisions of the Riyadh Agreement . . . whereas the
Muslim Brotherhood has not been deported, in fact they are being received,
honored and provided with financial and moral support”60; while Bahrain called
on Qatar to cease its support for Al Qaeda and affiliates61. On the contentious
issue of Qatar naturalizing dissident citizens of other GCC States in order to
shield them from extradition or other legal measures, the representative of
Bahrain complained that “the naturalization continues, in fact more
increasingly” and called on Qatar to “immediately stop” that practice62. The
minutes from a subsequent meeting held between the Foreign Ministers of the
GCC States in August 2014, following yet another round of diplomacy, record
Qatar’s further, empty promises, to mend its ways63. Yet these efforts were all
for naught.
2.11 Since Qatar is unable to refute this evidence, it instead chooses to
ignore it almost entirely in its Counter-Memorial64. It further seeks to downplay
and mischaracterize the significance of its obligations under the Riyadh
Agreements and the other international law obligations with which it was
Jassim Al Thani, Minister of Foreign Affairs of State of Qatar, to Abdul Latif Bin
Rashid Al-Ziyani, Secretary-General of GCC (19 Feb. 2017). See also, note 50,
above.
60 BEUM, Vol. V, Annex 64, Fourth Report of the Follow-up Committee on the
Implementation of the Riyadh Agreement Mechanism, 15 July 2014.
61 Ibid.
62 Ibid.
63 BEUM, Vol. V, Annex 65, Summary o f D iscussions i n t he S ixth M eeting of t heir
Highnesses and Excellencies the Ministers of Foreign Affairs, Jeddah, 30 August
2014.
64 QCM(B), para. 2.52.
20required to comply, maintainingthat the “Appellants are not genuinely concerned about Qatar’s (non-existent) support for terrorism or interference in their internal affairs”65.2.12In addition, Qatar further attempts to argue that the Appellants’ allegations as to its support for terrorism and extremism have “been rejected by the international community at large”66.IfQataris to be believed, it is recognized as a “global leader in anti-terrorism cooperation”67and commended for its “leadership rolein countering terrorism and extremism”68.For all that,Qatar concedes, as it must,that there is a dispute as to its compliance vel nonwith the legally binding obligation set out in the Riyadh Agreements69.2.13In stark contradiction to Qatar’s denials, the Appellants’ Memorial establishes that Qatar remains in breach of virtually all the specific obligations established under the Riyadh Agreements. For instance, Qatar notably has failed to prosecute or extradite designated terrorists living in and operating from Qatar, including Yusuf Al-Qaradawi70. It has supportedopenly the Muslim Brotherhood and underminedEgypt’s stability71, including by providing the 65Ibid., para. 2.26.66Ibid., para. 2.26.67Ibid., para. 2.42.68Ibid., para. 2.27.69Ibid., para. 3.37.70BEUM, Vol.V, Annex68, Note Verbale from the Embassy of the Arab Republic of Egypt in Doha to the Ministry of Foreign Affairs of the State of Qatar, Extradition Request concerning Yusuf Abdullah Aly Al-Qaradawi, 21February 2015; BEUM, Vol.VI, Annex118, “Amir Hosts Iftar banquet for scholars, judges and imams”,Gulf Times, 30 May 2018; Reply of Bahrain, Egypt and United Arab Emirates[BEUR], Vol. II, Annex31,A.Gennarelli, “Egypt’s Request for Qatar’s Extradition of Sheikh Yusuf Al-Qaradawi”, Center for Security Policy, 27May 2015.71See e.g.,the Egyptian Court of Cassation judgment confirming that, between 2011 and 2013, former President Morsi and other leaders of the then Muslim Brotherhood
21
Muslim Brotherhood with a platform on Al Jazeera72. Moreover, Qatar’s
continued funding of extremist groups operating in Syria, Libya and other
locations—whether directly, through the making of ransom payments, or
indirectly—stands in direct violation of its undertaking to cease support for
“militia groups” in any country lacking political stability.
2.14 In short, it should now be beyond contention both that there is a
dispute as to Qatar’s failure to meet its international law obligations, including
under the Riyadh Agreements, and that it constitutes the real issue in dispute
between the Parties, and the subject-matter of that dispute, as is set out in
Chapter IV.
B. QATAR’S UNLAWFUL SUPPORT FOR TERRORISM AND EXTREMISM
2.15 Qatar’s claim that “. . . all of Joint Appellants’ allegations about
Qatar’s alleged ‘support of terrorism and extremism’ are false”73 cannot be
reconciled with widely and publicly available evidence. It is irreconcilable also
with a considerable body of evidence that is highly sensitive and therefore not
in the public domain.
2.16 Qatar has no answer to the numerous reputable sources that have
concluded that it supports terrorism and extremism, as set out in detail in the
Government were paid by Qatari intelligence agents to disclose military and secret
information relating to Egypt: BEUM, Vol. VII, Annex 137, Morsi and others v.
Public Prosecution, Case No. 32611, Judgment of the Court of Cassation of the Arab
Republic of Egypt (Criminal Chamber), 16 September 2017.
72 BEUR, Vol. II, Annex 26, Video Excerpt of Gamal Nassar, Al-Jazeera Television,
17 August 2013; BEUR, Vol. II, Annex 17, Video Excerpt of Muhammad Salim Al-
Awa, Al-Jazeera Television, 16 September 2010; BEUR, Vol. II, Annex 20, Video
Excerpt of Asim Abdul Majid, Al-Jazeera Television, 25 June 2013.
73 QCM(B), para. 2.42.
22Appellants’ Memorial74. Indeed, it is no secret that Qatar was implicated in widespread support for and funding of extremismand terrorism75.Even after agreeing to itsobligationsin the Riyadh Agreements,Qatar has persisted inits support forAl-Qaida, its Syrianbranch Al-Nusra Front, ISIL (Da’esh), the Muslim Brotherhood, Hamas and various Iranian-backed militias and extremist groups operating in Syria, Libya, Egyptand other States76. Those reports also 74BEUM, paras 2.10-2.14,2.18,2.35-2.38,2.47-2.49; see also, BEUR, Vol. II, Annex28, “German minister accuses Qatar of funding Islamic State fighters”, Reuters, 20August 2014, (Statement by German Minister for International Development, Gerd Müller: “You have to ask who is arming, who is financing ISIS troops. The keyword there is Qatar”.); BEUR, Vol. II, Annex43, “Qatar accused of financing Muslim Brotherhood activities in Europe”, The Arab Weekly, 29October 2017, (Belgian Member of Parliament Koen Metsu accused Doha of “allocating millions of dollars to Muslim Brotherhood activities in Europe” and using the Muslim Brotherhood in Europe as “its own pressure group to increase its power and influence among the Arab and Muslim communities”).75See e.g.,BEUR, Vol. II, Annex21,M. Mazzetti, C. J. Chivers and E. Schmitt, “Taking Outsize Role in Syria, Qatar Funnels Arms to Rebels”, The New York Times,29June 2013; BEUM,Vol.VII, Annex133,United States Department of Treasury Press Release, “Treasury Designates Al-Qa’ida Supporters in Qatar and Yemen”, 18December 2013; BEUR, Vol. II, Annex24,J.Schanzer, “Confronting Qatar’s Hamas Ties”, Politico, 10July 2013.76See BEUM, paras 2.10-2.14, 2.18, 2.35-2.38, 2.47-2.49; BEUM, Vol. VI, Annex 106, E.Dickinson, “How Qatar Lost the Middle East”, Foreign Policy, 5 March 2014; BEUM, Vol. III, Annex 24, ICAO Preliminary Objections, Exhibit 19, Remarks of Under Secretary for Terrorism and Financial Intelligence David Cohen before the Center for a New American Security on “Confronting New Threats in TerroristFinancing”, 4 March 2014; BEUR, Vol. II, Annex18,“Hamas political leaders leave Syria for Egypt and Qatar”, BBC News, 28 February 2012; BEUR, Vol. II, Annex37,J. S. Block, “Qatar is a financier of terrorism. Why does the U.S. tolerate it?”, Los Angeles Times, 9 June 2017 (“One week after welcoming U.S. Defense Secretary Jim Mattisin April, Qatar hosted a conference by Hamas. The Al-Thani family is a major backer of the terrorist organization, pouring millions every year into the Gaza Strip to cement Hamas’ grip on power. Last year alone, Qatar transferred $31 million to Hamas, andthe country is expected to pledge an additional $100 million to Gaza.”); BEUM,Vol.III, Annex24, ICAO Preliminary Objections, Exhibit 19, Remarks of Under Secretary for Terrorism and Financial Intelligence David Cohen before the Center for a New American Security on “Confronting New Threats in Terrorist Financing”, 4 March 2014 (“But a number of fundraisers operating in more permissive jurisdictions –particularly in Kuwait and Qatar–are soliciting donations to fund extremist insurgents, not to meet legitimate humanitarian needs. The recipients of these funds are often terrorist groups, including al-Qa’ida’s
23
reveal that Qatar has continued to give sanctuary to dangerous extremists listed
on United Nations and other terrorist sanctions lists77. In Syria, in particular,
Qatar supported a range of extremist and terrorist groups, including ISIS and
the Al-Nusra Front78.
2.17 Further, Qatar has reportedly distributed to extremist groups millions
of dollars raised by Qatar-based “charities”79; and paid very large sums to
Syrian affiliate, al-Nusrah Front, and the Islamic State of Iraq and the Levant (ISIL),
the group formerly known as al-Qa’ida in Iraq (AQI).”) (emphasis added); BEUR,
Vol. II, Annex 46, C. Coughlin, “White House calls on Qatar to stop funding pro-
Iranian militias”, The Telegraph, 12 May 2018 (“senior members of the Qatari
government are on friendly terms with key figures in Iran’s Revolutionary Guard”);
BEUR, Vol. II, Annex 40, “Egypt: Qatar is the main funder of terrorism in Libya”,
Asharq Al-Awsat, 28 June 2017 (“Ambassador Tariq Al-Kouni, Deputy Foreign
Minister for Arab Affairs [of Egypt], said that Qatar is the main financier to terrorist
groups and organizations in Libya . . . During a meeting that was held yesterday
(Tuesday) in New York . . . with the participation of all UN Member States, Al-
Kouni outlined the forms of support that Qatar granted to terrorism in Libya, and
pointed out the impact of terrorism on the situation in Libya which has become a safe
haven for terrorism.”); BEUR, Vol. II, Annex 42, “New Human Rights Report
Accuses Qatar of ‘Harbouring Terrorism in Libya’”, Asharq Al-Awsat, 24 August
2017.
77 BEUM, Vol. III, Annex 24, ICAO Preliminary Objections, Exhibit 15, Narrative
Summary: QDi.253 Khalifa Muhammad Turki Al-Subaiy, United Nations Sanctions
List issued by the Security Council Commission pursuant to Security Council
Resolutions 1267 (1999) 1989 (2011) and 2253 (2015) concerning ISIL (Da’esh) Al-
Qaida and Associated Individuals Groups Undertakings and Entities, last updated on
3 February 2016; BEUR, Vol. II, Annex 45, “‘Wanted Terrorist’ finished second in
Qatar triathlon”, The Week, 28 March 2018.
78 BEUR, Vol. II, Annex 38, “Al-Nosra, the Qatari Terrorist Arm in Syria”, Sky News
Arabia, 17 June 2017; BEUR, Vol. II, Annex 21, M. Mazzetti, C. J. Chivers and
E. Schmitt, “Taking Outsize Role in Syria, Qatar Funnels Arms to Rebels”, The New
York Times, 29 June 2013; BEUR, Vol. II, Annex 37, J. S. Block, “Qatar is a
financier of terrorism. Why does the U.S. tolerate it?”, Los Angeles Times, 9 June
2017 (“Qatar has channeled weapons and money to Islamist rebels, notably to the
notorious organization Ahrar al-Sham, which has known ties to Al Qaeda. Far from
being a force of moderation, Ahrar al-Sham has fought alongside Jabhat al-Nusra,
also known as Al Qaeda in Syria.”).
79 BEUR, Vol. II, Annex 29, T. Ross, R. Mendick and A. Gilligan, ‘Charity
Commission: British charities investigated for terror risks’, The Telegraph,
1 November 2014 (“Analysts fear that millions of dollars of so-called charitable
24terrorist and extremist groups as “ransom” (whether genuine or concocted) for the release of hostages80.Notably,in April 2017, it was widely reported that Qatar paid US$1 billion as a “ransom” to entities affiliated with known terrorist organizations, including Al Qaeda81. In its Counter-Memorial, Qatar’s response to this is once again deceptive, saying simply that “the funds in question were received by the Government of Iraq, which still had possession of them”82. The Iraqi Prime Minister Haider al-Abadi, however,has stated that the funds were “brought in without the approval of the Iraqi government”,were intendedfor “armed groups”;and that the moneyhad been “seized” by Iraqi authorities83. In any case, Qatar has not responded to the publicly released exchange of text messages showing that payments were madeto these groups84.2.18Qatar’s support for extremist groups in Libya sincethe events of 2011 has been repeatedly pointed out by numerous sources85. Likewise, the United donations raised inside Qatar and Kuwait have been used to buy weapons and supplies for jihadists in Iraq and Syria.”).80BEUR, Vol. II, Annex36, E. Solomon, “The $1bn hostage deal that enraged Qatar’s Gulf rivals”, The Financial Times,5 June 2017.81BEUM,Vol.VI, Annex120, P.Wood, “‘Billion Dollar Ransom’: Did Qatar Pay Record Sum?”, BBC, 17 July 2018.82QCM(B), para. 2.41.83BEUR, Vol. II, Annex35, “Abadi: Iraqi government is ‘holding’ Qatari ransom money”, Al Araby, 25 April 2017.84BEUM, para. 2.47;BEUM, Vol. VI, Annex 117, J. Warrick, “Hacked Messages Show Qatar Appearing to Pay Hundreds of Millions to Free Hostages”, The Washington Post, 28 April 2018; BEUM, Vol. VI, Annex 121, “Hacked Phone Messages Shed Light on Massive Payoff that Ended Iraqi Hostage Affair”, The Washington Post (undated).85BEUR, Vol. II, Annex50,E. Chorin, “Libya’s Perpetual Chaos”,Foreign Affairs,19April 2019; BEUR, Vol. II, Annex40,“Egypt: Qatar is the main funder of terrorism in Libya”, Asharq Al-Awsat, 28 June 2017; See alsoBEUR, Vol. II, Annex42,“New Human Rights Report Accuses Qatar of ‘Harbouring Terrorism in Libya’”, Asharq Al-Awsat, 24August 2017 (“The latest Libyan human rights report accused the State of Qatar of supporting terrorism. The report prepared by the Libyan
25
States Government has requested Qatar to cease funding and supporting Iranbacked
extremist militias in the region86.
2.19 It is thus impossible to credit Qatar’s denials of its continuing support
for terrorist and extremist groups that threaten the stability of the Middle East
and North Africa (MENA) region87.
C. QATAR’S UNLAWFUL SUPPORT FOR THE MUSLIM BROTHERHOOD
2.20 Qatar undertook in the First Riyadh Agreement the unambiguous
obligation to provide “no support to the Muslim Brotherhood”88 and in the
‘Justice First’ Organization, which is headquartered in Cairo, mentioned that it has
put all its reports and information on the Libyan entities and individuals on the list of
Arab countries at the disposal of the counterterrorism authorities.”). Qatar’s support
for extremist groups in Libya has also threatened Egypt’s security to the west.
Qatar’s only response is to suggest unconvincingly that, in being the only State to
reject the Arab League resolution of 18 February 2015 (condemning ISIL’s
beheading of 21 Egyptian Coptic Christians in Libya): see BEUM, Vol. V,
Annex 67, Press Release of the Arab League, “Consultative Meeting of the Council
of the League at the level of Permanent Representatives on the condemnation of the
barbaric terrorist act which killed twenty-one Egyptian citizens by ISIS in Libya”,
18 February 2015, para. 2), it was motivated by “concerns about the unilateral use of
force in a fellow Member State of the Arab League, the possibility of civilian
casualties, and the desire not to strengthen any particular party in the Libyan civil
war before the conclusion of the then-ongoing UN-sponsored peace talks” (QCM(A),
para. 2.40). In other words, Qatar maintains that the recognized, legitimate
authorities in Libya—which, as the Council of the Arab League acknowledged,
supported Egypt’s right of self-defence—should have been treated as an equal party
to ISIL (Da’esh) in the Libyan civil war.
86 BEUR, Vol. II, Annex 46, C. Coughlin, “White House calls on Qatar to stop funding
pro-Iranian militias”, The Telegraph, 12 May 2018 (“The Trump administration has
called on Qatar to stop funding pro-Iranian militias following revelations about the
Gulf state’s dealings with terror groups in the Middle East. US security officials have
expressed concern about Qatar’s links to a number of Iranian-sponsored militias,
many of them regarded as terrorist organisations by Washington.”).
87 QCM(B), paras 1.16, 2.1, 2.24 and 2.27.
88 BEUM, Vol. II, Annex 19, First Riyadh Agreement, 23 and 24 November 2013, Art.
2.
26Implementing Mechanism “[n]ot to support [the] Muslim Brotherhood with money or via media in the GCC Countries or outside”89.2.21In their Memorial, the Appellants provided extensive evidence that Qatar “continued to embrace the organization, including by providing its leader Yusuf Al-Qaradawi with a platform for hate speech and incitement on Al Jazeera”90. Qatar’s evasive responses to this evidence and its defence of the Muslim Brotherhood are telling. In fact, Qatar does not deny its violation of these obligations. Instead, it tries to deflect attention from them, even as it continues to support and promote the ideology of the Muslim Brotherhoodthroughout the world91.For example, Qatar seems to suggest that because the Muslim Brotherhood is not a “UN-designated terrorist organisation, or listed as such in the GCC terrorist organisations list”, Qatar was entitled to support it and to provide it with a media platform through Al Jazeera, flatly ignoring its obligations under the Riyadh Agreements92.2.22In addition, Qatar seeks to deflect attention from its harbouring and providing a platform for Yusuf Al-Qaradawi, the spiritual leader of the Muslim Brotherhood.Qatarseeksto legitimize him as a respected “Sunni theologian”93facing “baseless” accusations94,downplaying his close and long-standing 89BEUM, Vol. II, Annex 20,Implementing Mechanism, 17 April 2014, Art. 2(a).90BEUM, para. 2.20.91See, e.g. BEUR, Vol. II, Annex49,“How Qatar funds Muslim Brotherhood expansion in Europe”, Gulf News, 17 April 2019. 92QCM(B), para. 2.56.93Ibid., para. 2.47.94In regard to Qatar’s assertion that the accusations against Al-Qaradawiare “baseless” (QCM(B), para. 2.47), the Appellants note that Interpol issued its Red Notice against Al-Qaradawi in response to an Egyptian arrest warrant: BEUR, Vol. II, Annex54,Interpol Red Notice for Yousf Al Qaradawi, 20November 2014(Redacted). Shortly thereafter Iraq also issued an arrest warrant against Al-Qaradawi for inciting the
27
relationship with the Emir of Qatar95, and ignoring his long history of preaching
the most vile hate speech96. Qatar further omits to mention that in December
2014, shortly after the conclusion of the Riyadh Agreements, Al-Qaradawi and
his Doha-based International Union of Muslim Scholars were expelled from the
International Islamic Council for Da’wa and Relief for mixing religion with
politics97. That Qatar will not condemn Al-Qaradawi merely confirms its
support for the Muslim Brotherhood’s extremist ideology, notwithstanding its
explicit commitment to cease such support in the Riyadh Agreements.
assassination of Iraqi Prime Minister Nouri Al-Maliki on Al Jazeera. In September
2017, Interpol confirmed the validity of the Red Notice but it was suddenly annulled,
shortly before submission of the Appellants’ Memorial. Egypt protested this arbitrary
decision, and requested reinstatement of the Red Notice, consistent with the January
2015 judgment in absentia of the Egyptian courts that Al-Qaradawi acted “to create
chaos in the country, bring down the state with its associations, train armed elements
to carry out hostile acts in the country, attack and assault police stations and prisons
and free prisoners”, see: BEUR, Vol. II, Annex 55, Public Prosecution, Office of
the Attorney General of Egypt, “Request to Reconsider the Decision of the
Commission for t he C ontrol o f I NTERPOL’s F iles ( CCF) i ssued o n t he 1 7th o f
October 2018, in Session No. 106, according to provisions of Article 42 of the statute
of the Commission regarding the Egyptian sentenced: Yusuf Al-Qaradawi under
extradition No. 22 of 2014 (International Cooperation Bureau)”, 9 March 2019. Qatar
also refers (QCM(B), para. 2.48]) to the pre-trial remand of Al-Qaradawi’s daughter,
Ola Qaradawi, and her husband, pursuant to an arrest warrant of 30 June 2017. But
Qatar conspicuously fails to mention the serious crimes of which they were accused,
which include financing terrorism using resources from foreign parties (namely,
Qatar), joining the Muslim Brotherhood and attacking State institutions, all during a
period in which Ms Qaradawi was employed at the Qatari embassy in Cairo. Their
detention has been repeatedly reviewed and approved by Egyptian courts: BEUR,
Vol. II, Annex 41, “Egypt: Qaradawi’s Daughter, Son-in-Law Jailed for Financing
‘Brotherhood’”, Asharq Al-Awsat, 4 July 2017; BEUR, Vol. II, Annex 48, “Egypt
remands dissident cleric’s daughter for 45 days”, BBC News, 18 March 2019.
95 BEUM, para. 2.33; BEUM, Vol. VI, Annex 118, “Amir Hosts Iftar banquet for
scholars, judges and imams”, Gulf Times, 30 May 2018; BEUM, Vol. VI,
Annex 119, D. McElroy, “US Advisers Quit Qatar Role as Emir Dines with Muslim
Brotherhood Leader”, The National, 7 June 2018.
96 As is extensively detailed in the Appellants’ Memorial, BEUM, para. 2.18; and
below, paras 2.27-2.29.
97 BEUR, Vol. II, Annex 30, “Islamic Council for Da’wa and Relief cancels
Qaradawi’s Membership”, Egypt Independent, 9 December 2014.
282.23Nordoes Qatar have any response to the 2017 Judgment of the Court of Cassationof Egyptin the case of Morsi and others v.Public Prosecution98detailing numerous instances where Qatari intelligence operatives and Al Jazeerastaff made substantial payments tosenior Muslim Brotherhood officials to obtain documents containing State secrets99. The Counter-Memorial has nothing to say about the substance of this evidence of grave intervention in the internal affairs of Egypt100. Qatar’s espionage was focused on obtaining detailed information on (among other topics) Egyptian military positions and capabilities in the Sinai Peninsula101,corresponding to information later broadcast on Al Jazeeraamidst a terrorist insurgency in the Sinai Peninsula102.98BEUM,Vol.VII, Annex137,Morsiand others v. Public Prosecution, Case No. 32611, Judgment of the Court of Cassation of the Arab Republic of Egypt (Criminal Chamber), 16 September 2017.99BEUM,Vol.VII, Annex137,Morsi and others v. Public Prosecution, Case No. 32611, Judgment of theCourt of Cassation of the Arab Republic of Egypt (Criminal Chamber), 16 September 2017, p. 10.100Qatar merely questions the “quality of evidence” without providing any explanation whatsoever. It also questions the impartiality of the trial, asserting that President el-Sisi has the power to select judges based on a new Egyptian law: QCM(B), para. 2.51) Qatar fails to mention however, that noneof the judges presiding in that case where appointed by the President of Egypt. The evidence relied on by Qatar itself makes clear that the new law permitted the Egyptian President to appoint only the Chief Justice of the Court of Cassation (which he must choose from three nominees put forward by the Supreme Judiciary Council) and the head of the State Council (the chief justice of the Supreme Administrative Court) from among three nominees put forward by the State Council’s general assembly:QCM(B), Vol.IV, Annex119,“The Battle over Appointing Judges in Egypt”, Carnegie Endowment for International Peace, 16January2018. It further bears noting that the Court of Cassation and the State Council are entirely separate from the High Court of Appeals (Criminal Circle) which was the court of first instance in Public Prosecutor v Morsi and others.101BEUM,Vol.VII, Annex137,Morsi and others v. Public Prosecution, Case No. 32611, Judgment of the Court of Cassation of the Arab Republic of Egypt (Criminal Chamber), 16 September 2017, pp. 34 and 42.102BEUR, Vol. II, Annex47,Video Excerpt“Zero Distance”,Al-Jazeera Television,29 July 2018 and 5 August 2018.
29
Moreover, Muslim Brotherhood leaders have supported this insurgency103,
notwithstanding the numerous atrocities committed against civilians, such as
the massacre of 305 worshippers at Al-Radwa Sufi Mosque in the Sinai
Peninsula on 24 November 2017104.
2.24 Another instance of Qatar’s overt support of the Muslim Brotherhood
is its portrayal of armed extremists inciting jihad against the Egyptian
Government in Raba’a Square during August 2013 as “peaceful protestors”105.
In the days preceding the violent clash in Raba’a Square and other locations in
Egypt, Al Jazeera gave blanket coverage to speeches by extremists including,
for example, the notorious Muslim Brotherhood leader, Asim Abdul Majid, on
25 June 2013, calling for “Upper Egypt” to raise an army of “a hundred
thousand men” against the opponents of an “Islamist revolution”, including
secularists, Marxists, Jews, and Coptic Christians, and threatening that the
Government would be “burnt by Upper Egypt”106. The Independent
Commission on the Events of 30 June 2013, headed by the respected former
Judge of the International Criminal Tribunal for the former Yugoslavia, Fouad
Riad, found that some of the purported protestors at Raba’a Square were in fact
armed with “different types of firearm, edged weapons, explosives, chemical
materials, and other materials”107; used civilians as human shields; and killed
103 BEUR, Vol. II, Annex 27, Video Excerpt of Mohamed El-Beltagy, Al-Jazeera
Television, 16 August 2014.
104 BEUR, Vol. II, Annex 44, “Egypt attack: IS flags carried by gunmen, say officials”,
BBC News, 25 November 2017.
105 QCM(B), para. 2.46.
106 BEUR, Vol. II, Annex 20, Video Excerpt of speech delivered by Asim Abdul Majid,
Al-Jazeera Television, 25 June 2013.
107 BEUR, Vol. II, Annex 53, “Findings of Fact-finding Report Issued by the
Independent National Commission on Events Concurrent with June 30th, 2013”,
11 March 2014, p. 10.
30numerous police and other security officers108. The Commission also described violence by Muslim Brotherhood supporters against CopticChristians, including the burning of 52 churchesand Christian facilities109.2.25As for Qatar’s claim that the Muslim Brotherhood is unobjectionable because Bahrain has not banned it as an organization110, this argument fails to address the substance of the Appellants’ complaint against the Muslim Brotherhood, which concerns theacts of extremism and incitement perpetrated by members of the Muslim Brotherhood.Bahrain has consistently opposed such actions by members of the Muslim Brotherhood, as indeed by any other organization, and has called for Qatar to meet its obligations under the Riyadh Agreementsin this respect.D.QATAR’SUSE OF STATE-OWNED MEDIA AS A PLATFORM FOR HATE SPEECH AND EXTREMISM2.26Qatar undertook in the Riyadh Agreements to cease hostile Al Jazeerabroadcasts, including those promoting extremism and terrorism. Against these facts, Qatar’s assertionsin its Counter-Memorial that the Appellants “are not genuinely concerned about Qatar’s (non-existent) support for terrorism or interference in their internal affairs”, and that their real intention is “to forceQatar to abandon its commitment to freedom of expression and political tolerance”111,arecynical and disingenuous. Similarly, its assertions as to the “high regard” and “international esteem” in which Al Jazeerais held112, and its 108Ibid.,pp.10, 12, 18 and 21–22.109Ibid., p.23.110QCM(B), para. 2.56.111Ibid., para. 2.27.112Ibid.,para. 2.55.31“
31
“complete journalistic, editorial independence” are baseless113. Qatar also
ignores the significant differences between the English and Arabic Al Jazeera
channels, the latter of which have been the source of most of the objectionable
broadcasts in support of violent extremist groups114.
2.27 Far from being held in “international esteem”, as Qatar suggests, these
channels have, if anything, promoted hatred and violence. Examples of Al
Jazeera’s broadcasting include television broadcasts in which one of its most
prominent journalists openly expressed enthusiastic support for Al-Qaida’s
ideology, and an extended and highly favourable interview on Al Jazeera with
the Al Nusra Front leader Muhammad Al-Jolani that has been described as
Qatar’s “infomercial” for the terrorist group115. It is perhaps not surprising that
81% of respondents to an online Al Jazeera poll in 2015 indicated that they
supported ISIL (Da’esh)116.
2.28 The Counter-Memorial is also silent on Al Jazeera’s regular broadcasts
of the sermons of Al-Qaradawi. For example, as set out in the Appellants’
Memorial, Al-Qaradawi has on his show referred to the Holocaust as “divine
punishment” of the Jews117. Further, he openly prayed on Al Jazeera: “O Allah,
take this oppressive, Jewish, Zionist band of people, . . . do not spare a single
one of them. . . . [C]ount their numbers, and kill them, down to the very last
113 Ibid., para. 2.56.
114 BEUM, para. 2.43, and see also, below, paras 2.29-2.31.
115 BEUR, Vol. II, Annex 34, M. Fahmy, “The Price of Aljazeera’s Politics”, The
Washington Institute for Near East Policy, 26 June 2015.
116 BEUR, Vol. II, Annex 32, “Voting”, Al Jazeera, 28 May 2015.
117 BEUM, para. 2.18, citing BEUM, Vol. VI, Annex 101, Video Excerpt of Yusuf Al-
Qaradawi, Al-Jazeera Television, 28-30 January 2009.
32one”118.In yet another Al Jazeerabroadcast, asenior Muslim Brotherhood memberasserted that President el-Sisi is secretly Jewish and part of a “premeditated” conspiracy to destroy Egypt consistent with “[t]he Protocols of the Elders of Zion”, anotorious anti-Semitic forgery119.Al Jazeerahas also provided a platform for Al-Qaradawi and Muslim Brotherhood leaders to incite hatred and violence against CopticChristians, Egypt’s largest religious minority, demonizing them with accusations of anti-Islamic conspiracies120,including amassing weapons in churches in order to kill Muslims121.Notwithstanding the grave consequencesof this hate speech and incitement to violence, Qatarhas refused to terminate such broadcasts122.2.29Qatar’sCounter-Memorial also ignoresAl-Qaradawi’s Al Jazeeratalk show “Sharia and Life”—provided as a further example by the Appellants—in which he called on Muslims to become suicide bombers123.He has similarly declared that suicide bombings are not merely a “legitimate right”, but instead a“duty”124.118BEUR, Vol. II, Annex16,Video Excerpt of Yusuf Al-Qaradawi, Al-Jazeera Television, 9January 2009.119BEUR, Vol. II, Annex26,Video Excerpt of Gamal Nassar, Al-Jazeera Television,17August 2013.120BEUR, Vol. II, Annex25,Video Excerpt of Yusuf Al-Qaradhawi, Al-Jazeera Television, 27 July 2013.121See e.g., BEUR, Vol. II, Annex17,Video Excerpt of Muhammad Salim Al-Awa, Al-Jazeera Television, 16 September 2010.122QCM(B), paras 2.55–2.57.123BEUM,Vol.VI, Annex102, Video Excerpt of Yusuf Al-Qaradawi, ‘Sharia and Life’, Al-Jazeera Television, 17March 2013.124BEUR, Vol. II, Annex15,A.Barnett, “Suicide bombs are a duty, says Islamic scholar”, The Guardian, 28August 2005. This is but one respect in whichAl Jazeera’s Arabic channels may be seen as inspiring, supporting, celebrating and promoting terrorism.
33
2.30 It should come as no surprise—as set out in the Memorial125—that the
suicide bomber who killed numerous Coptic Christian worshippers at the
Church of Saints Paul and Peter in December 2016 had, according to the
Egyptian Interior Ministry, visited Qatar “where he had close connection with
some of the Muslim Brotherhood’s leaders” who instructed him “to start
preparing and planning terrorist operations targeting the Copts with the aim of
provoking a large sectarian crisis during the coming period”126. Qatar’s only
answer to this contemporaneous statement is that the culprit had also visited
North Sinai where he could have been further radicalized127.
2.31 Indeed, any suggestion that Al Jazeera is independent of Qatar is a
complete fabrication: Al Jazeera is wholly-owned by Qatar and its chairman is
a member of the Qatari royal family128. Qatar acknowledged its absolute control
over Al Jazeera by its commitment in the Riyadh Agreements to stop
supporting “antagonistic media”129, and to “ceas[e] all media activity directed
against the Arab Republic of Egypt”, including on Al Jazeera and its Arabic
channel in Egypt, Al Jazeera Mubashir Masr.130 Such an obligation de résultat
would be impossible for Qatar to undertake had Al Jazeera not been under its
full control.
125 BEUM, para. 2.34.
126 BEUM, Vol. V, Annex 71, Official Statement of the Ministry of Interior of the Arab
Republic of Egypt, 12 December 2016, para. 3.
127 QCM(B), para. 2.49.
128 The Chairman is Sheikh Hamad bin Thamer Al Thani, a cousin of the Emir of Qatar.
See also: BEUR, Vol. II, Annex 19, D. Sabbagh, “Al-Jazeera’s political
independence questioned amid Qatar intervention”, The Guardian, 20 September
2012.
129 BEUM, Vol. II, Annex 19, First Riyadh Agreement, 23 and 24 November 2013, Art.
1.
130 BEUM, Vol. II, Annex 21, Supplementary Riyadh Agreement, 16 November 2014,
Art. 3(d).
342.32Thelinks between Qatar, Al Jazeera, and the Muslim Brotherhood, are particularly manifestin the case of Egypt.In 2013, Egypt facedmassive protests in which millions of Egyptians demandedthe resignation of President Morsi’s Muslim Brotherhood Government,amidst sectarian violence and economic collapse, which had brought Egypt to the brink of chaos and civil war131.During this period, Al Jazeeragave blanket coverage to supporters of the Muslim Brotherhood. Itsbroadcastsof incitements to hatred and violencewereso serious that, in July 2013, immediately before the violent clashes in Raba’a Square, twenty-two Al Jazeerajournalists resigned in protest at the “biased coverage” of the channel’s Arabic service132.2.33It is clear that Qatar used Al Jazeeraas a tool to interfere in the internal affairs of other States, particularly Egypt. Mohamed Fahmy, a Canadian-Egyptian journalist who was previously the acting Bureau Chief at Al JazeeraEnglish in Cairo, and who was prosecutedin Egypt in connection with his workfor the network, explains thatMubashir Masr(the Arabic service of Al Jazeerain Egypt) was banned by Egypt as it “was perceived asa Qatari-sponsored propaganda mouthpiece for the Brotherhood”133.Fahmy described Al Jazeera as a “pernicious ...tool of[Qatar’s] foreign policy”134,and “a mouthpiece for extremism”135.According to Fahmy:131BEUR, Vol. II, Annex22,“By the Millions, Egyptians Seek Morsi’s Ouster”, The New York Times, 30 June 2013.132BEUR, Vol. II, Annex23,“Al Jazeera staff resign after ‘biased’ Egypt coverage”, Gulf News, 8July 2013.133BEUR, Vol. II, Annex33,“How Qatar Used and Abused Its Al Jazeera Journalists”, The New York Times, 2 June 2015, p. 2.134Ibid., p. 2.135BEUR, Vol. II, Annex34,M. Fahmy, “The Price of Aljazeera’s Politics”, The Washington Institute for Near East Policy,26 June 2015, p. 1.35“
35
“The [Al Jazeera] network knowingly antagonized
the Egyptian authorities by defying a court-ordered
ban on its Arabic-language service. Behind that, I
believe, was the desire of the Qatari royal family to
meddle in Egypt’s internal affairs.”136
“When I started meeting with and interviewing
members of the Muslim Brotherhood and their
sympathizers, they specifically told me they had been
filming [the fake] protests and selling [them] to [A]l-
Jazeera and dealing fluidly with the network and
production companies in Egypt associated with the
network.”137
2.34 Thus, despite Qatar’s clear obligation under the principle of nonintervention
and pursuant to the Riyadh Agreements to cease airing antagonistic
media content directed against Egypt138, it has emerged that it was instead
directly funding the opposition by providing video cameras and paying for
footage of so-called protests of the Muslim Brotherhood. This is but one
example of the myriad ways in which Qatar has directly fuelled sectarian
hatred, political violence and serious instability in Egypt, as well as in other
countries in the region.
Section 2. The Aviation Restrictions were imposed as proportionate
countermeasures to Qatar’s wrongful actions
2.35 In response to Qatar’s conduct, the Appellants were fully entitled to
adopt the aviation restrictions, so as to induce Qatar’s compliance with its
international law obligations139. The question of determining the scope and
136 BEUR, Vol. II, Annex 33, “How Qatar Used and Abused Its Al Jazeera Journalists”,
The New York Times, 2 June 2015, p. 2.
137 BEUR, Vol. II, Annex 39, E. Lake, “Al-Jazeera and the Muslim Brotherhood”,
Asharq Al-Awsat, 25 June 2017, p. 2.
138 See above, para. 2.31.
139 BEUM, paras 2.52-2.54.
36legality of those restrictions is plainly a matter for the merits. As such it is not a matter for the Courtin thepresent proceedings, since its mandateis confined to the three grounds of appeal submitted by the Appellantsas to the competence of the ICAO Council.2.36Nevertheless, in its Counter-Memorial, Qatar has persisted in making untruthfulallegations that the Appellants limited the overflight rights of Qatar-registeredaircraft through Notices to Airmen (NOTAMs) without prior warning140and that the Appellants did not co-operate in a timely manner with ICAO or Qatar in establishing contingency routes141.2.37The Appellants reject any suggestion that the airspace restrictions were wrongful. The Appellants’ present response is thus intended merely to reiterate that, contrary to Qatar’s assertions, each of the Appellants made timely and proper notification of the airspace restrictions, in accordance with all relevant rules and safety requirements, and in full cooperation with all relevant authorities,including ICAO142. Furthermore, they promptly adopted contingency measures in order to preserve the safety of civil aviation, as outlined below.A.BAHRAIN2.38As Qatar acknowledges, Bahrain made contingency routes available for Qatar-registeredaircraft through the Bahrain Flight Information Region 140QCM(B), para. 2.7.141Ibid., para. 2.15et seq.142BEUM, paras 2.25-2.54.37(
37
(FIR)143. Bahrain did so at the same time as adopting the restrictive measures,
on 5 June 2017, having notified these measures in advance.
2.39 Further, numerous contingency routes have been added over time by
the Appellants under the auspices of the ICAO Middle East Regional Office
(ICAO MID Office), which commended the efforts of the Appellants in this
regard144. For example, as Qatar acknowledges, on 31 January 2019, a new
inbound contingency route to Doha via the Bahrain FIR became effective,
which allows Qatar-registered aircraft to fly through the Tehran FIR, enter into
the Bahrain FIR and arrive at the Doha airport145. This route was agreed in
principle between Bahrain and Iran in April 2018146, and the required technical
and operational rearrangements within the two FIRs were completed by
November 2018. Bahrain and Qatar entered into negotiations to agree to amend
their operational agreement as required to implement this contingency
arrangement147, which concluded in January 2019. The route opened as soon as
it was approved by Qatar’s Civil Aviation Authority, on 28 January 2019.
143 QCM(B), para. 2.16.
144 QCM(B), Vol. III, Annex 27, ICAO Council, Third ATM Contingency
Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/3
(5-6 Sept. 2017), para. 6.2 (“The Chairman congratulated the MID Region for the
continuous improvements of the implemented contingency plan. He highlighted that
the meeting is an evidence of the high level of regional commitment related to safe
air traffic operations across the MID Region.”).
145 QCM(B), note 60.
146 QCM(B), Vol. III, Annex 34, Fourth ATM Contingency Coordination Meeting for
Qatar, Summary of Discussions, ICAO Doc ACCM/4, 28 April 2018, para. 6.7.8.
147 Ibid.
38B.EGYPT2.40It is also untrue, contrary to Qatar’s assertion, that Egypt “continued to reject or delay” Qatar’s proposals for contingency routes148.In fact, the evidence included withQatar’s Counter-Memorial indicates the opposite. At the ICAO Council contingency coordination meeting held on 6 July2017, the Egyptian representatives “indicated their willingness to support the efforts contributing to ensure the safe air transport in the region”149.At the same meeting, Egypt accepted in principle (with minor modifications only) Qatar’s proposal fora contingency route for flights by Qatar-registered aircraft between Beirut and Tunis over the high seas through the Cairo FIR,notingthat making this route operational would require coordination with Malta and Libya150.At an extraordinary session of the ICAO Council held on 31 July 2017, it was confirmed that authorities in Tripoli had agreed to the proposed contingency route and that this route would become operational the following day. A revised NOTAM for the Cairo FIR had been issuedfor this purpose151.2.41Qatar’s description of this route in its Counter-Memorial as being “of little to no operational value”152is unsupported by the evidence it cites153and,148QCM(B), para. 2.19.149QCM(B), Vol. III,Annex 26,ICAO Council, First ATM Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/1, 6 July 2017, para.6.6.150Ibid., p. 3.151BEUM,Vol. V,Annex 41, ICAO Council –Summary Minutes of the Meeting of the Extraordinary Session of 31 July 2017, concerning the Request of Qatar –Item under Article 54(n) of the Chicago Convention, 22 August 2017, paras 41 and 59.152QCM(B), para. 2.19.39in
39
in any case, is not a reflection of any fault on Egypt’s part, given that the route
matches closely the route which Qatar itself proposed.
C. UAE
2.42 Regarding the UAE, Qatar complains that a proposed contingency
route over UAE territory was rejected154 without providing more details or any
other factual information about the UAE’s contributions to ensure safe and
efficient air traffic operations in the region. From the beginning, the UAE has
seen it as a priority to ensure the safe operation of civil aviation in the Middle
East and has contributed to the implementation of various contingency
measures within the adjacent FIRs. All along, the UAE has continuously been
cooperating with ICAO and IATA, as well as with Bahrain, Iran and Oman to
implement a safe and appropriate contingency plan to avoid the disruption of air
traffic in the region. The ICAO recognized that the UAE’s plan was safe and
appreciated the UAE’s efforts155.
2.43 Qatar also neglects to mention that the UAE could not approve Qatar’s
proposed route after a detailed technical safety assessment based on factual data
undertaken in accordance with ICAO requirements, on the grounds that,
amongst others, Qatar’s proposal to fly on ATS route L305 was not
recommended for implementation exclusively for operational safety reasons as
153 The document which Qatar cites states only that, as a matter of fact, one of the
contingency routes through the Cairo FIR “ha[d] not been yet used by Qatar
registered aircraft” by 5 September 2017: QCM(B), Vol. III, Annex 27, ICAO
Council, Third ATM Contingency Coordination Meeting for Qatar, Summary of
Discussions, ICAO Doc. ACCM/3, 5-6 September 2017, para. 6.5.
154 QCM(B), para. 2.18.
155 See QCM(B), Vol. III, Annex 26, ICAO Council, First ATM Contingency
Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/1,
6 July 2017, paras 6.9, 6.13, 7.1, 7.3.
40it would result in unacceptable safety concerns156.The proposed routewould have crossed the main traffic flows of the busiest Emirati airports. It would have created five conflict points with routes to or from the Bahrain FIR157,two conflict points with eastbound traffic from the Tehran FIR158,and even moredangerously, it would have conflicted with the UAE’s main arrival holding patternDESDI for arrivals into the Northern UAE’s busy airports159.It is also important to note that historically L305 was avoided by Qatar traffic overflying the UAE FIR due to safety concerns with other traffic. Nonetheless, as recognized by Qatar, the UAE approved an additional contingency route proposed by Qatar160.In any case, in compliance with the UAE’s international obligations and as agreed with the ICAO MID Office, UAE airspace and airports were available at all times for Qatar registered aircraft in case of emergency161.*2.44Qatar also makesan allegation that Bahrain communicated its intention to establish a buffer zone adjacent to its territorial waters and to intercept 156Ibid., paras6.9, 6.13.157QCM(B), Vol. III, Annex 26, ICAO Council, First ATM Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/1, 6 July 2017, Appendix B, UAE General Civil Aviation Authority, UAE airspace measures on the State of Qatar, pp.15-16.158Ibid., p.17.159Ibid., p.18.160QCM(B), para. 2.20;QCM(B), Vol. IV, Annex 135,Appendices of Working Paper 14640: Contingency Arrangements and ATM Measures in the MID Regionby Kingdom of Bahrain, Arab Republic of Egypt, Kingdom of Saudi Arabia and United Arab Emirates (2017), p. 16.161QCM(B), Vol. III, Annex 26, ICAO Council, First ATM Contingency Coordination Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/1, 6 July 2017, Appendix B: UAE presentation, p. 20.41militarily
41
militarily any Qatar-registered aircraft entering into that buffer zone162. Bahrain
emphatically denies these allegations, which are as vague and unparticularized
as they are groundless. Qatar fails to identify the date of the alleged
communication (said to have been a telephone call), the officials involved, or
the subject-matter or content of the alleged call. In fact, Bahrain did not
establish any buffer zone, and it remains committed to providing safe and
efficient services to all traffic within its FIR, in all respects163. To that end, at
all times since 5 June 2017, Bahrain’s FIR and its airports have remained
available for Qatar-registered aircraft in case of emergency or unexpected
weather conditions. Furthermore, Bahrain has never intercepted any Qatarregistered
aircraft within its FIR, nor has it ever threatened to do so.
*
2.45 The foregoing shows that the Appellants acted promptly within the
framework of the Chicago Convention and the IASTA to minimize the impact
of their measures, which they were legally justified in adopting to induce Qatar
to comply with its legal obligations.
162 QCM(B), para. 2.10, referring to BEUM, Vol. IV, Annex 25, ICAO Response to the
Preliminary Objections, Exhibit 3, letter of the Qatar Civil Aviation Authority to the
President of the Council, dated 8 June 2017, ref. 2017/15984.
163 QCM(B), Vol. III, Annex 26, ICAO Council, First ATM Contingency Coordination
Meeting for Qatar, Summary of Discussions, ICAO Doc. ACCM/1, 6 July 2017,
Bahrain’s presentation, page entitled “Assurance”; see also, BEUM, Vol. V,
Annex 37, ICAO Working Paper presented by Bahrain, Egypt, Saudi Arabia and the
United Arab Emirates, Council – Extraordinary Session, concerning the Request of
Qatar – Item under Article 54(n) of the Chicago Convention, ICAO document CWP/
14640, 19 July 2017, Appendix B, Measures taken by the Kingdom of Bahrain,
Egypt, Saudi Arabia and the United Arab Emirates, Part 1(C)(h) and (D)(b) –
Measures by the Kingdom of Bahrain (“No changes to normal military routes or
operational training areas have been made. No military “Buffer Zones” have been
applied or imposed.”).
42CHAPTERIIIFIRST GROUND OF APPEAL: THE DECISION OF THE ICAO COUNCIL FALLS TO BE SET ASIDE DUE TO GRAVE VIOLATIONS OF DUE PROCESS3.1For reasons more fully set out in the Memorial, the Decision of the ICAO Council should be recognized as a procedural nullity—anon est—and accordingly set aside. In short, the procedure adopted by the ICAO Council was manifestly flawed and in violation of the fundamental principles of due process. 3.2In this Chapter, the Appellants respond to Qatar’s arguments that (a)the Court has no jurisdiction to set aside a decision of the ICAO Council on due process grounds and (b) that “there were no irregularities in the procedure adopted by the Council” or that any such defects were, in any event, “irrelevant”or “harmless”.3.3Before turning to address these arguments, it is important to deal at the outset with a broader, systemic implication of Qatar’s pleaded case. The Appellants state in their Memorial that the absence of deliberations by the Council (or indeed any substantive debate among the Members of the ICAO Council or with the Parties in the Council) strongly indicates that the Council delegates were voting on instruction from their capitals rather than exercising theadjudicative function conferred by Article II, section 2 of the IASTA164. In its Counter-Memorial Qatar purports to turn this vice into a virtue, arguing that notfollowing instructions would have been a violation of due process165. This astounding argument is the subject of Section 1. Then, Section 2explains why the Court should exercise its supervisory authority in respect of the procedural 164BEUM, para. 3.2(g).165QCM(B), para. 5.40.43deficiencies
43
deficiencies in the Council’s adjudication of legal disputes. Section 3 proceeds
to describe the grave and widespread defects in the procedure adopted by the
ICAO Council, which ultimately tainted its Decision. This is followed by
Section 4, which sets out why the Appellants cannot be held to have waived
their right to complain about those defects before the Court. Concluding this
Chapter, the Appellants respectfully invite the Court to set aside the ICAO
Council Decision (Section 5).
Section 1. On Qatar’s own case, the ICAO Council is not apt as a legal
forum
3.4 Qatar does not deny that in the present dispute the ICAO Council was
carrying out a judicial function conferred upon it by Article II, section 2 of the
IASTA. As the Council President reminded Council members at the outset of
the hearing of 26 June 2018, which applies equally to cases brought under the
IASTA:
“the Council [is] sitting as a judicial body under
article 84 of the Chicago Convention, taking its
decisions on the basis of the submission of written
documents by the Parties, as well on the basis of oral
arguments.”166
3.5 In their Memorial, the Appellants referred to the structural difficulties
faced by the ICAO Council in acquitting itself of its judicial function under
Chapter XVIII of the Chicago Convention (to which Article II, section 2 of the
166 BEUM, Vol. V, Annex 53, ICAO Council – 214th Session, Summary Minutes of the
Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para.
6, (emphasis added).
44IASTAcross-refers), referring tothe views of commentators that the ICAO Council was equipped to resolve disputes of a technical nature only167.3.6In this regard, theAppellants set out the procedural history of the ICAO Council proceedings to date, taking issue with multiple, manifest violations of due process. They stressed, in particular, the absence of any deliberations at all and the absence of any reasons provided in the Decision of the Council, which consisted only of one line168.3.7Qatar does not contest the procedural defects described by the Appellants. Instead, it contends that those defects are, in the circumstances,“irrelevant”169and “harmless”170. Qatar also argues that even if the Council delegates did act on instruction from their governments in deciding on the Appellants’ Preliminary Objections, that would be in keeping with judicial process. Qatar goes on to assert that—“when ICAO Council Member representatives are acting in Article 84 proceedings, discharging the judicial function in their own individual capacity, rather than on behalf of their appointing States, is what would violate due process, not the other way around.”1713.8That is an astounding proposition. Instructions are inimical to the judicial function, which comports a duty to act only upon one’s professional conscience, in a manner that is independent and impartial—as the Council 167BEUM, para. 3.8.168Ibid., Chapter 3, particularly para. 3.2.169QCM(B), para. 1.9.170Ibid., para. 5.51.171Ibid., para. 5.40.45President
45
President said, “on the basis of the submission of written documents by the
Parties, as well on the basis of oral arguments” 172, and nothing else. Given that
several of the governments which participate in the ICAO Council had made
political statements about the underlying dispute between the Parties173, Qatar’s
position thus confirms the conclusion that the Decision had been predetermined.
This entails that the Council was structurally incapable of
adjudicating upon the Appellants’ Preliminary Objections in a proper judicial
manner.
3.9 That structural concern with the ICAO Council is also borne out by the
minutes of the Council proceedings concerning the 1971 dispute between India
and Pakistan, which record the wish of certain Council members to await
instructions from their governments before rendering a decision174.
3.10 Commentators, too, have pointed out this serious issue in analysing the
judicial functions of the Council175. And as these commentators have rightly
noted, the Council’s judicial function cannot be conflated with its other
functions, such as setting aviation-safety standards or delimiting FIRs. The
judicial function of the Council is to be discharged by the individuals sitting on
the Council from time to time, in their individual capacity. For it is settled law
172 BEUM, Vol. V, Annex 53, ICAO Council – 214th Session, Summary Minutes of the
Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para.
6, (emphasis added).
173 BEUM, Vol. V, Annex 41, ICAO Council – Summary Minutes of the Meeting of the
Extraordinary Session of 31 July 2017, concerning the Request of Qatar – Item under
Article 54(n) of the Chicago Convention, 22 August 2017, paras 69-84.
174 BEUM, Vol. V, Annex 27, ICAO Council – 74th Session, Minutes of the Fifth
Meeting, ICAO document 8987-C/1004, 28 July 1971, paras 7, 10.
175 BEUM, Vol. VI, Annex 126, G. F. Fitzgerald, “The Judgment of the International
Court of Justice in the Appeal Relating to the Jurisdiction of the ICAO Council”,
(1974) 12 Canadian Yearbook of International Law 153, p. 169.
46that when a Statehas been designated as an arbitrator or judge, once the individual adjudicator has been designated by the State, it is that individual who must act, in their personal capacity, not on instruction176. As Gerald Fitzgerald—the senior legal officer of ICAO at the time of the hearing in the dispute between India and Pakistan—has stated:“[I]t is a contradiction in terms to say that a state can be a judge. It is also a contradiction to hold that a representative who receives instructions from a state as to how heshould act with respect to a particular disagreement could be seen to act judicially.”1773.11Two conclusions follow from the foregoing. First, that Qatar’s position vindicates the view, expressed by several commentators, that at present the ICAO Council is notan apt legal forum (but instead a political forum)178.Secondly, that it falls to the Court, as the guardian of the integrity of the international judicial process, to exercise its supervisory authority in order to 176S. Rosenne, The Law and Practice of the International Court 1920-2005(4thed.,2006), Vol.I, p. 355, stating with respect to members of the Court that if “political factors momentarily enter into play at the time of the election of the members of the Court, once elected the Court is granted every facility to maintain the proper degree of judicial independence”.177BEUM,Vol. VI, Annex 126,G. F. Fitzgerald, “The Judgment of the International Court of Justice in the Appeal Relating to the Jurisdiction of the ICAO Council”, (1974) 12 Canadian Yearbook of International Law153, p. 169, (emphasis added).178BEUM,Vol. VI, Annex 128, E. Warner, “Notes from PICAO Experience”, (1946) 1 Air Affairs 30, p. 37; BEUM,Vol. VI, Annex 125, T. Buergenthal, Law-making in the International Civil Aviation Organization (1969), pp. 195-197; BEUM,Vol.VI, Annex 126, G. F. Fitzgerald, “The Judgment of the International Court of Justice in the Appeal Relating to the Jurisdiction of the ICAO Council”, (1974) 12 Canadian Yearbook of International Law 153, p. 157; BEUM,Vol. VI, Annex122, R. I. R. Abeyratne, “Law Making and Decision Making Powers of the ICAO Council–ACritical Analysis”, (1992) 41 Zeitschrift für Luft-und Weltraumrecht 387, p.394; BEUM,Vol. VI, Annex 123, J. Bae, “Review of the Dispute Settlement Mechanism Under the International Civil Aviation Organization: Contradiction of Political Body Adjudication”, (2013) 4(1) Journal of International Dispute Settlement65, p. 70.47provide
47
provide the Council with necessary direction on how to comply with the duties
of due process that are incumbent upon any adjudicator.
Section 2. Due process falls within the Court’s appellate jurisdiction
3.12 The next issue of debate between the Parties concerns whether litigants
before the ICAO Council are entitled to due process or not. The Appellants
submit that they are; from which follows that an appeal under Article II, section
2 of the IASTA must be capable of encompassing procedural complaints. Qatar
submits the contrary, from which it must necessarily follow that litigants are not
entitled to due process.
3.13 Qatar argues that the Chicago Convention does not expressly authorize
the setting aside of a decision of the Council on grounds of due process179. But
the supposed need for such an express authorization is one of Qatar’s own
making. In fact, Article II, section 2 of the IASTA provides for a broad right of
appeal, without restricting the grounds available. If one accepts, as one must,
that due process is a fundamental entitlement of litigants in any judicial forum,
it is inherent in the notion of appeal that it may encompass review of every
aspect of the proceedings. In this regard, in his separate opinion appended to the
Court’s judgment in the India v. Pakistan appeal, Judge Jiménez de Aréchaga
noted, with specific reference to Article 84, which is cross-referred to by Article
II, section 2 of the IASTA:
“The right of appeal granted by Article 84 of the
Chicago Convention comprises not only the right to
obtain a pronouncement from the Court on whether
the decision of first instance is correct from the point
of view of substantive law but also on whether that
decision was validly adopted in accordance with the
179 QCM(B), para. 5.11.
48essential principles of procedure which must govern the quasi-judicial function entrusted to the organ of first instance.”1803.14In Application for Review of Judgment No. 158 of the UN Administrative Tribunal, (Advisory Opinion), the Court held that a decision of the UN Administrative Tribunal could be appealed on grounds not explicitly set forth in the Statute of the Tribunal:“The fact that failure to state reasons was not expressly mentioned in the list of grounds for review does not exclude the possibility that failure to state reasons may constitute one of the errors in procedure comprised in Article 11[181].Not only is it of the essence of judicial decisions that they should be reasoned, but Article 10, paragraph 3, of the Tribunal’s Statute, which this Court has found to be a provision ‘of an essentially judicial character’ (I.C.J. Reports 1954, p. 52), requires that: ‘the judgements shall state the reasons on which they are based’.”1823.15Similarly, in the Arbitral Award of 31 July 1989, the Court held that it had jurisdiction to rule on the alleged nullity and inexistence of an arbitral award on the basis ofthe declarations made by Senegal and Guinea-Bissauunder Article 36(2) of the Statute, even though neither declaration expressly 180Separate Opinion of Judge Jiménez de Aréchaga,Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, para. 37.181Article 11 of the Statute of the Administrative Tribunal of the United Nations 1955, as amended by Resolution 957(X) on 8 November 1955, allowed applicants to appeal a judgment if the Tribunal had “committed a fundamental error in procedure which has occasioned a failure of justice”. See: Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 170, para. 12.182Application for Review of Judgment No. 158 of the UnitedNations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 210, para. 94 (emphasis added).
49
allowed the Court to set aside decisions tainted by a failure to follow rules of
due process183.
3.16 What is more, the policy implications of Qatar’s argument are unsound
and inimical to the Court’s function. It is indeed the function of the Court to set
and supervise judicial decision-making standards in the international legal
system184. There can therefore be no serious dispute that failure to abide by
fundamental guarantees of due process entitles—indeed requires—the Court to
set aside a decision that emanates from a flawed process.
3.17 In India v. Pakistan, the Court referred to its appellate function under
the Chicago Convention and IASTA as follows:
“In thus providing for judicial recourse by way of
appeal to the Court against decisions of the Council
concerning interpretation and application – a type of
recourse already figuring in earlier conventions in the
sphere of communications – the Chicago Treaties
gave member States, and through them the Council,
the possibility of ensuring a certain measure of
supervision by the Court over those decisions. To this
183 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports
1991, pp. 61-63, paras 22-27.
184 J. Crawford, “The International Court of Justice, Judicial Administration and the
Rule o f Law”, i n D . W . B owett a nd o thers, The International Court of Justice,
Process, Practice and Procedure (1997), pp. 113-114, noting that “[t]he Court is the
principal judicial organ of the organised international community as a whole, and not
less than that”. See also Separate Opinion of Judge Lachs, Questions of
Interpretation and Application of the 1971 Montreal Convention Arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. UK), I.C.J. Reports 1992,
p. 26, in which Judge Lachs elaborated on the censorial role for the Court: “In fact
the Court is the guardian of legality for the international community as a whole, both
within and without the United Nations”.
50extent, these Treaties enlist the support of the Court for the good functioning of the Organization.”1853.18The Court can help ensure the “good functioning” of ICAO only if it is able to exercise supervisory authority in respect of procedural deficiencies occurring in proceedings before the Council in hearing and adjudicating upon a disputesubmitted to it. There can be no doubt—and Qatar has not argued otherwise—that due process is an elementary aspect of any judicial proceeding, independently of the substantive outcome, such that a decision emanating from a flawed process should not be allowed to stand. It is therefore open to the Court to review the procedure followed by the ICAO Council in reaching its Decision, just as it is open to the Court to review the substantive rectitude of the decision.3.19Procedural deficiencies were also at issue before the Court in the India v. Pakistancase. On the facts, the Court concluded that India’s alleged irregularities did not rise to the level of “prejudic[ing] in any fundamental way the requirements of a just procedure”186. That decision rested on the facts of that case. Far from holding that procedural irregularities are “irrelevant”, as Qatar submits in its Counter-Memorial187, the Court held that such irregularities, in that case, were not important enough to trigger its “supervisory authority”.3.20In contrast to the proceedings in Pakistan v. India, the ICAO Council in the present case did in fact prejudice the requirement of a just procedure in a fundamental way. The procedural defects in this case are greater in number and 185Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, para. 26 (emphasis added).186Ibid., para. 45.187QCM(B), para. 5.12.51magnitude
51
magnitude than those at issue in Pakistan v. India—so much so that the present
Decision must be recognized as a nullity:
(a) The Council heard oral submissions from the Parties, took a vote, and
issued its decision in just one afternoon. In Pakistan v. India, by
contrast, the Council held a five-day hearing to rule on India’s
preliminary objection.
(b) What is more, the three Appellants and Saudi Arabia, being treated as
a single party, were given the same length of time as Qatar (40
minutes) to defend their position—plainly insufficient time given that
each of the four States was appearing as a respondent party in its own
right and given that presenting a collective case required additional
time as compared to that needed by Qatar. In the India v. Pakistan
appeal before the Court, there was no allegation by India that the
principles of equality of arms and reasonable opportunity to be heard
had been violated.
(c) The Appellants submitted two separate and distinct Preliminary
Objections, each being of itself dispositive of the ICAO Council’s
competence to hear the dispute before it. The Appellants thereby
contested the jurisdiction of the ICAO Council to adjudicate the claims
formulated by Qatar in its Application or, in the alternative, the
admissibility of those claims. The President conflated the two
objections into one, and the ICAO Council disposed of the two
Preliminary Objections raised by the Appellants as a single plea. Thus,
unlike in Pakistan v. India, the Council fundamentally misunderstood
and could not properly have applied its collective mind to the
objections that were before it.
52(d)The Council acknowledged but effectively abdicatedits duty to rule on requests for clarification formulated by the Appellants, in violation of thejudicial function established by Article II, Section 2 of the IASTA, which cross-refers to the Chicago Convention.In the India v. Pakistan appeal before the Court, there was no allegation that the Council improperly abdicated its judicial function. (e)The Council proceeded to hold a vote immediatelyafter hearing the parties’ oral submissions. In Pakistan v. India, members of the Council were given an opportunity to put questions to the parties, and in fact made use of that opportunity.(f)Nor were there any deliberations between the members of the Council188. In Pakistanv. India, there was a recess in the Council’s meeting to allow members to deliberate189.(g)The Decision was taken by secret ballot despite a request by the Appellants and Saudi Arabia for a roll callvote with open voting. In Pakistan v. India, by contrast, India requested and obtained a roll call vote190.3.21Disregarding the Court’s prior holding, Qatar urges the Court to repudiate its supervisory function in respect of proceduralmatters, and to leave 188BEUR, Vol. II, Annex 6, ICAO Council –74th Session, Minutes of the Second Meeting, ICAO document 8956-C/1001, “Discussion: Pakistan versus India”, 27July 1971, p. 141, para. 4; BEUM,Vol. V, Annex 27, ICAO Council –74th Session, Minutes of the Fifth Meeting, ICAO document 8987-C/1004, “Discussion: Pakistan versus India”, 28 July 1971, pp. 255-256, para. 83.189BEUM,Vol. V, Annex 27, ICAO Council -74th Session, Minutes of the Fifth Meeting, ICAO document 8987-C/1004, “Discussion: Pakistan versus India”, 28July 1971, pp. 255-256, paras 83-86.190Ibid., p. 268, paras 3-6.53the
53
the ICAO Council without guidance as to how to conduct judicial proceedings
before it. In that regard, to date the ICAO Council has handled only seven
disputes judicially, five of which were ultimately resolved (or are being
resolved) consensually by the parties (Pakistan v. India being one of them), the
sixth one being the present case, and the seventh being the parallel claims of
Qatar under the Chicago Convention. There is no wealth of procedural
experience in the Council, and the ICAO Rules are both sparse and
antiquated191. As the guardian of the integrity of the international judicial
process, it falls to the Court to exercise its supervisory authority in respect of
procedural deficiencies by the ICAO Council in this case.
Section 3. Violations of due process and the ICAO Rules
3.22 Qatar argues that even if the Court were to deem it appropriate to rule
on the procedural irregularities raised by the Appellants, this ground of appeal
would have to be rejected by the Court because “there were no irregularities in
the procedure adopted by the Council”192 and any defects were in any event
“irrelevant” and “harmless”. This is contradicted by the procedure followed by
the ICAO Council, detailed in the sub-sections below. These defects,
individually and cumulatively, demonstrate ICAO’s inability to discharge its
judicial function in this case.
191 In September 2018, the ICAO Secretariat directed the ICAO Legal Committee to
consider whether the ICAO Rules needed to be revised and “realigned with the
current ICJ Rules”: see BEUM, Vol. V, Annex 54, ICAO, Working Paper of the
Secretariat submitted to the Legal Committee for consideration at its 37th Session,
ICAO document LC/37-WP/3-2, 27 July 2018. para. 3.2.1.
192 QCM(B), para. 1.20.
54A.ABSENCE OF DELIBERATIONS AS A COLLEGIAL FORMATION3.23The requirement to hold deliberations after having heard the parties is essential for judicial bodies to function in a collegial manner193. Yet, as the minutes of the ICAO Council meeting of 26 June 2018 show, the following decisions were either taken by the Council without anydeliberation or by the President of the Council acting alone:(a)The decision that the majority required to rule on the Appellants’ Preliminary Objections was that of all members of the ICAO Council (19 votes instead of 17, ie a majority of the eligible votes) was taken by the Director of Legal Affairs: there was no discussion, deliberation, or decision by members of the Council on the point—and this notwithstanding a specific motion for a decision submitted by the Appellants194.(b)The President directed the Council—without any further discussion, decision or vote by the ICAO Council—to proceed on the basis that 193O. Hoijer, La solution pacifique des litiges internationaux(1925), p. 262 in J.C.Witenberg, L’organisation judiciaire –La procédure et la sentence internationale(1937) p. 270 (“Une décision ne sera réputée exacte et sérieuse que si des observations ont été échangées entre tous les membres du tribunal, s’ils ont fait valoir les raisons qui les amènent à se décider dans tel ou tel sens, parce que c’est seulement dans ces conditions que la sentence est l’expression finale de l’opinion qui s’est dégagée de la discussion générale.”). See also BEUM,Vol.VI, Annex124,D.Bowett, J. Crawford, I.Sinclair & A. Watts,“Efficiency of Procedures and Working Methods: Report of the Study Group established by the British Institute of International and Comparative Law as a contribution to the UN Decade of International Law”, (1996) 45 The International Court of Justice: Efficiency of Procedures and Working Methods1, paras 46 and 47; H. Lauterpacht, The Development of International Law by the International Court(reprinted ed., 1982), p.65.194BEUM,Vol. V, Annex 53, ICAO Council –214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para.111 et seq.
55
“in essence for each of Qatar’s Application (A) and Application (B)
the Respondents had a preliminary objection for which they provided
two justifications”195, thereby ignoring the Appellants’ repeated
clarifications that there were in fact two distinct Preliminary
Objections which were to be assessed separately196.
(c) The ICAO Council proceeded to vote on what the President had
(incorrectly) characterized as “the Preliminary Objection” (in the
singular), once again without any discussion or deliberation197.
3.24 Qatar does not deny that the Council failed to engage in any
deliberations in ruling on each of these decisions. Its principal response is that
deliberations would have made no practical difference and are to be seen as
“harmless”198. It contends that the absence of deliberations was a consequence
of the Council’s decision to vote by secret ballot199 and that the procedure
adopted by the Council was “established in the Rules of Procedure”200. This is
incorrect: neither the ICAO Rules nor the ICAO Rules of Procedure for the
Council (Rules of Procedure for the Council). Indeed, there is no reason why
the members of the Council could not hold deliberations and then proceed to
vote by secret ballot (if the disputing parties were content with closed voting).
That is how the Council proceeded in Brazil v. US, a case that Qatar relies
upon—wrongly—to demonstrate that the Council’s practice is to adopt a
195 Ibid., para. 123.
196 Ibid., para. 121.
197 Ibid., para. 124.
198 Ibid., para. 5.51.
199 Ibid., para. 5.29.
200 Ibid., para. 5.41.
56decision without deliberation201. In fact,the Council did hold deliberations in that case, as the Council’s decision records202.3.25By contrast, no deliberations at all were held in the present case. That this was irregular was plain to all, given that the President intervened at the hearing to observe that proceeding to a vote without deliberations would be a departure from the Council’s own previous practice203.B.FAILURE TO DELIVER A REASONED DECISION3.26A fundamental requirement of due process is that judicial bodies give the necessary reasons in support of their decisions204. As Judge Lauterpacht observed (writing in his scholarly capacity):“A tribunal which fails to give full reasons for its decision invites the reproach that it lays down new law Absence of reasons—or of adequate reasons—unavoidably creates the impression of arbitrariness ... When a tribunal, by failing to base a decision on articulate grounds, makes it difficult to scrutinise the law underlying the decision, it leaves the door wide 201Ibid., para. 5.35.202BEUM,Vol. V, Annex 32, Decision of the ICAO Council on the Preliminary Objections in the Matter “Brazil v. United States”, 23 June 2017.203BEUR, Vol. II, Annex 8, Bahrain and UAE comments on draft Minutes C-MIN 214.8 Closed circulated by the Secretariat, 2 August 2018, Bahrain comments, para.108.204J. C. Witenberg, L’organisation judiciaire –La procédure et la sentence internationale(1937), p.292. See also J. L. Simpson and H. Fox, International Arbitration(1959), pp. 224 and 255 (“Failure to state reasons is nowgenerally regarded as a ground for treating the award as a nullity ... [O]nly a comprehensive exposition of the considerations upon which the award is based ... can suffice, and failure to support part of the award with reasons will vitiate the award as a whole ...”).
57
open for imputing motives extraneous to the proper
exercise of the judicial function.”205
3.27 The requirement to state reasons has been recalled by the Court in
several decisions, including notably in Arbitral Award of King of Spain206. The
ICAO Council itself seems to have been aware of its fundamental duty to
provide reasons when acting judicially. In every decision handed down since
the Court’s judgment in the India v. Pakistan appeal, the Council has provided
reasons for its decisions. Thus, in US v. 15 EU States, the President of the
Council recalled, by specific reference to the Court’s judgment in India v.
Pakistan, that–
“the Court also indicated that Article 15 of the
[ICAO] Rules [laying down the requirement to
provide reasons] applies to such a decision [regarding
the ICAO Council’s jurisdiction], including the
requirement to give reasons for the Council’s
decision in writing.”207
3.28 Qatar does not address this fundamental requirement, stating simply
that no reasons could be given in the circumstances because the Council did not
205 H. Lauterpacht, The Development of International Law by the International Court
(reprinted ed., 1982), pp. 39-40.
206 Arbitral Award made by the King of Spain on 23 December 1906, Judgment of
18 November 1960: I.C.J. Reports 1960, p. 216: in this case, the Court dealt with a
contention that the award was a nullity on ground of alleged inadequacy of reasons in
support of the conclusions reached by the arbitrator, and found that: “an examination
of the Award shows that it deals in logical order and in some detail with all relevant
considerations and that it contains ample reasoning and explanations in support of the
conclusions arrived at by the arbitrator”. See also Arbitral Award of 31 July 1989
(Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, paras 43 and 63.
207 BEUR, Vol. II, Annex 7, Settlement of Differences: United States and 15 European
States (2000), Note on Procedure: Preliminary Objections (Working Paper Presented
by the President of the Council), ICAO document C-WP/11380, 9 November 2000,
para. 6.2.
58hold deliberations208. But that is to justify one wrong by another. The absence of deliberations that could have generated reasons is in no way a justification for the absence of reasons. Thus, it remains the case that reasons should have been provided but the Council failed so to do. Instead, the Decision of the Council amounts tono more than a one-line dispositifstating that: “the Preliminary Objection of the Respondents is not accepted”209.C.THE APPELLANTS DID NOT HAVE A REASONABLE OPPORTUNITY TO BE HEARD3.29Patently insufficient time was allocated to the Appellants to present their case before the ICAO Council210. On 13 June 2018, the President of the ICAO Council informed the Parties that the ICAO Council would consider the Preliminary Objections in a half-day session211. The scheduling of only one half-day session for the hearing of their Preliminary Objectionswas met with strong objections by the Appellantsand Saudi Arabia, who indicated that it would not permit them sufficient time properly to co-ordinate and present their case212.208QCM(B), para. 5.29.209BEUM,Vol. V, Annex 52, Decision of the ICAO Council on the Preliminary Objection in the Matter: the State of Qatar and the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia and the United Arab Emirates (2017) –Application (A), 29 June 2018, p. 2.210In its Counter-Memorial, Qatar alleges that if anyone was prejudiced by the decision to schedule only one half-day session for the hearing, it was Qatar, not the fourStates(QCM(B), para. 5.22). Qatar fails, however, to explain how it was in any way prejudiced, in particular in circumstances where it declined to ask to be allowed to file a second-round written submission.211BEUM,Vol. V, Annex 50, Letter of 13 June 2018 from the President of the ICAO Council to the Appellants, attaching Working Paper in respect of Application (A), ICAO document C-WP/14778, 23 May 2018.212BEUM,Vol. V, Annex 53, ICAO Council –214th Session, Summary Minutes of the Eighth Meeting of 26June 2018, ICAO document C-MIN 214/8, 23 July 2018, para.9.593.30What
59
3.30 What is more, the four States were treated as a single party and given
the same length of time as Qatar in circumstances where:
(a) One of them, Saudi Arabia was not even a party to the case brought
under the IASTA (Application (B));
(b) Each was a party in its own right;
(c) Each was represented by its own Agent (and each was assisted by a
team of counsel and advisors); and
(d) Presenting a position on the two separate and distinct Preliminary
Objections required additional coordination.
3.31 Qatar alleges that the Appellants cannot complain about the fact that
they were treated as a single party because they “themselves acted ‘collectively’
on numerous occasions before the ICAO Council”213. T he i ssue i s n ot,
however, that the four States were acting collectively—plainly they had to, as
they were named as joint respondents—but that they were given insufficient
time to present their Preliminary Objections. As to this, Qatar argues that “due
process required . . . that each side be treated equally”214. The Appellants agree,
but emphasize that equality compels differential treatment when the parties are
not in identical positions, as was in fact the case here. The good administration
of justice requires that particular attention be given to the proper balancing of
the written pleadings allowed and the time for oral presentations “to equalize
213 QCM(B), para. 5.44.
214 Ibid., para. 5.43.
60eventual unevenness among the Parties”215, particularly where a claim is brought by one State against multiple States. The requirement that allparties be given a reasonableopportunity to present their case is also reflected in the ICAO Rules, which require “fair treatment”, not just “equal treatment”216.3.32Lastly, Qatar contends that the Parties agreed to “proceed in this way”217. That is incorrect. All the Appellantsand Saudi Arabiaagreed to was that the two sides would present their position on the Preliminary Objections consecutively, on the express condition that: “the Council would take separate decisions thereon given that Application (A) and Application (B) related to two different international air law instruments, namely, the Chicago Convention and the [IASTA], and that there were different Respondents thereto”218. Theynever agreed to the procedure adopted by the President, namely that the hearing would be held in just one afternoon, and that they would be given just 40minutes to present their case (the same length of time as Qatar).D.VIOLATION BY THE COUNCIL OF THE APPLICABLE PROCEDURAL RULES3.33The ICAO Council failed to abide by its own rulesand the Chicago Convention(which is cross-referred to by the IASTA)in the procedure it adopted.This served to demonstrate the Council’s inability to afford basic 215R. Kolb, “General Principles of Procedural Law”, in A. Zimmermann, C.Tomuschat, K. Oellers-Frahm and C. Tams (eds), The Statute of the International Court of Justice: A Commentary(2019), p. 969.216BEUM,Vol. II, Annex 6,ICAO, Rules for the Settlement of Differences, approved on 9 April 1957; amended on 10 November 1975, Art. 28(1). 217QCM(B), para. 5.48. 218BEUM, Vol. V, Annex 53, ICAO Council –214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para. 2.61predictability
61
predictability to litigants, which is an elementary duty in exercising judicial
functions219. The Council’s failures on that score are as follows:
(a) As already described, the ICAO Council failed to state any grounds or
reasons for the decision it took, although this is a requirement of
Article 15 of the ICAO Rules.
(b) The Council incorrectly required a majority of 19 votes to uphold the
Preliminary Objections, out of 25 members entitled to vote, even
though Article 52 of the Chicago Convention requires a mere
majority220.
(c) The President’s decision to put to a vote a question relating to “a
preliminary objection” (singular) was neither introduced nor seconded
by members of the Council221, as required by Rule 40 read together
with Rule 45 of the Rules of Procedure of the Council. The proposal
that was introduced and seconded at the ICAO Council session of 26
June 2018 was that “each of the Respondents’ Preliminary Objections
with respect to Application (A) and Application (B)” be put to a
vote222. However, the Council went on to vote on a “preliminary
objection” as a single plea, not the two separate Preliminary Objections
as set forth in the motion. Qatar contends in its Counter-Memorial that
the original motion (that the two separate and distinct objections be put
219 BEUM, para. 3.64 et seq.
220 See ibid., paras 3.59-3.63.
221 Ibid., para. 3.65(c).
222 BEUM, Vol. V, Annex 53, ICAO Council – 214th Session, Summary Minutes of the
Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018,
paras 106-108.
62to a vote) proposed by the Representative of Mexico and seconded by the Representative of Singapore “was never changed or modified”223.That is precisely the problem. Rules 40 and 45 provide that motions cannot be voted upon unless they are introduced by a member of the Council and seconded by another member. That, as Qatar says, “[t]he President of the Council did not think it necessary to change the wording of the question”224is no answer to this procedural violation. In fact, it could only have further confusedmatters that the President directed the Council that there was one preliminary objection while leaving in place a motion referring to two separate Preliminary Objections.Section 4.The Appellants did not waive their right to appeal3.34Qatar contends that the Appellants could and should have complained about the procedural irregularities before the Council and that, having failed to do so, they have waived their right to complain225. Qatar does not, however, identify and explain what circumstancescalled for protest on pain of waiver, nor does it demonstrate how any silence on the part of the Appellants could amount to acquiescence in the flawed process followed by the Council.3.35Acquiescence by silence or inaction arises only in rare cases where the circumstances clearly call for protest in order to preserverights, such that the absence of protest can be said, by virtue of good faith, to amountto tacit 223QCM(B),para. 5.60.224Ibid.,para. 5.61.225Ibid., paras 5.26 and 5.38.63consent
63
consent to the relinquishment of those rights226. A finding of acquiescence is as
rare as it is fact-specific227. The inference of consent must be “so probable as to
[be] almost certain”228, “manifested clearly and without any doubt”229. Qatar
does not even come close to discharging this heavy burden.
3.36 In fact, the Appellants and Saudi Arabia were deliberate and careful in
interjecting complaints at every opportunity available in the brief, irregular
procedural context of the ICAO Council proceedings. Thus:
(a) The Appellants and Saudi Arabia complained about the fact that the
hearing would be held in just one afternoon, which inevitably meant
that there would be too little time for argument, and for questions by
the ICAO Council. The matter was discussed at a meeting with the
President of the Council on 19 June 2018, where the Appellants’
request for a longer hearing was overruled230.
226 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore), Judgment, I.C.J. Reports 2008, para. 121; Fisheries (United
Kingdom v. Norway), Judgment, I.C.J. Reports 1951, pp. 138-139; and
I. MacGibbon, “The Scope of Acquiescence in International Law” (1954) 31 British
Yearbook of International Law 143, p. 143: Acquiescence “is used to describe the
inaction of a State which is faced with a situation constituting a threat to or
infringement of its rights: it is not intended to connote the forms in which a State
may signify its consent or approval in a positive fashion.”
227 Separate Opinion of Judge Fitzmaurice, Temple of Preah Vihear (Cambodia v.
Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 62; Delimitation of the
Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984,
para. 130.
228 The Grisbådarna Case (Norway v. Sweden), Award, 23 October 1909, (1910) 4
American Journal of International Law 226, p. 234; and J. Crawford, Brownlie’s
Principles of Public International Law (8th edn, 2012), p. 419.
229 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore), Judgment, I.C.J. Reports 2008, para. 122.
230 BEUM, para. 3.27.
64(b)The four States also placed on record that they had too little time at their disposal, through the speech for the Agent of the Kingdom of Saudi Arabia(appearing in respect of the case under the Chicago Convention only), who took the floor first among the four States. The summary record states: “Respondents had not been provided with sufficient or equal time to adequately present their case. Their right to be heard had thus been compromised”231.(c)The Appellants and Saudi Arabia objected to the decision that 19 votes constituted the voting majority required under Article 52 of the Chicago Convention232.(d)The Appellants and Saudi Arabia complained in respect of the President’s improper conflation of their two Preliminary Objections into one. Qatar suggests that the Appellants should have appealed this decision under Article 36 of the Rules of Procedure of the Council233.The Appellants did object, through counsel who intervened to clarify the importance of properly understanding, and ruling upon, each Preliminary Objection separately234. Wrongly, the President (acting alone, without putting the matter to the Council) concluded that “in essence . . . the Respondents had a preliminary objection for which 231BEUM,Vol. V, Annex 53, ICAO Council –214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para.9.232QCM(B),note517; see ibid., paras 113, 116 and 117 and see paras129-130. 233QCM(B), para. 5.62.234BEUM, Vol. V, Annex 53, ICAO Council –214th Session, Summary Minutes of the Eighth Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, para.121.65they
65
they provided two justifications”235. It would have obviously been
futile for the Appellants to challenge for the second time that decision.
(e) The Appellants and Saudi Arabia specifically called for open voting,
but the Council decided against them.
(f) The absence of deliberations was remarked upon by the ICAO Council
President himself as a departure from the Council’s practice, but that
failed to move the Council to deliberate.
(g) After the Decision had been handed down, when the Secretariat
circulated a draft of the Minutes for comment by the Parties, the
Appellants did not just correct inaccuracies relating to the names of
participants, as Qatar alleges in its Counter-Memorial236. Rather, they
made a number of substantive observations, including (i) reiterating
that there were two distinct Preliminary Objections237, (ii) proposing
the insertion of language to make clear that the President had observed
that failing to hold deliberations would be a departure from the
Council’s own practice238, and (iii) clarifying that certain decisions
were taken by the Secretariat (instead of the Council, as the Chicago
Convention or the ICAO Rules required)239. None of these
observations was taken up by the ICAO Council.
235 Ibid., para. 123.
236 QCM(B), para. 5.26.
237 BEUR, Vol. II, Annex 8, B ahrain a nd U AE c omments on d raft M inutes C -MIN
214.8 Closed circulated by the Secretariat, 2 August 2018, Bahrain comments
paras 14, 18, 20-21, 26, 32 and 34-37.
238 Ibid., paras 108, 111 and 115.
239 Ibid., para. 110.
663.37In sum, on no reasonable interpretation of the facts can the Appellants be said to have acquiesced in the procedure followed by the Council. Indeed, it is difficult to see what other steps were reasonably open to them.3.38In any event, there was no duty on the part of the Appellants to complain about every single defect at every step of the process. This is exemplified by the case between Cameroon v. Nigeria, in which Nigeria relied on its acts of administration coupled with the absence of protest by Cameroon to argue that Cameroon had acquiesced in Nigeria’s conduct à titre de souverainand it was no longer open to Cameroon to contest them. The Court held that even though Cameroon hadconfined its protests to a few incidents rather than reacting to the situation as it evolved, its firm protest to Nigeria’s claim to sovereignty when that was first claimed by way of diplomatic note showed “that there was no acquiescence by Cameroon in the abandonment of its title in favour of Nigeria”240.3.39The Appellants’ appropriate “reaction, within a reasonable period”, to use the well-known formulation from the Temple of Preahcase241, was to avail themselves of the right under the Chicago Convention(as cross-referred to by the IASTA) to appeal the Decision before the Court, including on the basis of the procedural defects in the proceedings before the Council. That right was in fact exercised a matter of days after the Decision was formally handed down.240Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, para. 70.241Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 23.67Section
67
Section 5. Conclusion: the Decision is a nullity ab initio
3.40 There can be no serious debate that the ICAO Council failed to
proceed in accordance with fundamental principles of judicial procedure and
due process. In its Counter-Memorial, Qatar fails to grapple with the fact that in
circumstances where the procedural irregularities are fundamental, a decision
emanating from that process must be regarded as legally non-existent.
3.41 Unlike the earlier India v. Pakistan case, the procedural irregularities
that vitiated the Decision here are such as to prejudice in a “fundamental way
the requirements of a just procedure”. The Court is respectfully invited to
exercise its supervisory function and make a declaration to the effect that the
Decision should be treated as non est.
68CHAPTERIVSECOND GROUND OF APPEAL: THE REAL ISSUE OBJECTION SHOULD BE UPHELD BY THE COURT4.1The Appellants’ second ground of appeal requests the Court to uphold the preliminary objection to the competence of the ICAO Council on the basis that the real issue in dispute between the Parties does not relate to the interpretation or application of theIASTA242. This objection is made both as a matter of jurisdiction and as a matter of admissibility243, these being separate and distinct grounds244.4.2Qatar’s Counter-Memorial significantly narrows the issues between the Parties. Qatar now accepts that there is adispute between the Parties arising out of its own conduct and the countermeasures adopted by the Appellants in response:“Qatar readily acknowledges that there is a dispute between the Parties concerning Qatar’s compliance with its counterterrorism and non-interference obligations, including under the Riyadh Agreements.”2454.3Qatar repeatedly underscores the differing, conflicting views held by the two sidesin this dispute, both as to whether Qatar was in breach of a 242BEUM, paras 1.2(b) and 5.2. 243Ibid.,para. 5.2.244See ibid.,paras 4.30-4.31; Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment, I.C.J. Reports 2003, p. 177, para. 29; see also Application of the Convention on the Prevention and Punishment of the Crime ofGenocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, pp. 456-457, para. 120 and p. 460, para. 129; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, I.C.J. Reports 1996, p. 621, para. 42.245QCM(B),para. 3.37.69number
69
number of important international obligations and as to whether the Appellants
were justified in adopting countermeasures to induce Qatar to comply with its
obligations. Qatar says that the charges that it supports terrorism and interferes
in other States’ affairs are “false”246 and “baseless”247, and that the
countermeasures adopted by the Appellants in response are “unjustifiable”248.
Similarly, it accepts that “Qatar and [] Appellants appear to have a fundamental
difference of views as to . . . what constitutes media incitement.”249 while
“den[ying] in the strongest possible terms that it has ever violated any of the
obligations [] Appellants claim”250.
4.4 Thus, the nature and content of the dispute between the Parties is made
manifest, inter alia, by Chapter 2 of Qatar’s Counter-Memorial read side-byside
with Chapter II of the Appellants’ Memorial.
4.5 Recognizing the validity of the Appellants’ objection that the ICAO
Council is not competent to determine the issue in dispute between Parties—
which manifestly relates to a host of matters other than civil aviation—Qatar all
but accepts that the Council lacks jurisdiction under Article II, Section 2 of the
IASTA, including in respect of the Appellants’ invocation of
countermeasures251. To overcome this difficulty, Qatar resorts to suggesting
that the Council may have jurisdiction by way of forum prorogatum252, or that
246 QCM(B), para. 2.1.
247 Ibid., para. 2.26.
248 Ibid., para. 2.3.
249 Ibid., para. 2.57.
250 Ibid., para. 3.38.
251 See above, note 7; QCM(B), paras 3.55, 3.67 and 3.68, cf para. 1.18.
252 QCM(B), para. 3.72, note 294.
70the Council should simply take judicial notice of the Appellants’ invocation of countermeasures without deciding the question at all253.4.6Accordingly, as noted above in Chapter II,Qatar’s Counter-Memorial puts it beyond doubt that thereexistsa dispute over Qatar’s non-compliance with its international obligations254.4.7As such, the key questions for the Court to determine are these:(a)Whether the subject-matter of the dispute encompasses not only the aviation restrictions but also the question of Qatar’s support of terrorism and its other internationally wrongful acts, which gave rise to the countermeasures imposed by the Appellants. This requires the Court to determine the subject-matter of the dispute by application of the “real issue” test255. (The jurisdictional objection.)If the answer to this question is yes, the inquiry can stop there, asthe ICAO Council lacks jurisdiction because the Parties’ dispute extends beyond the confines of Article II, Section 2 of the IASTA.253Ibid., paras 3.67-3.68.254Above, para.2.3, see also paras4.2-4.3.255BEUM, paras 5.56-5.57. See Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015, p.602, para.26; see also Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, pp.26-27, para.50 (“‘[W]hether there exists an international dispute is a matter for objective determination’ by the Court ... [which] ‘must turn on an examination of the facts.’”); Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of 6 June 2018, p.17, para.48(“it is for the Court itself to determine on an objective basis the subject-matter of the dispute between the parties, by isolating the real issue in the case and identifying the object of the claim”).
71
(b) If Qatar were correct that its Application concerns a dispute falling
prima facie within Article II, Section 2 of the IASTA, whether that
dispute is, as a matter of judicial propriety and fairness, capable of
being decided by the ICAO Council without deciding the disputed
issues relating to Qatar’s support for terrorism and its interference in
other States’ internal affairs and the countermeasures relied upon by
the Appellants. (The admissibility objection.)
4.8 This chapter is structured accordingly. Section 1 sets out the response
to paragraph 4.7(a) above, as to why the real issue in dispute does not concern
“the interpretation or application” of the IASTA, with the result that there is no
jurisdiction. Section 2 explains why the dispute is nevertheless inadmissible, in
response to the question at paragraph 4.7(b) above, as the aviation aspects
cannot on any view be severed from the broader dispute. Section 3 then
explains why, in any event, the suggestions by Qatar that the Council does not
have to decide (at least in full) the issues relating to countermeasures are to be
rejected by the Court. Finally, Section 4 concludes Chapter IV.
Section 1. The real issue in dispute does not concern “the interpretation
or application” of the IASTA
A. THE “REAL ISSUE” TEST IS AN OBJECTIVE ONE THAT REQUIRES THE COURT TO
LOOK BEYOND THE APPLICANT’S PLEADINGS
4.9 It is the long-standing practice of the Court that the test as to whether
there is a dispute between States, and as to the subject-matter of that dispute, is
an objective one256.
256 BEUM, paras 5.47-5.70.
724.10While Qatar acknowledges that the “proper characterisation of a dispute ‘is a matter for objective assessment’”, it suggests that only an applicant’s pleadings are to be taken into account in determining the real issue in dispute257. Qatar fails even to acknowledge that the Court must also look to the pleadings of the respondent, at both the written and the oral phase,as well as other surrounding materials258.Qatar maintains, as it did before the ICAO Council259, that “international courts and tribunals will determine the ‘real issue’ in dispute by reference to the stated object of the applicant State’s claims”260and that the question of the subject-matter of the dispute is to be determined according to a review of “Qatar’s pleadings”261. This is plainly not the case.4.11The Appellants’ Memorial referred extensively to numerous past decisions of the Court establishingthat in order to ascertain the subject-matter of a claim, “the Court cannot be restricted to a consideration of the terms of the Application alone nor, more generally, can it regard itself as bound by claims of the Applicant.”262For instance, in Bolivia v. Chile,the Court stipulated that it 257QCM(B), para. 3.30.258Ibid.,para. 3.36 (“The Court has made clear that to identify the subject-matter of the dispute ‘[i]n particular, it takes account of the facts that the applicant identifies as the basis for its claim.’”).259BEUM,Vol. IV, Annex 25, ICAO Response to Preliminary Objections, para.44 (“The ‘real’ issue before the Council is the breach by the Respondents of the Chicago Convention and its Annexes; this is what the Applicant has put before the Council in the Application and the Memorial and it is plain and clear what the State of Qatar is requesting from the Council.”); and ibid., para. 48.260QCM(B), para. 3.51 (emphasis added). 261Ibid., Part B, Section 1, para.3.31 et seq.(“Qatar’s pleadings before the ICAO Council indicate that the subject-matter of the dispute falls squarely within the scope of the IASTA”). 262Fisheries Jurisdiction (Spain v. Canada),Jurisdiction of the Court, Judgment I.C.J. Reports 1998, p. 448, para. 29.73must
73
must identify the subject-matter of the dispute based on “the written and oral
pleadings of the parties”263. As these decisions make clear, in order to ascertain
the “real issue” the Court must have regard not only to the Application, but also
to the written and oral pleadings of both sides, and any relevant diplomatic
correspondence, public statements, and other documents before the Court264.
4.12 That Qatar bluntly seeks to distance itself from the well-established
practice of the Court is telling. The Appellants’ submissions, and other official
documents prior to the imposition of countermeasures, in fact make clear the
real issue in dispute between the Parties265. Qatar also seeks to distract from the
myriad public statements that it has made which reveal the nature and content
263 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary
Objection, Judgment, I.C.J. Reports 2015, p. 602, para. 26.
264 See Right of Passage over Indian Territory, Merits, Judgment of 12 April 1960,
I.C.J. Reports 1960, pp. 33-34 (taking into account “the Application itself . . . the
subsequent proceedings, the Submissions of the Parties and statements made in the
course of the hearings”); Nuclear Tests (Australia v. France), Judgment, I.C.J.
Reports 1974, p. 262, para. 29; Nuclear Tests (New Zealand v. France), Judgment,
I.C.J. Reports 1974, p. 466, para. 30 (“[I]t is the Court’s duty to isolate the real issue
in the case and to identify the object of the claim. It has never been contested that the
Court is entitled to interpret the submissions of the parties, and in fact is bound to do
so; this is one of the attributes of its judicial functions.” (emphasis added)); Fisheries
Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment I.C.J. Reports
1998, pp. 449-450, paras 31 and 33 (“The Court will itself determine the real dispute
that has been submitted to it . . . It will base itself not only on the Application and
final submissions, but on diplomatic exchanges, public statements, and other
pertinent evidence.” and “[T]he Court will ascertain the dispute between Spain and
Canada, taking account of Spain’s Application, as well as the various written and oral
pleadings placed before the Court by the Parties.”); Territorial and Maritime Dispute
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 , p.
848, para. 38 (“[I]t is for the Court itself to determine the subject-matter of the
dispute before it, taking account of the submissions of the Parties” (emphasis
added)); Immunities and Criminal Proceedings (Equatorial Guinea v. France),
Preliminary Objections, Judgment of 6 June 2018, p. 17, para. 48 (“[I]t is for the
Court itself to determine on an objective basis the subject-matter of the dispute
between the parties, by isolating the real issue in the case and identifying the object
of the claim”).
265 BEUM, paras 5.71-5.83.
74of that dispute, many of which statements Qatar relied upon before the ICAO Council266. Further, Qatar has no answer to the Appellants’ observation that these statements constitute clear evidence of the real issue in the dispute267.None of these statements refers to the airspace restrictions or the obligations of the Appellants under the IASTA—while all of them make reference to the countermeasures imposed by the Appellants in response to Qatar’s prior wrongfulconduct.4.13But in any case, even on Qatar’s pleadings alone, it is a straightforward matter for the Court to assess that the real issue does not concern the IASTA.This is the inexorable conclusion from Chapter 2 of Qatar’s Counter-Memorial, in which Qatar acknowledges the existence of an antecedentlegal dispute with the Appellantsconcerning obligations not arising under the IASTA.B.THE “REAL ISSUE”IN DISPUTE DOES NOT CONCERN CIVIL AVIATION4.14While Qatar now accepts that there is a dispute between the Partiesconcerning its alleged wrongful conduct and the countermeasures adopted by the Appellants to induce its compliance with its obligations268, the Parties disagree as to whether the aviation aspects of this dispute, as identified in Qatar’s Application, may be determined as a cognisable dispute severed from the other aspects. The Appellants submit that:266See BEUM, Vol. IV, Annex 25,ICAO Response to the Preliminary Objections, see for example, Exhibits 19, 20, 22, 23, 26, 34, 40, 41, 42 and 43, setting out the descriptions of Foreign Minister Sheikh Mohammed bin Abdulrahman Al-Thani and other Qatari officials of the accusations of Qatar’s support for terrorism and the Appellants’ so-called “illegal blockade” against Qatar. 267BEUM, para. 5.81.268QCM(B), para. 3.37, see above, paras4.2-4.3.75(
75
(a) this question is to be answered by application of the “real issue” test;
and
(b) on a proper application of that test, the ICAO Council should have
found that the subject-matter of Qatar’s claim concerns the broader
dispute, namely, the dispute as to Qatar’s non-compliance with other
international law obligations that justified the Appellants adopting the
measures they did.
4.15 By contrast, Qatar says that “[t]he mere fact that the Parties’ dispute
involving other matters co-exists with the dispute about the aviation
prohibitions does not convert those other matters into the ‘real issue’ in dispute
before the Council.”269
4.16 Further, Qatar wrongly represents that “[e]ach and every time” the
Court has determined disputes that were intertwined with a broader dispute, “it
has ruled that the existence of other, related disputes did not deprive it of
jurisdiction.”270 As a matter of fact, this statement is incorrect. Many of the
cases invoked by Qatar involved variations on the political question doctrine271,
which has never been invoked by the Appellants, is not accepted by the Court,
and is wholly different from the “real issue” test which is accepted and has been
consistently applied by the Court. More importantly, in at least two cases cited
by the Appellants in their Memorial, the Court or a tribunal has determined that
269 QCM(B), para. 3.38.
270 Ibid., (emphasis added).
271 Ibid., para. 3.38, note 223.
76itwas without jurisdiction272. That was so in the Aegean Sea case before the Court and also in the Chagos Islands arbitration273.4.17Qatar unsuccessfully attempts to distinguish the Chagos Islands arbitration, characterizing it as involving a “novel test” to determine “where the relative weightof the dispute lies”274.Yet the “real issue” test has a long pedigree within the practice of the Court, as the Appellants made clear in their Memorial275. Furthermore, the case now before the Court is closely analogous to the situation before the tribunal inthe Chagos Islands arbitration, in that the aviation countermeasures are merely one, incidental aspect, of a broader disputewhich involves a bloc of countermeasures276. In this case, the positions of the Parties on the question of the Appellants’ compliance with the IASTAis simply “one aspect of [the]larger dispute”277—as Qatar in fact now acknowledges278—concerning its compliance with the Riyadh Agreements and its other international obligations, and the imposition of countermeasures by the Appellants in response. That is clear from the entirety of the record, notably 272BEUM, para. 5.60. 273See Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, pp. 35-37, paras 83, 87 and 88; In the matter of the Chagos Marine Protected Area Arbitration (Republic of Mauritius v. United Kingdom of Great Britain andNorthern Ireland), PCA Case No. 2011-03, Award, 18 March 2015, pp. 86-88, paras207-212.274QCM(B), para. 3.50.275BEUM, paras 5.48-5.60 and 5.67-5.69. 276See In the matter of the ChagosMarine Protected Area Arbitration (Republic of Mauritius v. United Kingdom of Great Britain and Northern Ireland), PCA Case No. 2011-03, Award, 18 March 2015, p. 88, para. 212.277Ibid.278QCM(B), para. 3.37.77including
77
including each of the Appellants’ official announcements of the June 2017
measures279, and Qatar’s own official descriptions280.
4.18 Accordingly, the civil aviation aspects are merely a part—and indeed
an inextricable part—of the broad dispute that both sides now recognize exists
between the Parties281. It follows that the real issue before the ICAO Council
was this broad dispute, including the question of countermeasures. And that
dispute falls outside the Council’s competence, as defined by Article II, Section
2 of the IASTA.
C. RESPONDENT’S EXPANSIVE READING OF ARTICLE II, SECTION 2 OF THE IASTA
WOULD EXTEND IT BEYOND THE LIMITS OF THE STATES PARTIES’ CONSENT
4.19 The conclusion that the real dispute falls outside of the Council’s
competence remains unaltered by Qatar’s proposed expansive interpretation of
the words “application and interpretation” in Article II, section 2 of the IASTA.
4.20 Qatar proposes:
“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 [the] 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,
279 BEUM, paras 2.4-2.7.
280 Ibid., para. 5.81; see BEUM, Vol. IV, Annex 25, ICAO Response to the Preliminary
Objections, see, for example, Exhibits 19, 20, 22, 23, 26, 34, 40, 41, 42 and 43,
setting out the descriptions of Foreign Minister Sheikh Mohammed bin Abdulrahman
Al-Thani and other Qatari officials of the accusations of Qatar’s support for terrorism
and the Appellants’ so-called “illegal blockade” against Qatar.
281 BEUM, paras 5.71-5.83.
78or the fact that the dispute in question arises in the context of a broader dispute between the parties.”2824.21Qatar’s Counter-Memorial suggests that the “full extent” wording is taken from the Court’s decision on the request for an advisory opinion in Legality of the Use by a State of Nuclear Weapons in Armed Conflict283.But there is nothing in that Opinion suggesting that the Court intended this language also to apply to the interpretation of a compromissory clause in an international treaty, and in the context of a contentious case based on sucha compromissory clause.4.22This positionwould, moreover, go against the practice of the Court, which has consistently interpreted compromissory clauses in accordance with the ordinary rules of treaty interpretation and consistently with the object and purpose of the treaty284. As Judge Higgins explained in her Separate Opinion in the Oil Platforms case, which elaborated on the Court’s reasoning, “[t]he Court has no judicial policy of being either liberal or strict in deciding the scope of 282QCM(B), para. 3.8.283Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996, pp. 78-79, para. 25; in turn citing Jurisdiction of the European Commission of the Danube, Advisory Opinion, P.C.I.J. Reports 1927, Series B, No. 14, p. 64 (“As the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive State with a view to the fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it.”).284See, for example, South West Africa Cases (Ethiopia v.South Africa;Liberia v.South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p.336 (“This contention is claimed to be based upon the natural and ordinary meaning of the words employed in the provision. But this rule of interpretation is not an absolute one. Where such a method of interpretation results in a meaning incompatible withthe spirit, purpose and context of the clause or instrument in which the words are contained, no reliance can be validly placed on it.”).
79
compromissory clauses: they are judicial decisions like any other.”285 The Court
also applies the ordinary rules of treaty interpretation in considering
declarations recognizing the jurisdiction of the Court as compulsory286.
4.23 In any case, in the Legality of the Use by a State of Nuclear Weapons
Opinion, the Court did not apply the “full extent” wording in the manner which
Qatar suggests, namely to adopt an expansive interpretation of its jurisdiction.
Rather than concerning the scope of the Court’s jurisdiction, the issue was the
scope of the power of the World Health Organization (WHO) to request an
advisory opinion. The Court held that this power had to be understood in light
285 Separate Opinion of Judge Higgins, Oil Platforms (Islamic Republic of Iran v. United
States of America), Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 857,
para. 3 5 ( “It i s c lear f rom t he j urisprudence o f t he P ermanent C ourt a nd o f the
International Court that there is no rule that requires a restrictive interpretation of
compromissory clauses. But equally, there is no evidence that the various exercises
of jurisdiction by the two Courts really indicate a jurisdictional presumption in
favour of the plaintiff. . . . The Court has no judicial policy of being either liberal or
strict in deciding the scope of compromissory clauses: they are judicial decisions like
any other.”).
286 See, for example, Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), Preliminary
Objections, Judgment, I.C.J. Reports 1952, p. 104 (“[T]he Court cannot base itself on
a purely grammatical interpretation of the text. It must seek the interpretation which
is in harmony with a natural and reasonable way of reading the text, having due
regard to the intention of the Government of Iran at the time when it accepted the
compulsory jurisdiction of the Court”); Temple of Preah Vihear (Cambodia v.
Thailand), Preliminary Objections, Judgment of 26 May 1961, I.C.J. Reports 1961,
p. 32 (“[T]he Court considers that it must interpret Thailand’s 1950 Declaration on
its own merits, and without any preconceptions of an a priori kind, in order to
determine what is its real meaning and effect if that Declaration is read as a whole
and i n t he l ight o f i ts known p urpose . . . . I n s o d oing, the C ourt must a pply i ts
normal canons of interpretations, the first of which, according to the established
jurisprudence of the Court, is that words are to be interpreted according to their
natural and ordinary meaning in the context in which they occur.”). See also Polish
Postal Service in Danzig, Advisory Opinion, P.C.I.J. Reports 1925, Series B, No. 11,
p. 39 (“In the opinion of the Court, the rules as to a strict or liberal construction of
treaty stipulations can be applied only in cases where ordinary methods of
interpretation have failed. It is a cardinal principle of interpretation that words must
be interpreted in the sense which they would normally have in their context, unless
such interpretation would lead to something unreasonable or absurd.”).
80of the limited scope of the WHO’s mandate to focus on world health, as defined by Article I of the WHO Constitution. Notwithstanding that the WHO had sought to characterize the issues in such a way as to construct a link with its mandate, by emphasizing the “health and environmental effects” of nuclear weapons, the Court held that the question did not have a “sufficient connection” to the functions of the WHO287. The notion of “to [the] full extent” was thus not adopted by the Court in reaching its decision, but merely cited in passing288.The Court determined that the WHO’s power to request advisory opinions was to be seen in the context of its limited overall mandate as a specialized agency within the United Nations system289.4.24In light of the rules of interpretation consistently applied by the Court in the exercise of its jurisdiction, it would be unreasonable, indeedabsurd,to expand the jurisdictional limits of Article II, section 2 of the IASTAso as to cover a dispute falling outside thatAgreement:this would be inconsistent with the specialized nature of the Agreementand of ICAO itself290. It would also open aback door to bring before the ICAO Council all manner of disputes 287Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996,pp. 76-77, para. 22.288Ibid.,pp. 78-79, para. 25; in turn citing Jurisdiction of the European Commission of the Danube, Advisory Opinion, P.C.I.J. Reports 1927, Series B, No. 14, p. 64 (“As the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive State with a view to the fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it.”).289SeeLegality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996,pp. 79-80, para. 26.290It is of note that this consideration did not concern the Court in the WHO Advisory Opinion, since this was not a contentious case. On the role of consent in advisory opinions, see Interpretation of Peace Treaties, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71.81outside
81
outside the aviation sector, through the simple expedient of a connection or
deemed connection to aviation—however remote, peripheral or artificial.
D. UPHOLDING THE “REAL ISSUE” OBJECTION WOULD POSE NO RISK TO THE
INTERNATIONAL LEGAL ORDER
4.25 Finally, Qatar contends that the Appellants’ argument that the subjectmatter
of the dispute does not fall within Article II, Section 2 is somehow to be
seen as posing “dangers to the international legal order”291. Qatar says that this
would permit the Appellants to “control [the] competence” of the Council by
“casting a ‘defence on the merits . . . in a particular form’ (ie
countermeasures)”292, a result that (Qatar says) the Court rejected in India v.
Pakistan293. According to Qatar, any State could simply invoke
countermeasures to avoid obligations under a treaty294:
“The crux of those arguments is that a body
empowered to adjudicate a dispute concerning the
‘interpretation and application’ of a specific treaty is
deprived of that power whenever the respondent State
asserts a defence based on lawful ‘non-reciprocal’
countermeasures. . . . Respondent States would be
able to avoid compulsory dispute settlement brought
pursuant to a treaty compromissory clause whenever
they so choose merely by asserting a ‘lawful’
countermeasures defence. . . . T he l aw o f
countermeasures would thus become a trump card
that would undermine the entire system of
international dispute settlement.”295
291 QCM(B), para. 3.4.
292 Ibid., para. 3.23.
293 Ibid., para. 3.24.
294 Ibid., para. 3.23 et seq.
295 Ibid., para. 3.4.
824.26However, Qatar’s argument rests on a critical and unstated assumption that the Parties’ dispute is to be characterized solely by reference to the narrow manner in which Qatar has now sought to formulate its claim. Given that the real issue in dispute between the Parties does notconcern matters cognisable under the IASTA296, Qatar’s reasoning breaks down. It is by application of this objective test that the dispute is to be regarded as falling outside the IASTA, not because the Appellants rely on countermeasures.4.27By upholding the Appellants’ objection, the Court will be upholding the limited jurisdictional scope of Article II, Section 2, consistent with the consent of the States Parties to the jurisdiction of the ICAO Council. Indeed, similar concerns about the threat to the international legal order arise from Qatar’s unsupported argument that the broadest possible interpretation of Article II, Section 2should be adopted297. That approach would extend the jurisdiction of the ICAO Council over matters lying farbeyond its specialized, limited competence, in respect of which matters the States Parties did not consent to ICAO exercising a judicial function. The Appellants recall that the India v. Pakistancase did not concern a question of countermeasures298. While 296By way of contrast, the situation may be different where the defence or jurisdiction relied upon arises under the terms of the same treaty containing the compromissory clause which forms the basis of jurisdiction for the dispute, see, e.g. Alleged Violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights (Islamic Republic of Iran v. United States of America), Request for the Indication of Provisional Measures,Order, 3 October 2018,p. 12, para. 42 (“The Court observes that Article XX, paragraph 1, defines a limited number of instances in which, notwithstanding the provisions of the Treaty, the Parties may apply certain measures. Whether and to what extent those exceptions have lawfully been relied on by the Respondent in the present case is a matter which is subject to judicial examination and, hence, forms an integral part of the material scope of the Court’s jurisdiction as to the ‘interpretation or application’ of the Treatyunder Article XXI, paragraph 2.” (emphasis added)).297QCM(B),para. 3.8. 298BEUM, paras 5.86-5.91.83Qatar
83
Qatar suggests that the Appellants’ objection would allow respondent States to
avoid compulsory dispute settlement pursuant to a treaty compromissory clause
merely by asserting countermeasures, this would only be a concern if
respondent States abusively invoked countermeasures in bad faith, in
circumstances lacking any foundation in fact. Qatar admits that there is a
dispute between the Parties concerning the legality of its other conduct299.
While Qatar disagrees on whether, in the circumstances of the present case,
countermeasures are available in law and in fact300, it rightly does not suggest
that they were invoked by the Appellants in bad faith301.
Section 2. The adjudication of Qatar’s Claims by the ICAO Council
would be inconsistent with judicial propriety because the civil aviation
aspects cannot be severed from the broader dispute
4.28 In addition, the Appellants have stressed that it would be
“incompatible with the fundamental principle of the consensual basis of
international jurisdiction, and therefore incompatible with judicial propriety and
the ICAO Council’s judicial function under Article II, section 2 of the IASTA
for the ICAO Council to exercise jurisdiction over Qatar’s claims.”302 Again,
the simple point is that the Council cannot properly determine the civil aviation
issues of the dispute without also adjudicating the broader aspects of the dispute
which fall outside of its jurisdiction, including the Appellants’ reliance on
countermeasures303.
299 See ibid., para. 3.37.
300 BEUM, Vol. IV, Annex 25, ICAO Response to the Preliminary Objections, para. 77.
301 See QCM(B), paras 3.18-3.69.
302 BEUM, para. 5.2(b).
303 Ibid., paras 5.122-5.127.
844.29Qatar has raised no dispute as to the basic contours ofobjections toadmissibility; further, Qatar no longer makes any argument that the ICAO Council may not properly rule on questions of admissibility as a preliminary matter304.Even so, whileQatar does not dispute the existence of the doctrine of judicial propriety as a ground for inadmissibility, it barely engages with the Appellants’ arguments, essentiallyrepeating its arguments on jurisdiction305.4.30On the one hand, Qatar argues that the issue rests only on jurisdictional grounds, such that if the Court dismisses the Appellants’ “real issue” objection,itneed go no further; that countermeasures do not rule out a breachin limine;and that the Appellants would in any event have to demonstrate compliance with the procedural preconditionsof countermeasures306.Notwithstanding these arguments, it is clear, however, that jurisdiction and admissibility are different notions307; indeed, issues of admissibility go precisely to whether the Court should exercise a jurisdiction which it otherwise possesses308.4.31On the other hand, Qatar simply points out that the current situation is not analogous to what it asserts (without any support) isa “closed set” of 304QCM(B), para. 3.71,note290.305Ibid., paras 3.72and 3.76.306Ibid., paras 3.70-3.72.307See BEUM, paras 4.11-4.31; see also Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment, I.C.J. Reports 2003, p. 177, para. 29 (“Objections to admissibility normally take the form of an assertion that, even if the Court has jurisdiction and the facts stated by the applicant State are assumed to be correct, nonetheless there are reasons why the Court should not proceed to an examination of the merits.”); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, pp.456-457, para.120.308Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, pp.456-457, para.120; see also BEUM, Chapter IV, particularly paras 4.1-4.2.85exceptional
85
exceptional circumstances of inadmissibility309. But such an approach ignores
the fact that considerations of judicial propriety are of necessity flexible: they
must be adaptable to new factual situations, since their ultimate goal is to
safeguard the integrity of the Court’s judicial functions310.
4.32 Since Qatar does not properly engage with this aspect of the
Appellants’ case, the Appellants rest upon the arguments made in their
Memorial in this regard311.
Section 3. In any event, the Court should reject Qatar’s suggestions as
to how the ICAO Council might accept jurisdiction without deciding
countermeasures
4.33 The disagreement submitted by Qatar to the ICAO Council would
necessarily require the Council to adjudicate upon matters falling outside its
jurisdiction, whether or not the Court accepts that the real issue in dispute
concerns matters falling outside of the IASTA. Indeed, as Qatar all but
concedes, the ICAO Council does not have jurisdiction over the question
whether the Appellants’ countermeasures were justified by Qatar’s prior
conduct312. The logical conclusion of Qatar’s position is that the Council must
decline to exercise jurisdiction, whether as a matter of jurisdiction or
309 QCM(B), para. 3.73.
310 See Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1963, p. 29 (“There are inherent limitations on the exercise
of the judicial function which the Court, as a court of justice, can never ignore. There
may thus be an incompatibility between the desires of an applicant, or, indeed, of
both parties to a case, on the one hand, and on the other hand the duty of the Court to
maintain its judicial character. The Court itself, and not the parties, must be the
guardian of the Court’s judicial integrity.”); Dissenting Opinion of Judge Donoghue,
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary
Objections, Judgment of 6 June 2018, paras 7 and 19.
311 BEUM, paras 5.96-5.127.
312 See above, note 7; QCM(B), paras 3.55, 3.67 and 3.68, cf para. 1.18.
86admissibility. To avoid this result, Qatar makes a series of suggestions, none of which appears straightforward or proper, as to why the ICAO Council would nevertheless have jurisdictionto adjudicate on the merits of Qatar’s claims313.Each of Qatar’s three suggestions would require the Councilto determine, in whole or in part, the Appellants’ claim of countermeasures on the merits, which is improper at the jurisdictional phase of the proceedings. Quite apart from this, the arguments also lack any merit and are highly speculative. Thus, they merely serve to highlight the force of the Appellants’ objection that the question of countermeasures falls outside the jurisdiction of the Council.A.QATAR WRONGLY INVITES THE COURT TO FIND THAT COUNTERMEASURES ARE EXCLUDED BY THE IASTA4.34Qatar first makes lex specialisarguments, which are artefacts of recent vintage, absent from Qatar’s pleadings before the ICAO Council314. Qatar suggests that “[t]he Council could very well find that the provisions of the Chicago Convention, which govern the exercise of the rights under the IASTA”constitute “‘derogation clauses or other treaty provisions (e.g. those prohibiting reservations)’” and that these “may entail the exclusionof countermeasures”315.4.35However, this argument fails to engage with the terms of the Riyadh Agreements, which clearly establish a broad and free-standing right of 313QCM(B), paras 3.29-3.69.314Ibid., para.3.58et seq.; seeBEUM, Vol. IV, Annex 25, ICAO Response to Preliminary Objections, paras 75-77 and 82. 315QCM(B), para. 3.59, quoting from BEUM,Vol.II, Annex13, International Law Commission (ILC), Articles on Responsibility of States for Internationally Wrongful Acts (2001), in Report of the International Law Commission on the Work of its Fifty-third Session(2001), doc. A/56/10, Chapter V, reproduced in ILC Yearbook2001, Vol.II(2) (ARSIWA), Art. 50, Comment 10, p. 133.87Contracting
87
Contracting States to adopt “appropriate action”—without restriction or
qualification—in case of another Contracting State’s non-compliance316. Thus
the Implementing Mechanism expressly provides:
“The leaders shall take the appropriate action towards
what the Ministers of Foreign Affairs raise to them
regarding any country that has not complied with the
signed agreement by the GCC Countries.
. . .
If any country of the GCC Countries failed to comply
with this mechanism, the other GCC Countries shall
have the right to take an[y] appropriate action to
protect their security and stability.”317
4.36 Naturally, the relationship between the Riyadh Agreements, the
Chicago Convention, the IASTA, and the customary international law right of
countermeasures is a matter for argument only at the merits stage, in the event
that the Court were to uphold the ICAO Council’s jurisdiction. But the simple
point is that the free-standing right to adopt “appropriate action” within the
Riyadh Agreements is not subject to any preconditions, other than the
requirement of a breach by Qatar, and is sufficiently broad to provide a
justification for action that might otherwise be deemed inconsistent with the
IASTA.
4.37 Furthermore, in its South West Africa Advisory Opinion, the Court
recognized the existence of–
“the general principle of law that a right of
termination on account of breach must be presumed
316 BEUM, Vol. II, Annex 20, Implementing Mechanism, 17 April 2014.
317 Ibid.
88to exist in respect of all treaties, except as regards provisions relating to the protection of the human person contained in treaties of a humanitarian character . . . The silence of a treaty as to the existence of such a right cannot be interpreted as implying the exclusion of a right which has its source outside of the treaty, in general international law, and is dependent on the occurrence of circumstances which are not normally envisaged when a treaty is concluded.”3184.38The same fundamental principle applies here. Thatthe IASTAdoes not expressly reiterate the existence of the customary international law entitlement to takecountermeasures maynot be read as implying the exclusion of that entitlement.4.39Further, in the terms of the Commentaryto the ILC Articleson State Responsibility, “derogation clauses or other treaty provisions” such as Qatar envisages may exclude a countermeasures defence only where theyindicate that therelevant obligationsare “intransgressible”319. The originof thatterm underscoresthe exceptional nature of “intransgressible” obligations320. Qatar has provided no argument as to why obligations regarding civil aviation should be given a status akin to jus cogens.318Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 47, para. 96. 319BEUM,Vol.II, Annex13, ARSIWA, Art. 50, Comment 10, p. 133; citing Legality of the Threat or Use of Nuclear Weapons,Advisory Opinion, I.C.J. Reports 1996,p.257, para. 79.320The term “intransgressible” was used by the Court in the Legality of the Threat or Use of Nuclear Weapons,Advisory Opinion, I.C.J. Reports 1996, p. 257, para. 79. It is properly to be seen as a reference to jus cogens norms, which are, by definition, non-derogable. See Vienna Convention on the Law of Treaties, signed at Vienna on 23 May 1969, 1155 United Nations, Treaty Series (UNTS)331, Art. 53 and Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012,p. 141, para.95.894.40Qatar
89
4.40 Qatar says that the Chicago Convention provisions “govern the
exercise of the rights under the IASTA” by the effect of Article I, Section 2 of
the IASTA321. Article I, Section 2 provides that “the exercise of the foregoing
privileges shall be in accordance with the provisions” of the Chicago
Convention322. Qatar wrongly claims that “the Convention contains only one
derogation clause, Article 89, entitled “War”323. Qatar asserts that this clause
operates as a specific “derogation” from the ordinary entitlement to resort to
countermeasures under the IASTA324. Qatar implies that the supposed
derogation amounts to an advance exclusion of countermeasures. No authority
is supplied for this argument325; and none can be.
4.41 As noted, the institution of countermeasures is so fundamental to the
international system, and accordingly preclusion of it by advance agreement so
far-reaching in its effects, that specific, express agreement would be required326.
Indeed, State practice contains multiple examples of States suspending
321 QCM(B), paras 3.59-3.60.
322 BEUM, Vol II, Annex 2, International Air Services Transit Agreement, signed at
Chicago on 7 December 1944, Art. I, Section 2 (“The exercise of the foregoing
privileges shall be in accordance with the provisions of the Interim Agreement on
International Civil Aviation and, when it comes into force, with the provisions of the
Convention on International Civil Aviation, both drawn up at Chicago on December
7, 1944.”).
323 In point of fact, Article 89 is entitled “War and Emergency Conditions”, although it
comes under a general Chapter heading of “War”.
324 QCM(B), para. 3.59.
325 See ibid.
326 See BEUM, Vol. II, Annex 13, ARSIWA, Art. 50, Comment 10, p. 133 (“States
may agree between themselves on other rules of international law which may not be
the subject of countermeasures, whether or not they are regarded as peremptory
norms under general international law.”).
90important international treaties under cover of countermeasures327,even where those treaties already provide exceptionsfor different circumstances328.4.42In addition, Article 89 serves a different purpose than the institution of countermeasures. It is an essentially defensive mechanism, granting contracting States “freedom of action” unfettered by the Chicago Conventionor the IASTA in exceptional periods of war or national emergency329. By contrast, countermeasures serve the broader purpose of seeking to inducea law-breaking State to cease its unlawful conduct and adopt a lawful conduct330. Qatar’s suggestion that Article 89 of the Chicago Convention supplants and excludes a 327SeeAir Service Agreement of 27 March 1946 between the United States of America and France, Award, 9 December 1978, RIAA, Vol.XVIII, p.417.328See,for example, the aviation countermeasures imposed by certain western countries against Poland and the Soviet Union in 1981 and by certain European Community member States against the Federal Republic of Yugoslavia in 1998, discussed below, para. 4.45. An additional historic example can be found in Germany’s withdrawal in 1936 from the Treaty of Mutual Guarantee between Germany, Belgium, France, Great Britain and Italy, signedat Locarno on 16 October 1925, 54 UNTS1926 (Locarno Treaty), on the basis that France had breached it by signing the Treaty of Mutual Assistance between France and the Union of Soviet Socialist Republics, signed at Paris on 2 May 1935 (167 LNTS395). For a discussion, see O. Y. Elagab, The Legality of Non-Forcible Counter-Measures in International Law(1988), pp.149-150. The principal obligation in the Locarno Treaty was that of Article 2 “Germany and Belgium, and also Germany and France, mutually undertake that they will in no case attack or invade each other or resort to war against each other”, which was subject to certain exceptions set out in paragraphs (1)-(3) of the same article in case of self-defence, or actions taken under cover of the Covenant or the League of Nations. 329Qatar also suggests at QCM(B),para. 3.60that none of the Appellant States has so far formally notified the ICAO Council of a declaration of national emergency under Article 89 of the Chicago Convention, and that none of the situations under Article 89, namely, “war” or a declaration of “national emergency”, “exists here”. Plainly, these are not matters for the Court to consider in this appeal, as they pertain only to the merits. Nevertheless, it remains open to each of the Appellant States formally to issue Article 89 notifications. As the Appellants made clear in their 5June 2017 statements, Qatar’s transgressions clearly affect the security and stability of the declarant States, as well as the region, and as such, constitute the core interests protectedby Article 89.330See BEUM,Vol.II, Annex13, ARSIWA, Art. 49, Comment 1, p. 130.91State’s
91
State’s ability to resort to countermeasures under the IASTA conflates the
separate functions of these norms—which may be complementary in a number
of situations but nevertheless remain distinct from an analytical and a policy
perspective.
4.43 Qatar’s convoluted argument that the provisions of the Chicago
Convention could exclude countermeasures from the scope of the IASTA fails
because it ignores the language of Article I, Section 2 of IASTA, which
concerns only “the exercise of the foregoing privileges” 331, and not the
application of other customary international law rights such as
countermeasures. But even if Qatar’s interpretation were possible, it is incorrect
to suggest that Article 89 of the Chicago Convention is the only provision in the
Chicago Convention or the IASTA that in some manner derogates from,
provides an exception to, or otherwise qualifies the scope of the principal
substantive obligations. The Chicago Convention contains a number of
provisions, including both Article 89 and Article 9(b)332, which illustrate that
the obligations therein (and on Qatar’s argument, in the IASTA) are not
“intransgressible” and do not imply that they constitute an exhaustive list of the
circumstances in which States may derogate from their obligations.
4.44 Nor are the substantive obligations of the Chicago Convention
expressed in absolute terms. Rather, many of the provisions afford States
331 BEUM, Vol II, Annex 2, International Air Services Transit Agreement, signed at
Chicago on 7 December 1944, Art. I, Section 5.
332 BEUM, Vol II, Annex 1, Convention on International Civil Aviation, signed at
Chicago on 7 December 1944, Art. 9(b) (“Each contracting State reserves also the
right, in exceptional circumstances or during a period of emergency, or in the interest
of public safety, and with immediate effect, temporarily to restrict or prohibit flying
over the whole or any part of its territory, on condition that such restriction or
prohibition shall be applicable without distinction of nationality to aircraft of all
other States.”).
92considerable discretion in their application. For example, Article 5 provides a broad discretion for States to regulate non-scheduled flights for traffic purposes according to “such regulations, conditions, or limitations asit may consider desirable”333; while the obligation in Article 28 to provide air navigation facilities and the like applies only “so far as [each Contracting State] may find practicable”334. States may also choose to contract out of Article 6, which provides that “no scheduled international air service may be operated over or into the territory of a contracting State”335.Similarly, Article I, Section 5 of the IASTA provides that States may unilaterally revoke certification to the airline of another State where “it is not satisfied” that certain conditions have been met336.4.45Qatar represents that “no other State before [the] Appellants has ever sought to justify non-performance of obligations under the Chicago Conventionor the IASTA on grounds of countermeasures”337. This assertion fails to acknowledge that aviation-related countermeasures are well-known in State practice. Examples include the following:333BEUM, Vol II, Annex 1,Convention on International Civil Aviation, signed at Chicagoon7 December 1944, Art.5(“ . . . Such aircraft, if engaged in the carriage of passengers, cargo, or mail for remuneration or hire on other than scheduled international air services, shall also, subject to the provisions of Article 7, have the privilege of taking on or discharging passengers, cargo, or mail, subject to the right of any State where such embarkation or discharge takes place to impose such regulations, conditions or limitations as it may consider desirable.”).334BEUM, Vol II, Annex 1,Conventionon International Civil Aviation, signed at Chicagoon7 December 1944, Art.28. 335BEUM, Vol II, Annex 1,Conventionon International Civil Aviation, signed at Chicagoon7 December 1944, Art.6.336BEUM, Vol II, Annex 2,International Air Services Transit Agreement, signed at Chicago on 7 December 1944, Art. I, Section 5.337QCM(B), para. 3.60.93(
93
(a) The arbitral tribunal in the Air Service Agreement of 27 March 1946
between the United States of America and France determined that the
United States was entitled to take countermeasures involving the
suspension of performance under a bilateral aviation agreement in
response to France’s prior wrongful acts under the same treaty338.
France did not suggest in that case that civil aviation obligations are
intransgressible norms that may not be subject to countermeasures.
Nor did the Tribunal so hold; in fact, it expressly concluded that
countermeasures were, in principle, permissible.
(b) In December 1981, in response to the imposition of martial law in
Poland, the United States, United Kingdom, France, the Netherlands,
Switzerland and Austria imposed various measures against Poland and
the Soviet Union, including the immediate suspension of the landing
rights of Aeroflot in the US and LOT in the United States, United
Kingdom, France, the Netherlands, Switzerland and Austria339.
338 Air Service Agreement of 27 March 1946 between the United States of America and
France, Award, 9 December 1978, RIAA, Vol. XVIII, p. 446, para. 99. See also
BEUM, Vol. II, Annex 13, ARSIWA, Art. 22, Comment 2, p. 75, Art. 51, Comment
3, p. 134.
339 See BEUM, Vol. II, Annex 13, ARSIWA, Art. 54, Comment 3, p. 138; BEUR, Vol.
II, Annex 51, C. Rousseau, “Mesures prises par les Puissances occidentales à l’égard
de la Pologne et de l’U.R.S.S. à la suite de l’établissement de l’état de guerre en
Pologne le 13 décembre 1981”, (1982) 86 Revue Générale de Droit International
Public 603, pp. 603-610; BEUR, Vol. II, Annex 3, United States-Polish People’s
Republic Air Transport Agreement, signed at Warsaw on 19 July 1972, (1972) 23
United States Treaties 4269; BEUR, Vol. II, Annex 1, United States-Union of
Soviet Socialist Republics Civil Air Transport Agreement, signed at Washington on
4 November 1966, (1967) 6 International Legal Materials 82; BEUR, Vol. II,
Annex 2, Amendment to United States-Union of Soviet Socialist Republics Civil Air
Transport Agreement, signed at Moscow on 6 May 1968, (1968) 7 International
Legal Materials 571; see also W. M. Reisman and J. E. Baker, Regulating Covert
Action (1992), p. 112; BEUR, Vol. II, Annex 52, M. E. Malamut, “Aviation:
94(c)In 1986, the United States Congress passed the Comprehensive Anti-Apartheid Act, which suspended the landing rights of South African Airlineson United States territory340. The stated purpose of the measure was to induce South Africa “to adopt reforms leading to the establishment of a non-racial democracy”341.(d)In 1998, in response to the humanitarian situation in Kosovo, the European Union banned all Yugoslav carriers from flying between the Union and the Federal Republic of Yugoslavia, for any purpose342.(e)In May 2016, the European Union prohibited any aircraft operated by North Korean carriers or originating from North Korea from landing Suspension of Landing Rights of Polish Airlines in the United States”, (1983) 24 Harvard International LawJournal190.340See BEUM,Vol.II, Annex13, ARSIWA, Art.54, Comment 3, p. 138; BEUR, Vol. II, Annex4, Comprehensive Anti-Apartheid Act of 1986, (1987) 26 International Legal Materials77, § 306; United States-South Africa Air Services Agreement, 1947, 66 UNTS233, 239 (1950), Annex, Sections I and III. 341BEUR, Vol. II, Annex5, Department of Transportation Termination of Air Carrier Operations between the United States and South Africa, 31 October 1986, (1987) 26 InternationalLegal Materials104, p. 105. See also BEUM,Vol.II, Annex13,ARSIWA, Art.54, Comment 3, p. 138. It may also be emphasized that a suspension of landing rights was not one of the measures that States Members of the United Nations were urged to adopt pursuant to UNSC resolutions on South Africa, such as United Nations Security Council Resolution 569 (1985) of 26 July 1985: BEUR, Vol. II, Annex9, United Nations, Resolution 569 (1985) adopted by the Security Council at its 2602nd meetingon 26 July 1985.342BEUM,Vol.II, Annex13, ARSIWA, Art. 54, Comment 3, p. 138; BEUR, Vol. II, Annex10, Common Position of 29 June 1998 defined by the Council on the basis of Article J.2 of the Treaty on European Union concerning a ban on flights by Yugoslav carriers between the Federal Republic of Yugoslavia and the European Community (98/426/CFSP) [1998]OJ L190/3, as implemented by BEUR, Vol. II, Annex11,Council Regulation (EC) No 1901/98 of 7 September 1998 concerning a ban on flights of Yugoslav carriers between the Federal Republic of Yugoslavia and the European Community [1998] OJ L248/1.95in,
95
in, taking off from, or overflying European Union territory343. These
measures were introduced in response to North Korea’s nuclear and
ballistic missile programme and are separate from the sanctions
required by the United Nations Security Council344.
4.46 Qatar also argues that the Tehran Hostages case is apposite, claiming
that “[i]n that case, Iran, just like [] Appellants here, claimed that its conduct
was justified by prior unlawful activities of the United States . . . [but] [t]he
Court did not consider Iran’s defence to fall outside its jurisdiction . . . [n]or did
the Court consider that such a defence deprived it of its jurisdiction to entertain
the United States’ claims.”345
4.47 In the Hostages case, it is notable that Iran did not appear, and, as the
Court noted, neither did Iran seek to justify its detention of the diplomatic and
consular staff as countermeasures346. As such, the Court was not required to
343 See BEUR, Vol. II, Annex 13, European Union, Council Decision (CFSP) 2016/849
of 27 May 2016 concerning restrictive measures against the Democratic People’s
Republic of Korea and repealing Decision 2013/183/CFSP [2016] OJ L141/79,
Article 17; BEUR, Vol. II, Annex 14, European Union, Council Regulation (EU)
2017/1509 of 30 August 2017 concerning restrictive measures against the
Democratic People’s Republic of Korea and repealing Regulation (EC) No 329/2007,
[2017] OJ L224/1, Article 41.
344 Cf. BEUR, Vol. II, Annex 12, United Nations, Resolution 1718 (2006) adopted by
the Security Council at its 5551st Meeting on 14 October 2006.
345 QCM(B), para. 3.65.
346 United States Diplomatic and Consular Staff in Tehran (United States of America v.
Iran), Judgment, I.C.J. Reports 1980, pp. 19-20, para. 36 (“[I]f the Iranian
Government considered the alleged activities of the United States in Iran legally to
have a close connection with the subject-matter of the United States’ Application, it
was open to that Government to present its own arguments regarding those activities
to the Court . . . by way of defence in a Counter-Memorial . . . .”) and p. 38, para. 82
(“[I]f the Iranian Government considered the alleged activities of the United States in
Iran legally to have a close connection with the subject-matter of the Application it
was o pen t o I ran t o p resent i ts own c ase r egarding t hose a ctivities t o t he C ourt b y
way of defence to the United States’ claims. The Iranian Government, however, did
not appear before Court.”).
96determine whether the dispute, including Iran’s defence, entailed the “interpretation or application of” the Vienna Conventions on Diplomatic Relations and on Consular Relations347. In any event, the Court held that the special regime of diplomatic and consular law excluded the possibility of recourse to countermeasures. It noted that the regime of diplomatic and consular law expressly foresees specific mechanisms in the case of breach (such as the termination of relations; recalling of ambassadors; or declaration of diplomats as persona non grata348), such that it can properly be seen as a self-contained regime excluding the possibility of recourse to countermeasures349.Moreover, the relevant obligation of inviolability is a principle of fundamental importance underlying the diplomatic and consular regime, which States must respect even in case of war or a cessation of diplomatic relations350. By contrast, here, as already noted, it cannot be seriously suggested that countermeasuresinvolving the suspension of performance of obligationsunder the Chicago Conventionare impermissible.347See Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, signed at Vienna on 18April 1961, 500 UNTS 241, Art. 1, p. 242; Optional Protocol to the Vienna Convention on Consular Relations concerningthe Compulsory Settlement of Disputes, signed at Vienna on 24April 1963, 596 UNTS 487, Art. 1, p. 488. 348United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, pp. 39-40, para. 85. 349Ibid., pp. 38-40, paras 83-86 (“[D]iplomatic law itself provides the necessary means of defence against, and sanction for, illicit activities by members of diplomatic or consular missions” ...The rules of diplomatic law, in short, constitute a self-contained régime . . .”).350Ibid., p. 40, para. 86 (“[T]he principle of the inviolability of the persons of diplomatic agents and the premises of diplomatic missions is one of the very foundations of this long-established régime ...[e]ven in the case of armed conflict ...those provisions ...must be respected by the receiving State.”). See also BEUM,Vol.II, Annex13,ARSIWA, Art. 50(2)(b).
97
B. THE COURT SHOULD REJECT QATAR’S SUGGESTION THAT THE ICAO COUNCIL
MAY DETERMINE THE APPELLANTS’ CONDUCT WITHOUT DETERMINING THEIR
COUNTERMEASURES
4.48 Qatar’s second argument is to suggest that even if countermeasures
may be invoked, the real issue remains one arising under the Chicago
Convention. The argument is that countermeasures “are only a temporary bar to
State responsibility, not a defence in limine”, such that “[t]he Council could still
find the aviation prohibitions wrongful under the IASTA, and simply take
judicial notice of [] Appellants’ countermeasures defence.”351 Qatar makes this
argument notwithstanding its own acknowledgement of the “preclusive effect of
the countermeasures defence”352. Qatar accordingly invites the Court to hold
that the Council may determine that the Appellants’ conduct is “wrongful”
under the Chicago Convention without determining countermeasures as a
circumstance precluding wrongfulness353.
4.49 The passage of the Commentary to the ILC Articles on State
Responsibility cited by Qatar offers no support for this outcome354. The
Commentary rightly observes that “circumstances precluding wrongfulness . . .
do not annul or terminate the obligation; rather they provide a justification or
excuse for non-performance while the circumstance in question subsists.”355
That statement merely reflects that the obligations are not terminated by the
invocation of countermeasures but remain extant. That is of no moment here.
351 QCM(B), para. 3.67.
352 Ibid.
353 Ibid., paras 3.56-3.57; citing Gabčikovo-Nagymaros Project (Hungary/Slovakia),
Judgment, I.C.J. Reports 1997, p. 55, para. 82.
354 See QCM(B), para. 3.67.
355 BEUM, Vol. II, Annex 13, ARSIWA, Chapter V, Comment 2, p. 71.
984.50Furthermore, Qatar’s selective quoting of the Gabčikovo-Nagymaros Projectdecision ignores the fact that, having determined that the putting into operation of “Variant C”amounted to an internationally wrongful act by Slovakia, the Court considered that “it now has to determinewhether such wrongfulness may be precluded” on grounds of countermeasures356. Qatar’s Counter-Memorial omitted the words in italics, which make clear that the Court considered it mandatoryto determine the justification invoked by Slovakia before it could reach its overall conclusion as to the legality of Slovakia’s conduct357.4.51Accordingly, the Court should not acceptQatar’s suggestion that, in this case, the ICAO Council could “still find the aviation prohibitions wrongful under the IASTA”, by merely taking judicial notice of the Appellants’ countermeasures justification358. This suggestion ignores the fact that countermeasures, by definition, preclude wrongfulness. As such, it is impossible for one to characterize the aviation restrictions as “wrongful”, while leaving undetermined a justification that would—“in limine”, to use Qatar’s phrase359—exclude such a characterization.4.52The unprecedented outcome proposed by Qatar would result in an incoherent, inchoate decision, which,whilst acknowledging the breadth and nature of the real issue in dispute,would result in anon liquet—which is, of 356Gabčikovo-Nagymaros Project (Hungary/Slovakia),Judgment, I.C.J. Reports 1997,p.55, para. 82 (emphasis added).357Ibid., p. 57, para. 88 (“In the light of the conclusions reached above, the Court, in reply to the question put to it ...finds that ...Czechoslovakia was not entitled to put that Variant into operation from October 1992.”).358QCM(B), para. 3.67.359Ibid.
99
course, impermissible in contentious disputes360. As explained in the
Appellants’ Memorial361, such a decision would be prejudicial to the interests
of the Appellants since, on Qatar’s proposed approach, the alleged
“wrongfulness” of their conduct would be determined by the Council without
regard to the fundamental justification for that conduct. In any case, this would
not remove the prejudice to the Appellants of receiving a determination of
wrongfulness in the absence of a determination of its justification.
C. THE COURT SHOULD REJECT QATAR’S SUGGESTION THAT THE ICAO COUNCIL
COULD DETERMINE ONLY THE PROCEDURAL ASPECTS OF COUNTERMEASURES
4.53 Qatar’s third suggestion as to how the ICAO Council could deal with
the Appellants’ countermeasures is that it should determine only their
procedural aspects, but not their substantive justification, namely Qatar’s
wrongful conduct362. This would be convenient for Qatar, of course: the
substance of its misconduct would remain unchecked. In any event, however,
Qatar fails to see this argument through to its logical conclusion by explaining
what the Council would then do in the event it would hold that the Appellants
had complied with the procedural aspects.
4.54 Qatar’s suggestion is as novel as it is unwelcome. For the ICAO
Council to consider only the procedural aspects of countermeasures, without
also considering Qatar’s transgressions that gave rise to them in the first place,
would be incoherent, and result in an inchoate and partial decision. It would
360 Desgranges v. International Labour Organization (1957) 20 International Law
Reports 523, p. 530 ( “One o f the f undamental tenets o f a ll legal s ystems i s that no
court may refrain from giving judgment on the ground that the law is silent or
obscure”).
361 BEUM, para. 5.121.
362 QCM(B), para. 3.68.
100sever the procedural and substantive conditions for countermeasures without justification or explanation, in a misplaced attempt to avoid the jurisdictional objection made by the Appellants (which objectconcernsallrequirements for countermeasures). The only way in which Qatar’s suggestion could operate would be if Qatar were to admit, and thus remove from the scope of the dispute, that the substantive conditions for the imposition of countermeasures had been met, namely that it had breached various international obligations. But this Qatar has not done.4.55Finally, Qatar’s suggestion that the Council would in any case have jurisdiction to determine the “substantive premise of the alleged countermeasures” on the basis of forum prorogatum363is incoherent364. The 363QCM(B),para. 3.72,note294(“Even if the Council needed to determine the substantive premise of the alleged countermeasures, [] Appellants must be deemed to have implicitly consented to this determination via forum prorogatum. The doctrine of forum prorogatum‘is relevant ... in determining ... the extent to which [the respondent State] may tacitly have accepted jurisdiction over matters not covered by the original title relied on’. . . . There is no reason why the same logic should not apply to the respondent State when raisinga countermeasures defence.” (citing H.Thirlway, The International Court of Justice(2016), p. 53).).364A preliminary objection cannot be construed as forming consent for jurisdiction, not least because, in this case, the Council’s lack of jurisdiction, including its jurisdiction to determine countermeasures, formed a core part of the Appellants’ preliminary objection. See Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), Preliminary Objections, Judgment, I.C.J. Reports 1952, p.114 (“The principle of forum prorogatum, if it could be applied to the present case, would have to be based on some conduct or statement of the Government of Iran which involves an element of consent regarding the jurisdiction of the Court. But that Government has consistently denied the jurisdiction of the Court.”). Yet, the consenting conduct must be “conclusive”. See Rights of Minorities in Upper Silesia (Minority Schools),Judgment, P.C.I.J. Reports 1928, Series A, No. 15,p. 24 (“And there seems to be no doubt that the consent of a State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishingit.”) (emphasis added). In any case, the Appellants reserved their rights before the ICAO Council, stipulating that the Preliminary Objections were made “without prejudice to the Respondents’ position on the merits of the claims made by Qatar”; that the “Respondents fully reserve their rights” and that “nothing in the present Preliminary Objections is to be taken as constituting an admission in relation to any matter pertaining to the merits of Qatar’s claims.” See
101
Appellants have at all stages disputed the Council’s jurisdiction over precisely
those issues; the suggestion that they have somehow thereby tacitly consented
to the Council exercising that jurisdiction is fundamentally flawed.
Section 4. Conclusion
4.56 In conclusion on Chapter IV, the Court should find that the ICAO
Council lacks jurisdiction. In the alternative, it should find that Qatar’s claim is
inadmissible, as it would be incompatible with judicial propriety and the ICAO
Council’s judicial function under Article II, Section 2 of the IASTA for the
Council to determine that claim in isolation from the numerous other aspects of
the Parties’ dispute as set out in Chapter II and as now acknowledged by Qatar.
4.57 The Court should find that the Council must decline to exercise any
such jurisdiction as it possesses in order to safeguard the ICAO Council’s
judicial function and its judicial integrity when acting pursuant to its judicial
function under Article II, Section 2 of the IASTA365.
4.58 This conclusion follows from the two important concessions made in
Qatar’s Counter-Memorial. First, Qatar concedes the existence of a dispute
concerning its wrongful conduct under international law obligations other than
the Chicago Convention366. Second, it appears that Qatar is no longer
suggesting—as it did before the ICAO Council367—that the Council clearly has
BEUM, Vol. III, Annex 24, ICAO Preliminary Objections, paras 8-9; see also, ibid.,
para. 35.
365 BEUM, paras 5.96-5.97.
366 See, for example, QCM(B), para. 3.37.
367 BEUM, Vol. IV, Annex 25, ICAO Response to Preliminary Objections, para. 77
(“At any appropriate later stage of the proceedings (merits) the State of Qatar will
provide a robust defence on the facts and in law to the claim of the Respondents,
which will show that the actions taken by the Respondents are not lawful
countermeasures, or otherwise lawful in international law.”).
102jurisdiction to determine the substantive premise of the invocation of countermeasures. Instead, it suggests only that the Council has jurisdiction over “the dispute between the Parties regarding their violations of the IASTA.”368This is a significant concession, demonstrating that Qatar recognizes the force of the preliminary objection raised by the Appellants.4.59The Preliminary Objection of the Appellants was made in good faith. The Appellants consider that the ICAO Council is not the appropriate forum to consider the question as to whether they had a right to invoke countermeasures in response to Qatar’s conduct369. They have not consented to the ICAO Council hearing such a dispute, and consider that any attempt to extend the scope of Article II, Section 2by reading it expansively is to be resisted.368QCM(B),para. 2.62. As before the ICAO Council, the Appellants’ reliance on countermeasures is without prejudice to whether the airspace measures might otherwise be inconsistent with their obligations under the Chicago Convention, see BEUM, Vol. III, Annex 24,ICAO Preliminary Objections, paras 8-9 and 35.369QCM(B),para. 2.62.103CHAPTERVTHIRD
103
CHAPTER V
THIRD GROUND OF APPEAL: THE ICAO COUNCIL ERRED IN
REJECTING THE SECOND PRELIMINARY OBJECTION RELATING
TO PRIOR NEGOTIATIONS
5.1 The Appellants’ Third Ground of Appeal against the Decision of the
ICAO Council relates to whether Qatar complied with Article II, Section 2 of
the IASTA and Article 2(g) of the ICAO Rules, both of which require States to
attempt to resolve a dispute through negotiation before submitting it to the
Council.
5.2 This ground of appeal goes to the Council’s jurisdiction over Qatar’s
claims in its Application, and in the alternative to the admissibility of those
claims, insofar as (a) Article II, Section 2 of the IASTA contains a
“precondition of negotiations”, which constitutes a limit on the jurisdiction of
the Council, and (b) the ICAO Rules set out certain requirements relating to
negotiations with which any Application and Memorial must comply. The
Appellants consider that the latter issue gives rise to a question of admissibility.
5.3 At the outset, two comments are called for in connection with Qatar’s
assertion that the ICAO Council “properly held that Qatar satisfied the
Negotiation Requirement”370.
5.4 First, by referring to the “negotiation requirement”, Qatar implicitly
accepts the position of the Appellants that Article II, Section 2 of the IASTA
constitutes a “precondition of negotiation”, which qualifies the consent of the
370 QCM(B), p. 87, Section I.
104States Parties to the jurisdiction of the Council, and compliance with which constitutes a precondition to valid seisin371.5.5Second, contrary to Qatar’s assertion, the Decision adopted by the ICAO Council provides no basis to conclude that the Council held that Qatar had in fact “satisfied the negotiationrequirement”372. The Council disposed of the Preliminary Objections as to its competence to hear Qatar’s claims by a single vote on the question of whether to accept the Appellants’ “Preliminary Objection” (singular)373. The Council’s Decision on its face contains no indication of the Council’s reasoning; further, given that the Council deliberately eschewed any deliberation, the reasons underlying the Council’s 371See e.g. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p.128, para.141.372QCM(B),Chapter 4, Section Iheading (“The Council Properly Held that Qatar Satisfied the Negotiation Requirement”).373BEUM, Vol. V, Annex 52, Decision of the ICAO Council on the Preliminary Objection in the Matter: the State of Qatar and the Arab Republic of Egypt, the Kingdom ofBahrainand the United Arab Emirates (2017) –Application (B), 29 June 2018, The Council… “DECIDESthat the preliminary objection of the Respondents is not accepted.”
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Decision cannot be discerned from the summary records of the Council’s
consideration of the Appellants’ Preliminary Objections374.
5.6 By way of a further preliminary observation, Qatar does not dispute
much of what the Appellants submit, based on the Court’s case-law, is required
in order for a party to comply with such a precondition. Nevertheless, Qatar
does take issue with a number of specific points of detail as regards the standard
applicable to the precondition of negotiation.
5.7 Section 1 of this Chapter deals with the objection to jurisdiction. In
this regard, the Appellants first respond to Qatar’s arguments on the applicable
standards, and what is required to comply with the precondition of negotiations
(subsection 1(A)). Qatar also argues that, notwithstanding the absence of any
communication from it seeking to initiate negotiations with the Appellants, the
precondition of negotiations has nevertheless been fulfilled as a matter of fact;
the reasons why that assertion is wrong are dealt with in subsection 1(B).
374 In this connection, it bears noting that before the Council, Qatar relied upon a
number of arguments in respect of the Appellants’ argument based on failure to
comply with the requirement of negotiations, which, while formally maintained in its
Counter-Memorial, are not now seriously pressed before the Court. These include:
(a) the argument, relying, inter alia, o n t he d ecision o f the P ermanent Court i n
Mavrommatis Palestine Concessions, that conduct subsequent to the filing of
the Application could be taken into account in determining whether the
“precondition of negotiation” was fulfilled: see BEUM, Vol. IV, Annex 25,
ICAO Response to the Preliminary Objections, paras 100-102. Whilst Qatar
formally maintains that argument, it is now confined to a footnote: see
QCM(B), para. 4.38, note 351.
(b) the position that, in accordance with the ICAO Rules, only jurisdictional
objections, but not objections to admissibility, could be raised by way of
preliminary objection before the Council: BEUM, Vol. IV, Annex 25, ICAO
Response to the Preliminary Objections, paras 16 and 23; BEUM, Vol. V,
Annex 53, ICAO Council – 214th Session, Summary Minutes of the Eighth
Meeting of 26 June 2018, ICAO document C-MIN 214/8, 23 July 2018, paras
46-52. Qatar now suggests that the issue is not one requiring determination by
the Court: see QCM(B), para. 3.71, note 290.
106Section 2deals with Qatar’s response to the Appellants’ argument that Qatar’s claims are inadmissible as a result of itsnon-compliance with Article 2(g) of theICAORules. Section 3provides a conclusion.Section 1.The Objection as to JurisdictionA.LEGAL STANDARD FOR THE PRECONDITION OF NEGOTIATION1.Introduction5.8As noted, Qatar largely does not take issue with the relevant law in respect of the jurisdictional limb of the Appellants’ objection as set out in the Appellants’ Memorial. Qatar thus appears to accept that:(a)adistinction is to be drawn between objections to jurisdiction and objections to admissibility375;(b)whilst objections to jurisdiction concern whether a dispute falls outside the proper scope of the consent to jurisdiction, objections to admissibility are characterized by the contention that there exists a legal reason why the relevant court or tribunal should decline to hear the case or a specific claim therein, notwithstanding the fact that it may have jurisdiction376;375BEUM, paras 4.11-4.31; see also Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment, I.C.J. Reports 2003, p.177, para.29; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, pp.456-457, para.120. 376BEUM, paras 4.20-4.21; Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment, I.C.J. Reports 2003, p.177, para.29; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, pp.456-457, para.120.107(
107
(c) the requirement that a dispute must be one which “cannot be settled by
negotiation” in Article II, Section 2 of the IASTA constitutes a
“precondition of negotiation”, which qualifies the consent of States
Parties to the exercise of jurisdiction by the Council and constitutes a
precondition to seisin377; and
(d) as such, any failure to comply with the precondition of negotiations in
respect of a particular dispute goes to the Council’s jurisdiction over
that dispute378.
5.9 Qatar does, however, take issue with the Appellants’ position on a
number of discrete points relating to the standard to be applied in determining
whether the precondition of negotiations has been fulfilled. Each of those points
is aimed at supporting its position that it in fact complied with the precondition
of negotiations. Thus, Qatar argues that:
(a) the precondition of negotiations is fulfilled “when a disputing party is
confronted with an ‘immediate and total refusal’ to negotiate on the
other side”379, and that in such circumstances, “a disputing party is not
required to even attempt to negotiate”380;
(b) the precondition of negotiations can be fulfilled through general
statements and calls for dialogue. Qatar asserts in this regard that all
that is required is “that the ‘subject-matter’ of the treaty giving rise to
377 BEUM, paras 6.7-6.25.
378 Ibid., paras 4.29 and 6.9; Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2006, p. 39, para. 88.
379 QCM(B), para. 4.8.
380 Ibid., para. 4.20.
108the dispute be addressed with ‘sufficient clarity’ to enable the other disputing party to conclude that ‘there is, or may be, a dispute with regard to that subject matter’”381;(c)in support of its position that the precondition of negotiations was fulfilled through Qatar’s actions before ICAO and/or the WTO, Qatar argues that what constitutes negotiations “should be assessed with flexibility”382, and that “no specific format or procedure is required”383;5.10In response, in the present Section the Appellants explain why Qatar’s position is wrong. The Court’s prior jurisprudence is clear that:(a)the precondition of negotiations cannot be satisfied without a “genuine attempt” to negotiate first being made, even where the disputing Party considers that any such attempt would be futile (Subsection 2);(b)the “subject-matter” of the Treaty and the content of the relevant obligations, the interpretation and/or application of which give rise to the dispute, must be identified with sufficient specificity; as to this requirement, the difference between the Parties appears to be one of emphasis rather than one in law (Subsection 3);(c)Subsection 4 then briefly discusses the apparent agreement between the Parties that whilst a certain degree of flexibility is required in assessing whether a genuine attempt at negotiations hasbeen made, 381Ibid., para.4.15.382Ibid., para.4.16.383Ibid., para.4.17.109any
109
any such flexibility cannot override the legal requirements for the
precondition to be made out.
2. The precondition of negotiations requires a “genuine attempt” to engage in
negotiations
5.11 Qatar acknowledges and purports to accept the Court’s decision in
Georgia v. Russia that, where a jurisdictional provision contains language
amounting to a “precondition of negotiation”, what is required is “at the very
least . . . a genuine attempt . . . to engage in discussions with the other disputing
party, with a view to resolving the dispute”384.
5.12 However, Qatar then attempts to qualify this clear statement of law by
suggesting that the precondition of negotiations:
“may be satisfied by a genuine attempt by one of the
disputing parties to engage in discussions with the
other with a view to resolving the dispute if that
attempt fails or becomes futile”385.
5.13 In this connection, Qatar proceeds to argue that where one disputing
Party faces an “immediate and total refusal” to negotiate by the other side386, it
is not even required to make any attempt to negotiate387.
5.14 However, as the Appellants explained in their Memorial388, the Court
in Georgia v. Russia made clear that the question of whether an attempt to
384 Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011, p. 132, para. 157. See BEUM, para. 6.28; QCM(B),
paras 4.6-4.7.
385 QCM(B), para. 4.7 (emphasis in original).
386 Ibid., para. 4.8.
387 Ibid., para. 4.20.
110resolve the dispute through negotiations has in fact failed or become futile arises only if a genuine attempt has first been made:“Manifestly, in the absence of evidence of a genuine attempt to negotiate, the precondition of negotiation is not met. However, where negotiations are attempted or have commenced, the jurisprudence of this Court and of the Permanent Court of International Justice clearly reveals that the precondition of negotiation is met only when there has been a failure of negotiations, or when negotiations have become futile or deadlocked”389.5.15The primary and initial question is thus whether there has been a “genuine attempt” to engage in negotiations. It is only where such an attempt has in fact been made that the question of whether the negotiations “failed, became futile, or reached a deadlock” becomes relevant.5.16Thus, in Georgia v. Russia, the Court identified that it was required to address:“whether Georgia genuinely attempted to engage in negotiations with the Russian Federation, with a view to resolving their dispute concerning the Russian Federation’s compliance with its substantive obligations under CERD. Should it find that Georgia genuinely attempted to engage in such negotiations with the Russian Federation, the Court would examine whether Georgia pursued these negotiations as far as possible with a view to settling the dispute. To make this determination, the Court would ascertain whether the negotiations failed, became 388BEUM, paras 6.6, 6.29-6.30.389Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p.133, para.159 (emphasis added).
111
futile, or reached a deadlock before Georgia
submitted its claim to the Court.”390
5.17 Similarly, in Obligation to Extradite or Prosecute, in considering
whether there had been compliance with the precondition of negotiations
contained in Article 30(1) of the United Nations Convention Against Torture,
the Court stated that it:
“must begin by ascertaining whether there was, ‘at
the very least[,] a genuine attempt by one of the
disputing parties to engage in discussions with the
other disputing party, with a view to resolving the
dispute’.”391
5.18 That a “genuine attempt” to engage in negotiations must first be shown
to have been made is further confirmed by the fact that the Court in Georgia v.
Russia assessed as a preliminary matter “[w]hether the Parties have held
negotiations on matters concerning the interpretation or application of
CERD”392. Having concluded that, on the evidence before it, there had been no
such attempt, the Court held that the precondition of negotiations had not been
met393. Accordingly, there was no need for the Court to address the further
390 Ibid., p. 134, para. 162 (emphasis added).
391 Questions Relating to the Obligation to Extradite or Prosecute (Belgium v. Senegal),
Judgment, I.C.J. Reports 2012, pp. 445-446, para. 57, quoting Application of the
International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011 (I), p. 132, para. 157.
392 Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011, p. 134, (heading b) before para. 163), and para. 163
(“the Court now turns to the evidence submitted to it by the Parties to determine
whether this evidence demonstrates, as stated by Georgia, that at the time it filed its
Application on 12 August 2008, there had been negotiations between itself and the
Russian Federation”).
393 Ibid., pp. 139-140, para. 182.
112question of whether the negotiations had failed or become futile or reached a deadlock, and it did not do so394.5.19The decision of the Court in this regard also makes clear that, in assessing the initial question of whether there has in fact been a “genuine attempt” to negotiate, issues of whether any such attempt would be likely to have failed or be futile are irrelevant. Notably, in reaching the conclusion that the precondition of negotiations was not satisfied, the Court rejected Georgia’s submission that “Russia’s refusal to negotiate with Georgia ...is sufficient to vest the Court with jurisdiction”395.5.20Qatar’s attempt to exempt a party from the requirement of a “genuine attempt” to negotiate “if that attempt fails or becomes futile” thus conflates two analytically distinct steps396.In any event, Qatar’s argument is on its face incoherent—a genuine attempt to negotiate is either made or it is not. It is not the genuine attempt to negotiate which may “fail or become[]futile”397, but rather the processof negotiations; but reaching a conclusion as to the failure or futility of negotiations necessarily presupposes that a genuine attempt to negotiate has at the very least been made.5.21In support of its position as to the applicable standard for compliance with the precondition of negotiations, Qatar suggests that a precondition of negotiations is discharged “when a disputing party is confronted with an 394Ibid.395Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment,I.C.J. Reports 2011, p. 139, para. 182.396QCM(B), para.4.7.397Ibid.
113
‘immediate and total refusal’ to negotiate on the other side”398. The real thrust
of Qatar’s argument in this regard is rendered apparent from its later assertion
that “a disputing party is not required to attempt even to negotiate when faced
with the other party’s ‘immediate and total refusal’ to enter into any discussion
on the matter”399.
5.22 That argument is a clear attempt to bypass the requirement that there
be “at the very least, a genuine attempt”400 to negotiate with a view to resolving
the dispute. Again, it misrepresents the issue; the question is not whether a
party is required “to negotiate”, but rather whether it has, at a minimum, made a
“genuine attempt to engage in discussions with the other disputing party, with a
view to resolving the dispute”401.
5.23 Similarly, Qatar’s assertion that a “contrary rule would allow one party
to a dispute to frustrate the other’s access to a dispute settlement mechanism
conditioned on negotiations, merely by refusing to engage with it”402,
misrepresents the true position. What is required by the Court’s jurisprudence
where a clause containing a precondition of negotiations is applicable is a
“genuine attempt” to initiate negotiations. If such a genuine attempt is in fact
made, but is rebuffed, then the precondition is fulfilled and the other party is
unable thereby to frustrate access to the relevant forum.
398 Ibid., para. 4.8.
399 QCM(B), para. 4.20; see also the later statement, in the context of its discussion of its
supposed attempts to negotiate that “a disputing party’s ‘immediate and total refusal’
to negotiate, without more, dispenses with the need to examine the other party’s
attempt to negotiate” (ibid., para. 4.36).
400 Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011, p. 132, para. 157.
401 Ibid.
402 QCM(B), para. 4.9.
1145.24Qatar’s invocation of the dictum from North Sea Continental Shelfthat parties “are under an obligation so to conduct themselves that the negotiations are meaningful”403,does not further its position. The passage relied on by Qatar does not concern what is required in order to satisfy a jurisdictional precondition of negotiation, but rather relates to the different issue of how States are required to conduct themselves in the course of negotiations.5.25In support of its argument that the negotiation precondition is discharged in circumstances where a party opposes an “immediate and total refusal” to negotiate, Qatar also seeks to relyon the decision of the Court in United States Diplomatic and Consular Staff in Tehran404. That decision is inapposite for at least three reasons.5.26First, the jurisdictional provision at issue (Article XXI(2) of the US-Iran Treaty of Amity, Economic Relations and Consular Rights) does not contain a precondition of negotiation, but rather a requirement that the dispute be “not satisfactorily adjusted by diplomacy”. Qatar’s attempt to suggest in this connection that the Court “does not differentiate”405between such a requirement and a precondition of negotiations is simply wrong. As the Court recently emphasized when interpreting the same provision, the requirement that the dispute not be satisfactorily adjusted by diplomacy is an objective, factual 403Ibid.,para.4.10; North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands), Judgment, I.C.J. Reports 1969, para.85(a).404QCM(B), para. 4.8. Tellingly, although Qatar quotes the words “immediate and total refusal” on various occasions in QCM(B), Chapter 4, Section 1 (see e.g., paras 4.8 and 4.20), it does not there provide any clear citation for the source of the quotation. 405QCM(B), para.4.8, note311.115one406.
115
one406. In contrast to a situation involving a precondition of negotiation, there is
no need to examine whether negotiations have taken place, or have even been
attempted; the sole question is whether the dispute has been satisfactorily
adjusted by diplomacy:
“Article XXI, paragraph 2, of the 1955 Treaty is not
phrased in terms similar to those used in certain
compromissory clauses of other treaties, which, for
instance, impose a legal obligation to negotiate prior
to the seisin of the Court (see Application of the
International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian
Federation), Preliminary Objections, Judgment,
I.C.J. Reports 2011(I), p. 130, para. 148). Instead, the
terms of Article XXI, paragraph 2, of the 1955 Treaty
are descriptive in character and focus on the fact that
the dispute must not have been “satisfactorily
adjusted by diplomacy”. Thus, there is no need for
the Court to examine whether formal negotiations
have been engaged in or whether the lack of
diplomatic adjustment is due to the conduct of one
party or the other. It is sufficient for the Court to
satisfy itself that the dispute was not satisfactorily
adjusted by diplomacy before being submitted to it
(see Oil Platforms (Islamic Republic of Iran v. United
States of America), Judgment, I.C.J. Reports 2003,
pp. 210-211, para. 107).”407
406 Alleged Violations of the 1955 Treaty of Amity, Economic Relations and Consular
Rights (Islamic Republic of Iran v. United States of America), Request for the
Indication of Provisional Measures, Order, 3 October 2018, para. 50.
407 Ibid.; Qatar’s suggestion that the Appellants “do not differentiate between
requirements to negotiate . . . and requirements to seek a satisfactory adjustment of a
dispute by diplomacy . . .” (QCM(B), note 311) is likewise without foundation. The
citation to the Appellants’ Memorial provided in support (BEUM, para. 6.53(b),
relates to the different question of whether the absence of diplomatic relations per se
constitutes an obstacle to the ability of a State to attempt to initiate negotiations, or
excuses a State from complying with applicable jurisdictional preconditions.
1165.27Second, the words “immediate and total refusal” relied upon by Qatar were used by the Court in discussing the other precondition to jurisdiction specified in Article XXI(2) that the parties had not agreed to settle the dispute through “some other pacific means”, and after the Court had already determined that the dispute was one which “[c]annotbe satisfactorily adjusted by diplomacy”408.5.28Third, in any event, the Court heldthat the United States had in fact made genuine attempts to initiate negotiations with Iran in respect of the dispute409.5.29For these reasons, Qatar is wrong to suggest that the Court held that the “Iranian Government’s ‘refusal ...to enter into any discussion on the matter’...was sufficient to discharge the negotiation requirement under Article XXI, paragraph 2”410.408United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, p.27, para. 51 (emphasis added).409Ibid. Qatar’s assertion that the Court did not mention “any attempts by the United States to negotiate after its efforts to make its views known to Iran were rebuffed” (QCM(B),para. 4.8) disregards the fact that the Court explicitly held that the United States had made “efforts to … open negotiations” (United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, p.15, para. 26; see also ibid., p.25, para. 47, and p. 27, para. 51). As such, if a precondition of negotiationshad been applicable, it would have been satisfied.410In addition, Qatar also seeks to rely on paragraph 133 of the Court’s decision in Georgia v. Russia: seeQCM(B), para.4.8, note311.That paragraph, however, contains the Court’s discussion of the application of the principle of effectiveness in the interpretation of the words “cannot be adjusted by negotiation” in Article 22 of CERD, and its relevance to Qatar’s argument is entirely opaque. In any event, it may be noted thatthe Court later expressly noted the difference in formulations present in different jurisdictional provisions in treaties, before going on to consider prior decisions “concerning compromissory clauses comparable to Article 22 of CERD” (ie those which require that a dispute must be one which “cannot be settled by negotiations”): see Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary
117
5.30 It follows that Qatar is also wrong to suggest, by reference to the
decision in United States Diplomatic and Consular Staff in Tehran, that the
Court’s jurisprudence makes clear that
“a disputing party’s ‘immediate and total refusal’ to
negotiate, without more, dispenses with the need to
examine the other party’s attempts to negotiate.”411
5.31 Instead, the true position is that, where a compromissory clause
contains a precondition of negotiations, it is incumbent upon the State to make
“at the very least, a genuine attempt” to initiate negotiations, even if it considers
such negotiations to be futile. Qatar was thus, at a minimum, required to make
such an attempt in order to satisfy the precondition of negotiations set out in
Article II, Section 2 of the IASTA.
3. The need to identify the specific obligations which form the subject-matter of
the dispute
5.32 The precondition of negotiations contained in Article II, Section 2 of
the IASTA requires that the genuine attempt to negotiate by the State seeking to
invoke jurisdiction must have particularly addressed (or at least sought to
address) the specific question of interpretation or application of the treaty in
dispute between the parties412.
Objections, Judgment, I.C.J. Reports 2011, p. 126, para. 136. Notably, in the
following discussion in that regard, no reference was made to the Court’s decision in
United States Diplomatic and Consular Staff in Tehran; that is for the simple reason
that it is irrelevant. For the same reason, Qatar’s observation that the Appellants
referred to the decision in United States Diplomatic and Consular Staff in Tehran
“only once and for a rather minor point” (QCM(B), note 314), whilst accurate so far
as it goes, is nothing to the point.
411 QCM(B), para. 4.36.
412 Ibid., para. 4.13, note 316, referring to BEUM, para. 6.31.
1185.33Qatar suggests, however,that the Court’s decision in Georgia v. Russiarequires only that:“the ‘subject-matter’ of the treaty giving rise to the dispute be addressed with ‘sufficient clarity’ to enable the other disputing party to conclude that ‘there is, or may be, a dispute with regard to that subject-matter’.”4135.34This disagreement between the Parties appears to be, at most, one of emphasis, since, in any event, it will be for the Court to determine on the basis of the particular facts whether the dispute was identified with sufficient specificity in any attempt to negotiate.5.35However, and in any event, Qatar’s reading of Georgia v. Russia is misleading: it conflatesand seeks to applythe Court’s enunciation of the applicable test for determining the existence of a dispute with what is required to satisfy the precondition of negotiations414. The questions of whether there is a dispute, and whether the precondition of negotiations is met, are analytically distinct, and the relevant considerations are different415. Thus in Georgia v. Russia, the Court determined thatto demonstrate the existence of a dispute, a complaining State must, at a minimum, have sufficiently identified the subject-matter of the relevant treaty in issue and in respect of which the dispute arises, 413QCM(B), para.4.14, quoting Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p.85, para. 30.414Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 84, para. 29.415Ibid.,p. 84, para. 30 (“While the existence of a dispute and the undertaking of negotiations are distinct as a matter of principle, the negotiations may help demonstrate the existence of a dispute and delineate its subject-matter.”).
119
such that the State against which the claim is made is able to understand that
there is or may exist a dispute in that regard416.
5.36 By contrast, the Court later observed that “the concept of
‘negotiations’ differs from the concept of ‘dispute’”417 and referred in that
context to the requirement that there should be “at the very least, . . . a genuine
attempt to negotiate”418. As the Court then explained, such negotiations:
“must relate to the subject-matter of the treaty
containing the compromissory clause. In other words,
the subject-matter of the negotiations must relate to
the subject-matter of the dispute which, in turn, must
concern the substantive obligations contained in the
treaty in question”.419
5.37 Thus, while it is not necessary that the party invoking jurisdiction
“express[ly] reference [] the treaty in question”420, it is necessary that the
negotiations or attempt to initiate negotiations at a minimum identify the
relevant substantive obligations which are said to have been breached421. This
requirement of specificity is particularly important in a situation such as the
present, where the dispute alleged by Qatar forms only one part of a much
broader international dispute between the Parties, as Qatar acknowledges.
416 Ibid.
417 Ibid., p. 132, para. 157.
418 Ibid., p. 132, para. 157.
419 Ibid., p. 133, para. 161 (emphasis added).
420 Ibid.
421 See e.g. Ibid., p. 134, para. 162, where the Court framed the issue as being “whether
Georgia genuinely attempted to engage in negotiations with the Russian Federation,
with a view to resolving their dispute concerning the Russian Federation’s
compliance with its substantive obligations under CERD.” (emphasis added).
1204.The need for flexibility in assessing negotiations5.38Qatar’s other comments concerning the need for a degree of flexibility in assessing whether a genuine attempt to negotiate has taken place, and the need to avoid excessive formalism422can be dealt with far more briefly insofar as there appears to be no substantive disagreement between the Parties as to the applicable legal principles. 5.39The Appellants do not dispute that, as a matterof principle, an attempt to negotiate may be held to have been made through the medium of diplomacy by conference or parliamentary diplomacy423. Nevertheless, any such flexibility cannot override the legal requirements for the precondition of negotiations to be satisfied, as set out above.Qatar does not appear to dispute this proposition in its Counter-Memorial. 5.40Rather, the disagreement between the Parties concerns the facts of the case, and in particular whether Qatar’s actions in international organisations, including in the context of ICAO, qualify as a “genuine attempt . . . to engage in discussions with the other disputing party, with a view to resolving the dispute”424.That question is addressed in the next section.B.QATAR HAS FAILED TO SHOW THAT IT MADE ANY GENUINE ATTEMPT TO NEGOTIATE5.41Qatar has not fulfilled the precondition of negotiations contained in Article II, Section 2 of the IASTA. It has not shown that at any point prior to 422QCM(B), paras 4.15-4.17.423Cf.Ibid.,para.4.17; South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962,p.346.424Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p.132, para. 157.121submission
121
submission of its Application to ICAO on 30 October 2017, it took any concrete
steps to initiate negotiations with the Appellants in respect of its claims
concerning the alleged breach by the Appellants of their obligations under the
IASTA425.
1. Qatar’s supposed efforts to settle the dispute through “direct means”
5.42 In their Memorial, the Appellants set out the reasons why the evidence
put forward by Qatar before the ICAO Council to substantiate its compliance
with the precondition of negotiations was ineffective for that purpose, inter
alia, because it concerned calls or communications not addressed to the
Appellants, and/or because it post-dated Qatar’s filing of the Application with
the Council426.
5.43 Although Qatar’s Counter-Memorial contains a section dealing with its
supposed attempts to settle the dispute through “direct means”427, it is striking
that Qatar puts forward no evidence of even a single attempt to settle the
dispute with the Appellants by seeking to engage in discussions as to the
alleged breaches by the Appellants of their obligations under the IASTA.
5.44 It is clear from other contexts that, where it suits its purposes, Qatar is
fully capable of producing communications which, at least on their face,
formally comply with relevant provisions requiring that a party make a genuine
attempt to negotiate as a precondition to submitting a dispute for resolution.
Yet, in the present case, Qatar chose never to send to the Appellants any such
425 As e xplained i n t he M emorial ( BEUM, paras 6.32-6.34), even if any attempts to
negotiate had been made after the filing of the Application, they are irrelevant for the
purposes of assessing compliance with the precondition of negotiation, which must
have been fulfilled as at the date of seisin.
426 BEUM, para. 6.35 et seq.
427 QCM(B), paras 4.28-4.56.
122communication seeking negotiations in respect of the claims it subsequently submitted to the Council.5.45Moreover, although Qatar refers to the fact that there were 147 days between the adoption by the Appellants of the measures on 5 June 2017 and the submission of the Application to the ICAO Council on 30 October 2017,and asserts that during this interval it sought to engage the Appellants in negotiations428, it makes no reference to the fact that it submitted its original, abortive, applications just days after it says the dispute arose429. Nor does it refer to the fact that in those applications, datedjust three days after the adoption of the measures, it had alreadytaken the position that any attempt to initiate negotiations were “no longer possible” because of the severance of diplomatic relations430. That was plainly insufficient time for anygenuine 428Ibid.,para.4.22.429See BEUM,paras 3.15-3.16 and 6.54-6.55; see also BEUM,Vol. III, Annex 22,Request for the Intervention of the ICAO Council in the Matter of the Actions of the Arab Republic of Egypt, the Kingdom of Saudi Arabia, the United Arab Emirates and the Kingdom of Bahrain to close their Airspace to aircraft registered in the State of Qatar, attaching Application (1) of the State of Qatar, Complaint Arising under the International Air Services Transit Agreement done in Chicago on 7December 1944, and Application (2) of the State of Qatar, Disagreement Arising under the Convention on International Civil Aviation done in Chicago on 7December 1944, 8June 2017 and Memorials for Application (1) and (2).430See BEUM,para. 6.55; and see also BEUM,Vol. III, Annex 22, Request for the Intervention of the ICAO Council in the Matter of the Actions of the Arab Republic of Egypt, the Kingdom of Saudi Arabia, the United Arab Emirates and the Kingdom of Bahrain to close their Airspace to aircraft registered in the State of Qatar, attaching Application (1) of the State of Qatar, Complaint Arising under the International Air Services Transit Agreement done in Chicago on 7December 1944, and Application (2) of the State of Qatar, Disagreement Arising under the Convention on International Civil Aviation done in Chicago on 7December 1944, 8June 2017 and Memorials for Application (1), p. 6 and Application (2), p. 9; see also BEUM,Vol.V, Annex 31, Request of the State of Qatar for Consideration by the ICAO Council under Article 54(n) of the Chicago Convention, 15 June 2017, p.10 (“all diplomatic ties between the nations concerned have been ruptured and negotiations are no longer possible”).
123
attempt to negotiate to have taken place, and Qatar has not suggested that any
such attempt was made431.
5.46 At the same time Qatar has also abandoned the position it previously
took before the Council as to the impossibility of negotiations as a result of the
severance of diplomatic relations. It no longer seeks to argue that the severance
of diplomatic relations meant that negotiations were per se impossible, but
argues instead that “[a]t they very least, the absence of diplomatic channels . . .
made it much more difficult for Qatar even to attempt to negotiate”432.
5.47 Qatar’s retreat on this point is significant and constitutes a tacit
recognition that its previous position was untenable. In particular, there is
plainly no reason why the existence of diplomatic relations is required in order
for a State to make a genuine attempt to initiate negotiations with a view to
settling a dispute. For instance, negotiations could have been sought by a letter
sent from Qatar’s Embassy or Permanent Mission to an international
431 Notably, Qatar has abandoned any reliance upon the supposed telephone call on
5-6 June 2017, which it had initially relied upon before the Council in its Memorial:
see BEUM, Vol. III, Annex 23, ICAO Memorial, Sec. (g) and BEUM, paras 6.49-
6.51.
432 QCM(B), para. 4.29. The Appellants’ relied on the Diplomatic and Consular Staff in
Tehran, and Oil Platforms decisions for the factual proposition that the Court has
never treated the absence of diplomatic relations as relevant to compliance by an
applicant with jurisdictional preconditions of negotiation or that a dispute should not
have been satisfactorily adjusted by diplomacy (see BEUM, para. 6.53(b) and note
438). Qatar’s response (see QCM(B), note 336) is both strained and artificial.
Moreover, it proceeds on the mistaken assumption that Article XXI(2) of the Iran-US
Treaty of Amity, Economic Relations and Consular Rights, which was at issue in
both cases, contains a precondition of negotiation, which is not the case, as explained
above, at paras 5.25-5.30.
124organization to the Embassy or Permanent Mission of the Appellants433. No such attempt was ever made by Qatarin this case.5.48Qatar attempts to divert attention from this fact by alleging that the Appellants agreed to engage with Qatar on only one occasion: during a brief telephone conversation between the Crown Prince of Saudi Arabia and the Emir of Qatar on 8 September 2017434.5.49Although Qatar attempts to rebut the reasons already put forward by the Appellants in their Memorial as to why that telephone conversation could not on any view constitute a “genuine attempt”to initiate negotiations in relation to the dispute435, the fundamental position remains that even putting the matter at its highest, the telephone conversation did not go beyond a general call for dialogue in relation to the wider dispute between the Parties as a whole, and which did not concern the alleged violations of the IASTA436. As such, it cannot satisfy the requirement that Qatar should have made a genuine attempt to negotiate in respect of the subject-matter of the dispute as to the airspace restrictions subsequently submitted by Qatar to the ICAO Council, which 433For example, the requirement in Article XXI(2) of the Iran-United States Treaty of Amity that the dispute was “not satisfactorily adjusted by diplomacy” was easily satisfied in the absence of diplomatic relations between Iran and the United States, with the Foreign Interests Section of the Embassy of Switzerland in Tehran serving as the channel for communication between the States: Alleged Violations of the 1955 Treaty of Amity, Economic Relations,and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018,para.47. 434QCM(B), para.4.42 et seq.435See BEUM, paras 6.78-6.82.436See Ibid., paras 6.80-6.81.125required
125
required that it should have concerned “the substantive obligations contained in
the treaty in question”437.
5.50 Moreover, although Qatar argues that the Appellants acted in concert,
such that contacts with Saudi Arabia should, in effect, be attributed to all of the
States438, it provides no support for the argument that this should be the case.
Moreover, it fails to explain how contact with a State which was not party to
IASTA could somehow constitute an attempt to negotiate in respect of the
Appellants, who are parties to IASTA. Indeed, it also fails to explain how the
other three States would or could as a matter of law be bound by whatever
Saudi Arabia may have said, done or known.
5.51 Qatar’s second fall-back position that it “repeatedly and publicly
asserted its openness to dialogue and negotiation”439 essentially reproduces the
position it took before the Council, and has already been dealt with in the
Memorial440.
5.52 As explained above, in accordance with the Court’s previous
jurisprudence in respect of compromissory clauses containing a precondition of
negotiation, what is required first and foremost is a “genuine attempt” to engage
in discussions with the Appellants with a view to resolving the dispute under
the IASTA. Such an attempt must involve more than general calls for dialogue,
but instead, must “relate to the subject-matter of the dispute which, in turn,
437 Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011, p. 133, para. 161.
438 QCM(B), para. 4.46.
439 Ibid., para. 4.38.
440 BEUM, para. 6.76.
126must concern the substantive obligations contained in the treaty in question”441.Qatar has signally failed to reach this threshold and its attempts to reformulate the tests laid down by the Court cannot succeed, either as a matter of law or, indeed, as a matter of fact.5.53Qatar also attempts to rely upon the public statements, reported in the press, of 28 June 2017442, 5 July 2017443, and 22 July 2017444which refer in very general terms to “air links”, “the blockade” and “contentious issues”. However, even if such statements had been addressed to the Appellants (which they were not), they are in any event incapable of satisfying the requirement of negotiations, since they do not identify nor seek to initiate negotiations in relation to the dispute as to the Appellants’ compliance with their relevant substantive obligations contained in the IASTA.5.54As a consequence, Qatar’s suggestion that it “tried repeatedly to engage with Joint Appellants to settle the dispute before it instituted proceedings before the ICAO Council”, does not reflect the reality of the situation, which is that Qatar at no point attempted to initiate negotiations in relation to the dispute as to obligations under the IASTAwhich it subsequently submitted to the ICAO Council.441Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p.133, para.161.442QCM(B), para.4.50.443Ibid., para.4.51.444Ibid., para. 4.53.1272.
127
2. Supposed negotiations within ICAO
5.55 Similarly, contrary to Qatar’s submissions, the proceedings within
ICAO are incapable of constituting genuine attempts to negotiate.
5.56 As set out in the Appellants’ Memorial, the letters sent by Qatar to the
Secretary-General of ICAO and the President of the Council were not addressed
to the Appellants, and in any event did not seek to initiate negotiations in
respect of the dispute relating to the IASTA445.
5.57 Quite apart from this, and insofar as Qatar seeks to rely upon
statements made during the Article 54(n) proceedings, the following comment
should be made. From the outset, Qatar sought to invoke both the formal
dispute resolution proceedings under Article II, Section 2, as well as the
procedure pursuant to Article 54(n) of the Chicago Convention446.
5.58 As explained in the Appellants’ Memorial, the ICAO Council itself
was at all times careful to maintain the distinction between the two procedures,
445 BEUM, paras 6.63-6.66.
446 BEUM, Vol. IV, Annex 25, ICAO Response to the Preliminary Objections, Exhibit
2, Letter from Qatar dated 5 June 2017, ref. QCAA/ANS.02/502/17, to the Secretary
General; BEUM, Vol. IV, Annex 25, ICAO Response to the Preliminary Objections,
Exhibit 3, letter of the Qatar Civil Aviation Authority to the President of the Council,
dated 8 June 2017, ref. 2017/15984 (see also Vol. III, Annex 22); BEUM, Vol. IV,
Annex 25, ICAO Response to the Preliminary Objections, Exhibit 4, Letter from the
Minister of Transport and Communications of Qatar dated 13 June 2017 to the
Secretary General, ref. 2017/15993; BEUM, Vol. IV, Annex 25, ICAO Response to
the Preliminary Objections, Exhibit 5, Letter to the Secretary General from the
Chairman of the CAA of Qatar dated 13 June 2017, ref. 2017/15994; BEUM, Vol.
IV, Annex 25, ICAO Response to the Preliminary Objections, Exhibit 6, Letter to
the Secretary General from the Chairman of the CAA of Qatar dated 15 June 2017,
ref. 2017/15995; BEUM, Vol. V, Annex 31, Request of the State of Qatar for
Consideration by the ICAO Council under Article 54(n) of the Chicago Convention,
15 June 2017; BEUM, Vol. IV, Annex 25, ICAO Response to the Preliminary
Objections, Exhibit 1, Letter to the President of the Council from the Chairman of the
CAA of Qatar dated 17 June 2017, ref. 2017/16032.
128and to ensure that the Article 54(n) proceedings were limited to issues relating to safety of aviation and contingency routes, and did not touch upon the question of the dispute initiated under Article II, Section 2447. In these circumstances, the Article 54(n) proceedings cannot be regarded as constituting negotiations for the purposes of the precondition of negotiations under Article II, Section 2 of the IASTA.5.59Nor can Qatar rely on its statement, made at the Extraordinary Session of the ICAO Council on 31 July 2017,at which Qatar’s request for consideration under Article 54(n) of the Chicago Convention was dealt with by the Council, that the Appellants’ measures constituted a “flagrant violation” of ICAO instruments448. Indeed, the Court has drawn a firm distinction between negotiations and “mere protests or disputations”449,and in particular, has made it clear that negotiations “entail more than the plain opposition of legal views or interests between two parties, or the existence of a series of accusations and rebuttals, or even the exchange of claims and directly opposed counter‑claims”450.5.60Accordingly, the mere fact that Qatar broadcast its accusation before the ICAO Council in the context of the Article 54(n) proceedings cannot be taken as constituting either a “genuine attempt” to negotiate, or as negotiations themselves.447BEUM, paras 6.67-6.69.448QCM(B), para.4.62. 449Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p.132, para. 157.450Ibid.
129
3. Supposed negotiations within the WTO
5.61 Qatar’s reliance on the WTO proceedings has also already been noted
in the Appellants’ Memorial451. The fundamental point in this regard remains
that a request for consultations, which plays a specific role within the WTO
dispute settlement mechanism in relation to alleged violation of WTO
obligations, cannot be regarded as constituting an attempt to negotiate in
relation to alleged breaches of distinct obligations, having a different subjectmatter
and content, under the Chicago Convention452.
5.62 Qatar’s assertion to the contrary453 is based on its flawed argument that
negotiations need only refer in general terms to the subject-matter of the
dispute. As already noted, however, the Court has made clear that negotiations
must relate to the specific subject-matter of the dispute, which must concern the
substantive obligations in the treaty in question454.
5.63 In any event, a request for consultations directed at three States cannot
constitute negotiations with Egypt. To say, as Qatar does, that “nothing in the
response by Bahrain, the UAE and Saudi Arabia to Qatar’s request for
consultations deviates from similar statements made by Egypt itself”455, merely
serves to underline the absence of any communication addressed to Egypt. The
very weakness of Qatar’s argument in this regard is telling.
451 See BEUM, paras 6.71-6.73.
452 Ibid., para. 6.73.
453 QCM(B), para. 4.70.
454 Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011, p. 133, para. 161.
455 QCM(B), para. 4.71.
1304.Supposed negotiations through third parties5.64Finally, Qatar seeks to rely on supposed attempts to “settle the dispute” through third parties456. Although Qatar recounts at length the supposed efforts made through third parties, the evidence relied upon by Qatar inrespect of events prior to the filing of its Application with the ICAO Council cannot be regarded as constituting an attempt to initiate negotiations. This is because, as already explained in the Memorial inter alia: (a) none of the requests or statementswas addressed to the Appellants; and (b) all of the requests were in general terms, and failed to refer to the specific substantive obligations under the IASTA457.Section 2.The Objection as to Admissibility5.65Qatar has largely failed to engage with the Appellants’ submission concerning objections to admissibility. The distinction between objections to jurisdiction and objections to admissibility has been well recognized in international procedural law458. The former reflects the fundamental principle that jurisdiction isfounded upon consent, so that any objection to jurisdiction will focus upon arguments as to whether the consent given in the circumstances encompasses the settlement of the dispute by the court or tribunal inquestion. As the Court emphasized in Armed Activities on the Territory of the Congo:“its jurisdiction is based on the consent of the parties and is confined to the extent accepted by them ...When that consent is expressed in a compromissory clause in an international agreement, any conditions 456Ibid., para.4.72 et seq.457BEUM, paras 6.74-6.86.458Ibid., para.4.11 et seq.
131
to which such consent is subject must be regarded as
constituting the limits thereon”.459
5.66 By contrast, admissibility rests upon the proposition that even if the
Court has jurisdiction and the facts stated by the applicant State are assumed to
be correct, there are reasons why the Court should not proceed to an
examination of the merits460. In essence, as the Court has noted, an objection to
admissibility involves the argument that even when there exists jurisdiction,
there is a legal reason why the Court should decline to hear the case461. The
difference between the two concepts is clear and judicially approved. The
Appellants also noted in their Memorial that the same considerations in a case
may simultaneously give rise to objections to jurisdiction and objections to
admissibility462. Qatar did not respond to any of these points.
5.67 As regards the objection to admissibility based on the failure to comply
with Article 2(g) of the ICAO Rules, Qatar does not dispute that Article 2
imposes requirements as to the content of a valid Application and Memorial.
Nor does it dispute that, as a matter of principle, a failure to comply with the
requirements of Article 2 may render an application inadmissible before the
Council.
459 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 2006, p. 39, para. 88 (emphasis added).
460 Oil Platforms (Islamic Republic of Iran v. United States of America), Merits,
Judgment, I.C.J. Reports 2003, p. 177, para. 29. See also BEUM, para. 4.20 et seq.
461 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports
2008, pp. 456-457, para. 120.
462 BEUM, paras 4.30-4.31.
1325.68Instead, it contends that all that is required by Article2(g) is a “statement” (in French “une déclaration attestant”) that negotiations to settle the disagreement have taken place but were not successful, and that the requirement is thus merely one of “form”463, such that “allegations of fact” in an applicant State’s Memorial will suffice in this regard464.5.69Such an interpretation of Article 2(g) would, however, render the provision entirely devoid of any effet utile.What is required by the precondition of negotiations in Article II, Section 2 of the IASTA, is a “genuine attempt” to negotiate. It follows that Article 2(g) of the ICAO Rules, which Qatar agrees is intended to reflect that requirement465, must likewise be understood as requiring a statement, appropriately substantiated, that a genuine attempt to negotiate has in fact been made. Conversely, and as a consequence, assertions as to the supposed futility of even making any such attempt are insufficient to excusecompliance with the requirement. A fortiori, a clear assertion that negotiations have nottaken place evidently cannot be regarded as constitutingcompliance.5.70But in any event, even if a bare unsupported statement of fact that negotiations had taken placewere sufficient, to the extent that Qatarseeks to rely upon the heading of the relevant section of the Memorial submitted to the Council466—which on its face merely purports to summarize the requirement 463QCM(B), para.4.87.464Ibid., para.4.87.465Ibid., para.4.88. 466Ibid., para. 4.88.133contained
133
contained in Article 2(g) of the ICAO Rules467— that is on any view
insufficient to satisfy the requirement.
5.71 Further, Qatar’s reliance on the fact that the final sentence referred to
“further negotiating efforts”468 is likewise insufficient in circumstances in
which the remainder of the paragraph made clear that no efforts to negotiate had
in fact been made.
5.72 In that regard, it is significant that Qatar does not dispute, and
effectively acknowledges, that it did not comply with the requirements of
Article 2(g) of the ICAO Rules insofar as its Memorial before the Council did
not contain a statement that negotiations had taken place but were not
successful, but instead expressly stated that negotiations had not taken place469.
5.73 Qatar’s further response that the assertion in the Memorial that the
Appellants “did not permit any opportunity to negotiate”, should be understood
as a reference to the Appellants’ supposed “immediate and total refusal” to
negotiate, and that this is sufficient to discharge the requirement in Article 2(g)
of the ICAO Rules470, is also flawed for the reasons already set out above. At
the very least, a “genuine attempt” to negotiate was required.
467 BEUM, Vol. III, Annex 23, ICAO Memorial, Sec. (g) “(g) A statement of attempted
negotiations”.
468 QCM(B), para. 4.89.
469 Ibid., para. 4.88; cf. BEUM, para. 6.97.
470 QCM(B), para. 4.88.
1345.74As a further fall-back, Qatar seeks to argue that it was open to it to amend its “pleadings” so as simply to assert that negotiations had taken place471. That argument is also flawed. 5.75First, it ignores the fact that, as argued in the Memorial, matters of jurisdiction fall to be established as at the date of seisin472.5.76Second, even if such a course of action were in theory procedurally permissible, it is difficult to see how the making of a bare statement in circumstances in which that statement was both flatly inconsistent with the position previously taken, and entirely unsupported by any new evidence tending to support its veracity, could properly be regarded as compliance with the requirement of Article 2(g).5.77Finally, Qatar argues that any deficiency was, at most a “minor procedural defect” which would not constitute a proper basis for an appeal to the Court473. This, however, fails to address the point; the failure to comply with the requirements of Article 2(g) of theICAORules is not, in this context,relied upon as a “procedural defect”, whether minor, or otherwise, but as a matter affecting the admissibility of Qatar’s claims before the Council. To the extent that the Council improperly concluded that Qatar’s claims were admissible, its Decision falls to be set aside.Section 3.Conclusion5.78For the foregoing reasons, the Council should have concluded that it was without jurisdiction due to Qatar’s failure to comply with the precondition 471Ibid., para. 4.90472BEUM, paras 6.32-6.34.473QCM(B), para.4.90.135of
135
of negotiations contained in Article II, Section 2 of the IASTA. In the
alternative, and in any event, it should have concluded that Qatar’s Application
was inadmissible due to the failure of its Memorial to comply with the
requirements of Article 2(g) of the ICAO Rules.
5.79 The ICAO Council’s Decision to reject the Appellants’ Preliminary
Objection in this regard was thus in error, and the Decision thus falls to be set
aside on this basis.
136CHAPTERVICONCLUSION6.1In conclusion, the Court is respectfully requested to uphold the Appellants’ appeal on the basis of one or more of the following grounds:A.FIRST GROUND OF APPEAL6.2Thefirst ground of appeal is addressed in Chapter IIIand concernsthe manifest violations of due process in the proceedings before the ICAO Council and its Decision. Itexplains that the Court should exercise its supervisory authority over theseprocedural deficiencies.Italso sets out why the Appellants have not waived their right to complain to the Court about those defects.The Appellants thus respectfully requestthe Court to set aside the Decision of the Council as a procedural nullityon the basis that the Decision of the ICAO Council on 29June 2018 manifestly violated fundamental rules of due process and the applicable procedural rules in a manner so extreme as to render the proceedings devoid of any judicial character.B.SECOND GROUND OF APPEAL6.3The second ground of appeal is addressed in Chapter IV.It concernsthe characterisation of the real issuein disputeand the ICAO Council’s consequent lack of competence over the dispute between the Parties. Qatarhas now accepted that there is a disputebetween the Parties concerningthe matters reiterated inChapter IIof this Reply.The core subject-matter of that acknowledged dispute concerns Qatar’s failure to comply with its obligations under the Riyadh Agreements and other international law obligations,in response to which, the Appellants adopted a suite of countermeasures that include the aviation restrictions.Chapter IVexplains that, on the proper application of the “real issue” test,Qatar’s claim does not concern “the
137
interpretation or application” of the Chicago Convention and its Annexes, but
instead concerns that other dispute. Indeed, Qatar’s Application should instead
be understood as a pretext to try to get the ICAO Council to adjudicate a much
broader dispute over which it has no jurisdiction. As such, the ICAO Council
lacks jurisdiction of Qatar’s claims, or, in the alternative, Qatar’s claims are
inadmissible, as the aviation claims cannot be severed from the broader dispute.
Moreover, Qatar’s suggestions of various ways in which the Council might
avoid deciding (at least in full) the question of countermeasures should be
rejected by the Court as being unconvincing and unprecedented. That Qatar
resorted to making such suggestions merely reinforces the force of the
Appellants’ preliminary objection. Accordingly, the Court is requested to find
either that:
(a) The ICAO Council is without jurisdiction to adjudicate upon the
dispute between the Parties, which falls outside the ICAO Council’s
jurisdiction ratione materiae under Article II, Section 2 of the IASTA;
or, in the alternative,
(a) Qatar’s claims are inadmissible because it would be improper for the
ICAO Council to exercise jurisdiction in circumstances in which this
would be prejudicial to the rights of the Appellants and contrary to
judicial propriety.
C. THIRD GROUND OF APPEAL
6.4 Finally, the third ground of appeal is addressed in Chapter V, which
sets out why, as a matter of law, without a “genuine attempt” to negotiate first
being made, it is not possible to satisfy the precondition even where the
disputing Party considers that any such attempt would be futile. It further
establishes that Qatar has not satisfied the precondition and thus the Council has
138no jurisdiction, and why,in the alternative, Qatar’s claims are inadmissible as a result ofitsnon-compliance with Article 2(g) of the ICAO Rules. As a result, the Court is requested to determine that:(a)The ICAO Council is without jurisdiction to adjudicate upon the disagreement because Qatar has failed to satisfy a necessary precondition to the ICAO Council’s jurisdiction by not attempting to initiate negotiations in relation to its claims prior to submitting them to the ICAO Council;or,in the alternative,(b)The ICAO Council is not competent to adjudicate upon Qatar’s ICAO Application because Qatar failed to comply with the procedural requirement set out in Article 2(g) of the ICAO Rules of affirming thatnegotiations had taken place but were not successful.D.CONCLUSION6.5In conclusion,the Court is respectfully requested to uphold the Appellants’ appealagainstthe Decision of the ICAO Council and to determine this Decisionto be null and void and without effect.
139
SUBMISSIONS
1. For these reasons, and reserving the right to supplement, amplify or
amend the present submissions, the Kingdom of Bahrain, the Arab Republic of
Egypt and the United Arab Emirates hereby request the Court to uphold their
Appeal against the Decision rendered by the Council of the International Civil
Aviation Organization dated 29 June 2018, in proceedings commenced by
Qatar’s Application (B) dated 30 October 2017 against the three States pursuant
to Article II, Section 2 of the IASTA.
2. In particular, the Court is respectfully requested to adjudge and
declare, rejecting all submissions to the contrary, that:
1) the Decision of the ICAO Council dated 29 June 2018 reflects a
manifest failure to act judicially on the part of the ICAO Council,
and a manifest lack of due process in the procedure adopted by the
ICAO Council; and
2) the ICAO Council is not competent to adjudicate upon the
disagreement between Qatar and the Appellants submitted by
Qatar to the ICAO Council by Qatar’s Application (A) dated
30 October 2017; and
3) the Decision of the ICAO Council dated 29 June 2018 in respect
of Application (A) is null and void and without effect.
140Respectfully submitted on behalf of the Kingdom of Bahrain, the Arab Republic of Egypt, and the United Arab Emirates, respectively.___________________________________H.E. Shaikh Fawaz bin Mohammed Al KhalifaAgent of the Kingdom of Bahrain___________________________________H.E. Amgad Abdel GhaffarAgent of the Arab Republic of Egypt___________________________________H.E. Dr Hissa Abdullah Al OtaibaAgent of the United Arab Emirates141CERTIFICATIONThe
141
CERTIFICATION
The Agents of each Appellant in respect of that State hereby certify that all
annexes are true copies of the documents referred to and that the translations
provided are accurate.
___________________________________
H.E. Shaikh Fawaz bin Mohammed Al Khalifa
Agent of the Kingdom of Bahrain
___________________________________
H.E. Amgad Abdel Ghaffar
Agent of the Arab Republic of Egypt
__________________________________
H.E. Dr Hissa Abdullah Al Otaiba
Agent of the United Arab Emirates
142
143
LIST OF ANNEXES
VOLUME II
International Treaties and Legislation
Annex 1
United States-Union of Soviet Socialist Republics Civil Air Transport Agreement, signed at Washington on 4 November 1966, (1967) 6 International Legal Materials 82
1
Annex 2
Amendment to United States-Union of Soviet Socialist Republics Civil Air Transport Agreement, signed at Moscow on 6 May 1968, (1968) 7 International Legal Materials 571
13
Annex 3
United States-Polish People’s Republic Air Transport Agreement, signed at Warsaw on 19 July 1972, (1972) 23 United States Treaties 4269
17
Annex 4
Comprehensive Anti-Apartheid Act of 1986, (1987)
26 International Legal Materials 77
55
Annex 5
Department of Transportation Termination of Air Carrier Operations between the United States and South Africa,
31 October 1986, (1987) 26 International Legal Materials 104
95
ICAO Correspondence and Documents
Annex 6
ICAO Council – 74th Session, Minutes of the Second Meeting, ICAO document 8956-C/1001, 27 July 1971
103
Annex 7
Settlement of Differences: United States and 15 European States (2000), Note on Procedure: Preliminary Objections (Working Paper Presented by the President of the Council), ICAO document
C-WP/11380, 9 November 2000
139
144
Annex 8
Bahrain and UAE comments on draft Minutes
C-MIN 214.8 Closed circulated by the Secretariat,
2 August 2018
145
United Nations and European Union documents
Annex 9
United Nations, Resolution 569 (1985) adopted by the Security Council at its 2602nd meeting on 26 July 1985
175
Annex 10
Common Position of 29 June 1998 defined by the Council on the basis of Article J.2 of the Treaty on European Union concerning a ban on flights by Yugoslav carriers between the Federal Republic of Yugoslavia and the European Community (98/426/CFSP) [1998] OJ L190/3
179
Annex 11
Council Regulation (EC) No 1901/98 of 7 September 1998 concerning a ban on flights of Yugoslav carriers between the Federal Republic of Yugoslavia and the European Community [1998] OJ L248/1
181
Annex 12
United Nations, Resolution 1718 (2006) adopted by the Security Council at its 5551st meeting on 14 October 2006
185
Annex 13
European Union, Council Decision (CFSP) 2016/849 of 27 May 2016 concerning restrictive measures against the Democratic People’s Republic of Korea and repealing Decision 2013/183/CFSP [2016] OJ L141/79
191
Annex 14
European Union, Council Regulation (EU) 2017/1509 of 30 August 2017 concerning restrictive measures against the Democratic People’s Republic of Korea and repealing Regulation (EC)
No 329/2007 [2017] OJ L224/1
211
145
Press Articles and Television Clips
Annex 15
A. Barnett, “Suicide bombs are a duty, says Islamic scholar”, The Guardian, 28 August 2005
237
Annex 16
Video Excerpt of Yusuf Al-Qaradawi, Al-Jazeera Television, 9 January 2009
241
Annex 17
Video Excerpt of Muhammad Salim Al-Awa, Al-Jazeera Television, 16 September 2010
247
Annex 18
“Hamas political leaders leave Syria for Egypt and Qatar”, BBC News, 28 February 2012
251
Annex 19
D. Sabbagh, “Al-Jazeera’s political independence questioned amid Qatar intervention”, The Guardian, 30 September 2012
255
Annex 20
Video Excerpt of Asim Abdul Majid, Al-Jazeera Television, 25 June 2013
259
Annex 21
M. Mazzetti, C. J. Chivers and E. Schmitt, “Taking Outsize Role in Syria, Qatar Funnels Arms to Rebels”, The New York Times, 29 June 2013
261
Annex 22
“By the Millions, Egyptians Seek Morsi’s Ouster”,
The New York Times, 30 June 2013
265
Annex 23
“Al Jazeera staff resign after ‘biased’ Egypt coverage”, Gulf News, 8 July 2013
271
Annex 24
J. Schanzer, “Confronting Qatar’s Hamas Ties”, Politico, 10 July 2013
273
Annex 25
Video Excerpt of Yusuf Al-Qaradhawi, Al-Jazeera Television, 27 July 2013
277
Annex 26
Video Excerpt of Gamal Nassar, Al-Jazeera Television, 17 August 2013
281
Annex 27
Video Excerpt of Mohamed El-Beltagy, Al-Jazeera Television, 16 August 2014
285
146
Annex 28
“German minister accuses Qatar of funding Islamic State fighters”, Reuters, 20 August 2014
287
Annex 29
T. Ross, R. Mendick and A. Gilligan, “Charity Commission: British charities investigated for terror risks”, The Telegraph, 1 November 2014
291
Annex 30
“Islamic Council for Da’wa and Relief cancels Qaradawi’s Membership”, Egypt Independent, 9 December 2014
297
Annex 31
A. Gennarelli, “Egypt’s Request for Qatar’s Extradition of Sheikh Yusuf Al-Qaradawi”, Center for Security Policy, 27 May 2015
299
Annex 32
“Voting”, Al Jazeera, 28 May 2015
301
Annex 33
“How Qatar Used and Abused Its Al Jazeera Journalists”, The New York Times, 2 June 2015
305
Annex 34
M. Fahmy, “The Price of Aljazeera’s Politics”, The Washington Institute for Near East Policy, 26 June 2015
309
Annex 35
“Abadi: Iraqi government is ‘holding’ Qatari ransom money”, Al Araby, 25 April 2017
313
Annex 36
E. Solomon, “The $1bn hostage deal that enraged Qatar’s Gulf rivals”, The Financial Times, 5 June 2017
317
Annex 37
J. S. Block, “Qatar is a financier of terrorism. Why does the U.S. tolerate it?”, Los Angeles Times, 9 June 2017
323
Annex 38
“Al-Nosra, the Qatari Terrorist Arm in Syria”, Sky News Arabia, 17 June 2017
327
Annex 39
E. Lake, “Al-Jazeera and the Muslim Brotherhood”, Asharq Al-Awsat, 25 June 2017
331
Annex 40
“Egypt: Qatar is the main funder of terrorism in Libya”, Asharq Al-Awsat, 28 June 2017
335
Annex 41
“Egypt: Qaradawi’s Daughter, Son-in-Law Jailed for Financing ‘Brotherhood’”, Asharq Al-Awsat, 4 July 2017
341
147
Annex 42
“New human rights report accuses Qatar of sponsoring terrorism in Libya”, Asharq Al-Awsat, 24 August 2017
345
Annex 43
“Qatar accused of financing Muslim Brotherhood activities in Europe”, The Arab Weekly, 29 October 2017
349
Annex 44
“Egypt attack: IS flags carried by gunmen, say officials”, BBC, 25 November 2017
353
Annex 45
“‘Wanted Terrorist’ finished second in Qatar triathlon”, The Week, 28 March 2018
357
Annex 46
C. Coughlin, “White House calls on Qatar to stop funding pro-Iranian militias”, The Telegraph, 12 May 2018
359
Annex 47
Video Excerpt “Zero Distance”, Al-Jazeera Television, 29 July 2018 and 5 August 2018
363
Annex 48
“Egypt remands dissident cleric’s daughter for 45 days”, BBC Monitoring, 18 March 2019
367
Annex 49
“How Qatar funds Muslim Brotherhood expansion in Europe”, Gulf News,17 April 2019
371
Annex 50
E. Chorin, “Libya’s Perpetual Chaos”, Foreign Affairs, 19 April 2019
375
Writings of Publicists
Annex 51
C. Rousseau, “Mesures prises par les Puissances occidentales à l’égard de la Pologne et de l’U.R.S.S. à la suite de l’établissement de l’état de guerre en Pologne le 13 décembre 1981”, (1982) 86 Revue Générale de Droit International Public 603
383
Annex 52
E. Malamut, “Aviation Suspension of Landing Rights of Polish Airlines in the United States”, (1983)
24 Harvard International Law Journal 190
395
148
Other documents
Annex 53
“Findings of Fact-finding Report Issued by the Independent National Commission on Events Concurrent with June 30th, 2013”, 11 March 2014
405
Annex 54
Interpol Red Notice for Yousf Al Qaradawi,
20 November 2014 (Redacted)
597
Annex 55
Public Prosecution, Office of the Attorney General of Egypt, “Request to Reconsider The Decision of the Commission for the Control of INTERPOL’s Files (CCF) issued on the 17th of October 2018, in Session No. 106, according to provisions of Article 42 of the statute of the Commission regarding the Egyptian sentenced: Yusuf Al-Qaradawi under extradition No. 22 of 2014 (International Cooperation Bureau)”, 9 March 2019
601