Sandeepa Bhat B.* & Tushar Krishna**
Keywords: Consultation – Countermeasures – Formalistic approach – Negotiation – Riyadh Agreements
In 2013 and 2014, the Gulf Cooperation Council had undertaken specific instruments, known as “Riyadh Agreements”, under which Qatar and other middle eastern States have made commitments to establish peace. During June 2017, Saudi Arabia, Bahrain, United Arab Emirates (UAE) and Egypt alleged that Qatar has failed to adhere to its commitments under Riyadh Agreements, and thereby, they resorted to take certain countermeasures to make Qatar comply with its commitments. These countermeasures included airspace restrictions for the Qatar registered aircrafts, which triggered Qatar filing an application before the ICAO Council under Article 84 of the Chicago Convention 1944. While the ICAO Council assumed jurisdiction and decided the case in June 2018, Saudi Arabia, Bahrain, UAE and Egypt (herein after “the appellants”) appealed against this decision to the International Court of Justice (ICJ). The appellants contended the lack of jurisdiction of the ICAO Council as well as inadmissibility of Qatar’s claims. However, the ICJ rejected the appeal and held that ICAO Council’s exercise of jurisdiction was valid, and Qatar’s application to the ICAO Council was admissible. This decision of the ICJ has brought forward two prominent issues in the ICAO dispute settlement mechanism, which are addressed hereunder.
Scope of Jurisdiction of the ICAO Council
One of the primary grounds of appeal in this case has been on the ICAO Council’s exercise of jurisdiction, which according to the appellants was beyond the scope of its authorization. Text of Article 84 clearly states that “If any disagreement between two or more contracting States relating to the interpretation or application of this Convention and its Annexes cannot be settled by negotiation, it shall, on the application of any State concerned in the disagreement, be decided by the Council.” Since the “countermeasures” taken by the appellants in this case against Qatar for the violation of Riyadh Agreements are under the broader domain of public international law, it is not a subject matter under the Chicago Convention, and therefore, the ICAO Council is argued to have no jurisdiction in this case. Thus, the question is how the ICAO council can decide the lawfulness of the countermeasures, as it is not competent to assess it holistically?
The ICJ has observed that “the prospect that a respondent would raise a defence based on countermeasures in a proceeding on the merit […] does not in and of itself have any effect on […] jurisdiction”. The Court referred to its finding in India v. Pakistan Case. However, Berman J. in his separate opinion mentions the need to understand the limits of ICAO Council’s jurisdiction and states that “the invocation of a broader legal defence cannot expand the Council’s competence”. The majority opinion denied such a finding and went by the argument that for reaching a proper decision on the disputes falling within its jurisdiction, the ICAO Council is entitled to examine certain issues falling outside the matter of civil aviation. Thus, the ICJ held that the integrity of the ICAO Council’s dispute settlement functions would not be lost simply because it examined the issues outside the scope of Chicago Convention for discharging its essential obligations under the Chicago Convention. Although it may appear that this is a rare instance where the Court has so clearly asserted the expansive approach of the adjudicatory body’s ratione materiae, it is nothing but the Court’s conformity with the recent jurisprudence it has raised. For example, in Nuclear Test Case, the Court observed that “an adjudicative body can make necessary findings to ensure its exercise of jurisdiction over the merits of the case”.
This debate on the limits of jurisdiction is not just found at the ICAO Council’s level but also at different other international adjudicatory bodies’ level. The WTO dispute settlement mechanism is one of the classic examples in this regard, wherein the questions have arisen as to whether the WTO Dispute Settlement Body (DSB) is having jurisdiction only with respect to covered agreements or can the DSB deal with public international law or domestic law issues whenever they are closely connected with the international trade law issues. In the Mexico Soft Drinks case, the Appellant Body observed that it is not on the WTO panels to decide on the non-WTO disputes, and thus, it cannot adjudicate an internationally wrongful act in the context of defence of countermeasures. However, as a general rule the WTO jurisprudence has tilted in favour of exercising the jurisdiction in environmental issues, public health aspects, personal laws etc while deciding the trade disputes. Though the WTO DSB has gone in favour of more inclusive jurisdiction, it has resulted in a serious crisis. This expansive approach is said to be one of the primary reasons for the United States blocking the appointments to the Appellate Body, and thereby, paralyzing a vibrant dispute settlement mechanism. Thus, the larger question here is whether such an expansive approach would put the principle of consent (of parties to the treaties) into a threat as it provides a back door entry for those issues that were either not negotiated or not agreed upon.
Negotiation under Article 84
The second major issue is relating to the precondition of negotiation before referring the dispute to the ICAO Council under Article 84 of the Chicago Convention. This precondition is supplemented by Article 2(g) of the ICAO Rules for the Settlement of Differences (ICAO Rules), which states that a party submitting a dispute to the ICAO Council must attach a memorial containing “a statement that negotiations to settle the disagreement had taken place between the parties but were not successful.” However, Qatar didn’t put forward a formal request for ‘negotiation’ to any of the appellants under Article 84, rather there were some general attempts made either by means of Qatar referring the disputes to third States and also seeking for consultation under the WTO regime or by virtue of the ICAO Council trying to allow negotiation between the parties after the dispute was referred to it. Moreover, Qatar also failed to comply with Article 2(g) of the ICAO Rules by not including the requisite statement in the memorial. Hence, the appellants argued that Qatar’s case was inadmissible.
Interestingly, the efforts made by Qatar, though not formal under Article 84, were held by both the ICAO Council and the ICJ to be sufficient to meet the requirement of negotiation in the context of circumstances involving appellants’ unwillingness to negotiate. Though the ICJ reiterated that Article 84 applies with regard to “only those disputes which cannot be settled through negotiation” and this precondition “must be satisfied to establish court’s jurisdiction”, it went by the lower threshold for satisfying this precondition. A genuine attempt for negotiation by the disputing party is said to be sufficient, and failure of negotiation is supposed to be understood as a lower threshold of “theoretical impossibility’ rather than a higher threshold of “no reasonable probability of further negotiation leading to a settlement”. On the issue of failure to comply with the requirement of Article 2(g) of the ICAO Rules, the ICJ referred to the part of Qatar’s application and memorial mentioning “A statement of attempted negotiations”, wherein Qatar blamed that the appellants did not permit any opportunity to negotiate on aviation restrictions. This statement along with the confirmation of the Secretary General that Qatar’s application complied in form with the requirements under Article 2 of the ICAO Rules was found to be sufficient by the ICJ in ruling in favour of Qatar.
This leads us to the question- when a treaty is specifically asking for negotiation as a specific mechanism, isn’t it imperative on the States to invoke it formally to arrive at an amicable settlement? Again when we draw parallel from the WTO dispute settlement, we can find that Article 4 of the Dispute Settlement Understanding (DSU) specifies the mandatory requirement of consultation between the disputing parties before invoking the jurisdiction of the WTO panels. This mandate has been for ensuring that the parties would get sufficient opportunity to discuss their concerns and reach a mutually acceptable solution. This mandate under Article 4 of the DSU is rigid, formal and indispensable, and it cannot be satisfied in an indirect way as Qatar is said to have complied with in the present case. Hence, the essence of such consultation under the DSU is that a party having any concern must notify the other party/ies concerned formally for consultation under Article 4 of the DSU by stipulating the specific provision/s involved under the WTO Agreements. Due to such a formalistic approach, several trade disputes end at this consultation stage itself as the parties understand the concerns expressed by each other through consultation. This shows the effectiveness of the consultation process, if followed under a formalistic approach.
Similar to the process of consultation, negotiation gives scope for parties to remove any misunderstanding by way of clarifying their concerns. Indeed, the ICJ in the present case had accepted the references to negotiation by Qatar, which were in bits and pieces without any one formalistic reference of negotiation under Article 84. This leads to the question that if the Court is accepting such a lower threshold for satisfying the precondition of negotiation, isn’t it impacting the purpose behind such a precondition? It appears that such a lower threshold of compliance would ignite distrust among the parties in the absence of direct communications, and thereby, fail to bring an understanding of the situation that the parties are undergoing. Hence, a more formalistic approach to negotiation, especially with its increased significance as an alternative dispute settlement mechanism, is required under Article 84 of the Chicago Convention to ensure amicable settlement of disputes.
* Professor of Law & Director – Centre for Aviation and Space Laws, The WB National University of Juridical Sciences, Sec. III, Salt Lake City, Kolkata.
** Member – Centre for Aviation and Space Laws, The WB National University of Juridical Sciences, Sec. III, Salt Lake City, Kolkata.