ICJ Rules In Qatar’s Favor, Affirming ICAO Authority To Decide Over Gulf Airspace Blockade

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Qatar had a big win yesterday as the International Court of Justice (ICJ) in Den Haag decided that the ICAO in fact has jurisdiction to preside over the matter and it’s likely to decide in Qatar’s favor as well.

The various Gulf states that have implemented the blockade against Qatar more than three years ago have since then made it very difficult for Qatar Airways to operate in the gulf region, restricting their airspace which according to ICAO provisions is not permitted.

While the group of gulf countries (Bahrain, Egypt, Saudi Arabia and the UAE) have the right to block their borders and to deny Qatar registered aircraft landing rights they are contradicting ICAO statutes that give aircraft the right to facilitate all airspace irrespective of the diplomatic relations.

This decision won’t resolve the dispute just yet (if ever) because all it does is give jurisdiction to the ICAO to hear and decide the case on Qatar’s behalf which is likely to take at least another year or so.

You can access the collective files of Case 173 here as well as the official press release of the ICJ here:

Download (PDF, 134KB)

Key parts here are:

In its Judgment, which is final, without appeal and binding on the Parties, the Court

(1) rejects, unanimously, the appeal brought by the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates on 4 July 2018 from the Decision of the Council of the International Civil Aviation Organization, dated 29 June 2018;

(2) holds, by fifteen votes to one, that the Council of the International Civil Aviation Organization has jurisdiction to entertain the application submitted to it by the Government of the State of Qatar on 30 October 2017 and that the said application is admissible.

By a joint Application filed in the Registry of the Court on 4 July 2018, the Governments of Bahrain, Egypt, Saudi Arabia and the United Arab Emirates instituted an appeal against a Decision rendered by the ICAO Council on 29 June 2018 in proceedings brought before the Council by Qatar on 30 October 2017, pursuant to Article84 of the Convention on International Civil Aviation (the “Chicago Convention”). Those proceedings were initiated following the severance by the Governments of Bahrain, Egypt, Saudi Arabia and the United Arab Emirates of diplomatic relations with Qatar and the adoption, on 5 June 2017, of restrictive measures relating to terrestrial, maritime and aerial lines of communication with that State, which included certain aviation restrictions.

It took the ICJ two full years to decide this case of jurisdiction following the appeal of the blockade group.

Here is the entire judgment:

Download (PDF, 550KB)

The backstory here as outlined already in the press release is that it’s Qatar’s position that the states in question violate their

On 30 October 2017, pursuant to Article 84 of the Chicago Convention, Qatar filed a new application and memorial with the ICAO Council, in which it claimed that the aviation restrictions adopted by Bahrain, Egypt, Saudi Arabia and the United Arab Emirates violated their obligations under the Chicago Convention. Article 84 of the Chicago Convention reads as follows:

“Settlement of Disputes

If any disagreement between two or more contracting States relating to the interpretation or application of this Convention and its Annexes cannot be settled by negotiation, it shall, on the application of any State concerned in the disagreement, be decided by the Council. No member of the Council shall vote in the consideration by the Council of any dispute to which it is a party. Any contracting State may, subject to Article 85, appeal from the decision of the Council to an ad hoc arbitral tribunal agreed upon with the other parties to the dispute or to the Permanent Court of International Justice. Any such appeal shall be notified to the Council within sixty days of receipt of notification of the decision of the Council.”

The ICJ has decided similar cases before, in particular:

  • Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 14, para. 34
  • Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 53, para. 15, and p. 60, para. 25

From the judgment:

… The competence of ICAO unquestionably extends to questions of overflight of the territory of contracting States, a matter that is addressed in both the Chicago Convention and the IASTA. The overtures that Qatar made within the framework of ICAO related directly to the subject-matter of the disagreement that later was the subject of its application to the ICAO Council under Article 84 of the Chicago Convention. The Court concludes that Qatar made a genuine attempt within ICAO to settle by negotiation its disagreement with the Appellants regarding the interpretation and application of the Chicago Convention. …

This ICJ ruling isn’t really a blockbuster case as it’s merely a procedural situation related to subject- matter jurisdiction of the ICAO to decide over this case.

The blockade group disputed ICAO’s jurisdiction over the matter, the ICJ decided to throw their appeal out. A very straight forward procedure and decision that happens daily in countless courts all over the world.

Qatar Airways has also issued a press release this afternoon:

Qatar Airways welcomes the Judgment of the International Court of Justice affirming that the ICAO Council has the jurisdiction to hear any disagreement relating to the interpretation and implementation of the Chicago Convention 1944 and the International Air Services Transit Agreement.

We look forward to observing the return of the State of Qatar to Montreal to urge the ICAO Council to condemn the illegal airspace blockade of it and take appropriate actions to require the four blockading States to comply with their obligations under international law in order to restore the normalcy of international civil aviation.

In line with the ruling of the ICJ and the legal precedent allowing the State of Qatar to continue its case at ICAO against the blockading States, Qatar Airways will pursue its case for appropriate compensation of the financial injuries inflicted on Qatar Airways as a result of the illegal airspace blockade.

The arbitrary and abusive measures that these four States have taken against us have devastated our carefully planned decades-long programme for investment and growth in those countries; they have arbitrarily prevented us from serving hundreds of thousands of passengers, and transporting tens of thousands of tons of cargo to and from each of these countries annually.

At Qatar Airways, we firmly believe that travel is a right for all and that this world is all of ours to explore.  Qatar Airways will pursue all available legal remedies to secure full compensation to protect our rights and the rights of our customers.

Qatar might ultimately prevail in court but that means in no way an end to their problems as there is pretty much no enforcement mechanism for this judgment.

The significance for the case and Qatar itself is still important though as it paves the way for the ICAO to go ahead with it’s own proceedings and final decision.

Conclusion

It’s expected that the ICAO will decide this case in Qatar’s favor which is one of the reasons why the blockade group has filed the appeal and put so many resources into it. And they were successful in slowing down the entire process given that the appeal alone took two years to be thrown out. Two years during which Qatar wasn’t able to gain any footing in the matter.

The real question is what happens when the case is ultimately decided? A judgment is all nice and well but should the states in question decide to ignore it and continue to dispute Qatar’s rights to use their airspace there is little to no enforcement power. And Qatar Airways is in the business of transporting passengers so they certainly won’t be flying over disputed airspace, be it for safety and insurance provisions alone.

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