Present: President Yusuf; Vice‑President Xue; Judges Tomka, Abraham, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judges ad hoc Berman, Daudet; Registrar Gautier.

In the case concerning the appeal relating to the jurisdiction of the Council of the International Civil Aviation Organization under Article 84 of the Convention on International Civil Aviation,

between

the Kingdom of Bahrain,

represented by

H.E. Sheikh Fawaz bin Mohammed Al Khalifa, Ambassador of the Kingdom of Bahrain to the United Kingdom of Great Britain and Northern Ireland, accredited to the Kingdom of the Netherlands,

as Agent;

Mr. Georgios Petrochilos, avocat au barreau de Paris and Advocate at the Greek Supreme Court, Three Crowns LLP,

Ms Alexandra van der Meulen, avocate au barreau de Paris and member of the Bar of the State of New York, Three Crowns LLP,

as Advocates;

Ms Amelia Keene, Barrister and Solicitor of the High Court of New Zealand, Three Crowns LLP,

Mr. Motohiro Maeda, Solicitor of the Senior Courts of England and Wales, Three Crowns LLP,

Mr. Ryan Manton, Barrister and Solicitor of the High Court of New Zealand, Three Crowns LLP,

Ms Julia Sherman, member of the Bar of the State of New York, Three Crowns LLP,

as Counsel;

Mr. Mohamed Abdulrahman Al Haidan, Director of Legal Affairs, Ministry of Foreign Affairs of the Kingdom of Bahrain,

Mr. Hamad Waheed Sayyar, Counsellor, Embassy of the Kingdom of Bahrain in the United Kingdom of Great Britain and Northern Ireland,

Mr. Devashish Krishan, Legal Adviser, Court of H.R.H. the Crown Prince of the Kingdom of Bahrain,

Mr. Mohamed Hafedh Ali Seif, Third Secretary, Legal Affairs Directorate, Ministry of Foreign Affairs of the Kingdom of Bahrain,

as Advisers;

Ms Eleonore Gleitz, Three Crowns LLP,

as Assistant,

the Arab Republic of Egypt,

represented by

H.E. Mr. Amgad Abdel Ghaffar, Ambassador of the Arab Republic of Egypt to the Kingdom of the Netherlands,

as Agent;

Mr. Payam Akhavan, LLM, SJD (Harvard), Professor of International Law, McGill University, member of the Bar of the State of New York and of the Law Society of Ontario, member of the Permanent Court of Arbitration,

Ms Naomi Hart, Essex Court Chambers, member of the Bar of England and Wales,

as Counsel and Advocates;

H.E. Ms Howaida Essam Abdel Rahman, Assistant Minister for Foreign Affairs for International Legal Affairs and Treaties of the Arab Republic of Egypt,

Ms Angi Mostafa, Permanent Representative of the Arab Republic of Egypt to the International Civil Aviation Organization,

H.E. Mr. Khaled Mahmoud Elkhamry, Ambassador, Ministry of Foreign Affairs of the Arab Republic of Egypt,

Mr. Ihab Soliman, Counsellor, Deputy Chief of Mission, Embassy of the Arab Republic of Egypt in the Kingdom of the Netherlands,

Mr. Hazem Fawzy, Counsellor, Embassy of the Arab Republic of Egypt in the Kingdom of the Netherlands,

Ms Hadeer Samy Ibrahim Elsayed Saoudy, Third Secretary, Ministry of Foreign Affairs of the Arab Republic of Egypt,

Mr. Mostafa Diaa Eldin Mohamed, Third Secretary, Embassy of the Arab Republic of Egypt in the Kingdom of the Netherlands,

as Advisers,

the Kingdom of Saudi Arabia,

represented by

H.E. Mr. Abdulaziz bin Abdullah bin Abdulaziz Abohaimed, Ambassador of the Kingdom of Saudi Arabia to the Kingdom of the Netherlands,

as Agent;

Mr. Nasser Awad Alghanoom, Counsellor, Embassy of the Kingdom of Saudi Arabia in the Kingdom of the Netherlands,

Mr. Mohammed Saud Alnasser, General Authority of Civil Aviation of the Kingdom of Saudi Arabia,

as Advisers;

Mr. Gavan Griffith, QC, Barrister, Lincoln’s Inn, member of the Bars of England and Wales and of Australia,

as Counsel,

the United Arab Emirates,

represented by

H.E. Ms Hissa Abdullah Ahmed Al-Otaiba, Ambassador of the United Arab Emirates to the Kingdom of the Netherlands,

as Agent;

H.E. Mr. Abdalla Hamdan Alnaqbi, Director of International Law Department, Ministry of Foreign Affairs and International Cooperation of the United Arab Emirates,

Mr. Abdulla Al Jasmi, Head of the Multilateral Treaties and Agreements Section, Ministry of Foreign Affairs and International Cooperation of the United Arab Emirates,

Ms Majd Abdalla, Senior Legal Researcher, Multilateral Treaties and Agreements Section, Ministry of Foreign Affairs and International Cooperation of the United Arab Emirates,

Mr. Mohamed Salim Ali Alowais, Embassy of the United Arab Emirates in the Kingdom of the Netherlands,

Ms Fatima Alkhateeb, Ministry of Foreign Affairs and International Cooperation of the United Arab Emirates,

as Special Advisers;

Mr. Malcolm Shaw, QC, Emeritus Sir Robert Jennings Professor of International Law at the University of Leicester, Senior Fellow, Lauterpacht Cen-tre for International Law, University of Cambridge, associate member of the Institut de droit international, Barrister, Essex Court Chambers,

Mr. Simon Olleson, Three Stone Chambers, Lincoln’s Inn, member of the Bar of England and Wales,

as Counsel and Advocates;

Mr. Scott Sheeran, Senior Legal Adviser to the Minister of State for Foreign Affairs, Ministry of Foreign Affairs and International Cooperation of the United Arab Emirates, Barrister and Solicitor of the High Court of New Zealand,

Mr. Paolo Busco, Legal Adviser to the Minister of State for Foreign Affairs, Ministry of Foreign Affairs and International Cooperation of the United Arab Emirates, member of the Italian Bar, registered European lawyer with the Bar of England and Wales,

Mr. Mark Somos, Senior Research Affiliate, Max Planck Institute for Comparative Public Law and International Law,

Mr. Charles L. O. Buderi, Partner, Curtis, Mallet‑Prevost, Colt & Mosle LLP, member of the Bars of the District of Columbia and the State of California,

Ms Luciana T. Ricart, LLM, New York University School of Law, Counsel, Curtis, Mallet‑Prevost, Colt & Mosle LLP, member of the Buenos Aires Bar Association,

Ms Lillie Ashworth, LLM, University of Cambridge, Associate, Curtis, Mallet‑Prevost, Colt & Mosle LLP, Solicitor of the Senior Courts of England and Wales,

as Counsel,

and

the State of Qatar,

represented by

Mr. Mohammed Abdulaziz Al‑Khulaifi, Legal Counsel to the Deputy Prime Minister and Minister for Foreign Affairs of the State of Qatar, Dean of the College of Law, Qatar University,

as Agent;

Mr. Vaughan Lowe, QC, Emeritus Professor of International Law, University of Oxford, member of the Institut de droit international, Essex Court Chambers, member of the Bar of England and Wales,

Mr. Pierre Klein, Professor of International Law, Université libre de Bruxelles,

Ms Loretta Malintoppi, 39 Essex Chambers Singapore, member of the Bar of Rome,

Mr. Lawrence H. Martin, Foley Hoag LLP, member of the Bars of the District of Columbia and Massachusetts,

Mr. Constantinos Salonidis, Foley Hoag LLP, member of the Bars of the State of New York and of Greece,

Mr. Pierre d’Argent, Professor of International Law, Université catholique de Louvain, member of the Institut de droit international, Foley Hoag LLP, member of the Bar of Brussels,

as Counsel and Advocates;

H.E. Mr. Abdullah bin Hussein Al‑Jaber, Ambassador of the State of Qatar to the Kingdom of the Netherlands,

H.E. Mr. Abdulla bin Nasser Turki Al‑Subaey, President of the Civil Aviation Authority of the State of Qatar,

Mr. Ahmad Al‑Mana, Ministry of Foreign Affairs of the State of Qatar,

Mr. Jassim Al‑Kuwari, Ministry of Foreign Affairs of the State of Qatar,

Mr. Nasser Al‑Hamad, Ministry of Foreign Affairs of the State of Qatar,

Ms Hissa Al‑Dosari, Ministry of Foreign Affairs of the State of Qatar,

Mr. Ali Al‑Hababi, Embassy of the State of Qatar in the Kingdom of the Netherlands,

Mr. Essa Al‑Malki, Permanent Representative, Permanent Mission of the State of Qatar to the International Civil Aviation Organization,

Mr. John Augustin, Adviser, Permanent Mission of the State of Qatar to the International Civil Aviation Organization,

Mr. Salah Al‑Shibani, Director of Legal Affairs Department, Civil Aviation Authority of the State of Qatar,

Mr. Nasser Al‑Suwaidi, Director of International Cooperation Department, Civil Aviation Authority of the State of Qatar,

Mr. Talal Abdulla Al‑Malki, Director of Public Relations and Communication Department, Civil Aviation Authority of the State of Qatar,

Mr. Rashed Al‑Naemi, Embassy of the State of Qatar in the Kingdom of the Netherlands,

Mr. Abdulla Nasser Al‑Asiri, Ministry of Foreign Affairs of the State of Qatar,

Ms Noora Ahmad Al‑Saai, Ministry of Foreign Affairs of the State of Qatar,

Ms Dana Ahmad Ahan, Ministry of Foreign Affairs of the State of Qatar,

as Advisers;

Mr. Pemmaraju Sreenivasa Rao, Special Adviser in the Office of the Attorney General, State of Qatar, former member of the International Law Commission, member of the Institut de droit international,

Mr. Surya Subedi, QC (Hon.), Professor of International Law, University of Leeds, member of the Institut de droit international, Three Stone Chambers, member of the Bar of England and Wales,

Ms Catherine Amirfar, Debevoise & Plimpton LLP, member of the Bar of the State of New York,

Mr. Arsalan Suleman, Foley Hoag LLP, member of the Bars of the State of New York and the District of Columbia,

Mr. Joseph Klingler, Foley Hoag LLP, member of the Bars of the State of New York and the District of Columbia,

Mr. Ioannis Konstantinidis, Assistant Professor of International Law, College of Law, Qatar University,

Mr. Ofilio Mayorga, Foley Hoag LLP, member of the Bars of the State of New York and Nicaragua,

Mr. Peter Tzeng, Foley Hoag LLP, member of the Bar of the State of New York,

Ms Floriane Lavaud, Debevoise & Plimpton LLP, member of the Bars of the State of New York and Paris, Solicitor of the Senior Courts of England and Wales,

Mr. Ali Abusedra, Legal Counsel, Ministry of Foreign Affairs of the State of Qatar,

Ms Yasmin Al-Ameen, Foley Hoag LLP,

as Counsel;

Ms Flannery Sockwell, Foley Hoag LLP,

Ms Nancy Lopez, Foley Hoag LLP,

Ms Deborah Langley, Foley Hoag LLP,

as Assistants,

The Court,

composed as above,

after deliberation,

delivers the following Judgment:

1.  By a joint Application filed in the Registry of the Court on 4 July 2018, the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates instituted an appeal from a Decision rendered by the Council of the International Civil Aviation Organization (ICAO) (hereinafter the “ICAO Council” or the “Council”) on 29 June 2018 in proceedings commenced by the State of Qatar against these States on 30 October 2017 (hereinafter the “Decision”), pursuant to Article 84 of the Convention on International Civil Aviation, adopted at Chicago on 7 December 1944 (hereinafter the “Chicago Convention” or the “Convention”). In this Decision, the ICAO Council rejected the preliminary objections raised by Bahrain, Egypt, Saudi Arabia and the United Arab Emirates that it lacked jurisdiction “to resolve the claims raised” by Qatar in its application and that these claims were inadmissible.

2.  On the same day, the Kingdom of Bahrain, the Arab Republic of Egypt and the United Arab Emirates filed another joint Application in respect of a different decision of the ICAO Council, also dated 29 June 2018, in separate proceedings brought by the State of Qatar on 30 October 2017 against those three States, pursuant to Article II, Section 2, of the International Air Services Transit Agreement, adopted at Chicago on 7 December 1944 (hereinafter the “IASTA”), the Kingdom of Saudi Arabia not being a party to that instrument (see 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), Judgment, I.C.J. Reports 2020, pp. 179 and 186, paras. 1 and 26).

3.  In their Application in the present case, the Applicant States seek to found the jurisdiction of the Court on Article 84 of the Chicago Convention, in conjunction with Articles 36, paragraph 1, and 37 of the Statute of the Court.

4.  In accordance with Article 40, paragraph 2, of the Statute of the Court, the Registrar immediately communicated a signed copy of the Application to the Government of Qatar. He also notified the Secretary‑General of the United Nations of the filing of the Application.

In addition, by a letter dated 25 July 2018, the Registrar informed all Member States of the United Nations of the filing of the above‑mentioned Application.

5.  Pursuant to Article 40, paragraph 3, of the Statute of the Court, the Registrar notified the Member States of the United Nations, through the Secretary-General, of the filing of the Application, by transmission of the printed bilingual text of that document.

6.  In conformity with Article 43, paragraph 1, of the Rules of Court, the Registrar addressed to States parties to the Chicago Convention the notification provided for in Article 63, paragraph 1, of the Statute. In addition, in accordance with Article 69, paragraph 3, of the Rules of Court, the Registrar addressed to the ICAO, through its Secretary-General, the notification provided for in Article 34, paragraph 3, of the Statute.

7.  Since the Court included upon the Bench no judge of the nationality of the Parties, the Applicant States and Qatar proceeded to exercise the right conferred upon them by Article 31 of the Statute to choose a judge ad hoc to sit in the case. The Applicant States first jointly chose Mr. Nabil Elaraby, who resigned on 10 September 2019, and, subsequently, Sir Franklin Berman. The Respondent chose Mr. Yves Daudet.

8.  By a letter dated 16 July 2018, the Agent of Qatar requested, on behalf of his Government, that the Court join, pursuant to the first sentence of Article 47 of the Rules of Court, the proceedings in the cases concerning the Appeal relat‑ ing to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar) and the Appeal relating to the Jurisdiction of the ICAO Coun‑ cil under Article II, Section 2, of the 1944 International Air Services Transit Agreement (Bahrain, Egypt and United Arab Emirates v. Qatar). In his letter, the Agent further stated that, should the Court decide not to join the proceedings in the two cases, his Government requested it to direct common action in respect of the written and oral proceedings, pursuant to the second sentence of Article 47 of the Rules of Court.

9.  By a letter dated 23 July 2018, the Agent of Saudi Arabia indicated that his Government considered that the joinder of the proceedings in the two cases would not be appropriate, as Saudi Arabia was not a party to the IASTA. The Agent, however, stated that his Government had no objection were the Court to direct common action in respect of the written and oral proceedings.

10.  On 23 July 2018, the President of the Court held meetings with the Agents of the Applicant States and Qatar, pursuant to Article 31 of the Rules of Court, in respect of each case. In the course of these meetings, Qatar reiterated its request that the proceedings in the two cases be joined and, failing this, that the Court direct common action in respect of the written and oral proceedings. For their part, the Applicant States in each case opposed the joinder of the two proceedings. They expressed the view, however, that they would be in favour of the Court directing common action under Article 47 of the Rules of Court with regard to both cases.

11.  By letters dated 25 July 2018, the Registrar informed the Applicant States and Qatar that, having taken into account their views, the Court had decided not to direct the joinder of the proceedings in the two cases, pursuant to the first sentence of Article 47 of the Rules of Court. He further indicated that the Court, however, considered it appropriate to direct common action, pursuant to the second sentence of that Article, in respect of the said cases, and that the Court would decide in due course on the modalities for such a common action.

12.  By an Order dated 25 July 2018, the President of the Court fixed 27 December 2018 and 27 May 2019 as the respective time‑limits for the filing of a Memorial by the Applicant States and a Counter‑Memorial by Qatar. The Memorial and the Counter‑Memorial were filed on 27 December 2018 and 25 February 2019, respectively.

13.  By an Order dated 27 March 2019, the Court directed the submission of a Reply by the Applicant States and a Rejoinder by Qatar, and fixed 27 May 2019 and 29 July 2019 as the respective time‑limits for the filing of those pleadings. The Reply and Rejoinder were filed within the time‑limits thus prescribed.

14.  By a letter dated 5 April 2019, the Registrar, acting pursuant to Article 69, paragraph 3, of the Rules of Court, transmitted to the Secretary-General of ICAO copies of the written proceedings filed up to that point in the case, namely the Memorial of the Applicant States and the Counter‑Memorial of Qatar, and asked whether the Organization intended to present observations in writing under that provision. By a letter dated 31 July 2019, the Secretary-General of ICAO stated that the Organization did not intend to submit observations in writing at that stage. She indicated, however, that ICAO would advise the Court if it intended to present observations in writing upon receipt of copies of the Reply and the Rejoinder. The said pleadings were communicated to the ICAO under cover of a letter dated 1 August 2019. By a letter dated 20 September 2019, the Secretary-General stated that the Organization did not intend to submit observations in writing under the above‑mentioned provision.

15.  Pursuant to Article 53, paragraph 2, of its Rules, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and documents annexed would be made accessible to the public on the opening of the oral proceedings.

16.  By a letter dated 28 March 2019, the Registrar informed the Parties that the Court had decided to organize combined hearings in the cases concerning the Appeal relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar) and the 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). These combined hearings were held from 2 to 6 December 2019, at which the Court heard the oral arguments and replies of:

• For the Applicant States: H.E. Sheikh Fawaz bin Mohammed Al Khalifa,

• H.E. Mr. Amgad Abdel Ghaffar,

• H.E. Ms Hissa Abdullah Ahmed Al-Otaiba,

• H.E. Mr. Abdulaziz bin Abdullah

• bin Abdulaziz Abohaimed,

• Mr. Payam Akhavan,

• Ms Alexandra van der Meulen,

• Mr. Malcolm Shaw,

• Mr. Georgios Petrochilos,

• Mr. Simon Olleson.

• For Qatar: Mr. Mohammed Abdulaziz Al-Khulaifi,

• Mr. Vaughan Lowe,

• Mr. Pierre Klein,

• Mr. Lawrence Martin,

• Ms Loretta Malintoppi.

17.  In the Application, the following claims were presented by the Applicant States:

“For the above-stated reasons, may it please the Court, rejecting all submissions to the contrary, to adjudge and declare:

1. (1)  That 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. (2)  That the ICAO Council is not competent to adjudicate upon the disagreement between the State of Qatar and the Applicants submitted by Qatar to the ICAO Council by Qatar’s Application (A) dated 30 October 2017; and

3. (3)  That the Decision of the ICAO Council dated 29 June 2018 in respect of Application (A) is null and void and without effect.”

18.  In the written proceedings, the following submissions were presented by the Parties:

On behalf of the Governments of the Applicant States,

in the Memorial:

1. “1.  For the reasons set out in this Memorial, and reserving the right to supplement, amplify or amend the present submissions, the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia 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 the State of Qatar by Qatar’s Application (A) dated 30 October 2017 against the four States pursuant to Article 84 of the Chicago Convention.

2. 2.  In particular, the Court is respectfully requested to adjudge and declare, rejecting all submissions to the contrary, that:

   1. (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. (2)  the ICAO Council is not competent to adjudicate upon the disagreement between the State of Qatar and the Appellants submitted by Qatar to the ICAO Council by Qatar’s Application (A) dated 30 October 2017; and

   3. (3)  the Decision of the ICAO Council dated 29 June 2018 in respect of Application (A) is null and void and without effect.”

in the Reply:

1. “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, the Kingdom of Saudi Arabia 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 (A) dated 30 October 2017 against the four States pursuant to Article 84 of the Chicago Convention.

2. 2.  In particular, the Court is respectfully requested to adjudge and declare, rejecting all submissions to the contrary, that:

   1. (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. (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. (3)  the Decision of the ICAO Council dated 29 June 2018 in respect of Application (A) is null and void and without effect.”

On behalf of the Government of Qatar,

in the Counter-Memorial:

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

in the Rejoinder:

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

19.  At the oral proceedings, the following submissions were presented by the Parties:

On behalf of the Governments of the Applicant States,

at the hearing of 5 December 2019:

1. “1.  In accordance with Article 60, paragraph 2, of the Rules of the Court, and for the reasons set out during the written and oral phase of the pleadings, the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia 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 (A) dated 30 October 2017 against the four States pursuant to Article 84 of the Chicago Convention.

2. 2.  In particular, the Court is respectfully requested to adjudge and declare, rejecting all submissions to the contrary, that:

   1. (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. (2)  the ICAO Council is not competent to adjudicate upon the disagreement between the State of Qatar and the Appellants submitted by Qatar to the ICAO Council by Qatar’s Application (A) dated 30 October 2017; and

   3. (3)  the Decision of the ICAO Council dated 29 June 2018 in respect of Application (A) is null and void and without effect.”

On behalf of the Government of Qatar,

at the hearing of 6 December 2019:

“In accordance with Article 60 of the Rules of Court, for the reasons duly submitted, Qatar respectfully requests the Court to reject Joint Appellants’ appeals and affirm the ICAO Council’s Decisions of 29 June 2018 dismissing Joint Appellants’ preliminary objection to the Council’s jurisdiction and competence to adjudicate Qatar’s claims before the Council.”

20.  In the following paragraphs, the Applicant States, namely the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates, will collectively be referred to as the “Appellants”. In describing proceedings before the ICAO Council, these States will be referred to as respondents before the ICAO Council.

21.  On 5 June 2017, the Governments of Bahrain, Egypt, Saudi Arabia and the United Arab Emirates severed diplomatic relations with Qatar and adopted a series of restrictive measures relating to terrestrial, maritime and aerial lines of communication with Qatar, which included certain aviation restrictions. Pursuant to these restrictions, all Qatar‑registered aircraft were barred by the Appellants from landing at or departing from their airports and were denied the right to overfly their respective territories, including the territorial seas within the relevant flight information regions. Certain restrictions also applied to non‑Qatar-registered aircraft flying to and from Qatar, which were required to obtain prior approval from the civil aviation authorities of the Appellants. According to the Appellants, the restrictive measures were taken in response to Qatar’s alleged breach of its obligations under certain international agreements to which the Appellants and Qatar are parties, namely the Riyadh Agreement (with Endorsement Agreement) of 23 and 24 November 2013, the Mechanism Implementing the Riyadh Agreement of 17 April 2014 and the Supplementary Riyadh Agreement of 16 November 2014 (hereinafter the “Riyadh Agreements”), and of other obligations under international law.

22.  On 15 June 2017, Qatar submitted to the Office of the ICAO Secretary-General an application for the purpose of initiating proceedings before the Council, citing as respondents Bahrain, Egypt, Saudi Arabia and the United Arab Emirates, as well as a memorial. Certain deficiencies in the application and the memorial having been identified by the Secretariat, the Secretary-General, in a letter dated 21 June 2017, requested Qatar to rectify them.

23.  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.”

24.  On 19 March 2018, Bahrain, Egypt, Saudi Arabia and the United Arab Emirates, as respondents before the ICAO Council, raised two preliminary objections. In the first preliminary objection, they argued that the ICAO Council lacked jurisdiction under the Chicago Convention since the real issue in dispute between the Parties involved matters extending beyond the scope of that instrument, including whether the aviation restrictions could be characterized as lawful countermeasures under international law. In the second preliminary objection, they argued that Qatar had failed to meet the precondition of negotiation set forth in Article 84 of the Chicago Convention, also reflected in Article 2, subparagraph (g), of the ICAO Rules for the Settlement of Differences, and consequently that the Council lacked jurisdiction to resolve the claims raised by Qatar, or alternatively that the application was inadmissible.

25.  By a decision dated 29 June 2018, the ICAO Council rejected, by 23 votes to 4, with 6 abstentions, the preliminary objections, treating them as one single objection. In this Decision, the Council stated, inter alia, the following:

“HAVING CONSIDERED the preliminary objection of the Respondents, namely that the Council lacks jurisdiction to resolve the claims raised by the Applicant in Application (A); or in the alternative, that the Applicant’s claims are inadmissible;

CONSIDERING that the question before the Council was whether to accept the preliminary objection of the Respondents;

BEARING IN MIND Article 52 of the Chicago Convention which provides that decisions by the Council shall require approval by a majority of its Members and the consistent practice of the Council in applying this provision in previous cases;

HAVING DECLINED a request by one of the Respondents to reconsider the above-mentioned majority of 19 Members required in the current Council for the approval of its decisions;

DECIDES that the preliminary objection of the Respondents is not accepted.”

26.  On 4 July 2018, the Appellants submitted a joint Application to the Court instituting an appeal from the Decision of the Council dated 29 June 2018. Before addressing the three grounds of appeal against that Decision, the Court will describe its appellate function and the scope of the right of appeal to the Court under Article 84 of the Chicago Convention.

27.  The joint appeal of the four Appellants in the present case is made under Article 84 of the Chicago Convention. Bahrain, Egypt, Saudi Arabia and the United Arab Emirates have been parties to the Chicago Convention since 19 September 1971, 12 April 1947, 21 March 1962 and 25 May 1972, respectively. Qatar has been a party to the Chicago Convention since 5 October 1971.

28.  Article 84 (the text of which is reproduced in paragraph 23 above) of the Chicago Convention provides for the jurisdiction of the ICAO Council to decide “any disagreement between two or more contracting States relating to the interpretation or application of this Convention and its Annexes” if it “cannot be settled by negotiation”. A decision of the Council may be appealed either to an ad hoc arbitral tribunal agreed upon between the parties to a dispute or to “the Permanent Court of International Justice”. Under Article 37 of the Statute of the International Court of Justice, “[w]henever a treaty or convention in force provides for reference of a matter … to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice”. The Court held in the past that

“[t]he effect of that Article … is that, as between the parties to the Statute, this Court is substituted for the Permanent Court in any treaty or convention in force, the terms of which provide for reference of a matter to the Permanent Court” (Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 14, para. 34).

Accordingly, under Article 84, the Court is competent to hear an appeal from a decision of the ICAO Council (see Appeal Relating to the Jurisdic‑ tion of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 53, para. 15, and p. 60, para. 25).

29.  The Court notes that Article 84 appears under the title “Settlement of disputes”, whereas the text of the Article opens with the expression “any disagreement”. In this context, the Court recalls that its predecessor, the Permanent Court of International Justice, defined a dispute as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons” (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11).

30.  The Appellants appeal from a decision of the ICAO Council on the preliminary objections which they raised in the proceedings before it. The text of Article 84 does not specify whether only final decisions of the ICAO Council on the merits of disputes before it are subject to appeal. The Court settled this issue in the first appeal submitted to it against a decision of the ICAO Council (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 46). The Court, clarifying its role in the exercise of its appellate function under the Chicago Convention and the IASTA, stated that those treaties

“enlist the support of the Court for the good functioning of [ICAO], and therefore the first reassurance for the Council lies in the knowledge that means exist for determining whether a decision as to its own competence is in conformity or not with the provisions of the treaties governing its action” (ibid., pp. 60‑61, para. 26; emphasis added).

As the Court explained, “it would be contrary to accepted standards of the good administration of justice to allow an international organ to examine and discuss the merits of a dispute when its competence to do so was not only undetermined but actively challenged” (ibid., p. 57, para. 18 (e)).

The Court therefore concluded that

“an appeal against a decision of the Council as to its own jurisdiction must therefore be receivable since, from the standpoint of the supervision by the Court of the validity of the Council’s acts, there is no ground for distinguishing between supervision as to jurisdiction, and supervision as to merits” (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 61, para. 26).

31.  Relying on these pronouncements of the Court, the Appellants brought their joint appeal, emphasizing that Article 84 of the Chicago Convention encompasses appeals against decisions of the ICAO Council regarding preliminary objections to its jurisdiction.

32.  Qatar expressly recognizes the right of the Appellants under Article 84 of the Convention to appeal the Council’s decision on its jurisdiction.

33.  In view of the above, the Court is satisfied that it has jurisdiction to entertain the present appeal. It notes, however, that the Appellants and Qatar disagree on the scope of the right of appeal.

34.  The Appellants submit that an appeal under Article 84 of the Convention encompasses “procedural complaints”. They argue that they are entitled before the ICAO Council to due process, which according to them, they were denied. The alleged lack of due process in the proceedings before the ICAO Council constitutes their first ground of appeal.

35.  Qatar, while denying that any procedural irregularities occurred during the proceedings before the ICAO Council, suggests that the Court should decline to exercise its supervisory authority in respect of these alleged procedural irregularities. In Qatar’s view, not only were there no such irregularities, but they would in any case be irrelevant to the objective question of law before the Court, namely whether the ICAO Council has jurisdiction to consider and decide on Qatar’s claims under the Convention.

36.  The Court recalls that its role in supervising the Council in the exercise of the latter’s dispute settlement functions under Article 84 of the Chicago Convention is to determine whether the impugned decision is correct. In the present case, its task is to decide whether the Council has erred in rejecting the preliminary objections of the Appellants to the jurisdiction of the ICAO Council and the admissibility of Qatar’s application.

37.  The Appellants raise three grounds of appeal against the ­Decision of the ICAO Council dated 29 June 2018. First, they submit that the Decision “should be set aside on the grounds that the procedure adopted by the ICAO Council was manifestly flawed and in violation of fundamental principles of due process and the right to be heard”.

38.  In their second ground of appeal, the Appellants assert that the ICAO Council “erred in fact and in law in rejecting the first preliminary objection made [by them] in respect of the competence of the ICAO Council”. According to the Appellants, to pronounce on the dispute would require the Council to rule on questions that fall outside its jurisdiction, specifically on the lawfulness of the countermeasures, including “certain airspace restrictions”, adopted by the Appellants. In the alternative, and for the same reasons, they argue that the claims of Qatar are inadmissible.

39.  Under their third ground of appeal, the Appellants contend that the ICAO Council erred when it rejected their second preliminary objection. That objection was based on the assertion that Qatar had failed to satisfy the precondition of negotiation contained in Article 84 of the Chicago Convention, and thus that the ICAO Council lacked jurisdiction. As part of that objection, they also argued that the claims of Qatar were inadmissible because Qatar had not complied with the procedural requirement in Article 2, subparagraph (g), of the ICAO Rules for the Settlement of Differences.

40.  Although the Appellants invoke their three grounds of appeal in the above‑mentioned order, the Court is not bound to follow it. The Court will first examine the grounds based on the alleged errors of the ICAO Council in rejecting the Appellants’ objections. Thereafter, the Court will consider the ground based on the alleged manifest lack of due process in the procedure before the Council.

41.  As noted above, the Appellants’ second ground of appeal relates to their first preliminary objection as respondents before the ICAO Council. In this objection, they argued that their actions, including in particular the aviation restrictions, constitute a set of measures “adopted in reaction to Qatar’s multiple, grave, and persistent breaches of its international obligations relating to matters essential to [their] security …, and constitute lawful countermeasures authorised by general international law”. They expressed the view that under Article 84 of the Chicago Convention the jurisdiction of the Council is limited to any disagreement between two or more States relating to the interpretation or application of the Convention and its Annexes and that the Council therefore does not have jurisdiction to adjudicate issues as to whether Qatar has breached its other obligations under international law, including obligations under the Riyadh Agreements.

42.  In the Appellants’ view, the resolution of Qatar’s claims by the ICAO Council would necessarily require it to determine issues forming part of the wider dispute between the Parties, including the question whether Qatar had breached its counter‑terrorism obligations and its international obligation not to interfere in the internal affairs of the Appellants, matters falling outside of the scope of the Chicago Convention. They argue that the narrow dispute relating to airspace closures cannot be separated from the broader issues and that the legality of the airspace closures cannot be judged in isolation.

43.  The Appellants maintain that the ICAO Council lacks jurisdiction since the real issue in dispute between the Parties cannot be confined to matters within its limited jurisdiction. They contend that, in view of the role of ICAO as the United Nations specialized agency with functions related to matters of civil aviation, the competence of its Council under Article 84 of the Chicago Convention extends only to the settlement of disagreements relating to the interpretation or application of that Convention. They therefore submit that, before determining that it had jurisdiction, the Council ought to have identified and legally characterized the subject‑matter of the dispute before it. It should then have determined whether this dispute fell within its jurisdiction ratione materiae under Article 84. In their view, the real issue in dispute between the Parties concerns “Qatar’s long‑standing violations of its obligations under international law other than under the Chicago Convention”. They characterize the measures they have taken, including the aviation restrictions that form the basis of Qatar’s claim, as lawful countermeasures. The Appellants maintain that none of these matters, i.e. Qatar’s alleged violations of international obligations and the Appellants’ countermeasures in response thereto, fall within the ICAO Council’s jurisdiction ratione materiae under Article 84 of the Chicago Convention. Therefore, they request the Court to adjudge that the Council has no jurisdiction to entertain Qatar’s application submitted to it.

44.  Before the Council, Qatar expressed the view that the issues of countermeasures and their lawfulness go to the merits of the case and should not be considered by the Council when it takes a decision on its jurisdiction. Qatar relied on the Court’s Judgment in the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) (Judgment, I.C.J. Reports 1972, p. 46), which in its view “is entirely dispositive of all the arguments of the Respondents, leaving aside the issue of negotiations”.

45.  Before the Court, Qatar argues that the Council has jurisdiction to decide the case if there is any disagreement between the Parties relating to the interpretation or application of the Chicago Convention which cannot be settled by negotiation. According to Qatar, there is nothing in that Convention or in the ICAO Rules for the Settlement of Differences that sets any other limit on, or otherwise circumscribes, the jurisdiction of the Council. Qatar contends that the claims it has presented to the ICAO Council relate to the interpretation or application of the Chicago Convention and thus the Council properly rejected the first preliminary objection. It maintains that the Council has jurisdiction to entertain its application notwithstanding the invocation by the Appellants of a defence that raises issues falling outside the scope of the Chicago Convention or the fact that the dispute in question arises in the context of a broader dispute between the Parties.

46.  The Court has first to determine whether the dispute brought by Qatar before the ICAO Council is a disagreement between the Appellants and Qatar relating to the interpretation or application of the Chicago Convention and its Annexes. The Council’s jurisdiction ratione materiae is circumscribed by the terms of Article 84 of the Chicago Convention to this type of disagreement. As the Court explained in 1972, a disagreement relates to the interpretation or application of the Chicago Convention if, “in order to determine [it], the Council would inevitably be obliged to interpret and apply the [Convention], and thus to deal with matters unquestionably within its jurisdiction” (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 66, para. 36).

47.  In its application and memorial submitted to the ICAO Council on 30 October 2017, Qatar requested the Council to “determine that the Respondents violated by their actions against the State of Qatar their obligations under the Chicago Convention, its Annexes and other rules of international law”. It further requested the Council to “deplore the violations by the Respondents of the fundamental principles of the Chicago Convention and its Annexes”. Consequently, Qatar asked the Council to urge the respondents “to withdraw, without delay, all restrictions imposed on the Qatar‑registered aircraft and to comply with their obligations under the Chicago Convention and its Annexes” and “to negotiate in good faith the future harmonious cooperation in the region to safeguard the safety, security[,] regularity and economy of international civil aviation”. In its memorial, Qatar identified a number of provisions of the Chicago Convention with which, in its view, the measures taken by the respondents are not in conformity, in particular Articles 2, 3bis, 4, 5, 6, 9, 37 and 89.

48.  The Court considers that the disagreement between the Parties brought before the ICAO Council concerns the interpretation and application of the Chicago Convention and its Annexes and therefore falls within the scope of Article 84 of the Convention. The mere fact that this disagreement has arisen in a broader context does not deprive the ICAO Council of its jurisdiction under Article 84 of the Convention. As the Court has observed in the past, “legal disputes between sovereign States by their very nature are likely to occur in political contexts, and often form only one element in a wider and long‑standing political dispute between the States concerned” (United States Diplomatic and Con‑ sular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, p. 20, para. 37; see also Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objec‑ tions, Judgment, I.C.J. Reports 2019 (I), p. 23, para. 36).

49.  Nor can the Court accept the argument that, because the Appellants characterize their aviation restrictions imposed on Qatar‑registered aircraft as lawful countermeasures, the Council has no jurisdiction to hear the claims of Qatar. Countermeasures are among the circumstances capable of precluding the wrongfulness of an otherwise unlawful act in international law and are sometimes invoked as defences (see Gabčíkovo‑Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 55, para. 82). The prospect that a respondent would raise a defence based on countermeasures in a proceeding on the merits before the ICAO Council does not, in and of itself, have any effect on the Council’s jurisdiction within the limits laid down in Article 84 of the Chicago Convention. As the Court stated when considering an appeal from a decision of the ICAO Council in 1972:

“The fact that a defence on the merits is cast in a particular form, cannot affect the competence of the tribunal or other organ concerned, — otherwise parties would be in a position themselves to control that competence, which would be inadmissible. As has already been seen in the case of the competence of the Court, so with that of the Council, its competence must depend on the character of the dispute submitted to it and on the issues thus raised — not on those defences on the merits, or other considerations, which would become relevant only after the jurisdictional issues had been settled.” (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 61, para. 27.)

50.  This reasoning applies equally to the present case. The Court therefore concludes that the Council did not err when it rejected the first preliminary objection by the Appellants relating to its jurisdiction.

51.  Before the ICAO Council, the respondents raised the alternative argument that Qatar’s claims are inadmissible. While they referred to “general principles regarding admissibility”, they did not elaborate upon arguments specific to their alternative request to declare Qatar’s claims inadmissible. They relied instead on the same arguments made against the Council’s jurisdiction. They argued that the distinction between the objections to the jurisdiction of the Council and those to the admissibility of Qatar’s claims “did not matter for the Council’s purposes as both of those types of objection were covered by the wording of Article 5 (1)” of the ICAO Rules for the Settlement of Differences.

52.  The Appellants argue before the Court that, if the case were to proceed to the merits in its current form, the ICAO Council would have two options. First, it might adjudicate the issues relating to whether the aviation restrictions constitute lawful countermeasures, including, in particular, whether Qatar has breached its international obligations in matters outside civil aviation. This would, however, mean that the Appellants would be required to plead their defence on the basis of countermeasures in a forum that they consider not to be properly equipped to determine such matters. Secondly, the ICAO Council might decline to hear the defence on the basis of countermeasures, but this would mean that it could not decide all the matters before it. It would be wrong, in their view, for the Council to adjudicate the dispute in part only, ignoring that part which contains “a vital defence” of the Appellants.

They submit that Qatar’s application to the ICAO Council is inadmissible in so far as any resolution of Qatar’s claims will necessarily require the Council to adjudicate upon matters over which it does not possess jurisdiction. Any such exercise of jurisdiction by the Council would be incompatible with the consensual basis for jurisdiction and thus incompatible with “judicial propriety” and the ICAO Council’s “judicial” function under Article 84 of the Chicago Convention.

53.  In its submissions to the Council, Qatar took the view that the ICAO Rules for the Settlement of Differences do not permit preliminary objections as to admissibility. It urged the Council not to rule on admissibility at the preliminary objections phase, while admitting that the respondents were not precluded from making admissibility submissions in their counter‑memorials on the merits.

54.  Before the Court, Qatar characterizes the Appellants’ “alternative argument” as not really an “alternative” one but rather as an “obvious repurposing” of their jurisdictional objection. Qatar notes that the Appellants assert that if the Council were to pass judgment upon their defence on the basis of countermeasures it would “adjudicate” outside the scope of Article 84 of the Chicago Convention without their consent. It contends that none of the “exceptional circumstances” which gave rise to the doctrine of “judicial propriety” in the Court’s jurisprudence are present in the case pending before the Council. Qatar argues that “judicial propriety” would be offended if the Appellants’ submissions were to be accepted because the Council then would not exercise its powers “to their full extent”.

55.  In the case concerning Application of the Convention on the Preven‑ tion and Punishment of the Crime of Genocide (Croatia v. Serbia), the Court considered a preliminary objection that was presented simultaneously as an objection to jurisdiction and as one going to the admissibility of the claims (Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 456, para. 120). The Court then recalled that “[a] distinction between these two kinds of objections is well recognized in the practice of the Court” (ibid.). The effect of an objection, irrespective of whether it is to jurisdiction or to admissibility, if upheld, is the same — it brings the proceedings in respect of that claim to an end. As jurisdiction is based on consent, a jurisdictional objection will most likely concern whether such consent has been given by the objecting State, whether the claim falls within the scope of the consent given or whether conditions attached to that consent are met. As far as objections to the admissibility of a claim are concerned, the Court explained that an objection to admissibility

“consists in the contention that there exists a legal reason, even when there is jurisdiction, why the Court should decline to hear the case, or more usually, a specific claim therein. Such a reason is often of such a nature that the matter should be resolved in limine litis” (ibid.; see also Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 177, para. 29).

56.  Article 5 of the ICAO Rules for the Settlement of Differences, approved by the Council on 9 April 1957, bears the heading “Preliminary objection and action thereon”. Its first paragraph provides that “[i]f the respondent questions the jurisdiction of the Council to handle the matter presented by the applicant, he shall file a preliminary objection setting out the basis of the objection” (emphasis added). This provision does not expressly mention preliminary objections to admissibility. However, the Rules for the Settlement of Differences were drafted following the model of the 1946 Rules of this Court, which also did not expressly mention preliminary objections to admissibility. This lack of specificity did not prevent the Court from dealing with objections to admissibility as a preliminary issue before the amendment of the Rules of Court in 1972 (e.g. Barcelona Traction, Light and Power Company, Limited (New Appli‑ cation: 1962) (Belgium v. Spain), Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 6). Likewise, Article 5 of the ICAO Rules for the Settlement of Differences does not preclude the Council from considering an objection to the admissibility of a claim as a preliminary issue.

57.  The Court is of the view that in proceedings before the ICAO Council, if a party raises a preliminary objection to the admissibility of a claim, that objection should also be resolved in limine litis unless it is not of an exclusively preliminary character. In other words, it should be considered and decided upon at a preliminary stage unless it is so intertwined with the merits of the matter brought before the Council that it cannot be dealt with without determining, at least to some degree, issues properly pertaining to the merits (see Application of the Convention on the Preven‑ tion and Punishment of the Crime of Genocide (Croatia v. Serbia), Pre‑ liminary Objections, Judgment, I.C.J. Reports 2008, p. 459, para. 127). The only other situation where the Council could postpone its determination of a preliminary objection to admissibility by joining it to the merits is when it does not have before it all the facts necessary to decide the question raised. Neither situation, in the view of the Court, was present in the proceedings before the Council in this case.

58.  The Council was fully aware of the objection to admissibility raised by the respondents in the proceedings before it. In fact, they argued orally that both objections to jurisdiction and to admissibility were covered by the wording of Article 5 (1) of the ICAO Rules for the Settlement of Differences. The Council did vote on the objection as the one “relating to the interpretation and application of the Chicago Convention and its Annexes” and by majority decided that it “was not accepted”. This implies that the objection to the admissibility of Qatar’s application was rejected.

59.  The question for the Court is whether that decision of the Council rejecting the objection as it relates to the admissibility of Qatar’s claims was a correct one. In other words, the Court has to ascertain whether the claims brought before the Council are admissible.

60.  The Court observes that it is difficult to apply the concept of “judicial propriety” to the ICAO Council. The Council is a permanent organ responsible to the ICAO Assembly, composed of designated representatives of the contracting States elected by the Assembly, rather than of individuals acting independently in their personal capacity as is characteristic of a judicial body. In addition to its executive and administrative functions specified in Articles 54 and 55 of the Chicago Convention, the Council was given in Article 84 the function of settling disagreements between two or more contracting States relating to the interpretation or application of the Convention and its Annexes. This, however, does not transform the ICAO Council into a judicial institution in the proper sense of that term.

61.  In any event, the integrity of the Council’s dispute settlement function would not be affected if the Council examined issues outside matters of civil aviation for the exclusive purpose of deciding a dispute which falls within its jurisdiction under Article 84 of the Chicago Convention. Therefore, a possible need for the ICAO Council to consider issues falling outside the scope of the Chicago Convention solely in order to settle a disagreement relating to the interpretation or application of the Chicago Convention would not render the application submitting that disagreement to it inadmissible.

62.  The Court therefore concludes that the Council did not err when it rejected the first preliminary objection in so far as the respondents asserted that Qatar’s claims were inadmissible.

63.  In view of the above, the second ground of appeal cannot be upheld.

64.  As their third ground of appeal, the Appellants assert that the ICAO Council erred when it rejected the second preliminary objection which they raised as respondents before the Council, pursuant to which they claimed that the ICAO Council lacked jurisdiction because Qatar had failed to meet the negotiation precondition found in Article 84 of the Chicago Convention and that Qatar’s application to the ICAO Council was inadmissible because it did not comply with Article 2, subparagraph (g), of the ICAO Rules for the Settlement of Differences.

65.  Article 84 of the Chicago Convention provides that “[i]f any disagreement … cannot be settled by negotiation, it shall, on the application of any State concerned in the disagreement, be decided by the Council”. Before the ICAO Council, the respondents contended that prior negotiations constitute a precondition to the filing of an application under Article 84. They asserted that the ICAO Council lacked jurisdiction because Qatar failed to comply with this precondition. On appeal to the Court, the Appellants argue that the ICAO Council erred in rejecting this objection to its jurisdiction.

66.  The Appellants recall that the Court, in previous judgments, has found a precondition of negotiation in compromissory clauses of treaties that are similar to Article 84 of the Chicago Convention. They consider that this jurisprudence can be applied to the negotiation precondition contained in Article 84.

67.  The Appellants, referring to the Judgment of the Court on preliminary objections in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), submit that for a negotiation precondition to be fulfilled, there must be “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” (Judgment, I.C.J. Reports 2011 (I), p. 132, para. 157). They maintain that a genuine attempt to negotiate must be more than a general call for dialogue. It must relate to the subject‑matter of the dispute, which must concern the substantive obligations contained in the treaty in question. The Appellants also assert that, where negotiations have been attempted or have commenced, the precondition of negotiation is met only if negotiations have become futile or deadlocked.

68.  The Appellants disagree with Qatar’s alternative argument that it had no obligation even to attempt to negotiate, because any such attempt would have been futile (see paragraph 86 below). They argue that a negotiation precondition can never be satisfied “without a ‘genuine attempt’ to negotiate first being made, even where the disputing [p]arty considers that any such attempt would be futile”.

69.  The Appellants submit that Qatar did not make a genuine attempt to initiate negotiations concerning the specific subject‑matter of its claims under the Chicago Convention prior to submitting the disagreement to the ICAO Council.

70.  The Appellants recall that the 31 July 2017 Extraordinary Session of the ICAO Council was held pursuant to Qatar’s request under Article 54 (n) of the Chicago Convention, which provides that “[t]he Council shall … [c]onsider any matter relating to the Convention which any contracting State refers to it”. They argue that Qatar’s efforts within ICAO did not satisfy the precondition of negotiation because its communications were addressed to the President of the ICAO Council or to the Secretary-General of ICAO, not to the Appellants. They maintain that none of the discussions and meetings that took place within the ICAO Council concerned “issues relating to the interpretation and application of the Chicago Convention … which, in Qatar’s view, form the subject‑matter of the disagreement between the Parties”. Instead, those discussions 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 84.

71.  The Appellants also disagree with Qatar’s assertion that its attempts to settle the dispute through the facilitation of third States constituted a genuine attempt to negotiate because “none of the requests or statements was addressed to the Appellants” and “all of the requests were in general terms, and failed to refer to the specific substantive obligations under the Chicago Convention”.

72.  The Appellants further submit that Qatar’s request for consultations within the context of the World Trade Organization (hereinafter the “WTO”) did not constitute a genuine attempt to negotiate because that request concerned alleged violations of WTO obligations by the Appellants and thus was not relevant to alleged violations of obligations contained in the Chicago Convention.

73.  The Appellants also disagree with Qatar that a telephone conversation between the Emir of Qatar and the Crown Prince of Saudi Arabia on 8 September 2017 constituted a genuine attempt to negotiate. They assert that the conversation was a contact between Qatar and only one of the Appellants and that it related to the wider dispute between the Parties, not to alleged violations of obligations under the Chicago Convention.

74.  With respect to Qatar’s references to reports of statements made by its officials in press statements and before United Nations bodies, the Appellants submit that none of these statements demonstrated a genuine attempt to negotiate. The statements were not addressed to the Appellants and did not deal with the specific subject‑matter of Qatar’s claims under the Chicago Convention.

75.  In response, Qatar submits that the ICAO Council did not err in rejecting the preliminary objection relating to the precondition of negotiation raised by the respondents before the Council.

76.  Qatar agrees with the Appellants that a negotiation precondition normally requires a potential applicant to make a genuine attempt to negotiate and that a negotiation precondition is not met until negotiations have become futile or deadlocked. It also recognizes that negotiations must relate to the subject‑matter of the dispute, which must concern the substantive obligations contained in the treaty in question. Qatar emphasizes that no specific format or procedure is required for negotiations, which, it argues, can take place within the context of an international organization.

77.  Qatar maintains that it made a genuine attempt to negotiate within the framework of ICAO, beginning on 5 June 2017, the first day of the aviation restrictions. It points to its 8 June 2017 letter to the President of the ICAO Council, which requested urgent consideration under Article 54 (n) of the Chicago Convention, citing the Appellants’ alleged violations of the Convention. Qatar also refers to its letter to the Secretary-General of ICAO, dated 15 June 2017, in which it invoked Article 54 (n) and requested the ICAO Council to

“convene to examine and consider the actions of the Kingdom of Saudi Arabia, the United Arab Emirates, the Arab Republic of Egypt, and the Kingdom of Bahrain in the current international airspace blockade over the High Seas against Qatar-registered aircraft and the State of Qatar”.

78.  Qatar also refers to exchanges held during the ICAO Council Extraordinary Session of 31 July 2017, where it requested that the Appellants “lift the unjust air blockade that [they] had … imposed upon it”, noting that “it was a dispute that touched upon the Convention’s essence”.

79.  Qatar submits that the Appellants consistently refused to discuss the aviation restrictions within the ICAO framework, as evidenced by their opposition to doing so at the ICAO Council’s 211th Session on 23 June 2017. It points out that the Appellants’ 19 July 2017 Working Paper urged that the ICAO Council limit any discussion under Article 54 (n) to issues related to the safety of international civil aviation. Qatar also refers to the United Arab Emirates’ statement at the 31 July 2017 Extraordinary Session reaffirming this position on behalf of all four Appellants. In Qatar’s view, the Extraordinary Session addressed only the safety of aviation and contingency routes because of the Appellants’ refusal to negotiate regarding the aviation restrictions.

80.  Qatar also contends that it attempted to negotiate with the Appellants outside of ICAO. For example, it sought to “settle the dispute through the intervention of other States”, referring to contacts with the Emir of Kuwait and the President and Secretary of State of the United States of America. According to Qatar, the Appellants did not respond to any of these efforts.

81.  Qatar further states that it attempted to negotiate regarding the aviation restrictions within the WTO framework by submitting a request on 31 July 2017 for consultations with Saudi Arabia, Bahrain and the United Arab Emirates. It maintains that these three States declined to engage in consultations.

82.  Additionally, Qatar submits that it made a genuine attempt to negotiate when the Emir of Qatar telephoned the Crown Prince of Saudi Arabia on 8 September 2017 with the facilitation of the President of the United States of America. Qatar states that, immediately after the call, Saudi Arabia suspended any dialogue or communication with Qatari authorities.

83.  Qatar also asserts that statements made by its officials in United Nations bodies demonstrated a willingness to negotiate with the Appellants with respect to the overall dispute, including the aviation restrictions.

84.  Qatar maintains that the Appellants made statements expressing a refusal to negotiate. It refers to a press report stating that the Minister of State for Foreign Affairs of the United Arab Emirates said on 7 June 2017 that there was “nothing to negotiate” with Qatar. Additionally, Qatar cites press reports stating that the Appellants made a set of 13 demands on 22 June 2017, which were described by the Minister for Foreign Affairs of Saudi Arabia as “non‑negotiable”.

85.  For the above reasons, Qatar contends that it made a genuine attempt to negotiate and that any further attempt to negotiate would have been futile.

86.  Although Qatar maintains that it made a genuine attempt to negotiate with the Appellants, it asserts, in the alternative, that a State has no obligation to attempt to negotiate prior to the filing of an application if the potential respondent has shown a complete unwillingness to negotiate, rendering any attempt to negotiate futile. It relies on the Judgment of the Court in the case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) (Judgment, I.C.J. Reports 1980, p. 27, para. 51), in which, according to Qatar, the Court “held that the Iranian Government’s ‘refusal to enter into any discussion of the matter’ despite the United States’ protests was sufficient to discharge the negotiation requirement” applicable in that case.

Qatar contends that the Appellants displayed a complete unwillingness to negotiate and that any attempt would have been futile. In its view, there is no need for the Court to decide whether Qatar made a genuine attempt to negotiate with respect to the disagreement arising under Article 84 of the Chicago Convention.

87.  The Court observes that Article 84 of the Chicago Convention is part of Chapter XVIII of the Convention, entitled “Disputes and Default”. This chapter provides a dispute settlement procedure that is available in the event of disagreements concerning the interpretation or application of the Convention and its Annexes. Article 84 specifies that the disagreements that are to be settled by the Council are only those that “cannot be settled by negotiation”. The Court also notes that Article 14 of the ICAO Rules for the Settlement of Differences contemplates that the Council may invite the parties to a dispute to engage in direct negotiations.

88.  The reference in Article 84 of the Chicago Convention to a disagreement that “cannot be settled by negotiation” is similar to the wording of the compromissory clauses of a number of other treaties. The Court has found several such compromissory clauses to contain negotiation preconditions that must be satisfied in order to establish the Court’s jurisdiction (see, e.g. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 128, para. 140, and Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 445, para. 56). This jurisprudence is also relevant to the interpretation of Article 84 and to its application in determining the jurisdiction of the ICAO Council.

89.  The Court considers that Article 84 of the Chicago Convention imposes a precondition of negotiation that must be met in order to establish the ICAO Council’s jurisdiction. Prior to filing an application under Article 84, a contracting State must make a genuine attempt to negotiate with the other concerned State or States. If the negotiations or attempted negotiations reach a point of futility or deadlock, the disagreement “cannot be settled by negotiation” and the precondition to the jurisdiction of the ICAO Council is satisfied.

90.  As the Court has recognized, a genuine attempt to negotiate can be made outside of bilateral diplomacy (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. 133, para. 160). Exchanges that take place in an international organization are also recognized as “established modes of international negotiation” (South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 346).

91.  In responding to the preliminary objection presented to the ICAO Council, Qatar cited a series of communications in June and July 2017 in which it urged the ICAO Council to take action with respect to the aviation restrictions. These communications referred both to the aviation restrictions and to provisions of the Chicago Convention that, according to Qatar, are implicated by those restrictions. In its 15 June 2017 request to the ICAO Council under Article 54 (n) of the Chicago Convention, for example, Qatar invoked this provision “[a]gainst the Kingdom of Bahrain, the Arab Republic of Egypt, the United Arab Emirates and the Kingdom of Saudi Arabia for the violation of fundamental principles of [the] Chicago Convention and the limitations set out in Article 9 of such Convention”, which addresses certain circumstances in which a contracting State may prohibit the aircraft of other States from overflying its territory.

In advance of the Extraordinary Session of the ICAO Council, held on 31 July 2017, Qatar submitted a working paper in which it reiterated its objections to the aviation restrictions, making reference to particular provisions of the Chicago Convention. At the Extraordinary Session, Qatar requested the Appellants to “lift the unjust air blockade” imposed by them, noting that the dispute “touched upon the Convention’s essence”.

92.  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.

93.  As to the question whether negotiations within ICAO had reached the point of futility or deadlock before Qatar filed its application to the ICAO Council, the Court has previously stated that a requirement that a dispute cannot be settled through negotiations “could not be understood as referring to a theoretical impossibility of reaching a settlement. It rather implies that … ‘no reasonable probability exists that further negotiations would lead to a settlement’” (Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 446, para. 57, quoting South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 345). In past cases, the Court has found that a negotiation precondition was satisfied when the parties’ “basic positions ha[d] not subsequently evolved” after several exchanges of diplomatic correspondence and/or meetings (Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 446, para. 59; see also Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), p. 317, para. 76). The Court’s inquiry into the sufficiency of negotiations is a question of fact to be considered in each case (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. 133, para. 160).

94.  In advance of the ICAO Council’s Extraordinary Session of 31 July 2017, which was to be held in response to Qatar’s request, the Appellants submitted a working paper that urged the Council to limit any discussion under Article 54 (n) of the Chicago Convention to issues related to the safety of international aviation. At the Extraordinary Session, Qatar called for consideration of the aviation restrictions and requested the Appellants to lift their “unjust air blockade”. The representative of the United Arab Emirates, speaking also on behalf of Bahrain, Egypt and Saudi Arabia, responded by defending the legality of the aviation restrictions and urging the Council to limit its deliberations to matters related to the safety of international civil aviation, as distinct from action that the Council might take under Article 84.

95.  The statements made to the ICAO Council on behalf of the Appellants support Qatar’s assertion that the Appellants were unwilling to seek a resolution of the disagreement over the aviation restrictions within the ICAO Council. The minutes of the Extraordinary Session indicate that the President of the Council drew a distinction between measures that the Council might take under Article 54 (n) of the Convention and measures that the Council might take under Article 84, in line with the approach urged by the Appellants. During the Extraordinary Session, the Council focused on matters other than the aviation restrictions that would form the subject‑matter of Qatar’s application to the ICAO Council, with particular attention to contingency arrangements to facilitate air traffic over the high seas.

96.  The Court considers that, as of the close of the Extraordinary Session, settlement of the disagreement by negotiation within ICAO was not a realistic possibility. The Court also takes into account developments outside of ICAO. Diplomatic relations between Qatar and the Appellants had been severed on 5 June 2017, concurrently with the imposition of the aviation restrictions. Senior officials of the Appellants stated that they would not negotiate with Qatar, recalling the demands that they had addressed to Qatar. There is no indication that the positions of the Parties as to the aviation restrictions changed between the imposition of those restrictions and the filing of Qatar’s application before the ICAO Council on 30 October 2017. Under these circumstances, the Court considers that, at the moment of the filing of Qatar’s application before the ICAO Council, there was no reasonable probability of a negotiated settlement of the disagreement between the Parties regarding the interpretation and application of the Chicago Convention, whether before the ICAO Council or in another setting.

97.  The Court also recalls that Qatar maintains that it faced a situation in which the futility of negotiation was so clear that the negotiation precondition of Article 84 could be met without requiring Qatar to make a genuine attempt at negotiations. Because the Court has found that Qatar did make a genuine attempt to negotiate, which failed to settle the dispute, it has no need to examine this argument.

98.  For the reasons set forth above, the Court considers that the ICAO Council did not err in rejecting the contention advanced by the respondents before the Council that Qatar had failed to fulfil the negotiation precondition of Article 84 of the Chicago Convention prior to filing its application before the ICAO Council.

99.  The Appellants maintain that Qatar did not comply with Article 2, subparagraph (g), of the ICAO Rules for the Settlement of Differences, which provides that an application and memorial filed pursuant to Article 84 of the Chicago Convention must include “[a] statement that negotiations to settle the disagreement had taken place between the parties but were not successful”. According to the Appellants, this is a procedural requirement that is not merely one of form. In view of the negotiation precondition in Article 84 of the Chicago Convention, Article 2, subparagraph (g), must be understood as requiring an appropriately substantiated statement “that a genuine attempt to negotiate has in fact been made”.

100.  The Appellants maintain that the application and memorial that Qatar submitted to the ICAO Council indicated that no negotiations had taken place or were even attempted and thus did not satisfy the requirement of Article 2, subparagraph (g). As a result, the Appellants contend that the ICAO Council “erred … in not declaring Qatar’s ICAO Application inadmissible”.

101.  Qatar argues that the Appellants misconstrue the nature of the Article 2, subparagraph (g), requirement, which provides simply that the applicant before the ICAO Council “shall file an application to which shall be attached a memorial containing … [a] statement that negotiations to settle the disagreement had taken place but were not successful”. Qatar submits that Article 2, subparagraph (g), does not require an applicant to substantiate its statement that negotiations had taken place but were not successful. Qatar maintains that Article 2, subparagraph (g), contains only a requirement of form.

102.  Qatar considers that it fulfilled the Article 2, subparagraph (g), requirement because the memorial that it submitted to the ICAO Council stated that the respondents before the Council “did not permit any opportunity to negotiate the aviation aspects of their hostile actions”.

103.  Article 2 of the ICAO Rules for the Settlement of Differences sets out the basic information that is to be contained in a memorial attached to an application filed pursuant to Article 84 of the Chicago Convention, in order to facilitate the ICAO Council’s consideration of such applications. By requiring a statement regarding negotiations, subparagraph (g) of Article 2 takes cognizance of the negotiation precondition contained in Article 84 of the Chicago Convention.

104.  Qatar’s application and memorial before the ICAO Council contain a section entitled “A statement of attempted negotiations”, in which Qatar states that the respondents before the ICAO Council “did not permit any opportunity to negotiate” regarding the aviation restrictions. The Secretary-General confirmed that she had verified that Qatar’s application “compl[ied] in form with the requirements of Article 2 of the … Rules [for the Settlement of Differences]” when forwarding the document to the respondents before the ICAO Council. The question of substance, that is to say whether Qatar had met the negotiation precondition, was addressed by the ICAO Council in the proceedings on preliminary objections, pursuant to Article 5 of the ICAO Rules for the Settlement of Differences.

105.  The Court sees no reason to conclude that the ICAO Council erred by not declaring Qatar’s application before the ICAO Council to be inadmissible by reason of a failure to comply with Article 2, subparagraph (g), of the ICAO Rules for the Settlement of Differences.

106.  Having found, first, that the ICAO Council did not err in rejecting the contention that the Council lacked jurisdiction because Qatar had not met the negotiation precondition contained in Article 84 of the Chicago Convention and, secondly, that the ICAO Council did not err in rejecting the assertion that Qatar’s application before the ICAO Council was inadmissible for failing to comply with Article 2, subparagraph (g), of the ICAO Rules for the Settlement of Differences, the Court concludes that the ICAO Council did not err when it rejected the second preliminary objection raised by the respondents before the Council.

107.  For the reasons set forth above, the Court cannot uphold the third ground of appeal.

108.  The Appellants argue that irregularities in the procedures that the ICAO Council followed in reaching the Decision prejudiced in a fundamental way the requirements of a just procedure. They contend that those procedures were manifestly flawed and that this constituted a grave violation of fundamental principles of due process and of the ICAO Council’s own rules. Hence, the Appellants call upon the Court to exercise its supervisory authority and to hold the Decision of the ICAO Council to be null and void ab initio.

109.  The Appellants allege a series of procedural violations, which are set out below. They maintain that the ICAO Council carries out a “judicial function” when it is deciding a disagreement pursuant to Article 84 of the Chicago Convention.

110.  The Appellants complain that the Decision does not state the reasons on which it was based. They consider it “[a] fundamental requirement of due process … that judicial bodies give the necessary reasons in support of their decisions”.

111.  In addition, the Appellants criticize the absence of deliberations prior to the Decision. In their view, the holding of deliberations after hearing the parties “is essential for judicial bodies to function in a collegial manner”.

112.  The Appellants criticize the Council’s decision to vote on their preliminary objections by secret ballot, despite their request for a roll call vote with open voting.

33.  The Appellants argue that the ICAO Council violated the principle of equality of the parties and the right to be heard because, as respondents before the ICAO Council, they were awarded “[p]atently insufficient time … to present their case” and were collectively given the same length of time to do so as was given to Qatar individually.

114.  The Appellants maintain that the ICAO Council incorrectly required 19 votes (out of 36 ICAO Council Members) to uphold their preliminary objections. They submit that only a simple majority of 17 votes (out of 33 ICAO Council Members entitled to participate in the vote) was required under Article 52 of the Chicago Convention, read together with Articles 53 and 84 of the Chicago Convention and Article 15, paragraph 5, of the ICAO Rules for the Settlement of Differences.

115.  Finally, the Appellants note that while they presented two preliminary objections to the Council, the Decision refers to a single “preliminary objection”. They assert that the decision of the President of the Council “to put to a vote a question relating to ‘a preliminary objection’ (singular) was neither introduced nor seconded by members of the Council”, in violation of Rules 40 and 45 of the Rules of Procedure for the Council.

116.  According to Qatar, the Court’s supervisory authority over decisions by the ICAO Council does not extend to procedural questions. Recalling paragraph 45 of the Judgment of the Court in the case concerning the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) (I.C.J. Reports 1972, pp. 69‑70), Qatar asserts that the Court need not rule on the Appellants’ procedural complaints because the Decision of the ICAO Council was “objectively correct”. It further maintains that there were no irregularities in the way the Council conducted itself and that, in any event, none of the procedures about which the Appellants complain prejudiced in any fundamental way the requirements of a just procedure.

117.  With respect to the specific irregularities alleged by the Appellants, Qatar considers the absence of open deliberations on the issues in dispute and the lack of reasoning in the Decision to be “natural consequences of the Council’s decision to vote by secret ballot”. Qatar adds that voting by secret ballot is expressly permitted under Rule 50 of the Rules of Procedure for the Council. As to the absence of reasons in the Decision, Qatar also emphasizes that “the fact that the … Council may perform a judicial function does not turn it into a judicial organ stricto sensu, much less into [the Court]”.

118.  Moreover, Qatar argues that “open deliberations are … not essential for the [ICAO] Council to function in a collegial manner” and that the ICAO Council’s approach was consistent with its recent practice.

119.  Qatar emphasizes that the Council’s procedures conformed with the principle of the equality of the parties and the right to be heard. The respondents before the ICAO Council “acted jointly in the proceedings before the Council” and “the legal issues in dispute are identical as to all” of them. Qatar contends that the respondents before the ICAO Council had ample opportunity to present their case before the Council.

120.  Based on Articles 52 and 53 of the Chicago Convention and previous practice of the ICAO Council, Qatar argues that the ICAO Council required the correct voting majority to decide on the preliminary objections. It further argues that even if the ICAO Council had required the majority put forward by the Appellants in this appeal, this would not have made a practical difference in this case because the preliminary objection would have failed under either voting majority.

121.  Finally, Qatar contests the Appellants’ claim that the ICAO Council took its Decision on the incorrect premise that they, as respondents before the Council, had raised a single preliminary objection to its jurisdiction. Qatar maintains that the minutes of the session at which the ICAO Council voted not to accept the preliminary objections reveal that the ICAO Council was aware that the respondents before the Council had provided “two justifications” for their challenge to the Council’s jurisdiction, since the original motion made by one ICAO Council representative and seconded by another to vote on two preliminary objections was never changed or modified.

122.  The Court recalls that, in its Judgment in the case concerning the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) (I.C.J. Reports 1972, pp. 69‑70, para. 45), it concluded that, in the proceedings at issue, the ICAO Council had reached the correct decision as to its jurisdiction, which is an objective question of law. The Court also observed that the procedural irregularities alleged by the Appellant did not prejudice in any fundamental way the requirements of a just procedure. The Court had no need to examine whether a decision of the ICAO Council that was legally correct should nonetheless be annulled because of procedural irregularities.

123.  In the present case, the Court has rejected the Appellants’ second and third grounds of appeal against the Decision of the ICAO Council. The Court considers that the issues posed by the preliminary objections that were presented to the Council in this case are objective questions of law. The Court also considers that the procedures followed by the Council did not prejudice in any fundamental way the requirements of a just procedure.

124.  For the reasons set forth above, the first ground of appeal cannot be upheld.

125.  Recalling the Court’s previous observation that Article 84 of the Chicago Convention gives the Court “a certain measure of supervision” over decisions of the ICAO Council (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 60, para. 26), the Court emphasizes that it will be best positioned to act on any future appeal if the Decision of the ICAO Council contains the reasons of law and fact that led to the ICAO Council’s conclusions.

126.  For these reasons,

The Court,

1. (1)  Unanimously,

   Rejects 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. (2)  By fifteen votes to one,

   Holds 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.

in favour: President Yusuf; Vice‑President Xue; Judges Tomka, Abraham, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Daudet;

against: Judge ad hoc Berman.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this fourteenth day of July two thousand and twenty, in six copies, one of which will be placed in the archives of the Court and the others transmitted to the Governments of the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates, and to the Government of the State of Qatar, respectively.

(Signed) Abdulqawi Ahmed Yusuf, President.

(Signed) Philippe Gautier, Registrar.

Judge Cançado Trindade appends a separate opinion to the Judgment of the Court; Judge Gevorgian appends a declaration to the Judgment of the Court; Judge ad hoc Berman appends a separate opinion to the Judgment of the Court.

(Initialled) A.A.Y.

(Initialled) Ph.G.

1.  I have accompanied the majority of the International Court of Justice (ICJ), in voting in support of the adoption today, 14 July 2020, of its present Judgments dismissing the appeals raised by the applicant States in the present correlated cases of Appeal relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates [UAE] v. Qatar) [hereinafter “ICAOA case”], and of 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 UAE v. Qatar) [hereinafter “ICAOB case”].

2.  I arrive likewise at the conclusions of the ICJ set forth in the disposi‑tif of the two present Judgments (ICAOA Judgment, para. 126; and ICAOB Judgment, para. 127), also for the dismissal of all appeals raised by the applicant States. This does not mean that my own reasoning coincides entirely with that of the ICJ in the handling of all successive points in the two present cases in this respect. This being so, I feel obliged to present my current separate opinion, in order to express my own position in relation to one of the arguments raised by the appellant States, in the two present cases, namely, the argument concerning so-called “countermeasures”.

3.  May I initially recall, at this preliminary stage, that, in general terms, the appellant States in both cases base their first ground of appeal, as to the alleged lack of jurisdiction of the ICAO Council, on the argument that the airspace restrictions adopted by them were taken as lawful “countermeasures” in response to Qatar’s alleged prior breaches of obligations arising under customary international law, as well as of resolutions of the Security Council, and of the Riyadh Agreements¹. The appellant States further claim that, in their view, “countermeasures” constitute a circumstance precluding wrongfulness under general international law, having been, to them, specially recognized under the Riyadh Agreements².

4.  The appellant States further contend that the disagreement submitted by Qatar to the ICAO Council would require the Council to adjudicate upon matters falling outside its jurisdiction, in a forum that is not properly equipped to hear the matters at issue³. They argue that their objection is to be distinguished from the earlier case concerning the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Paki‑stan) (Judgment, I.C.J. Reports 1972, p. 46) because in the present case the invocation of “countermeasures”⁴ has taken the dispute outside the scope of civil aviation and the respective treaties (the Chicago Convention in the ICAOA case and the IASTA Agreement in the ICAOB case)⁵.

5.  In the present separate opinion, I shall at first address “countermeasures” in breach of the foundations of the law of nations, and of State responsibility. In sequence, I shall survey the lengthy and strong criticisms of “countermeasures” presented in the corresponding debates of both the UN International Law Commission, as well as of the VI Committee of the UN General Assembly (Parts III and IV). Following that, I shall focus on the prevalence of the imperative of judicial settlement over the State’s “will”. I shall then present my own reflections, first, on international legal thinking and the prevalence of human conscience (recta ratio) over the “will”; secondly, on the universal juridical conscience in the rejection of voluntarism and “countermeasures”; and thirdly, on law and justice interrelated, with general principles of law in the foundations of the new jus gentium. The way shall then be paved for the presentation of my final considerations, in an epilogue, with the points dealt with herein.

6.  The two ICAOA and ICAOB cases are interrelated, as their presentation and arguments indicate. The two joint Applications instituting proceedings, received by the ICJ on 4 July 2018, contain appeals against two decisions rendered by the Council of the International Civil Aviation Organization (the “ICAO Council”) on 29 June 2018. The first case, ICAOA was presented, as already indicated, by Bahrain, Egypt, Saudi Arabia and the UAE, to constitute an appeal against the decision rendered by the ICAO Council in the proceedings initiated by Qatar against these four States, which were initiated on the basis of Article 84 of the Convention on International Civil Aviation (the “Chicago Convention”). In these proceedings before the ICAO Council, Qatar claimed that the decisions of the four States (the airspace restrictions) violated the Chicago Convention⁶.

7.  The dispute between the Parties is mainly focused on whether the ICAO Council had jurisdiction to decide on the applications submitted by Qatar on alleged violations of the Chicago Convention (ICAOA case) or the IASTA (ICAOB case), and alternatively, whether the applications submitted by Qatar are admissible⁷. As I have already pointed out, in both ICAOA and ICAOB cases I have selected one point raised by the appellant States, namely, that of so‑called “countermeasures”, so as to examine herein their lack of legal foundations and their negative effects on the law of nations and on State responsibility.

8.  The appellant States, as just seen, have decided to rely, inter alia, on “countermeasures”, bringing to the fore an unfortunate initiative taken by the UN International Law Commission in its prolonged discussions on the matter in the 1990s and until 2001 (infra). This having been so, I feel bound to begin my own considerations of “countermeasures” in breach of the foundations of the law of nations, and of State responsibility, and to present, in sequence, the criticisms of “countermeasures” in corresponding debates of the International Law Commission, as well as of the VI Committee of the UN General Assembly.

9.  In effect, the International Law Commission consumed many years of its work on the elaboration and adoption of its Articles on State Responsibility (2001), which disclosed also some resistance to certain innovations not in accordance with the foundations of the law of nations. Such was the case — as I warned in my general course delivered at the Hague Academy of International Law in 2005 — of the space occupied, in the elaboration of those Articles,

“by so-called ‘countermeasures’ (Articles 22 and 49-54), in comparison with the much more succinct space devoted to serious breaches of obligations under peremptory norms of general international law (Articles 40-41). Ubi societas, ibi jus. It should not pass unnoticed that countermeasures (…) ha[ve] now been taken to the centre of the domain of State responsibility without originally and intrinsically belonging to it. Countermeasures are reminiscent of the old practice of retaliation, and, — whether one wishes to admit it or not, — they rely upon force rather than conscience. Recourse to them discloses the insufficient degree of development of the treatment of State responsibility.”⁸

10.  In this respect, there have been warnings as to resort to “countermeasures”: as the international legal order is based upon justice rather than force, it has been criticized that to confer a high standing to “countermeasures” in the domain of State responsibility is “to elevate to a position of high dignity one of [international] society’s least dignified and least sociable aspects”, thus condemning that society “to be what it is”⁹. Other criticisms have emanated from lucid trends of international legal doctrine.

11.  It has been recalled, e.g. that resort to “countermeasures” in practice ensues mainly from the domain of “the reciprocity of State interests” rather than principles, disclosing clear risks of retaliations¹⁰, which are to be avoided. Judicial control of “countermeasures” was contemplated by International Law Commission’s Rapporteur Gaetano Arangio-Ruiz, in his seventh Report (of 1995), stressing the need of an institutionalized reaction — within the ambit of the United Nations — of the “organized international community”¹¹, — and the idea of a neutral control of “countermeasures” remained alive¹².

12.  I have recalled such criticisms in my aforementioned general course delivered at the Hague Academy of International Law (2005), and I have further warned that

“[t]he much larger space occupied by ‘countermeasures’ than by other truly fundamental aspects of State responsibility in the 2001 International Law Commission Articles on the subject discloses an apparent lack of confidence in the role of law for attaining justice; the greater emphasis is therein shifted to coercive means — envisaged as ‘legal’ ones — rather than on conscience and the prevalence of opinio juris communis.

Yet, in a domain of international law endowed with a specificity of its own, such as the international law of human rights, the overall picture is rather different. This is a domain which has rendered possible a re-encounter with the very foundations of the international responsibility of States. Herein attention is correctly focused on law rather than force, on conscience rather than ‘will’, to the greater effectiveness of public international law itself¹³.”¹⁴

13.  These criticisms have called for further attention to the matter, in particular to the step backwards taken by the insertion of “countermeasures” in the 2001 Articles on State Responsibility (cf. infra). Such insertion took place despite the successive and strong criticisms of “countermeasures” in the prolonged debates on the matter, of the International Law Commission as well as of the VI Committee of the UN General Assembly (infra). I much regret that “countermeasures” have been raised by the appellant States in the present ICAOA and ICAOB cases; all the mistakes of the past in the raising and stating of the point, with all its legal consequences, should not be forgotten in the present, at least by those of us who believe in international law and work for its prevalence.

14.  Strong criticisms to “countermeasures” were formulated in successive debates of the International Law Commission itself, in the period of 1992-2001, centred on the issue. Thus, one of the International Law Commission members, Mr. Jiuyong Shi (China), took a categorical position against them, warning as to the “impropriety” of the concept of “counter-measures” under general international law; to him, States allegedly “injured” which took “countermeasures” were “often themselves the wrongdoing States”¹⁵. Thus, for Mr. J. Shi, the application of reprisals or countermeasures disclosed the outcome of the relationship between “powerful” States and “weak and small” States which were unable to assert their rights under international law.

15.  For that reason, many small States regarded “the concept of reprisals or countermeasures as synonymous with aggression or intervention, whether armed or unarmed”¹⁶. “Countermeasures”, — he added, — were “controversial” and should not be included in the law of State responsibility, being “certainly” to “the advantage of the more powerful States”¹⁷. Instead of reflecting general rules of international law, — Mr. Shi concluded, — “countermeasures” remained “controversial”, reflecting “simply power relationships”, and should then “be excluded from the topic of State responsibility”¹⁸.

16.  Another International Law Commission member who took likewise a categorical position against “counter‑measures” was Mr. Carlos Calero Rodrigues (Brazil), who strongly criticized them; he warned that, if the International Law Commission “was to be faithful to its duty of contributing to the progressive development of international law, it must try to establish limits to countermeasures in order to correct some of the more glaring injustices to which their broad application might give rise”¹⁹. He advocated the “clear and unrestricted” prohibition of “countermeasures”, which “should not be considered legitimate” in threatening the territorial integrity or independence of the State against which they were applied; such “extreme coercion”, — he added, — “should not be allowed”²⁰.

17.  Carlos Calero Rodrigues stressed his own “faithfulness to the traditional Latin American position on that matter”, and reasserted his own “endorsement of a strict prohibition of countermeasures which endangered the territorial integrity or political independence of a State”²¹. He was firm in further warning that “countermeasures should not infringe on fundamental human rights, diplomatic relations, the rules of jus cogens or the rights or third States”²².

18.  Within the International Law Commission, as it can be seen, there were those aforementioned members who remained strongly opposed to the initiative of inserting into the Draft Articles a reference to so‑called “countermeasures” all the time (supra). In addition, there were those members who were critical of them from the start, though ending up not opposing their insertion into Article 50 (2) of the Draft Articles. As to these latter, one International Law Commission member, Mr. Awn Al-Khasawneh (Jordan), warned that States resorting to “countermeasures” “took the law into their own hands”, forgetful of the rule of law at international legal level. To him, “countermeasures” raised the “likelihood of abuse, largely because of power disparities among States”; furthermore, there is the “punitive” function and intent of “countermeasures”²³.

19.  Another International Law Commission member, Mr. Pemmaraju Sreenivasa Rao (India), also warned that “countermeasures” reflected the position of the “stronger party”, and one should have care not to transpose such political “power relationships” into the domain of law; moreover, “punitive reprisals or countermeasures” should be expressly prohibited²⁴. This point, originally made by him in 1992, was subsequently taken again by him at the International Law Commission, in 1996, when he expressly stated his “complete disagreement” with Chapter III of the draft Articles on the controversial “countermeasures”²⁵. The International Law Commission ended up with “an unsupportable, contradictory and unjustified regime for countermeasures”; after all, he added, “[n]o State should be encouraged to decide unilaterally to take the law into its own hands, no matter how real the provocation to which it reacted”²⁶.

20.  It seemed “advisable” to Mr. P. Sreenivasa Rao “to refer expressly to the provisions of the [UN] Charter which dealt with the non-use of force and the different methods for the peaceful settlement of disputes”²⁷. In conclusion, he identified the “trouble with the existing wording”, namely:

“if the State accused of the internationally wrongful act defaulted, the injured State would be free to act as it saw fit, and that was tantamount to making the law of the strongest prevail. It would be preferable if the dispute settlement procedure that had been initiated continued to apply”²⁸.

21.  In the International Law Commission’s debates of two years earlier, Mr. John de Saram (Sri Lanka) pointed out that even when considering “countermeasures”, attention should be turned to multilateral (or even bilateral) treaties, as from the UN Charter, in the light of their provisions on “peaceful settlement of disputes”²⁹. Even when this latter is not achieved, — he added, — endeavours should be undertaken to avoid “chaos” resulting from “the taking by individuals States of countermeasures in an uncoordinated manner”³⁰.

22.  Shortly afterwards at the International Law Commission, Mr. Václav Mikulka (Czech Republic) pondered, as to the “consequences of State crimes”, that “priority should be given to the collective response of the international community”, so as to avoid “countermeasures”; in his view, it would here be desirable for the International Law Commission “to establish the regime of responsibility for State crimes”³¹. The International Law Commission members also counted, in mid-1994, on the intervention of their guest speaker, Mr. Chengyuan Tang, Secretary‑General of the Asian-African Legal Consultative Committee (AALCC), who acknowledged the concern expressed at the International Law Commission as to the formulation of a “regime of unilateral countermeasures” with its “inherent danger of abuse”, as to the “recourse to reprisals”, as well as to a “resort to unlawful or disproportionate countermeasures”³².

23.  Subsequently, in the International Law Commission’s debates, Mr. Peter Kabatsi (Uganda) made clear that he was “totally opposed to legalizing unilateral self-help at the international level by one State against another, as that would only serve the interests of the strong against the weak and the rich against the poor”³³. He added that Chapter III of the draft Articles contained passages that, if retained, “would further aggravate the situation of the State against which the countermeasures were directed”³⁴. Likewise, there were those International Law Commission members who criticized strongly “countermeasures”, though not opposing them until the end, despite the negative effects of resort to them.

24.  One of those International Law Commission members (Mr. Julio Barboza) wrote thoughtfully later (in 2003) that “countermeasures” amounting to reprisals faced the prohibition found in General Assembly resolution 2625 (XXX)³⁵. Prevalence was acknowledged to the obligations of protection of the human person, in the international law of human rights and in international humanitarian law³⁶. There is no point at all, — he added, — in “countermeasures”, in cases lodged with an international tribunal, which can anyway order provisional measures of protection before delivering its decision on the merits; to resort to “countermeasures” without a test of their legality is a “step backwards”³⁷.

25.  This critical point was in effect made also in the remaining debates (in 2000-2001) of International Law Commission members on the matter. Thus, in 2000, Mr. Maurice Kamto (Cameroon) pointed out that he had kept his reservations to “countermeasures”, for being “a step backwards at a time when the trend was in the opposite direction, towards the regulation of international relations through dispute settlement machinery, including judicial machinery”; this was, in his view, a wrong step taken by the International Law Commission, as there was no basis in general customary law for “countermeasures”, being a wrongful resort to sanctions³⁸. To him, it should be kept in mind that countermeasures were unduly devised in the late 1970s and early 1980s, considerably weakening the Security Council’s authority and expanding “private justice”³⁹.

26.  For his part, on the same occasion in the International Law Commission, Mr. Christopher John Robert Dugard (South Africa) pondered that international lawyers disliked “countermeasures” and reprisals as they were “primitive and lacked the means for law enforcement”; so-called “reciprocal countermeasures” were thus to be rejected⁴⁰. He further warned that “[m]ost countermeasures inevitably had some adverse impact on some human rights, particularly in the social and economic field”⁴¹. Shortly afterwards, Mr. Nabil Elaraby (Egypt) also criticized countermeasures for being “highly controversial”, and for underlining the “imbalance” and widening “the gap between rich and powerful States and the rest”, having thus been “used and abused” in the contemporary world⁴². In the following year of 2001, Mr. James Kateka (Tanzania) likewise declared that he “remained opposed” to countermeasures, as “they continued to be a threat to small and weak States and gave the more powerful States another weapon”⁴³.

27.  At the final stage of consideration of the Draft Articles on State Responsibility, the International Law Commission counted on relevant comments received from States (at the original request from the UN General Assembly), reproduced in its Yearbook (1998 and 2001). In 1998, Mexico and Argentina presented their criticisms of the inclusion of “countermeasures” thereon⁴⁴. Denmark, on behalf of the Nordic countries, stated that “there is no room for countermeasures where a mandatory system of dispute settlement exists as between the conflicting parties”⁴⁵. And the Czech Republic held that “countermeasures are not considered to constitute a ‘right’ per se of an injured State”⁴⁶.

28.  Later on, in 2001, China criticized the reference to “countermeasures”, and called for “appropriate restrictions on their use”⁴⁷. Japan, for its part, likewise warned as to the risk of abuse of “countermeasures”, and fully shared “the concern expressed by quite a few States in the VI Committee on the risk of the abuse of countermeasures”, which needed “substantial and procedural restrictions”⁴⁸. Mexico, for its part, much regretted the decision of inclusion of “countermeasures” into the Draft under consideration, which “would open the way to abuse” which “could aggravate an existing conflict”; the result could be “extremely risky, especially for the weakest States”, and such risks should be minimized, avoiding their use “for punitive purposes”⁴⁹.

29.  Argentina was likewise critical, warning against “the exceptional nature of countermeasures”, and the need “to minimize the possibility of abuses”⁵⁰. Shortly after the adoption of the International Law Commission’s Articles on State Responsibility (2001), the Rapporteur, Mr. James Crawford, in the commentaries he published, observed critically that the chapter containing countermeasures “was the most controversial aspect of the provisional text adopted in 2000. Concerns were expressed at various levels” (e.g. in relation to implementation of State responsibility; in respect of obligations not subject to countermeasures; and by reference to the so-called “collective” countermeasures). After recalling that at least one State (Greece) argued that “countermeasures should be prohibited entirely”, he added that “the International Law Commission did not endorse that position”⁵¹.

30.  Criticisms of countermeasures were, furthermore, firmly expressed in the parallel and corresponding debates of successive sessions (19922000) of the VI Committee of the UN General Assembly. Thus, e.g. in the debates of 4 November 1992 of the VI Committee, the delegate of Indonesia (Mr. Abdul Nasier) warned that “countermeasures generally tended to be punitive”; in particular, “armed countermeasures were contrary” to Article 2 (3) and (4) of the UN Charter, and, “[a]ccordingly, countermeasures had no place in the law on State responsibility”⁵².

31.  Other criticisms along the years of debates on the matter in the VI Committee were firmly formulated and sustained by the Cuban delegation. Thus, in the debates of 5 November 1992, the delegate of Cuba (Ms Olga Valdés) warned that, in resorting to “reprisals or countermeasures”, powerful or rich countries “easily enjoy an advantage over weak or poor countries”⁵³. She added that they contain “the seeds of aggression”, being moreover surrounded by uncertainty⁵⁴; accordingly, they are not desirable in international law⁵⁵.

32.  The Cuban delegation insisted on its position against “countermeasures”. Thus, subsequently, in the debates of the VI Committee of 4 December 2000, the delegate of Cuba (Ms Soraya Alvarez Núñez) opposed “countermeasures” are being “most controversial”, and as amounting to “armed reprisals”, involving “collective sanctions or collective interventions”⁵⁶. She added that such reprisals “tended to aggravate disputes between States” by resorting to “the wrongful use of force”⁵⁷. Such politically motivated tactic was “in violation of the principles of the Charter of the United Nations and [of] international law”⁵⁸.

33.  There were other strong criticisms by States’ representatives of “countermeasures” in the work of the VI Committee of the General Assembly. Thus, e.g. in its debates of 4 November 1993 on the matter, the delegate of Mexico (Mr. Juan Manuel Gómez Robledo) warned that “the imposition of unilateral sanctions by one or more States” in reaction to the conduct of another State was a breach of international law, that “might exacerbate international conflicts”, and thus all provisions or references to “countermeasures should be deleted”⁵⁹.

34.  There were other manifestations of criticism of, and opposition to, “countermeasures”, in the prolonged debates of the VI Committee of the General Assembly on the matter. For example, in the debates of 13 November 2000, the delegate of India (Mr. Prem Gupta) strongly criticized that resort of “States to take countermeasures was open to serious abuse”, and thus the point should be excluded “altogether from the scope of State responsibility, leaving issues concerning such measures to be dealt with under general international law, especially under the Charter of the United Nations”⁶⁰.

35.  He added that “countermeasures” were “merely sanctions under another name”, which “should not be used to punish a State”. The delegate of India stressed that there was a duty to keep in mind “their humanitarian consequences and the need to protect civilian populations from their adverse effects”; in his understanding, “countermeasures could not be taken and, if taken, must be immediately suspended, if an internationally wrongful act had ceased or if the dispute had been submitted to a court or tribunal with authority to hand down binding decisions”⁶¹.

36.  On his part, the delegate of Pakistan (Mr. Akhtar Ali Kazi) was likewise critical: in the debates of the VI Committee of 5 November 1992, for example, he warned that opinions within the International Law Commission were “divided as to whether provisions on countermeasures should be included in the draft”, given the difficulties surrounding them deriving from the “the disparities in the size, power and level of development of States”⁶². “Countermeasures”, —he continued, —gave advantage to “powerful or rich” States over “weak or poor” States; these latter required “particular attention” in the context of “countermeasures”, “in order to prevent the regime from becoming a tool of power politics”⁶³.

37.  In the same debates of the VI Committee of 5 November 1992, strong criticisms were also proffered by the delegate of Algeria (Mr. Sidi Abed), who began by warning that so-called “countermeasures” originated from the practice of “the most powerful” States⁶⁴. “Countermeasures” thus required, — he added, — “the most careful safeguards”, taking into account the “de facto inequalities between States” so as to avoid a “questionable” practice leading to “abuses”, and to remedy a “situation when the rules of international law were violated”⁶⁵.

38.  As seen above (Parts III and IV), “countermeasures” were heavily criticized throughout the whole preparatory work of the corresponding provisions of the International Law Commission’s Draft Articles on State Responsibility. It is somehow surprising and regrettable that, despite all the firm criticisms against them, they counted on supporters for their inclusion in those Draft Articles, without any juridical grounds; it is likewise surprising and regrettable that the ICJ itself referred to “countermeasures” in its Judgment of 25 September 1997 in the case of Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment, I.C.J. Reports 1997, pp. 55‑56, paras. 82-85), and again referred to it in the present Judgments of the ICJ of today in the two cases of ICAOA and ICAOB (paragraph 49 of both Judgments).

39.  There were further criticisms to the initiative of consideration of so-called “countermeasures” (cf. infra). There are other points to take here into account, e.g. there were, on the other hand, those who, in superficially favouring “countermeasures”, appeared clearly oblivious of the earlier lessons of true jurists on the importance of the realization of justice. Once again, in the present case, the ICJ reiterates its view that jurisdiction is based on State consent, which I have always opposed within the Court: in my perception, human conscience stands above voluntas.

40.  Further criticisms of the controversial initiative of considering “countermeasures” were promptly raised from distinct sources. In the mid-1990s (in 1994), e.g. it was timely warned that “[u]nilateral countermeasures” were, “without doubt, extremely difficult and perhaps even dangerous to codify”, remaining always “prone to abuse on the part of the strong against the weak”⁶⁶. Even a narrative study (of 2000) of the International Law Commission draft, shortly before its adoption, did not prescind from acknowledging “the controversial issue of countermeasures”, and the fact that “several members” of the International Law Commission “continued to voice concern that smaller States may suffer the abuse of countermeasures by powerful States”⁶⁷.

41.  Still earlier (also in 1994), another criticism was advanced recalling that “many [International Law Commission] members shared the concern expressed forcefully by the Special Rapporteur that the unilateral character of countermeasures opens up the possibility of their abuse, especially (but not only) by powerful States”⁶⁸. It was then recalled that the International Law Commission, in its Report of 1993, criticized that unilateral “countermeasures” were to “the detriment of the principles of equality and justice”; furthermore, they let the deciding State to exercise coercion, to which those in favour of “compulsory dispute settlement” were clearly opposed, focusing on the “common interest” of preventing “their illicit and arbitrary use”⁶⁹.

42.  Moreover, may I here add that it is to keep in mind likewise some lessons from a more distant past, identified by learned international jurists, in a distinct and wider horizon. Thus, to recall one early example, in his thoughtful book La justice internationale, published in 1924, four years after the adoption of the Statute of the old Permanent Court of International Justice (PCIJ), Nicolas Politis, in recalling the historical development from private justice to public justice, advocated for the evolution, at international level, from optional to compulsory jurisdiction⁷⁰.

43.  Subsequently, in the earlier years of the new era of the ICJ, in 1952, Antonio Truyol y Serra firmly criticized legal positivism, and stressed the importance of general principles of international law, based upon natural law, for the interpretation and application of the norms of the international legal order, thus assuring the realization of justice⁷¹. He invoked earlier writings, e.g. of Alfred Verdross, and stressed the relevance of recta ratio, for securing what he identified as the universality of the new international law⁷².

44.  Still in the evolving years of the era of the ICJ, Maurice Bourquin pondered, in 1960, that an international dispute may be lodged with an international tribunal once it comes into existence, irrespectively of any insistence on further exhaustion of diplomatic means or initiatives⁷³. Recourse to judicial settlement is attentive to the existence of a disagreement between the parties as to points of law or fact⁷⁴. The existence of the dispute is already established in being submitted to the international tribunal, to l’empire du droit, even if its object is not necessarily set up in “a clear and definitive manner”⁷⁵.

45.  The Judgment of the ICJ in the present case contains several cross-references (in paragraphs 67, 88, 90 and 93) to its own decisions (Order of 15 October 2008, and Judgment on preliminary objections of 1 April 2011) in the case of Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). The ICJ reiterates, in the present Judgment, its understanding that “jurisdiction is based on consent” (para. 55). Within the ICJ, I have always expressed my strong criticism of this misunderstanding.

46.  May I here recall that, in my dissenting opinion in the case of Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) (Judgment of 1 April 2011), I firmly criticized the ICJ’s majority for reaching, as one of its conclusions, the view that Article 22 of the CERD Convention “imposes preconditions” to be complied with (Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 128, para. 142, and p. 130, para. 148), before a State could refer a dispute to the ICJ thereunder. In my dissenting opinion, I then pondered:

“The fact is that there is no conclusive indication to that effect in the travaux préparatoires of the CERD Convention, nor is there any statement as to the existence of a resolutory obligation incumbent upon States Parties, to do all they can to settle their disputes previously by negotiation, before they can seize the ICJ. Resort to negotiation was generally referred to as a factual effort or attempt only, rather than as a resolutory obligation.” (I.C.J. Reports 2011 (I), p. 286, para. 101.)

47.  I then added that the position of the ICJ’s majority in the cas d’espèce, as to Article 22 of the CERD Convention, in my perception, “does not stand”; in this connection, I recalled that, in the travaux préparatoires of the CERD Convention, there were clearly those “who were sensitive to the regulation of social relations under the CERD Convention, and who favoured possible recourse to the ICJ without ‘preconditions’” (ibid., pp. 287‑288, para. 107).

48.  I next recalled that, at an earlier stage of proceedings in the case of the Application of the CERD Convention (Georgia v. Russian Federation) (Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, p. 353), the ICJ held that Article 22 of that Convention does not suggest that formal negotiations thereunder would constitute “preconditions” to be fulfilled before the seising of the ICJ; despite this timely clarification made by the ICJ itself in its Order of 15 October 2008, in its subsequent Judgment (Preliminary Objections, of 1 April 2011) in the same case, — I warned in my dissenting opinion, — it “was incomprehensibly made dead letter by the Court itself (Judgment, para. 129), which thus ran against and deconstructed its own res interpretata” (I.C.J. Reports 2011 (I), pp. 289‑290, paras. 112 and 114).

49.  I expressed regret as to the outcome of the ICJ’s decision in the case of the Application of the CERD Convention (1 April 2011), with “the ineluctable consequence of inaptly and wrongfully giving pride of place to State consent, even above the fundamental values at stake, underlying the CERD Convention, which call for the realization of justice” (ibid., p. 318, para. 202). I then again warned that the ICJ “cannot keep on privileging State consent above everything, time and time again, even after such consent has already been given by States at the time of ratification” of human rights conventions (ibid., p. 320, para. 205).

50.  It is further to be kept in mind, — I proceeded, — the “humanist optics” whereby “the justiciables are, ultimately, the human beings concerned” (well in keeping with the creation itself of the PCIJ and the ICJ); thus, “to erect a mandatory ‘precondition’ of prior negotiations for the exercise of the Court’s jurisdiction amounts to erecting, in my view, a groundless and most regrettable obstacle to justice” (ibid., p. 321, para. 208). And I then at last pondered, on this particular issue, that

“The Court cannot remain hostage of State consent. It cannot keep displaying an instinctive and continuing search for State consent, (…) to the point of losing sight of the imperative of realization of justice. The moment State consent is manifested is when the State concerned decides to become a party to a treaty, — such as the human rights treaty in the present case, the CERD Convention. The hermeneutics and proper application of that treaty cannot be continuously subjected to a recurring search for State consent. This would unduly render the letter of the treaty dead, and human rights treaties are meant to be living instruments, let alone their spirit.

…………………………………………………………………………………………………..

As this [tragedy] persists, being seemingly proper to the human condition, the need also persists to alleviate human suffering, by means of the realization of justice. This latter is an imperative which the World Court is to keep in mind. This goal — the realization of justice — can hardly be attained from a strict State-centred voluntarist perspective, and a recurring search for State consent. This Court cannot, in my view, keep on paying lip service to what it assumes as representing the State’s ‘intentions’ or ‘will’.

…………………………………………………………………………………………………..

In the present Judgment, the Court entirely missed this point: it

rather embarked on the usual exaltation of State consent, labelled, in paragraph 110, as ‘the fundamental principle of consent’. I do not at all subscribe to its view, as, in my understanding, consent is not ‘fundamental’, it is not even a ‘principle’. What is ‘fundamental’, i.e., what lays in the foundations of this Court, since its creation, is the imperative of the realization of justice, by means of compulsory jurisdiction. State consent is but a rule to be observed in the exercise of compulsory jurisdiction for the realization of justice. It is a means, not an end, it is a procedural requirement, not an element of treaty interpretation; it surely does not belong to the domain of the prima principia. This is what I have been endeavouring to demonstrate in the present dissenting opinion.” (I.C.J. Reports 2011 (I), p. 317, para. 198 and pp. 321‑322, paras. 209 and 211.)

51.  The awareness of the importance of the imperative of judicial settlement of international disputes for the realization of justice and its prevalence over the State’s “will”, found support in international legal thinking as from the beginning of the era of international tribunals (cf. supra). Furthermore, international law, since its historical origins, has been a law of nations, a droit des gens, and not a strictly inter-State law; the human person was considered from the start as a subject of law⁷⁶. In effect, the historical process of the humanization of the law of nations has stressed the relevance of the international legal titularity of the human being, the centrality of which corresponds to the new ethos of our times⁷⁷.

52.  The fidelity to the original lessons and legacy of the “founding fathers” of the law of nations (Part VI, infra) accounts for the reconstruction and evolution of the jus gentium in our times, in conformity with the recta ratio, as a new and truly universal law of humankind. It is thus more sensitive to the identification and realization of superior common values and goals, concerning humankind as a whole. The historical trajectory of the new jus gentium of our times calls for our attention, keeping in mind the factual context of the two present cases (ICAOA and ICAOB) before the ICJ.

53.  Before turning to the examination of this historical formation and development of the new jus gentium, may I here recall that in the present ICAOA and ICAOB cases, the appellant States have asserted (in their second ground of appeal) that the ICAO Council “erred in fact and in law in rejecting [their] first preliminary objection in respect of the competence of the ICAO Council”⁷⁸. The appellant States have thus requested the Court to adjudge that the Council did not have jurisdiction to entertain Qatar’s application submitted to the ICAO Council⁷⁹.

54.  Keeping all this in mind, may I now recall here that the identification of recta ratio flourished in this historical humanization of the law of nations as from the writings of its “founding fathers” in the sixteenth and seventeenth centuries, focusing the emerging new jus gentium in the realm of natural law. This evolution found inspiration in the much earlier scholastic philosophy of this outlook, in particular in the Aristotelian-Stoic-Thomist conception of recta ratio and justice, which conceived human beings as endowed with intrinsic dignity. The recta ratio came to be seen as indispensable to the prevalence of the law of nations itself. It was Cicero who effectively formulated the best-known characterization of recta ratio, even if its roots go back to the thinking of ancient Greeks (Plato and Aristotle), corresponding to its orthos logos⁸⁰.

55.  In conformity with the principles of recta ratio, each subject of law is to behave with justice, as such principles emanate from human conscience, asserting the ineluctable relationship between law and ethics. Natural law reflects the dictates of recta ratio, where justice has its foundations. In his ancient time, Marcus Tullius Cicero attributed (in De Republica, Book III, Chap. XXII, para. 33) to recta ratio perennial validity, extending to all nations in all epochs. In his well-known De Leg‑ ibus (On the Laws, Book II, circa 51-43 bc), he pondered that nothing was “more destructive” than “the use of violence in public affairs”⁸¹. Cicero left a relevant legacy to the “founding fathers” of the law of nations, in situating the recta ratio in the foundations of the jus gentium itself.

56.  The classical jus gentium of Roman law⁸², in transcending with the passing of time its origins of private law, was wholly transformed, in associating itself with the emerging law of nations⁸³, — to what decisively contributed the writings of the “founding fathers” of this latter, particularly those of Francisco de Vitoria, Francisco Suárez, Alberico Gentili, Hugo Grotius, Cornelius van Bynkershoek, Samuel Pufendorf and Christian Wolff, among others. The new jus gentium, as from the sixteenth and seventeenth centuries, came to be associated with humankind itself, engaged in securing its unity and in attending its needs and aspirations⁸⁴, in conformity with an essentially universalist conception⁸⁵.

57.  The jus communicationis of Francisco de Vitoria, for example, was conceived as a law for all human beings. Thus, already in the sixteenth and seventeenth centuries, to de Vitoria and Suárez the emerging State was not an exclusive subject of the law of nations, which comprised moreover peoples and individuals; humankind was taken into account even before the emerging States⁸⁶. The international legal order was necessary rather than “voluntary”, with recta ratio in its foundations⁸⁷.

58.  It may here be recalled that, in the sixteenth century, in his well-acclaimed Relecciones Teológicas (1538-1539), de Vitoria sustained, as to the legal order, that the international community (totus orbis) has primacy over the “will” of each individual State⁸⁸; furthermore, it is coextensive with humankind itself. The new jus gentium secured the unity of societas gentium⁸⁹, and provided the foundations — emanating from a lex praeceptiva of natural law — for the totus orbis, susceptible of being found by the recta ratio inherent to humankind⁹⁰. The way was thus paved for a universal jus gentium, for the apprehension by reason of jus gentium as a true jus necessarium, transcending the limitations of the jus voluntarium⁹¹.

59.  From the whole work of Francisco de Vitoria, and in particular from his Relectio De Indis Prior, the conception emerged of a jus gentium entirely emancipated from its origin of private law — in Roman law — endowed with a humanist vision, at universal level⁹². Furthermore, reparation for violations of human rights came to reflect an international need assisted by the law of nations, in conformity with the recta ratio, with the same principles of justice applying to emerging States as well as to individuals or peoples forming them⁹³. In echoing likewise the universalist vision of the law of nations, Alberico Gentili (author of De Jure Belli, 1598), sustained, at the end of the sixteenth century, that it is the law which regulates the relationship between the members of the universal societas gentium⁹⁴.

60.  In the seventeenth century, in the vision of Francisco Suárez (author of Tractatus De Legibus ac Deo Legislatore, 1612), the subjects of law (emerging States and others) needed a universal legal system to regulate their relations as members of the universal community⁹⁵. The new jus gentium is formed by the uses and customs common to humankind, being conformed by natural reason for the humankind as a whole as an universal law⁹⁶. F. Suárez also drew attention to the precepts of jus gentium encompassing equity and justice, in whole harmony with natural law, wherefrom its norms emanate disclosing its truly universal character⁹⁷.

61.  The contribution of Francisco de Vitoria and Francisco Suárez, from the Spanish theological school, to the consolidation of the new jus gentium was clear. On his part, de Vitoria sought to adapt the Thomist thinking to the historical reality of the sixteenth century, while Suárez presented a formulation of the matter which paved the way for the work of Hugo Grotius. Together, de Vitoria and Suárez set up the bases of a law of universal application (commune omnibus gentibus), of a law for humankind as a whole.

62.  In the conception of jus gentium of Hugo Grotius (De Jure Belli ac Pacis, 1625), it is made clear that the State is not an end in itself, but a means to secure the social order, and to perfect civil society which “comprises the whole of humankind”⁹⁸. The State is to pursue the common good, respectful of the rights of human beings; in his view, the raison d’Etat has limits, and the rights of individuals can be protected against their own State⁹⁹. The writings of H. Grotius make it clear that one cannot pretend to base the international community itself on the voluntas of each State individually.

63.  Grotius sustained that international relations were subject to the legal norms, and not to the raison d’Etat, which is incompatible with the existence itself of the international community: this latter cannot prescind from law¹⁰⁰. In this line of thinking, Samuel Pufendorf (author of De Jure Naturae et Gentium Libri Octo, 1672) likewise identified natural law itself with recta ratio¹⁰¹. On his turn, Christian Wolff (author of Jus Gentium Methodo Scientifica Pertractatum, 1749), pondered that, as individuals have to promote the common good, the State has, on its turn, the correlative duty to seek its perfection¹⁰².

64.  Following that, the personification of the powerful State, inspired in the legal philosophy of Georg Wilhelm Friedrich Hegel, had unfortunately a most regrettable influence upon international law by the end of the nineteenth century and in the first decades of the twentieth century. Regrettably, the universal outlook and the legacy of the “founding fathers” of international law (supra)¹⁰³ were discarded by the emergence of legal positivism, endowing States with a “will” of their own and reducing the rights of human beings to those “granted” by States.

65.  Voluntarist positivism, grounded on the consent or “will” of States, became the predominant criterion, denying jus standi to human beings, and envisaging a strictly inter-State law, no longer above but between sovereign States¹⁰⁴. It resisted to the ideal of emancipation of human beings and their recognition as subjects of international law, keeping them under the absolute control of the State. Yet, the idea of the absolute State sovereignty (with which legal positivism aligned itself, ineluctably subservient to power), which led to the irresponsibility and the alleged omnipotence of the State, not impeding the successive atrocities committed by it against human beings, with the passing of time became entirely groundless, as the disastrous consequences of such distortion had become widely known.

66.  The truth is that, from the “founding fathers” of the law of nations grounded on the recta ratio until our times, the jusnaturalist thinking in international law has never faded away¹⁰⁵; it overcame all crises, in its perennial reaction of human conscience against successive atrocities committed against human beings, which regrettably counted on the subservience and cowardice of legal positivism. It could be argued that the contemporary world is entirely distinct from that of the epoch of the “founding fathers” of the law of nations, who supported a civitas maxima ruled by the droit des gens.

67.  Even if one has two distinct world scenarios (no one would contest it), there is no way to deny that the human aspiration remains the same, namely, that of the construction of an international legal order applicable both to States (and international organizations) as well as to individuals, pursuant to certain universal standards of justice¹⁰⁶, and concerning humankind as a whole. As from the initial influence of the thinking of Francisco de Vitoria (supra), a “continuing revival” of natural law¹⁰⁷, which has never faded away, has been constantly identified. Rather than being a return to classical natural law, it is a reassertion or restoration of a standard of justice, whereby positive law is reconsidered¹⁰⁸, — bearing in mind the conservationist view and the degeneration of legal positivism attached to the status quo, in its typical subservience to power.

68.  The “continuing revival” of natural law strengthens the safeguard of the universality of the rights inherent to all human beings, — overcoming self-contained positive norms, deprived of universality for varying from one social milieu to another. Those universal rights stand against the arbitrary manifestations of State power, in acknowledgement of the importance of fundamental principles of international law¹⁰⁹, which have so much been influencing the evolution, along more than the last seven decades, of the international law of human rights¹¹⁰.

69.  To rescue and sustain nowadays the legacy of the evolving jus gen‑ tium — as I have been caring to do already for years¹¹¹, — amounts to keep on safeguarding the universalist conception of international law, turned to the unsafe world wherein we live. It remains essential to keep in mind the objective and necessary international law, emanating from the recta ratio, giving expression to universal values, and advancing a wide conception of international legal personality (including human beings, and humankind as a whole)¹¹²; this can render viable to address more adequately the problems facing the jus gentium of our times, the international law for humankind¹¹³.

70.  States cannot discriminate or tolerate situations to the detriment of migrants (even the undocumented ones), and ought to secure access to justice to any person, irrespective of his or her migratory status, as well as to oppose successive and systematic restrictions¹¹⁴. Contemporary international law counts on the mechanisms of protection of human beings in situations of adversity (international law of human rights, international humanitarian law, international law of refugees) as well as the operation of the law of international organizations¹¹⁵. Moreover, it counts on the multiple international tribunals, engaged in the realization of justice¹¹⁶. The advances of the international legal order correspond to the awareness of human conscience to the need of realization of the common good and justice.

71.  Awareness of, and respect for, the fundamental principles of international law are essential for the prevalence of rights. The positivists mistakenly identified the principles with the norms emanating therefrom, indulging into the confusion between what it is (Sein) and what it should be (Sollen). They opted for a static vision of the world, entirely ignoring its temporal dimension; moreover, they isolated law from other areas of human knowledge. Regrettably, positivists and “realists” are numerous today, what accounts for the worrisome decline in the cultivation of the knowledge of law. They remain oblivious of the fact that the use of force projects itself, leading to the decomposition of the social tissue, and to the grave violations of human rights and international humanitarian law¹¹⁷, — opening wounds which will require generations to heal.

72.  One cannot simply resort to violence utilizing its own methods¹¹⁸. Legal positivism and “realism” have regrettably been invariably subservient to power, unable to understand and accept the profound transformations of contemporary international law in seeking the realization of the imperatives of justice. Whenever their minimization prevailed the results have been disastrous. The emancipation of human persons vis-à-vis their own State and the emancipation of peoples in the law of nations have occurred before the lack of awareness of legal positivists and “realists”, who wrongly pretended that the reality over which they worked was permanent and unavoidable; what actually occurred was that, with perplexity before the changes, they had to move from one historical moment to another one, entirely different.

73.  In my perception, their basic mistake has been their minimization of the principles¹¹⁹, which lie on the foundations of any legal system (national and international), and which inform and conform the new legal order in the search for the realization of justice. May I here recall that, as Jacques Maritain rightly warned already in 1940, the temporal dimension of social facts and the imperatives of ethics and justice, together with the general principles of law (the principles of natural law) are to be kept in mind¹²⁰, so as to construct a new international legal order in opposition to violence and the use of force.

74.  Voluntarist positivism was unable to explain the process of formation of the norms of general international law. And “realists” focused themselves only on the conduct of States (even when unlawful) as a “permanent factor”, — as criticized by Hersch Lauterpacht, — which led them soon to “disapprove” the idea of collective security, early in the era of the United Nations; they could only see interests and advantages, and did not seem to believe in human reason, in recta ratio, not even in the capacity of human beings to extract lessons from historical experience¹²¹.

75.  For those who dedicate themselves to the law of nations, it has become evident that one can only properly approach its foundations and validity as from universal juridical conscience, in conformity with the recta ratio. In my understanding, the true jusinternationalist thinking conceives international law as being endowed with its own intrinsic value, and being thus certainly superior to a simply “voluntary” law. It derives its authority from recta ratio itself (est dictatum rectae rationis), which has always called for a truly universal law of nations.

76.  As just seen (Part VI, supra), the evolution itself of the law of nations has disclosed the prevalence of human conscience (recta ratio) over the “will”¹²² (supra). By contrast, legal positivism statically focused rather on the “will” of States. Humankind as subject of international law cannot at all be restrictively visualized from the optics of States only; definitively, what imposes itself is to recognize the limits of States as from the optics of humankind, this latter likewise being a subject of contemporary international law.

77.  It is clear that human conscience stands well above the “will”. The emergence, formation, development and expansion of the law of nations (droit des gens) are grounded on recta ratio, and are guided by general principles of law and human values. Law and justice are interrelated, they evolve together. It is regrettable that the great majority of practitioners in international law overvalue the “will” of the contending parties, without realizing the importance of fundamental principles and superior human values.

78.  Voluntarism and positivism have by themselves rendered a disservice to international law. So-called “countermeasures” are an example of deconstruction ensuing therefrom, which should not appeal in legal practice. It is regrettable that, in the present proceedings, as seen (supra), the appellant States invoked “countermeasures” in both cases of ICAOA and ICAOB — an initiative that could and should have been avoided and is not to be repeated.

79.  In sequence, there are some remaining interrelated points to be here addressed, so as to complement the present considerations, namely: first, basic considerations of humanity in the corpus juris gentium; secondly, human suffering and the need of protection to victims; and thirdly, the interrelationship between law and justice orienting jurisprudential construction. After all, to the jurist is reserved a role of crucial importance in the current strengthening of the construction, in conformity with the recta ratio, of the new jus gentium of our times, the universal law of humankind¹²³.

80.  In historical perspective, as seen, two (legal) reasonings can be perceived: one, attentive to principles and values, to the ineluctable interrelationship between law and justice; the other, attentive to authority and imposition or control, to the ineluctable relationship between law and power. The law of nations, with the leitmotiv I have identified for so many years, conforms a corpus juris gentium nowadays orienting law and justice together to the satisfaction of the needs and aspirations of human beings, of peoples and of humankind as a whole. On the basis of the experience accumulated in recent decades, there is no reason for limitation to positive (international) law. The international community cannot prescind from universal values.

81.  The traditional inter-State outlook of international law has surely been overcome, with the expansion of international legal personality encompassing nowadays, besides States, international organizations, individuals and peoples, as well as humankind. The conditions are thus met for keeping on advancing the construction of a new jus gentium, keeping in mind the social needs and aspirations of the international community (civitas maxima gentium), of humankind as a whole, so as to provide responses to fulfil them. Moreover, it is essential to acknowledge the importance of fundamental principles of international law, in light of the universal conception of the law of nations.

82.  Contemporary international law bears witness of a legitimate concern of the international community as a whole with the conditions of living of peoples everywhere. This new jus gentium of our days contains basic considerations of humanity in the whole corpus juris of contemporary international law, reflecting the humanization of this latter¹²⁴. This evolution, in the lines of the continued universalization and humanization of the law of nations, is faithful to the thinking of the “founding fathers” of the discipline (supra), attentive nowadays to the needs and aspirations of the international community, and of humankind as a whole.

83.  The evolving law of nations cannot make abstraction of human cruelty, as it has to extend protection to those victimized by injustice and human suffering. In this connection, may I recall that, in the mid-twentieth century, shortly after the Second World War, a learned historian, Arnold Joseph Toynbee, observed that the works of artists and academicians “outlive the deeds of businessmen, soldiers, and statesmen”, and further pondered that

“The ghosts of Agamemnon and Pericles haunt the living world of today by grace of the magic words of Homer and Thucydides (…). The experience that we were having in our world now had been experienced by Thucydides in his world already. (…) The prophets, through their own experience, anticipated Aeschylus’ discovery that learning comes through suffering — a discovery which we, in our time and circumstances, have been making too. (…) Civilizations rise and fall and, in falling, give rise to others.”¹²⁵

84.  Warning that “the atom bomb and our many other new lethal weapons are capable, in another war, of wiping out not merely the belligerents but the whole of the human race”¹²⁶, Toynbee added that

“In each of (…) civilizations, mankind (…) is trying to rise above mere humanity (…) towards some higher kind of spiritual life. (…) The goal (…) has never been reached by any human society. It has, perhaps, been reached by individual men and women. (…) But if there have been a few transfigured men and women, there has never been such a thing as a civilized society. Civilization, as we know it, is a movement and not a condition, a voyage and not a harbour. No known civilization has ever reached the goal of civilization yet.”¹²⁷

85.  Toynbee then regretted that “contradictions and paradoxes in the life of the world” at that time looked like “symptoms of serious social and spiritual sickness”¹²⁸. And he concluded that “man’s only dangers (…) have come from man himself”; after all, the truth facing us is that “in this world we do learn by suffering”, and that “life in this world is not an end in itself and by itself”¹²⁹. Such were his words in 1948, as a learned and sensitive historian. By that time the law of nations was already engaged in assuring the vindication of the rights of human beings also at international level.

86.  In effect, in the same year of 1948, — may I here recall, — the law of nations itself expressed concern for humankind, as exemplified by the adoption, successively, in that same year, e.g. of the OAS American Declaration of the Rights and Duties of Man (adopted on 2 May 1948), of the UN Convention against Genocide (adopted on 9 December 1948), and of the UN Universal Declaration of Human Rights (adopted on 10 December 1948). The international law of human rights was at last seeing the light of the day, enhancing the position of human beings and their inherent rights in the corpus juris gentium from those historical moments onwards.

87.  Along the time, it has remained necessary to avoid the undue and regrettable divorce between law and justice, which legal positivists had incurred into (summum jus, summa injuria). Within a historical perspective, may I here recall that, in her times, Simone Weil, in some of her last pages (Ecrits de Londres/Escritos de Londres, 1943) before her premature death, pointed out that the ancient Greeks, who were not familiar with the notion of law (finding no words for it), concentrated thus on justice¹³⁰.

88.  One decade earlier, Simone Weil had written Réflexions sur les causes de la liberté et de l’oppression sociale (1934) [English translation entitled Oppression and Liberty, 1958], wherein, after recalling the lessons found in Homer’s Iliad (eighth century bc), then warned that “the essential evil besetting humankind” (le mal essentiel de l’humanité) is “the substitution of means for ends” (la substitution des moyens aux fins); human history thus distorted, — she proceeded, — becomes subjection [servitude, asservissement], and such an oppression presents “nothing providential”, it reflects a struggle for power, wherein construction and destruction are intermingled¹³¹ (pp. 41‑43 and 46). Weil further pondered that

“[e]very oppressive society is cemented by this religion of power, which falsifies all social relations by enabling the powerful to command over and above what they are able to impose; it is only otherwise in times of popular agitation, times when, on the contrary, all — rebellious slaves and threatened masters alike — forget how heavy and how solid the chains of oppression are.”¹³²

89.  Also in our days, legal positivists do not appear to be aware even of the dangers of the unbalance between law and justice in their own outlook. They can behold only the first one, — law, — in their characteristic subservience to the established power. The results have been regrettable, if not tragic. All those devoted to international law in its universality feel bound to care constantly that law and justice are not at all put apart, they are interrelated and advance together. After all, it is in jusnaturalist thinking that the notion of justice has always occupied a central position, orienting law as a whole. In my own perception and conception, justice is found, in sum, at the beginning of all law, being, moreover, its ultimate end¹³³.

90.  The law of nations can only be properly considered together with its foundations, and its basic principles which permeate its whole corpus juris, in line of natural law thinking¹³⁴. This has been sustained, along the decades, e.g. by the most lucid Latin American doctrine of international law, from its earlier manifestations in the nineteenth century¹³⁵, until nowadays at the end of the second decade of the twenty-first century¹³⁶. As I have been sustaining over the years, basic principles give expression to the values and ultimate ends of the international legal order,

“so as to guide it and to protect it against the incongruences of State practice, and to fulfil the needs of the international community itself¹³⁷. The principles referred to, in emanating from the human conscience and not from the ‘will’ of States, give expression to the idea of objective justice (in the best line of jusnaturalist thinking), to the benefit of the international community as a whole.”¹³⁸

91.  In effect, I have been making this point over the years in the case law of the ICJ. For example, one decade ago, in my lengthy separate opinion in the ICJ’s Advisory Opinion (of 22 July 2010) on the Accor‑ dance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, I singled out, inter alia, the relevance of the general principles of international law in the framework of the law of the United Nations, and in relation to the human ends of the State (Advisory Opinion, I.C.J. Reports 2010 (II), pp. 594‑607, paras. 177-211), leading furthermore to the overcoming of the strictly inter-State paradigm in contemporary international law. I have recently done so again, in my separate opinion in the ICJ’s Advisory Opinion (of 25 February 2019) on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion, I.C.J. Reports 2019 (I), p. 248, para. 292).

92.  Likewise, on another occasion, in my extensive dissenting opinion in the ICJ’s Judgment (of 1 April 2011) in the case concerning the Appli‑ cation of the Convention on the Elimination of All Forms of Racial Dis‑ crimination (Georgia v. Russian Federation), — in which the Court found it had no jurisdiction to examine the application, — I strongly criticized the ICJ’s “outdated voluntarist conception” (emphasizing State consent), and drew attention to “the imperatives of the realization of justice at international level” (Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 257, para. 44, and cf. p. 294, para. 127). After addressing the need “to overcome the vicissitudes of the ‘will’ of States” (ibid., p. 314, paras. 188-189), I stressed the importance of general principles of law and fundamental values, standing well above State consent (ibid., p. 316, para. 194)¹³⁹.

93.  I further pointed out that the compromissory clause (Art. 22) of the aforementioned Convention should have been interpreted by the ICJ taking into account its nature and material content, in addition to the object and purpose of the Convention, as a human rights treaty (ibid., pp. 265-291, paras. 64-118); as it did not do so, it did not contribute to the realization of justice in the cas d’espèce. As I warned in my lecture at the Hague Academy of International Law in 2017, “the basic posture of an international tribunal can only be principiste, without making undue concessions to State voluntarism”¹⁴⁰. And I added that the general principles of international law inform and conform the norms and rules of the law of nations, “reflecting the universal juridical conscience; in the evolving jus gentium, basic considerations of humanity are of the utmost importance”¹⁴¹.

94.  More recently, the issue again marked its presence in respect of the interrelationship between law and justice orienting jurisprudential construction. In my extensive separate opinion appended to the ICJ’s aforementioned Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (of 25 February 2019), I have, inter alia, strongly criticized any attempt to limit the meaning and scope of application of general principles of law; I have pondered that

“The addition, in Article 38 (1) (c) of the PCIJ/ICJ Statute, to general principles of law, of the qualification ‘recognized by civilized nations’, was, in my perception, distracted, done without reflection and without a minimal critical spirit, — keeping in mind that in 1920, in 1945, and nowadays, it was and remains impossible to determine which are the ‘civilized nations’. No country is to consider itself as essentially ‘civilized’; we can only identify the ones which behave in a ‘civilized’ way for some time, and while they so behave.

In my view, the aforementioned qualification was added to the ‘general principles of law’ in Article 38 of the Statute of the PCIJ in 1920 by mental lethargy, and was maintained in the Statute of the ICJ in 1945, wherein it remains until now (beginning of 2019), by mental inertia, and without a critical spirit. We ought to have some more courage and humility, much needed, in relation to our human condition, given the notorious human propensity to unlimited cruelty. From the ancient Greek tragedies to contemporary ones, human existence has always been surrounded by tragedy. Definitively, there do not exist nations or countries ‘civilized’ per se, but only those which behave in a civilized way for some time, and while they so behave.”¹⁴² (Advisory Opinion, I.C.J. Reports 2019 (I), pp. 248‑249, paras. 293-294.)

95.  Very recently, in the case of Application of the International Con‑ vention for the Suppression of the Financing of Terrorism and of the Inter‑ national Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), I pointed out, in my separate opinion, that

“The prevalence of human beings over States marked presence in the writings of the ‘founding fathers’ of the law of nations, already attentive to the need of redress for the harm done to the human person. This concern mark presence in the writings of the ‘founding fathers’ of the sixteenth century, namely: Francisco de Vitoria (Second Relectio — De Indis, 1538-1539)¹⁴³; Juan de la Peña (De Bello contra Insulanos, 1545); Bartolomé de Las Casas (De Regia Potestate, 1571); Juan Roa Dávila (De Regnorum Justitia, 1591); and Alberico Gentili (De Jure Belli, 1598).

Attention to the need of redress is likewise present in the writings of the ‘founding fathers’ of the following seventeenth century, namely: Juan Zapata y Sandoval (De Justitia Distributiva et Acceptione Per‑ sonarum ei Opposita Disceptatio, 1609); Francisco Suárez (De Legibus ac Deo Legislatore, 1612); Hugo Grotius (De Jure Belli ac Pacis, 1625, Book II, Chap. 17); and Samuel Pufendorf (Elementorum Jurispru‑ dentiae Universalis — Libri Duo, 1672; and On the Duty of Man and Citizen According to Natural Law, 1673); and is also present in the writings of other thinkers of the eighteenth century. This is to be kept in mind.” (Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 640, paras. 40-41.)

96.  Nowadays we are fortunate to live in the era of international tribunals, created for the exercise of the common mission of realization of justice. Overcoming an outdated State voluntarist conception, they have been contributing to the expansion of international jurisdiction, responsibility, personality and capacity, to the benefit of humankind, — as I have been pointing out over the years in successive writings¹⁴⁴. The advances achieved so far are due to the awareness that human conscience stands above the “will”.

97.  May I here furthermore recall that, in my understanding, an international tribunal is entitled, besides settling disputes, to state what the law is (juris dictio), keeping in mind that contemporary international law applies directly to States, international organizations, peoples and individuals, as well as humankind¹⁴⁵. It is necessary to keep in mind that

“The work of contemporary international tribunals can thus be evaluated from the perspective of the justiciables themselves¹⁴⁶. In pursuing their common objective, reassuring progress has been made … again from the perspective of the justiciables. This present-day development is highly significant, driven by the awakening of human conscience to its importance; and as I have emphasized over the years, human conscience is the ultimate material source of all law …

The co-existence of multiple international tribunals in contemporary international law has considerably expanded the number of jus‑ ticiables, in all parts of the world, even under the most adverse conditions … The co-ordinated and harmonious operation of contemporary international tribunals is a sign of the times, … and of hope for a world with more justice.”¹⁴⁷

98.  After all, the foundations of international law emanate clearly from human conscience, the universal juridical conscience, and not from the so-called “will” of individual States. Judicial settlement nowadays extends itself significantly to all domains of contemporary international law, and the present co-existence of international tribunals has considerably enlarged the number of justiciables in all parts of the world even under the most adverse conditions, in an essential and indispensable step to the realization of justice at international level¹⁴⁸.

99.  In effect, in its case law, the ICJ has not yet devoted sufficient attention to the general principles of law; in my perception, it has unduly given much importance to State “consent”, an attitude that I have constantly criticized. In my understanding, general principles of law are in the foundations themselves of international law, being essential for the realization of justice. Moreover, in our times, even the difficulties in the labour of the ICJ in given cases ought to be considered in the larger framework, — besides the expansion of the international jurisdiction, — of the concomitant expansion of the international legal personality as well as of the international responsibility, — and the mechanisms of implementation of this latter.

100.  Such expansion (of international jurisdiction, legal personality and capacity, and responsibility), characteristic of our times, comes on its part to foster the encouraging historical process in course of the human‑ ization of international law¹⁴⁹. There have been cases with true advances with the necessary overcoming of persisting difficulties¹⁵⁰, discarding the dogmas of the past. The rights of the human person have been effectively marking presence also in the framework of the ICJ’s traditional inter-State contentieux.

101.  With these considerations in mind, may I now proceed, last but not least, to a brief recapitulation of the main points that I have deemed fit to make, in the present separate opinion, in respect of the lack of foundation of so-called “countermeasures”, as raised by the appellant States in the cas d’espèce. Primus: It may be recalled that, during the 1990s, in the several years of its work on the elaboration followed by the adoption of its Articles on State Responsibility (in 2001), the members of the International Law Commission consumed much time facing some resistance to certain innovations inserted into the draft, in particular that of “countermeasures”, found by some participants as not being in accordance with the foundations of the law of nations.

102.  Secundus: The same occurred in the corresponding debates of delegates in the VI Committee of the UN General Assembly, likewise critical of “countermeasures”. Tertius: The awareness of the importance and the prevalence of the imperative of judicial settlement of international disputes, and the support for the imperative of such prevalence over the State’s “will”, has found support in international legal thinking as from the beginning of the era of international tribunals.

103.  Quartus: It is important to keep in mind the reflections on international legal thinking and the prevalence of recta ratio (human conscience) over the “will”. Quintus: In the history of international legal thinking, it is also important to keep in mind that the identification of recta ratio as appeared in the writings of the “founding fathers” of international law during the sixteenth and seventeenth centuries, in the realm of natural law. Sextus: Each subject of law is to behave with justice, in conformity with the principles of recta ratio, which emanate from human conscience, asserting the ineluctable relationship between law and ethics.

104.  Septimus: Natural law reflects the principles of recta ratio, where justice has its foundations. Octavus: The legal order of the international community (totus orbis) has primacy over the “will” of each individual State, being coextensive with humankind itself. Nonus: The new jus gen‑ tium, securing the unity of societas gentium, provided the foundations — emanating from a lex praeceptiva of natural law — for the totus orbis, capable of being found by the recta ratio inherent to humankind.

105.  Decimus: On the other hand, as from the end of the nineteenth century and in the first decades of the twentieth century, voluntarist positivism, grounded on the consent or “will” of States, envisaged a strictly inter-State law, ineluctably subservient to power, leading to devastating consequences against human beings. Undecimus: The present cases (ICAOA and ICAOB) before the ICJ once again show that international adjudication can only be properly undertaken from a humanist perspective, necessarily avoiding the pitfalls of an outdated and impertinent State voluntarist outlook.

106.  Duodecimus: Recta ratio and the jusnaturalist thinking in international law have never faded away until our times, as a perennial reaction of human conscience against the subservience and cowardice of legal positivism and the breaches of the rights of human beings. Tertius decimus: The foundations and validity of the law of nations can only be properly approached as from the universal juridical conscience, in conformity with the recta ratio.

107.  Quartus decimus: Human conscience stands well above the “will” of States, and the law of nations is grounded by recta ratio and guided by general principles of law and human values. Quintus decimus: Voluntarism and positivism have rendered a disservice to international law, and “countermeasures” are an unacceptable deconstruction to be avoided. Sextus decimus: The universal rights of human beings stand against the arbitrary manifestations of State power, in acknowledgement of the importance of fundamental principles of international law.

108.  Septimus decimus: Awareness of, and respect for, the fundamental principles of international law are essential for the prevalence of rights; legal positivists mistakenly identified the principles with the norms emanating therefrom. Duodevicesimus: Voluntarist positivism was unable to explain the process of formation of the norms of general international law; in effect, the emancipation of human persons vis-à-vis their own State as well as of peoples in the law of nations have occurred even before the lack of awareness of legal positivists.

109.  Undevicesimus: The evolution of the law of nations conforms a corpus juris gentium that has advanced the prevalence of human conscience (recta ratio) over the “will” of States. Vicesimus: The present cases (ICAOA and ICAOB) before the ICJ leave it clear that so-called “countermeasures” provide no legal ground whatsoever for any legal action. Vicesimus primus: It is essential to remain attentive to universal principles and values, to the ineluctable interrelationship between law and justice; the international community cannot prescind from universal principles and values of the law of nations, in light of the universal conception of the droit des gens.

110.  Vicesimus secundus: General principles of law are a manifestation of the universal juridical conscience. Vicesimus tertius: The common mission in the work of contemporary international tribunals can be properly appreciated from the perspectives of the justiciables themselves. Vicesimus quartus: The law of nations orients nowadays law and justice together, to the satisfaction of the needs and aspirations of human beings, of peoples and of humankind as a whole.

111.  Vicesimus quintus: The rights of the human person have been effectively marking presence also in the framework of the ICJ’s traditional inter-State contentieux. Vicesimus sextus: Law and justice are interrelated and advance together; after all, it is in jusnaturalist thinking that the notion of justice has always occupied a central position, orienting law as a whole. Vicesimus septimus: The foundations of international law emanate clearly from human conscience, the universal juridical conscience, and not from the so-called “will” of individual States.

112.  Vicesimus octavus: On the other hand, legal positivists remain unaware even of the dangers of the unbalance between law and justice in their own outlook, and do not consider the legal effects of their indifference. Vicesimus nonus: The ICJ cannot remain hostage of State consent; it has to make sure that it is the imperative of realization of justice which prevails. Trigesimus: The traditional inter-State outlook of international law has surely been overcome, with the expansion of international legal personality encompassing nowadays, besides States, international organizations, individuals and peoples, as well as humankind.

113.  Trigesimus primus: Such expansion, characteristic of our times, — encompassing altogether international jurisdiction, legal personality and capacity, and responsibility, — comes on its part to foster the encouraging historical process in course of the humanization of international law. Trigesimus secundus: It is important to keep on believing in human reason, in recta ratio, and in the capacity of human beings to extract lessons from historical experience, in the permanent endeavours towards the realization of justice.

114.  Trigesimus tertius: After all, it is further to be kept in mind that fundamental principles of law lie on the very foundations of the international legal system itself, being essential for the realization of justice. Tri‑ gesimus quartus: The present cases of ICAOA and ICAOB reveal the importance of the awareness of the historical formation of the law of nations, as well as of the needed faithfulness of the ICJ to the realization of justice, which clearly prevails over the “will” of States.

(Signed) Antônio Augusto Cançado Trindade.

1.  I have voted in favour of the Court’s findings in the dispositif, as I believe each of the Applicants’ three grounds of appeal ought to have been rejected. However, I disagree with the Court’s expansive view of the ICAO Council’s competence to address matters unrelated to civil aviation, particularly as expressed in paragraphs 48 and 61 of the Judgment. In this declaration, I shall set out the reasons for this disagreement.

2.  In my view, the Applicants’ arguments concerning jurisdiction ratione materiae can be rejected by adhering to the Court’s 1972 decision in Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan). In that case, the Court clearly rejected the notion that the characterization of a defence on the merits as falling outside the scope of the Chicago Convention and IASTA can deprive the ICAO Council of jurisdiction¹. The same reasoning applies in the present case, as the Applicants’ contention that their aviation restrictions constitute lawful countermeasures is, in essence, a defence on the merits².

3.  However, the propriety of the ICAO Council addressing matters unrelated to civil aviation as part of its dispute settlement function is not nearly as unequivocal as the present Judgment suggests. Given the importance of the principles at stake — most notably the principle of consent in inter‑State dispute settlement — the Council’s competence should be clearly defined and limited to those matters with which the States parties have affirmatively entrusted it. The Court in the present Judgment goes too far in appearing to endorse an expanded definition of the Council’s competence, according to which the Council may (and perhaps must) consider issues unrelated to civil aviation in resolving disputes under Article 84 of the Chicago Convention and Article II, Section 2, of IASTA.

4.  In paragraph 48 of the Judgment, the Court relies upon a pronouncement from United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) for the proposition that the existence of a broader context behind the Parties’ dispute “does not deprive the ICAO Council of its jurisdiction under Article 84 of the Chicago Convention”³. According to the Court’s Judgment in that case, the fact that a legal dispute may form part of a wider political dispute between the States involved does not deprive the Court of jurisdiction over that legal dispute⁴. To hold otherwise would be to “impose a far‑reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes”⁵.

5.  While this principle has been upheld numerous times in the context of proceedings before the Court⁶, it does not, in my view, apply to other international institutions that were not created exclusively for the purpose of the peaceful settlement of disputes. In particular, the political contexts referred to in United States Diplomatic and Con‑ sular Staff in Tehran may have a greater impact on proceedings before a body composed of representatives of States than on proceedings before the Court. In other words, it is one thing to say that the existence a broader political dispute should not affect the competence of a body that is composed of “independent judges”⁷, and quite another to apply the same principle to a body made up of States parties to the treaty in question⁸, each of which is likely to have its own political agenda and the potential to be influenced by non-legal considerations.

6.  The Court does not provide an explanation for why it considers its reasoning from United States Diplomatic and Consular Staff in Tehran to apply to the Council. This omission is notable given that, elsewhere in the present Judgment, the Court highlights significant differences between itself and the ICAO Council⁹, particularly that the Council is composed not of independent judges, but of “contracting States elected by the Assembly”¹⁰.

7.  Several other considerations bear mentioning. For instance, Members of the Council act on instructions from their Governments when voting in proceedings under Article 84¹¹ — a fact which clearly illustrates the Council’s non-judicial nature. Moreover, while the Court’s principal function relates to the peaceful settlement of legal disputes, Article 54 of the Chicago Convention assigns to the ICAO Council a wide array of responsibilities, most of which are of a technical or administrative nature (for instance, it must “[a]dminister the finances of the Organization”, and “[a]dopt … international standards and recommended practices” relating to civil aviation). Finally, while the Court’s Statute empowers it to consider “any question of international law”, the ICAO Council has a far narrower dispute settlement mandate relating solely to the interpretation and application of the ICAO treaties.

8.  These are all reasons to consider that jurisdictional principles which apply to the Court do not apply equally to the ICAO Council. I therefore disagree with the Court’s reliance on the pronouncement from United States Diplomatic and Consular Staff in Tehran in its approach to the Applicants’ second ground of appeal.

9.  For similar reasons, I am also in disagreement with the Court’s reasoning in paragraph 61 of the Judgment. Given the aforementioned differences between itself and the ICAO Council, the Court declines to apply the concept of “judicial propriety” per se to the Council¹². However, the Court then proceeds to hold that the “integrity of the Council’s dispute settlement function would not be affected if the Council examined issues outside matters of civil aviation” for the sole purpose of deciding a dispute over which it has jurisdiction¹³.

10.  In my view, this categorical statement is too broad. Nothing like a doctrine of “judicial propriety” can properly be applied to the ICAO Council, as the Council is a body of a primarily technical and administrative nature, whose Members act as representatives of their Governments and need not be well‑versed in international law, and whose dispute settlement mandate is narrowly limited to the interpretation and application of the ICAO treaties. These factors weigh against a general pronouncement that it is appropriate for the Council to consider matters unrelated to civil aviation, so long as it does so for the purpose of resolving a dispute over which it otherwise has jurisdiction.

11.  The basic principle remains that States should be subjected to the jurisdiction of the Council only to the extent they have consented to it. As the Court has observed with respect to its own competence, “the Court has jurisdiction in respect of States only to the extent that they have consented thereto”¹⁴, and when consent is expressed in a compromissory clause in an international agreement, the terms of the clause “must be regarded as constituting the limits” on that consent¹⁵.

12.  These considerations apply with even greater force to an institution like the ICAO Council, given its narrow mandate. As Article 84 of the Chicago Convention and Article II, Section 2, of IASTA only provide the Council with jurisdiction to adjudicate disputes relating to those instruments, States have not, in principle, consented to having matters unrelated to civil aviation adjudicated by the Council. In establishing that the integrity of the Council’s dispute settlement function “would not be affected” by the Council considering matters unrelated to civil aviation in exercising its jurisdiction, the Court endorses a broad vision of the Council’s competence that in the future may do harm to the fundamental principle of consent in the peaceful settlement of disputes.

13.  In summary, I am of the view that the Court goes in a wrong direction in attempting to define the ICAO Council’s ability to address arguments unrelated to civil aviation. The Court could have relied on its 1972 Judgment in the India v. Pakistan case to reject the Applicants’ second ground of appeal. That decision made clear that the Council is not deprived of jurisdiction ratione materiae simply because the respondent characterizes a defence on the merits as falling outside the Council’s competence. Instead, whether willingly or unwillingly, the Court appears to widen the competence of the ICAO Council — a body whose role is to settle discrete aviation disputes. In so doing, the Judgment, without substantial legal basis, risks in the future unduly subjecting States to the Council’s dispute settlement procedures without their consent. For the reasons described above, I consider this neither necessary nor appropriate.

(Signed) Kirill Gevorgian.

1.  I have no great difficulty in associating myself with the Court’s dismissal of this appeal. The applicant States have failed to make out any of their three grounds of appeal against the Decision of the ICAO Council (which I will for convenience refer to simply as “the Council”), and the inevitable consequence is that the appeal as such must be rejected. Nevertheless, the Court has thought it useful to add, in the second part of the dispositif of its Judgment, a formal finding that the Council “has jurisdiction to entertain” the application submitted to it by Qatar. These are sweeping terms which have little relationship to the submissions actually put to the Court by the Parties on either side. They are terms which, if left unqualified or unexplained, are all too likely to lead to misunderstanding or confusion in the future, in the application of Article 84 of the Chicago Convention. And, as the Court has missed the opportunity to perform, in its Judgment, the necessary task of explanation or even qualification, I have found myself constrained to vote against subparagraph (2) of paragraph 126, and should explain the reasons why. I do so in the hope that this may be of real assistance to the Council in the future in carrying out the awkward and not altogether clear‑cut task that has been laid upon it by Article 84. What I say may well turn out to be of greater practical importance for the case of a final decision by the Council on the merits of a question of interpretation or application of the Chicago Convention, but that does not make it out of place in appeal proceedings on what the Judgment refers to as a question of “jurisdiction” as the precursor of an eventual decision on the merits.

2.  Article 84 is a difficult and troubling provision, raising numerous problems over its interpretation, as well as uncertainties over what the intention was that lay behind it. It is hardly surprising to find in the historical record that it has regularly raised perplexity and anxiety within the Council itself over what it can and should do to realize the mandate Article 84 casts upon it, and how that should be done. Much of that can be seen reflected in the controversy and uncertainty that dogged the processes followed within ICAO in the handling of Qatar’s initial complaint, and which re‑emerged in the present proceedings before the Court.

3.  If the appellate jurisdiction conferred on this Court by Article 84 is reasonably clear — or at least clear enough (though see paragraphs 12 and 18 below), it is far from clear, on the terms of the Article, exactly what authority it seeks to confer on the ICAO Council over and above that which arises from the other provisions of the Chicago Convention taken as a whole. The Council already has, for example, the “[m]andatory”¹ function under Article 54 to “[c]onsider any matter relating to the Convention which any contracting State refers to it”, as well as to “[r]eport to contracting States any infraction of this Convention”. What Article 84 adds to that must therefore be something to do with the nature or legal status of the decision which the Council reaches on an application made to it under Article 84, not about its competence to entertain the application in the first place. By using in the dispositif the term “jurisdiction” for the Council’s functions under Article 84, with all of the connotations that term usually carries of judicial power and process, the Court has, regrettably, contributed to prolonging this confusion rather than setting out to dispel it.

4.  Article 84 is drafted to deal with “disagreements” between contracting States, disagreements “relating to” the interpretation or application of the Convention. Although the heading uses the term “disputes” — and there are two references to “dispute” in the body text — it remains the fact that what the Article opens the path for, and what the Council must then “decide”, are “disagreement[s] between two or more contracting States” which, if not settled by agreement between them, may then be referred to the Council by any State “concerned in” the disagreement. The Court’s failure to enter into any consideration of the use of these two different terms in Article 84 is disappointing. The Court is of course right to point out (in paragraph 29), by reference to the Judgment in Mavrom‑ matis Palestine Concessions (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2), that for there to be a “dispute” presupposes a “disagreement”, but this by no means entails that every disagreement constitutes a dispute. It is not at all difficult to give each of the two different terms, as used here, a full meaning of its own, and one which would thus illuminate the role and function cast on the Council by Article 84.

5.  While therefore Article 84, taken as a whole, can certainly find a place of some kind within the framework of “dispute settlement” — in the broad ecumenical sense of Article 33 of the United Nations Charter with its references to negotiation, enquiry, mediation, conciliation, etc. — the language used is not that of judicial settlement. And it is judicial settlement that carries with it the notion of “jurisdiction” (jus dicere) and therefore of the legally binding outcome that results from its exercise.

6.  The Court has, again rightly, made it plain that the Council should not be regarded as a judicial organ in any ordinary sense. The Judgment lays out, in paragraph 60, some compelling reasons why that is so, and others could readily be added, including the factor which figured largely in the arguments of the Parties, namely that the Members of the Council are accepted as acting on instructions from their Governments, even in the exercise of their functions under Article 84. To which I would myself add a further factor, and one that seems to me of possibly even greater significance. This is that, in framing its own Rules for the implementation of Article 84², the Council builds expressly on the notions of “disagreement” and “not settled by negotiation” which are found in the Article. It does this by laying a mandatory requirement on itself to consider at an early stage (Article 6 of the Rules) whether to invite the States concerned to enter into direct negotiations, and even allows it expressly to suspend its own proceedings for that purpose, to offer its own assistance in negotiations, to appoint conciliators, have enquiries carried out, procure expert opinions, etc. (Articles 8 and 14 of the Rules). These are actions naturally and typically associated with the highest executive organ of a significant technical agency, or with an amiable compositeur, but not with any kind of tribunal. The Judgment touches on this, in paragraph 87, but does so far too lightly, indeed almost casually, and thus fails to extract from it the conclusions that should have been drawn.

7.  All of the above is so far removed from the fundamental concepts underlying judicial or legal settlement of disputes, anchored as they are in the objective, independent, and detached assessment of arguments of fact and law, that it must give one pause. Pause, in other words, to consider whether the contracting States to the Chicago Convention, or in its turn the Council itself, in seeking to give effect to their wishes, can have been thinking of Article 84 as endowing the Council with any kind of judicial power to decide, with binding legal effect, upon disputes between member State A and member State B. It can be remarked in this connection that, whereas the Chicago Convention goes out of its way, in Article 86, to confer “final and binding” status on appellate decisions of this Court (or an arbitral tribunal), it says nothing at all a few lines earlier about the status in law of a decision arrived at by the Council on a “disagreement between two or more contracting States relating to the interpretation or application of the Convention”.

8.  Moreover, I detect another significant clue within the text of Article 84 itself. The Article opens the right to appeal against a Council decision of the kind just mentioned, not to any State “party” to a “dispute”, nor even to any State “concerned in a disagreement”, but in fact to any contracting State to the Convention without further qualification. If that means what it says, it takes one a long way away from any normal dispute settlement process, and most certainly one involving elements lying outside the régime of the Chicago Convention. True it is that no textual questions of this kind found much place in the arguments of the Parties on either side, and that the Court may therefore have some justification for not entering into them itself in any detail. But it seems to me elementary that any judgment of the Court that bases itself on a concept of “jurisdiction” is duty bound to give some prior reasoned consideration to the actual nature and quality of the powers or competences that had been conferred on the body thought to possess such “jurisdiction”. And that, in turn, can only be done by close analysis of Article 84 and associated articles according to the hallowed formula of the Vienna Convention on the Law of Treaties, i.e. to discern the meaning to be given to their terms in their context and in the light of the object and purpose of the treaty as a whole.

9.  The Court has always given close and minute attention of this kind to jurisdictional clauses³. The more “jurisdictional” the Court was inclined to find Article 84 to be, the more the Court was under a duty to give that kind of detailed attention to the Article’s interpretation. A true “jurisdictional” clause — perhaps more so than any other, inasmuch as it embodies, along with general consent to be bound by the treaty as a whole, specific consent by each contracting State to the exercise of that jurisdiction and the consequences of its exercise — has to be interpreted as it is, with all its difficulties and ambiguities, not according to how later interpreters might themselves have written the clause if tasked with doing so.

10.  For all of the above reasons and more, it seems to me that there is another reading of Article 84, in its context within the Chicago Convention as a whole, including specifically the other powers and functions to be carried out by the Council. Rather than conceiving of the Council as endowed with “jurisdiction” of any kind to settle disputes between particular member States, this reading of the Convention would see the Council as carrying the high administrative function, drawing on its unique knowledge and expertise in the field of civil aviation, of giving authoritative rulings as to what the Convention means and requires, whether or not such issues form part of specific disputes between member States over their particular rights and duties towards one another. Once the matter is viewed from that angle, the great majority of the questions contested between the Parties in these proceedings take on a quite different aspect and become tractable. As indeed do many of the textual questions of interpretation raised above.

11.  Such a reading of Article 84 would moreover have one inestimable advantage, in fact two.

12.  On the one hand, far from subjecting the decisions of the Council, as a dispute settlement role would do, to the common rule embodied in Article 59 of the Court’s own Statute, i.e. that they had binding force only between the States involved and in respect of that particular situation, it would turn the Council’s decisions into authoritative determinations of general application having equal force for all the contracting States to the Chicago Convention, to the enormous benefit of the vital régime of international civil aviation on which so much of the modern world depends. And on the other hand, it would demarcate a clearer and more manageable role for the Court itself in its appellate function, confining it to the correct interpretation of the provisions of the Convention and their proper application, but without drawing the Court into decisions of aviation policy in which it might find itself as much adrift as the Council might find itself over questions of international law.

13.  There is, in other words, much to be said for such a reading, which respects the actual terms of Article 84 and its associated provisions, and also makes good practical sense. But I must exercise caution in expressing myself on the subject, as the underlying issues, rather to my disappointment, have not been argued out by the Parties before the Court. The question therefore remains open, to be decided by the Court at some later stage when the opportunity and the need arise.

14.  Having reached this point, I should like to add two points of a more specific character, directed at particular aspects of the Judgment.

15.  The first relates to paragraph 49 of the Judgment.

16.  I particularly regret the Court’s inexplicable refusal to draw the corollary from its main finding in this paragraph, which is central to the whole disposition of the case. The Court says (in my view rightly) that the ICAO Council cannot be disseised of its competences under Article 84 by the fact that one side in a disagreement has defended its actions on a basis lying outside the Chicago Convention. But it must necessarily follow, by the same token, that the invocation of a wider legal defence cannot have the effect of extending or expanding the Council’s competence under Article 84 either. This is implicit in what the Court has said. But by failing to say so expressly, the Court has missed a valuable opportunity to clarify what the Council may properly do within the parameters of Article 84, which would certainly have been of value to the Council in future.

17.  The second relates to the questions of due process raised under the first ground of appeal, and disposed of by the Court somewhat brusquely in paragraphs 122‑123 of the Judgment. In these two brief paragraphs, the Court does little more than recapitulate in summary form, without further discussion, the approach taken by the Court in the only precedent case some forty years ago.

18.  The cavalier approach to this question adopted by the Court in 1972, and (regrettably) not subjected today to the more nuanced attention called for in contemporary conditions, ignores the possibility that a given decision of the Council might for some particular reason, or for a combination of reasons, be tainted to such an extent by fundamental procedural irregularity that the Court would find itself obliged to treat that purported decision as a nullity or, in the French terminology, une décision nulle et non avenue. Or indeed that, in certain perfectly conceivable circumstances, serious procedural irregularity may simply prevent a resulting answer to a question of law being considered as legally “correct” at all. Were that to happen, the Court would be confronted with the question: What should be understood as implicit in the notion of “appeal”, in the way the concept is employed in Article 84, as to the functions of the Court as an appellate instance and as to the range of the remedies available to it flowing from that? One naturally hopes that a situation of that kind will never arise, in a highly responsible specialized agency like ICAO, but unlikelihood is not impossibility, and it would be unfortunate if over-broad language left behind it any impression that procedural irregularity was a matter of indifference to the Court. It is therefore welcome that the Court has at least reminded the ICAO Council, in paragraph 125 of the Judgment, that the very structure of Article 84 imposes certain obligatory requirements on the Council itself in order to make an effective reality out of the right of appeal laid down in that Article; in some future instance, for example, especially if a substantive decision on the merits by the Council was under challenge, it is very hard to imagine how this Court might properly exercise its functions as an instance of appeal against the decision without the Council having duly set out why it had adopted its decision and what the reasoning behind it was. It is therefore a source of disappointment that the Council, in the face of the provisions of its own directly applicable Rules, adopted the decisions presently under appeal without so much as a hint at its reasoning, and would appear in doing so to have hidden behind the possibility (under a separate set of procedural rules) of adopting the decision by secret ballot. The effect was to elevate a procedural device above the status not only of the applicable substantive rules but also above the international Convention itself from which those rules derived. That is not legally acceptable. Moreover, it can in itself be regarded as a question of the “interpretation or application of the Chicago Convention”, and it would have been better had the Court been prepared to say so, for the Council’s future guidance.

(Signed) Franklin Berman.