On 14 July 2020, the International Court of Justice (“the Court”) handed down its judgments in two related cases: 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 Appeal Relating to the Jurisdiction of the ICAO Council under Article II, Section 2, of the 1944 International Air Services Agreement (Bahrain, Egypt and United Arab Emirates v Qatar).
On 30 October 2017, Qatar commenced two sets of proceedings before the Council of the International Civil Aviation Organization (“the Council”). Both claims concerned certain airspace restrictions imposed by Bahrain, Egypt, Saudi Arabia and the United Arab Emirates (“the Quartet States”) in June 2017. One of the complaints was brought under the 1944 Convention on International Civil Aviation (“the Chicago Convention”) and the other was brought under the 1944 International Air Services Agreement (“IASTA”).
The Quartet States raised preliminary objections to the Council’s jurisdiction and the admissibility of the proceedings commenced by Qatar. The Council dismissed these objections in decisions dated 29 June 2018 (“the Council Decisions”).
The Quartet States filed applications before the Court appealing each of the Council Decisions on three grounds — namely that:
- The Council Decisions fell to be set aside due to grave violations of due process;
- The “real issue” in dispute did not concern the interpretation or application of the Chicago Convention or IASTA, meaning that the Council lacked jurisdiction and/or that it would be inconsistent with judicial propriety for the Council to exercise jurisdiction over the claims; and/or
- The Council had erred in rejecting the Quartet States’ preliminary objection based on the failure by Qatar to conduct negotiations prior to commencing proceedings.
In its judgments, the Court:
- Unanimously rejected the Quartet States’ appeals against the Council Decisions; and
- Held by 15 votes to 1 that the Council has jurisdiction to entertain Qatar’s claims.
Members of Essex Court acted (among other counsel) for various parties to the appeals: Vaughan Lowe QC for Qatar; Malcolm Shaw QC for the United Arab Emirates; and Naomi Hart for Egypt.
