Certain problems on the International Court of Justice’s judgment in the case of Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation

Abstract

This article aims to address certain problems arising under the judgment 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 v. Qatar), which is the inter-state dispute, enshrining the jurisdiction of the International Court of Justice (ICJ) to adjudicate any appeal regarding the competence of the Council submitted to it as a supervisory safeguard. The ICJ decided that even though the parties to the dispute were using countermeasures, which were not covered by the Chicago Convention, that did not mean the Council could not hear the case. They also said that the disagreement had to be negotiated before it could be brought to the Council's attention, and this could happen in any forum, not just bilateral diplomacy or the Council. Therefore, the ICJ decided not to declare the Council's decision null and void because the Council had not erred in disregarding the principles of due process and judicial propriety. However, after analysing the judgment, certain judges sitting on the ICJ panel have criticised it for various reasons, as well as several academics who have challenged the outdated precedent cited in this case by the ICJ, which has resulted in unconcreted solutions. Accordingly, the ICJ’s inability to guide the Council’s procedure necessitates a considerable reform of both the Rules for the Settlement of the Differences and the Council. Certain proposals have been introduced, suggesting that the Council should regard itself as a mediator, together with a permanent arbitration institution established specifically to handle this category of dispute.