Introduction
One of the crucial vital developments within the area of aviation regulation was completed with the passage of the Conference on Worldwide Civil Aviation (Chicago Conference) in 1944, which nonetheless stays in pressure as binding regulation. Below the Chicago Conference, Article 84 empowered the Council, an company of the Worldwide Civil Aviation Group, to listen to disputes between contracting states regarding the interpretation and utility of the Conference if the disagreement between them couldn’t be settled by negotiation.
Nevertheless, within the case of India v. Pakistan earlier than the Council, and in a subsequent enchantment to the Worldwide Courtroom of Justice (ICJ), India’s argument regarding the non-application of Article 84 primarily based on the competition that the dispute associated to the existence of the treaty (Chicago Conference), relatively than its interpretation and utility, was rejected by the ICJ. Consequently, the Council’s jurisdiction to listen to disputes associated to the suspension or substitute of the Chicago Conference itself was allowed.
Moreover, equally, within the case of Qatar v. UAE, Bahrain, Egypt, and Saudi Arabia, Qatar was accused of nonadherence to the Riyadh Agreements, and subsequently, airspace restrictions have been enforced on Qatar-registered plane. The ICJ, in a ruling parallel to India v. Pakistan, recognised the council jurisdiction primarily based on the core claims or character of the dispute, relatively than the defences raised by the events. This reasoning subsequently expanded the Council’s jurisdiction underneath Article 84, even the place the actions in query have been disputed underneath common worldwide regulation outdoors the treaty framework.
Thus, these circumstances display an increasing sphere of the Council’s jurisdiction underneath Article 84, together with disputes questioning the treaty’s existence and disputes arising underneath common worldwide regulation. Nevertheless, the query arises regarding the jurisdictional limits on Council Jurisdiction and the place the road should be drawn. Contemplating the identical, this text first gives an in depth interpretation of Article 84 and its spherical utility. Second, it analyses the constraints of the ICJ’s expansive interpretation from the particular viewpoint of Justice Franklin Berman. Lastly, the article discusses the remedial approaches that may be adopted to take care of an equilibrium between the Council’s Article 84 jurisdiction and different ideas of worldwide regulation.
Article 84 of the Chicago Conference and its Sphere of Software
Article 84 of the Chicago Conference is split into three elements: first, it gives for the settlement of disputes by the ICAO Council between two or extra contracting states regarding the interpretation or utility of this Conference and its Annexes, if the dispute can’t be settled primarily by the use of negotiation; second, it prohibits a member state of the Council from voting if it’s a celebration to the dispute; lastly, it gives for an enchantment from the Council determination both to the advert hoc arbitral tribunal or to the ICJ, with such enchantment required to be notified to the Council inside 60 days of its determination.
Additional, the character of the Council’s adjudication underneath Article 84 has been persistently recognised as mediatory. The explanations for this embody the flexibleness and diplomatic lodging of mutual curiosity of the events by the Council throughout the mediatory course of, which might not have been attainable underneath commonplace judicial adjudication. This mediating intent is additional evident from Article 6(1) of the ICAO Guidelines for the Settlement of Variations (Settlement Guidelines), which emphasises the Council’s energy to ask the events, throughout or earlier than the beginning of the proceedings, to have interaction in direct negotiation if the Council deems there to be a chance of settling disputes by such means. Furthermore, within the case of Cuba v. United States, the Council’s function as mediator was additional bolstered when it was requested to intervene within the dispute between the events with out invoking its official jurisdiction underneath Chapter XVIII of the Chicago Conference.
Constructing on this understanding of the Council’s mediatory operate, the case of India v. Pakistan illustrates how this function was examined and broadened in observe. In that occasion, India adopted the defence of termination or suspension of the Chicago Conference and Worldwide Air Providers Transit Settlement as a consequence of the armed battle, whereas the Tashkent declaration signed between each international locations served because the controlling authority between them. Furthermore, India characterised the core dispute as one regarding treaty termination or suspension relatively than interpretation or utility, thereby putting it outdoors the purview of Article 84.
In distinction, the ICJ primarily based its reasoning on the “character of the dispute”, holding that the Council’s competence underneath Article 84 trusted the character of the dispute submitted to it, and never on the substance of the defences or counterarguments on the deserves raised by the respondents. Thus, the Courtroom’s interpretation centered on the character of the dispute, whereby the events have been prevented from avoiding the Council’s jurisdiction by counting on exterior regulation; nonetheless, on the identical time, the Council’s jurisdiction was prolonged to listen to any dispute, together with disputes involving exterior regulation, whose character aligned with the Chicago Conference, following the failure of the negotiation course of.
Additional, this interpretation was broadened in Qatar v. UAE, Bahrain, Egypt, and Saudi Arabia, whereby Qatar’s aviation declare was interconnected with the broader points, together with allegations of supporting terrorism and interference, which have been stated to have triggered violations of the Riyadh Agreements, thereby rendering measures similar to airspace bans lawful countermeasures underneath common worldwide regulation, together with the Worldwide Regulation Fee Articles on State Accountability and ideas of non-intervention, as upheld in Nicaragua v. USA.
Nevertheless, the ICJ held that the Council’s competence just isn’t affected by the deserves of the arguments (similar to measures underneath common public worldwide regulation) submitted by the events, as permitting this could empower events to determine when a tribunal can or can’t hear a dispute just by selecting the defence of their choice. Thus, this ruling resulted in two contradictory results: first, the respondent celebration was prevented from blocking the council’s jurisdiction solely primarily based on an exterior instrument defence. Second, the council’s place was upheld to have interaction substantively in points past the Chicago Conference, thereby elevating additional questions concerning the council’s limits or competence.
Moreover, within the Qatar judgement, the ICJ propounded that the primary consideration must be the “core declare and points” submitted within the dispute: if these fall inside the contours of the Chicago Conference and the subject material, for example, treaty utility, comes inside Article 84, then the Council has rightful jurisdiction over it. Thus, by the Qatar judgement, the Courtroom interpreted the applying of Article 84 primarily based on the particular claims and points introduced in a given case and the subject material that may be deduced from them.
The Interpretational Limitations underneath Article 84
The Council’s jurisdiction underneath Article 84, by the above-defined judgements, was considerably expanded. Nevertheless, there have been sure limitations to it, which have been particularly highlighted by Justice Franklin Berman in his separate opinion within the Qatar case. These limitations clearly underscored the ambiguous sphere of utility of Article 84 and the uncontrolled jurisdiction conferred on the Council by the ICJ. Contemplating the identical, this head, particularly, by the lens and perspective of Justice Berman, highlights structural factors of essential limitations underneath ICJ’s reasoning.
First, ambiguity over judicial or administrative energy: The wording of Article 84 capabilities as a sui generis provision by permitting the Council, as an administrative physique, to difficulty a choice in a dispute. Nevertheless, the ICJ, by explicitly utilizing the time period ‘jurisdiction’ in favour of the Council, conferred upon it a set of judicial powers, which instantly contrasts with Article 54 of the Conference, which defines the executive nature of the Council. Furthermore, this ambiguity just isn’t confined solely to textual interpretation but additionally hinges upon the institutional legitimacy of the council, as a result of Berman highlights the implications of conferring judicial standing, noting that the members of the Councils are consultant of the states, working underneath the directions of their respective governments, which can additional politicise and hinder their adjudicatory function.
Second, confusion between disputes and disagreements: Article 84 is drafted to take care of the ‘disagreements’ among the many events; nonetheless, its heading mentions the time period ‘dispute’. Berman contends that the first objective of the Council is to resolve disagreements amongst events by its restricted mediatory function, which, if not settled by settlement between them, could also be referred to the Council by any state making use of its personal formal adjudicatory course of. This textual ambiguity, nonetheless, has led to an extreme growth of the Council’s function from resolving technical disagreements to adjudicating full-scale authorized disputes, with none existence of guiding process. On this context, whereas the Everlasting Courtroom of Worldwide Justice (PCIJ), within the Mavrommatis Palestine Concessions judgement, held {that a} ‘dispute’ presupposes a ‘disagreement’, the 2 phrases stay distinct and haven’t but been clearly outlined or distinguished by the ICJ.
Third, the precise of any celebration to enchantment: Article 84 not solely limits the precise of enchantment to the events concerned within the dispute or the disagreements, but additionally extends it to any contracting state. Berman notes this as an uncommon clause, since within the regular worldwide dispute settlement course of, the precise to enchantment is restricted to the states instantly concerned within the dispute. Additional, Berman argues that if the ICJ seeks to recognise and focus on the Council’s jurisdiction as that of a full-fledged tribunal, then it erred in India’s and Qatar’s circumstances by ignoring the spherical utility of enchantment, which constitutes a basic factor of jurisdiction.
Fourth, the ignorance of the primary discovering corollary: Berman highlighted that the primary discovering of the Courtroom in each the India and Qatar caseswas that the Council’s competence to determine a dispute underneath Article 84 can’t be prohibited primarily based on exterior defence raised by a celebration to the Chicago Conference. Nevertheless, this resulted within the formation of the direct asymmetry by the Courtroom, whereby, on one hand, the exterior legal guidelines protection by the events was prohibited, whereas then again, the court docket accepted the council’s jurisdiction to listen to disputes involving the exterior regulation factor. Thereby, ignoring the logical corollary that the Council can’t adjudicate upon treaties or defenses that fall outdoors the purview of the Chicago Conference.
Therefore, Berman’s observations expose the interpretational ambiguities and overextensions within the utility of Article 84. The ICJ’s conferment of judicial powers on a political consultant physique explicitly undermines procedural readability and neutrality. These unresolved limitations render the Council’s jurisdiction structurally unsure and liable to politicization.
The half II of this text proposes procedural and structural reforms to recalibrate ICAO Council jurisdiction underneath Article 84 by clarifying its administrative and adjudicatory roles, defining dispute levels, limiting enchantment rights to events, and constraining engagement with exterior worldwide regulation, drawing on WTO, ICSID, IHR, and UNCLOS precedents.
Learn half II right here.
Abeer Sharma and Priyabrat Priyanshu are third-year regulation college students at Rajiv Gandhi Nationwide College of Regulation, Punjab.
Image Credit score: IFATCA
