Half I of this text examines how ICJ jurisprudence has expanded the ICAO Council’s jurisdiction beneath Article 84, critiques this growth by Justice Franklin Berman’s perspective, and exposes structural ambiguities regarding the Council’s function, limits, and legitimacy, setting the groundwork for proposing calibrated jurisdictional and procedural reforms.
The Remedial Measures for Calibrating the Council’s Jurisdiction
As already highlighted within the earlier head, the Council’s jurisdiction beneath Article 84 has turn into more and more ambiguous and expansive, necessitating clarification by a transparent demarcation of the Council’s jurisdictional and adjudicatory powers. Contemplating this, the current part proposes particular measures, supported by precedents, involving worldwide our bodies such because the WTO, ICSID, IHR, and UNCLOS, which offer particular parallel options to take care of jurisdictional issues and might be adopted to rectify the constraints highlighted by Justice Berman and in the end present a clear framework beneath Article 84.
1. Rectifying the Administrative v. Judicial Energy Confusion
The twin nature of the Council, whereby administrative powers are conferred beneath Article 54, whereas the ICJ confers a judicial character upon the Council by the usage of phrases similar to “jurisdiction, confuses the Council’s precise function. Additional, this ambiguity isn’t just restricted to the textual inconsistency but in addition impacts the institutional legitimacy of the council, by conferring a judicial-style authority on a politically consultant physique, elevating considerations about politicization and neutrality. These points might be addressed by the precedent of the World Commerce Group Dispute Settlement Physique (DSB), whereby, beneath Article 2(4) of the Dispute Settlement Understanding (DSU), the DSB, comprising representatives of member states, is empowered to take selections by adverse consensus, sustaining its administrative construction.
On the identical time, beneath Article 6 of the DSU, the DSB additionally establishes panels to find out disputes between the contracting events, and appeals from these selections could also be made to the appellate physique, as prescribed beneath Article 17 of the DSU. This clear bifurcation of administrative and judicial roles leads to much less uncertainty and tensions between each the contracting events and the member state representatives.
A parallel answer might be utilized with respect to ICAO, by first retaining the Council’s administrative function and explicitly highlighting its adjudicatory perform. To implement this, an modification might be launched beneath the ICAO (Settlement Guidelines), which supplies the process for ICAO to settle the disputes. Rule 2 of the Settlement Guidelines supplies definitions, and a brand new subsequent rule, Rule 2bis, might be launched, working as a declaratory provision stating: “For the needs of those Guidelines, the Council workouts administrative adjudicatory features within the settlement of disputes beneath Article 84 of the Chicago Conference”.
2. Clarifying the Disputes and Disagreements
The heading of Article 84 makes use of the time period “dispute”; nonetheless, the process outlined beneath it considerations the adjudication of “disagreements” among the many events, which can’t be resolved on the negotiation stage. This creates confusion concerning the character of the problems resolved by the Council. This drawback might be addressed by the precedent of Article 56 of the Worldwide Well being Laws (IHR), which supplies a three-tiered construction for interstate disagreements regarding the utility or interpretation of the IHR.
The IHR’s three-tiered construction contains: Tier 1, whereby a fast, non-binding mechanism is designed to resolve low-intensity disagreements amongst the events by mediation or conciliation. Additional, beneath Tier 2, the events, if their dispute is unresolved, refer the dispute to the Director-Common, who might appoint an impartial panel, empowered to offer binding selections. Eventually, beneath Tier 3, if the events are unhappy with the panel’s determination, they’ll strategy the judicial/arbitral our bodies, such because the ICJ and Everlasting Court docket of Arbitration, whose award works as a binding and last authority over the events.
Beneath Article 84, an identical construction already exists, whereby events might first resort to negotiations, second, to the Council and at last to the ICJ or the appellate tribunal. Nevertheless, the difficulty lies within the lack of readability inside this construction. To handle this, Article 84 might be prolonged by introducing Article 84bis, clarifying the character of adjudication by designing negotiation as the primary stage (involving disagreements), Council adjudication because the second stage (involving disputes with binding impact, and ICJ or tribunal proceedings because the third stage (functioning as the ultimate appellate tier akin to Article 56 of the IHR).
3. The Resolution to the Enchantment Rights to Non-Events
Beneath Article 84, the appropriate of attraction in opposition to the Council’s determination is conferred not solely on the events to the dispute but in addition to any contracting state of the Chicago Conference. That is an uncommon clause as a result of, beneath the traditional jurisdiction precept, the appropriate of attraction works as a vital idea. Moreover, the ICJ’s disregard of this side, regardless of recognising the Council’s judicial powers, creates ambiguity.
This concern might be rectified utilizing the precedent of the Worldwide Centre for Settlement of Funding Disputes (ICSID) Conference, 1966. Earlier, beneath Article 52(1), third events, along with the required events to the dispute, had been empowered to provoke annulment proceedings in opposition to the unique arbitration. Nevertheless, this was later restricted by the ICSID Arbitration Guidelines, whereby ‘both obligatory get together’ to the disputes had been solely permitted to advance proceedings, limiting the appropriate to file an annulment continuing to the required events solely.
An analogous reform might be utilized to the Council’s functioning by amending Article 84, whereby the disputed phrase “on the appliance of any State involved within the disagreement” might be particularly amended to learn “on the appliance of any State that’s get together to the disagreement”. By this modification, solely the events to the disagreement can be empowered to file an attraction, thereby aligning with regular jurisdictional rules and enhancing the transparency of the Council’s judicial powers.
4. The Remedial Measure for the Corollary Downside
The ICJ upheld the Council’s jurisdiction to determine a dispute even when a celebration raised a protection based mostly on exterior legislation. Nevertheless, the Court docket ignored the resultant asymmetrical jurisdictional growth, whereby events had been prohibited from elevating jurisdictional objections based mostly on exterior legislation, whereas the Council was permitted to adjudicate upon such legislation, thereby leaving a gray space regarding the Council’s jurisdiction to determine disputes involving different worldwide legal guidelines. This ambiguity might be rectified by reference to Article 7.1 of the WTO Dispute Settlement Understanding (DSU) and the choice of the Annex VII Tribunal within the Arctic Dawn Arbitration beneath the United Nations Conference on the Regulation of the Sea (UNCLOS).
Article 7.1 of the DSU establishes the WTO panels’ “phrases of reference”, whereby it might circumscribe the problems to be determined beneath its jurisdiction. The WTO panels, in step with the competence-competence doctrine, are empowered to make rulings on their competence regarding their jurisdiction. Nevertheless, such examination is restricted in scope beneath exterior legislation and is undertaken solely to the extent obligatory for resolving the claims.
Additional, beneath the Arctic Dawn Arbitration, the Annex VII tribunal established the “ancillary jurisdiction doctrine”, involving two exams: first, the Mandatory and Ancillary Take a look at and Second, the Incidental Questions Doctrine. Beneath the previous, the Tribunal restricted its examination of exterior legislation to what was strictly obligatory for UNCLOS willpower and for resolving issues beneath it. Beneath the latter, the Tribunal was empowered to look at incidental points solely when required to fulfil its perform and ancillary to its main jurisdictional mandate.
An analogous utility might be noticed within the Council’s functioning by the use of a two-stage mechanism. Stage 1 can perform as a compulsory preliminary part, the place the Council should adjudicate upon its competence earlier than substantive proceedings, and this part ought to happen inside 60 days of the respondent’s memorial submission, thereby mirroring the ICSID Arbitration Rule 41(3). Additional, beneath Stage 2, the Council might look at exterior legislation solely to the extent strictly essential to resolve disputes falling inside the Chicago Conference’s interpretation or utility.
Conclusion
In conclusion, Article 84 of the Chicago Conference, although functioning as the first provision for dispute settlement inside the ICAO, suffers from interpretational uncertainties and the jurisdictional overreach as evident from the India v. Pakistan and the Qatar v. UAE, Bahrain, Egypt, and Saudi Arabia instances. The ICJ’s expansive interpretation, whereas selling entry to justice, has blurred the boundary between the Council’s administrative and judicial features, thereby risking politicization and procedural inconsistency. Justice Berman’s criticism underscores the pressing want for structural clarification by procedural bifurcation, definitional precision between “dispute” and “disagreement,” and calibrated restrictions on attraction rights. Drawing from WTO, ICSID, and UNCLOS examples, the proposed reforms goal to recalibrate Article 84’s scope, whereas sustaining an equilibrium between specialised aviation adjudication and wider worldwide authorized order. Absence of such procedural calibration, with sustained jurisdictional growth, can danger eroding the council’s institutional legitimacy by changing a politically consultant administrative physique into an ill-suited quasi-judicial discussion board.
Learn half I right here.
Abeer Sharma and Priyabrat Priyanshu are third-year legislation college students at Rajiv Gandhi Nationwide College of Regulation, Punjab.
Image Credit score: IFATCA
