                                                                                481

                                    DISSENTING OPINION OF JUDGE SALAM

                 [Translation]

                    1. I regret that I am unable to support the conclusions reached by the
                 majority on the prima facie jurisdiction of the Court to indicate the pro-
                 visional measures requested by Qatar, which seeks to found the Court’s
                 jurisdiction in this case on Article 22 of the International Convention on
                 the Elimination of All Forms of Racial Discrimination (hereinafter
                 “CERD”).
                    2. I am convinced that the Court does not have prima facie jurisdiction
                 ratione materiae, in so far as the dispute between the Parties does not
                 appear to concern the interpretation or application of CERD. It is clear
                 from Article 1 of CERD that this Convention applies to “any distinction,
                 exclusion, restriction or preference based on race, colour, descent, or
                 national or ethnic origin”. There is, however, no mention of discrimina-
                 tion on the basis of “nationality”, the object of the Applicant’s com-
                 plaints.
                    3. Moreover, when I read that provision in the light of Article 31 of
                 the 1969 Vienna Convention on the Law of Treaties, which calls for a
                 treaty to be “interpreted in good faith in accordance with the ordinary
                 meaning to be given to the terms of the treaty in their context and in the
                 light of its object and purpose”, I feel bound to make the following obser-
                 vations:
                 (a) The terms “national or ethnic origin” used in the Convention differ
                     in their ordinary meaning to the term nationality.
                 (b) As regards context, CERD was adopted against a historical back-
                     ground of decolonization and post‑decolonization and was part of
                     that effort to eliminate all forms of discrimination and racial segrega-
                     tion. Indeed, its preamble states:
                            “Considering that the United Nations has condemned colonial-
                        ism and all practices of segregation and discrimination associated
                        therewith, in whatever form and wherever they exist, and that the
                        Declaration on the Granting of Independence to Colonial Coun-
                        tries and Peoples of 14 December 1960 (General Assembly resolu-
                        tion 1514 (XV)) has affirmed and solemnly proclaimed the necessity
                        of bringing them to a speedy and unconditional end,
                        ��������������������������������������������������������������������������������������������������������������
                            Convinced that any doctrine of superiority based on racial dif-
                        ferentiation is scientifically false, morally condemnable, socially
                        unjust and dangerous, and that there is no justification for racial
                        discrimination, in theory or in practice, anywhere,

                                                                                79

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                                      application of the cerd (diss. op. salam)                                                  482

                         ��������������������������������������������������������������������������������������������������������������
                             Alarmed by manifestations of racial discrimination still in evi-
                         dence in some areas of the world and by governmental policies
                         based on racial superiority or hatred, such as policies of apartheid,
                         segregation or separation.”

                 (c) The aim of CERD is thus to bring an end, in the decolonization and
                     post‑decolonization period, to all manifestations and governmental
                     policies of discrimination based on racial superiority or hatred; it does
                     not concern questions relating to nationality.

                 (d) It is thus forms of “racial” discrimination that constitute the specific
                     object of the Convention, and not any form of discrimination “in
                     general”. Otherwise, reference would have been made to other types
                     of serious discrimination based on a marker of a group’s identity,
                     such as religion, which is not the case here. Moreover, there are other
                     international instruments which address questions relating to nation-
                     ality, or discrimination in general such as the Universal Declaration
                     of Human Rights and the two international covenants of 1966 1.

                    4. Furthermore, I would note that in the case concerning the Applica-
                 tion of the International Convention for the Suppression of the Financing of
                 Terrorism and of the International Convention on the Elimination of All
                 Forms of Racial Discrimination (Ukraine v. Russian Federation), the dis-
                 pute related to the question of racial discrimination against Crimean
                 Tatars and “ethnic Ukrainians” (not Ukrainian nationals) in Crimea
                 (Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 120,
                 para. 37). Similarly, in the case concerning the Application of the Interna-
                 tional Convention on the Elimination of All Forms of Racial Discrimination
                 (Georgia v. Russian Federation), the parties disagreed as to whether the
                 events which took place in South Ossetia and Abkhazia involved racial
                 discrimination of “ethnic Georgians” (and not Georgian nationals) living
                 in those regions (Provisional Measures, Order of 15 October 2008,
                 I.C.J. Reports 2008, p. 387, para. 111). The Court has thus only had occa-
                 sion to rule on cases concerning discrimination based on ethnic origin,
                 not “national origin”, and has therefore not had to address the question
                 whether this notion is distinct from that of “nationality”.

                    5. This question of the distinction between “nationality” and “national
                 origin” should not, in my view, admit of any confusion. They are two dif-
                 ferent notions. An example that clearly illustrates this difference is the

                    1 See, in particular, Article 13 of the International Covenant on Civil and Political

                 Rights.

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                                   application of the cerd (diss. op. salam)                          483

                 well-known case of American citizens of Japanese origin who were incar-
                 cerated following the attack on Pearl Harbor during the Second World
                 War. Despite having American nationality, these citizens were subject to
                 racial discrimination based on their “national origin”, not their national-
                 ity, and were rounded up and held in “War Relocation Camps” 2. A simi-
                 lar type of discrimination based on “national origin” also affected a large
                 number of individuals of German origin, « regardless of their nationality
                 at that time », in several countries after both the First and Second World
                 Wars.

                    6. I would also point out that the distinction to be drawn between
                 “nationality” and “national origin” is confirmed by the travaux prépara-
                 toires of CERD, particularly the proposed amendments to the wording of
                 Article 1 3.
                    7. In any event, had States wanted to say “nationality” rather than
                 “national origin” in Article 1 of CERD, they could have done so. Like-
                 wise, they could have used the wording “nationality and national origin”
                 had they intended to include both categories, which they did not do.

                    8. I would further note that, regardless of the “great weight” that
                 should be ascribed to the work of an “independent body” such as the
                 CERD Committee (see Ahmadou Sadio Diallo (Republic of Guinea v.
                 Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports
                 2010 (II), p. 664, para. 66), the fact remains that the recommendations of
                 that Committee cannot be considered to be an expression of a subsequent
                 practice of the parties to CERD (in the sense of Article 31, para-
                 graph 3 (b), of the 1969 Vienna Convention on the Law of Treaties).
                    9. In conclusion, although in my opinion the dispute between the Par-
                 ties does not fall within the scope of CERD, I would note that in the case
                 concerning the Legality of Use of Force (Yugoslavia v. United Kingdom),
                 while the Court found that it lacked prima facie jurisdiction to entertain
                 Yugoslavia’s Application and “[could not] therefore indicate any provi-
                 sional measure whatsoever” (Provisional Measures, Order of 2 June 1999,
                 I.C.J. Reports 1999 (II), p. 839, para. 37), it nonetheless pointed out that
                 “whether or not States accept the jurisdiction of the Court, they remain
                 in any event responsible for acts attributable to them that violate interna-
                 tional law, including humanitarian law” (ibid., para. 40). With that in
                 mind, it requested that the parties “take care not to aggravate or extend
                 the dispute” (ibid., para. 41). The Court adopted the same approach in
                 the case concerning Armed Activities on the Territory of the Congo (New

                    2 For background on this matter, see the report of the US Congress Commission on

                 Wartime Relocation and Internment of Civilians (CWRIC), published on 24 February
                 1983 and entitled « Personal Justice Denied », https://www.archives.gov/research/japanese-
                 americans/justice-denied.
                    3 See, among others, UN docs. A/C.3/SR.1304, A/C.3/SR.130 and A/6181.

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                                application of the cerd (diss. op. salam)                484

                 Application: 2002) (Democratic Republic of the Congo v. Rwanda): while
                 also finding in this case that it did not have prima facie jurisdiction to
                 indicate provisional measures (Provisional Measures, Order of 10 July
                 2002, I.C.J. Reports 2002, p. 249, para. 89), the Court stressed “the neces-
                 sity for the Parties to these proceedings to use their influence to prevent
                 the repeated grave violations of human rights and international humani-
                 tarian law which have been observed even recently” (ibid., p. 250,
                 para. 93).
                    10. By the same token, and taking account of Qatar’s claim that
                 Qataris residing in the United Arab Emirates have been in a vulnerable
                 situation since 5 June 2017, although I believe that the Court should have
                 found that it lacked prima facie jurisdiction to indicate provisional mea-
                 sures, this would not have prevented it from underlining, in its reasoning,
                 the need for the Parties not to aggravate or extend the dispute and to
                 ensure the prevention of any human rights violations.
                    11. The conclusion I have reached makes it unnecessary for me to
                 address the other conditions mentioned in Article 22 of CERD.

                 (Signed) Nawaf Salam.

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                    256

                            SEPARATE OPINION OF JUDGE AD HOC BERMAN

                       Appeal must be rejected but Court has missed the opportunity to offer
                    much‑needed clarification of Article 84 of the Chicago Convention — Separate
                    finding that ICAO Council has “jurisdiction” not required by Party submissions
                    and likely to lead to future misunderstanding or confusion unless qualified or
                    explained — Many difficulties in understanding and interpreting Article 84 in
                    itself and in light of powers already conferred on Council by Chicago Convention —
                    Failure of the Court and of the Parties to try to unpick why Article 84 focuses
                    primarily on “disagreements” not disputes — While dispute presupposes
                    disagreement, not every disagreement constitutes a dispute — Multiple reasons,
                    deriving from ICAO Council’s nature, composition, mode of operation, and its own
                    Rules, why Council is not a judicial organ and its dispute settlement functions are
                    not judicial ones justifying the term “jurisdiction” — Council’s functions rather to
                    give authoritative rulings based on its specialist expertise, whether or not part of
                    specific inter‑State disputes — Such a reading would respect terms of the
                    Convention, make greater practical sense, and open way to clearer and more
                    manageable role for Court itself in its appellate function — These issues regrettably
                    not argued out by Parties, however, so must await some future occasion to be
                    decided — If Applicants’ choice of non‑Chicago Convention defence cannot deny
                    ICAO Council its competence, then it cannot extend Council’s competences under
                    Article 84 either, and Court should have been prepared to say so — Court should
                    have subjected to more nuanced attention the cavalier treatment of due process
                    considerations in 1972 Judgment — No room for any impression that serious
                    procedural irregularity is of no concern to Court, or that such irregularity may
                    (should it occur) render a Council decision a nullity or of no legal effect — Right
                    that Court should remind the Council that Article 84 imposes substantive legal
                    requirements of its own on the Council in order to make Court’s appellate functions
                    effective, notably requirement to give reasons for Council’s decisions.

                       1. I have no great difficulty in associating myself with the Court’s dis-
                    missal 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. Never-
                    theless, 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 jurisdic-
                    tion to entertain” the application submitted to it by Qatar. These are
                    sweeping terms which have little relationship to the submissions actually

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                    257 	                        icao council (sep. op. berman)

                    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 para-
                    graph 127, 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 his-
                    torical record that it has regularly raised perplexity and anxiety within the
                    Council itself over what it can and should do to realize the mandate Arti-
                    cle 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 pro-
                    cesses 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 Conven-
                    tion”. 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 pro-
                    cess, 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 contract-
                    ing States, disagreements “relating to” the interpretation or application of
                    the Convention. Although the heading uses the term “disputes” — and
                          1   The term is drawn from the heading to Article 54.

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                    258 	                         icao council (sep. op. berman)

                    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, 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 differ-
                    ent 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 set-
                    tlement 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 84 2, the Council builds expressly on the notions of “disagree-
                    ment” 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 nego-
                    tiations, 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 88, but

                          2   Entitled, incidentally, Rules for the Settlement of Differences (emphasis added).

                    90

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                    259 	                    icao council (sep. op. berman)

                    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 Arti-
                    cle 84 itself. The Article opens the right to appeal against a Council deci-
                    sion 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 dis-
                    pute 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 elemen-
                    tary 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 clauses 3. The more “jurisdictional” the Court was

                       3 See, most recently, Application of the International Convention for the Suppression of

                    the Financing of Terrorism and of the International Convention on the Elimination of All
                    Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections,
                    Judgment, I.C.J. Reports 2019 (II), p. 584, para. 57.

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                    260 	                icao council (sep. op. berman)

                    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 Conven-
                    tion 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 par-
                    ticular 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 differ-
                    ent aspect and become tractable. As indeed do many of the textual ques-
                    tions 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 situa-
                    tion, it would turn the Council’s decisions into authoritative determina-
                    tions 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, confin-
                    ing it to the correct interpretation of the provisions of the Convention
                    and their proper application, but without drawing the Court into deci-
                    sions 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

                    92

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                    261 	                icao council (sep. op. berman)

                    also makes good practical sense. But I must exercise caution in expressing
                    myself on the subject, as the underlying issues, rather to my disappoint-
                    ment, 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 fail-
                    ing 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 123‑124 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 atten-
                    tion 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 pro-
                    cedural 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 cir-
                    cumstances, serious procedural irregularity may simply prevent a result-
                    ing answer to a question of law being considered as legally “correct” at
                    all. Were that to happen, the Court would be confronted with the ques-
                    tion: 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 avail-
                    able 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-

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                    262 	                icao council (sep. op. berman)

                    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 126 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 substan-
                    tive 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.

                    94

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