                            INTERNATIONAL COURT OF JUSTICE

                              REPORTS OF JUDGMENTS,
                           ADVISORY OPINIONS AND ORDERS

                    APPEAL RELATING TO THE JURISDICTION
                            OF THE ICAO COUNCIL
                         UNDER ARTICLE II, SECTION 2,
                         OF THE 1944 INTERNATIONAL
                      AIR SERVICES TRANSIT AGREEMENT
                                 (BAHRAIN, EGYPT
                        AND UNITED ARAB EMIRATES v. QATAR)

                              JUDGMENT OF 14 JULY 2020

                                   2020
                            COUR INTERNATIONALE DE JUSTICE

                                RECUEIL DES ARRÊTS,
                         AVIS CONSULTATIFS ET ORDONNANCES

                    APPEL CONCERNANT LA COMPÉTENCE
                           DU CONSEIL DE L’OACI
                    EN VERTU DE L’ARTICLE II, SECTION 2,
                  DE L’ACCORD DE 1944 RELATIF AU TRANSIT
                  DES SERVICES AÉRIENS INTERNATIONAUX
                                 (BAHREÏN, ÉGYPTE
                          ET ÉMIRATS ARABES UNIS c. QATAR)

                              ARRÊT DU 14 JUILLET 2020

10 CIJ1192_Ord.indb 1                                        10/08/21 10:34

                                                 Official citation :
                    Appeal relating to the Jurisdiction of the ICAO Council under Article II,
                      Section 2, of the 1944 International Air Services Transit Agreement
                            (Bahrain, Egypt and United Arab Emirates v. Qatar),
                                     Judgment, I.C.J. Reports 2020, p. 172

                                            Mode officiel de citation :
                  Appel concernant la compétence du conseil de l’OACI en vertu de l’article II,
                section 2, de l’accord de 1944 relatif au transit des services aériens internationaux
                                (Bahreïn, Egypte et Emirats arabes unis c. Qatar),
                                         arrêt, C.I.J. Recueil 2020, p. 172

                                                                                1192
                                                                  Sales number
                 ISSN 0074-4441                                   No de vente:
                 ISBN 978-92-1-003853-9

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                                                         14 JULY 2020

                                                          JUDGMENT

                        APPEAL RELATING TO THE JURISDICTION
                                OF THE ICAO COUNCIL
                             UNDER ARTICLE II, SECTION 2,
                             OF THE 1944 INTERNATIONAL
                          AIR SERVICES TRANSIT AGREEMENT
                                  (BAHRAIN, EGYPT
                         AND UNITED ARAB EMIRATES v. QATAR)

                          APPEL CONCERNANT LA COMPÉTENCE
                                 DU CONSEIL DE L’OACI
                          EN VERTU DE L’ARTICLE II, SECTION 2,
                        DE L’ACCORD DE 1944 RELATIF AU TRANSIT
                        DES SERVICES AÉRIENS INTERNATIONAUX
                                  (BAHREÏN, ÉGYPTE
                           ET ÉMIRATS ARABES UNIS c. QATAR)

                                                       14 JUILLET 2020

                                                              ARRÊT

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                    172

                                               TABLE OF CONTENTS

                                                                                Paragraphs

                    Chronology of the Procedure                                                  1-20
                        I. Introduction	                                                        21-36
                          A. Factual background                                                 21-26
                          B. The Court’s appellate function and the scope of the right of
                             appeal to the Court	                                               27-36
                    II. Grounds of Appeal	                                                     37-126
                          A. The second ground of appeal: rejection by the ICAO Council
                             of the first preliminary objection	                                41-63
                             1. Whether the dispute between the Parties relates to the
                                interpretation or application of the IASTA	                     41-50
                             2. Whether Qatar’s claims are inadmissible on grounds of
                                “judicial propriety”	                                           51-62

                          B. The third ground of appeal: rejection by the ICAO Council of
                             the second preliminary objection	                                 64-108
                             1. The alleged failure to meet a negotiation precondition
                                prior to the filing of Qatar’s application with the
                                 ICAO Council 	                                                 65-99
                             2. Whether the ICAO Council erred by not declaring Qatar’s
                                 application inadmissible on the basis of Article 2,
                                subparagraph (g), of the ICAO Rules for the Settlement
                                 of Differences	                                              100-106
                          C. The first ground of appeal: alleged manifest lack of due pro-
                             cess in the procedure before the ICAO Council	                   109-125
                    Operative Clause	                                                             127

                    4

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                    173

                                   INTERNATIONAL COURT OF JUSTICE
                                                      YEAR 2020
        2020
       14 July                                        14 July 2020
     General List
      No. 174
                        APPEAL RELATING TO THE JURISDICTION
                                OF THE ICAO COUNCIL
                             UNDER ARTICLE II, SECTION 2,
                             OF THE 1944 INTERNATIONAL
                          AIR SERVICES TRANSIT AGREEMENT
                                          (BAHRAIN, EGYPT
                                 AND UNITED ARAB EMIRATES v. QATAR)

                       Factual background.
                       Adoption of aviation restrictions by Bahrain, Egypt and the United Arab Emir‑
                    ates, as well as Saudi Arabia — Initiation of proceedings by Qatar before the
                     ICAO Council (“the Council”) — Article II, Section 2, of the 1944 International
                    Air Services Transit Agreement (“the IASTA”) — Article 84 of the Convention
                    on International Civil Aviation — Preliminary objections raised before the
                    Council — Decision of the Council on preliminary objections.

                      Court’s appellate function.
                      Article II, Section 2, encompasses appeal against decisions on preliminary
                    objections — Court has jurisdiction to entertain appeal — Court’s role is to deter‑
                    mine whether impugned decision is correct.

                                                            *
                      Grounds of appeal — No requirement to follow order of grounds of appeal used
                    by Appellants.

                                                            *
                       Second ground of appeal — Rejection by the Council of first preliminary objec‑
                    tion.
                       Jurisdiction — Disagreement between the Parties before the Council concerns
                    interpretation and application of IASTA and falls within the scope of Article II,

                    5

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                    174 	                      icao council (judgment)

                    Section 2 — Mere fact that disagreement arose in a broader context does not
                    deprive the Council of jurisdiction under Article II, Section 2 — Council did
                    not err when it rejected first preliminary objection in so far as it concerned jurisdic‑
                    tion.
                       Admissibility — Difficulty of applying concept of judicial propriety to the
                    Council — Integrity of the Council’s dispute settlement function under Article II,
                    Section 2, not affected by consideration of issues outside civil aviation — Council
                    did not err when it rejected first preliminary objection in so far as it concerned
                    admissibility.
                       Second ground of appeal cannot be upheld.

                                                               *
                        Third ground of appeal — Rejection by the Council of second preliminary objec‑
                    tion.
                        Jurisdiction — Article II, Section 2, imposes precondition of negotiation —
                    Genuine attempt to negotiate must be made prior to filing of application before the
                    Council — Precondition satisfied if negotiations reach point of futility or dead‑
                    lock — Genuine attempt to negotiate can be made outside of bilateral diplo‑
                    macy — Qatar made a genuine attempt to negotiate both within and outside ICAO
                    to settle disagreement — No reasonable probability of negotiated settlement as of
                    filing of Qatar’s application to the Council — Council did not err when it rejected
                    second preliminary objection in so far as it concerned jurisdiction.

                       Admissibility — Article 2, subparagraph (g), of the ICAO Rules for the Settle‑
                    ment of Differences requires application and memorial filed pursuant to Article 84
                    (incorporated by reference in Article II, Section 2) to include statement that nego‑
                    tiations took place but were not successful — Statement in Qatar’s application and
                    memorial satisfies requirement — Council did not err when it rejected second pre‑
                    liminary objection in so far as it concerned admissibility.

                        Third ground of appeal cannot be upheld.

                                                               *
                       First ground of appeal — Due process in procedure before the Council.
                       Issues presented by the preliminary objections are objective questions of law —
                    Council’s procedures did not prejudice in any fundamental way the requirements of
                    a just procedure.
                       First ground of appeal cannot be upheld.

                                                       JUDGMENT
                    Present:
                             President Yusuf; Vice‑President Xue; Judges Tomka, Abraham,
                             Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
                             Robinson,     Crawford,      Gevorgian,     Salam, Iwasawa;
                             Judges ad hoc Berman, Daudet; Registrar Gautier.

                    6

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                    175 	                     icao council (judgment)

                      In the case concerning the appeal relating to the jurisdiction of the Council of
                    the International Civil Aviation Organization under Article II, Section 2, of the
                    1944 International Air Services Transit Agreement,
                         between
                    the Kingdom of Bahrain,
                    represented by
                      H.E. Sheikh Fawaz bin Mohammed Al Khalifa, Ambassador of the King-
                         dom of Bahrain to the United Kingdom of Great Britain and Northern
                         Ireland, accredited to the Kingdom of the Netherlands,
                      as Agent;
                      Mr. Georgios Petrochilos, avocat au barreau de Paris and Advocate at the
                         Greek Supreme Court, Three Crowns LLP,
                      Ms Alexandra van der Meulen, avocate au barreau de Paris and member of
                         the Bar of the State of New York, Three Crowns LLP,
                      as Advocates;
                      Ms Amelia Keene, Barrister and Solicitor of the High Court of New Zealand,
                         Three Crowns LLP,
                      Mr. Motohiro Maeda, Solicitor of the Senior Courts of England and Wales,
                         Three Crowns LLP,
                      Mr. Ryan Manton, Barrister and Solicitor of the High Court of New Zea-
                         land, Three Crowns LLP,
                      Ms Julia Sherman, member of the Bar of the State of New York, Three
                         Crowns LLP,
                      as Counsel;
                      Mr. Mohamed Abdulrahman Al Haidan, Director of Legal Affairs, Ministry
                         of Foreign Affairs of the Kingdom of Bahrain,
                      Mr. Hamad Waheed Sayyar, Counsellor, Embassy of the Kingdom of Bah-
                         rain in the United Kingdom of Great Britain and Northern Ireland,
                      Mr. Devashish Krishan, Legal Adviser, Court of H.R.H. the Crown Prince of
                         the Kingdom of Bahrain,
                      Mr. Mohamed Hafedh Ali Seif, Third Secretary, Legal Affairs Directorate,
                         Ministry of Foreign Affairs of the Kingdom of Bahrain,
                      as Advisers;
                      Ms Eleonore Gleitz, Three Crowns LLP,
                      as Assistant,
                    the Arab Republic of Egypt,
                    represented by
                      H.E. Mr. Amgad Abdel Ghaffar, Ambassador of the Arab Republic of Egypt
                         to the Kingdom of the Netherlands,
                      as Agent;
                      Mr. Payam Akhavan, LLM, SJD (Harvard), Professor of International
                         Law, McGill University, member of the Bar of the State of New York
                         and of the Law Society of Ontario, member of the Permanent Court of
                         Arbitration,

                    7

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                    176 	                      icao council (judgment)

                         Ms Naomi Hart, Essex Court Chambers, member of the Bar of England and
                            Wales,
                         as Counsel and Advocates;
                         H.E. Ms Howaida Essam Abdel Rahman, Assistant Minister for Foreign
                            Affairs for International Legal Affairs and Treaties of the Arab Republic
                            of Egypt,
                         Ms Angi Mostafa, Permanent Representative of the Arab Republic of Egypt
                            to the International Civil Aviation Organization,
                         H.E. Mr. Khaled Mahmoud Elkhamry, Ambassador, Ministry of Foreign
                            Affairs of the Arab Republic of Egypt,
                         Mr. Ihab Soliman, Counsellor, Deputy Chief of Mission, Embassy of the
                            Arab Republic of Egypt in the Kingdom of the Netherlands,
                         Mr. Hazem Fawzy, Counsellor, Embassy of the Arab Republic of Egypt in
                            the Kingdom of the Netherlands,
                         Ms Hadeer Samy Ibrahim Elsayed Saoudy, Third Secretary, Ministry of For-
                            eign Affairs of the Arab Republic of Egypt,
                         Mr. Mostafa Diaa Eldin Mohamed, Third Secretary, Embassy of the Arab
                            Republic of Egypt in the Kingdom of the Netherlands,
                         as Advisers,
                    the United Arab Emirates,
                    represented by
                      H.E. Ms Hissa Abdullah Ahmed Al-Otaiba, Ambassador of the United Arab
                         Emirates to the Kingdom of the Netherlands,
                      as Agent;
                      H.E. Mr. Abdalla Hamdan Alnaqbi, Director of International Law Depart-
                         ment, Ministry of Foreign Affairs and International Cooperation of the
                         United Arab Emirates,
                      Mr. Abdulla Al Jasmi, Head of the Multilateral Treaties and Agreements
                         Section, Ministry of Foreign Affairs and International Cooperation of the
                         United Arab Emirates,
                      Ms Majd Abdalla, Senior Legal Researcher, Multilateral Treaties and Agree-
                         ments Section, Ministry of Foreign Affairs and International Cooperation
                         of the United Arab Emirates,
                      Mr. Mohamed Salim Ali Alowais, Embassy of the United Arab Emirates in
                         the Kingdom of the Netherlands,
                      Ms Fatima Alkhateeb, Ministry of Foreign Affairs and International Co-
                         operation of the United Arab Emirates,
                      as Special Advisers;
                      Mr. Malcolm Shaw, QC, Emeritus Sir Robert Jennings Professor of Interna-
                         tional Law at the University of Leicester, Senior Fellow, Lauterpacht Cen-
                         tre for International Law, University of Cambridge, associate member of
                         the Institut de droit international, Barrister, Essex Court Chambers,
                      Mr. Simon Olleson, Three Stone Chambers, Lincoln’s Inn, member of the
                         Bar of England and Wales,
                      as Counsel and Advocates;
                      Mr. Scott Sheeran, Senior Legal Adviser to the Minister of State for Foreign
                         Affairs, Ministry of Foreign Affairs and International Cooperation of the

                    8

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                    177 	                      icao council (judgment)

                            United Arab Emirates, Barrister and Solicitor of the High Court of
                            New Zealand,
                         Mr. Paolo Busco, Legal Adviser to the Minister of State for Foreign Affairs,
                            Ministry of Foreign Affairs and International Cooperation of the United
                            Arab Emirates, member of the Italian Bar, registered European lawyer
                            with the Bar of England and Wales,
                         Mr. Mark Somos, Senior Research Affiliate, Max Planck Institute for Com-
                            parative Public Law and International Law,
                         Mr. Charles L. O. Buderi, Partner, Curtis, Mallet‑Prevost, Colt & Mosle
                            LLP, member of the Bars of the District of Columbia and the State of
                            California,
                         Ms Luciana T. Ricart, LLM, New York University School of Law, Counsel,
                            Curtis, Mallet‑Prevost, Colt & Mosle LLP, member of the Buenos Aires
                            Bar Association,
                         Ms Lillie Ashworth, LLM, University of Cambridge, Associate, Curtis, Mallet‑
                            Prevost, Colt & Mosle LLP, Solicitor of the Senior Courts of England and
                            Wales,
                         as Counsel,
                         and
                    the State of Qatar,
                    represented by
                      Mr. Mohammed Abdulaziz Al-Khulaifi, Legal Counsel to the Deputy Prime
                         Minister and Minister for Foreign Affairs of the State of Qatar, Dean of
                         the College of Law, Qatar University,
                      as Agent;
                      Mr. Vaughan Lowe, QC, Emeritus Professor of International Law, Univer-
                         sity of Oxford, member of the Institut de droit international, Essex Court
                         Chambers, member of the Bar of England and Wales,
                      Mr. Pierre Klein, Professor of International Law, Université libre de Brux-
                         elles,
                      Ms Loretta Malintoppi, 39 Essex Chambers Singapore, member of the Bar of
                         Rome,
                      Mr. Lawrence H. Martin, Foley Hoag LLP, member of the Bars of the Dis-
                         trict of Columbia and Massachusetts,
                      Mr. Constantinos Salonidis, Foley Hoag LLP, member of the Bars of the
                         State of New York and Greece,
                      Mr. Pierre d’Argent, Professor of International Law, Université catholique de
                         Louvain, member of the Institut de droit international, Foley Hoag LLP,
                         member of the Bar of Brussels,
                      as Counsel and Advocates;
                      H.E. Mr. Abdullah bin Hussein Al‑Jaber, Ambassador of the State of Qatar
                         to the Kingdom of the Netherlands,
                      H.E. Mr. Abdulla bin Nasser Turki Al‑Subaey, President of the Civil Avia-
                         tion Authority of the State of Qatar,
                      Mr. Ahmad Al‑Mana, Ministry of Foreign Affairs of the State of Qatar,
                      Mr. Jassim Al‑Kuwari, Ministry of Foreign Affairs of the State of Qatar,
                      Mr. Nasser Al‑Hamad, Ministry of Foreign Affairs of the State of Qatar,
                      Ms Hissa Al‑Dosari, Ministry of Foreign Affairs of the State of Qatar,

                    9

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                    178 	                      icao council (judgment)

                         Mr. Ali Al‑Hababi, Embassy of the State of Qatar in the Kingdom of the
                            Netherlands,
                         Mr. Essa Al‑Malki, Permanent Representative, Permanent Mission of the
                            State of Qatar to the International Civil Aviation Organization,
                         Mr. John Augustin, Adviser, Permanent Mission of the State of Qatar to the
                            International Civil Aviation Organization,
                         Mr. Salah Al‑Shibani, Director of Legal Affairs Department, Civil Aviation
                            Authority of the State of Qatar,
                         Mr. Nasser Al‑Suwaidi, Director of International Cooperation Department,
                            Civil Aviation Authority of the State of Qatar,
                         Mr. Talal Abdulla Al‑Malki, Director of Public Relations and Communica-
                            tion Department, Civil Aviation Authority of the State of Qatar,
                         Mr. Rashed Al‑Naemi, Embassy of the State of Qatar in the Kingdom of the
                            Netherlands,
                         Mr. Abdulla Nasser Al‑Asiri, Ministry of Foreign Affairs of the State of
                            Qatar,
                         Ms Noora Ahmad Al‑Saai, Ministry of Foreign Affairs of the State of
                            Qatar,
                         Ms Dana Ahmad Ahan, Ministry of Foreign Affairs of the State of Qatar,
                         as Advisers;
                         Mr. Pemmaraju Sreenivasa Rao, Special Adviser in the Office of the Attor-
                            ney General, State of Qatar, former member of the International Law
                            Commission, member of the Institut de droit international,
                         Mr. Surya Subedi, QC (Hon.), Professor of International Law, University of
                            Leeds, member of the Institut de droit international, Three Stone Cham-
                            bers, member of the Bar of England and Wales,
                         Ms Catherine Amirfar, Debevoise & Plimpton LLP, member of the Bar of
                            the State of New York,
                         Mr. Arsalan Suleman, Foley Hoag LLP, member of the Bars of the State of
                            New York and the District of Columbia,
                         Mr. Joseph Klingler, Foley Hoag LLP, member of the Bars of the State of
                            New York and the District of Columbia,
                         Mr. Ioannis Konstantinidis, Assistant Professor of International Law, Col-
                            lege of Law, Qatar University,
                         Mr. Ofilio Mayorga, Foley Hoag LLP, member of the Bars of the State of
                            New York and Nicaragua,
                         Mr. Peter Tzeng, Foley Hoag LLP, member of the Bar of the State of
                            New York,
                         Ms Floriane Lavaud, Debevoise & Plimpton LLP, member of the Bars of the
                            State of New York and Paris, Solicitor of the Senior Courts of England
                            and Wales,
                         Mr. Ali Abusedra, Legal Counsel, Ministry of Foreign Affairs of the State of
                            Qatar,
                         Ms Yasmin Al-Ameen, Foley Hoag LLP,
                         as Counsel;
                         Ms Flannery Sockwell, Foley Hoag LLP,
                         Ms Nancy Lopez, Foley Hoag LLP,
                         Ms Deborah Langley, Foley Hoag LLP,
                         as Assistants,

                    10

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                    179 	                       icao council (judgment)

                         The Court,
                         composed as above,
                         after deliberation,
                         delivers the following Judgment:

                       1. By a joint Application filed in the Registry of the Court on 4 July 2018, the
                    Kingdom of Bahrain, the Arab Republic of Egypt and the United Arab Emir-
                    ates instituted an appeal from a Decision rendered by the Council of the Inter-
                    national Civil Aviation Organization (ICAO) (hereinafter the “ICAO Council”
                    or the “Council”) on 29 June 2018 in proceedings commenced by the State of
                    Qatar against these States on 30 October 2017 (hereinafter the “Decision”), pur-
                    suant to Article II, Section 2, of the International Air Services Transit Agree-
                    ment, adopted at Chicago on 7 December 1944 (hereinafter the “IASTA”). In
                    this Decision, the ICAO Council rejected the preliminary objections raised by
                    Bahrain, Egypt and the United Arab Emirates that it lacked jurisdiction “to
                    resolve the claims raised” by Qatar in its application and that these claims were
                    inadmissible.
                       2. On the same day, the Kingdom of Bahrain, the Arab Republic of Egypt,
                    the Kingdom of Saudi Arabia and the United Arab Emirates filed another joint
                    Application in respect of a different decision of the ICAO Council, also dated
                    29 June 2018, in separate proceedings brought by the State of Qatar on 30 Octo-
                    ber 2017 against those four States, pursuant to Article 84 of the Convention on
                    International Civil Aviation, adopted at Chicago on 7 December 1944 (herein-
                    after the “Chicago Convention” or the “Convention”), the Kingdom of
                    Saudi Arabia also being a party to that instrument (see Appeal relating to the
                    Jurisdiction of the ICAO Council under Article 84 of the Convention on Interna‑
                    tional Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v.
                    Qatar), Judgment, I.C.J. Reports 2020, pp. 88 and 95, paras. 1 and 26).
                       3. In their Application in the present case, the Applicant States seek to found
                    the jurisdiction of the Court on Article II, Section 2, of the IASTA, and by ref-
                    erence on Article 84 of the Chicago Convention, in conjunction with Articles 36,
                    paragraph 1, and 37 of the Statute of the Court.
                       4. In accordance with Article 40, paragraph 2, of the Statute of the Court,
                    the Registrar immediately communicated a signed copy of the Application to
                    the Government of Qatar. He also notified the Secretary‑General of the
                    United Nations of the filing of the Application.
                       In addition, by a letter dated 25 July 2018, the Registrar informed all Mem-
                    ber States of the United Nations of the filing of the above‑mentioned Applica-
                    tion.
                       5. Pursuant to Article 40, paragraph 3, of the Statute of the Court, the Regis-
                    trar notified the Member States of the United Nations, through the Secretary‑
                    General, of the filing of the Application, by transmission of the printed bilingual
                    text of that document.
                       6. In conformity with Article 43, paragraph 1, of the Rules of Court, the
                    Registrar addressed to States parties to the IASTA and to States parties to the
                    Chicago Convention the notifications provided for in Article 63, paragraph 1, of
                    the Statute. In addition, with regard to both of these instruments, in accordance
                    with Article 69, paragraph 3, of the Rules of Court, the Registrar addressed to
                    the ICAO, through its Secretary-General, the notifications provided for in Arti-
                    cle 34, paragraph 3, of the Statute.

                    11

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                    180 	                     icao council (judgment)

                       7. Since the Court included upon the Bench no judge of the nationality of the
                    Parties, the Applicant States and Qatar proceeded to exercise the right conferred
                    upon them by Article 31 of the Statute to choose a judge ad hoc to sit in the
                    case. The Applicant States first jointly chose Mr. Nabil Elaraby, who resigned
                    on 10 September 2019, and, subsequently, Sir Franklin Berman. The Respon-
                    dent chose Mr. Yves Daudet.
                       8. By a letter dated 16 July 2018, the Agent of Qatar requested, on behalf of
                    his Government, that the Court join, pursuant to the first sentence of Article 47
                    of the Rules of Court, the proceedings in the cases concerning the Appeal relat‑
                    ing 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 the Appeal relating to the Jurisdiction of the ICAO Coun‑
                    cil under Article II, Section 2, of the 1944 International Air Services Transit
                    Agreement (Bahrain, Egypt and United Arab Emirates v. Qatar). In his letter,
                    the Agent further stated that, should the Court decide not to join the proceed-
                    ings in the two cases, his Government requested it to direct common action in
                    respect of the written and oral proceedings, pursuant to the second sentence of
                    Article 47 of the Rules of Court.
                       9. By a letter dated 23 July 2018, the Agent of Saudi Arabia indicated that
                    his Government considered that the joinder of the proceedings in the two cases
                    would not be appropriate, as Saudi Arabia was not a party to the IASTA. The
                    Agent, however, stated that his Government had no objection were the Court to
                    direct common action in respect of the written and oral proceedings.
                       10. On 23 July 2018, the President of the Court held meetings with the Agents
                    of the Applicant States and Qatar, pursuant to Article 31 of the Rules of Court,
                    in respect of each case. In the course of these meetings, Qatar reiterated its
                    request that the proceedings in the two cases be joined and, failing this, that the
                    Court direct common action in respect of the written and oral proceedings. For
                    their part, the Applicant States in each case opposed the joinder of the two pro-
                    ceedings. They expressed the view, however, that they would be in favour of the
                    Court directing common action under Article 47 of the Rules of Court with
                    regard to both cases.

                        11. By letters dated 25 July 2018, the Registrar informed the Applicant States
                    and Qatar that, having taken into account their views, the Court had decided
                    not to direct the joinder of the proceedings in the two cases, pursuant to the first
                    sentence of Article 47 of the Rules of Court. He further indicated that the Court,
                    however, considered it appropriate to direct common action, pursuant to the
                    second sentence of that Article, in respect of the said cases, and that the Court
                    would decide in due course on the modalities for such a common action.
                        12. By an Order dated 25 July 2018, the President of the Court fixed
                    27 December 2018 and 27 May 2019 as the respective time‑limits for the filing of
                    a Memorial by the Applicant States and a Counter‑Memorial by Qatar. The
                    Memorial and the Counter‑Memorial were filed on 27 December 2018 and
                    25 February 2019, respectively.
                        13. By an Order dated 27 March 2019, the Court directed the submission of
                    a Reply by the Applicant States and a Rejoinder by Qatar, and fixed 27 May
                    2019 and 29 July 2019 as the respective time‑limits for the filing of those
                    pleadings. The Reply and Rejoinder were filed within the time‑limits thus pre-
                     scribed.

                    12

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                    181 	                     icao council (judgment)

                       14. By a letter dated 5 April 2019, the Registrar, acting pursuant to Arti-
                    cle 69, paragraph 3, of the Rules of Court, transmitted to the Secretary-General
                    of ICAO copies of the written proceedings filed up to that point in the case,
                    namely the Memorial of the Applicant States and the Counter‑Memorial of
                    Qatar, and asked whether the Organization intended to present observations in
                    writing under that provision. By a letter dated 31 July 2019, the Secretary-
                    General of ICAO stated that the Organization did not intend to submit observa-
                    tions in writing at that stage. She indicated, however, that ICAO would advise
                    the Court if it intended to present observations in writing upon receipt of copies
                    of the Reply and the Rejoinder. The said pleadings were communicated to the
                    ICAO under cover of a letter dated 1 August 2019. By a letter dated 20 Septem-
                    ber 2019, the Secretary-General stated that the Organization did not intend to
                    submit observations in writing under the above‑mentioned provision.

                       15. Pursuant to Article 53, paragraph 2, of its Rules, the Court, after ascer-
                    taining the views of the Parties, decided that copies of the pleadings and docu-
                    ments annexed would be made accessible to the public on the opening of the
                    oral proceedings.
                       16. By a letter dated 28 March 2019, the Registrar informed the Parties that
                    the Court had decided to organize combined hearings in the cases concerning
                    the 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 the Appeal relating to the Jurisdiction of the
                    ICAO Council under Article II, Section 2, of the 1944 International Air Services
                    Transit Agreement (Bahrain, Egypt and United Arab Emirates v. Qatar). These
                    combined hearings were held from 2 to 6 December 2019, at which the Court
                    heard the oral arguments and replies of:
                    For the Applicant States: H.E. Sheikh Fawaz bin Mohammed Al Khalifa,
                                               H.E. Mr. Amgad Abdel Ghaffar,
                                               H.E. Ms Hissa Abdullah Ahmed Al-Otaiba,
                                               Mr. Payam Akhavan,
                                               Ms Alexandra van der Meulen,
                                               Mr. Malcolm Shaw,
                                               Mr. Georgios Petrochilos,
                                               Mr. Simon Olleson.
                    For Qatar:                 Mr. Mohammed Abdulaziz Al-Khulaifi,
                                               Mr. Vaughan Lowe,
                                               Mr. Pierre Klein,
                                               Mr. Lawrence Martin,
                                               Ms Loretta Malintoppi.

                                                            *
                      17. In the Application, the following claims were presented by the Applicant
                    States:
                            “For the above-stated reasons, may it please the Court, rejecting all sub-
                         missions to the contrary, to adjudge and declare:
                         (1) That the Decision of the ICAO Council dated 29 June 2018 reflects a
                             manifest failure to act judicially on the part of the ICAO Council, and

                    13

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                    182 	                    icao council (judgment)

                             a manifest lack of due process in the procedure adopted by the
                             ICAO Council; and
                         (2) That the ICAO Council is not competent to adjudicate upon the disa-
                             greement between the State of Qatar and the Applicants submitted by
                             Qatar to the ICAO Council by Qatar’s Application (B) dated 30 Octo-
                             ber 2017; and
                         (3) That the Decision of the ICAO Council dated 29 June 2018 in respect
                             of Application (B) is null and void and without effect.”
                      18. In the written proceedings, the following submissions were presented by
                    the Parties:
                    On behalf of the Governments of the Applicant States,
                    in the Memorial:
                            “1. For the reasons set out in this Memorial, and reserving the right to
                         supplement, amplify or amend the present submissions, the Kingdom of
                         Bahrain, the Arab Republic of Egypt, and the United Arab Emirates hereby
                         request the Court to uphold their Appeal against the Decision rendered by
                         the Council of the International Civil Aviation Organization dated 29 June
                         2018, in proceedings commenced by the State of Qatar by Qatar’s Applica-
                         tion (B) dated 30 October 2017 against the Appellants pursuant to Arti-
                         cle II, Section 2, of the IASTA.

                            2. In particular, the Court is respectfully requested to adjudge and
                         declare, rejecting all submissions to the contrary, that:
                         (1) the Decision of the ICAO Council dated 29 June 2018 reflects a mani-
                              fest failure to act judicially on the part of the ICAO Council, and a
                              manifest lack of due process in the procedure adopted by the
                              ICAO Council; and
                         (2) the ICAO Council is not competent to adjudicate upon the disagree-
                              ment between the State of Qatar and the Appellants submitted by Qatar
                              to the ICAO Council by Qatar’s Application (B) dated 30 October
                              2017; and
                         (3) the Decision of the ICAO Council dated 29 June 2018 in respect of
                              Application (B) is null and void and without effect.”
                    in the Reply:
                            “1. For these reasons, and reserving the right to supplement, amplify or
                         amend the present submissions, the Kingdom of Bahrain, the Arab Repub-
                         lic of Egypt and the United Arab Emirates hereby request the Court to
                         uphold their Appeal against the Decision rendered by the Council of the
                         International Civil Aviation Organization dated 29 June 2018, in proceed-
                         ings commenced by Qatar’s Application (B) dated 30 October 2017 against
                         the three States pursuant to Article II, Section 2, of the IASTA.

                            2. In particular, the Court is respectfully requested to adjudge and
                         declare, rejecting all submissions to the contrary, that:
                         (1) the Decision of the ICAO Council dated 29 June 2018 reflects a mani-
                              fest failure to act judicially on the part of the ICAO Council, and a
                              manifest lack of due process in the procedure adopted by the
                              ICAO Council; and

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                         (2) the ICAO Council is not competent to adjudicate upon the disagree-
                             ment between Qatar and the Appellants submitted by Qatar to
                             the ICAO Council by Qatar’s Application (B) dated 30 October 2017;
                             and
                         (3) the Decision of the ICAO Council dated 29 June 2018 in respect of
                             Application (B) is null and void and without effect.”
                    On behalf of the Government of Qatar,
                    in the Counter-Memorial:
                            “On the basis of the facts and law set forth in this Counter‑
                         Memorial, Qatar respectfully requests the Court to reject Joint
                         Appellants’ appeal and affirm the ICAO Council’s Decision of 29 June
                         2018 dismissing Joint Appellants’ preliminary objection to the Council’s
                         jurisdiction and competence to adjudicate Qatar’s Application (B) of
                         30 October 2017.”
                    in the Rejoinder:
                            “On the basis of the facts and law set forth in this Rejoinder, Qatar
                         respectfully requests the Court to reject Joint Appellants’ appeal and affirm
                         the ICAO Council’s Decision of 29 June 2018 dismissing Joint Appellants’
                         preliminary objection to the Council’s jurisdiction and competence to adju-
                         dicate Qatar’s Application (B) of 30 October 2017.”

                      19. At the oral proceedings, the following submissions were presented by the
                    Parties:
                    On behalf of the Governments of the Applicant States,
                    at the hearing of 5 December 2019:
                            “1. In accordance with Article 60, paragraph 2, of the Rules of the Court,
                         and for the reasons set out during the written and oral phase of the plead-
                         ings, the Kingdom of Bahrain, the Arab Republic of Egypt and the United
                         Arab Emirates hereby request the Court to uphold their Appeal against the
                         Decision rendered by the Council of the International Civil Aviation Organ-
                         ization dated 29 June 2018, in proceedings commenced by Qatar’s Applica-
                         tion (B) dated 30 October 2017 against the three States pursuant to Article II,
                         Section 2, of the IASTA.

                            2. In particular, the Court is respectfully requested to adjudge and
                         declare, rejecting all submissions to the contrary, that:
                         (1) the Decision of the ICAO Council dated 29 June 2018 reflects a mani-
                              fest failure to act judicially on the part of the ICAO Council, and a
                              manifest lack of due process in the procedure adopted by the
                              ICAO Council; and
                         (2) the ICAO Council is not competent to adjudicate upon the disagree-
                              ment between the State of Qatar and the Appellants submitted by Qatar
                              to the ICAO Council by Qatar’s Application (B) dated 30 October
                              2017; and
                         (3) the Decision of the ICAO Council dated 29 June 2018 in respect of
                              Application (B) is null and void and without effect.”

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                    184 	                     icao council (judgment)

                    On behalf of the Government of Qatar,
                    at the hearing of 6 December 2019:
                            “In accordance with Article 60 of the Rules of Court, for the reasons
                         explained during these hearings, Qatar respectfully requests the Court to
                         reject Joint Appellants’ appeals and affirm the ICAO Council’s Decisions
                         of 29 June 2018 dismissing Joint Appellants’ preliminary objection to the
                         Council’s jurisdiction and competence to adjudicate Qatar’s claims before
                         the Council.”

                                                             *
                       20. In the following paragraphs, the Applicant States, namely the Kingdom
                    of Bahrain, the Arab Republic of Egypt and the United Arab Emirates, will col-
                    lectively be referred to as the “Appellants”. In describing proceedings before the
                    ICAO Council, these States will be referred to as respondents before the
                    ICAO Council.

                                                             *
                                                         *       *

                                                   I. Introduction

                                               A. Factual Background
                       21. On 5 June 2017, the Governments of Bahrain, Egypt and the
                    United Arab Emirates, as well as Saudi Arabia, severed diplomatic rela-
                    tions with Qatar and adopted a series of restrictive measures relating to
                    terrestrial, maritime and aerial lines of communication with Qatar, which
                    included certain aviation restrictions. Pursuant to these restrictions, all
                    Qatar‑registered aircraft were barred by the Appellants from landing at
                    or departing from their airports and were denied the right to overfly their
                    respective territories, including the territorial seas within the relevant
                    flight information regions. Certain restrictions also applied to non‑Qatar-
                    registered aircraft flying to and from Qatar, which were required to obtain
                    prior approval from the civil aviation authorities of the Appellants.
                    According to the Appellants, the restrictive measures were taken in
                    response to Qatar’s alleged breach of its obligations under certain inter-
                    national agreements to which the Appellants and Qatar are parties,
                    namely the Riyadh Agreement (with Endorsement Agreement) of 23 and
                    24 November 2013, the Mechanism Implementing the Riyadh Agreement
                    of 17 April 2014 and the Supplementary Riyadh Agreement of 16 Novem-
                    ber 2014 (hereinafter the “Riyadh Agreements”), and of other obligations
                    under international law.

                      22. On 15 June 2017, Qatar submitted to the Office of the ICAO
                    Secretary-General an application for the purpose of initiating proceedings

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                    before the Council, citing as respondents Bahrain, Egypt and the United Arab
                    Emirates, as well as a memorial. Certain deficiencies in the application and
                    the memorial having been identified by the Secretariat, the Secretary-
                    General, in a letter dated 21 June 2017, requested Qatar to rectify them.
                       23. On 30 October 2017, pursuant to Article II, Section 2, of the
                    IASTA, Qatar filed a new application and memorial with the ICAO Coun-
                    cil, in which it claimed that the aviation restrictions adopted by Bahrain,
                    Egypt and the United Arab Emirates violated their obligations under the
                    IASTA. Article II, Section 2, of the IASTA reads as follows:

                            “If any disagreement between two or more contracting States relat-
                         ing to the interpretation or application of this Agreement cannot be
                         settled by negotiation, the provisions of Chapter XVIII of the
                         [Chicago] Convention shall be applicable in the same manner

                         as provided therein with reference to any disagreement relating to the
                         interpretation or application of the above‑mentioned Convention.”

                    Article 84 of the Chicago Convention, contained in Chapter XVIII of
                    that Convention, reads as follows:
                            “Settlement of Disputes
                            If any disagreement between two or more contracting States relat-
                         ing to the interpretation or application of this Convention and its
                         Annexes cannot be settled by negotiation, it shall, on the application
                         of any State concerned in the disagreement, be decided by the Coun-
                         cil. No member of the Council shall vote in the consideration by the
                         Council of any dispute to which it is a party. Any contracting State
                         may, subject to Article 85, appeal from the decision of the Council to
                         an ad hoc arbitral tribunal agreed upon with the other parties to the
                         dispute or to the Permanent Court of International Justice. Any such
                         appeal shall be notified to the Council within sixty days of receipt of
                         notification of the decision of the Council.”
                       24. On 19 March 2018, Bahrain, Egypt and the United Arab Emirates,
                    as respondents before the ICAO Council, raised two preliminary objec-
                    tions. In the first preliminary objection, they argued that the ICAO Coun-
                    cil lacked jurisdiction under the IASTA since the real issue in dispute
                    between the Parties involved matters extending beyond the scope of that
                    instrument, including whether the aviation restrictions could be charac-
                    terized as lawful countermeasures under international law. In the second
                    preliminary objection, they argued that Qatar had failed to meet the pre-
                    condition of negotiation set forth in Article II, Section 2, of the IASTA,
                    also reflected in Article 2, subparagraph (g), of the ICAO Rules for the
                    Settlement of Differences, and consequently that the Council lacked juris-

                    17

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                    186 	                   icao council (judgment)

                    diction to resolve the claims raised by Qatar, or alternatively that the
                    application was inadmissible.
                       25. By a decision dated 29 June 2018, the ICAO Council rejected, by
                    18 votes to 2, with 5 abstentions, the preliminary objections, treating
                    them as one single objection. In this Decision, the Council stated,
                    inter alia, the following:
                            “HAVING CONSIDERED the preliminary objection of the
                         Respondents, namely that the Council lacks jurisdiction to resolve the
                         claims raised by the Applicant in Application (B); or in the alterna-
                         tive, that the Applicant’s claims are inadmissible;
                            CONSIDERING that the question before the Council was whether
                         to accept the preliminary objection of the Respondents;
                            BEARING IN MIND Article 52 of the Chicago Convention which
                         provides that decisions by the Council shall require approval by a
                         majority of its Members and the consistent practice of the Council in
                         applying this provision in previous cases;
                            HAVING DECLINED a request by one of the Respondents to
                         reconsider the above-mentioned majority of 19 Members required in
                         the current Council for the approval of its decisions;
                            DECIDES that the preliminary objection of the Respondents is not
                         accepted. ”
                       26. On 4 July 2018, the Appellants submitted a joint Application to
                    the Court instituting an appeal from the Decision of the Council dated
                    29 June 2018. Before addressing the three grounds of appeal against that
                    Decision, the Court will describe its appellate function and the scope
                    of the right of appeal to the Court under Article 84 of the Chicago
                    Convention (incorporated by reference in Article II, Section 2, of the
                     IASTA).

                            B. The Court’s Appellate Function and the Scope of the Right
                                              of Appeal to the Court
                       27. The joint appeal of the three Appellants in the present case is made
                    under Article II, Section 2, of the IASTA, which refers to Chapter XVIII
                    of the Chicago Convention. Bahrain, Egypt and the United Arab Emir-
                    ates have been parties to the IASTA since 12 October 1971, 13 March
                    1947 and 25 April 1972, respectively. Qatar has been a party to the
                    IASTA since 25 June 2008. Bahrain, Egypt and the United Arab Emir-
                    ates have been parties to the Chicago Convention since 19 September
                    1971, 12 April 1947 and 25 May 1972, respectively. Qatar has been a
                    party to the Chicago Convention since 5 October 1971.
                       28. Article II, Section 2, of the IASTA (the text of which is reproduced
                    in paragraph 23 above) provides for the jurisdiction of the ICAO Council
                    to decide “any disagreement between two or more contracting States
                    relating to the interpretation or application of this Agreement” if it “can-
                    not be settled by negotiation”. Under the Chicago Convention, to which

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                    187 	                    icao council (judgment)

                    the IASTA refers, a decision of the Council may be appealed either to an
                    ad hoc arbitral tribunal agreed upon between the parties to a dispute or to
                    “the Permanent Court of International Justice”. Under Article 37 of the
                    Statute of the International Court of Justice, “[w]henever a treaty or con-
                    vention in force provides for reference of a matter . . . to the Permanent
                    Court of International Justice, the matter shall, as between the parties to
                    the present Statute, be referred to the International Court of Justice”. The
                    Court held in the past that
                         “[t]he effect of that Article . . . is that, as between the parties to the
                         Statute, this Court is substituted for the Permanent Court in any
                         treaty or convention in force, the terms of which provide for reference
                         of a matter to the Permanent Court” (Aegean Sea Continental Shelf
                         (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 14, para. 34).
                    Accordingly, under Article II, Section 2, of the IASTA and Article 84 of
                    the Chicago Convention, the Court is competent to hear an appeal from
                    a decision of the ICAO Council (see Appeal Relating to the Jurisdiction of
                    the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972,
                    p. 53, para. 15, and p. 60, para. 25).
                       29. The Court notes that Article 84 of the Chicago Convention (incor-
                    porated by reference in Article II, Section 2, of the IASTA) appears under
                    the title “Settlement of disputes”, whereas the text of the Article opens
                    with the expression “any disagreement”. In this context, the Court recalls
                    that its predecessor, the Permanent Court of International Justice, defined
                    a dispute as “a disagreement on a point of law or fact, a conflict of legal
                    views or of interests between two persons” (Mavrommatis Palestine Con‑
                    cessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11).

                      30. The Appellants appeal from a decision of the ICAO Council on the
                    preliminary objections which they raised in the proceedings before it. The
                    text of Article 84 does not specify whether only final decisions of the
                    ICAO Council on the merits of disputes before it are subject to appeal.
                    The Court settled this issue in the first appeal submitted to it against a
                    decision of the ICAO Council (Appeal Relating to the Jurisdiction of the
                    ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 46).
                    The Court, clarifying its role in the exercise of its appellate function under
                    the Chicago Convention and the IASTA, stated that those treaties

                         “enlist the support of the Court for the good functioning of [ICAO],
                         and therefore the first reassurance for the Council lies in the knowl-
                         edge that means exist for determining whether a decision as to its own
                         competence is in conformity or not with the provisions of the treaties
                         governing its action” (ibid., pp. 60‑61, para. 26; emphasis added).

                    As the Court explained, “it would be contrary to accepted standards of
                    the good administration of justice to allow an international organ to

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                    188 	                   icao council (judgment)

                    examine and discuss the merits of a dispute when its competence to do so
                    was not only undetermined but actively challenged” (I.C.J. Reports 1972,
                    p. 57, para. 18 (e)).
                       The Court therefore concluded that
                         “an appeal against a decision of the Council as to its own jurisdiction
                         must therefore be receivable since, from the standpoint of the super-
                         vision by the Court of the validity of the Council’s acts, there is no
                         ground for distinguishing between supervision as to jurisdiction, and
                         supervision as to merits” (ibid., p. 61, para. 26).
                       31. Relying on these pronouncements of the Court, the Appellants
                    brought their joint appeal, emphasizing that Article 84 of the Chicago
                    Convention and Article II, Section 2, of the IASTA encompass appeals
                    against decisions of the ICAO Council regarding preliminary objections
                    to its jurisdiction.
                       32. Qatar expressly recognizes the right of the Appellants under Arti-
                    cle II, Section 2, of the IASTA to appeal the Council’s decision on its
                    jurisdiction.
                       33. In view of the above, the Court is satisfied that it has jurisdiction
                    to entertain the present appeal. It notes, however, that the Appellants and
                    Qatar disagree on the scope of the right of appeal.
                       34. The Appellants submit that an appeal under Article II, Section 2, of
                    the IASTA encompasses “procedural complaints”. They argue that they
                    are entitled before the ICAO Council to due process, which according to
                    them, they were denied. The alleged lack of due process in the proceedings
                    before the ICAO Council constitutes their first ground of appeal.
                       35. Qatar, while denying that any procedural irregularities occurred
                    during the proceedings before the ICAO Council, suggests that the Court
                    should decline to exercise its supervisory authority in respect of these
                    alleged procedural irregularities. In Qatar’s view, not only were there no
                    such irregularities, but they would in any case be irrelevant to the objective
                    question of law before the Court, namely whether the ICAO Council has
                    jurisdiction to consider and decide on Qatar’s claims under the IASTA.
                       36. The Court recalls that its role in supervising the Council in the
                    exercise of the latter’s dispute settlement functions under Article 84 of the
                    Chicago Convention (incorporated by reference in Article II, Section 2, of
                    the IASTA) is to determine whether the impugned decision is correct. In
                    the present case, its task is to decide whether the Council has erred in
                    rejecting the preliminary objections of the Appellants to the jurisdiction
                    of the ICAO Council and the admissibility of Qatar’s application.

                                             II. Grounds of Appeal

                      37. The Appellants raise three grounds of appeal against the Decision
                    of the ICAO Council dated 29 June 2018. First, they submit that the

                    20

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                    189 	                    icao council (judgment)

                    Decision “should be set aside on the grounds that the procedure adopted
                    by the ICAO Council was manifestly flawed and in violation of funda-
                    mental principles of due process and the right to be heard”.

                        38. In their second ground of appeal, the Appellants assert that the
                    ICAO Council “erred in fact and in law in rejecting the first preliminary
                    objection made [by them] in respect of the competence of the ICAO
                    Council”. According to the Appellants, to pronounce on the dispute

                    would require the Council to rule on questions that fall outside its juris
                    diction, specifically on the lawfulness of the countermeasures, including
                    “certain airspace restrictions”, adopted by the Appellants. In the alterna-
                     tive, and for the same reasons, they argue that the claims of Qatar are
                    inadmissible.
                        39. Under their third ground of appeal, the Appellants contend that
                     the ICAO Council erred when it rejected their second preliminary objec-
                     tion. That objection was based on the assertion that Qatar had failed to
                     satisfy the precondition of negotiation contained in Article II, Section 2,
                     of the IASTA, and thus that the ICAO Council lacked jurisdiction. As
                     part of that objection, they also argued that the claims of Qatar were
                     inadmissible because Qatar had not complied with the procedural require-
                     ment in Article 2, subparagraph (g), of the ICAO Rules for the Settle-
                    ment of Differences.
                        40. Although the Appellants invoke their three grounds of appeal in
                     the above‑mentioned order, the Court is not bound to follow it. The
                     Court will first examine the grounds based on the alleged errors of
                     the ICAO Council in rejecting the Appellants’ objections. Thereafter, the
                    Court will consider the ground based on the alleged manifest lack of due
                    process in the procedure before the Council.

                         A. The Second Ground of Appeal: Rejection by the ICAO Council
                                       of the First Preliminary Objection
                    1. Whether the dispute between the Parties relates to the interpretation or
                      application of the IASTA
                        41. As noted above, the Appellants’ second ground of appeal relates
                     to their first preliminary objection as respondents before the ICAO
                     Council. In this objection, they argued that their actions, including

                     in particular the aviation restrictions, constitute a set of measures
                     “adopted in reaction to Qatar’s multiple, grave, and persistent breaches
                     of its international obligations relating to matters essential to [their] secu-
                     rity . . ., and constitute lawful countermeasures authorised by general
                     international law”. They expressed the view that under Article II,
                    Section 2, of the IASTA the jurisdiction of the Council is limited to any
                     disagreement between two or more States relating to the interpretation or
                     application of the IASTA and that the Council therefore does not have
                     jurisdiction to adjudicate issues as to whether Qatar has breached its

                    21

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                    190 	                   icao council (judgment)

                    other obligations under international law, including obligations under the
                    Riyadh Agreements.

                       42. In the Appellants’ view, the resolution of Qatar’s claims by the
                    ICAO Council would necessarily require it to determine issues forming
                    part of the wider dispute between the Parties, including the question
                    whether Qatar had breached its counter‑terrorism obligations and its
                    international obligation not to interfere in the internal affairs of the
                    Appellants, matters falling outside of the scope of the IASTA. They argue
                    that the narrow dispute relating to airspace closures cannot be separated
                    from the broader issues and that the legality of the airspace closures can-
                    not be judged in isolation.

                       43. The Appellants maintain that the ICAO Council lacks jurisdiction
                    since the real issue in dispute between the Parties cannot be confined to
                    matters within its limited jurisdiction. They contend that, in view of the
                    role of ICAO as the United Nations specialized agency with functions
                    related to matters of civil aviation, the competence of its Council under
                    Article II, Section 2, of the IASTA extends only to the settlement of dis-
                    agreements relating to the interpretation or application of that agree-
                    ment. They therefore submit that, before determining that it had
                    jurisdiction, the Council ought to have identified and legally character-
                    ized the subject‑matter of the dispute before it. It should then have deter-
                    mined whether this dispute fell within its jurisdiction ratione materiae
                    under Article II, Section 2, of the IASTA. In their view, the real issue in
                    dispute between the Parties concerns “Qatar’s long‑standing violations of
                    its obligations under international law other than under the IASTA”.
                    They characterize the measures they have taken, including the aviation
                    restrictions that form the basis of Qatar’s claim, as lawful counter
                    measures. The Appellants maintain that none of these matters, i.e.
                    Qatar’s alleged violations of international obligations and the Appellants’
                    countermeasures in response thereto, fall within the ICAO Council’s
                    jurisdiction ratione materiae under Article II, Section 2, of the IASTA.
                    Therefore, they request the Court to adjudge that the Council has no
                    jurisdiction to entertain Qatar’s application submitted to it.

                                                          *
                       44. Before the Council, Qatar expressed the view that the issues of
                    countermeasures and their lawfulness go to the merits of the case and
                    should not be considered by the Council when it takes a decision on its
                    jurisdiction. Qatar relied on the Court’s Judgment in the Appeal Relating
                    to the Jurisdiction of the ICAO Council (India v. Pakistan) (Judgment,
                    I.C.J. Reports 1972, p. 46), which in its view “is entirely dispositive of all
                    the arguments of the Respondents, leaving aside the issue of negotia-
                    tions”.

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                    191 	                   icao council (judgment)

                       45. Before the Court, Qatar argues that the Council has jurisdiction to
                    decide the case if there is any disagreement between the Parties relating to
                    the interpretation or application of the IASTA which cannot be settled by
                    negotiation. According to Qatar, there is nothing in that Agreement or in
                    the ICAO Rules for the Settlement of Differences that sets any other limit
                    on, or otherwise circumscribes, the jurisdiction of the Council. Qatar con-
                    tends that the claims it has presented to the ICAO Council relate to the
                    interpretation or application of the IASTA and thus the Council properly
                    rejected the first preliminary objection. It maintains that the Council has
                    jurisdiction to entertain its application notwithstanding the invocation by
                    the Appellants of a defence that raises issues falling outside the scope of
                    the Agreement or the fact that the dispute in question arises in the context
                    of a broader dispute between the Parties.

                                                        * *
                       46. The Court has first to determine whether the dispute brought by
                    Qatar before the ICAO Council is a disagreement between the Appellants
                    and Qatar relating to the interpretation or application of the IASTA. The
                    Council’s jurisdiction ratione materiae is circumscribed by the terms of
                    Article II, Section 2, of the IASTA to this type of disagreement. As the
                    Court explained in 1972, a disagreement relates to the interpretation or
                    application of the IASTA if, “in order to determine [it], the Council
                    would inevitably be obliged to interpret and apply the [Agreement], and
                    thus to deal with matters unquestionably within its jurisdiction” (Appeal
                    Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judg‑
                    ment, I.C.J. Reports 1972, p. 66, para. 36).
                       47. In its application and memorial submitted to the ICAO Council on
                    30 October 2017, Qatar requested the Council to “determine that the
                    Respondents violated by their actions against the State of Qatar their
                    obligations under the International Air Services Transit Agreement and
                    other rules of international law”. It further requested the Council
                    to “deplore the violations by the Respondents of the fundamental prin-
                    ciples of the International Air Services Transit Agreement”. Conse-
                    quently, Qatar asked the Council to urge the respondents “to withdraw,
                    without delay, all restrictions imposed on the Qatar‑registered air-
                    craft and to comply with their obligations under the International Air
                    Services Transit Agreement” and “to negotiate in good faith the future
                    harmonious cooperation in the region to safeguard the safety, security[,]
                    regularity and economy of international civil aviation”. In its memorial,
                    Qatar stated that parties to the IASTA “grant each other in scheduled
                    international air services [t]he privilege to fly across its territory without
                    landing, and [t]he privilege to land for non‑traffic purposes”. It further
                    stated that “[b]y their actions starting on 5 June 2017 and lasting to
                    the present time the Respondents violated the letter and spirit of the

                    23

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                    192 	                    icao council (judgment)

                    [IASTA]” and that “[t]hey are in blatant default of their obligations under
                    the IASTA”.
                       48. The Court considers that the disagreement between the Parties
                    brought before the ICAO Council concerns the interpretation and applica-
                    tion of the IASTA and therefore falls within the scope of Article II, Sec-
                    tion 2, of the IASTA. The mere fact that this disagreement has arisen in a
                    broader context does not deprive the ICAO Council of its jurisdiction
                    under Article II, Section 2, of the IASTA. As the Court has observed in
                    the past, “legal disputes between sovereign States by their very nature are
                    likely to occur in political contexts, and often form only one element in a
                    wider and long‑standing political dispute between the States concerned”
                    (United States Diplomatic and Consular Staff in Tehran (United States of
                    America v. Iran), Judgment, I.C.J. Reports 1980, p. 20, para. 37; see also
                    Certain Iranian Assets (Islamic Republic of Iran v. United States of Amer‑
                    ica), Preliminary Objections, Judgment, I.C.J. Reports 2019 (I), p. 23,
                    para. 36).
                       49. Nor can the Court accept the argument that, because the Appel-
                    lants characterize their aviation restrictions imposed on Qatar‑registered
                    aircraft as lawful countermeasures, the Council has no jurisdiction to
                    hear the claims of Qatar. Countermeasures are among the circumstances
                    capable of precluding the wrongfulness of an otherwise unlawful act in
                    international law and are sometimes invoked as defences (see
                    Gabčíkovo‑Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J.
                    Reports 1997, p. 55, para. 82). The prospect that a respondent would raise
                    a defence based on countermeasures in a proceeding on the merits before
                    the ICAO Council does not, in and of itself, have any effect on the Coun-
                    cil’s jurisdiction within the limits laid down in Article II, Section 2, of the
                    IASTA. As the Court stated when considering an appeal from a decision
                    of the ICAO Council in 1972:

                            “The fact that a defence on the merits is cast in a particular form,
                         cannot affect the competence of the tribunal or other organ con-
                         cerned, — otherwise parties would be in a position themselves to
                         control that competence, which would be inadmissible. As has already
                         been seen in the case of the competence of the Court, so with that of
                         the Council, its competence must depend on the character of the dis-
                         pute submitted to it and on the issues thus raised — not on those
                         defences on the merits, or other considerations, which would become
                         relevant only after the jurisdictional issues had been settled.” (Appeal
                         Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
                         Judgment, I.C.J. Reports 1972, p. 61, para. 27.)
                       50. This reasoning applies equally to the present case. The Court there-
                    fore concludes that the Council did not err when it rejected the first pre-
                    liminary objection by the Appellants relating to its jurisdiction.

                    24

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                    193 	                   icao council (judgment)

                    2. Whether Qatar’s claims are inadmissible on grounds of “judicial
                      propriety”
                       51. Before the ICAO Council, the respondents raised the alternative
                    argument that Qatar’s claims are inadmissible. While they referred to
                    “general principles regarding admissibility”, they did not elaborate upon
                    arguments specific to their alternative request to declare Qatar’s claims
                    inadmissible. They relied instead on the same arguments made against the
                    Council’s jurisdiction. They argued that the distinction between the objec-
                    tions to the jurisdiction of the Council and those to the admissibility of
                    Qatar’s claims “did not matter for the Council’s purposes as both of those
                    types of objection were covered by the wording of Article 5 (1)” of the
                    ICAO Rules for the Settlement of Differences.

                       52. The Appellants argue before the Court that, if the case were to
                    proceed to the merits in its current form, the ICAO Council would have
                    two options. First, it might adjudicate the issues relating to whether the
                    aviation restrictions constitute lawful countermeasures, including, in par-
                    ticular, whether Qatar has breached its international obligations in mat-
                    ters outside civil aviation. This would, however, mean that the Appellants
                    would be required to plead their defence on the basis of countermeasures
                    in a forum that they consider not to be properly equipped to determine
                    such matters. Secondly, the ICAO Council might decline to hear the
                    defence on the basis of countermeasures, but this would mean that it
                    could not decide all the matters before it. It would be wrong, in their
                    view, for the Council to adjudicate the dispute in part only, ignoring that
                    part which contains “a vital defence” of the Appellants.

                       They submit that Qatar’s application to the ICAO Council is inadmis-
                    sible in so far as any resolution of Qatar’s claims will necessarily require
                    the Council to adjudicate upon matters over which it does not possess
                    jurisdiction. Any such exercise of jurisdiction by the Council would be
                    incompatible with the consensual basis for jurisdiction and thus incom-
                    patible with “judicial propriety” and the ICAO Council’s “judicial” func-
                    tion under Article II, Section 2, of the IASTA.

                                                         *
                       53. In its submissions to the Council, Qatar took the view that the
                    ICAO Rules for the Settlement of Differences do not permit preliminary
                    objections as to admissibility. It urged the Council not to rule on admis-
                    sibility at the preliminary objections phase, while admitting that the
                    respondents were not precluded from making admissibility submissions in
                    their counter‑memorials on the merits.

                      54. Before the Court, Qatar characterizes the Appellants’ “alternative
                    argument” as not really an “alternative” one but rather as an “obvious

                    25

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                    194 	                   icao council (judgment)

                    repurposing” of their jurisdictional objection. Qatar notes that the Appel-
                    lants assert that if the Council were to pass judgment upon their defence
                    on the basis of countermeasures it would “adjudicate” outside the scope
                    of Article II, Section 2, of the IASTA without their consent. It contends
                    that none of the “exceptional circumstances” which gave rise to the doc-
                    trine of “judicial propriety” in the Court’s jurisprudence are present in
                    the case pending before the Council. Qatar argues that “judicial propri-
                    ety” would be offended if the Appellants’ submissions were to be accepted
                    because the Council then would not exercise its powers “to their full
                    extent”.

                                                        * *
                       55. In the case concerning Application of the Convention on the Preven‑
                    tion and Punishment of the Crime of Genocide (Croatia v. Serbia), the
                    Court considered a preliminary objection that was presented simultane-
                    ously as an objection to jurisdiction and as one going to the admissibility
                    of the claims (Preliminary Objections, Judgment, I.C.J. Reports 2008,
                    p. 456, para. 120). The Court then recalled that “[a] distinction between
                    these two kinds of objections is well recognized in the practice of the
                    Court” (ibid.). The effect of an objection, irrespective of whether it is to
                    jurisdiction or to admissibility, if upheld, is the same — it brings the pro-
                    ceedings in respect of that claim to an end. As jurisdiction is based on
                    consent, a jurisdictional objection will most likely concern whether such
                    consent has been given by the objecting State, whether the claim falls
                    within the scope of the consent given or whether conditions attached to
                    that consent are met. As far as objections to the admissibility of a claim
                    are concerned, the Court explained that an objection to admissibility
                         “consists in the contention that there exists a legal reason, even when
                         there is jurisdiction, why the Court should decline to hear the case,
                         or more usually, a specific claim therein. Such a reason is often of
                         such a nature that the matter should be resolved in limine litis” (ibid.;
                         see also Oil Platforms (Islamic Republic of Iran v. United States of
                         America), Judgment, I.C.J. Reports 2003, p. 177, para. 29).

                      56. Article 5 of the ICAO Rules for the Settlement of Differences,
                    approved by the Council on 9 April 1957, bears the heading “Preliminary
                    objection and action thereon”. Its first paragraph provides that “[i]f the
                    respondent questions the jurisdiction of the Council to handle the matter
                    presented by the applicant, he shall file a preliminary objection setting out
                    the basis of the objection” (emphasis added). This provision does not
                    expressly mention preliminary objections to admissibility. However, the
                    Rules for the Settlement of Differences were drafted following the model
                    of the 1946 Rules of this Court, which also did not expressly mention
                    preliminary objections to admissibility. This lack of specificity did not

                    26

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                    195 	                    icao council (judgment)

                    prevent the Court from dealing with objections to admissibility as a pre-
                    liminary issue before the amendment of the Rules of Court in 1972
                    (e.g. Barcelona Traction, Light and Power Company, Limited (New Appli‑
                    cation: 1962) (Belgium v. Spain), Preliminary Objections, Judgment,
                    I.C.J. Reports 1964, p. 6). Likewise, Article 5 of the ICAO Rules for the
                    Settlement of Differences does not preclude the Council from considering
                    an objection to the admissibility of a claim as a preliminary issue.

                       57. The Court is of the view that in proceedings before the ICAO Coun-
                    cil, if a party raises a preliminary objection to the admissibility of a claim,
                    that objection should also be resolved in limine litis unless it is not of an
                    exclusively preliminary character. In other words, it should be considered
                    and decided upon at a preliminary stage unless it is so intertwined with
                    the merits of the matter brought before the Council that it cannot be
                    dealt with without determining, at least to some degree, issues properly
                    pertaining to the merits (see Application of the Convention on the Preven‑
                    tion and Punishment of the Crime of Genocide (Croatia v. Serbia), Pre‑
                    liminary Objections, Judgment, I.C.J. Reports 2008, p. 459, para. 127).
                    The only other situation where the Council could postpone its determina-
                    tion of a preliminary objection to admissibility by joining it to the merits
                    is when it does not have before it all the facts necessary to decide the
                    question raised. Neither situation, in the view of the Court, was present in
                    the proceedings before the Council in this case.

                       58. The Council was fully aware of the objection to admissibility raised
                    by the respondents in the proceedings before it. In fact, they argued orally
                    that both objections to jurisdiction and to admissibility were covered by
                    the wording of Article 5 (1) of the ICAO Rules for the Settlement of Dif-
                    ferences. The Council did vote on the objection as the one “relating to the
                    interpretation and application of the Transit Agreement” and by majority
                    decided that it “was not accepted”. This implies that the objection to the
                    admissibility of Qatar’s application was rejected.

                       59. The question for the Court is whether that decision of the Council
                    rejecting the objection as it relates to the admissibility of Qatar’s claims
                    was a correct one. In other words, the Court has to ascertain whether the
                    claims brought before the Council are admissible.

                       60. The Court observes that it is difficult to apply the concept of “judi-
                    cial propriety” to the ICAO Council. The Council is a permanent organ
                    responsible to the ICAO Assembly, composed of designated representa-
                    tives of the contracting States elected by the Assembly, rather than of
                    individuals acting independently in their personal capacity as is character-
                    istic of a judicial body. In addition to its executive and administrative
                    functions specified in Articles 54 and 55 of the Chicago Convention, the
                    Council was given in Article 84 the function of settling disagreements

                    27

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                    196 	                   icao council (judgment)

                    between two or more contracting States relating to the interpretation or
                    application of the Convention and its Annexes. This, however, does not
                    transform the ICAO Council into a judicial institution in the proper sense
                    of that term.
                       61. In any event, the integrity of the Council’s dispute settlement func-
                    tion would not be affected if the Council examined issues outside matters
                    of civil aviation for the exclusive purpose of deciding a dispute which falls
                    within its jurisdiction under Article II, Section 2, of the IASTA. There-
                    fore, a possible need for the ICAO Council to consider issues falling out-
                    side the scope of the IASTA solely in order to settle a disagreement
                    relating to the interpretation or application of the IASTA would not ren-
                    der the application submitting that disagreement to it inadmissible.

                       62. The Court therefore concludes that the Council did not err when it
                    rejected the first preliminary objection in so far as the respondents asserted
                    that Qatar’s claims were inadmissible.

                                                          *
                      63. In view of the above, the second ground of appeal cannot be
                    upheld.

                         B. The Third Ground of Appeal: Rejection by the ICAO Council of
                                        the Second Preliminary Objection
                       64. As their third ground of appeal, the Appellants assert that the
                    ICAO Council erred when it rejected the second preliminary objection
                    which they raised as respondents before the Council, pursuant to which
                    they claimed that the ICAO Council lacked jurisdiction because Qatar
                    had failed to meet the negotiation precondition found in Article II, Sec-
                    tion 2, of the IASTA and that Qatar’s application to the ICAO Council
                    was inadmissible because it did not comply with Article 2, subpara-
                    graph (g), of the ICAO Rules for the Settlement of Differences.

                    1. The alleged failure to meet a negotiation precondition prior to the filing
                      of Qatar’s application with the ICAO Council
                       65. Article II, Section 2, of the IASTA provides that “[i]f any disagree-
                    ment . . . cannot be settled by negotiation, the provisions of Chap-
                    ter XVIII of the [Chicago] Convention shall be applicable in the same
                    manner as provided therein with reference to any disagreement relating to
                    the interpretation or application of the above‑mentioned Convention”.
                    Before the ICAO Council, the respondents contended that prior negotia-
                    tions constitute a precondition to the filing of an application under Arti-
                    cle 84 of the Chicago Convention (incorporated by reference in Article II,
                    Section 2, of the IASTA). They asserted that the ICAO Council lacked
                    jurisdiction because Qatar failed to comply with this precondition. On

                    28

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                    197 	                   icao council (judgment)

                    appeal to the Court, the Appellants argue that the ICAO Council erred in
                    rejecting this objection to its jurisdiction.

                       66. The Appellants recall that the Court, in previous judgments, has
                    found a precondition of negotiation in compromissory clauses of treaties
                    that are similar to Article II, Section 2, of the IASTA. They consider that
                    this jurisprudence can be applied to the negotiation precondition con-
                    tained in Article II, Section 2.
                       67. The Appellants, referring to the Judgment of the Court on prelimi-
                    nary objections in the case concerning Application of the International
                    Convention on the Elimination of All Forms of Racial Discrimination
                    (Georgia v. Russian Federation), submit that for a negotiation precondi-
                    tion to be fulfilled, there must be “at the very least . . . a genuine attempt
                    by one of the disputing parties to engage in discussions with the other
                    disputing party, with a view to resolving the dispute” (Judgment,
                    I.C.J. Reports 2011 (I), p. 132, para. 157). They maintain that a genuine
                    attempt to negotiate must be more than a general call for dialogue. It
                    must relate to the subject‑matter of the dispute, which must concern the
                    substantive obligations contained in the treaty in question. The Appel-
                    lants also assert that, where negotiations have been attempted or have
                    commenced, the precondition of negotiation is met only if negotiations
                    have become futile or deadlocked.
                       68. The Appellants disagree with Qatar’s alternative argument that it
                    had no obligation even to attempt to negotiate, because any such attempt
                    would have been futile (see paragraph 87 below). They argue that a nego-
                    tiation precondition can never be satisfied “without a ‘genuine attempt’ to
                    negotiate first being made, even where the disputing [p]arty considers that
                    any such attempt would be futile”.

                       69. The Appellants submit that Qatar did not make a genuine attempt
                    to initiate negotiations concerning the specific subject‑matter of its claims
                    under the IASTA prior to submitting the disagreement to the ICAO Coun-
                    cil.
                       70. The Appellants recall that the 31 July 2017 Extraordinary Session
                    of the ICAO Council was held pursuant to Qatar’s request under Arti-
                    cle 54 (n) of the Chicago Convention, which provides that “[t]he Council
                    shall . . . [c]onsider any matter relating to the Convention which any con-
                    tracting State refers to it”. With respect to that Extraordinary Session,
                    they contend that “at no point did Qatar indicate that it sought to pursue
                    negotiations in respect of the claims it subsequently sought to bring to the
                    ICAO Council under Article II, Section 2, of the IASTA, and at no point
                    did any such negotiations take place”. They further argue that Qatar’s
                    efforts within ICAO did not satisfy the precondition of negotiation
                    because its communications were addressed to the President of the
                    ICAO Council or to the Secretary-General of ICAO, not to the Appel-
                    lants. They maintain that none of the discussions and meetings that took
                    place within the ICAO Council concerned “issues relating to the interpre-

                    29

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                    198 	                   icao council (judgment)

                    tation and application of the IASTA . . . which, in Qatar’s view, form the
                    subject‑matter of the disagreement between the Parties”. Instead, those
                    discussions were limited to issues relating to safety of aviation and contin-
                    gency routes and did not touch upon the question of the dispute initiated
                    under Article II, Section 2.

                       71. The Appellants also disagree with Qatar’s assertion that its
                    attempts to settle the dispute through the facilitation of third States con-
                    stituted a genuine attempt to negotiate because “none of the requests or
                    statements was addressed to the Appellants” and “all of the requests were
                    in general terms, and failed to refer to the specific substantive obligations
                    under the IASTA”.

                       72. The Appellants further submit that Qatar’s request for consulta-
                    tions within the context of the World Trade Organization (hereinafter
                    the “WTO”) did not constitute a genuine attempt to negotiate because
                    that request concerned alleged violations of WTO obligations by the
                    Appellants and thus was not relevant to alleged violations of obligations
                    contained in the IASTA.

                       73. The Appellants also disagree with Qatar that a telephone conversa-
                    tion between the Emir of Qatar and the Crown Prince of Saudi Arabia on
                    8 September 2017 constituted a genuine attempt to negotiate. They assert
                    that the conversation related to the wider dispute between the Parties, not
                    to alleged violations of obligations under the IASTA. The Appellants
                    also point out that Saudi Arabia was not a party to the proceedings in
                    respect of the IASTA.

                       74. With respect to Qatar’s references to reports of statements made by
                    its officials in press statements and before United Nations bodies, the
                    Appellants submit that none of these statements demonstrated a genuine
                    attempt to negotiate. The statements were not addressed to the Appel-
                    lants and did not deal with the specific subject‑matter of Qatar’s claims
                    under the IASTA.

                                                         *
                       75. In response, Qatar submits that the ICAO Council did not err in
                    rejecting the preliminary objection relating to the precondition of negoti-
                    ation raised by the respondents before the Council.
                       76. Qatar agrees with the Appellants that a negotiation precondition
                    normally requires a potential applicant to make a genuine attempt to
                    negotiate and that a negotiation precondition is not met until negotia-
                    tions have become futile or deadlocked. It also recognizes that negotia-
                    tions must relate to the subject‑matter of the dispute, which must concern
                    the substantive obligations contained in the treaty in question. Qatar
                    emphasizes that no specific format or procedure is required for negotia-

                    30

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                    199 	                   icao council (judgment)

                    tions, which, it argues, can take place within the context of an interna-
                    tional organization.

                       77. With respect to the Parties involved and the instruments invoked,
                    Qatar stated, when responding to the preliminary objections raised before
                    the ICAO Council, that although Saudi Arabia was not a party to the
                    proceedings initiated on the basis of the IASTA, the common measures
                    relating to aviation restrictions were taken by four States acting jointly
                    and applied to matters covered by both the Chicago Convention and the
                    IASTA. It added that “[f]or the purpose of negotiations or attempted
                    negotiations by Qatar, as a practical matter a distinction could not always
                    be drawn between [States] parties to the Chicago Convention on the one
                    hand and those to the IASTA on the other hand”.

                        78. Qatar maintains that it made a genuine attempt to negotiate within
                      the framework of ICAO, beginning on 5 June 2017, the first day of the
                    aviation restrictions. It points to its 8 June 2017 letter to the President of
                      the ICAO Council, which requested urgent consideration under
                    Article 54 (n) of the Chicago Convention, citing the Appellants’ alleged
                    violations of the IASTA. In a letter dated 13 June 2017, Qatar informed
                    the ICAO Secretary-    General that it would submit a “formal applica-
                     tion requesting Council action on a complaint pursuant to Article II,
                     Section 2, of the [IASTA]”.

                      79. Qatar also refers to exchanges held during the ICAO Council
                    Extraordinary Session of 31 July 2017, where it requested that the Appel-
                    lants “lift the unjust air blockade that [they] had . . . imposed upon it”,
                    noting that the measures were “in flagrant violation of all relevant
                    ICAO international Standards, as well as of relevant ICAO instruments
                    to which they were parties”. It requested the ICAO Council to “urge the
                    blockading Member States which were Contracting Parties to the
                    1944 IASTA to comply in good faith with their obligations concerning
                    overflight freedom stipulated in that multilateral treaty”.

                       80. Qatar submits that the Appellants consistently refused to discuss
                    the aviation restrictions within the ICAO framework, as evidenced by
                    their opposition to doing so at the ICAO Council’s 211th Session on
                    23 June 2017. It points out that the Appellants’ 19 July 2017 Working
                    Paper urged that the ICAO Council limit any discussion under Arti-
                    cle 54 (n) to issues related to the of international civil aviation. Qatar
                    also refers to the United Arab Emirates’ statement at the 31 July 2017
                    Extraordinary Session reaffirming this position on behalf of all of the
                    Appellants. In Qatar’s view, the Extraordinary Session addressed only the
                    safety of aviation and contingency routes because of the Appellants’
                    refusal to negotiate regarding the aviation restrictions.

                    31

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                    200 	                   icao council (judgment)

                       81. Qatar also contends that it attempted to negotiate with the Appel-
                    lants outside of ICAO. For example, it sought to “settle the dispute
                    through the intervention of other States”, referring to contacts with the
                    Emir of Kuwait and the President and Secretary of State of the
                    United States of America. According to Qatar, the Appellants did not
                    respond to any of these efforts.
                       82. Qatar further states that it attempted to negotiate regarding the
                    aviation restrictions within the WTO framework by submitting a request
                    on 31 July 2017 for consultations with Saudi Arabia, Bahrain and the
                    United Arab Emirates. It maintains that these three States declined to
                    engage in consultations.
                       83. Additionally, Qatar submits that it made a genuine attempt to
                    negotiate when the Emir of Qatar telephoned the Crown Prince of
                    Saudi Arabia on 8 September 2017 with the facilitation of the President
                    of the United States of America. Qatar states that, immediately after the
                    call, Saudi Arabia suspended any dialogue or communication with Qatari
                    authorities.
                       84. Qatar also asserts that statements made by its officials in
                    United Nations bodies demonstrated a willingness to negotiate with the
                    Appellants with respect to the overall dispute, including the aviation
                    restrictions.
                       85. Qatar maintains that the Appellants made statements expressing a
                    refusal to negotiate. It refers to a press report stating that the Minister of
                    State for Foreign Affairs of the United Arab Emirates said on 7 June 2017
                    that there was “nothing to negotiate” with Qatar. Additionally, Qatar
                    cites press reports stating that the Appellants made a set of 13 demands
                    on 22 June 2017, which were described by the Minister for Foreign Affairs
                    of Saudi Arabia as “non‑negotiable”.
                       86. For the above reasons, Qatar contends that it made a genuine
                    attempt to negotiate and that any further attempt to negotiate would
                    have been futile.
                       87. Although Qatar maintains that it made a genuine attempt to nego-
                    tiate with the Appellants, it asserts, in the alternative, that a State has no
                    obligation to attempt to negotiate prior to the filing of an application if
                    the potential respondent has shown a complete unwillingness to negoti-
                    ate, rendering any attempt to negotiate futile. It relies on the Judgment of
                    the Court in the case concerning United States Diplomatic and Consular
                    Staff in Tehran (United States of America v. Iran) (Judgment,
                    I.C.J. Reports 1980, p. 27, para. 51), in which, according to Qatar, the
                    Court “held that the Iranian Government’s ‘refusal to enter into any dis-
                    cussion of the matter’ despite the United States’ protests was sufficient to
                    discharge the negotiation requirement” applicable in that case.
                       Qatar contends that the Appellants displayed a complete unwillingness
                    to negotiate and that any attempt would have been futile. In its view,
                    there is no need for the Court to decide whether Qatar made a genuine
                    attempt to negotiate with respect to the disagreement arising under Arti-
                    cle II, Section 2, of the IASTA.

                    32

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                    201 	                   icao council (judgment)

                                                        * *
                       88. The Court observes that Article II, Section 2, of the IASTA refers
                    to Chapter XVIII of the Chicago Convention, entitled “Disputes and
                    Default”. This chapter provides a dispute settlement procedure that is
                    available in the event of disagreements concerning the interpretation or
                    application of the Convention and its Annexes. It follows that disagree-
                    ments relating to the interpretation or application of the IASTA are to be
                    resolved through the procedure provided in Chapter XVIII of the Chi-
                    cago Convention. Article II, Section 2, of the IASTA further specifies
                    that the disagreements that are to be settled through this procedure,
                    which involves resort to the ICAO Council, are only those that “cannot
                    be settled by negotiation”. The Court also notes that Article 14 of the
                    ICAO Rules for the Settlement of Differences contemplates that the
                    Council may invite the parties to a dispute to engage in direct negotia-
                    tions.
                       89. The reference in Article II, Section 2, of the IASTA to a disagree-
                    ment that “cannot be settled by negotiation” is similar to the wording of
                    the compromissory clauses of a number of other treaties. The Court has
                    found several such compromissory clauses to contain negotiation precon-
                    ditions that must be satisfied in order to establish the Court’s jurisdiction
                    (see, e.g. Application of the International Convention on the Elimination of
                    All Forms of Racial Discrimination (Georgia v. Russian Federation), Pre‑
                    liminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 128, para. 140,
                    and Questions relating to the Obligation to Prosecute or Extradite (Bel‑
                    gium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 445, para. 56).
                    This jurisprudence is also relevant to the interpretation of Article II, Sec-
                    tion 2, and to its application in determining the jurisdiction of the
                    ICAO Council.

                       90. The Court considers that Article II, Section 2, of the IASTA
                    imposes a precondition of negotiation that must be met in order to estab-
                    lish the ICAO Council’s jurisdiction. Prior to filing an application under
                    Article 84 of the Chicago Convention (incorporated by reference in Arti-
                    cle II, Section 2, of the IASTA), a contracting State must make a genuine
                    attempt to negotiate with the other concerned State or States. If the nego-
                    tiations or attempted negotiations reach a point of futility or deadlock,
                    the disagreement “cannot be settled by negotiation” and the precondition
                    to the jurisdiction of the ICAO Council is satisfied.

                       91. As the Court has recognized, a genuine attempt to negotiate can be
                    made outside of bilateral diplomacy (Application of the International Con‑
                    vention on the Elimination of All Forms of Racial Discrimination (Geor‑
                    gia v. Russian Federation), Preliminary Objections, Judgment, I.C.J.
                    Reports 2011 (I), p. 133, para. 160). Exchanges that take place in an
                    international organization are also recognized as “established modes of

                    33

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                    202 	                    icao council (judgment)

                    international negotiation” (South West Africa (Ethiopia v. South Africa;
                    Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports
                    1962, p. 346).

                       92. In responding to the preliminary objection presented to the
                    ICAO Council, Qatar cited a series of communications in June and
                    July 2017 in which it urged the ICAO Council to take action with respect
                    to the aviation restrictions. These communications referred both to the
                    aviation restrictions and to provisions of the IASTA that, according to
                    Qatar, are implicated by those restrictions. In its 15 June 2017 request to
                    the ICAO Council under Article 54 (n) of the Chicago Convention, for
                    example, Qatar argued that Bahrain, Egypt and the United Arab Emir-
                    ates “[d]eprived the State of Qatar of its right to transit over their territo-
                    ries, as granted under the [IASTA]”.

                       In advance of the Extraordinary Session of the ICAO Council, held on
                    31 July 2017, Qatar submitted a working paper in which it reiterated its
                    objections to the aviation restrictions, making reference to the IASTA. At
                    the Extraordinary Session, Qatar requested the Appellants to “lift the
                    unjust air blockade” imposed by them, noting that the measures were “in
                    flagrant violation of all relevant ICAO international standards, as well as
                    of relevant ICAO instruments to which they were parties”.

                       93. The Court notes that many of the interactions relevant to the ques-
                    tion whether the negotiation precondition has been met with regard to
                    Article II, Section 2, of the IASTA took place in the context of Qatar’s
                    request pursuant to Article 54 (n) of the Chicago Convention. Moreover,
                    some of these interactions involved Saudi Arabia, which is not a party to
                    the present case. The Court recalls, however, that Article II, Section 2, of
                    the IASTA provides that Chapter XVIII of the Chicago Convention shall
                    be applicable to settlement of disagreements under the IASTA in the
                    same manner as it applies to settlement of disagreements under the Chi-
                    cago Convention. In considering whether the precondition of negotiation
                    was fulfilled in this case, the Court finds it appropriate to take into
                    account interactions that took place as a consequence of Qatar’s invoca-
                    tion of Article 54 (n) of the Chicago Convention. Those interactions
                    relate to aviation restrictions which were jointly adopted by four States,
                    including the three Appellants, and which, according to Qatar, are incon-
                    sistent with the Appellants’ obligations under the IASTA. The Court fur-
                    ther observes that the competence of ICAO unquestionably extends to
                    questions of overflight of the territory of contracting States, a matter that
                    is addressed in both the Chicago Convention and the IASTA. The over-
                    tures that Qatar made within the framework of ICAO related directly to
                    the subject‑matter of the disagreement that was later the subject of its
                    application to the ICAO Council under Article II, Section 2, of the IASTA.
                    The Court concludes that Qatar made a genuine attempt within ICAO to

                    34

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                    203 	                   icao council (judgment)

                    settle by negotiation its disagreement with the Appellants regarding the
                    interpretation and application of the IASTA.

                       94. As to the question whether negotiations within ICAO had reached
                    the point of futility or deadlock before Qatar filed its application to the
                    ICAO Council, the Court has previously stated that a requirement that a
                    dispute cannot be settled through negotiations “could not be understood
                    as referring to a theoretical impossibility of reaching a settlement. It
                    rather implies that . . . ‘no reasonable probability exists that further nego-
                    tiations would lead to a settlement’” (Questions relating to the Obligation
                    to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports
                    2012 (II), p. 446, para. 57, quoting South West Africa (Ethiopia v.
                    South Africa; Liberia v. South Africa), Preliminary Objections, Judgment,
                    I.C.J. Reports 1962, p. 345). In past cases, the Court has found that a
                    negotiation precondition was satisfied when the parties’ “basic positions
                    ha[d] not subsequently evolved” after several exchanges of diplomatic
                    correspondence and/or meetings (Questions relating to the Obligation to
                    Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports
                    2012 (II), p. 446, para. 59; see also Immunities and Criminal Proceedings
                    (Equatorial Guinea v. France), Preliminary Objections, Judgment,
                    I.C.J. Reports 2018 (I), p. 317, para. 76). The Court’s inquiry into the
                    sufficiency of negotiations is a question of fact to be considered in each
                    case (Application of the International Convention on the Elimination of All
                    Forms of Racial Discrimination (Georgia v. Russian Federation), Prelimi‑
                    nary Objections, Judgment, I.C.J. Reports 2011 (I), p. 133, para. 160).

                       95. In advance of the ICAO Council’s Extraordinary Session of 31 July
                    2017, which was to be held in response to Qatar’s request, the Appellants
                    submitted a working paper that urged the Council to limit any discussion
                    under Article 54 (n) of the Chicago Convention to issues related to the
                    safety of international aviation. At the Extraordinary Session, Qatar
                    called for consideration of the aviation restrictions and requested the
                    Appellants to lift their “unjust air blockade”. The representative of the
                    United Arab Emirates, speaking also on behalf of Bahrain, Egypt and
                    Saudi Arabia, responded by defending the legality of the aviation restric-
                    tions and urging the Council to limit its deliberations to matters related
                    to the safety of international civil aviation, as distinct from action that
                    the Council might take under Article 84.

                      96. The statements made to the ICAO Council on behalf of the Appel-
                    lants support Qatar’s assertion that the Appellants were unwilling to seek
                    a resolution of the disagreement over the aviation restrictions within the
                    ICAO Council. The minutes of the Extraordinary Session indicate that
                    the President of the Council drew a distinction between measures that the
                    Council might take under Article 54 (n) of the Chicago Convention and
                    measures that the Council might take under Article 84 of that Conven-

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                    tion, in line with the approach urged by the Appellants. During the
                    Extraordinary Session, the Council focused on matters other than the
                    aviation restrictions that would form the subject‑matter of Qatar’s appli-
                    cation to the ICAO Council, with particular attention to contingency
                    arrangements to facilitate air traffic over the high seas.

                       97. The Court considers that, as of the close of the Extraordinary Ses-
                    sion, settlement of the disagreement by negotiation within ICAO was not
                    a realistic possibility. The Court also takes into account developments
                    outside of ICAO. Diplomatic relations between Qatar and the Appellants
                    had been severed on 5 June 2017, concurrently with the imposition of the
                    aviation restrictions. Senior officials of the Appellants stated that they
                    would not negotiate with Qatar, recalling the demands that they had
                    addressed to Qatar. There is no indication that the positions of the Par-
                    ties as to the aviation restrictions changed between the imposition of
                    those restrictions and the filing of Qatar’s application before the
                    ICAO Council on 30 October 2017. Under these circumstances, the Court
                    considers that, at the moment of the filing of Qatar’s application before
                    the ICAO Council, there was no reasonable probability of a negotiated
                    settlement of the disagreement between the Parties regarding the interpre-
                    tation and application of the IASTA, whether before the ICAO Council
                    or in another setting.
                       98. The Court also recalls that Qatar maintains that it faced a situation
                    in which the futility of negotiation was so clear that the negotiation pre-
                    condition of Article II, Section 2, of the IASTA could be met without
                    requiring Qatar to make a genuine attempt at negotiations. Because
                    the Court has found that Qatar did make a genuine attempt to negoti-
                    ate, which failed to settle the dispute, it has no need to examine this argu-
                    ment.
                       99. For the reasons set forth above, the Court considers that the
                    ICAO Council did not err in rejecting the contention advanced by the
                    respondents before the Council that Qatar had failed to fulfil the negotia-
                    tion precondition of Article II, Section 2, of the IASTA prior to filing its
                    application before the ICAO Council.

                    2. Whether the ICAO Council erred by not declaring Qatar’s application
                      inadmissible on the basis of Article 2, subparagraph (g), of the ICAO Rules
                      for the Settlement of Differences
                       100. The Appellants maintain that Qatar did not comply with Arti-
                    cle 2, subparagraph (g), of the ICAO Rules for the Settlement of Differ-
                    ences, which provides that an application and memorial filed pursuant to
                    Article 84 of the Chicago Convention (incorporated by reference in Arti-
                    cle II, Section 2, of the IASTA) must include “[a] statement that negotia-
                    tions to settle the disagreement had taken place between the parties but
                    were not successful”. According to the Appellants, this is a procedural
                    requirement that is not merely one of form. In view of the negotiation

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                    205 	                  icao council (judgment)

                    precondition in Article II, Section 2, of the IASTA, Article 2, subpara-
                    graph (g), must be understood as requiring an appropriately substanti-
                    ated statement “that a genuine attempt to negotiate has in fact been
                    made”.
                      101. The Appellants maintain that the application and memorial that
                    Qatar submitted to the ICAO Council indicated that no negotiations had
                    taken place or were even attempted and thus did not satisfy the require-
                    ment of Article 2, subparagraph (g). As a result, the Appellants contend
                    that the ICAO Council “erred . . . in not declaring Qatar’s ICAO Appli-
                    cation inadmissible”.

                                                        *
                       102. Qatar argues that the Appellants misconstrue the nature of the
                    Article 2, subparagraph (g), requirement, which provides simply that the
                    applicant before the ICAO Council “shall file an application to which
                    shall be attached a memorial containing . . . [a] statement that negotia-
                    tions to settle the disagreement had taken place but were not successful”.
                    Qatar submits that Article 2, subparagraph (g), does not require an
                    applicant to substantiate its statement that negotiations had taken place
                    but were not successful. Qatar maintains that Article 2, subparagraph (g),
                    contains only a requirement of form.
                       103. Qatar considers that it fulfilled the Article 2, subparagraph (g),
                    requirement because the memorial that it submitted to the ICAO Council
                    stated that the respondents before the Council “did not permit any oppor-
                    tunity to negotiate the aviation aspects of their hostile actions”.

                                                      * *
                       104. Article 2 of the ICAO Rules for the Settlement of Differences sets
                    out the basic information that is to be contained in a memorial attached
                    to an application filed pursuant to Article 84 of the Chicago Convention
                    (incorporated by reference in Article II, Section 2, of the IASTA), in
                    order to facilitate the ICAO Council’s consideration of such applications.
                    By requiring a statement regarding negotiations, subparagraph (g) of
                    Article 2 takes cognizance of the negotiation precondition contained in
                    Article II, Section 2, of the IASTA.
                       105. Qatar’s application and memorial before the ICAO Council con-
                    tain a section entitled “A statement of attempted negotiations”, in which
                    Qatar states that the respondents before the ICAO Council “did not per-
                    mit any opportunity to negotiate” regarding the aviation restrictions. The
                    Secretary-General confirmed that she had verified that Qatar’s applica-
                    tion “compl[ied] in form with the requirements of Article 2 of the . . .
                    Rules [for the Settlement of Differences]” when forwarding the document
                    to the respondents before the ICAO Council. The question of substance,

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                    206 	                   icao council (judgment)

                    that is to say whether Qatar had met the negotiation precondition, was
                    addressed by the ICAO Council in the proceedings on preliminary objec-
                    tions, pursuant to Article 5 of the ICAO Rules for the Settlement of Dif-
                    ferences.

                      106. The Court sees no reason to conclude that the ICAO Council
                    erred by not declaring Qatar’s application before the ICAO Council to be
                    inadmissible by reason of a failure to comply with Article 2, subpara-
                    graph (g), of the ICAO Rules for the Settlement of Differences.

                                                         *
                      107. Having found first, that the ICAO Council did not err in rejecting
                    the contention that the Council lacked jurisdiction because Qatar had not
                    met the negotiation precondition contained in Article II, Section 2, of
                    the IASTA and, secondly, that the ICAO Council did not err in rejecting
                    the assertion that Qatar’s application before the ICAO Council was inad-
                    missible for failing to comply with Article 2, subparagraph (g), of the
                    ICAO Rules for the Settlement of Differences, the Court concludes that
                    the ICAO Council did not err when it rejected the second preliminary
                    objection raised by the respondents before the Council.

                      108. For the reasons set forth above, the Court cannot uphold the
                    third ground of appeal.
                    C. The First Ground of Appeal: Alleged Manifest Lack of Due Process in
                                    the Procedure before the ICAO Council
                       109. The Appellants argue that irregularities in the procedures that the
                    ICAO Council followed in reaching the Decision prejudiced in a funda-
                    mental way the requirements of a just procedure. They contend that those
                    procedures were manifestly flawed and that this constituted a grave viola-
                    tion of fundamental principles of due process and of the ICAO Council’s
                    own rules. Hence, the Appellants call upon the Court to exercise its
                    supervisory authority and to hold the Decision of the ICAO Council to
                    be null and void ab initio.
                       110. The Appellants allege a series of procedural violations, which are
                    set out below. They maintain that the ICAO Council carries out a “judi-
                    cial function” when it is deciding a disagreement pursuant to Article II,
                    Section 2, of the IASTA.
                       111. The Appellants complain that the Decision does not state the rea-
                    sons on which it was based. They consider it “[a] fundamental require-
                    ment of due process . . . that judicial bodies give the necessary reasons in
                    support of their decisions”.
                       112. In addition, the Appellants criticize the absence of deliberations
                    prior to the Decision. In their view, the holding of deliberations after
                    hearing the parties “is essential for judicial bodies to function in a colle-
                    gial manner”.

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                    207 	                    icao council (judgment)

                        113. The Appellants criticize the Council’s decision to vote on their
                     preliminary objections by secret ballot, despite their request for a roll call
                     vote with open voting.
                        114. The Appellants argue that the ICAO Council violated the princi-
                     ple of equality of the parties and the right to be heard because, as respon-
                     dents before the ICAO Council, they were awarded “[p]atently insufficient
                     time . . . to present their case” and were collectively given the same length
                     of time to do so as was given to Qatar individually.
                        115. The Appellants maintain that the ICAO Council incorrectly
                     required 19 votes (out of 36 ICAO Council Members) to uphold their
                     preliminary objections. They submit that only a simple majority of
                     17 votes (out of 33 ICAO Council Members entitled to participate in the
                    vote) was required under Article 52 of the Chicago Convention, read
                     together with Articles 53 and 84 of the Chicago Convention and
                    Article 15, paragraph 5, of the ICAO Rules for the Settlement of Differ-
                     ences.
                        116. Finally, the Appellants note that while they presented two pre-
                     liminary objections to the Council, the Decision refers to a single “pre-
                     liminary objection”. They assert that the decision of the President of the
                     Council “to put to a vote a question relating to ‘a preliminary objection’
                     (singular) was neither introduced nor seconded by members of the Coun-
                     cil”, in violation of Rules 40 and 45 of the Rules of Procedure for the
                     Council.

                                                          *
                       117. According to Qatar, the Court’s supervisory authority over deci-
                    sions by the ICAO Council does not extend to procedural questions.
                    Recalling paragraph 45 of the Judgment of the Court in the case concern-
                    ing the Appeal Relating to the Jurisdiction of the ICAO Council (India v.
                    Pakistan) (I.C.J. Reports 1972, pp. 69‑70), Qatar asserts that the Court
                    need not rule on the Appellants’ procedural complaints because the Deci-
                    sion of the ICAO Council was “objectively correct”. It further maintains
                    that there were no irregularities in the way the Council conducted itself
                    and that, in any event, none of the procedures about which the Appel-
                    lants complain prejudiced in any fundamental way the requirements of a
                    just procedure.
                       118. With respect to the specific irregularities alleged by the Appel-
                    lants, Qatar considers the absence of open deliberations on the issues in
                    dispute and the lack of reasoning in the Decision to be “natural conse-
                    quences of the Council’s decision to vote by secret ballot”. Qatar adds
                    that voting by secret ballot is expressly permitted under Rule 50 of the
                    Rules of Procedure for the Council. As to the absence of reasons in the
                    Decision, Qatar also emphasizes that “the fact that the . . . Council may
                    perform a judicial function does not turn it into a judicial organ stricto
                    sensu, much less into [the Court]”.

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                    208 	                   icao council (judgment)

                      119. Moreover, Qatar argues that “open deliberations are . . . not
                    essential for the [ICAO] Council to function in a collegial manner”
                    and that the ICAO Council’s approach was consistent with its recent
                    practice.
                      120. Qatar emphasizes that the Council’s procedures conformed with
                    the principle of the equality of the parties and the right to be heard. The
                    respondents before the ICAO Council “acted jointly in the proceedings
                    before the Council” and “the legal issues in dispute are identical as to all”
                    of them. Qatar contends that the respondents before the ICAO Council
                    had ample opportunity to present their case before the Council.

                       121. Based on Articles 52, 53 and 66 (b) of the Chicago Convention
                    and previous practice of the ICAO Council, Qatar argues that the
                    ICAO Council required the correct voting majority to decide on the pre-
                    liminary objections. It further argues that even if the ICAO Council had
                    required the majority put forward by the Appellants in this appeal, this
                    would not have made a practical difference in this case because the pre-
                    liminary objection would have failed under either voting majority.

                       122. Finally, Qatar contests the Appellants’ claim that the ICAO Coun-
                    cil took its Decision on the incorrect premise that they, as respondents
                    before the Council, had raised a single preliminary objection to its juris-
                    diction. Qatar maintains that the minutes of the session at which the
                    ICAO Council voted not to accept the preliminary objections reveal that
                    the ICAO Council was aware that the respondents before the Council
                    had provided “two justifications” for their challenge to the Council’s
                    jurisdiction, since the original motion made by one ICAO Council repre-
                    sentative and seconded by another to vote on two preliminary objections
                    was never changed or modified.

                                                        *   *
                       123. The Court recalls that, in its Judgment in the case concerning the
                    Appeal Relating to the Jurisdiction of the ICAO Council (India v. Paki‑
                    stan) (I.C.J. Reports 1972, pp. 69‑70, para. 45), it concluded that, in the
                    proceedings at issue, the ICAO Council had reached the correct decision
                    as to its jurisdiction, which is an objective question of law. The Court also
                    observed that the procedural irregularities alleged by the Appellant did
                    not prejudice in any fundamental way the requirements of a just proce-
                    dure. The Court had no need to examine whether a decision of the
                    ICAO Council that was legally correct should nonetheless be annulled
                    because of procedural irregularities.
                       124. In the present case, the Court has rejected the Appellants’ second
                    and third grounds of appeal against the Decision of the ICAO Council.
                    The Court considers that the issues posed by the preliminary objections
                    that were presented to the Council in this case are objective questions of
                    law. The Court also considers that the procedures followed by the Coun-

                    40

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                    209 	                      icao council (judgment)

                    cil did not prejudice in any fundamental way the requirements of a just
                    procedure.
                       125. For the reasons set forth above, the first ground of appeal cannot
                    be upheld.

                                                         * *

                       126. Recalling the Court’s previous observation that the Chicago Con-
                    vention and the IASTA give the Court “a certain measure of supervision”
                    over decisions of the ICAO Council (Appeal Relating to the Jurisdiction of
                    the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972,
                    p. 60, para. 26), the Court emphasizes that it will be best positioned to act
                    on any future appeal if the decision of the ICAO Council contains the
                    reasons of law and fact that led to the ICAO Council’s conclusions.

                                                             *
                                                         *       *

                         127. For these reasons,

                         The Court,
                         (1) Unanimously,
                      Rejects the appeal brought by the Kingdom of Bahrain, the Arab
                    Republic of Egypt and the United Arab Emirates on 4 July 2018 from the
                    Decision of the Council of the International Civil Aviation Organization,
                    dated 29 June 2018;
                         (2) By fifteen votes to one,
                       Holds that the Council of the International Civil Aviation Organiza-
                    tion has jurisdiction to entertain the application submitted to it by the
                    Government of the State of Qatar on 30 October 2017 and that the said
                    application is admissible.
                         in favour: President Yusuf; Vice‑President Xue; Judges Tomka, Abraham,
                            Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson,
                            Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Daudet;

                         against: Judge ad hoc Berman.

                      Done in English and in French, the English text being authoritative, at
                    the Peace Palace, The Hague, this fourteenth day of July two thousand
                    and twenty, in five copies, one of which will be placed in the archives of
                    the Court and the others transmitted to the Governments of the King-

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                    210 	                icao council (judgment)

                    dom of Bahrain, the Arab Republic of Egypt and the United Arab Emir-
                    ates, and to the Government of the State of Qatar, respectively.

                                                    (Signed) Abdulqawi Ahmed Yusuf,
                                                                    President.
                                                         (Signed) Philippe Gautier,
                                                                      Registrar.

                      Judge Cançado Trindade appends a separate opinion to the Judg-
                    ment of the Court; Judge Gevorgian appends a declaration to the Judg-
                    ment of the Court; Judge ad hoc Berman appends a separate opinion to
                    the Judgment of the Court.

                                                                    (Initialled) A.A.Y.
                                                                     (Initialled) Ph.G.

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