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International Court of Justice Appeal Relating To INTERNATIONAL COURT OF JUSTICE 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) MEMORIAL OF THE KINGDOM OF BAHRAIN, THE ARAB REPUBLIC OF EGYPT, THE KINGDOM OF SAUDI ARABIA, AND THE UNITED ARAB EMIRATES Volume III of VII Annexes 22 – 24 27 DECEMBER 2018 LIST OF ANNEXES VOLUME III ICAO pleadings Annex 22 Request for the Intervention of the ICAO Council in the 543 Matter of the Actions of the Arab Republic of Egypt, the Kingdom of Saudi Arabia, the United Arab Emirates and the Kingdom of Bahrain to close their Airspace to aircraft registered in the State of Qatar, attaching Application (1) of the State of Qatar, Complaint Arising under the International Air Services Transit Agreement done in Chicago on December 7, 1944, and Application (2) of the State of Qatar, Disagreement Arising under the Convention on International Civil Aviation done in Chicago on December 7, 1944, 8 June 2017 Annex 23 Application (A) and Memorial of the State of Qatar 587 Relating to the Disagreement on the Interpretation and Application of the Convention on International Civil Aviation (Chicago, 1944), 30 October 2017 Annex 24 Preliminary Objections of the Arab Republic of Egypt, 611 the Kingdom of Bahrain, the Kingdom of Saudi Arabia and the United Arab Emirates in Re Application (A) of the State of Qatar Relating to the Disagreement Arising under the Convention on International Civil Aviation done at Chicago on 7 December 1944, 19 March 2018 i Annex 22 Request for the Intervention of the ICAO Council in the Matter of the Actions of the Arab Republic of Egypt, the Kingdom of Saudi Arabia, the United Arab Emirates and the Kingdom of Bahrain to close their Airspace to aircraft registered in the State of Qatar, attaching Application (1) of the State of Qatar, Complaint Arising under the International Air Services Transit Agreement done in Chicago on December 7, 1944, and Application (2) of the State of Qatar, Disagreement Arising under the Convention on International Civil Aviation done in Chicago on December 7, 1944, 8 June 2017 543 Annex 22 544 Annex 22 545 Annex 22 546 Annex 22 547 Annex 22 548 Annex 22 549 Annex 22 550 Annex 22 551 Annex 22 552 Annex 22 553 Annex 22 554 Annex 22 555 Annex 22 556 Annex 22 557 Annex 22 558 Annex 22 559 Annex 22 560 Annex 22 561 Annex 22 562 Annex 22 563 Annex 22 564 Annex 22 565 Annex 22 566 Annex 22 567 Annex 22 568 Annex 22 569 Annex 22 570 Annex 22 571 Annex 22 572 Annex 22 573 Annex 22 574 Annex 22 575 Annex 22 576 Annex 22 577 Annex 22 578 Annex 22 579 Annex 22 580 Annex 22 581 Annex 22 582 Annex 22 583 Annex 22 584 Annex 22 585 Annex 22 586 Annex 23 Application (A) and Memorial of the State of Qatar Relating to the Disagreement on the Interpretation and Application of the Convention on International Civil Aviation (Chicago, 1944), 30 October 2017 587 Annex 23 588 Annex 23 589 Annex 23 590 Annex 23 591 Annex 23 592 Annex 23 593 Annex 23 594 Annex 23 595 Annex 23 596 Annex 23 597 Annex 23 598 Annex 23 599 Annex 23 600 Annex 23 601 Annex 23 602 Annex 23 603 Annex 23 604 Annex 23 605 Annex 23 606 Annex 23 607 Annex 23 608 Annex 23 609 610 Annex 24 Preliminary Objections of the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia and the United Arab Emirates in Re Application (A) of the State of Qatar Relating to the Disagreement Arising under the Convention on International Civil Aviation done at Chicago on 7 December 1944, 19 March 2018 611 Annex 24 Before the Council of the International Civil Aviation Organization (ICAO) Under the ICAO Rules for the Settlement of Differences (Doc. 7782/2) PRELIMINARY OBJECTIONS OF THE ARAB REPUBLIC OF EGYPT, THE KINGDOM OF BAHRAIN, THE KINGDOM OF SAUDI ARABIA AND THE UNITED ARAB EMIRATES In Re Application (A) of the State of Qatar Relating to the Disagreement Arising under the Convention on International Civil Aviation done at Chicago on 7 December 1944 H.E. Sherif Fathi Agent for the Arab Republic of Egypt H.E. Kamal Bin Ahmed Mohamed Agent for the Kingdom of Bahrain H.E. Dr. Nabeel bin Mohamed Al-Amudi Agent for the Kingdom of Saudi Arabia H.E. Sultan Bin Saeed Al Mansoori Agent for the United Arab Emirates 19 March 2018 612 Annex 24 TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................................ iii I. INTRODUCTION ...............................................................................................................1 II. PROCEDURAL BACKGROUND ......................................................................................4 III. GENERAL PRINCIPLES REGARDING JURISDICTION ...............................................4 IV. GENERAL PRINCIPLES REGARDING ADMISSIBILITY ...........................................10 V. THE COUNCIL DOES NOT HAVE JURISDICTION TO DECIDE THE LEGALITY OF THE MEASURES ADOPTED BY THE RESPONDENTS ...................12 A. Countermeasures are Permissible under International Law...................................14 B. The Actions of the Respondents Underlying Qatar’s Claims are a Response to Qatar’s Prior Internationally Wrongful Acts .....................................17 C. The Council Does Not Have Jurisdiction to Resolve Qatar’s Claims, As It Would Require the Council to Adjudicate Whether Qatar Has Breached Its Obligations under International Law ................................................26 D. Conclusion .............................................................................................................28 VI. QATAR FAILED TO SATISFY THE PROCEDURAL REQUIREMENTS UNDER THE CHICAGO CONVENTION AND THE RULES .......................................29 A. Prior Unsuccessful Negotiations Constitute a Precondition to the Council’s Jurisdiction.............................................................................................30 B. The Precondition of Negotiations Has Not Been Fulfilled by Qatar .....................36 VII. SUBMISSIONS FOR RELIEF ..........................................................................................41 LIST OF EXHIBITS ................................................................................................................... A-1 TABLE OF AUTHORITIES ....................................................................................................... A-3 ii 613 Annex 24 EXECUTIVE SUMMARY In 2013, following years of diplomatic engagement, several States of the Gulf Cooperation Council, including Qatar, concluded an Agreement by which they committed themselves to cease supporting, financing or harbouring persons or groups presenting a danger to each other’s national security, in particular terrorist groups; two supplemental agreements to the same end were concluded in 2014 (the 2013 and 2014 agreements are jointly called “the Riyadh Agreements”). When subsequently Qatar failed to abide by the Riyadh Agreements and its other relevant international obligations, and after repeated calls upon Qatar to honour its commitments were of no avail, the Respondents took measures on 5 June 2017 to induce Qatar to comply with its international obligations. The actions taken by the Respondents—including, in particular, the airspace closures— constitute a package of measures adopted in reaction to Qatar’s multiple, grave, and persistent breaches of its international obligations relating to matters essential to the security of the Respondents, and constitute lawful countermeasures authorised by general international law. Under international law, breaches of international obligations entitle states to adopt countermeasures, provided they are proportionate and reversible. Resolution of the claims submitted in this case by Qatar would necessarily require the Council to determine issues forming part of the wider dispute between the Parties. In particular, the Council would have to determine, amongst other things, whether Qatar had breached its relevant counter-terrorism obligations under international law, and its binding international obligations not to interfere in the internal affairs of its neighbours. The narrow dispute submitted by Qatar to the Council relating to airspace closures cannot be separated from these broader issues and the legality of the airspace closures cannot be judged in isolation. Under Article 84 of the Chicago Convention, the jurisdiction of the Council is limited to “any disagreement between two or more contracting States relating to the interpretation or application” of the Chicago Convention and its Annexes. Accordingly, the Council does not have jurisdiction to adjudicate issues as to whether Qatar has breached its other obligations under international law. The Council’s limited jurisdiction is consistent with ICAO’s role as a specialised agency of the United Nations. While the Council has considerable expertise in the technical aspects of aviation enshrined in the Chicago Convention, it is not well-suited or iii 614 Annex 24 well-equipped to handle disputes of a wider nature such as those described above, including issues regarding terrorism and other matters related thereto. In short, as the Council recognised at its Extraordinary Session on 31 July 2017, there are wider, overarching issues underlying the disagreement that need to be addressed in an appropriate, non-technical forum. In light of the fact that the Council does not have jurisdiction to resolve the wider legal issues—issues that it would necessarily have to determine to
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