AIR LAW

DOI: https://doi.org/10.24833/0869-0049-2022-3-33-48
Research article
Received 4 February 2022
Approved 20 May 2022
Dmitry V. IVANOV
Moscow State Institute of International Relations (University) MFA Russia
76, pr. Vernadskogo, Moscow, Russian Federation, 119454
[email protected]
ORCID: 0000-0003-1231-6072

Vladislav G. DONAKANIAN
Moscow State Institute of International Relations (University) MFA Russia
76, pr. Vernadskogo, Moscow, Russian Federation, 119454
[email protected]
ORCID ID: 0000-0002-1167-8496

THE ICAO COUNCIL AS

A DISPUTE SETTLEMENT BODY:
THEORETICAL AND PRACTICAL ISSUES
INTRODUCTION. Achieving the goals of interna­ United Nations (hereinafter - ICJ). The judgments is­
tional legal regulation of a particular area of inter­ sued by the ICJ have not, in our view, resolved the
state relations depends mainly on the existence of an existing legal problems but instead have contributed
effective dispute settlement mechanism. In thefield of to further ambiguity. Furthermore, this topic has
international air law, such powers are attributed to become especially relevant in light of the fact that in
the Council of the International Civil Aviation Or­ March 2022 the Netherlands and Austria initiated
ganization (hereinafter - ICAO), established under a dispute settlement procedure in the Council under
the Convention on International Civil Aviation of Article 84 of the Chicago Convention against Russia
1944 (hereinafter - the Chicago Convention). for the downing of Malaysian civil aircraft in 2014.
The Council's activities in this area cannot be called In these circumstances, the Council's de facto role in
fruitful. Since the establishment of ICAO in 1947, the resolving international civil aviation disputes needs
Council has not issued a single decision on disputes to be clarified
that have been brought before it. States have proved MATERIALS AND METHODS. This paper exam­
to be reluctant to use the dispute settlement mecha­ ines the provisions of the Chicago international legal
nism established under the Chicago system. This is regime governing dispute settlement in the Council.
mainly due to the imperfection of the relevant pro­ The authors also analyse the established State prac­
visions of the Chicago Convention, which for many tice in the application of Chapter XVIII of the Chi­
years have been the object of criticism in interna­ cago Convention. Particular attention is given to
tional legal doctrine. Moreover, the provisions of the legal doctrine, where several international legal con­
Chicago Convention do not answer the question re­ cepts emerge to resolve existing legal problems. The
garding the legal nature of the Council as a dispute methodological basis consists of general scientific and
settlement body and the limits of its competence. The special research methods, including analysis, synthe­
issue of the Council's competence has been consid­ sis, systematisation, as well as formal-legal, formal-
ered twice by the International Court of Justice of the logical and critical-legal methods.

Moscow Journal of International Law • 3 • 2022

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МЕЖДУНАРОДНОЕ ВОЗДУШНОЕ ПРАВО Д.В. Иванов, В.Г. Донаканян

RESEARCH RESULTS. The Council as a dis­ that states, consistently seeking legal certainty, would
pute settlement body has a dual legal nature. This initiate proceedings in the Council under the exist­
is reflected in the fact that in procedural terms the ing international legal framework. As a result of the
Сouncil is similar to international judicial bodies in analysis of international legal concepts that propose
many aspects, but a number of features concerning the modernisation of the Chicago Convention dis­
the composition of the Council and the opportunity pute settlement mechanism, the authors conclude
to appeal the decision issued prevent it from quali­ that either the establishment of a permanent arbitral
fying as a judicial body. This calls into question the institution within the structure of ICAO or the modi­
power of the Council to issue legally binding deci­ fication of the text of Chapter XVIII of the Chicago
sions and the existence of its jurisdiction per se. State Convention so that the ICAO Council would act only
and Council practice also confirms that the Council as a mediator would be the preferable options. The
under Chapter XVIII of the Chicago Convention authors share the position of lawyers who point to
acts as a mediator, which contrasts with the recent the need to negotiate new universal international law
decision of the ICJ on the Qatar Air Blockade case, norms in the field of air law.
under which the Council has jurisdiction. Moreo­
ver, the Chicago Convention provides sanctions for KEYWORDS: ICAO, Chicago Convention, dispute
non-compliance with Council decisions, which does settlement in international air law, International
not allow the Council to be considered as a media­ Court of Justice, ICAO Council competence, Qatar
tor. Equally controversial was the ICJfinding that the Air Blockade, progressive development of interna­
Council, in settling disputes arisingfrom the Chicago tional air law
Convention (the Transit Agreement or other trea­
ties), could examine issues outside their scope. FOR CITATION: Ivanov D.V., Donakanyan V.G.
DISCUSSION AND CONCLUSIONS. The unclear The ICAO Council as a Dispute Settlement Body:
legal status of the Council as a dispute settlement Theoretical and Practical Issues. - Moscow Journal
body, which was promoted by the controversial de­ of International Law. 2022. No. 3. P. 33-48. DOI:
cision of the ICJ on the Qatar Air Blockade case, https://doi.org/10.24833/0869-0049-2022-3-33-48
makes the mechanism under Chapter XVIII of the
Chicago Convention highly ineffective. It is doubtful The authors declare the absence of conflict of interest.

МЕЖДУНАРОДНОЕ ВОЗДУШНОЕ ПРАВО

DOI: https://doi.org/10.24833/0869-0049-2022-3-33-48
Исследовательская статья
Поступила в редакцию: 04.02.2022
Принята к публикации: 20.05.2022
Дмитрий Владимирович ИВАНОВ
Московский государственный институт международных отношений (Университет) МИД России
Проспект Вернадского, д. 76, Москва, 119454, Российская Федерация
[email protected]
ORCID: 0000-0003-1231-6072

Владислав Гарегинович ДОНАКАНЯН

Московский государственный институт международных отношений (Университет) МИД России
Проспект Вернадского, д. 76, Москва, 119454, Российская Федерация
[email protected]
ORCID: 0000-0002-1167-8496

34
 Dmitry V. Ivanov, Vladislav G. Donakanian AIR LAW

СОВЕТ ИКАО КАК ОРГАН

ПО РАЗРЕШЕНИЮ СПОРОВ:
ТЕОРЕТИЧЕСКИЕ И ПРАКТИЧЕСКИЕ
ПРОБЛЕМЫ
ВВЕДЕНИЕ. Достижение целей международно­ органов ИКАО и решения Международного суда
правового регулирования определенной сферы ООН, которые в своей совокупности формируют
межгосударственных отношений во многом зави­ существующий международно-правовой режим
сит от наличия эффективного механизма урегу­ разрешения споров в Совете. Авторы также рас­
лирования споров. В отрасли международного сматривают сложившуюся практику государств
воздушного права подобные полномочия отнесе­ по применяю главы XVIII Чикагской конвенции.
ны к компетенции Совета Международной орга­ Отдельное внимание уделено доктринальным ис­
низации гражданской авиации (далее - ИКАО), точникам, в рамках которых возникают между­
учреждённой в соответствии с Конвенцией о народно-правовые концепции, призванные разре­
международной гражданской авиации 1944 г. (да­ шить существующие правовые проблемы.
лее — Чикагская конвенция). Методологическую основу составляют общенауч­
Деятельность Совета в этой области нельзя на­ ные и специальные методы исследования, которые
звать плодотворной. С момента учреждения включают в себя анализ, синтез, систематиза­
ИКАО в 1947 г. Совет не вынес ни одного решения цию, а также формально-юридический, формаль­
по спорам, переданным на его рассмотрение. Госу­ но-логический и критико-правовой методы.
дарства, как показывает практика, неохотно РЕЗУЛЬТАТЫ ИССЛЕДОВАНИЯ. Совет как
прибегают к установленному в рамках Чикагской орган по разрешению споров имеет двойствен­
системы механизму разрешения споров. Во мно­ ную правовую природу. Выражается это в том,
гом это объясняется несовершенством соответ­ что с точки зрения процессуальных аспектов
ствующих положений Чикагской конвенции, ко­ Совет во многом схож с международными судеб­
торые уже на протяжении многих лет являются ными органами, однако ряд особенностей, касаю­
объектом критики в международно-правовой щихся состава Совета и возможности обжало­
доктрине. Более того, положения Чикагской кон­ вания вынесенного решения, не позволяют его
венции не дают однозначного ответа на вопрос о квалифицировать в таком качестве. В этой
правовой природе Совета ИКАО как органа по связи возникает вопрос о возможности вынесе­
разрешению споров и пределах его компетенции. ния Советом юридически обязывающих решений
Вопрос компетенции Совета дважды рассматри­ и наличии у него юрисдикции per se. Практика
вался в Международном суде ООН. Вынесенные им государств и Совета также подтверждает, что
решения, на наш взгляд, не разрешили существую­ Совет в рамках главы XVIII Чикагской конвен­
щие правовые проблемы, а, напротив, внесли еще ции фактически выполняет функции посредни­
большую неясность. Более того, особую актуаль­ ка, что контрастирует с недавним решением
ность данная тема приобрела в свете того, что в Международного суда ООН по делу о воздушной
марте 2022 г. Нидерланды и Австрия иницииро­ блокаде Катара, из которого следует, что Со­
вали в Совете процедуру разрешения споров по вет обладает юрисдикцией. Более того, Чикаг­
ст. 84 Чикагской конвенции в отношении России в ская конвенция предусматривает наложение
связи с крушением малазийского гражданского воз­ санкций за невыполнение решений Совета, что
душного судна в 2014 г. В данных обстоятель­ не позволяет рассматривать Совет как посред­
ствах возникает необходимость уточнения сло­ ника. Не менее спорным является и вывод Меж­
жившегося defacto порядка деятельности Совета дународного суда ООН о том, что Совет, при
ИКАО в сфере разрешения международных споров разрешении споров, вытекающих из Чикагской
в области гражданской авиации. конвенции (Соглашения о транзите или иных
МАТЕРИАЛЫ И МЕТОДЫ. В данной работе ис­ договоров), может рассматривать вопросы, на­
следуются положения Чикагской конвенции, акты ходящиеся за пределами их сферы регулирования.

Moscow Journal of International Law • 3 • 2022

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МЕЖДУНАРОДНОЕ ВОЗДУШНОЕ ПРАВО Д.В. Иванов, В.Г. Донаканян

ОБСУЖДЕНИЯ И ВЫВОДЫ. Неясный право­ разрешению споров. Авторы разделяют позицию

вой статус Совета как органа по разрешению юристов-международников, которые отмеча­
споров, установлению которого способствовало ют необходимость согласования новых универ­
неоднозначное решение Международного суда сальных международно-правовых норм в области
ООН по делу о воздушной блокаде Катара, дела­ международного права.
ет установленный в главе XVIII Чикагской кон­
венции механизм крайне неэффективным. Мало­ КЛЮЧЕВЫЕ СЛОВА: ИКАО, Чикагская кон­
вероятно, что государства, последовательно венция, разрешение споров в международном воз­
стремясь к правовой определенности, будут душном праве, Международный суд ООН, компе­
инициировать разбирательства в Совете при тенция Совета ИКАО, воздушная блокада
существующем международно-правовом регули­ Катара, прогрессивное развитие международно­
ровании. В результате анализа международно­ го воздушного права
правовых концепций, в рамках которых предла­
гается модернизировать механизм разрешения ДЛЯ ЦИТИРОВАНИЯ: Иванов Д.В., Донака­
споров по Чикагской конвенции, авторы пришли нян В.Г. А.И. 2022. Совет ИКАО как орган по
к выводу, что наиболее предпочтительным ва­ разрешению споров: теоретические и практиче­
риантом будет либо учреждение постоянно дей­ ские проблемы. - Московский журнал междуна­
ствующего арбитражного учреждения в рамках родного права. № 3. С. 33-48. DOI: https://doi.
структуры ИКАО, либо изменение текста гла­ org/10.24833/0869-0049-2022-3-33-48
вы XVIII Чикагской конвенции таким образом,
чтобы Совет ИКАО выполнял исключительно Авторы заявляют об отсутствии конфликта
посреднические функции в качестве органа по интересов.

1. ICAO Council as a dispute settlement body:on Article 87, committed themselves not to make their
general characteristics airspace available to airlines that do not comply with
the final decisions of the Council. Moreover, if States
1.1. Dispute Resolution under the Chicago System do not fulfil this obligation, then the Assembly has the
rovisions concerning the dispute settlement right to suspend the voting rights of such a State in the

P procedure are contained in Chapter XVIII of Council and the Assembly.

the Chicago Convention. As laid down in Ar­ The above mechanism is used not only to resolve
ticle 84, "if any disagreement between two or more disputes arising from the provisions of the Chica­
Contracting States relating to the interpretation or ap­ go Convention. The provisions of the International
plication of this Convention and its Annexes cannot Air Services Transit Agreement of 1944 and the In­
be settled by negotiations, it shall, on the application ternational Air Transport Agreement of 1944 at­
of any State concerned in the disagreement, be decided tribute to the competence of the ICAO Council the
by the Council". A State which is the disputing party power to settle disputes arising from the application
cannot take part in its settlement in the Council. It is and interpretation of these treaties. Subsequently,
also possible to appeal a decision of the Council to the some international treaties also include a reference
ICJ or an ad hoc arbitral tribunal. If one party does not to Chapter XVIII of the Chicago Convention as the
recognize the competence of the ICJ or the parties are rules establishing the procedure for dispute settle­
unable to agree on an arbitral tribunal, the dispute shall ment under these treaties. As a result, the ICAO
be settled by an arbitral tribunal constituted pursuant Council transformed itself into a body tasked with
to Article 85 of the Chicago Convention. resolving various disputes in the field of civil avia­
Chapter XVIII also provides rules to ensure the im­ tion, not just those arising under the Chicago Con­
plementation of Council decisions. So, the States, based1 vention1. The expanded powers of the ICAO Coun­

1 Tovmasyan M.D. Aktual'nye problemy peresmotra konventsii o mezhdunarodnoi grazhdanskoi aviatsii: Chikagskoi kon-
ventsii 1944 goda. Diss...kand. yurid. Nauk [Relevant issues for the revision of the 1944 Convention on International Civil Avia­
tion. Thesis for the degree of Сandidate of Juridical Sciences]. Moscow. 2001. P. 112.

36
 Dmitry V. Ivanov, Vladislav G. Donakanian AIR LAW

cil were confirmed at the first session of the ICAO far-fetched. Article 84 unambiguously establishes a
Assembly in 19472. dispositive norm allowing States to appeal the Coun­
Legal doctrine identifies several technical and legal cil's decision either to the ICJ or to an ad hoc arbitral
drawbacks in Chapter XVIII of the Chicago Conven­ tribunal. In the light of this provision, it would not be
tion [Balakhovskii 1986:162-163]. Firstly, Article 84 entirely correct, in our view, to assert any hierarchy
enshrines that the dispute settlement procedure of the between these avenues of appeal based solely on the
Council may be initiated at the request of "any State wording of Article 85.
concerned in the disagreement" and that an appeal Moreover, given that all States Parties to the Chica­
may be lodged by "any contracting State". Based on go Convention are members of the UN and, therefore,
this, some lawyers point to a conflict: a dispute can be ipso facto parties to the ICJ Statute, it is implausible
referred to the Council by any State, but only a State that specific problems with the practical application
party to the Chicago Convention has the right to ap­ of the provisions discussed above will arise [Vaugeois
peal the final decision of the Council. Secondly, Article 2016:2]. The wording of Article 84 is a clear example of
84 provides for an option to appeal the Council's deci­ how irrelevant the norms of the Chicago Convention
sion to the ICJ or an ad hoc arbitral tribunal. Still, it are to the regulation of contemporary international re­
is argued that the wording of Article 85 implies3 that lations in the use of airspace.
recourse to an arbitral tribunal is only possible if one of
the parties to the dispute does not recognize the com­ 1.2. ICAO Rules for the Settlement of Differences
petence of the ICJ. In 1957, the ICAO Council approved the Rules for
In our opinion, the above critical assessment of the the Settlement of Differences (hereinafter - Rules)4.
provisions of the Chicago Convention is not justified. Some ICAO documents explicitly state that they were
According to Article 31 of the 1969 Vienna Convention developed in strict accordance with the Rules of Court
on the Law of Treaties, the terms of the treaty should be of the International Court of Justice (hereinafter - ICJ
interpreted in their context. Consequently, the phrase Rules)5. The Rules provide for the memorials, counter­
"any State concerned in the disagreement" should be memorials. The respondent has the opportunity to
considered synonymous with "any contracting State" submit a preliminary objection to the competence of
that is a party to the dispute. Otherwise, based on a the ICAO Council to consider the issue presented by
restrictive interpretation of these provisions, a situa­ the applicant. The parties may submit additional writ­
tion may emerge where a dispute arises between two ten proceedings followed by an oral hearing stage in
or more States parties to the Chicago Convention over the case.
its interpretation and application; still, the Council A number of the Rules provisions can be used by
will proceed to resolve it at the request of a third state. the Council in order to avoid making a final decision
Moreover, this State, not being a party to the Chicago on a case [Bae 2013:74]. So, based on Article 6 of the
Convention, should be "involved in this dispute", but Rules, the Council, after presenting a counter-memo­
it is not entirely clear on what legal grounds because rial, may call the parties to direct negotiations. Accord­
it does not have the rights and does not bear obliga­ ing to Article 14 of the Rules, the Council may resort
tions under this agreement. In our opinion, such an in­ to this method of dispute settlement at any stage of the
terpretation leads to clearly absurd results. From this, proceedings. In any case, the Council can set a time
we can conclude that only a State party to the Chicago frame for the completion of negotiations. As will be
Convention can initiate the consideration of disputes shown below, this mechanism is the primary method
in the ICAO Council. of dispute settlement within ICAO.
The problem of the possibility of appealing the Among the controversial aspects of this document
Council's decision to an ad hoc tribunal also seems it should be noted that there are no provisions that

2 ICAO: Resolutions Adopted by the First Assembly . Р 20-21. URL: https://www.icao.int/Meetings/AMC/MA/Assembly%20

1st%20Session/A1_p45.djvu (accessed 28.01.2022).
3 Under Article 85 of the Chicago Convention, "If any contracting State party to a dispute in which the decision of the Council
is under appeal has not accepted the Statute of the Permanent Court of International Justice and the contracting States par­
ties to the dispute cannot agree on the choice of the arbitral tribunal, each of the contracting States parties to the dispute shall
name a single arbitrator who shall name an umpire".
4 ICAO: Rules for the Settlement of Differences. URL: https://standart.aero/en/icao/book/doc-7782-rules-for-the-settlement-
of-differences-en-cons (accessed 28.01.2022).
5 ICAO: Review of the Rules for the Settlement of Differences. URL: https://www.icao.int/Meetings/LC37/Documents/
LC37%203-2%20EN%20Rules%20Settlement%20Differences.pdf (accessed 28.01.2022).

Moscow Journal of International Law • 3 • 2022

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МЕЖДУНАРОДНОЕ ВОЗДУШНОЕ ПРАВО Д.В. Иванов, В.Г. Донаканян

would establish special requirements for voting in the The second group of proposed amendments to
Council when it rules on disputes. According to the the Rules includes provisions, some of which are also,
general rule set in Article 52 of the Chicago Conven­ in our opinion, of a purely technical nature. Among
tion, the Council decides by a simple majority vote of them: the clarification of Article 2 of the Rules on the
its members. However, a situation may arise where a need for a preliminary attempt to resolve a dispute
majority of the Council is parties to a dispute; conse­ through negotiation and the clarification of Article 3
quently, the Council will not be able to make a final of the Rules regarding the possibility of the Council to
decision, as the parties to the dispute will be deprived involve experts in the dispute settlement process. The
of their right to vote. This circumstance, reflected in other amendments from the second group have a more
Article 84 of the Chicago Convention, has also been significant nature. It is proposed to extend the provi­
criticized because the Sates involved in the dispute do sions of the Rules application to all disputes submitted
not have the opportunity to express their legal position to the Council, to limit public access to the proceed­
in a decision. This provision seems particularly con­ ings records (fully or until the moment of rendering
troversial given that the ICJ Statute enshrines the right a decision); to stipulate an obligation for the Council
of parties to elect judges of their nationality [Sanchez to reflect legal and factual reasons in the decision; to
2010:35]. review the interpretation of the term "majority" in Ar­
In the foreseeable future, it is likely that the text ticle 54 of the Chicago Convention in order to ensure
of the Rules will be amended [Zhang 2021:139-141]. that the Council can render a decision if a majority of
Thus, in 2017 the Council requested the Secretariat to its members are parties to the dispute; as well as to
review the Rules to determine whether there is a need establish the right of the Council to impose provisional
to review and update them6. The Secretariat concluded measures.
that the matter should be referred to the ICAO Legal In general, we can see that the Draft Revision to the
Committee, and it was included in the work program Rules is more inclined towards the judicial procedure.
of the Legal Committee at its 37th session7. The Secre­
tariat pointed out the need to bring the Rules into line 1.3. Dispute settlement practice within the ICAO
with the provisions of the ICJ Rules, which have been Council
amended several times since 1957. Since the ICAO foundation, the dispute settlement
The Legal Committee at its 38th session had be­ mechanism under Chapter XVIII of the Chicago Con­
fore it a Progress report on The Working Group for vention has been used to resolve seven disputes. The
the Review of the ICAO Rules for the Settlement of authors believe it is necessary and appropriate to con­
Differences8 (hereinafter - WG-RRSD). According to sider them [Milde 2016:204-209; Dempsey 1987:562­
this document, proposed amendments to the Rules 564].
can be divided into two groups: changes for which the India v Pakistan (1952) Pakistan's restricted zone
WG-RRSD has reached a high level of agreement, and along the border with Afghanistan effectively prevent­
changes that require further consideration by the WG- ed direct air traffic between Delhi and Kabul. India ar­
RRSD. gued that this violated Articles 5 and 6 of the Chicago
The first group includes aspects that do not affect Convention and the Transit Agreement. The Council
the essence of the ICAO Council as a dispute settle­ did not issue a final decision. The parties resolved the
ment body. Thus, in the Draft Revision to the Rules ap­ conflict through negotiation, as recommended by the
peared provisions on the use of electronic documents Council.
and virtual proceedings. In addition, many points re­ Great Britain v. Spain (1967) The dispute con­
lated to the procedural aspects of preliminary objec­ cerned the legality of the establishment by Spain of
tions have been clarified. So, for example, it is proposed exclusion zones in the Gibraltar airspace. The consid­
to introduce into the text of the Rules "admissibility" as eration of the dispute was postponed indefinitely at the
ground for a preliminary objection. request of both parties.

6 Ibidem.
7 ICAO: Work programme of the organization in the legal field. URL: https://www.icao.int/Meetings/a40/Documents/WP/
wp_078_en.pdf (accessed 28.01.2022).
8 ICAO: Progress report on the work of the Working group for the review of the ICAO rules for the settlement of differences
(WG-RRSD). URL: https://www.icao.int/Meetings/LC38/Documents/WP/LC38%20WP%202-1%20PROGRESS%20REPORT%20
ON%20THE%20WORK%20OF%20THE%20WG-RRSD_EN.pdf (accessed 28.01.2022).

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 Dmitry V. Ivanov, Vladislav G. Donakanian AIR LAW

Pakistan v. India (1971) The reason for the dispute Qatari aircraft. The defendants attempted to challenge
was the suspension of Pakistan aircraft overflights over the competence of the ICAO Council to adjudicate
India. India appealed the Council's competence in this the dispute in ICJ, but the judgment was rendered in
dispute to the ICJ, but the decision was in favour of Pa­ favour of Qatar. The blockade was lifted due to agree­
kistan. The dispute was resolved by the parties on their ments reached at the 41st Gulf Cooperation Council
own after the formation of East Bangladesh as an inde­ summit in January 2021.
pendent State. This dispute, as some lawyers write, was It appears from the disputes that in the entire pe­
settled entirely within the dispute settlement mecha­ riod of ICAO's activities no dispute has been finally
nism of the Council [Gariepy, Botsford 1976:357]. resolved in accordance with the provisions of Chapter
Technically speaking, such a position is very contro­ XVIII of the Chicago Convention. This may indicate
versial since the Council did not formally make a final the inefficiency of the Chicago Convention mecha­
decision under Article 84 of the Chicago Convention. nism, which is due to several objective factors that will
Cuba v. the USA (1998) be discussed below.
ated by Brothers to the Rescue (a non-profit organiza­
tion, which had repeatedly dropped propaganda leaf­ 2. The competence of the ICAO Council to settle
lets) were shot down on the high seas by the Cuban disputes: ICJ approach
Air Force. The incident resulted in the deaths of three
citizens and one US resident. In response, US authori­ 2.1. Formulation of the problem
ties closed their airspace to Cuban aircraft. The dispute The wording of Article 84 of the Chicago Conven­
was resolved by agreement between the parties, and tion raises problems in determining the applicability
the Council did not issue a final decision of the dispute settlement mechanism under Chapter
US v. EU (2000) The dispute concerned EU Regu­ XVIII to a particular situation. It establishes that the
lation No. 925/19999, which established aircraft engine ICAO Council has the competence to settle disputes
noise requirements that were not met by US aircraft "concerning the interpretation or application" of the
and therefore they could not operate within the EU. Chicago Convention and its Annexes. However, prac­
The dispute was resolved through negotiations, and the tice shows that deviation from the norms of the Chi­
Council did not make a final decision. cago Convention is not always directly related to the
Brazil v USA (2016) The dispute arose out of a interpretation and application of the provisions con­
disagreement over "the interpretation and application tained therein. Their breach may result from a dispute
of the Convention and its Annexes" in connection with for which the application of the Chicago Convention
the 2006 collision between a Brazilian Boeing and an alone would not be sufficient. This raises the question
American private jet. The dispute has not been finally of whether the ICAO Council has the competence to
settled, but it is unlikely that the Council will take a consider such disputes.
final decision on the matter. The parties suspended the This legal issue has twice been the subject of a dis­
process of the Applicant's response to the respondent's pute in the ICJ. It is worth noting that "each new ICJ
counter-memorial and now parties are engaged in ne- decision offers not only the lawful elimination of this
gotiations101. At the 40th session of the ICAO Assembly, dispute as such but also the enrichment of the legal
Brazil and the United States submitted a paper on State arsenal for the prevention or fair settlement of future
cooperation under Article 12 of the Chicago Conven- disputes" [Vylegzhanin, Kalamkaryan 2012:26]. Also,
tion11. the ICJ in its practice consistently adheres to earlier de­
Qatar v. Bahrain, Egypt, United Arab Emirates cisions. Among other things, the ICJ is the competent
and Saudi Arabia (2017) The dispute arose due to the body for appealing the decisions of the Council. Based
acts of the respondent States, which prohibited the use on the above-mentioned circumstances, it can be con­
of national airspace and flight information areas for cluded that the decisions of the ICJ on this issue should

9 EU: Council Regulation (EC) No. 925/1999 of 29 April 1999 on the registration and operation within the Community of cer­
tain types of civil subsonic jet aeroplanes which have been modified and recertificated as meeting the standards of volume I,
Part II, Chapter 3 of Annex 16 to the Convention on International Civil Aviation, third edition (July 1993). URL: https://eur-lex.
europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:31999R0925&from=EN (accessed 28.01.2022).
10 See ICAO Annual Report 2019. URL: <https://www.icao.int/annual-report-2019/Pages/supporting-strategies-legal-and-
external-relations-settlement-of-differences.aspx (accessed 28.01.2022).
11 ICAO: Article 12 of the Chicago convention: communication mechanism and guidelines to support its implementation.
URL: https://www.icao.int/Meetings/a40/Documents/WP/wp_101_en.pdf (accessed 28.01.2022).

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МЕЖДУНАРОДНОЕ ВОЗДУШНОЕ ПРАВО Д.В. Иванов, В.Г. Донаканян

be considered as a modern interpretation of the provi­ question of the status of the Chicago Convention and
sions of Article 84 of the Chicago Convention. the Transit Agreement, as well as the question of the
legality of India's response to the hijacking of an air­
2.2. India vs Pakistan (1972)12 craft in Pakistan, were to be brought before the ICAO
In August 1965, military clashes broke out between Council and these questions could not ipso facto and a
India and Pakistan. It led to the interruption of air traf­ priori exclude the competence of ICAO. The decision
fic between these two countries. In February 1966, the also reflected that this dispute prima facie affects the
countries agreed to resume air services on "the same aforementioned international treaties. Therefore, the
basis as before August 1, 1965". In 1971 an Indian air­ dispute fell within the framework of the jurisdictional
craft was hijacked in Pakistani territory. As a result, clauses established in these treaties, for the denial of
India closed its airspace to Pakistani aircraft. This re­ which the statement of one party was not enough. The
sulted in Pakistan's complaint to the ICAO Council final decision was in favour of Pakistan.
against India for violating Article 5 of the Chicago In our opinion, this decision is controversial. As
Convention and Article 1 of Section I of the Transit was rightly noted in the decision, India's position was
Agreement. The ICAO Council acknowledged that it based on the fact that the Chicago Convention and the
had jurisdiction over the dispute, but India decided to Pakistan-India Transit Agreement were terminated or
challenge the validity of the decision before the ICJ. suspended, so India could not violate the provisions
India's position in this dispute was based on two of these treaties. It follows from this that India did not
main arguments: deny the facts of derogation of the norms contained in
1) From August 1965, the Chicago Convention and them but did not consider them as violations of inter­
the Transit Agreement ceased to govern relations be­ national law since they were conditioned by Pakistan's
tween India and Pakistan. After February 1966, India unlawful (in India's opinion) actions. The court did
and Pakistan established a "special regime" that pro­ not directly address this aspect in its decision. At the
vided exclusively permissive use of Indian airspace. same time, the decision correctly emphasized that In­
2) The hijacking of an Indian plane on Pakistani dia's objections to the jurisdiction of the ICAO Coun­
territory in 1971 should be qualified as a material viola­ cil undoubtedly affected the essence of the dispute,
tion of the Chicago Convention and the Transit Agree­ which the ICJ was not authorized to settle. In other
ment. Proceeding from this, India, in any case, had the words, the issue of jurisdiction in this dispute largely
right to suspend the treaties on the basis of the norms predetermines the final decision.
of general international law; therefore, the considera­ At the same time, it implicitly follows from the ICJ
tion of this issue is outside the powers of the Council. judgment that the relationship between India and Pa­
These arguments were aimed primarily at proving kistan was still governed by the Chicago Convention
that, for some reason, the Chicago Convention and the and the Transit Agreement. This was evidenced by the
Transit Agreement are not in force for the States. Pa­ court's finding that India had not expressly declared
kistan argued that the agreement reached in February the suspension of these treaties. Also, the final deci­
1966 implied the resumption of flights based on the sion that the Council had jurisdiction over the case
provisions of the Chicago Convention and the Tran­ based on Article 84 of the Chicago Convention could
sit Agreement, rather than a "special regime". The ICJ have been taken by the Council as the ICJ's conclusion
found that Pakistan had not received an unequivocal that the Chicago Convention and the Transit Agree­
statement on the suspension of the treaties, and all ment applied to the dispute. However, the ICJ did not
notifications from India were related to aircraft flights consider the validity of India's actions on the merits,
rather than international treaties. India's objection did not analyze all the circumstances of the case and
that its actions were outside the scope of the Chicago only concluded that the ICAO Council had jurisdic­
Convention and were regulated by norms of general tion over the dispute
international law and the law of international treaties If the dispute had been nevertheless resolved by the
were not accepted by the court. The ICJ relied on the Council, rather than by agreement between the parties,
fact that such objections, emanating from one of the the Council would have two options: to settle the case
disputing parties, were not enough to deny the juris­ on the basis of the Chicago Convention and the Transit
diction of the Council. The ICJ also indicated that the Agreement, or by taking into account all the circum­

12 International Court of Justice: Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan). Judgment of 18 Au­
gust 1972. URL: https://www.icj-cij.org/public/files/case-related/54/054-19720818-JUD-01-00-EN.pdf (accessed 28.01.2022).

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 Dmitry V. Ivanov, Vladislav G. Donakanian AIR LAW

stances of the case and other norms of international tion and Section 2 of Article II of the Transit Agree­
law. Both options are unacceptable. In the first case, ment, initiated a dispute settlement procedure in the
the decision would not meet the principle of fairness ICAO Council. The respondent Governments raised
because, as stated earlier, India did not deny deroga­ two preliminary objections. The first stated that the
tion from the provisions of the Chicago Convention, dispute concerned obligations beyond the mentioned
and legal qualification of the antecedents is necessary treaties, and their actions could be qualified as legiti­
for an objective decision. In the second case, the ICAO mate countermeasures following international law.
Council would have been forced to raise issues that In the second objection, it was stated that Qatar did
would go far beyond international air law, but States not fulfil the conditions of Article 84 of the Chicago
most likely did not seek to give it such authority at the Convention and Section 2 of Article II of the Transit
time of signing the Chicago Convention. Based on the Agreement to refer the dispute to the Council, namely,
previous paragraph, the first option seems the most did not attempt to settle the dispute through negotia­
likely. tions. The ICAO Council did not accept the prelimi­
The authors of this paper believe that to settle this nary objections and in 2018 confirmed its competence
dispute effectively, the ICAO Council had to declare a to resolve this dispute. Subsequently, Bahrain, Egypt,
lack of competence, as its complex nature involves re­ the United Arab Emirates and Saudi Arabia decided to
course to various sources of international law and not appeal this decision to the ICJ.
just the provisions of the Chicago Convention and the The applicants invoked three grounds of appeal
Transit Agreement. against the decision: violations by the Council of the
fundamental principles of due process and the right
2.3. Bahrain, Egypt, Saudi Arabia and Unitedto be heard, which resulted in an erroneous decision;
Arab Emirates13v Qatar and Bahrain, Egypt, United and factual and legal errors by the Council in rejecting
Arab Emirates and Qatar14(2020) their preliminary objections (each cited as a separate
From a formal legal point of view, this dispute ground).
should be divided into two separate disputes: a dispute In its decision, the ICJ chose to start by analyzing
over a violation of the provisions of the Chicago Con­ the second ground of appeal against the Council's de­
vention and a breach of the provisions of the Transit cision. The dispute in question was found to involve
Agreement. Saudi Arabia is not a party to the Transit provisions of the Chicago Convention and the Transit
Agreement and therefore is not a party to the dispute. Agreement and, therefore, be subject to jurisdictional
ICJ's decisions on these disputes are identical. clauses. According to the ICJ's position, the mere fact
In 2017, Bahrain, Egypt, the United Arab Emir­ that this dispute had arisen in the broader context did
ates and Saudi Arabia closed their airspace to aircraft not deprive the ICAO Council of its jurisdiction under
registered in Qatar. The reason for this was the alleged the Chicago Convention and the Transit Agreement.
violation by Qatar of its obligations under the so-called Moreover, the ICJ referred to the 1972 judgment in the
Riyadh agreements concluded in 2013-2014. Under India v Pakistan dispute, in which the court found that
them, Qatar agreed upon no support to any "organiza­ the position of a party to the dispute (that the provi­
tions, groups, or individuals that threaten the security sions of the convention did not apply to the merits of
and stability of the Council states". In response to this, the dispute) could not be a basis for excluding the ju­
Qatar, according to Article 84 of the Chicago Conven­ risdiction of the Council15.

13 International Court of Justice: Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Conven­
tion on International Civil Aviation. Judgment of 14 July 2020. URL: https://www.icj-cij.org/public/files/case-related/173/173-
20200714-JUD-01-00-EN.pdf (accessed 28.01.2022).
14 International Court of Justice: 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.
URL: https://www.icj-cij.org/public/files/case-related/174/174-20200714-JUD-01-00-EN.pdf (accessed 28.01.2022).
15 "The fact that a defense on the merits is cast in a particular form, cannot affect the competence of the tribunal or other or­
gan concerned, — otherwise parties would be in a position themselves to control that competence, which would be inadmis­
sible. 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 dispute submitted to it and on the issues thus raised — not on those defenses on the merits,
or other considerations, which would become relevant only after the jurisdictional issues had been settled." See: International
Court of Justice: Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan). Judgment of 18 August 1972. Para
27. URL: https://www.icj-cij.org/public/files/case-related/54/054-19720818-JUD-01-00-EN.pdf (accessed 28.01.2022).

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МЕЖДУНАРОДНОЕ ВОЗДУШНОЕ ПРАВО Д.В. Иванов, В.Г. Донаканян

The ICJ further disagreed with the applicants' posi­ This was not directly reflected in the text of the judg­
tion that Qatar had failed to comply with the require­ ment, but it indirectly followed from it. After all, the
ments of Article 84 concerning the pre-trial settlement ICJ, recognizing the Council's competence to resolve
of the dispute. This article stipulates that the Council is the dispute between India and Pakistan, confirmed its
authorized to consider only those differences that can­ right to decide on the validity of the legal position of
not be resolved through negotiations. Qatar pointed to India, for the qualification of which, as we indicated
attempts to settle the dispute within the ICAO, WTO earlier, it would be necessary to turn to various sources
and UN, and through other means of dispute settle­ of international law that do not affect aviation.
ment. In addition, the ICJ concluded that there was no The authors of this paper agree with the main argu­
reasonable basis to believe that the dispute in question ment of the ICJ that the position of a party on the inap­
could have been settled through negotiation. plicability of the provisions of the Chicago Convention
Regarding the first ground for appeal against the cannot be an unconditional basis for denying the com­
Council's decision, the ICJ stated that there is no need petence of the Council. However, this approach is not
to consider the issue of cancelling the legally of the cor­ always justified in the light of all the circumstances of a
rect decision of the Council in the light of procedural particular dispute. In our opinion, the dispute between
violations. The Court also found that the Council's de­ India and Pakistan of 1972 and the dispute over the air
cision-making process did not violate the fundamental blockade of Qatar of 2020 fall into this category.
requirements of due process.
In this decision, the ICJ confirmed its position on 2.4 The ICJ decisions in the context of l legal
an expanded approach to the interpretation of the pro­ proceedings on downing of Malaysia Airlines Flight
visions of Article 84 of the Chicago Convention on MH 17 in 2014.
the competence of the Council. In the 2020 decision, On July 17, 2014, a Malaysian Boeing "777-200"
the ICJ explicitly indicated the Council had powers to was shot down in the airspace over the territory of the
consider issues outside the scope of these international Donetsk People's Republic, the territory which was
treaties. The controversial nature of this approach was engaged in an armed conflict. In March 2022 official
noted in the declaration of Judge K.G. Gevorgyan. Ac­ sources announced that the Netherlands and Austria
cording to him, it was sufficient to confine to the posi­ initiated legal proceedings against Russia in Coun­
tion indicated in the 1972 decision to substantiate the cil regarding the downing of the Boeing "777-200"17.
applicants' argument about the lack of jurisdiction of Leaving aside the merits of the dispute and the validity
the Council16. Let us remind that it was about the in­ of the legal position of the Netherlands and Austria, it
admissibility of denying the competence of the Coun­ is important to focus on the issue of the competence of
cil on the grounds that one party refers to the inap­ the Council to resolve the dispute.
plicability of the Chicago Convention and the Transit It is not apparent at this time which provisions of
Agreement to a particular dispute. K.G. Gevorgyan the Chicago Convention the applicants will serve as
quite rightly noted that the States, concluding these base for applicants' legal position. We suppose that
treaties, did not agree to vest the ICAO Council with they will refer to Article 3bis, under which contract­
powers to settle disputes that do not affect civil aviation ing States have undertaken to refrain from resorting to
issues. In addition, given that Council members act as the use of weapons against civil aircraft in flight. If we
representatives of States and are not necessarily experts follow the approach taken by the ICJ in its 2020 deci­
in international law, the resolution of such disputes will sion, we can assume that the Council is highly likely to
not be effective. confirm its competence to resolve this dispute, as it is
It seems that the position of K.G. Gevorgyan has prima facie related to the Chicago Convention and civil
an indisputable legal basis. At the same time, from our aviation in general. However, resolution of this dispute
point of view, the intentional or unintentional expan­ requires the establishment of many factual circum­
sion of the Council's competence, of which K.G. Ge­ stances, which implies an in-depth analysis of the mili­
vorgyan wrote in his declaration, happened already in tary and technical details of the accident. Moreover, it
1972 in the ICJ judgment on the India v. Pakistan case. will be necessary to make an adequate international

16 International Court of Justice: Declarations of Judge Gevorgian to the Judgments of 14 July 2020. Paras 2. URL: https://www.
icj-cij.org/public/files/case-related/174/174-20200714-JUD-01-02-EN.pdf (accessed 28. 01.2022).
17 The Netherlands and Australia submit complaint against Russia to the International Civil Aviation Organization. URL: htt-
ps://www.government.nl/latest/news/2022/03/14/netherlands-and-australia-submit-complaint-against-russia-to-icao (ac­
cessed 10.04.2022).

42
 Dmitry V. Ivanov, Vladislav G. Donakanian AIR LAW

legal qualification of these circumstances. Thus, for ex­ bers may be more competent in settlement aviation
ample, the Council may be faced the entities’ conduct disputes than ICJ judges. But, more importantly, he ex­
attribution to the State problem, which is outside the plains that the Council has judicial powers through the
scope not only of the Chicago Convention, but also of concept of "inherent powers", the application of which,
international air law in general. in his opinion, is necessary, since otherwise the UN and
Had the Netherlands and Austria had filed an ap­ its specialized agencies "were to be bogged down in a
plication before 2020, there would be hope that the quagmire of interpretation and judicial determination
Council, after examining all the circumstances of the in the exercise of their duties" [Abeyratne 2014:666].
case, would decide not to consider the dispute due to This argument cannot be called indisputable be­
lack of competence. Unfortunately, in today's realities cause, as Professor G.I. Tunkin wrote, the concept of
such a scenario is extremely unlikely. As stated earlier, "inherent powers" separates the international organi­
the ICJ has expressly established that the Council, in zation from its basis (i.e. the constituent agreement),
settling disputes under Article 84 of the Chicago Con­ contradicts the principles of interpretation of inter­
vention, may consider aspects outside the scope of that national treaties and the legal nature of international
treaty. Consequently, we may be witnessing an unprec­ organizations as interstate formations of peaceful co­
edented and unwarranted expansion of the Council's existence [Tunkin 1974:329].
competence, which will make the Council an ineffec­ This aspect was also raised by the ICJ in the recent
tive mode of dispute resolution, and its decisions will decision on the competence of the Council. The Court,
inevitably be appealed to the ICJ. considering the issue of the applicability of the concept
of "judicial ethics" to the activities of the Council, con­
3. The place of the ICAO Council in the system ofcluded that, despite the provisions of Article 84 of the
means for the peaceful settlement of disputes in the Chicago Convention, according to which the Council
light of the ICJ judgments and current practice is entrusted with the function of settlement disputes,
it is not a judicial body in the literal sense of the word.
3.1. ICAO Council as a judicial body. Does it Moreover, the ICJ actually relied on the same circum­
have jurisdiction in the legal sense of the word? stance as M. Milde. At the same time, the document
Currently, there is no unified approach to under­ submitted by the ICAO Secretariat on the revision of
standing the legal nature of the Council as a body for the Rules stipulates that Article 84 enshrines the judi­
the settlement of international disputes in the field cial function of the Council.
of civil aviation. On the one hand, the dispute settle­ Considering all the above facts and the fact that
ment procedure established by the Rules and the pos­ the Chicago Convention provides for a procedure of
sibility of imposing sanctions for non-compliance with appeal of final decisions of the Council to the ICJ, it
Council decisions, enshrined in Articles 86 and 87 of seems possible to conclude that this body cannot be
the Chicago Convention, indicate that the Council can put on a par with other international judicial bodies.
act as a judicial organ. On the other hand, the Council This raises a theoretical question: is it legally correct to
is more of a political body, as it consists of 36 ICAO speak of the jurisdiction of the Council, given that it is
Member States, which are likely to be guided by na­ not a judicial body?
tional interests in the framework aviation disputes. As S. Amerasinghe in his fundamental work on the
a result, the Council cannot be expected to make the jurisdiction in international law analyzed all possible
kind of fair and impartial decision that is characteristic meanings of the term "jurisdiction", and, as follows
of a judicial body [Dempsey 1987:568]. from the definitions given by him, "jurisdiction" is al­
In this regard, the position of the outstanding law­ ways associated with various aspects of the activities
yer M. Milde seems to be the most correct, who writes of the judicial authorities [Amerasinghe 2002:58-64].
that "the Council cannot be considered to be a true However, the international legal doctrine lacks a uni­
judicial body composed of judges who would be act­ fied approach to the use of this term. For example, ICJ
ing in their personal capacity and deciding strictly and Judge H. Turlway pointed out that not only judicial
exclusively on the basis of international law". As such, and arbitration bodies but also political ones have ju­
Council decisions are more political considerations risdiction. Moreover, the jurisdiction of political bod­
than normative prescriptions [Milde 2016:204]. At the ies cannot include the adoption of generally binding
same time, no less well-known international lawyer R. decisions [Thirlway 2016:38]. At the same time, the
Abeyratne adheres to the point of view according to ICAO Council, as noted by K.G. Gevoryan, is a body of
which the Council undoubtedly has judicial powers. In a predominantly technical and administrative nature.
support of his position, he argues that Council mem­ Consequently, within the framework of H. Turlway's

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МЕЖДУНАРОДНОЕ ВОЗДУШНОЕ ПРАВО Д.В. Иванов, В.Г. Донаканян

concept, it should be qualified as a political body with which will have a positive effect on international civil
its own jurisdiction. aviation as a whole. Among other things, this would al­
The approach demonstrated above is rightly criti­ low for a clear delineation of the ICJ's appeal function,
cized by Russian scientists A.N. Vylegzhanin and O.I. which would result in a review of the Council's pro­
Zinchenko. In their view, when referring to the terms posed interpretation of the provisions of the Chicago
of reference of political authorities, the term "compe­ Convention, without addressing the issue of aviation
tence" rather than "jurisdiction" is preferred". They also policy, for which the Court may be as incompetent as
give the meaning of the term "jurisdiction", which is Council in the sphere of international law.
given in the most popular English-language legal dic­ Given all of the above, it seems legally incorrect to
tionary (Black’s Law Dictionary), where it is stated that treat the Council's powers under Article 84 of the Chi­
jurisdiction is "a term of comprehensive import em­ cago Convention as "jurisdiction" because, firstly, the
bracing every kind of judicial action" [Vylegzhanin, Council cannot be regarded as a judicial body and, sec­
Zinchenko 2018:10] At the same time, the Council is ondly, decisions on disputes brought before it is rather
not a judicial body for some reasons we have men­ of an intermediate nature
tioned earlier. As a result, we cannot speak of its "ju­
dicial action". 3.2. ICAO Council as a mediator
The problematic issue of the Council's "jurisdiction" As noted earlier, the Council, in the entire history
was reflected in the separate opinion of Judge ad hoc of its activities, has never fully settled a dispute in ac­
F. Berman18to the judgment on the Qatar air blockade cordance with Chapter XVIII of the Chicago Conven­
case. In his view, the use of the term "jurisdiction" by tion. The parties settled all disputes referred to the
the ICJ concerning the powers of the Council under Council through negotiations. This was not an exclu­
Article 84 of the Chicago Convention has complicated sive achievement of the parties, as the Council contrib­
the existing ambiguity. F. Berman gives weighty argu­ uted significantly to the peaceful settlement of them.
ments in support of his position. First of all, he notes For example, in the dispute between the United States
that only judicial settlement of a dispute is associated and the EU in 2000, the President of the Council pro­
with "jurisdiction", i.e. with a legally binding decision. vided "good offices" to the parties. A similar situation
Then he proceeds to review the ICAO Rules, the anal­ was observed in the dispute between India and Paki­
ysis of which leads him to conclude that the Council stan in 1952 [Milde 2016:209]. International legal doc­
powers enshrined in them are more consistent with trine notes that the Council always seeks to resolve all
those of the supreme executive body of a technical insti­ conflicts "diplomatically" without the need for a final
tution or "amiable compositeur" than that of a judicial solution [Luongo 2018:52].
body. He doubts that the contracting States sought to This practice is mainly due to factual circumstanc­
make the decisions of the Council legally binding, given es. For example, the Council's consideration of dis­
that the Chicago Convention does not contain provi­ putes is characterized by persistent delays and lengthy
sions on the legal nature of the decisions of the Council, proceedings. At the same time, as a
but at the same time, according to Article 86, ICJ and PS. Dempsey noted in 1987, such delays enabled
arbitral decisions are final and binding. As a result, he the parties to settle their differences peacefully and on
offers a different interpretation of Article 84 of the Chi­ the basis of consensus [Dempsey 1987:569]. As prac­
cago Convention, according to which the Council does tice shows, there has been no significant change since
not have "jurisdiction", but exercises "the high adminis­ the publication of the cited work. It follows that the le­
trative function, drawing on its unique knowledge and gal basis for the activity of the Council in the sphere of
expertise in the field of civil aviation, of giving authori­ dispute settlement is not reflected in Chapter XVIII of
tative rulings as to what the Convention means and re­ the Chicago Convention, but rather in the aforemen­
quires, whether or not such issues form part of specific tioned Article 6 and 14 of the Rules, under which the
disputes between member States". According to Council may at any time call upon the disputing par­
F. Berman, such an interpretation will make it pos­ ties to negotiate, during which the proceedings before
sible to give authoritative decisions of the Council the Council will be suspended.
equal force for all member States of the Chicago Con­ All this allows us to speak of the Council as a body
vention, and not only for the parties to the dispute, that actually acts as a mediator [Gariepy, Botsford

18 International Court of Justice: Separate opinion of Judge ad hoc Berman to the Judgments of 14 July 2020. Para. 2.URL:
https://www.icj-cij.org/public/files/case-related/173/173-20200714-JUD-01-03-EN.pdf (accessed 01.02.2022).

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 Dmitry V. Ivanov, Vladislav G. Donakanian AIR LAW

1976:358-459]. in resolving disagreements between 1979:185; Abashidze, Travnikov 2019:185]. However,

the State's parties to the Chicago Convention or, as in international legal doctrine, this issue is debatable.
indicated by M. Milde, as a quasi-mediator [Milde Leaving aside the question of the effectiveness of
2016:209]. sanctions enshrined in Article 86 and Article 87 of the
In this regard, it should be noted that, under the Chicago Convention, it seems possible to state the dis­
generally accepted approach, a mediator should be crepancy between the actual and formal legal status of
understood as an unofficial participant in the process, the ICAO Council as a body for the peaceful settlement
whose recommendations and decisions are not bind­ of disputes. On the one hand, the practice has shown
ing on the parties to the conflict [Khudoykina 1998:5]. that, despite the inability of the ICAO Council to exer­
Mediation does not imply the use of any legal mecha­ cise the functions of a judicial body, it plays an essential
nisms to settle the dispute and monitor the implemen­ role in the settlement of disputes in the field of civil avi­
tation of the decision reached by the mediator. How­ ation as a mediator [Bae 2013:74]. On the other hand,
ever, according to Articles 86 and 87 of the Chicago under Chapter XVIII of the Chicago Convention, the
Convention, airlines and States that do not comply powers of the Council go far beyond the functions of
with the decisions of the Council may be sanctioned. a mediator. The fact that the Council never resorted to
Mediation in international law does not imply such them when considering disputes on the basis of Article
measures. 84 of the Chicago Convention cannot serve as a basis
At the same time, there is a view that the sanctions for qualifying the Council as a mediator.
enshrined in Articles 87 and 88 are not so significant
that States are keen to avoid them. For example, Article 3.3. Reform of the dispute settlement mechanism
87 stipulates that States are obliged to close their air­ enshrined in Chapter XVIII of the Chicago Conven­
space to airlines that do not comply with the Council's tion
decisions. However, as It is noteworthy that some lawyers consider the
G.C. Sanchez rightly points out, it is virtually im­ ICAO Council as a fairly effective means for the
possible to monitor compliance with this obligation peaceful settlement of disputes. They attribute this to
because of the large number of States Parties to the the fact that the Council, rather than performing the
Chicago Convention. Moreover, not every State is pre­ quasi-judicial function assigned to it by the Chicago
pared to aggravate relations with the State of registra­ Convention, encourages the parties to reach a con­
tion of such an airline. In addition, Article 88 states sensus [Luongo 2018:52]. Notably, R. Gariepy and
that the "Assembly shall suspend the voting power D. L. Botsford argue that the fact that only one dispute
in the Assembly and in the Council of any contract­ has been resolved under ICAO19does not indicate that
ing State that is found in default under the provisions" the judicial mechanism under the Chicago Conven­
of Chapter XVIII. According to the position of G.C. tion is ineffective [Gariepy, Botsford 1976:357-359].
Sanchez, essential powers of these bodies consist in They note the significant role of the Council as a me­
the adoption of Annexes to the Chicago Convention, diator but point out that in the absence of the mecha­
which could be adopted without regard to the position nism provided for by Chapter XVIII of the Chicago
of the delinquent State. Further, G.C. Sanchez writes Convention the effectiveness of the ICAO Council in
that in order for an annex to be legally binding, such this area would be highly questionable. In our view,
a State must ratify it and, consequently, States should this statement is doubtful, given that the authors of the
not be afraid of incurring new international legal ob­ cited work in support of their position, mention, inter
ligations without their consent [Sanchez 2010:36-37]. alia, a dispute between Jordan and the UAE, which was
The authors of this article agree with this conclusion, settled through Council mediation but without initiat­
but consider it useful to clarify that the Annexes to the ing proceedings under Article 84 of the Chicago Con­
Chicago Convention constitute a set of standards and vention.
recommended practices that are referred to as annexes In our view, it is necessary to distinguish between
for convenience. It follows that the Annexes to the Chi­ the efficacy of the Council as a mediator and as a dispute
cago Convention are acts of an international organiza­ settlement body under Chapter XVIII of the Chicago
tion that are not sources of international law and are Convention. There is no doubt that, in the first case,
not subject to ratification by States [Maleev, Vasil'ev the Council has proven to be a highly effective means

19 As such, the authors consider the 1971 India-Pakistan dispute. However, as has been noted in this paper, the ICAO Council
has not made a final decision on it.

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МЕЖДУНАРОДНОЕ ВОЗДУШНОЕ ПРАВО Д.В. Иванов, В.Г. Донаканян

for settling disputes in the field of international civil In such circumstances, the arbitrators will not be able
aviation. Such mediation has often arisen precisely in to objectively consider the dispute and make a single
proceedings under Article 84 of the Chicago Conven­ decision based on an independent assessment; one of
tion, but this does not indicate the effectiveness of the the decisions will always contradict the position of the
Chapter XVIII mechanism as a whole. The absence of majority of the arbitrators, which minimizes the util­
disputes in which the Council rendered a final decision ity of the proposed Panel of Arbitrators as a whole. In
is not evidence of the Council's phenomenal success in the same case, if the Panel of Arbitrators presents one
its role as a mediator but rather of the imperfection of decision to the Council, then the Council will not be
the dispute settlement mechanism established by the obliged to approve it in any case. Under the existing
Chicago Convention. Consequently, various ideas for provisions of the Chicago Convention, the Council,
reforming this mechanism have been expressed in in­ when resolving disputes, can only take into account
ternational legal doctrine. the verdict of such a Panel of Arbitrators. Still, the last
According to R. Sankovych, the current dispute set­ word will always be with the members of the Council.
tlement procedure can be improved without changing Consequently, the actual role of the proposed Panel
the provisions of the Chicago Convention [Sankovych of Arbitrators, as rightly pointed out by Norberto E.
2017:335-337]. Under his proposal, the Council, based Luongo, will be reduced exclusively to the performance
on Article 55, may establish a Panel ofArbitrators, com­ of the advisory function, which the Secretary of ICAO
posed of three categories of persons: representatives currently performs [Luongo 2018:52].
of the public authorities of the parties to the Chicago If R. Sankovych primarily based his concept on the
Convention, who is responsible for aviation matters; experience of the World Trade Organization (hereinaf­
highly qualified staff members of the ICAO Secretariat ter - the WTO), then S. Sanetti proposes to completely
or other international or regional organizations whose transfer the WTO dispute settlement mechanism to
professional activities involve participation in dispute the Chicago system. S. Sanetti notes that before the
settlement procedures; as well as experienced lawyers adoption of The Understanding on Rules and Proce­
specializing in dispute settlement. Within the frame­ dures Governing the Settlement of Disputes of 1994,
work of this concept, it is assumed that persons not the WTO dispute settlement mechanism was criticized
involved in the case (airlines and their clients) will be on the same grounds as the mechanism of Chapter
able to provide expert opinions on the subject of the XVIII of the Chicago Convention [Canetti 1995:515­
dispute. According to R. Sankovych, all this will help to 521]. Such a reform would not affect the structure of
ensure that the Panel of Arbitrators issues reasoned de­ ICAO since the ICAO Assembly corresponds in many
cisions. The decision made by such a Panel of Arbitra­ respects to the WTO Ministerial Conference and the
tors must be approved by the Council, since this mech­ ICAO Council to the WTO General Council. At the
anism is not established in the Chicago Convention. same time, the proposed mechanism has the potential
Therefore, the legal status of the decisions of the Panel to significantly rehabilitate ICAO's role as a means of
of Arbitrators is not clear. R. Sankovych also consid­ adequate dispute settlement. For example, the par­
ers the possibility of assigning to the proposed Panel of ties would have a guarantee that a final decision will
Arbitrators the obligation to provide the Council with be rendered after a certain period of time, as the 1994
two decisions, each in favour of one of the disputing Dispute Settlement Understanding on Rules and Pro­
parties. The Council will determine the outcome of the cedures clearly regulates and sets time limits for each
dispute by voting. It is proposed to leave the procedure stage of a dispute. Moreover, the WTO rules on the ap­
for appealing decisions unchanged. pointment of arbitrators address the problem of pos­
The above-mentioned procedure will eliminate sible politicization of the final award.
one of the main shortcomings of the current order, Of particular note is E.A. Samorodova's approach20,
namely, the lack of the necessary professional compe­ according to which the international community
tence among the members of the Council. At the same should amend the text of the Chicago Convention or
time, R. Sankovych's proposal to assign to the Panel resort to the conclusion of a new universal internation­
of Arbitrators the obligation to submit to the Council al treaty on air law. This progressive development of
two conflicting decisions seems hugely controversial. international law, among other aspects, should result

20 Samorodova E.A. Mezhdunarodno-pravovye problemy razrabotki i prinyatiya universal'noi (vseobshchei) konventsii po

vozdushnomu pravu. Diss.... kand. yurid. nauk [International legal issues relating to the drafting and adoption of a universal
(general) convention on air law. Thesis for the degree of Сandidate of Juridical Sciences].Moscow. 2008. P. 105.

46
 Dmitry V. Ivanov, Vladislav G. Donakanian AIR LAW

in establishing International Air Arbitration, a perma­ we have noted, the Council has been effective in its role
nent judicial body under the ICAO Council or under a as a mediator. Consequently, the Chicago Convention
new international organization. A distinctive feature of could be amended in order to impose an obligation on
such a judicial body should be "complexity", i.e. Inter­ contracting States to comply with the pre-trial dispute
national air arbitration must be competent to consider settlement procedure. It would require States to have re­
and settle any dispute related to the use of airspace. course to the mediation of the Council. In the same case,
E.A. Samorodova also proposes the option of conclud­ if the dispute cannot be settled within ICAO within the
ing a special convention on the settlement of disputes prescribed time limit, the parties should go to an ICJ or
related to the use of airspace. ad hoc tribunal to resolve the merits of the dispute.
Another Russian researcher M. D. Tovmasyan21
adheres to a similar position. He is also considering 4. Conclusion
the option of creating a judicial body - the Permanent
Aviation Arbitration, which will include the most au­ Since the establishment of ICAO, the dispute set­
thoritative experts in the field of air law nominated tlement mechanism provided for by the Chicago Con­
by States. At the same time, M.D. Tovmasyan, like vention has not functioned as efficiently as expected
E.A. Samorodova, notes the negative attitude of States in 1944. The analysis of the provisions of the Chicago
to referring disputes to arbitration, the decisions of Convention, international legal doctrine, the practice
which are binding. In this regard, M.D. Tovmasyan of the Council and decisions of the ICJ allows us to
doubts that such a mechanism will be widely used as draw a number of conclusions that reveal the reasons
a stand-alone means of dispute settlement. In his view, for the current situation.
it would be most appropriate to develop and regulate Firstly, the provisions of Chapter XVIII of the Chi­
consultation and mediation procedures which could cago Convention are not detailed enough, as a result,
be provided by the ICAO Secretary, the President of a number of legal problems arise that do not have a
the Council and other ICAO bodies. straightforward solution. Second, the Council is the
The idea of establishing a permanent arbitral in­ highest administrative body of ICAO, but not a judi­
stitution as an ICAO organ is also supported by con­ cial one. Empowering the Council to settle disputes
temporary foreign legal doctrine. As L. Zhang notes, through a legally binding decision violates the internal
changing the ICAO Settlement Rules will not solve all logic of the entire Chicago Convention. Moreover, it
existing problems. Therefore, the most desirable and contradicts the conventional approach to the creation
practical option would be to establish a new arbitral of judicial bodies in international law. Third, the ICJ's
institution by amending the text of the Chicago Con­ practice on this issue is extremely ambiguous. Based on
vention [Zheng 2022:181-183]. the judgements of the ICJ, the Council acquired "juris­
Any of the above approaches to reforming the dis­ diction" and was recognized as the competent author­
pute settlement mechanism of the Chicago system is ity to deal with matters outside the scope of interna­
possible. Nevertheless, it seems likely that the Chicago tional air law. Under these conditions, it is implausible
Convention XVIII mechanism would not be improved, that states will choose the Council to resolve a dispute.
but rather abolished entirely. It must be stressed that it is Solving existing problems without changing the
solely a question of abolishing the authority of ICAO to provisions of the Chicago Convention will be extreme­
issue legally binding rulings on disputes between States ly problematic. The creation of new legal norms will
Parties. An approach that would exclude ICAO from undoubtedly be a time-consuming and labour-inten­
the current system of peaceful settlement of civil avia­ sive activity, but it is necessary to streamline interna­
tion disputes seems to be highly irrational. After all, as tional relations arising from the use of airspace.

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About the Authors Информация об авторах

Dmitry V. Ivanov, Дмитрий Владимирович Иванов,

Cand Sci. (Law), Associate Professor, Associate Professor at кандидат юридических наук, доцент, доцент кафедры
the Department of International Law, Moscow State Insti­ международного права, Московский государственный
tute of International Relations (University) MFA Russia институт международных отношений (Университет)
МИД России

76, pr. Vernadskogo, Moscow, Russian Federation, 119454 119454, Российская Федерация, Москва, проспект Вер­
надского, д. 76

[email protected] [email protected]
ORCID: 0000-0003-1231-6072 ORCID: 0000-0003-1231-6072

Vladislav G. Donakanian, Владислав Гарегинович Донаканян,

student of the Master's program "International legal sup­ студент магистерской программы «Правовое обеспече­
port of projects and energy business", Moscow State Insti­ ние международных проектов и энергетического биз­
tute of International Relations (University) MFA Russia неса», Московский государственный институт междуна­
родных отношений (Университет) МИД России

76, pr. Vernadskogo, Moscow, Russian Federation, 119454 119454, Российская Федерация, Москва, проспект Вер­
надского, д. 76

[email protected] [email protected]
ORCID: 0000-0002-1167-8496 ORCID : 0000-0002-1167-8496

48