Introduction
One of the most significant developments in the field of aviation law was accomplished with the passage of the Convention on International Civil Aviation (Chicago Convention) in 1944, which still remains in force as binding law. Under the Chicago Convention, Article 84 empowered the Council, an agency of the International Civil Aviation Organization, to hear disputes between contracting states concerning the interpretation and application of the Convention if the disagreement between them could not be settled by negotiation.
However, in the case of India v. Pakistan before the Council, and in a subsequent appeal to the International Court of Justice (ICJ), India’s argument concerning the non-application of Article 84 based on the contention that the dispute related to the existence of the treaty (Chicago Convention), rather than its interpretation and application, was rejected by the ICJ. Consequently, the Council’s jurisdiction to hear disputes related to the suspension or replacement of the Chicago Convention itself was allowed.
Furthermore, similarly, in the case of Qatar v. UAE, Bahrain, Egypt, and Saudi Arabia, Qatar was accused of nonadherence to the Riyadh Agreements, and subsequently, airspace restrictions were enforced on Qatar-registered aircraft. The ICJ, in a ruling parallel to India v. Pakistan, recognised the council jurisdiction based on the core claims or character of the dispute, rather than the defences raised by the parties. This reasoning subsequently expanded the Council’s jurisdiction under Article 84, even where the actions in question were disputed under general international law outside the treaty framework.
Thus, these cases demonstrate an expanding sphere of the Council’s jurisdiction under Article 84, including disputes questioning the treaty’s existence and disputes arising under general international law. However, the question arises concerning the jurisdictional limits on Council Jurisdiction and where the line ought to be drawn. Considering the same, this article first provides a detailed interpretation of Article 84 and its spherical application. Second, it analyses the limitations of the ICJ’s expansive interpretation from the specific viewpoint of Justice Franklin Berman. Lastly, the article discusses the remedial approaches that can be adopted to maintain an equilibrium between the Council’s Article 84 jurisdiction and other principles of international law.
Article 84 of the Chicago Convention and its Sphere of Application
Article 84 of the Chicago Convention is divided into three parts: first, it provides for the settlement of disputes by the ICAO Council between two or more contracting states relating to the interpretation or application of this Convention and its Annexes, if the dispute cannot be settled primarily by means of negotiation; second, it prohibits a member state of the Council from voting if it is a party to the dispute; lastly, it provides for an appeal from the Council decision either to the ad hoc arbitral tribunal or to the ICJ, with such appeal required to be notified to the Council within 60 days of its decision.
Further, the nature of the Council’s adjudication under Article 84 has been persistently recognised as mediatory. The reasons for this include the flexibility and diplomatic accommodation of mutual interest of the parties by the Council during the mediatory process, which would not have been possible under standard judicial adjudication. This mediating intent is further evident from Article 6(1) of the ICAO Rules for the Settlement of Differences (Settlement Rules), which emphasises the Council’s power to invite the parties, during or before the start of the proceedings, to engage in direct negotiation if the Council deems there to be a probability of settling disputes through such means. Moreover, in the case of Cuba v. United States, the Council’s role as mediator was further reinforced when it was asked to intervene in the dispute between the parties without invoking its official jurisdiction under Chapter XVIII of the Chicago Convention.
Building on this understanding of the Council’s mediatory function, the case of India v. Pakistan illustrates how this role was tested and broadened in practice. In that instance, India adopted the defence of termination or suspension of the Chicago Convention and International Air Services Transit Agreement as a consequence of the armed conflict, while the Tashkent declaration signed between both countries served as the controlling authority between them. Moreover, India characterised the core dispute as one concerning treaty termination or suspension rather than interpretation or application, thereby placing it outside the purview of Article 84.
In contrast, the ICJ based its reasoning on the “character of the dispute”, holding that the Council’s competence under Article 84 depended on the character of the dispute submitted to it, and not on the substance of the defences or counterarguments on the merits raised by the respondents. Thus, the Court’s interpretation focused on the character of the dispute, whereby the parties were prevented from avoiding the Council’s jurisdiction by relying on external law; however, at the same time, the Council’s jurisdiction was extended to hear any dispute, including disputes involving external law, whose character aligned with the Chicago Convention, following the failure of the negotiation process.
Further, this interpretation was broadened in Qatar v. UAE, Bahrain, Egypt, and Saudi Arabia, wherein Qatar’s aviation claim was interconnected with the broader issues, including allegations of supporting terrorism and interference, which were said to have caused violations of the Riyadh Agreements, thereby rendering measures such as airspace bans lawful countermeasures under general international law, including the International Law Commission Articles on State Responsibility and principles of non-intervention, as upheld in Nicaragua v. USA.
However, the ICJ held that the Council’s competence is not affected by the merits of the arguments (such as measures under general public international law) submitted by the parties, as allowing this would empower parties to decide when a tribunal can or cannot hear a dispute simply by choosing the defence of their preference. Thus, this ruling resulted in two contradictory effects: first, the respondent party was prevented from blocking the council’s jurisdiction solely based on an external instrument defence. Second, the council’s position was upheld to engage substantively in issues beyond the Chicago Convention, thereby raising further questions about the council’s limits or competence.
Additionally, in the Qatar judgement, the ICJ propounded that the main consideration should be the “core claim and issues” submitted in the dispute: if these fall within the contours of the Chicago Convention and the subject matter, for instance, treaty application, comes within Article 84, then the Council has rightful jurisdiction over it. Thus, through the Qatar judgement, the Court interpreted the application of Article 84 based on the specific claims and issues presented in a given case and the subject matter that can be deduced from them.
The Interpretational Limitations under Article 84
The Council’s jurisdiction under Article 84, through the above-defined judgements, was substantially expanded. However, there were certain limitations to it, which were specifically highlighted by Justice Franklin Berman in his separate opinion in the Qatar case. These limitations clearly underscored the ambiguous sphere of application of Article 84 and the uncontrolled jurisdiction conferred on the Council by the ICJ. Considering the same, this head, specifically, through the lens and perspective of Justice Berman, highlights structural points of critical limitations under ICJ’s reasoning.
First, ambiguity over judicial or administrative power: The wording of Article 84 functions as a sui generis provision by allowing the Council, as an administrative body, to issue a decision in a dispute. However, the ICJ, by explicitly using the term ‘jurisdiction’ in favour of the Council, conferred upon it a set of judicial powers, which directly contrasts with Article 54 of the Convention, which defines the administrative nature of the Council. Moreover, this ambiguity is not confined solely to textual interpretation but also hinges upon the institutional legitimacy of the council, because Berman highlights the implications of conferring judicial status, noting that the members of the Councils are representative of the states, working under the instructions of their respective governments, which may further politicise and obstruct their adjudicatory role.
Second, confusion between disputes and disagreements: Article 84 is drafted to deal with the ‘disagreements’ among the parties; however, its heading mentions the term ‘dispute’. Berman contends that the primary purpose of the Council is to resolve disagreements among parties through its limited mediatory role, which, if not settled by agreement between them, may be referred to the Council by any state applying its own formal adjudicatory process. This textual ambiguity, however, has led to an excessive expansion of the Council’s role from resolving technical disagreements to adjudicating full-scale legal disputes, without any existence of guiding procedure. In this context, while the Permanent Court of International Justice (PCIJ), in the Mavrommatis Palestine Concessions judgement, held that a ‘dispute’ presupposes a ‘disagreement’, the two terms remain distinct and have not yet been clearly defined or distinguished by the ICJ.
Third, the right of any party to appeal: Article 84 not only limits the right of appeal to the parties involved in the dispute or the disagreements, but also extends it to any contracting state. Berman notes this as an unusual clause, since in the normal international dispute settlement process, the right to appeal is restricted to the states directly involved in the dispute. Further, Berman argues that if the ICJ seeks to recognise and discuss the Council’s jurisdiction as that of a full-fledged tribunal, then it erred in India’s and Qatar’s cases by ignoring the spherical application of appeal, which constitutes a fundamental element of jurisdiction.
Fourth, the ignorance of the main finding corollary: Berman highlighted that the main finding of the Court in both the India and Qatar caseswas that the Council’s competence to decide a dispute under Article 84 cannot be prohibited based on external defence raised by a party to the Chicago Convention. However, this resulted in the formation of the direct asymmetry by the Court, wherein, on one hand, the external laws defense by the parties was prohibited, while on the other hand, the court accepted the council’s jurisdiction to hear disputes involving the external law element. Thereby, ignoring the logical corollary that the Council cannot adjudicate upon treaties or defenses that fall outside the purview of the Chicago Convention.
Hence, Berman’s observations expose the interpretational ambiguities and overextensions in the application of Article 84. The ICJ’s conferment of judicial powers on a political representative body explicitly undermines procedural clarity and neutrality. These unresolved limitations render the Council’s jurisdiction structurally uncertain and prone to politicization.
The part II of this article proposes procedural and structural reforms to recalibrate ICAO Council jurisdiction under Article 84 by clarifying its administrative and adjudicatory roles, defining dispute stages, limiting appeal rights to parties, and constraining engagement with external international law, drawing on WTO, ICSID, IHR, and UNCLOS precedents.
Read part II here.
Abeer Sharma and Priyabrat Priyanshu are third-year law students at Rajiv Gandhi National University of Law, Punjab.
Picture Credit: IFATCA
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