Part I of this article examines how ICJ jurisprudence has expanded the ICAO Council’s jurisdiction under Article 84, critiques this expansion through Justice Franklin Berman’s perspective, and exposes structural ambiguities concerning the Council’s role, limits, and legitimacy, setting the groundwork for proposing calibrated jurisdictional and procedural reforms.
The Remedial Measures for Calibrating the Council’s Jurisdiction
As already highlighted in the previous head, the Council’s jurisdiction under Article 84 has become increasingly ambiguous and expansive, necessitating clarification through a clear demarcation of the Council’s jurisdictional and adjudicatory powers. Considering this, the present section proposes specific measures, supported by precedents, involving international bodies such as the WTO, ICSID, IHR, and UNCLOS, which provide specific parallel solutions to deal with jurisdictional problems and can be adopted to rectify the limitations highlighted by Justice Berman and ultimately provide a transparent framework under Article 84.
1. Rectifying the Administrative v. Judicial Power Confusion
The dual nature of the Council, wherein administrative powers are conferred under Article 54, while the ICJ confers a judicial character upon the Council through the use of terms such as “jurisdiction, confuses the Council’s actual role. Further, this ambiguity is not just limited to the textual inconsistency but also affects the institutional legitimacy of the council, by conferring a judicial-style authority on a politically representative body, raising concerns about politicization and neutrality. These issues can be addressed through the precedent of the World Trade Organization Dispute Settlement Body (DSB), wherein, under Article 2(4) of the Dispute Settlement Understanding (DSU), the DSB, comprising representatives of member states, is empowered to take decisions through negative consensus, maintaining its administrative structure.
At the same time, under Article 6 of the DSU, the DSB also establishes panels to determine disputes between the contracting parties, and appeals from those decisions may be made to the appellate body, as prescribed under Article 17 of the DSU. This clear bifurcation of administrative and judicial roles results in less uncertainty and tensions between both the contracting parties and the member state representatives.
A parallel solution can be applied with respect to ICAO, by first retaining the Council’s administrative role and explicitly highlighting its adjudicatory function. To implement this, an amendment could be introduced under the ICAO (Settlement Rules), which provides the procedure for ICAO to settle the disputes. Rule 2 of the Settlement Rules provides definitions, and a new subsequent rule, Rule 2bis, can be introduced, working as a declaratory provision stating: “For the purposes of these Rules, the Council exercises administrative adjudicatory functions in the settlement of disputes under Article 84 of the Chicago Convention”.
2. Clarifying the Disputes and Disagreements
The heading of Article 84 uses the term “dispute”; however, the procedure outlined under it concerns the adjudication of “disagreements” among the parties, which cannot be resolved at the negotiation stage. This creates confusion regarding the nature of the issues resolved by the Council. This problem can be addressed through the precedent of Article 56 of the International Health Regulations (IHR), which provides a three-tiered structure for interstate disagreements concerning the application or interpretation of the IHR.
The IHR’s three-tiered structure comprises: Tier 1, wherein a rapid, non-binding mechanism is designed to resolve low-intensity disagreements amongst the parties through mediation or conciliation. Further, under Tier 2, the parties, if their dispute is unresolved, refer the dispute to the Director-General, who may appoint an independent panel, empowered to provide binding decisions. At last, under Tier 3, if the parties are unsatisfied with the panel’s decision, they can approach the judicial/arbitral bodies, such as the ICJ and Permanent Court of Arbitration, whose award works as a binding and final authority over the parties.
Under Article 84, a similar structure already exists, wherein parties may first resort to negotiations, second, to the Council and finally to the ICJ or the appellate tribunal. However, the issue lies in the lack of clarity within this structure. To address this, Article 84 could be extended by introducing Article 84bis, clarifying the nature of adjudication by designing negotiation as the first stage (involving disagreements), Council adjudication as the second stage (involving disputes with binding effect, and ICJ or tribunal proceedings as the third stage (functioning as the final appellate tier akin to Article 56 of the IHR).
3. The Solution to the Appeal Rights to Non-Parties
Under Article 84, the right of appeal against the Council’s decision is conferred not only on the parties to the dispute but also to any contracting state of the Chicago Convention. This is an unusual clause because, under the normal jurisdiction principle, the right of appeal works as a crucial concept. Furthermore, the ICJ’s disregard of this aspect, despite recognising the Council’s judicial powers, creates ambiguity.
This issue can be rectified using the precedent of the International Centre for Settlement of Investment Disputes (ICSID) Convention, 1966. Earlier, under Article 52(1), third parties, in addition to the necessary parties to the dispute, were empowered to initiate annulment proceedings against the original arbitration. However, this was later restricted through the ICSID Arbitration Rules, wherein ‘either necessary party’ to the disputes were only permitted to advance proceedings, limiting the right to file an annulment proceeding to the necessary parties only.
A similar reform can be applied to the Council’s functioning by amending Article 84, wherein the disputed phrase “on the application of any State concerned in the disagreement” could be specifically amended to read “on the application of any State that is party to the disagreement”. Through this amendment, only the parties to the disagreement would be empowered to file an appeal, thereby aligning with normal jurisdictional principles and enhancing the transparency of the Council’s judicial powers.
4. The Remedial Measure for the Corollary Problem
The ICJ upheld the Council’s jurisdiction to decide a dispute even when a party raised a defense based on external law. However, the Court ignored the resultant asymmetrical jurisdictional expansion, wherein parties were prohibited from raising jurisdictional objections based on external law, while the Council was permitted to adjudicate upon such law, thereby leaving a grey area concerning the Council’s jurisdiction to decide disputes involving other international laws. This ambiguity can be rectified by reference to Article 7.1 of the WTO Dispute Settlement Understanding (DSU) and the decision of the Annex VII Tribunal in the Arctic Sunrise Arbitration under the United Nations Convention on the Law of the Sea (UNCLOS).
Article 7.1 of the DSU establishes the WTO panels’ “terms of reference”, wherein it may circumscribe the issues to be decided under its jurisdiction. The WTO panels, in line with the competence-competence doctrine, are empowered to make rulings on their competence concerning their jurisdiction. However, such examination is limited in scope under external law and is undertaken only to the extent necessary for resolving the claims.
Further, under the Arctic Sunrise Arbitration, the Annex VII tribunal established the “ancillary jurisdiction doctrine”, involving two tests: first, the Necessary and Ancillary Test and Second, the Incidental Questions Doctrine. Under the former, the Tribunal restricted its examination of external law to what was strictly necessary for UNCLOS determination and for resolving matters under it. Under the latter, the Tribunal was empowered to examine incidental issues only when required to fulfil its function and ancillary to its primary jurisdictional mandate.
A similar application can be observed in the Council’s functioning by way of a two-stage mechanism. Stage 1 can function as a mandatory preliminary phase, where the Council must adjudicate upon its competence before substantive proceedings, and this phase should occur within 60 days of the respondent’s memorial submission, thereby mirroring the ICSID Arbitration Rule 41(3). Further, under Stage 2, the Council may examine external law only to the extent strictly necessary to resolve disputes falling within the Chicago Convention’s interpretation or application.
Conclusion
In conclusion, Article 84 of the Chicago Convention, though functioning as the primary provision for dispute settlement within the ICAO, suffers from interpretational uncertainties and the jurisdictional overreach as evident from the India v. Pakistan and the Qatar v. UAE, Bahrain, Egypt, and Saudi Arabia cases. The ICJ’s expansive interpretation, while promoting access to justice, has blurred the boundary between the Council’s administrative and judicial functions, thereby risking politicization and procedural inconsistency. Justice Berman’s criticism underscores the urgent need for structural clarification through procedural bifurcation, definitional precision between “dispute” and “disagreement,” and calibrated restrictions on appeal rights. Drawing from WTO, ICSID, and UNCLOS examples, the proposed reforms aim to recalibrate Article 84’s scope, while maintaining an equilibrium between specialized aviation adjudication and wider international legal order. Absence of such procedural calibration, with sustained jurisdictional expansion, can risk eroding the council’s institutional legitimacy by converting a politically representative administrative body into an ill-suited quasi-judicial forum.
Read part I 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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