Foley Hoag Helps Qatar Win Sweeping Victories in Two Aviation Disputes Before the International Court of Justice

July 14, 2020

In two Judgments delivered today, the International Court of Justice (the “Court”) unanimously rejected the three grounds of appeal brought by the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates (“the Respondent States”) against the State of Qatar (“Qatar”) in the cases Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation and Appeal Relating to the Jurisdiction of the ICAO Council under Article II, Section 2, of the 1944 International Air Services Transit Agreement. The two cases are just the second and third time the Court has been called upon to exercise appellate review of decisions of the Council of the International Civil Aviation Organization (“ICAO Council”). The Court resoundingly affirmed that Qatar’s claims arising from the Respondent States’ blanket prohibition on all Qatar-registered aircraft from overflying their territories, and flying to or from their airports, come within the jurisdiction of the Council and can be decided on their merits, and are not merely a political dispute outside the Council’s jurisdiction.

In October 2017, Qatar challenged Respondent States’ actions in two separate proceedings before the ICAO Council, one under the Convention on International Civil Aviation (the “Chicago Convention”) and the other under the International Air Services Transit Agreement (“IASTA”). The Respondent States raised preliminary objections to the ICAO Council’s jurisdiction in both cases, which the ICAO Council dismissed in June 2018. They then appealed those decisions to the Court pursuant to Article 84 of the Chicago Convention and Article II, Section II of IASTA.

In its Judgements, the Court unanimously rejected all three of the Respondent States’ grounds of appeal, and found that the ICAO Council correctly determined that it has jurisdiction to hear Qatar’s claims. According to the Court, "the competence of ICAO unquestionably extends to questions of overflight of the territory of contracting States, a matter that is addressed in both the Chicago Convention and the IASTA."

Proceedings before the ICAO Council, which had been suspended while the Court heard Respondent States’ appeals, will now resume and the ICAO Council will hear the merits of Qatar’s claims. “The Court’s historic Judgments mark Qatar’s first victory before the Court against all four of the States that imposed discriminatory measures against it on 5 June 2017. We are proud to have assisted in this result and we look forward to the ICAO Council’s adjudication of the merits of Qatar’s claims,” said partner Constantinos Salonidis, who co-led Foley Hoag’s team advising Qatar in these proceedings with partner Lawrence (Larry) Martin.

Martin, who is also the Co-Chair of Foley Hoag’s International Litigation and Arbitration Department, added: “This is an important first step in holding Respondent States to account for their flagrant violations of international law. The Court has made clear that the day of reckoning is at hand.”

Qatar’s legal team before the Court was headed by its Agent, Dr. Mohammed Abdulaziz Al-Khulaifi, Legal Adviser to H.E. the Deputy Prime Minister and Minister for Foreign Affairs of the State of Qatar and Dean of Qatar University College of Law. Qatar’s legal team before the Court also included Emeritus Professor of International Law at Oxford University Vaughan Lowe; Ms Loretta Malintoppi of 39 Essex Chambers Singapore; Professor of International Law at the Universit√© libre de Bruxelles Pierre Klein; Dr. Ioannis Konstantinidis, Assistant Professor of International Law at Qatar University College of Law; and attorneys from Debevoise & Plimpton LLP. In addition to partners Salonidis and Martin, the Foley Hoag team included special counsel and Professor of International Law at the University of Louvain Pierre d’Argent; counsel Arsalan Suleman; and associates Ofilio Mayorga, Joseph Klingler, Peter Tzeng and Yasmin Al Ameen.

Foley Hoag specializes in the representation of sovereign States in disputes with other States and foreign investors before international courts and arbitral tribunals. It is consistently ranked in Band One, the highest level, for Public International Law by Chambers Global, which reports: “Foley Hoag LLP stands out because of its high level of competence and admirable record of cases handled and won.”