Latest in protracted dispute between Persian Gulf neighbors
Moves from Aviation Safety to Terrorism/Discrimination
From ICAO to ICJ
“Curiouser and curiouser!” Cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English)
This story has gone through several iterations. The “facts” seem to vary dramatically based on which news source reported. The case was once about blocking airspace and now the antagonists claim it’s about terrorism or CRED (International Convention on the Elimination of All Forms of Racial Discrimination). The disputants moved from ICAO, Montreal, Canada to the International Court of Justice, The Hague, Netherlands.
[The ICJ is the UN’s principal judicial body to settle legal disputes between member states and gives advisory opinions to authorized UN organs and specialized agencies.]
A dispute has been simmering, perhaps erupting, for over a year. Saudi Arabia, UAE, Egypt and Bahrain—have cut diplomatic ties with Qatar and announced a land, sea and airspace blockade over the terrorism support claims. The row stems from Qatar’s alleged funding for and support of several Islamic groups, notably Islamic State and the widely outlawed Moslem Brotherhood; the latter favors the overthrow of several hereditary rulers.
This international dispute, involving aviation, was posited before the International Civil Aviation Organization and the matter has been noted here:
- 4 Arab countries cut off flights to/from Qatar over “terrorism”; no US action yet
- How the Airspace Corridors came to be established- the penumbra of ICAO
- Arab Countries go to ICAO for resolution of AT dispute- judgment unlikely
- Jim Loos’ Interpretation of ICAO’s role in the Qatar-UAE dispute
- ICAO News: Qatar no succor & CORSIA still alive?
As explained in the above, ICAO’s power to compel is limited to punishments within the UN body and unfortunately, those threats have not deterred the “blockade.”
One report explained as follows:
“Bahrain, Egypt, Saudi Arabia and the UAE jointly filed appeals with the International Court of Justice against decisions of the International Civil Aviation Organisation (ICAO) on claims lodged by Qatar.
The four states maintain that the ICAO does not have the competence to rule in the case, which concerns issues that are entirely unrelated to civil aviation or aviation safety.
The dispute is over Qatar’s failure to honour its commitment to stop supporting terrorist entities and individuals, interfering in the affairs of its neighbours and to no longer use its government-controlled media networks to propagate hate speech, Bahrain’s non-resident ambassador to the Netherlands Shaikh Fawaz bin Mohammed Al Khalifa said.
The council’s decisions are moreover irregular, the countries said, and asked the ICJ to set them aside.
The final decision on these matters will be made by the ICJ. Pending the ICJ’s decision, the ICAO’s proceedings are suspended.
The four states have appointed agents to represent them before the ICJ. They are Shaikh Fawaz for Bahrain, Amgad Abdel Ghaffar for Egypt, Abdulaziz bin Abdullah bin Abdulaziz Abohaimed for Saudi Arabia and Saeed Ali Yousef Alnowais for the UAE.
The states reiterated their respect for ICAO, and their continuing commitment to ensure the safety of air navigation within the framework of ICAO.”
The filing by the 4 Arab states before the ICJ allowed Qatar to reply with its own claims:
“The State of Qatar respectfully requests the Court to indicate the following provisional measures:
(a) The UAE shall cease and desist from any and all conduct that could result, directly or indirectly, in any form of racial discrimination against Qatari individuals and entities by any organs, agents, persons, and entities exercising UAE governmental authority in its territory, or under its direction or control. In particular, the UAE shall immediately cease and desist from violations of the human rights of Qataris under the CERD, including by:
(i) suspending operation of the collective expulsion of all Qataris from, and ban on entry into, the UAE on the basis of national origin;
(ii) taking all necessary steps to ensure that Qataris (or persons with links to Qatar) are not subjected to racial hatred or discrimination, including by condemning hate speech targeting Qataris, ceasing publication of anti-Qatar statements and caricatures, and refraining from any other incitement to racial discrimination against Qataris;
(iii) suspending the application of its Federal Decree Law No. (5) of 2012, On Combatting Cybercrimes, to any person who “shows sympathy . . . towards Qatar” and any other domestic laws that (de jure or de facto) discriminate against Qataris;
(iv) taking the measures necessary to protect freedom of expression of Qataris in the UAE, including by suspending the UAE’s closure and blocking of transmissions by Qatari media outlets;
(v) ceasing and desisting from measures that, directly or indirectly, result in the separation of families that include a Qatari, and taking all necessary steps to ensure that families separated by the discriminatory measures are reunited (in the UAE, if that is the family’s preference);
(vi) ceasing and desisting from measures that, directly or indirectly, result in Qataris being unable to seek medical care in the UAE on the grounds of their national origin and taking all necessary steps to ensure that such care is provided;
(vii) ceasing and desisting from measures that, directly or indirectly, prevent Qatari students from receiving education or training from UAE institutions, and taking all necessary steps to ensure that students have access to their educational records;
(viii) ceasing and desisting from measures that, directly or indirectly, prevent Qataris from accessing, enjoying, utilizing, or managing their property in the UAE, and taking all necessary steps to ensure that Qataris may authorize valid powers of attorney in the UAE, renew necessary business and worker licenses, and renew their leases; and
(ix) taking all necessary steps to ensure that Qataris are granted equal treatment before tribunals and other judicial organs in the UAE, including a mechanism to challenge any discriminatory measures.
(b) The UAE shall abstain from any measure that might aggravate, extend, or make more difficult resolution of this dispute; and (c) The UAE shall abstain from any other measure that might prejudice the rights of Qatar in the dispute before the Court.”
Alice’s quote now makes much more sense, no?
Experts on matters aviation, ICAO, the Chicago Convention and all matters of treaties noted:
- ICAO has relevant power to arbitrate the right to overflight.
Qatar, Bahrain, Egypt and UAE (not Saudi) are parties to the International Air Services Transit Agreement, signed at the same time as the Chicago Convention, which grants the rights of overflight and non-traffic stops for scheduled air services among the parties. ICAO is the arbiter of disputes under this agreement.
2. ICAO deferred to deal with airspace issues before
Why the ICAO Council is agreeing to hear the airspace blockade issues in 2018 when in 2017 it reportedly decided the issues were out of its jurisdiction.
It appears that the four complainants seek some international condemnation and Qatar, too, seeks censure of its neighbors. The ICAO process did not provide an adequate sanction.
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