Fair Enough?: Procedural Fairness When the ICAO Council Exercises Its Judicial Function

Abstract

Since the International Court of Justice’s (ICJ’s) Qatar decision in 2020, practitioners have given significant attention to the attributes of the Council’s dispute resolution function. Detractors note that this duty of the Council is tantamount to a judicial function, so the Council must strictly observe safeguards for independence and impartiality on par with traditional judicial bodies. Others counter that the Council is a political body that sometimes operates in a quasijudicial capacity; thus, it is not transformed into a court of law with its attendant strictures. This article advances the post-Qatar discussion by digesting the ongoing dialogue among academics and practitioners over the Council’s judicial function. It fashions arguments for and against the Council’s independence and impartiality in the spirit of an adversarial dialogue before a judicial body, which is apropos for a discussion on dispute resolution. Arguments are thus put forward, leveraging political, policy, and legal concerns for decision-makers in the field. The article concludes that the Council’s dispute resolution framework raises concerns about fairness, with a possible ripple effect for other international bodies with a dispute-resolution function. Article 84 of the Chicago Convention, ICAO Council, Dispute Settlement, Judicial Function, Judicial Propriety