COVID-19, China and International Aviation Law: A ticket to The Hague?

Since COVID-19 developed into a global crisis, scholars have argued about the possibility of suing China for its role in the spread of the pandemic (see e.g. here). On the international level, scholars have identified several legal bases on which to pursue claims, most notably Arts. 6 and 7 of the WHO’s International Health Regulations (IHR) (see here, here, and here) and furnished arguments for both contentious and advisory jurisdiction of the International Court of Justice (ICJ) (see here and here). This is especially tricky in the case of China, which has historically been reluctant to accept compulsory jurisdiction of international courts. However, there might be an additional route to bring this issue to an international body and eventually even to the ICJ: the Convention on International Civil Aviation.

Settling disputes under the Chicago Convention

This multilateral treaty, also known as the Chicago Convention, which entered into force in 1947, sets up principles for the international operations of civil aircraft. It also established an international organization, the International Civil Aviation Organization (ICAO), a specialized agency of the United Nations. Chapter XVIII (Arts. 84-88) of the Convention contains a mandatory dispute settlement procedure regarding interpretation or application of the Convention. The ICAO Council, the organization’s executive body, is competent to render a decision on such disputes. When the Council finds that a state is in “default” of its obligation, Art. 88 empowers it to suspend that state’s voting rights in the ICAO Assembly. Parties may appeal a Council decision to the ICJ or an arbitral tribunal (Arts. 84-85). The Council, however, is only competent if disputes “cannot be settled by negotiation” (Article 84 Chicago Convention). The jurisprudence of the ICJ with regard to similarly worded provisions in other conventions suggests that such wording does not refer to the hypothetical impossibility of a settlement but that States rather need to engage at least in a “genuine attempt to negotiate” (Georgia v. Russia, Preliminary Objections, §157).

From the Convention’s ratification until a few years ago, states used the Convention’s formal dispute settlement procedure only five times. Four of these cases involved restriction of overflight rights under the Chicago Convention and the related International Air Services Transit Agreement (India/Pakistan [1952], United Kingdom/Spain [1967], Pakistan/India [1971], and Cuba/United States [1998]), while one challenged airplane noise restrictions (United States/Fifteen European States [2000]). All of them were resolved informally before the Council issued a decision on the merits.

More recently, the number of cases increased. In 2016, Brazil brought a case before the Council concerning a 2006 collision of Brazilian and American aircraft, and in 2017, Qatar brought two cases before the Council concerning flight restrictions by Bahrain, Egypt, Saudi Arabia, and the United Arab Emirates. After the Council rejected the respondents’ preliminary objections, they appealed the jurisdictional decision to the ICJ, where it is still pending today.

It seems that most disputes, like the Convention itself, are of a technical nature. Further, the history of these cases and the Rules for the Settlement of Differences (whose Art. 14 allows the Council to request parties to negotiate at different stages of proceedings) suggest that the Council favours negotiations and informal resolutions rather than adversarial proceedings and binding decisions on the merits. However, the above-mentioned cases also show that the Council’s dispute resolution mechanism is able to deal with sensitive legal and political issues. Additionally, despite the Council’s political nature, the possibility of an appeal to the ICJ of any unfavourable decision guarantees at least the option for a truly judicial resolution of a dispute.

The Republic of China ratified the Chicago Convention in 1946 and the People’s Republic recognized its continued validity in 1974. Thus, the Chicago Convention could provide a jurisdictional basis for pertinent claims against China. The question remains, do claims concerning the current coronavirus pandemic have a nexus to international civil aviation?

Possible Violations of International Civil Aviation Law

In this regard, several provisions of the Chicago Convention seem worth investigating. At first glance, Art. 14 (“Prevention of spread of disease”) appears to be the most relevant. It provides that “[e]ach contracting State agrees to take effective measures to prevent the spread by means of air navigation of cholera, typhus (epidemic), smallpox, yellow fever, plague, and such other communicable diseases as the contracting States shall from time to time decide to designate, and to that end contracting States will keep in close consultation with the agencies concerned with international regulations relating to sanitary measures applicable to aircraft […]”.

The practice of State parties and of the ICAO Council itself suggests that there is no specific procedure in place for the designation of other diseases, but rather that Art. 14 encompasses any new communicable disease. Accordingly, the ICAO Council has acknowledged the “flexibility of the language” of Art. 14 and applied it to other diseases, such as the Avian Influenza, the SARS-CoV-1 and H1N1 virus (see ICAO, The Facilitation Manual, §8.6.3). Furthermore, Kuwait and Oman have restricted their air traffic due to the COVID-19 pandemic by explicitly basing themselves on Art. 14 (see COVID-19 NOTAMs published on ICAO’s website).

The obligation enshrined in Art. 14 arguably has to be read in conjunction with the standards and recommended practices (SARPs) in Annex 9, which give it practical effect. These are usually technical norms which the ICAO Council determines pursuant to Arts. 37 and 54 lit. l) and adopts as annexes to the Convention. Most importantly, China has not opted out of the standards relevant for the present situation, which are found in Annex 9 to the Convention. §8.12 Annex 9 stipulates: “Contracting States shall comply with the pertinent provisions of the International Health Regulations (2005) of the World Health Organization.” Here, Arts. 6 & 7 of the IHR come to mind. These provisions obligate states to notify the WHO of all events which may constitute a public health emergency of international concern within its territory and to share all relevant public health information with WHO if they have evidence of an unexpected or unusual public health event within its territory. Arguably, China violated Arts. 6 & 7 regarding COVID-19 (see, e.g. here and here) and the reference in Annex 9 could provide the ICAO Council jurisdiction to address this issue.

SARP-based claims? An uncharted route

Scholars disagree whether the standards set by the Council are binding on state parties to the Convention (see e.g. Cheng, Centrifugal Tendencies, p. 206 and Weber, The Chicago Convention, p. 21 arguing for their binding nature; while e.g. Buergenthal, Law-Making in the ICAO, p. 78 and Matte, The Chicago Convention, p. 378 dispute their status as hard law). As states can easily opt out within three months after the adoption of a SARP pursuant to Art. 38 of the Convention, a convincing argument can be made that states that do not opt out are bound by their terms. However, the SARPs in Annex 9 may not need to be binding to have practical effect. As the ICJ confirmed in its judgement in Whaling (§46), decisions and recommendations of organs of international organizations are relevant for the interpretation of the Convention if they “are adopted by consensus or by a unanimous vote” by the state parties, which is the case for Annex 9. Hence, the SARPs therein constitute a subsequent agreement regarding the interpretation of Art. 14 of the Convention pursuant to Art. 31 (3) a) Vienna Convention on the Law of Treaties (see cf. Nolte, 3rd report on subsequent agreements, §63).

Additionally, it is unclear what the “pertinent provisions of the International Health Regulations” pursuant to Annex 9 refer to. Black’s Law Dictionary defines “pertinent” as “pertaining to the issue at hand”. A narrow reading of this clause would restrict this reference to those provisions of the IHR that deal directly with aircraft, points of entry, and international conveyances. However, the respective treaty bodies formulated the IHR and Annex 9 to interconnect with each other to prevent airborne spread of diseases. Timely notification and information about health threats are thus a necessary prerequisite for specific measures, including those affecting aircraft. In short, in our view a state that violates essential IHR provisions such as the obligation to notify of Art. 6 cannot in good faith perform the “pertinent provisions” of Annex 9. Considering the present case of China’s conduct regarding COVID-19, such an expansive view is even more warranted considering that China is already bound by the IHR independently of Annex 9. The question of “pertinent provisions” merely determines over which violations of the IHR the ICAO Council has jurisdiction.

Conclusion

At first glance, it might seem far-fetched that a highly technical organization dedicated to regulating the minutiae of civil aviation is the proper forum for claims arising out of a viral pandemic. However, air travel vastly facilitated the transnational spread of the novel coronavirus and as timely notification and information-sharing pursuant to WHO Regulations could have slowed down or prevented it, the ICAO Council could serve as a proper forum for this dispute. As outlined above, pursuing claims against China through ICAO raises both procedural and substantive questions. The ICAO Council and the ICJ are the only ones who could deliver definite answers.