The specificity of settling of aviation disputes by the Council of the International Civil Aviation Organization in light of recent practice

Abstract

By 2019, only seven complaints had been referred to the Council of the International Civil Aviation Organization (ICAO Council), none of which reached the merits stage; in four cases, the Council issued a decision on lack of jurisdiction. The article highlights the growing importance of the Council in dispute resolution, particularly between 2022 and 2024. During this period, three new cases were initiated, one of which has already been declared admissible (and proceeded to the merits phase), while another was filed simultaneously against 37 Member States. In total, these three cases, due to the multiplicity of parties, involve at least 41 States (over 20% of ICAO members). This development represents a precedent-setting practice, further highlighting the need to assess the Council’s modus operandi. The article uses the dogmatic-legal method to analyse the provisions of international instruments and the jurisprudence of international bodies. It concludes that the Council remains a unique, atypical entity for the settlement of inter-state disputes. On the one hand, the possibility of appealing to the International Court of Justice and issuing decisions suggests that it should be considered as a judicial body. On the other hand, its operational peculiarities – confidentiality, the method of vote counting, the fact that Council members follow the instructions of their governments, and, finally, the tendency to avoid deciding  cases brought before it for as long as possible – make it difficult to attribute this body to the known dispute settlement mechanisms.