Abstract
One of the most significant aspects of the Chicago Convention is the formation of ICAO, to be comprised of an Assembly, a Council and such other bodies as may be deemed necessary. The Convention sets out in Article 44 the aims and objectives of the Organization as those that would develop the principles and techniques of international air navigation and foster the planning and development of international air transport. One of the mandatory functions of the Council, as laid out in Article 54(l) is to adopt international standards and recommended practices and for convenience, designate them as Annexes to the Convention, with the requirement that contracting States be notified of such action taken.
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Notes
- 1.
ICAO’s formation and purpose is given in the Proceedings of the International Civil Aviation Conference (Chicago, Illinois, November 1–December 7, 1944) as follows:
On November 1944, representatives of 52 nations came together at Chicago, to create a framework for the growth anticipated in world civil aviation. The Convention on International Civil Aviation, also known as the Chicago Convention, provided the establishment of the International Civil Aviation Organization (ICAO)—an international body to guide and regulate international civil aviation. ICAO came into existence on 4 April 1947, after 26 states had ratified the convention. Between 1944 and 1947 a provisional organization (PICAO) operated, the purpose of which was to be of a technical and advisory nature of sovereign States for the purpose of collaboration in the field of international civil aviation and to lay down the foundation for a new international organization to be headquartered in Montreal, Canada.
- 2.
Chicago Convention, supra, Article 43.
- 3.
Klebbers (2002). Organizations or groupings of States such as the European Union and the OSCE have caused some confusion as to their nature and composition. The most nebulous has been GATT (now WTO) whose status as an international organization simply cannot be determined with any precision, prompting scholars to regard it as a de facto organization rather than a de jure one.
- 4.
Abdullah E. El-Erian, Preliminary Report on the Second Part of the Topic of Relations Between States and International Organizations (1977/II, pt I), YbILC 139-155.
- 5.
Vienna Convention on the Law of Treaties, 1969, Article 2(1) (a)
- 6.
See the Permanent Court of International justice’s advisory opinion in Certain Questions Relating to Settlers in German origin in the territory ceded by Germany to Poland, [1923] Publ. PCIJ, Series B No. 6 at 22.
- 7.
See Strang (1962) at 107, where it is said that in 1962, some 20 different government departments in the United Kingdom were responsible for different international organizations.
- 8.
See for example Branno v. Ministry of War, decision of 14 June 1954 by the Italian Court of Cassation, 22 ILR 756-757 where the Court held that NATO’s member States are not legally entitled to exercise judicial functions with regard to any public law activity of the North Atlantic Treaty Organization linked with its organization or in regard to acys performed on the basis of sovereignty hold.
- 9.
The Council’s mandatory functions are to: (a) Submit annual reports to the Assembly; (b) Carry out the directions of the Assembly and discharge the duties and obligations which are laid on it by this Convention; (c) Determine its organization and rules of procedure; (d) Appoint and define the duties of an Air Transport Committee, which shall be chosen from among the representatives of the members of the Council, and which shall be responsible to it; (e) Establish an Air Navigation Commission, in accordance with the provisions of Chapter X; (f) Administer the finances of the Organization in accordance with the provisions of Chapters XII and XV; (g) Determine the emoluments of the President of the Council; (h) Appoint a chief executive officer who shall be called the Secretary General, and make provision for the appointment of such other personnel as may be necessary, in accordance with the provisions of Chapter XI; (i) Request, collect, examine and publish information relating to the advancement of air navigation and the operation of international air services, including information about the costs of operation and particulars of subsidies paid to airlines from public funds; (j) Report to contracting States any infraction of this Convention, as well as any failure to carry out recommendations or determinations of the Council; (k) Report to the Assembly any infraction of this Convention where a contracting State has failed to take appropriate action within a reasonable time after notice of the infraction; (l) Adopt, in accordance with the provisions of Chapter VI of this Convention, international standards and recommended practices; for convenience, designate them as Annexes to this Convention; and notify all contracting States of the action taken; (m) Consider recommendations of the Air Navigation Commission for amendment of the Annexes and take action in accordance with the provisions of Chapter XX; (n) Consider any matter relating to the Convention which any contracting State refers to it.
- 10.
Article 86 of the Convention.
- 11.
Article 12 stipulates that over the high seas, the rules in force shall be those established under the Convention, and each contracting State undertakes to insure the prosecution of all persons violating the applicable regulations.
- 12.
- 13.
Milde, Id., at 122.
- 14.
Buergenthal (1969) at 9.
- 15.
Dempsey (1987) at 302.
- 16.
Sochor (1991) at 58.
- 17.
Ibid.
- 18.
Tobolewski (1979) at 359.
- 19.
Assembly Resolutions in Force (as of 5 October 2001), ICAO Doc 9790, at p. VII-1. Also of general interest is UN General Assembly Resolution 56/88, Measures to Eliminate International Terrorism, adopted at the Fifty Sixth Session of the United Nations which calls upon States to take every possible measure in eliminating international terrorism. See A/RES/56/88, 24 January 2002.
- 20.
ICAO News Release PIO 02/2002.
- 21.
A35-9, Appendix E, Resolving Clause 4; and Recommended Practice 2.4.5 of Annex 17 — Security).
- 22.
Resolution A36-20, A36-WP/336 and Plenary Action Sheet No. 3.
- 23.
Resolution A 36-20, Consolidated statement on the continuing CA policies related to the safeguarding of international civil aviation against acts of unlawful interference, Report of the Executive Committee (Report Folder) Assembly, Thirty –sixth Session, A36—WP/336, p/46, at 16-2.
- 24.
The 36th Session of the ICAO Assembly was informed that, There are some 150 certified auditors on the USAP roster, from 59 States in all ICAO regions. The participation of certified national experts in the audits under the guidance of an ICAO team leader has permitted the programme to be implemented in a cost-effective manner while allowing for a valuable interchange of expertise.
- 25.
Resolution A 35-6, Operative Clause 7.
- 26.
Article 38 provides: inter alia that any Contracting State can file a difference to a standard and notify the Council which in turn is required to make immediate notification to all other States of the difference which exists between one or more features of an international standard and the corresponding national practice of that State.
- 27.
Although Jacob Schenkman, in his well documented and logically reasoned treatise on ICAO states that “The Council has been entrusted with duties, powers and functions…” he does not give a single example of such a power. See Schenkman (1955) at 158.
- 28.
Article 49 of the Convention.
- 29.
Article 49 h).
- 30.
Black (1990) at 673.
- 31.
Id. at 1189.
- 32.
See de Witte (1998) at pp. 277–304.
- 33.
Klabbers (2002) at p. 60.
- 34.
Seyersted (1963) at p. 28.
- 35.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, 1996, p. 64.
- 36.
Id. p. 79.
- 37.
PCIJ Reports Series A, No. 10, p. 4.
- 38.
Id. p. 18.
- 39.
See Sarooshi (2005) at p. 110.
- 40.
Resolution A 35-6, Operative Clause 7.
- 41.
Article 38 provides: inter alia that any Contracting State can file a difference to a standard and notify the Council which in turn is required to make immediate notification to all other States of the difference which exists between one or more features of an international standard and the corresponding national practice of that State.
- 42.
Although Jacob Schenkman, in his well documented and logically reasoned treatise on ICAO states that “The Council has been entrusted with duties, powers and functions…” he does not give a single example of such a power. See Capt. Jacob Schenkman, International Civil Aviation Organization, Librairie E. Droz: Geneve, 1955 at 158.
- 43.
Article 49 of the Convention.
- 44.
Article 49 h).
- 45.
Black (1990) at 673.
- 46.
Id. at 1189.
- 47.
See de Witte (1998) at pp. 277–304.
- 48.
Klabbers (2002) at p. 60.
- 49.
Seyersted (1963) at p. 28.
- 50.
Competence of the ILO to regulate the Conditions of Labour of Persons Employed in Agriculture, Advisory Opinion [1922] Publ. PCIJ Series B, nos. 2&3.
- 51.
Reparation for Injuries Suffered in the Service of the United Nations, advisory opinion, [1949] ICJ Reports 174.
- 52.
Id. at p. 198.
- 53.
Case 22/70, Commission v. Council (European Road Transport Agreement) [1971] ECR 273.
- 54.
Seyersted (1963) at p. 28.
- 55.
See Sarooshi (2005) at p. 110.
- 56.
Sochor (1991), p. xvi.
- 57.
van Zandt (1944) at pp. 28, 93.
- 58.
The Council of the International Civil Aviation Organization resolved, in adopting Annex 2 in April 1948 and Amendment 1 to the said Annex in November 1951, that the Annex constitutes Rules relating to the flight and manoeuvre of aircraft within the meaning of Article 12 of the Convention. Over the high seas, therefore, these rules apply without exception.
- 59.
Article 37 of the Chicago Convention confirms that each Member State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. Article 38 gives any State the opportunity, if it finds it impracticable to adhere to ICAO’s policy to file differences by giving notice to ICAO of the difference between what is recommended or required by ICAO and the practice prevalent in that State.
- 60.
The ICAO Assembly, at its 35th Session held in Montreal from 28 September to 8 October 2004, defined a Standard “as any specification…the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which member States will conform in accordance with the Chicago Convention.; in the event of impossibility of compliance, notification to the Council is compulsory under Article 38 of the Convention. The same resolution describes a Recommended Practice as any specification for physical characteristics… which is recognised as desirable and one that member States will endeavour to conform to” See Assembly Resolutions in Force, (As of 8 October 2004) ICAO Doc 9848, II-2 Appendix A.
- 61.
Buergenthal (1969), pp. 98–107.
- 62.
See Whiteman (1968) at p. 404.
- 63.
Chicago Convention, supra note 2, Article 54 (l).
- 64.
Kirgis (1995), p. 109 at 126. There is a similar process in operation under the World Meteorological Organization, whereby a certain amount of decision making authority is given to the WMO Congress. Article 9 (a) of the WMO Convention provides that all members shall do their utmost to implement the decisions of the Congress. Article 9(b) allows any member to opt out by notifying the Secretary General, with reasons if it finds it impracticable to give effect to the technical requirement in question. WMO Convention, reprinted in International Organization and Integration, (P Kapteyn et al. eds) 2nd Revised Edition, 1981, pt. I.B.1.9 a. Also in WMO Basic Documents, No. 1. WMO Doc. No. 15 at 9 1987.
- 65.
The four Strategic Objectives are: Safety—Enhance global civil aviation safety; Security—Enhance global civil aviation security; Environmental Protection—Minimize the adverse effect of global civil aviation on the environment; and Sustainable Development of Air Transport.
- 66.
Doc 9626 Second Edition: 2004.
- 67.
Doc 9562 Second Edition: 2006.
- 68.
ICAO’s Policies and Charges for Airports and Air Navigation Services, Doc 9082.
- 69.
In the new world order, judges of a particular jurisdiction keep in close contact with their counterparts in other jurisdictions across the seas, which enables them to infuse global trends into their judgements; ministers keep in touch with their counterparts overseas, making them aware of the single thread of statecraft that comes with globalization; and police investigators collaborate closely with other police officers across the world to make inroads into the solving of crime. See Slaughter (2004) at 1.
- 70.
ICAO’s Mission and Vision Statement calls for ICAO to work to achieve its vision of safe, secure and sustainable development of civil aviation through cooperation amongst its Contracting States.
- 71.
Article 63 provides that (1) the Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57, defining the terms on which the agency concerned shall be brought into relationship with the United Nations. Such agreements shall be subject to approval by the General Assembly. (2) It may co-ordinate the activities of the specialized agencies through consultation with and recommendations to such agencies and through recommendations to the General Assembly and to the Members of the United Nations.
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Abeyratne, R. (2012). ICAO as the Global Forum for Air Transport. In: Aeronomics and Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-28945-3_7
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