Abstract
Any State which finds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within sixty days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take.
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Notes
- 1.
Article 54 of the Chicago Convention contains the mandatory functions of the Council. Article 54 (l) states that the Council shall adopt, in accordance with the provisions of Chapter VI of the Convention, international standards and recommended practices; for convenience, designate them as Annexes to this Convention; and notify all contracting States of the action taken.
- 2.
See Abeyratne (2012). Also by the same author, Aviation Security Law, Springer: Heidelberg, 2010.
- 3.
Beginning with Resolution A1-13( Implementation of Standards and Recommended Practices); A1-25 (Future Work of the Technical Divisions; A1-31 (Definition of International Standards and Recommended Practices); A2-42 (Submission of Comments for Proposals on Standards and Recommended Practices); A4-8 (Annexes Prescribing Standards Related to Facilities); A7-9 Notification of Differences From International Standards) and A10-16 (Allocation of Effort Between the Formulation of Standards and Regional Plans and Their Implementation).
- 4.
Resolution A21-21 in Appendix D merely reiterated the significance of Articles 37 and 38 and stated that States should be encouraged to adhere to SARPs and PANs and that their ability to comply with Articles 37 and 38 should be monitored.
- 5.
Aust (2000) at 348.
- 6.
See Whiteman (1968) at p. 404
- 7.
Chicago Convention, Preamble supra note 1, Article 54 (l).
- 8.
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.
- 9.
Aeronautical Information Services Manual, ICAO Doc 8126-0 AN/872/3.
- 10.
- 11.
Id. p. 210.
- 12.
Sochor (1991), at 58.
- 13.
Chicago Convention, Preamble supra note 1, Article 87.
- 14.
Schenkman (1955), at p. 162.
- 15.
Chicago Convention, Preamble supra note 1, Article 54 (n).
- 16.
Schaake v. Dolly 85 Kan. 590, 118 Pac. 80.
- 17.
People v. Bradley 60 Ill. 402, at 405. Also, Bouviers Law Dictionary and Concise Encyclopedia 3 ed. Vol 11, Vernon Law Book Co., New York 1914.
- 18.
Proceedings of the Council 2nd Session 2 September–12 December 1947, Doc 7248-C/839 at 44–45.
- 19.
ICAO Resolutions A-13 and A-33 which resolved that SARPS relating to the efficient and safe regulation of international air navigation be adopted.
- 20.
ICAO Annex 9, Facilitation, Foreword.
- 21.
Aeronautical Information Services Manual, ICAO Doc 8126-0 AN/872/3. ICAO Resolution A1-31 defines a Standard as any specification for physical characteristics…the uniform application of which is recognised as necessary… and one that States will conform to. 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… Buergenthal (1969), at 10 also cites the definitions given in ICAO’s Annex 9 of SARPS.
- 22.
Article 86 of the Convention.
- 23.
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.
- 24.
Milde (1989), op. cit. 122.
- 25.
Buergenthal (1969), at 9.
- 26.
Dempsey (1987), at 302.
- 27.
Sochor (1991), at 58.
- 28.
Ibid.
- 29.
Tobolewski (1979) at 359.
- 30.
See note 41.
- 31.
Interim Agreement, Article 111, Section 6(i).
- 32.
Schenkman (1955), 160.
- 33.
See statement of R. Kidron, Israeli Head Delegate, Statement of the Second Plenary Meeting of the Seventh Assembly on June 17, 1953, reported in ICAO Monthly Bulletin, August–October 1953, at 8.
- 34.
Article 85.
- 35.
Rules of Procedure for the Council. op. cit. Section 1V, Rule 24 (e). Also, Article 54 (n) stipulates that one of the mandatory functions of the Council is to consider any matter relating to the Convention which any contracting State refers to it.
- 36.
Rules of Procedure for the Council, op. cit. Section 1V Rule 24 (f). The two additional multilateral agreements stemming from the Convention and providing for the exchange of traffic rights—the Air Services Transit Agreement and the Air Transport Agreement, also contain provisions that empower the ICAO Council to hear disputes and “ make appropriate findings and recommendations… see Air Services Transit Agreement Article 11 Section 1, and the Air Transport Agreement Article 1V Section 2.
- 37.
ICAO Doc 9734, AN/959, 2nd ed. (2006) Part A.
- 38.
Sometimes referred to as Regional Safety Oversight Agencies (RASAs).
- 39.
3. The ICAO Council is a permanent body responsible to the Assembly. It is composed of 36 Member States elected by the Assembly. In electing the members of the Council, the Assembly gives adequate representation to States of chief importance to air transport; States not otherwise included which make the largest contribution to the provision of facilities for international air navigation; and States not otherwise included whose designation will ensure that all the major geographic areas of the world are represented on the Council. The mandatory and permissive functions of the Council are stipulated in Articles 54 and 55 of the Convention on International Civil Aviation respectively. The Council has its genesis in the Interim Council of the Provisional International Civil Aviation Organization (PICAO). PICAO occupied such legal capacity as may have been necessary for the performance of its functions and was recognized as having full juridical personality wherever compatible with the Constitution and the laws of the State concerned. See Interim Agreement on International Civil Aviation, opened for signature at Chicago, December 7 1944, Article 3. Also in Hudson, International Legislation, Vol 1X, New York: 1942–1945, at 159. For a detailed discussion on the functions of the Council See Abeyratne (1992).
- 40.
C-WP/13339, 12/05/09.
- 41.
An agency is a consensual relationship created by contract or law where the Principal grants authority to agents to act on behalf of or under the control of the Principal to deal with a third party.
- 42.
ICAO Doc 9734 AN/959 Part B (The Establishment and Management of a Regional Safety Oversight System).
- 43.
For a detailed discussion on safety management systems see Abeyratne (2007).
- 44.
Id. Para 2.2.4 at pp. 2–3.
- 45.
Id. Para. 2.2.5 at pp. 2–4.
- 46.
Including meteorological information, aeronautical telecommunications, search and rescue services, charts and the distribution of information.
- 47.
Id. Para. 2.4.5 at pp. 2–6.
- 48.
Id. Para 3.5 at pp. 3–5.
- 49.
The Comprehensive Regional Implementation Plan for Aviation Safety in Africa (AFI Plan) was developed by ICAO with a view to addressing the various concerns expressed by the ICAO Council on the status of safety of aircraft operating in the African and Indian Ocean Region.
- 50.
The IATA Operational Safety Audit (IOSA) programme is an internationally recognised and accepted evaluation system designed to assess the operational management and control systems of an airline. IOSA’s quality audit principles are designed to conduct audits in a standardised manner. With the implementation and international acceptance of IOSA, airlines and regulators achieve the following benefits: a reduction of costs and audit resource requirements for airlines and regulators; continuous updating of standards to reflect regulatory revisions and the evolution of best practices within the industry; a quality audit programme under the continuing stewardship of IATA; accredited audit organisations with formally trained and qualified auditors; accredited training organisations with structured auditor training courses; a structured audit methodology, including standardised checklists; elimination of audit redundancy through mutual acceptance of audit reports; and development of auditor training courses for the airline industry.
- 51.
For a discussion on the Roadmap, see Abeyratne (2009a), pp. 29–36.
- 52.
As per European Regulation 3911/11.
- 53.
EASA was created by Regulation EC No. 1592/2002 by the European Parliament and the Council of the EU.
- 54.
Regulation EC No. 2111/2005 requires that certificates and licences issued in the EC member States have to conform to international safety standards contained in the Chicago Convention and its Annexes.
- 55.
For a more in depth discussion on the powers of the ICAO Council in the field of Safety, See Abeyratne (2009b) at 196–206.
- 56.
Ibid.
- 57.
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.
- 58.
ICAO News Release PIO 02/2002.
- 59.
Ibid.
- 60.
A35-9, Appendix E, Resolving Clause 4; and Recommended Practice 2.4.5 of Annex 17—Security).
- 61.
Resolution A36-20, A36-WP/336 and Plenary Action Sheet No. 3.
- 62.
Resolution A36-20, 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.
- 63.
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.
- 64.
Resolution A35-6, Operative Clause 7.
- 65.
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.
- 66.
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. Schenkman (1955) at 158.
- 67.
Article 49 of the Convention.
- 68.
Article 49 (h).
- 69.
Deluxe Black’s Law Dictionary, Sixth Edition, St. Paul. Minn: 1009, at 673.
- 70.
Id. at 1189.
- 71.
See de Witte (1998) at pp. 277–304.
- 72.
Klabbers (2002) at p. 60.
- 73.
Seyersted (1963), at p. 28.
- 74.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, 1996, p. 64.
- 75.
Id. p. 79.
- 76.
PCIJ Reports Series A, No. 10, p. 4.
- 77.
Id. p. 18.
- 78.
Resolution A35-6, Operative Clause 7.
- 79.
See Sarooshi (2005) at p. 110.
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Abeyratne, R. (2014). Article 38 Departures from International Standards and Procedures. In: Convention on International Civil Aviation. Springer, Cham. https://doi.org/10.1007/978-3-319-00068-8_39
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