Abstract
International organizations can generally only work on the basis of legal powers that are attributed to them. Presumably, these powers emanate from the sovereign States that form the membership of such organizations.
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Notes
- 1.
See de Witte 1998, pp. 277–304.
- 2.
See Klabbers 2002, p. 60.
- 3.
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.
- 4.
The public key directory is designed and proposed to be used by customs and immigration authorities who check biometric details in an electronic passport, and is based on cryptography. It is already a viable tool being actively considered by the aviation community as a fail-safe method for ensuring the accuracy and integrity of passport information. For a detailed discussion on the public key directory see. Abeyratne 2005, pp. 255–268.
- 5.
Reparation for Injuries Suffered in the Service of the United Nations, advisory opinion, [1949] ICJ Reports 174.
- 6.
Id. at p. 198.
- 7.
Case 22/70, Commission v. Council (European Road Transport Agreement) [1971] ECR 273.
- 8.
See Seyersted 1963, p. 28.
- 9.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, 1996, p. 64.
- 10.
Id. p. 79.
- 11.
PCIJ Reports Series A, No. 10, p. 4.
- 12.
Id. p. 18.
- 13.
G. Gaja, First Report on Responsibility of International Organizations, A/CN.4/532, ILC 56th Session, p. 19 para. 35.
- 14.
In the case of agency, where an organization acts as the agent of States the answer would be in the affirmative, based on the fact that the control exercised by States over the Organization meant that prima facie, the acts of the Organization were attributable to the States. Id. Chapter 4, Section III(3)(ii).
- 15.
See Crawford 2002, p. 77.
- 16.
Article 16 of the ILC’s Articles of Responsibility provides that a State which aids or abets another State in the the commission of an internationally wrongful act by the latter is responsible for doing so if that State does so with the knowledge of the circumstances of such act and if the act would be internationally wrongful if committed by that State. This principle can be applied mutatis mutandis to an organization such as ICAO.
- 17.
See Sarooshi 2005, p. 110.
- 18.
The United States called for an international aviation authority with powers limited to the technical and consultative level in the economic field. See Proceedings of the International Civil Aviation Conference, Chicago, Illinois, November 1–December 7, 1944, Department of State Publication 2820, Washington, 1948, Vol. II, pp. 1317–1319.
- 19.
The United Kingdom aimed to give more discretionary authority in allocating routes, fixing rates and determining frequencies. See Proceedings of the International Civil Aviation Conference, id. at p. 63.
- 20.
The Canadian proposal envisioned the establishment of a democratic world air assembly in which each nation would have two votes. The Canadian proposal was for international regulation and not for international ownership or international operation. See Proceedings of the International Civil Aviation Conference, Supra note 281, at p. 67.
- 21.
The joint Australia–New Zealand proposal was for the establishment of international control and operation of all international airways, including international ownership. See Proceedings of the International Civil Aviation Conference, id., at pp. 77–80.
- 22.
See Schenkman 1955a, p. 125.
- 23.
Ibid.
- 24.
Resolution A1-9, ICAO Doc 7375-C/852, 1947 pp. 242–243. The same philosophy of universality was extended to the United Nations in general at the first session of the United Nations—that the United Nations looked forward to the time when universal membership in the system of the international organization established by the Charter of the United Nations would be possible and actual. Schenkman, supra note 285 at p. 87.
- 25.
Headquarters Agreement Between the International Civil Aviation Organization and the Government of Canada, ICAO Doc 9591. For further information on the agreement see Michael Milde, New Headquarters Agreement Between ICAO and Canada, (1992) Annals Air and Sp. L. Part II, 305–322.
- 26.
Headquarters Agreement id, Article 4(1) and (2).
- 27.
Id. Article 6.
- 28.
Id. Article 7.
- 29.
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.
- 30.
Reparation for Injuries Suffered in the Service of the United Nations, advisory opinion, [1949] ICJ Reports 174.
- 31.
Id. at p. 198.
- 32.
See Sarooshi 2005, p. 110.
- 33.
In United States v. Malekh et al., 32 ILR 308–334 (1960) where the defendant, a United Nations employee, was charged with espionage, the US District Court for the Southern District of New York held that neither the defendant nor his employer should have any claims to immunity as espionage was not a part of the functions of the United Nations.
- 34.
22 ILR 705-712.
- 35.
63 ILR 162-163: US District Court for the District of Columbia, 28 March 1978.
- 36.
Iran-United States Claims Tribunal v. A.S., 94 ILR 321–330.
- 37.
See MacKenzie 2008, Preface at p. 1.
- 38.
Max Hymans, President of the Second ICAO Assembly observed in 1948 that the standardization of equipment and procedures had progressed well and that ICAO had an incontestable authority in this respect. See Max Hymens, Results of a Meeting, Interavia 3, 8(August 1948) at p. 422.
- 39.
See. ICAO Doc 6968, A4-P/1 Report of the Council to the Assembly on the Activities of the Organization in 1949, 23 March 1950.
- 40.
Id. A4-P/1 23/3/50 at p. 1.
- 41.
Id. 2.
- 42.
ICAO’s Strategic Objectives pertain to safety—enhancement of global civil aviation safety; air navigation capacity and efficiency—increasing capacity and improving efficiency of the global civil aviation system; security and facilitation—enhancement of global civil aviation security and facilitation; economic development of air transport—fostering the development of a sound and economically-viable civil aviation system; and environmental protection—minimizing the adverse environmental effects of civil aviation activities.
- 43.
ICAO’s Technical Co-operation Programme provides advice and assistance in the development and implementation of projects across the full spectrum of civil aviation aimed at the safety, security, environmental protection and sustainable development of national and international civil aviation. The Programme is conducted under the broad policy guidance of the ICAO Assembly and of the Council. Subject to general guidance by the Secretary General, the Technical Co-operation Programme is executed by the Technical Co-operation Bureau (TCB).
- 44.
Hereafter referred to as PICAO. See Interim Agreement on International Civil Aviation, opened for signature at Chicago, December 7 1944, Article 3. Also in Hudson, International Legislation, Vol. 1X (1942–1945, New York) at p. 159.
- 45.
Id. Article 1 Section 4. It is interesting to note that PICAO was established as a provisional organization of a technical and advisory nature for the purpose of collaboration in the field international civil aviation. Vide Article 1 Section 1.
- 46.
Op. cit.
- 47.
Interim Agreement, supra note 44, Section 6.4.b(1).
- 48.
Id. Section 6.4.b(6). Also, T. Buergenthal, infra note 381
at 4, where the author states that PICAO’s functions were merely advisory, which precludes any imputation of legislative or quasi-legislative character to its Interim Council.
- 49.
Chicago Convention, supra note 1 Article 54.
- 50.
Rules for the Settlement of Differences, ICAO Doc 7782/2 (2ed. 1975).
- 51.
Id. Article 14(a).
- 52.
Buergenthal, infra note 66, 121 at p. 136.
- 53.
Michael Milde, Dispute Settlement in the Framework of the International Civil Aviation Organization (ICAO), Settlement of Space Law Disputes (1979) 87, at p. 88.
- 54.
J.C. Sampayo de Lacerda, A Study About the Decisions of the ICAO Council…111 Annals of Air and Space Law (1978) at p. 219.
- 55.
Gerald F. Fitzgerald, ICAO Now and in the Coming Decades, International Air Transport Law, Organization and Politics for the Future (N.M. Matte ed., 1976) 47 at p. 50.
- 56.
Schaake v. Dolly 85 Kan. 590., 118 Pac. 80.
- 57.
People v. Bradley 60 Ill. 402, at p. 405. Also, Bouviers Law Dictionary and Concise Encyclopedia 3 ed. Vol. 11, Vernon Law Book Co., New York 1914.
- 58.
Proceedings of the Council 2nd Session 2 September–12 December 1947, Doc 7248—C/839 at pp. 44–45.
- 59.
ICAO Resolutions A-13 and A-33 which resolved that SARPS relating to the efficient and safe regulation of international air navigation be adopted.
- 60.
ICAO Annex 9, Facilitation, Ninth Edition, July 1990, Foreword.
- 61.
Aeronautical Information Services Manual, ICAO Doc 8126-0 AN/872/3. ICAO Resolution A 1-31 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 infra note 280, at p. 10 also cites the definitions given in ICAO's Annex 9 of SARPS.
- 62.
Article 86 of the Convention.
- 63.
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.
- 64.
Michael Milde, The Chicago Convention—After Forty Years, 1X Annals Air and Space L. 119, at p. 126. See also Jacob Schenkman, International Civil Aviation Organization, op. Cit. at p. 163.
- 65.
Milde., id. 122.
- 66.
T. Buergenthal, Law Making in the International Civil Aviation Organization, Syracuse University Press: Syracuse, 1969 at p. 9.
- 67.
Paul Stephen Dempsey, Law and Foreign Policy in International Aviation, Transnational Publishers Inc., Dobbs Ferry New York 1987, at p. 302.
- 68.
Eugene Sochor, The Politics of International Aviation, McMillan, London, 1991, at p. 58.
- 69.
Ibid.
- 70.
Alexander Tobolewski, ICAO's Legal Syndrome… 1 V Annals Air and Space L. 1979, 349 at p. 359.
- 71.
See note 41.
- 72.
Interim Agreement, op.cit., Article 111, Section 6(i).
- 73.
Schenkman, op.cit. 160.
- 74.
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 p. 8.
- 75.
Article 84.
- 76.
Hingorani, Dispute Settlement in International Civil Aviation 14 Arb J 14, at p. 16 (1959). See also, Rules of Procedure for the Council, Fifth Edition 1980, Article 14.
- 77.
Article 87.
- 78.
Schenkman, op.cit. 162.
- 79.
Article 85.
- 80.
Rules of Procedure for the Council, op.cit. Section 1 V, 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.
- 81.
Rules of Procedure for the Council, op.cit. Section 1 V 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 1 V Section 2.
- 82.
Rules for the Settlement of Differences, ICAO Doc 7782/2 (2ed. 1975).
- 83.
Id. Article 14(a).
- 84.
Buergenthal, op.cit. note 66 at p. 136.
- 85.
Paul Stephen Dempsey, op.cit. at p. 295.
- 86.
Michael Milde, Dispute Settlement in the Framework of the International Civil Aviation Organization (ICAO), Settlement of Space Law Disputes (1979) 87, at p. 88.
- 87.
J.C. Sampayo de Lacerda, A Study About the Decisions of the ICAO Council…111 Annals of Air and Space Law (1978) at p. 219.
- 88.
Gerald F. Fitzgerald, ICAO Now and in the Coming Decades, International Air Transport Law, Organization and Politics for the Future (N.M. Matte ed., 1976) 47 at p. 50.
- 89.
The Convention on Nuclear Safety was adopted on 17 June 1994 by a Diplomatic Conference convened by the International Atomic Energy Agency at its Headquarters from 14 to 17 June 1994. See International Atomic Energy Agency, INFCIRC/449 5 July 1994.
- 90.
Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Over Water, signed at Moscow on 5 August 1963. UN Treaty Series, Volume 480, United Nations: 1965 at p. 45. In the 1970s the Disarmament Commission of the United Nations served as forum to coerce the super powers to amend the Partial Test Ban Treaty and transform it into a Comprehensive Test Ban Treaty. It will be recalled that, over the past decade, DPRK has been the focus of the United Nations in the area of nuclear weapons and arms control. In 1992 DPRK concluded a safeguards agreement with the International Atomic Energy Agency (IAEA) where DPRK accepted six IAEA inspections before it refused IAEA access to its Yongbyon Nuclear Reactor Complex, giving as a reason the fact that the Complex was a conventional military facility. Consequently, after the matter was referred by the IAEA to the Security Council of the United Nations, DPRK gave formal notice in 1993 of withdrawal from the Nuclear Non Proliferation Treaty. See United Nations Legal Order, Volume 1, Oscar Schachter and Christopher C. Joyner ed., American Society of International Law and Cambridge University Press: 1995, at pp. 314–315.
- 91.
Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Id. Article 1.1(a).
- 92.
Id., Article 1(a) and (b).
- 93.
Id., Article 2.
- 94.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature at London, Moscow, and Washington, 27 January 1967, 610 UNTS 205.
- 95.
Id. Article IX. The Space Liability Convention of 1972 elaborated the above liability provision in more detail, see Convention on International Liability for Damage Caused by Outer Space Objects, opened for signature at London, Moscow and Washington, 29 March 1972, 961 UNTS 187. The Moon Agreementof 1979 provides that in the exploration and use of the moon, States Parties shall take measures inter alia to avoid harmfully affecting the environment of the earth through the introduction of extra terrestrial matter or otherwise. See Agreement Governing the Activities of States on the Moon and other Celestial Bodies, opened for signature at New York on 18 December 1979, 1363 UNTS 3. UN Doc. A/RES/34/68 of 5 December 1079.
- 96.
A nuclear missile is a weapon which derives its destructive force from nuclear reactions of either nuclear fission or the more powerful fusion. As a result, even a nuclear weapon with a relatively small yield is significantly more powerful than the largest conventional explosives, and a single weapon is capable of destroying an entire city.
- 97.
The missile firings of DPRK prompted the unanimous adoption by the United Nations Security Council on 15 July 2006 of a Resolution imposing sanctions on DPRK’s dangerous weapons and condemning the missile tests. In response to a protest and consequent request by Japan of a resolution to be adopted, the Security Council discussed the missile firing for 10 days. The Resolution adopted requires all UN member States to stop imports and exports of any material or funds relating to the reclusive DPRK’s missile programmes or weapons of mass destruction. It also demands that DPRK suspend all activities related to its ballistic missile programme and re-establish a moratorium on the launch of missiles.
- 98.
The provisions of the Chicago Convention, which is an international treaty, are binding on contracting States to the Convention and therefore are principles of public international law. The International Court of Justice (ICJ), in the North Sea Continental Shelf Case (I.C.J. Report10, at p. 32), held that legal principles that are incorporated in Treaties become customary international law by virtue of Article 38 of the 1969 Vienna Convention on the Law of Treaties. See Vienna Convention on the Law of Treaties, United Nations General Assembly Document A/CONF.39/27, 23 May 1969.
- 99.
The ICAO Council is known to take a serious view of acts of States that constitute violations endangering the safety of international civil aviation. For example, the destruction of Flight KE 007 on 31 August 1983 prompted the Council to launch a full inquiry at which the President of the Council observed: “It falls clearly to ICAO … to focus its attention on gaining a full and complete technical understanding of how this tragic event occurred and to examine every element in ICAO’s existing technical provisions for promoting the safety of air navigation.” See C-MIN 137/15 contained in ICAO Doc C-MIN 137th Session, 1992 at p. 131.
- 100.
ICAO State Letter AN 13/29-98/95 of 16 December 1998.
- 101.
Britannica Book of the Year 1999 (Events of 1998), Encyclopaedia Britannica Inc: Chicago 1998 at p. 41.
- 102.
With regard to a later incident, it was reported by South Korean media that on September 9, 2004 there had been a large explosion at the Chinese/North Korean border, in North Korea’s second northernmost province of Ryanggang. This explosion left a crater visible by satellite and precipitated a large (2 mile diameter) mushroom cloud.
- 103.
The Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Indexes, United Nations: New York, 1983 at p. 31.
- 104.
Air traffic Services: Annex 11 to the Convention on International Civil Aviation, Thirteenth Edition, July 2001.
- 105.
Annex 15 contains Standards and Recommended Practices relating to Aeronautical Information Services.
- 106.
Barcelona Traction, Light and Power Company Limited, I.C.J. Reports, 1974, 253 at pp. 269–270.
- 107.
The International Law Commission was established by the General Assembly of the United Nations in 1947 with the declared objective of promoting the progressive development of international law and its codification. It consists of 34 members from Asia, Africa, The Americas and Europe. Most international treaties and conventions have been the result of the Commission’s work. See generally, B. Ramcharan, The International Law Commission, Leiden: 1977.
- 108.
Yearbook of International Law Commission 1976, Vol. II, Part One at p. 29.
- 109.
Parker van Zandt, Civil Aviation and Peace, Washington, 1944 at pp. 28, 93.
- 110.
Wings for Peace—Labour’s Post War Policy for Civil Flying, published by the Labour Party of England, April 1944, cited in van Zandt, supra note 372 at p. 1.
- 111.
Flight, Vol. XLV No. 1331, January 27, 1944, at pp. 97–98.
- 112.
See Warner 1942, p. V.
- 113.
See Sochor 1991, p. xvi.
- 114.
See Schenkman 1955b, p. 6.
- 115.
Id. vi.
References
Abeyratne RIR (2005) The E-passport and the public key directory—consequences for ICAO. Air and Space Law XXX(4–5):255–268
Crawford J (2002) The international law commission’s articles on state responsibility: introduction, text and commentaries. Butterworth, London, p 77
de Witte B (1998) Sovereignty and European integration: the weight of tradition. In: Slaughter A-M et al (eds) The European Court and National Courts: doctrine and jurisprudence. Hart Publishing, Oxford, pp 277–304
Klabbers J (2002) An introduction to international institutional law. Cambridge University Press, Cambridge, p 60
MacKenzie D (2008) ICAO, a history of the international civil aviation organization. University of Toronto Press, Toronto
Sarooshi D (2005) International organizations and their exercise of sovereign powers. Oxford University Press, Oxford, p 110
Schenkman J (1955a) International civil aviation organization. Librairie E. Droz, Geneve, p 125
Schenkman J (1955b) International civil aviation organization. Librairie E. Droz, Geneve, p 6
Seyersted F (1963) Objective international personality of intergovernmental organizations: do their capacities really depend upon the conventions establishing them? Copenhagen, p 28
Sochor E (1991) The politics of international aviation. Macmillan, London, p xvi
Warner E (1942) Foreword to international air transport and national policy. Lissitzyn O.J., New York, p V
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Abeyratne, R. (2015). Legal Legitimacy of ICAO and Direction to Be Taken. In: Regulation of Commercial Space Transport. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-12925-9_6
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