Current Legal Problems in Interpreting International Civil Aviation Law
DOI:
https://doi.org/10.6000/2817-2302.2023.02.08Keywords:
Chicago Convention, Annexes to the Chicago Convention, ICAO, ICAO Resolutions, United Nations, Aviation lawAbstract
The progress of international civil aviation law is anchored on two main sources: The Convention on International Civil Aviation (Chicago Convention); and Resolutions adopted by the Assembly of the International Civil Aviation Organization (ICAO). These two sources give rise to subsidiary guidance in the form of Annexes to the Convention and manuals on various subjects that address international civil aviation. However, there is no cohesive link between the two sources as well as there being no formal recognition by ICAO of the legal status of Assembly Resolutions, although such resolutions are adopted at each ICAO Assembly with monotonous regularity. Added to this conundrum is the lack of clarity in the interpretation of the Convention itself, which empowers the Council of ICAO to adopt Annexes to the Convention (which, according to the Convention are so named for convenience) while at the same time taking away any legal obligation of the member States to adhere to the Standards contained in the Annexes. This article discusses the nature of international civil aviation law against the backdrop of treaty law and examines the legal issues that arise from the interpretation of the Chicago Convention and Resolutions adopted by the ICAO Assembly.
References
Ian Brownlie, Principles of Public International Law, Fourth Edition, Clarendon Press, Oxford, 1990, p. 691. Also Malcolm N. Shaw, International Law, Fifth Edition, Cambridge University Press, 2003, at p. 110.
Ahmad Alsharqawi, Ahmad Bani Hamdan, Moh’d Abu Anzeh, The Role of General Assembly Resolutions to the Development of International Law, Journal of Legal, Ethical and Regulatory Issues, 2021 Vol: 24 Issue: 2 https://abacademies.org/articles/the-role-of-general-assembly-Resolutions-to-the-development-of-international-law-10426.html
630 F 2d. 876.
C. Donald Johnson Jr, Filartiga v. Pena-Irala: A Contribution to the Development of Customary International Law by a Domestic Court. See https://digitalcommons.law.uga.edu/ cgi/viewcontent.cgi?article=1950&context=gjicl.
Article 43 says: “An organization to be named the International Civil Aviation Organization is formed by the Convention. It is made of an Assembly, a Council, and such other bodies as may be necessary”.
Article 49 of the Chicago Convention which lays out the powers of the Assembly identify the following functions: Elect at each meeting its President and other officers; b) Elect the contracting States to be represented on the Council, in accordance with the provisions of Chapter IX; c) Examine and take appropriate action on the reports of the Council and decide on any matter referred to it by the Council; d) Determine its own rules of procedure and establish such subsidiary commissions as it may consider to be necessary or desirable; e) Vote annual budgets and determine the financial arrangements of the Organization, in accordance with the provisions of Chapter XII;* f) Review expenditures and approve the accounts of the Organization; g) Refer, at its discretion, to the Council, to subsidiary commissions, or to any other body any matter within its sphere of action; h) Delegate to the Council the powers and authority necessary or desirable for the discharge of the duties of the Organization and revoke or modify the delegations of authority at any time; i) Carry out the appropriate provisions of Chapter XIII; j) Consider proposals for the modification or amendment of the provisions of this Convention and, if it approves of the proposals, recommend them to the contracting States in accordance with the provisions of Chapter XXI; k) Deal with any matter within the sphere of action of the Organization not specifically assigned to the Council.
Celine Van den Rul, Why Have Resolutions of the UN General Assembly If They Are Not Legally Binding? E-International Relations, June 16 2016 at https://www.e-ir.info/2016/06/16/why-have-Resolutions-of-the-un-general-assembly-if-they-are-not-legally-binding/
Ibid.
Study on Dispute Settlement System under Chicago Convention, (Presented by the Republic of Korea), A41-WP/124, LE/8, 2/8/22
Competency Framework for Civil Aviation Legal Advisers, (Presented by Singapore and co-sponsored by the Member States of the African Civil Aviation Commission, Australia, Bahamas, Brazil, Finland, Guyana, North Macedonia, Oman), A41-WP/106, LE/6, 2/8/22.
Seeking Harmonization between Ratified and Non-Ratified Rules under ICAO (Presented by the Republic of Korea), A41-WP/126, LE/10, 2/8/22.
The Vienna Convention on the Law of Treaties defines a “treaty” as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. See The Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969. Entered into force on 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331.
Convention on International Civil Aviation, supra, note 12. See ICAO doc 7300/9 (Ninth Edition : 2006).
Ibid.
This eloquent Latin proverb was seemingly first used in the 13th century by the Roman commentator Accursius and was subsequently introduced into English law by William Blackstone in his Commentaries on the Law of England (1766). See https://www.liquisearch.com/cuius_est_ solum_eius_est_usque_ad_coelum_et_ad_inferos
Convention Relating to the Regulation of Aerial Navigation.
https://legal-dictionary.thefreedictionary.com/recognize
Vattel identifies “territory” as “domain” which he defines thus: “ The domain of a nation extends to everything she posses by a just title. It comprehends her ancient and original possessions and all her acquisitions made by means which are just in themselves, or admitted as such among nations – concessions, purchase, conquests made in regular war & c. And by her possessions, we ought not only to understand her territories, but all the rights she enjoys”. See Emer de Vattel, The Law of Nations, (Knut Haakonssen Gen. Ed.,) Liberty Fund: Indianapolis, 2008 at 302.
Annex 6 to the Chicago Convention defines an aircraft as any machine that can derive its support in the atmosphere from the reactions of the air other than reactions of air on the earth’s surface.
For ATM purposes and with reference to article 3(b) of the Chicago Convention, only aircraft used in military, customs and police services shall qualify as State Aircraft. Accordingly: Aircraft on a military register, or identified as such within a civil register, shall be considered to be used in military service and hence qualify as State Aircraft; Civil registered aircraft used in military, customs and police service shall qualify as State Aircraft; Civil registered aircraft used by a State for other than military, customs and police service shall not qualify as State Aircraft." See Skrybrary at https://skybrary.aero/articles/state-aircraft
The predecessor of the Chicago Convention—The Paris Convention of 1919 is much clearer when it provides that State aircraft are military aircraft and aircraft exclusively used in State service such as posts, customs and police sand that every other aircraft shall be deemed to be private aircraft. The Paris Convention goes on to say: “All State aircraft other than military, customs and police aircraft shall be treated as private aircraft and as such shall be subject to all the provisions of the present Convention”.
Jan Wouters, Sten Verhoeven, State Aircraft, Oxford Public International Law: July 2008. https://doi.org/10.1093/law:epil/9780199231690/e1223 DOI: https://doi.org/10.1093/law:epil/9780199231690/e1223
Jean d’Aspremont, Işıl Aral, Recognition in International Law, Oxford Bibliographies at https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0009.xml
https://www.merriam-webster.com/dictionary/agree
Vattel, supra, note 12 at 322.
Article 45 States: “ A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be”.
Concerning Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. U.S. (1984) I.C.J.392.
Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) (Press Release and Summary of Award)". Permanent Court of Arbitration. 19 March 2015.
D. O’ Connell, A Cause Celebre in the History of Treaty Making, BYIL, (1967) 156, at 253.
The amendments (Protocols) are: Protocol Relating to an Amendment to the Convention on International Civil Aviation [Article 93 bis]; Protocol Relating to an Amendment to the Convention on International Civil Aviation [Article 45]; Protocol Relating to an Amendment to the Convention on International Civil Aviation [Articles 48(a), 49(e) and 61]; Protocol Relating to an Amendment to the Convention on International Civil Aviation [Article 50(a)]; Protocol on the Authentic Trilingual Text of the Convention on International Civil Aviation (Chicago, 1944); Protocol Relating to an Amendment to the Convention on International Civil Aviation [Article 56)]; Protocol Relating to an Amendment to the Convention on International Civil Aviation [Final Paragraph, Russian Text]; Protocol Relating to an Amendment to the Convention on International Civil Aviation [Article 83 bis]; Protocol Relating to an Amendment to the Convention on International Civil Aviation [Article 3 bis]; Protocols Relating to an Amendment to the Convention on International Civil Aviation [Final Paragraph, Arabic and Chinese Texts]; and Protocol on the Authentic Six-Language Text of the Convention on International Civil Aviation (Chicago, 1944).
Anthony Aust, Modern Treaty Law and Practice, Cambridge University Press: 200 at 251-216.
Article 1 of the Protocol recognizes English, French, Spanish, Russian, Arabic and Chinese as equally authentic texts of the Chicago Convention.
https://www.icao.int/about-icao/assembly/Pages/default.aspx
As the principal judicial organ of the United Nations, the ICJ is responsible for settling legal disputes between states and providing advisory opinions on legal questions referred to it by UN organs. The International Court of Justice (ICJ) has addressed the role and significance of UN Resolutions in various cases and advisory opinions. While the ICJ does not have the authority to determine the legal validity or binding nature of UN Resolutions, it has acknowledged their relevance and considered them as evidence of international law.
https://www.icj-cij.org/public/files/case-related/89/089-19920619-ORD-01-00-EN.pdf
https://www.icj-cij.org/case/70
https://www.icj-cij.org/case/95
https://www.icj-cij.org/case/131
https://www.icj-cij.org/case/141
https://www.icj-cij.org/case/148
Dani Rodrik and Stephen M. Walt, How to Build a Better Order Limiting Great Power Rivalry in an Anarchic World, Foreign Affairs, September/October 2022. See https://www.foreignaffairs.com/world/build-better-order-great-power-rivalry-dani-rodrik-stephen-walt.
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