Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
) Int’l Structure of ICAO – Membership, Representative Bodies & Functions
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- Q What is the basic make-up of ICAO
- Q How does one become a “Member” of ICAO
- Q How does one become expulsed from ICAO
- 4) Amending the Chicago Convention
- Q How are voting decisions made in Chicago
- Q How are amendments governed in the Chicago Convention
- Q Is the Consensual Principle for amendment problematic
3) Int’l Structure of ICAO – Membership, Representative Bodies & FunctionsQ? Does ICAO meet the int’l org requirements discussed above?It has its own legal personality as seen in art. 47 Chicago. It has clearly a defined, int’l responsibility. The purposes & aims of the organization are highlighted in art. 44 Chicago. ICAO is a specialized agency of the UN in the sense of arts. 57 & 63 UN Charter & works closely w/ the Int’l Telecommunications Union & the Int’l Maritime Organization (London) & the Int’l Postal Union. Q? What is the basic make-up of ICAO?Note, by being created by int’l agreement, it means that its parties are only sovereign states. Montreal is the seat of the organization & representation of the states affiliated w/ it & the senior personnel are exempt from the jurisdiction of the local courts at least w/r/t words spoken & acts done in their official capacity. The organization created under the Chicago Convention is an int’l body. Art. 44 Chicago outlines the objectives of the organization & art. 43 named the org. ICAO of which is basically separated into 3 bodies: General Assembly 49 Chicago Describes the jurisdiction of the assembly, as the supreme body, since it can do anything not specifically assigned to the council. Thus, matters that are not in the jurisdiction of the assembly but are in the council’s are very important & that leads to the conclusion that it is not the assembly, it is, in fact, the council that is the most powerful body in ICAO. De facto, the GA is merely a figurehead meeting every three years for a period of three weeks as per art. 48 Chicago. The GA’s basic function is to elect the council & to approve the program budget.
Executive When the GA is not in session, there is a permanent executive body, which will implement decisions & guide the org. Permanent council is composed of 33 states. The council elects the council president who is the supreme individual position within ICAO. The President is elected b/c the position is rather political. Real power within the ICAO resides w/ the Executive: For ex., 49(k) Chicago states that the election of the President of the Council is not within the jurisdiction of the assembly, but rather it is in the jurisdiction of the council. The appointment of the Secretary General (glorified position), is in the hands of the council. The adoption of standards & recommended practices under articles 37, 38, 54(l) & 90 Chicago is a critical function of the executive council in ICAO & cannot be touched by the assembly. The settlement of differences, Arts. 84-88, is within the exclusive jurisdiction of the Council. The management of the finances is within the hands of the council. Even, the convening of an extraordinary session of the assembly, under art. 48, must be convened by the Council.
Secretariat Is the indispensable & most expensive part of every org. The Secretary General of the Council is appointed by the Council via art. 54(h) Chicago & b/c it is appointed the position is logically more administrative than political. Q? How does one become a “Member” of ICAO?(Membership fluctuates around 189 members) 91 Chicago Deals w/ how States become a member by outlining how one adheres to the Convention. 92 Chicago Indicates that the convention is open for adherence “by members of the United Nations & states associated w/ them & states which remained neutral during the present world conflict.” Here “United Nations” means the allies in World War II & not the current world org. 93 Chicago For enemies of the allies to get into ICAO, they were subject to the approval of any general int’l organization established for the preservation of peace. Thus, for the ex-enemies of the allies, there was a need for the approval of the U.S. & an 80% vote is needed in the assembly of ICAO & there is a veto for any victim of the enemies. Art. 93 is a historical relic – it is & should be ignored. 62 Chicago The assembly may suspend the voting power in the assembly & in the council of any contracting State that fails to discharge its financial obligations to the organization. Q? How does one become expulsed from ICAO?93 bis Chicago Deals w/ a state’s expulsion from ICAO, as it is contingent on prior expulsion from the The UN provision has yet to be used & is difficult – Security Council must have unanimity of the 9 permanent members along w/ the general assembly. 4) Amending the Chicago ConventionQ? How was the Paris Convention to be amended? The Paris Convention stated that it could only be amended by unanimity. Thus, at the time, the Paris Convention symbolized the consensual principle: the state can only be bound w/ respect to provisions it gave its approval to.
Q? How are voting decisions made in Chicago?48(c) Chicago Quorum is majority of the members. Given that there are 189 states in ICAO, 95(?) states are therefore needed for quorum to have a GA. 48 Chicago “Decision of the assembly shall be taken by the majority of the votes cast.” Only “yes’s” & “no’s” are counted. Abstentions are not taken into consideration. The majority is calculated on the basis of delegates who registered to participate in their assembly & who did not advise of their departure. That means 186 abstentions could take place, followed by one vote yes & the bill passes. Art. 48 Chicago also states that other decisions will be taken by different majorities if it is specifically stated in a different art. of the Convention. For ex., art. 94 Chicago deals w/ the amendments to the convention & requires 2/3rds majority (127) of the assembly. This does not mean 2/3rds of those present & voting. That means that you take 2/3 of the delegations registered whether they are in or out of the meetings rooms, irrespective of abstentions. For ex., art. 45 Chicago deals w/ changing where ICAO is permanently seated (currently that’s Mtl.). 3/5ths of the contracting States need to vote in favour of such a move. For ex., art. 93 Chicago states that were an ex-enemy state of the Allies in WWII wishes to be admitted, it would take 4/5ths of those registered at the assembly to approve it.
Q? How are amendments governed in the Chicago Convention?94(a) Chicago A substantive amendment hereunder uses the consensus system as the amendment will only apply to those states (at least 2/3rds (127)) that ratified it as sovereign rights of states will be paramount & will not be forced to accept the amendment even if 150 out of 189 states want it. Effectively, this is concealed unanimity since when these requirements are met; the amendment only comes into force in respect of the states that have ratified it. It is based on the consensual principle such was the case in the Paris Convention. In contrast to amend the UN Charter, requirements must be met & then the amendment comes into force for all in the UN. This is known as the erga omnes principle, which is logical since it produces one system for all, rather than different conventions for different countries.
Q? Is the Consensual Principle for amendment problematic?Yes, it presents intellectual & practical difficulties b/c not one single amendment to Chicago has been ratified across the board by all. Meaning that there are several different conventions applicable to several states & not to others. Fortunately, most amendments are rather procedural, such as art. 93Bis, which dealt w/ a state’s expulsion from ICAO, contingent on prior expulsion from the UN. Substantive amendments, which rely on the consensual principle, are exemplified by 3Bis & 83Bis. Directory: pubdocs -> files files -> International maritime conventions files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law files -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Topic One Seaworthiness and Common Venture, chapter 15 Download 0.73 Mb. Share with your friends:
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