Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?

5) ICAO Executive Council

The Council, (discussed above) the governing body that is elected by the Assembly for a three-year term, is composed of 33 States. The Assembly chooses the Council Member States under three groupings discussed below at art. 50 Chicago. As the governing body, the Council gives continuing direction to the work of ICAO. It is in the Council that Standards & Recommended Practices are adopted & incorporated as Annexes to the Convention on International Civil Aviation. The Council is assisted by the Air Navigation Commission (technical matters), the Air Transport Committee (economic matters), the Committee on Joint Support of Air Navigation Services & the Finance Committee.

For example translation from Russian to English to Arabic is expensive.

There are three groups of states:

1. 
   Mandatory functions (described & elaborated on in Art. 54)
   

In most cases, this implies the interpretations & the application of the contents of the convention &, therefore, it has far-reaching legal consequences.

2. 
   Permissive functions (described & elaborated on in Art. 55).
   

-In short, Executive functions are:

The council dispute mechanism cannot effectively work & will never work. Procedurally they’re not set up to deal w/ such matters. Members are politically appointed, members are not acting independently, & there is no pretense to being unbiased adjudication. Although, one may argue that it does provide a deterrent, as the actions one state will be thrust into the open.

For ex., ICAO was vested in a conflict b/t Pakistan & India in 1971 & members were forced to delay the decision making process w.r.t. the dispute so a council member could receive guidance from their gov’t. Procedural problems are clearly present. Moreover, sovereignty of a State should not be so easily forgotten. In the case India closed its boarders cutting off East Pakistan from West, which India could do in a state of emergency as so declared by India b/c on of their aircraft was hijacked & blown up on Pakistan soil. The holding was ultimately appealed by Pakistan to the ICJ who chastised the ICAO council for not justifying their jurisdiction in the matter. Ultimately, the matter wasn’t settled as E. & W. Pakistan became known as Bangladesh & Pakistan.

a) ICAO Law-Making Function

Int’l aviation cannot exist without a level uniformity throughout the world, of which is recognized in art. 37 Chicago. Uniformity is need for aviation to function in a SAFE manner as legislative goals are largely determined by technical advances in the aviation field. Art. 94, however, makes this rather difficult w.r.t. amendments. Nevertheless, the council is vested w/ the power to adopt & change standardization per art. 37. (See amendments section as well)

 Therefore, anything that is important can be governed in ICAO standards & states have accepted an obligation to meet such. This is not an unconditional degree. Rather, States accepted an obligation in securing the “highest practicable degree.” Only the sovereign state concerned will judge what is practicable.

Ultra posse nemo teneor = A state is not bound to do the impossible.
38 Chicago  If the state finds it impracticable to comply w/ a new or an amended set of standards, they have one legal duty: namely, they should instantly notify the council of ICAO of their different practice.
54(l) Chicago  “The council is obliged to adopt in accordance w/ Chapter 6 (Arts.37 & 38) int’l standards & recommended practices.”

Clarifies that the Standards are designated as annexes to Chicago only “for convenience” they are not an integral part of Chicago & do not have the same status as a binding source of int’l law.

This does not mean that States have to build & control the airport? However, the sovereign state is responsible to ensure that those airports meet int’l stnds & practices.

Q? SARPS Defined?

Q? Are Annexes of the same force as Chicago?

Q? How are SARPS/Annexes created & amended?

Hence there is a check & balance to the council’s function. It is has never happened that an annex is disallowed by more than 50% of the ICAO member states. Note 90(b) does not tell us when an Annex or amendment thereto is deemed to have “come into force”.

See High Seas below.

Stnds that are not implemented w/out notifying the council is a threat to safety & security of those in aviation.

 Deals standardization of enviro protection. I.e. Aircraft now require noise certification, as they are divided into three categories 1 being the worst 3 the best. Engine emissions & spillage of lubricants are also dealt w/ here.

See below for detail

See below for detail

Q? Annex disapproval in whole or part?

Q? Why are Annexes or amendments thereto very rarely disapproved?

1. 
   Compromise-oriented consultative process that precedes the adoption of an Annex or amendment
   
2. 
   Member States are in a large measure free not to comply w/ the provisions of an Annex
   
3. 
   Ability to partially disapprove of annex reduces likelihood that a majority of Member States will exercise the veto power. Thus, Council has obviously watered down the veto power which 90(a) vests in the Contracting States.
   
4. 
   States have no legal ob to implement or to comply w/ the provision of an Annex unless they find it practicable to do so. (see arts 22,23, 28,37 & 38 Chicago).
   

US FAA Safety Oversight

1. 
   Does Comply with ICAO Stnds
   
2. 
   Does Not Comply with ICAO Stnds
   

(a) Those who can’t operate in the US

(b) Those that operate at heightened FAA surveillance but cannot expand operations

ICAO Safety Oversight

1. 
   Adequate organization, consistent w/ the nature and extend of the operations specified.
   
2. 
   Qualified airworthiness and flight operations inspectors and licensing personnel supported and managerial structure
   
3. 
   Detailed records of training
   
4. 
   Policy on the safety regulation of maintenance, flight operations and licensing
   
5. 
   Availability of reference material, including ICAO docs.
   
6. 
   Info on which Standards have been used for approval of air operator certificate holders or maintenance orgs.
   
7. 
   Inspection results
   
8. 
   Evidence of compliance w/ airworthiness directives and of maintenance programs.
   
9. 
   Evidence of procedures for the issuance, approval, suspension and revocation of licenses when unsafe conditions are identified and records thereof.
   
10. 
    Evidence major modifications to aircraft have been properly approved.
    
11. 
    Evidence of overall system safety awareness and of mechanism for accident prevention.
    

Comprise, however, was achieved. The interim and final report on the safety assessment will be confidential and will be made available to a State concerned and to the ICAO Regional Office where a summary of the final report, containing info related to the difference may be made available. The result of such assessments has not been made public – the principle of confidentiality was strictly observed and thus the system lacks transparency and credibility.

Q? How is the ICAO Safety Audit implemented?

We should note here though that in the Vienna Convention on Treaties they are to be treated in light of their current use. Hence, one does not have to amend a convention every time, one can look to the current use thereof. Besides, who can practically oppose safety stnds. in aviation?

Hence, there is a mandate for the council to file a reference w/ the GA where a State fails its safety stnds.

Q? Environment used to regulate?

Q? Does ICAO regulate over the High Seas?

Annex 2 deals w/ these rules of the air, which focuses on the law of flight & maneuver over the high seas, which is to have binding force over all areas of the high seas.

Q? Is Annex 2 only mandatory over the high seas?

Q? Is Annex 11 mandatory over the high seas?

1. 
   B/c of the technical problems that would result whenever a State providing air traffic services decided to deviate from annex 11.
   
2. 
   As stated by the US Rep. that if the rules of Annex 11 were mandatory over the high seas they “might deter a Sate from supplying a much needed service in these areas, since… this service might have to be providing accordance w/ rules differing in some respects from those applicable in its own territory.”
   

Recognition of Certificates & Licenses (s.33)

A State cannot afford to follow less stringent certification or licensing practices (i.e. Air Worthiness stnds in Annex 8 & Personal Licensing in Annex 1) than those prescribed by the ICAO stnds if this want to be in the business of int’l aviation.

Notification of Differences

The language of s.38 raises certain problems, b/c the terminology does not correspond to the legislative scheme in art. 90. Art. 38 provides forth notification of differences immediately after a stand has been establish, while art 90 speaks of the “becoming effective” & “coming into force” of an Annex. It is therefore by no means clear, on reading these two provisions, whether the States must give the notice required under art. 38 as soon as the Annex containing the int’l stnds has become effective or when it has comes into force.

To deal w/ this ICAO adopted a resolution, wherein it abandoned the ambiguous requirement for immediate notification of differences except for deviations arising after the entry into force of an int’l stnd, the ICAO Council in effect rewrote art. 38 & thereby established a much more rational system for the notification of differences. And by 1950 ICAO concluded that the notice requirement should, in the interest of safety, be extended also to recommended practices.

Lack of Notification of Differences w.r.t. safety oversight

Legal Consequence of Failure to Notify Differences

**Lawyers should have doubts about the “law-making functions” of ICAO. First of all, the annexes are not an integral part of the Convention & hence do not have the legal force of the Convention. States do not have an absolute duty to comply w/ them. States have a duty in good faith to do what is practicable but these particular states, themselves, are the judges of what is practicable or not. They only have a legal duty to file a difference under art. 38. The trouble is that there is no sanction if they do not file this difference. “Standards” are soft law.

Nevertheless, “standards” are law & have force as strong as that of gravity. Certainly, a sovereign state has the freedom to totally disregard the standards drafted by ICAO. But, w/ consequences are rather high, as a State would not be able to fly since it would be deemed to be unairworthy as most countries do abide by ICAO standards & recommended practices. Hence, other states are effectively forced to follow the standards as a precondition to landing rights or not enter the field of aviation at all. Hence, ICAO standards found in the Annexes have great force in the int’l aviation community.
Dr. Cheng claims a State would “be liable to another State if the latter, or one of its nationals, suffers damage as a result of a mistaken belief, induced by the lack of notification, that the former contracting State was complying w/ a given int’l stnd.”
ICAO does have the power to impose sanctions agst states that fail to report a difference (see 54(j),(k) & arts 84-88 Chicago), but whether the thereat of sanctions would achieve the desired result is most doubtful, b/c many of the delinquent States simply do not as yet have the technical & administrative personnel to fully discharge their obs under art. 38.
However, weak the legal status of SARPS may appear in theory to be b/c of art.38, in practice they assert themselves with a persuasive objective force comparable to the law of gravity – disregarding SAPRS would entail serious consequences, possibly eliminating the State concerned from any meaningful participation in int’l air navigation and air transport. (see art. 33 and discussion w.r.t. the high seas in Annex 2 – Rules of the Air empowered by art. 12).

Fostering the Domestic Implementation of SARPS

This is even more problematic as ICAO has some states that cannot keep up with the amendment , whereas others find the amendment process too slow and tends to produce regs that are obsolete by the time they are adopted.

ICAO is exploring the possibility of developing two sets of SARPS, a simplified and stable set for areas with less exacting operational requirements, and a more complex set for areas demanding advanced techniques and frequent changes. This two system inter-weaving model may in fact be more desirable for some form of uniformity as opposed to a mosaic of systems and stnds worldwide.

ICAO GA Resolution A24-14 has also requested member States to refrain from taking unilateral measures that could affect the orderly and harmonious development of int’l air transport as it may be rather difficult of o/ States to comply with these unilateral or regional standards (although this is exactly what was done in the US w.r.t. safety measures on board planes – that being (1) Secure doors, (2) Air Marshall (3) Locked cockpit doors and (4) option for a weapon to be made available to a commander.) Such regional evolution can lead to the creation of barrier and difference b/t groups of ICAO States thereby hampering the uniformity of int’l civil aviation.

Procedures for Air Navigation Services (‘PANS’) & Regional Supplementary Procedures (‘SUPPS’)

art. 38 is applicable here as deviations must be made know to ICAO as well.

Enforcement of Safety Oversight

The exp. of ILO could help ICAO as it is not of vital imp to amend Chicago to achieve the sought after results. Rather if the GA adopted a clear resolution directing the Council to request States to present by a specific date each year a comprehensive report on the implementation (or lack thereof) of ICAO SARPS, which would be a starting point for ICAO to negotiate safety oversight procedures.

Conclusion : Paris vs. Chicago