Abstract
Based on the doctrine of empowerment, ICAO’s member States can invoke their authority to empower ICAO to take on commercial space transportation activities as well, in accordance with a legal process. It cannot happen overnight and, as some commentators have claimed, happen by ICAO’s unilateral change of its “mandate” or scope of functions.
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Notes
- 1.
Article 37 of the Chicago Convention confirms that each Member State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. Article 38 gives any State the opportunity, if it finds it impracticable to adhere to ICAO’s policy to file differences by giving notice to ICAO of the difference between what is recommended or required by ICAO and the practice prevalent in that State.
- 2.
The ICAO Assembly, at its 35th Session held in Montreal from 28 September to 8 October 2004, defined a Standard “as any specification…the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which member States will conform in accordance with the Chicago Convention.; in the event of impossibility of compliance, notification to the Council is compulsory under Article 38 of the Convention. 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” See Assembly Resolutions in Force, (As of 8 October 2004) ICAO Doc 9848, II-2 Appendix A.
- 3.
Buergenthal, Law Making in The International Civil Aviation Organization, Syracuse, pp. 98–107.
- 4.
See Whiteman 1968, p. 404.
- 5.
Chicago Convention, supra, Article 54(l).
- 6.
Frederic L. Kirgis, Jr, Specialized Law Making Processes, United Nations Legal Order, Volume 1 Chapter Two, Oscar Schachter and Christopher Joiner ed., The American Society of International Law: 1995, pp. 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 p. 9, 1987.
- 7.
See Amerasinghe 2003, p. 473.
- 8.
ICAO is the depository of 35 international treaties and related instruments entered into between its member States, both on a bilateral and multilateral basis. In addition, ICAO performs registration functions with regard to other aeronautical agreements between States inter se and international organizations. These functions are provided by the Legal Affairs and External Relations Bureau. Many aeronautical treaties have emanated from initiatives of the ICAO Legal Committee. ICAO has a significant role to play in the procedural aspects of treaty work which brings to bear the need to discuss the salient principles of law and practice relating to aeronautical treaties and agreements. Such a study becomes essential to the understanding of treaties related to aviation security, safety and future agreements concerning aviation and environmental protection.
- 9.
A State has been defined in Article 1 of the Montevideo Convention of 1933 as having the following characteristics: a permanent population; a defined geographic territory; a government; and the legal capacity to enter into relations with other States. See Montevideo Convention on the Rights and Duties of States, Signed at Montevideo, 26 December 1933. The Convention entered into Force, 26 December 1934. At http://www.taiwandocuments.org/montevideo01.htm.
- 10.
Vienna Convention on the Law of Treaties, 1969, Done at Vienna on 23c May 1969, United Nations General Assembly Document A/CONF.39/27, 23 May 1969, Article 2(a). The Convention entered into force on 27 January 1980. UNTS Vol. 1155, p. 331.
- 11.
Headquarters Agreement between Canada and ICAO of 14 April 1951, which paraphrased the 1947 Convention on the Privileges and Immunities of the Specialized Agencies. On 20 February 1992, the 1951 Agreement was terminated and superseded by a new Agreement that entered into force the same day. A new Supplementary Agreement was signed on 28 May 1999 superseding the Supplementary Agreement signed in 1980 in order to reflect the relocation of the Organization’s Headquarters to a new location on 999 University Street on November 1, 1996. See Supplementary Agreement Between the International Civil Aviation Organization and the Government of Canada Regarding the Headquarters of the International Civil Aviation Organization, Doc 9591.
- 12.
“Ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty. See Vienna Convention, supra note 388 at Article 2(b).
- 13.
“Reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. Id. 2(d).
- 14.
See West Rand Central Gold Mining Company v. R. [1905] 2. K.B. 391 per Lord Alverstone who stated in his judgment: “whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we assented along with other nations in general may properly be called international law: and as such will be acknowledged and applied by our municipal tribunals to decide questions to which doctrines of international law may be relevant”. Id. 397.
- 15.
Supra note 10.
- 16.
Article 12(1) states that the consent of a State to be bound by a treaty is expressed by the signature of its representative when: (a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or (c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation. Article 12.2 provides that for the purposes of para 1: (a) the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed; (b) the signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty.
- 17.
Vienna Convention, supra note 10 at Article 2(1)(g). It should be noted that such States should not be called “signatories” as some refer to them erroneously.
- 18.
Id. Article 24(1).
- 19.
Id. Article 25.
- 20.
Id. Article 2(1)(a).
- 21.
There are instances where States may record their reservation on particular provisions of a convention while signing the document as a whole. The International Court of Justice in its examination of the Genocide Convention has ruled:
The object and purpose of the Convention… limit both the freedom of making reservations and that of objecting to them. It follows that it is the compatibility of a reservation with the object and purpose of the Convention that must furnish the criterion for the attitude of a State in objecting to the reservation. 1 I.C.J Rep. 1951, at p. 15.
- 22.
See Schwarzenberger and Brown 1976, p. 118.
- 23.
The Preamble to the Chicago Convention states:
… the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and soundly and economically; have accordingly concluded this Convention to that end.
- 24.
See Greig 1976, p. 8.
- 25.
Statute of the International Court of Justice, Charter of the United Nations and Statute of the International Court of Justice, United Nations: New York, Article 38. 1(a).
- 26.
Id. Article 36.2(a).
- 27.
Supra note 10.
- 28.
Vienna Convention, Preamble and Article 26.
- 29.
Id. Article 42. 1.
- 30.
Id. Article 57.
- 31.
Id. Article 59.
- 32.
Id. Article 60.
- 33.
Id. Article 61.
- 34.
Id. Article 62.
- 35.
Id. Article 46.
- 36.
See Reuter 1989, p. 16.
- 37.
See Frans G. von der Dunk, Jus Cogens Sive Lex Ferenda: Jus Cogendum, Air and Space Law: De Lege Ferenda, Essays in Honour of Henri A Wassenbergh, Tanja L. Masson-Zwaan and Pablo M.J. Mendes De Leon ed. Martinus Nijhoff: Dordrecht 1992, 219 at pp. 223–224.
- 38.
An interpretative declaration is “a unilateral declaration, however phrased or named, made by a State or by an international Organization whereby that State or that Organization purports to clarify the meaning or scope attributed by the declarant to the treaty or to certain of its provisions”. See UN Doc, A/CN.4/491/Add4, para. 361.
- 39.
Interpretative Declaration of the United Kingdom in respect of an instrument adopted during the Congress of Vienna, 1815. See 64 CTS 454.
- 40.
The Vienna Convention does not contain provision for States Parties to make reservations to a treaty subsequent to their ratifying a treaty. However, The Secretary General of the United Nations may circulate a reservation received subsequently with a note that, unless he hears otherwise from other States’ Parties any objections to the reservation within 90 days the reservation will deem to have been accepted. This same practice may be applied when a State wishes to modify a reservation previously made. See Anthony Aust, Modern Treaty Law and Practice Cambridge University Press: 2011 at p. 129.
- 41.
Vienna Convention, supra note 10, Article 2(1)(d).
- 42.
Id. Article 23.
- 43.
Anthony Aust, supra note 418, at p. 263.
- 44.
Vienna Convention, supra note 10, Article 21.
- 45.
Id. Article 22.
- 46.
Id. Article 23(4).
- 47.
Id. Article 52.
- 48.
Id. Article 70.
References
Amerasinghe CF (2003) Principles of the institutional law of international organizations, 2nd edn. Cambridge Univesity Press, Cambridge, p 473
Greig DW (1976) International law, 2nd edn. Butterworths, London, p 8
Reuter P (1989) Introduction to the law of treaties. Pinter Publishers, London and New York, p 16
Schwarzenberger G, Brown ED (1976) A manual of international law, 6th edn. Professional Books Limited, Oxon, p 118
Whiteman M (1968) Digest of international law. Kluwer, The Netherlands, p 404
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Abeyratne, R. (2015). Conclusion. In: Regulation of Commercial Space Transport. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-12925-9_7
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