Abstract
Rulemaking by the ICAO Council comports with three provisions of the Chicago Convention. The first is in the mandatory functions of the Council where in Article 54l)—The Council may adopt international standards and recommended practices; for convenience, designate them as Annexes to the Convention; and notify all contracting States of the action taken. It is on the basis of this Article that the Council has so far adopted 19 Annexes to the Convention, which goes on to say in Article 37 that each contracting 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 which such uniformity will facilitate and improve air navigation. To this end ICAO is required to adopt and amend from time to time, as may be necessary international standards and recommended practices and procedures dealing with the subject matter covered by each Annex.
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Notes
- 1.
Beginning with Resolution A1-13 (Implementation of Standards and Recommended Practices); A1-25 (Future Work of the Technical Divisions; A1-31 (Definition of International Standards and Recommended Practices); A2-42 (Submission of Comments for Proposals on Standards and Recommended Practices); A4-8 (Annexes Prescribing Standards Related to Facilities); A7-9 Notification of Differences From International Standards) and A10-16 (Allocation of Effort Between the Formulation of Standards and Regional Plans and Their Implementation).
- 2.
Resolution A21-21 in Appendix D merely reiterated the significance of Articles 37 and 38 and stated that States should be encouraged to adhere to SARPs and PANs and that their ability to comply with Articles 37 and 38 should be monitored.
- 3.
Aust (2000), p. 348.
- 4.
See Whiteman (1968) p. 404.
- 5.
Chicago Convention, Chap. 1 in supra note 13, Article 54 (l).
- 6.
Kirgis (1995), p. 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 9 1987.
- 7.
Aeronautical Information Services Manual, ICAO Doc 8126 -0 AN/872/3.
- 8.
- 9.
Id. p. 210.
- 10.
Sochor (1991), p. 58.
- 11.
Chicago Convention, Chap. 1 in supra, note 13, Article 87.
- 12.
Schenkman, op.cit at p. 162.
- 13.
Chicago Convention, Chap. 1 in supra, note 13, Article 54 (n).
- 14.
Schaake v. Dolly 85 Kan. 590., 118 Pac. 80.
- 15.
People v. Bradley 60 Ill. 402, at 405. Also, Bouviers Law Dictionary and Concise Encyclopedia 3 ed. Vol 11, Vernon Law Book Co., New York 1914.
- 16.
Proceedings of the Council 2nd Session 2 September-12 December 1947, Doc 7248 - C/839 at 44–45.
- 17.
ICAO Resolutions A - 13 and A - 33 which resolved that SARPS relating to the efficient and safe regulation of international air navigation be adopted.
- 18.
ICAO Annex 9, Facilitation, Foreword.
- 19.
Aeronautical Information Services Manual, ICAO Doc 8126 -0 AN/872/3. ICAO Resolution A1-31 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 (1969), p. 10 also cites the definitions given in ICAO’s Annex 9 of SARPS.
- 20.
Article 86 of the Convention.
- 21.
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.
- 22.
Milde., op.cit. 122.
- 23.
Buergenthal (1969), p. 9.
- 24.
Dempsey (1987), p. 302.
- 25.
Sochor (1991), p. 58.
- 26.
Ibid.
- 27.
Tobolewski (1979), pp. 349–359.
- 28.
See Chap. 1 in infranote 37.
- 29.
Interim Agreement, Article 111, Section 6(i).
- 30.
Schenkman (1955), p. 160.
- 31.
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 8.
- 32.
Article 85.
- 33.
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.
- 34.
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.
- 35.
ICAO Doc 9734, AN/959, 2nd ed. (2006) Part A.
- 36.
Sometimes referred to as Regional Safety Oversight Agencies (RASAs).
- 37.
The ICAO Council is a permanent body responsible to the Assembly. It is composed of 36 Member States elected by the Assembly. In electing the members of the Council, the Assembly gives adequate representation to States of chief importance to air transport; States not otherwise included which make the largest contribution to the provision of facilities for international air navigation; and States not otherwise included whose designation will ensure that all the major geographic areas of the world are represented on the Council. The mandatory and permissive functions of the Council are stipulated in Articles 54 and 55 of the Convention on International Civil Aviation respectively. The Council has its genesis in the Interim Council of the Provisional International Civil Aviation Organization (PICAO). PICAO occupied such legal capacity as may have been necessary for the performance of its functions and was recognized as having full juridical personality wherever compatible with the Constitution and the laws of the State concerned. See Interim Agreement on International Civil Aviation, opened for signature at Chicago, December 7 1944, Article 3. Also in Hudson, International Legislation, Vol 1X, New York: 1942–1945, at 159. For a detailed discussion on the functions of the Council See Abeyratne (1992), pp. 387–394.
- 38.
C-WP/13339, 12/05/09.
- 39.
An agency is a consensual relationship created by contract or law where the Principal grants authority to agents to act on behalf of or under the control of the Principal to deal with a third party.
- 40.
ICAO Doc 9734 AN/959 Part B (The Establishment and Management of a Regional Safety Oversight System).
- 41.
For a detailed discussion on safety management systems see Abeyratne (2007), pp. 7–13.
- 42.
Id. Para 2.2.4 at p. 2–3.
- 43.
Id. Para 2.2.5 at p. 2–4.
- 44.
Including meteorological information, aeronautical telecommunications, search and rescue services, charts and the distribution of information.
- 45.
Id. Para. 2.4.5 at p. 2–6.
- 46.
Id. Para 3.5 at p. 3–5.
- 47.
Cortell and Davis (Spring 2001), pp. 66–87 at 74.
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Abeyratne, R. (2016). How to Make Rules. In: Rulemaking in Air Transport. Springer, Cham. https://doi.org/10.1007/978-3-319-44657-8_3
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