© The Author(s) 2015Ruwantissa AbeyratneRegulation of Commercial Space TransportSpringerBriefs in Law10.1007/978-3-319-12925-9_7
Global Aviation Consultancies Inc., Cote Saint Luc, Québec, Canada
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. This book has outlines both the legal process that might apply, either through an amendment to the Chicago Convention itself i.e. by including Articles bis to the Convention in accordance with Article 94 of the Convention, or by adopting a separate multilateral treaty that would empower ICAO to address and involve itself in commercial air transportation as the designated specialized agency of the United Nations for that purpose. The latter is seemingly the cleaner, clearer and less messy approach.
Either of these measures would involve a substantial outlay of resources which member States would have to absorb, particularly since ICAO does not have any staff member in its Secretariat (not to mention the Council, its subsidiary bodies and in particular the current membership of the Legal Committee which has, on several occasions demonstrated its ineptitude in air law issues, assisted by an equally inept Legal Affairs and External Relations Bureau) who is qualified, knowledgeable and competent in commercial air transport issues.
It would particularly be foolish to have technical staff (which includes the likes of former air traffic controllers, pilots and radio engineers, who undoubtedly have legitimate claims to their own professions) go blindly into an exercise that would just arbitrarily and capriciously change or adapt existing provisions of the Chicago Convention and its Annexes. ICAO would first need a solid base document drawn in accordance with ICAO’s legal status and applicable principles of modern treaty law and practice.
With regard to the Annexes to the Chicago Convention (if an additional Annex on commercial space transport is added, by whatever procedural pyrotechnics ICAO chooses) it must be mentioned that in this equation, the role of ICAO becomes an important one. Over its 70 years of service to the international civil aviation community, ICAO has, through its Assembly and Council adopted numerous Resolutions. Additionally, the ICAO Council has taken several decisions and issued statements of policy guidance. An organization such as ICAO is tasked primarily to provide a certain predictability about its members by promulgating norms for the conduct of its Member States. Of course not all those norms are binding and not all of them are adopted with the same degree of formality. However, certainly all of them provide guidance to States. This situation has to mesh with the basic inquiry as to whether ICAO, as an international organization, has been given direct authority over individuals or States. Another issue is whether ICAO is primarily an instrument for cooperation among States.
Firstly, when one considers the background of ICAO and the statements of its founding fathers, and as discussed earlier, there is no room for doubt that ICAO is a specialized agency that has procedures to modify, without eliminating, the positivist principle that States are only bound by international rules to which they have consented. This approach admits of a process whereby ICAO adopts or amends rules after having given a designated period of time for its member States to examine such rules and decide whether they would accept them or not. Individual member States may object or mark their differences in practices to the ones ICAO suggests for adoption.1 States objecting to a particular Standard and Recommended Practice (SARP) may choose if they wish to opt out of whole processes recommended by ICAO, even though general consensus is achieved to adopt them. There is no record of a single international Standard adopted through this process being disapproved by a majority of ICAO member States, although not all of ICAO’s 190 member States have found it practicable to comply with all Standards2 in the 18 Annexes to the Chicago Convention.3
The question arises as to whether a member State is formally bound by Standards contained in an Annex to the Chicago Convention, particularly when such a State has no convincing argument that it is impracticable to implement such Standards or when it has not notified the ICAO Council of differences as required. This is a vexed debate, particularly in the face of two blatant facts. The first is that the travaux preparatoires to the Convention contains a statement that “the Annexes are given no compulsory force”.4 The second is that in Article 54 of the Convention, which lays down the mandatory functions of the Council, it is provided that one of the mandatory functions is to
Adopt, in accordance with the provisions of this Convention, international standards and recommended practices; for convenience (emphasis added) designate them as Annexes to this Convention; and notify all member States of action taken.5
One could argue therefore that the Annexes are not an integral part of the Convention by virtue of the statement in Article 54 and therefore do not form binding law.
There have been numerous views of legal scholars who have cautioned against this approach and advocated that the words of the Convention should not be taken literarily. One commentator is of the view that:
The debate is largely academic. Whether or not ICAO standards are formally binding in the treaty law sense, they are highly authoritative in practice. This reflects their recognized importance for the safety and efficiency of civil air travel and the thorough process by which they are promulgated.6
7.1 Procedures for Enforcing SARPs
This is a purely procedural provision and the historical and legal bases of the Annexes have already been discussed under Articles 37 and 38. The ICAO Assembly, at its 2nd Session (Geneva 1–21 June 1948) adopted Recommendation 8 which recommended that the Council, when adopting further Annexes and establishing a date by which States may notify their disapproval of them, take fully into account the time needed for transmitting the Annexes, so as to allow for their effective study during the full period provided in Article 90. In Resolution A7-9 (adopted at the 7th Session of the Assembly—Brighton 16 June–6 July 1953) the assembly resolved that the Council, in fixing the dates for the application by Contracting States of International Standards, allow sufficient time to enable States to complete their arrangements for implementation thereof.
There are two operative phrases of importance in Article 90 which speak of an Annex being “effective” within 3 months after its submission to the Contracting States and the Annex “coming into force”. The issue is: “what is the significance of these two practices?”
7.2 Difference Between Standards and Recommended Practices
Firstly one must start with the two main components of the Annexes i.e. Standards on the one hand, and Recommended Practices on the other. A Standard is defined as any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which Contracting States will conform in accordance with the Convention; in the event of impossibility of compliance, notification to the Council is compulsory under Article 38 of the Convention.
A Recommended Practice is any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is recognized as desirable in the interest of safety, regularity or efficiency of international air navigation, and to which Contracting States will endeavour to conform in accordance with the Convention. States are invited to inform the Council of non-compliance.
SARPs are formulated in broad terms and restricted to essential requirements. For complex systems such as communications equipment, SARPs material is constructed in two sections: core SARPs—material of a fundamental regulatory nature contained within the main body of the Annexes, and detailed technical specifications placed either in the Appendices to Annexes or in manuals.
The differences to SARPS notified by States are published in Supplements to Annexes. After the Council adopts an Annex it is sent to ICAO member States for their comments and notification of disapproval of Standards with a date identified by the Council of the Annexes effective date which is within 3 months of submission. This is an interim edition of the Annex, referred to as the “Green Edition”, which is dispatched to States with a covering explanatory letter. This covering letter also gives the various dates associated with the introduction of the Annex including its effective date. Once the Annex becomes effective, the States have 3 months to indicate disapproval of adopted amendments to SARPs. Unless a majority of the States indicate their disapproval on or before the time allocated to them to respond with their disapprovals, the Council declares the Annex to have come into force at a particular date.
All this leaves one with the inevitable question as to whether ICAO has sufficient clout to enforce its mandatory duties which appear under Article 54 of the Chicago Convention and in particular Article 54j). From a legal perspective, the above discussion points to a resolute “yes” with an additional qualifier that it is indeed ICAO’s duty to do so. It is therefore largely left to ICAO to decide on the path it takes to ensure the legitimacy of its SARPs and the credibility of its Assembly and Council in the most diplomatic manner possible, in this defining point in the history of the Organization.
Finally, it must be mentioned that the instrument reflecting ICAO’s involvement with commercial space transport, regardless in which that instrument comes into effect—whether by the amendment provision in the Chicago Convention or by a separate multilateral treaty, will be binding only on those member States that accept it. responsibility could devolve upon ICAO with regard to commercial space transport regulation by an amendment to the convention or a new treaty, either through a merger with another organization or through the transfer of functions to a specific branch or bureau of ICAO such as the Air Navigation Bureau.7
If a separate treaty is drawn up, which would be the most uncomplicated approach, there are certain facts to be borne in mind.8 The Vienna Convention on the Law of Treaties, provides that such treaties shall be binding upon the Parties and be performed by them in good faith. The Vienna Convention further states that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty. Furthermore, the Vienna Convention stipulates that, unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each Party in respect of its entire territory. Therefore, a part of a State, however formed as a province, cannot take a unilateral decision to contravene the provisions of a treaty which the sovereign State has entered into. The Convention goes on to state that a Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. A treaty is an international agreement concluded between States9 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.10 The above notwithstanding, a treaty can be concluded between a State and another subject of international law such as an international Organization. An example is the Headquarters Agreement between ICAO and the Government of Canada.11 When a State places its signature on a treaty it merely means that the State has agreed to the text in the instrument. It comes into effect for that State when it is ratified12 by the State. At the time of ratification a State can record a reservation to a part of the treaty.13 These generic principles and those discussed below also apply to aeronautical treaties and agreements.
It must be noted that a State can sign a treaty in two ways. The first is called attestation by “simple signature” which corresponds to the above statement—that such a signature merely denotes that a State agrees with the text of an instrument and a simple signature is subject to ratification, acceptance or approval. However, if a State attaches to the instrument what is called a “definitive signature” it means that the State has agreed to be bound by the treaty. Therefore a definitive signature obviates the need for that State to later ratify the treaty, as it has the same force as ratification.
The process of ratification usually goes through two phases. The first is the internal procedure where the State concerned has to attend to its constitutional provisions by sending the text of the instrument it has signed through its national legislature or parliament. Once parliament adopts the text as its internal law, the State then has to proceed with its international procedure of depositing its notice of ratification with the depository. In formal terminology this process is called the doctrine of incorporation where customary international law as incorporated in a treaty that has been signed by a State is recognized as the internal law of the land on the common law practice based on a presumption that the legislature does not intend to commit a breach of international law.14
As the Vienna Convention15 provides, a treaty need not be signed. According to Article 12 of the Convention the consent of a State to be bound by a treaty is expressed by the signature of the representative of that State only in certain circumstances.16 Article 13 goes on to say that the consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: the instruments provide that their exchange shall have that effect; or it is otherwise established that those States were agreed that the exchange of instruments should have that effect. States may also contract with each other under their domestic laws.
A treaty enters into force when the number of ratifications as specified in that treaty is received by the depository. When a treaty enters into force it is in force for only those States who have consented to be bound by it which are called “Parties”.17 However, an expression by a State that it consents to be bound by a particular treaty does not mean that ipso facto that treaty enters into force for that State. Either, the treaty must already be in force at that time, or as already mentioned the number of ratifications must be deposited. The Vienna Convention (1969) is more specific when it says that a treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.18 There are three ways in which a treaty may enter into force. They are: on a date specified in the treaty; on signature only, as agreed by the negotiating States; or on ratification by all or a specified number of States. A treaty may be considered to apply to a State provisionally when the treaty itself so provides; or the negotiating States have in some other manner so agreed. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State will be considered as terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.19
Treaties, conventions, agreements, protocols, exchanges of notes and other synonyms all mean one and the same thing at international law—that they are international transactions of a legal character. Treaties are 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.20 Each treaty has four constituent elements: the capacity of the parties thereto to conclude agreement of the provisions of the treaty under international law; the intention of the parties to apply principles of international law when concluding agreement under a treaty; consensus ad idem or a meeting of the minds of the parties21