© The Author(s) 2015Ruwantissa AbeyratneRegulation of Commercial Space TransportSpringerBriefs in Law10.1007/978-3-319-12925-9_6
6. Legal Legitimacy of ICAO and Direction to Be Taken
Global Aviation Consultancies Inc., Cote Saint Luc, Québec, Canada
6.1 Legal Legitimacy
6.1.1 Applicable Principles
International organizations can generally only work on the basis of legal powers that are attributed to them. Presumably, these powers emanate from the sovereign States that form the membership of such organizations.1 Therefore, the logical conclusion is that if international organizations were to act beyond the powers accorded to them, they would be presumed to act ultra vires.2 A seminal judicial decision relating to the powers of international organizations was handed down by the Permanent Court of International Justice in 1922 in a case3 relating to the issue as to whether the International Labour Organization (set up to regulate international labour relations) was competent to regulate labour relations in the agricultural sector. The court proceeded on the basis that the competence of an international organization with regard to a particular function lay in the treaty provisions applicable to the functions of that organization and that the determination of such competence would be based on interpretation. In this instance the Court was of the view that, in its interpretation of the ILO treaty, the organization had the power to extend its scope of functions to the agricultural sector. Based on the wide scope of universality of ICAO recognized by the Chicago Conference, one could conclude without doubt that the principle of the ILO case could be applied to ICAO when it extends its functions to areas that are strictly non aviation, such as the development of technical specifications for the Machine Readable Travel Document (MRTD) which, although is not directly related to the techniques of air navigation and the economics of air transport is nonetheless related to aviation and therefore impact the development and well being of the aviation industry. A good example of this principle of implied extension is ICAO’s work on machine readable travel documents and the administration of the Public Key Directory.4 However, the principle of implied extension should be carefully applied, along the fundamental principle enunciated by Judge Green Hackworth in the 1949 Reparation for Injuries Case 5—that powers not expressed cannot freely be implied and that implied powers flow from a grant of express powers, and are limited to those that are necessary to the exercise of powers expressly granted.6
The universal solidarity of ICAO Contracting States that was recognized from the outset at the Chicago Conference brings to bear the need for States to be united in recognizing the effect of ICAO policy and decisions. This principle was given legal legitimacy in the ERTA decision7 handed down by the Court of Justice of the European Community in 1971. The court held that the competence of the European Community to conclude an agreement on road transport could not be impugned since the member States had recognized Community solidarity and that the Treaty of Rome which governed the Community admitted of a common policy on road transport which the Community regulated.
It should be noted that ICAO does not only derive implied authority from its Contracting States based on universality but it also has attribution from States to exercise certain powers. The doctrine of attribution of powers comes directly from the will of the founders, and in ICAO’s case, powers were attributed to ICAO when it was established as an international technical organization and a permanent civil aviation agency to administer the provisions of the Chicago Convention. In addition, ICAO could lay claims to what are now called “inherent powers” which give ICAO power to perform all acts that the Organization needs to perform to attain its aims not due to any specific source of organizational power but simply because ICAO inheres in organizationhood. Therefore, as long as acts are not prohibited in ICAO’s constituent document (the Chicago Convention), they must be considered legally valid.8
Over the past two decades the inherent powers doctrine has been attributed to the United Nations Organization and its specialized agencies on the basis that such organizations could be stultified if they were to be bogged down in a quagmire of interpretation and judicial determination in the exercise of their duties. The advantages of the inherent powers doctrine is twofold. Firstly, inherent powers are functional and help the organization concerned to reach its aims without being tied by legal niceties. Secondly, it relieves the organization of legal controls that might otherwise effectively preclude that organization from achieving its aims and objectives. The ability to exercise its inherent powers has enabled ICAO to address issues on aviation insurance and establish an insurance mechanism; perform mandatory audits on States in the fields of aviation safety and security; and establish a funding mechanism to finance aviation safety projects, all of which are not provided for in the Chicago Convention but are not expressly prohibited.
With regard to the conferral of powers by States to ICAO, States have followed the classic approach of doing so through an international treaty. However, neither is there explicit mention of such a conferral on ICAO in the Chicago Convention nor is there any description of ICAO’s powers, except for an exposition of ICAO’s aims and objectives. The Council of ICAO is designated both mandatory and permissive “functions”, although, as already discussed, the Council could impose certain measures when provisions of the Convention are not followed. Therefore States have not followed the usual style of conferral of powers in the case of ICAO, which, along the lines of the decision of the International Court of Justice in the 1996 WHO Advisory Opinion case9 was that the powers conferred on international organizations are normally the subject of express statement in their constituent instruments.10 This notwithstanding, it cannot be disputed that ICAO Contracting States have conferred certain powers on ICAO to perform its functions independently. For example, ICAO is a legal entity having the power to enter into legal agreements with legal entities including other international organizations with regard to the performance of its functions.
Conversely, an international organization must accept conferred powers on the basis of Article 34 of the Vienna Convention on the Law of Treaties which stipulates that a treaty does not create rights or obligations of a third State without its consent. This principle can be applied mutatis mutandis to an international organization such as ICAO. The conferral of powers on an international organization does not ipso facto curtail the powers of a State to act outside the purview of that organization unless a State has willingly limited its powers in that respect. This principle was recognized in the Lotus Case11 where the Provisional International Court of Justice held that a State can exercise powers on a unilateral basis even while the conferral to the Organization remains in force. The Court held that restrictions upon the independence of States cannot be presumed.12
ICAO’s conferred powers enable the Organization to adopt binding regulations by majority decision (which is usually unnecessary as most of ICAO policy is adopted through consensus). However, States could opt out of these policies or make reservations thereto, usually before such policy enters into force. This is because States have delegated power to ICAO to make decisions on the basis that they accept such decisions on the international plane. In such cases States could contract out and enter into binding agreements outside the purview of ICAO even on subjects on which ICAO has adopted policy. The only exception to this rule lies in the adoption of Standards in Annex 2 to the Chicago Convention on Rules of the Air, in particular navigation over the high seas and other over flight areas where freedom of flight prevails which all Contracting States are bound to follow in order to maintain global safety.
Given ICAO’s nature as a self standing legal entity, the Organization would be responsible for its internationally wrongful acts.13 As to the issue whether a State which has delegated powers to ICAO would be responsible for the wrongful acts of the Organization, a State is not bound by the Organization’s exercise of delegated powers14 and therefore it cannot be necessarily assumed that such acts would be attributable to the States unless such acts were the effect of the State’s own acts or omissions. Article 1 of the Articles of Responsibility of the International Law Commission (ILC) expressly stipulates that every internationally wrongful act entails the international responsibility of a State.15 The State cannot escape responsibility by seeking refuge behind the non-binding decision of an Organization in the case of delegation of powers. This is also the case where a State aids and abets an Organization to perform an internationally wrongful act.16
ICAO is an Organization established by the Chicago Convention and is composed of an Assembly, a Council and such other bodies as may be necessary. The Assembly and the Council are composed of Contracting States. The Assembly, composed of 189 Contracting States, has delegated its daily functions to the Council of 36 Member States which largely forms the decision making body of ICAO. Therefore it would not be incorrect to assume that any resolution adopted or decision taken by the ICAO Council can be imputed to ICAO’s Contracting States which have delegated powers on the Council. However, States retain the powers to act unilaterally and they are not bound to comply with obligations flowing from the Organization’s exercise of conferred powers. States which have delegated powers on ICAO have the legal right under public international law to take measures against a particular exercise by ICAO of conferred powers which is considered to be detournement de pouvoir, ultra vires or an internationally wrongful act with which the objecting States do not wish to be associated. A State could also distance itself from the State practice of other Contracting States within the Council if such activity is calculated to form customary international law that could in turn bind the objecting State if it does not persist in its objections.17
As discussed earlier in this book, a significant issue in the determination of ICAO’s effectiveness as an international organization is the overriding principle of universality and global participation of all its 191 Contracting States in the implementation of ICAO policy. This principle, which has its genesis in the Chicago Conference of 1944, has flowed on gaining express recognition of legal scholars. This is what makes ICAO unique as a specialized agency of the United Nations and establishes without any doubt that ICAO is not just a tool of cooperation among states.
ICAO is established by the Chicago Convention, but there is no explicit description of the Organization in the Convention except for a detailed expose of its aims and objectives in Article 44. This could well be due to the fact that the notion of an international organization to handle international civil aviation was established during the Chicago Conference of 1944 before the establishment of the United Nations, of which ICAO later became a specialized agency. Therefore, one has to go back to the discussions and proceedings of the Conference in order to determine the intention of the parties which led to establishing the meaning and purpose of ICAO.
Although at the Conference several proposals were placed on the table by the United States,18 United Kingdom,19 Canada20 and Australia and New Zealand jointly,21 consensus was finally reached on establishing an international technical organization—a permanent civil aviation agency to administer the provisions of the Chicago The distinguishing feature of ICAO was that its founding fathers were firmly of the view that an international technical organization such as ICAO must have universality and that the degree of urgency of universality was greater in the case of ICAO than, for example, the International Monetary Fund or the Food and Agriculture Organization.22 In support of this approach, Schenkman offers the practical illustration that if a non-member of ICAO were to operate an international air service that did not adhere to established ICAO rules of the air, the safety of operations of air services of all member States would be jeopardized.23 From an economic perspective, the same commentator quotes the instance of a non member State closing its air space to other nations, thus effectively precluding economic progress of the air transport industry. These examples illustrate the distinction earlier made between ICAO and other international organizations such as FAO and IMF where a non participating State might not do as harm to other States in its actions in the food and agriculture or monetary areas as much as it would in the field of air navigation and transport. Therefore, universal acceptance of ICAO by its member States was considered a sine qua non by the founding fathers of the Organization. Over the years this principle has grown in strength particularly in view of the exponential growth of air transport and the vast technological advances made in the field of air navigation and air transport.
It is worthy of note that the ICAO Assembly, at its First Session held in Montreal from 6 to 27 May 1947 resolved that:
Universal membership of in the International Civil Aviation Organization is desirable to achieve its maximum usefulness in promoting safety in the air and the efficient and orderly development of air transport.24
Therefore, it is incontrovertible that universal participation in ICAO by the contracting States is indispensable if ICAO were to effectively implement the provisions of the Chicago Convention. Sixty years of symbiotic existence have shown that States need ICAO no less than ICAO needs their membership.
ICAO is primarily governed by international law, being recognized by the United Nations Charter as a specialized agency of the United Nations. It is also governed by two major agreements, one between the United Nations and ICAO and the other between the Government of Canada and ICAO. The Headquarters Agreement between ICAO and Canada,25 in Article 2, explicitly provides that ICAO shall possess juridical personality and shall have the legal capacities of a body corporate including the capacity to contract; to acquire and dispose of movable and immovable property; and to institute legal proceedings in Canada Article 3 of the Agreement stipulates that ICAO, its property and its assets, wherever located and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial processes as is enjoyed in foreign States. (Assets include funds administered by the Organization in furtherance of its constitutional functions.)
The headquarters premises of ICAO is inviolable and is given the same protection by the Government of Canada as is given to diplomatic missions in Canada.26 The organization, its assets, income and property, owned or occupied in Canada are exempt from taxes27 as well as goods purchased under appropriate certificates from manufacturers or wholesalers who are licensed under the Excise Act.28
A seminal judicial decision relating to the powers of international organizations was handed down by the Permanent Court of International Justice in 1922 in a case29 relating to the issue as to whether the International Labour Organization (set up to regulate international labour relations) was competent to regulate labour relations in the agricultural sector. The court proceeded on the basis that the competence of an international organization with regard to a particular function lay in the treaty provisions applicable to the functions of that organization and that the determination of such competence would be based on interpretation. However, the principle of implied extension should be carefully applied, along the fundamental principle enunciated by Judge Green Hackworth in the 1949 Reparation for Injuries Case 30—that powers not expressed cannot freely be implied and that implied powers flow from a grant of express powers, and are limited to those that are necessary to the exercise of powers expressly granted.31
States retain the powers to act unilaterally and they are not bound to comply with obligations flowing from the Organization’s exercise of conferred powers. States which have delegated powers on ICAO have the legal right under public international law to take measures against a particular exercise by ICAO of conferred powers which is considered to be detournement de pouvoir, ultra vires or an internationally wrongful act with which the objecting States do not wish to be associated. A State could also distance itself from the State practice of other Contracting States within the Council if such activity is calculated to form customary international law that could in turn bind the objecting State if it does not persist in its objections.32
ICAO’s identity before courts having national jurisdiction would strictly be restricted to the nature of the organization and the type of work it carries out. Any special privilege accorded to ICAO by agreement or treaty would therefore be applicable only in relation to ICAO’s scope of work.33 Conceptually, it has been argued that in an instance of national litigation involving an international organization, courts would, in the event the litigious issue pertains to the work of that organization, apply the “functional theory” in an acta jure gestionis (commercial act), which means that the organization concerned will not be viewed as having special immunities or privileges. In the 1953 case of Re International Bank for Reconstruction and Development and International Monetary Fund v. All America Cables and Radio Inc., and other cable companies 34 the US Federal Communications Commission was confronted with the argument of the plaintiffs—the World Bank and the IMF—that the purpose of granting privileges and immunities to organizations located in the jurisdiction of a State where national law applied to contracts is to protect such organizations from unfair and undue interference including excessively high rates. The defendant (radio and cable) companies argued that there was no evidence or reason to allow the banks lower-than-commercial rates. The rationale that can be drawn from this case is that the purpose of immunity will be destitute of effect if courts were asked to determine the legality of an organization’s work if such inquiry were to obstruct the work of that organization.
A question arises as to what extent or within what parameters must a court apply the principle of functional immunity to commercial acts of an international organization. Courts have veered from one extreme, coming close to recognizing absolute immunity as in the case of Broadbent v. Organization of American States 35 to linking key activities of an organization, such as its interpretation and translation services to acta jure imperii (sovereign act) on the basis that language services were integral to the main functions of an organization.36
It is curious that, seven decades after the establishment of ICAO, some still refer to its powers and functions.37 There are some others who allude to ICAO’s mandate. The fact is that ICAO has only aims and objectives, recognized by the Chicago Convention which established the Organization. Broadly, those aims and objectives are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport. In effect, this bifurcation implicitly reflects the agreement of the international community of States which signed the Chicago Convention that ICAO could adopt Standards in the technical fields of air navigation and could only offer guidelines in the economic field. This exclusive right in the technical field initially bestowed on ICAO the authority to set standards for equipment and procedures on international air routes in the first years (1947–1949) of ICAO.38 This key task of standardizing technical specifications in air navigation gave rise to the realization that, apart from States that were most advanced in technology and could implement ICAO’s standards, there were numerous other States who could not implement the Standards, however, willing they would be, due to the lack of resources and know-how.39 This gave rise to offers of help by numerous member States of ICAO, and the technical assistance limb of ICAO was born.
One has, however, to note that the position of ICAO as an incipient regulator was quite different from the one it is placed in now. In 1949 ICAO was feeling the pulse of the world of civil aviation and formulating regulations. This was the year in which ICAO embarked upon a comprehensive study of the ground facilities operated by governments and the services that they provided.40 Traffic volumes were only beginning to pick up and passengers and cargo between North America and Europe were being carried by eleven carriers. Elsewhere, in South America direct east-west services went into operation for the first time.41 ICAO has a busy work schedule both in the technical and economic fields. The current and future role of ICAO does not therefore have to be reinvented. However, for the past 60 years or so, ICAO has been active in its standardization role, which has been blended in recent years with a burgeoning implementation role that is gradually blurring the former. In a world that is becoming largely globalized and regionalized, ICAO has vastly to focus on not so much what it does but how it does its work. In this context, ICAO has a dual role to play. The first is to act as a global forum for aviation, which is primarily the role expected of ICAO by the developed nations which are largely self reliant in regulatory matters. However, they need ICAO to set global standards that could apply to all ICAO’s 191 member States. On the other hand, ICAO has to be both a global forum and a mentor to the developing world which expects ICAO to assist and guide them.
In view of its clear empowerment by the States ICAO may have to rely on extending its aims and objectives to cover the development of principles and techniques of commercial space travel. Unless otherwise agreed by ICAO’s member States, ICAO’s existing aims and objectives, as recognized by Article 44 of the Chicago Convention would extend to insuring the safe and orderly growth of commercial space transport throughout the world; encouraging the arts of spacecraft design and operation for peaceful purposes; encouraging the development of airways, spaceports, and air navigation facilities insofar as they relate to commercial space transport; meeting the needs of the peoples of the world for safe, regular, efficient and commercial space transport; preventing economic waste caused by unreasonable competition; Insuring that the rights of Contracting States are fully respected and that every Contracting State has a fair opportunity to operate commercial space transport and spacecraft airlines; avoiding discrimination between Contracting States; promoting safety of space flight in international air navigation; and promoting generally the development of all aspects of aerospace engineering and technology.
The two main characteristics of ICAO are: that it is created by States, more specifically, as States themselves are abstractions, by duly authorized representatives of States; and that they are created by treaty, which is a written agreement signed by the States’ Parties to it and governed by international law. States can only act by and through their agents. Different government departments or Instrumentalities of State bear responsibility for different international organizations. In the case of ICAO, the most likely government department that would be responsible for the Organization within a State would be the Ministry or departments of transport or aviation as the case may be. The third characteristic that distinguishes an international organization as a “club” of States without just being the spokesperson or mouthpiece of those States is that it is expected to have a “will” of its own. ICAO’s independent will, recognized by the Government of Canada for purposes of its activities within the country is encapsulated in a provision in the Headquarters Agreement between ICAO and the Government of Canada which states that ICAO has an identity of its own, capable of entering into contracts. This having been said, ICAO is by no means sovereign in its own right, although courts have on occasion referred to sovereign rights of an organization merely to seek a compromise between absolute acceptance of parity between a State and an organization and absolute refusal of an international organization’s ability to perform acta jure imperii (governmental acts).
Within the parameters of its empowerment which ICAO attenuates from its member States ICAO should, in both air and space matters make a philosophical adjustment with a view to ensuring that it keep abreast of the new world order where States are increasingly being disaggregated into components which act in global networks, linking the world together in a manner that enables global trends to permeate the local environment. In other words, ICAO should facilitate interaction between States and their components that interact in matters of civil aviation and commercial space transport. For example, in many member States, aviation has numerous players in different areas such as customs and immigration, medical and quarantine, tourism, police, airports and air navigation service providers. In most instances these players do not act in accord, thus resulting in disharmony in the ultimate delivery of an efficient air transport product. This could well be the case also in space transport. ICAO’s Mission and Vision Statement exhorts ICAO to do just what is needed—to in acting as the global forum in the key areas of concern to international civil aviation through cooperation between its member States.
While promoting fluid dialogue and cooperation among its member States, ICAO should take the initiative to assist States both in technical and economic issues. This assistance is not confined to providing technical assistance through projects administered by the Technical Cooperation Bureau but should also extend to providing guidance, mainly to States which still look up to ICAO as the global forum of aviation experts.
ICAO could also give consideration to its role in technical cooperation in commercial space activities. ICAO could cooperate with States and other relevant entities to provide technical assistance taking into account the priorities of States and ICAO policy in implementing the Strategic Objectives42 of ICAO. This cooperation will be forged primarily through projects, particularly where such projects are necessary for the provision of vital air transport infrastructure and/or the economic development of a State. In implementing this Policy, ICAO will optimally use its resources both at Headquarters and its Regional Offices and apply the principles enunciated in the relevant ICAO Assembly Resolutions, guidance and policy.
Overall responsibility for the implementation and continued evolution of this Policy devolves upon the Secretary General of ICAO, assisted by the Director, Technical Cooperation Bureau. As necessary and where relevant, this Policy will be incorporated into the ICAO workplace through the Organization’s Business Plan.
6.1.2 Technical Assistance
It is an interesting fact that the Chicago Convention, from which ICAO derives its legal legitimacy, does not contain a single reference to technical assistance to be rendered by ICAO. Yet the Technical Cooperation Programme (TCP)43 of ICAO which is executed by the Technical Cooperation Bureau (TCB) that was established in 1952, has maintained a sustained record of technical assistance provided to States over a span of 60 years. TCP is the major operational tool for reinforcing the Organization’s technical cooperation mission objectives, including enhancing the capacity of developing countries to implement ICAO Standards and Recommended Practices (SARPs). Its continuing importance has been reaffirmed by the Assembly in several resolutions, inter alia in the Consolidated Statement of ICAO Policies on Technical Co-operation (Resolution A36-17), which stipulates that the Technical Co-operation Programme is a permanent priority activity of ICAO that complements the role of the Regular Programme in providing support to States in the effective implementation of SARPs and Air Navigation Plans (ANPs) as well as in the development of their civil aviation administration infrastructure and human resources; and is furthermore one of the main instruments of ICAO to assist States in remedying the safety and security deficiencies identified through ICAO’s audit programmes.
6.1.3 Dispute Settlement
ICAO could also give detailed consideration to its dispute settlement in commercial space transportation activities. It should not be forgotten that another positive feature of ICAO, which lends itself well to the Organization’s possible involvement in outer space activities, is its proven competence in mediation during the settlement of disputes. A preeminent feature of the ICAO Council is its indomitable resolve to address its deliberations to purely technical issues pertaining to any dispute, while stringently avoiding political issues and pitfalls. This is certainly true of all disputes brought before the Council, where the Council restricted its scope to technical issues as applicable to the principles embodied in the Chicago Convention. At present The Council has therefore the power under the Chicago Convention to adjudicate disputes between the member States of ICAO on matters pertaining to international civil aviation. As already mentioned, the Council is a permanent body responsible to the ICAO Assembly and is composed of 36 Contracting States elected by the Assembly. It has its genesis in the Interim Council of the Provisional International Civil Aviation Organization (PICAO).44 PICAO occupied such legal capacity as may have been necessary for the performance of its functions and was recognised as having full juridical personality wherever compatible with the Constitution and the laws of the State concerned.45 The definitive word “juridical” attributed to PICAO a mere judicial function, unequivocally stipulating that the organization and its component bodies, such as the Interim Council were obligated to remain within the legal parameters allocated to them by the Interim Agreement46 and that PICAO was of a purely technical and advisory nature. A legislative or quasi-legislative function could not therefore be imputed to the Interim Council of PICAO. It could mostly study, interpret and advise on standards and procedures47 and make recommendations with respect to technical matters through the Committee on Air Navigation.48 The International Civil Aviation Organization (ICAO) which saw the light of day on April 4, 1947 derived the fundamental postulates of its technical and administrative structure from its progenitor—PICAO—and it would seem reasonable to attribute a certain affinity ipso facto between the two organizations and hence, their Councils. One of the Council’s functions is to consider any matter relating to the Convention which any Contracting State refers to it.49 Since one of the distinctive features of the ICAO Council is its ability to make rules for international civil aviation, it follows incontrovertibly that the Council’s dispute resolution powers are compelling.
The ICAO Council has played a signal role in dispute resolution in the nineties up to date. Over the past two decades. One of the best examples of ICAO’s role in the international community was seen in The Iran air Incident—IR 655 (Iran, United States 1998). This concerned the shooting down of an Iran Air Airbus A300 (IR655) carrying commercial passengers on a scheduled flight from Bandar-Abbas (Iran) to Dubai. The aircraft was brought down by the U.S.S. Vincennes over the Persian Gulf, resulting in the death of all 290 persons on board the aircraft.
One of the emergent features of the ICAO Council which became clear at its deliberations was the Council’s resolve to address its deliberations to purely technical issues pertaining to the incident, while stringently avoiding political issues and diplomatic pitfalls. This is certainly true of all incidents discussed above, where the Council restricted its scope to technical issues as applicable to the principles embodied in the Chicago Convention
However, there seems to be an unfortunate dichotomy in terminology in the Convention since on the one hand, Article 54(n) makes it mandatory that the Council shall merely consider any matter relating to the Convention which any Contracting State refers to it, while on the other, Article 84 categorically states that any disagreement between two or more States relating to the interpretation or application of the Convention and its Annexes, that cannot be settled by negotiation shall…be decided by the Council. The difficulty arises on a strict interpretation of Article 54(n) where even a disagreement between two States as envisaged under Article 84 could well be considered as ‘any matter’ under Article 54(n). In such an instance, the Council could well be faced with the dilemma of choosing between the two provisions. It would not be incorrect for the Council to merely consider a matter placed before it, although a decision is requested by the applicant State, since, Article 54(n) is perceived to be comprehensive as the operative and controlling provision that lays down mandatory functions of the Council. It is indeed unfortunate that these two provisions obfuscate the issue which otherwise would have given a clear picture of the decision making powers of the Council. A further thread in the fabric of adjudicatory powers of the Council is found in Article 14 of the Rules of Settlement promulgated by the Council in 195750 which allows the Council to request the parties in dispute to engage in direct negotiations at any time.51 This emphasis on conciliation has prompted the view that the Council, under Article 84 would favour the settling of disputes rather than adjudicating them.52 This view seems compatible with the proposition that the consideration of a matter under Article 54(n) would be a more attractive approach in limine in a matter of dispute between two States.
Milde noted in 1979:
The Council of ICAO cannot be considered a suitable body for adjudication in the proper sense of the word – i.e. settlement of disputes by judges and solely on the basis of respect for law. The Council is composed of States (not independent individuals) and its decisions would always be based on policy and equity considerations rather than on pure legal grounds…truly legal disputes…can be settled only by a true judicial body which can bring into the procedure full judicial detachment, independence and expertise. The under-employed ICJ is the most suitable body for such types of disputes.53
The perceived inadequacies of the ICAO Council in being ethically unsuitable to decide on disputes between States can only be alleviated by the thought that the members of the Council are presumed to be well versed in matters of international civil aviation and therefore would be deemed to be better equipped to comprehend the issues placed before them than the distinguished members of the International Court of Justice, some of whom may not be experts of international air law. Nonetheless, there is no doubt that the ICAO Council possess juridical powers54 and that as one commentator said:
If ICAO did not exist, it would have to be invented; otherwise, international civil aviation would not function with the safety, efficiency and regularity that it has achieved today.55
International organizations can generally only work on the basis of legal powers that are attributed to them. Presumably, these powers emanate from the sovereign States that form the membership of such organizations. Therefore, the logical conclusion is that if international organizations were to act beyond the powers accorded to them, they would be presumed to act ultra vires or beyond the scope of their mandate. The universal solidarity of UN Contracting States that was recognized from the outset at the establishment of the Organization brings to bear the need for States to be united in recognizing the effect of UN policy and decisions. This principle was given legal legitimacy in the 1971 decision concerning the European Road Transport Agreement handed down by the Court of Justice of the European Community. The court held that the competence of the European Community to conclude an agreement on road transport could not be impugned since the member States had recognized Community solidarity and that the Treaty of Rome which governed the Community admitted of a common policy on road transport which the Community regulated.
It should be noted that the United Nations does not only derive implied authority from its Contracting States based on universality but it also has attribution from States to exercise certain powers. The doctrine of attribution of powers comes directly from the will of the founders, and in the UN’s case, powers were attributed to the Organization when it was established as an international organization that would administer the provisions of the United Nations Charter. In addition, the UN could lay claims to what are now called “inherent powers” which give it power to perform all acts that the Organization needs to perform to attain its aims not due to any specific source of organizational power but simply because the United Nations inheres in organizationhood. Therefore, as long as acts are not prohibited in the UN’s constituent document (the Un Charter), they must be considered legally valid.
Over the past two decades the inherent powers doctrine has been attributed to the United Nations Organization and its specialized agencies on the basis that such organizations could be stultified if they were to be bogged down in a quagmire of interpretation and judicial determination in the exercise of their duties. The advantages of the inherent powers doctrine is twofold. Firstly, inherent powers are functional and help the organization concerned to reach its aims without being tied by legal niceties. Secondly, it relieves the organization of legal controls that might otherwise effectively preclude that organization from achieving its aims and objectives. The ability to exercise its inherent powers has enabled the UN to address issues on promoting self determination and independence, strengthening international law, handing down judicial settlements of major international disputes, providing humanitarian aid to victims of conflict, alleviating chronic hunger and rural poverty in developing countries and promoting women’s rights, just to name a few.