International Civil Aviation Organization (ICAO)
1. History of the ICAO
Due to the need for regulation of international air transport after World War II, the US government invited all the states involved in the war, as well as the neutral states (apart from Argentina) to an international conference in Chicago. The founding of the International Civil Aviation Organization (ICAO) was decided on 7 December 1944 with the signing of the Convention on International Civil Aviation. Of the 52 participating nations, 37 signed the agreement, whereupon the organization, with its seat in Montreal, provisionally began its work under the name Provisional International Civil Aviation Organization (PICAO). After achieving the required 26 ratifications, the Convention entered into force on 4 April 1947 and the PICAO was replaced by the ICAO. The seat of the organization remained in Montreal. One month later, on 13 May 1947, the ICAO was given the status of a specialized agency of the United Nations according to UN Charter Art 57. At present, 190 nations have joined the ICAO. Seven local offices responsible for nine air service areas in Bangkok, Cairo, Dakar, Lima, Mexico City, Nairobi and Paris have been established. The ICAO cooperates closely with other UN agencies, such as the World Meteorological Organization, the International Telecommunication Union, the Universal Postal Union, the World Health Organization and the International Maritime Organization. Many non-governmental organizations are also involved in the work of the ICAO, eg the International Air Transport Association or the International Federation of Air Line Pilots’ Associations.
2. The Chicago Convention on International Civil Aviation
The Convention created at the Chicago Conference on International Civil Aviation (also referred to as the Chicago Convention or ICAO-Convention) and the simultaneously concluded supplementary agreements (International Air Services Transit Agreement, International Air Transport Agreement) established principles that provided the basis for today’s civil air traffic.
The Convention states in Art 1 that each state maintains sovereignty over its airspace. It distinguishes between civil and state aircrafts, whereby the Convention only applies to civil aircraft and not to state aircraft (such as aircraft used in police or military service) (Art 3(a)). Furthermore, the Convention differentiates between scheduled air service and non-scheduled international air service. The latter is treated as privileged, as Art 5 permits non-scheduled flights into or across the airspace of a contracting state without obtaining prior permission. On the other hand, according to Art 6, scheduled air service may be operated only in accordance with the permission of that state. Thereafter, based on the Chicago Convention, several liberties over airspace have developed that are generally accepted in the community of nations. Bilateral aviation Conventions have been established based on these liberties, which govern the essential questions of air traffic between the different parties involved.
3. Tasks and objectives
The main objective of the ICAO is the promotion of international air traffic. Furthermore, uniform and universal regulation aims to ensure a safe and orderly development of civil aviation and to provide a uniform basis for operating international air services. According to Art 44 of the Chicago Convention, the ICAO develops principles and technical methods for the economical and safe development of international air traffic. More specifically, this includes ensuring the safe and orderly growth of international civil aviation throughout the world, promoting the construction and operation of aircraft for peaceful purposes, encouraging the development of airways, airports and air navigation facilities and preventing economic waste caused by unreasonable competition. In addition, the rights of the contracting states and their ability to operate international airlines are to be fully respected, any discrimination between the contracting states is to be avoided and the safety of flights is to be promoted. These goals are mainly realized by directives and recommendations. There is a wide uniformity in certain domains because of the adoption of the 18 annexes in numerous jurisdictions: accreditation of aircrews, air traffic rules, meteorological service, airline tickets, standardization of telecommunication, the operation of aircraft, the nationality and marking of aircraft, airworthiness, facilitation of aircraft approach and clearance, flight-signal service systems, air traffic control services, search and rescue services, flight accident investigation, classification and establishment of airports, flight information services, aircraft noise, air safety and safety regulation for the transportation of hazardous goods. These annexes are supplemented by numerous technical publications of the ICAO that foster further standardization and contribute to the integration of worldwide flight supervision, communication and search and rescue services. In other respects, the ICAO grants international development aid by delegating experts to developing countries and by providing financial resources for training purposes and training institutions in many countries.
The ICAO has three main bodies: the Council, the General Assembly and the General Secretariat.
The Council, as the permanent executive body, is elected by the General Assembly for a period of three years and consists of representatives of 36 contracting states. These are: first, the states of chief importance in air traffic; secondly, the states that make the largest contributions; and thirdly, the states who represent the major geographic areas of the world. The head of the Council is the Council President. The Council is the body with the broadest job description and, in practice, plays the most important role. It carries out not only the instructions of the assembly, looking after different administrative and managing tasks within the organization and financing of the ICAO, but it is also responsible for the adoption of international standards and recommended practices, which it can designate as annexes to the Convention. These annexes require the vote of two-thirds of the Council. Otherwise, decisions of the Council are made by a majority vote of its members without the possibility of veto. The Council is assisted in its work by four expert committees: the Air Navigation Commission (on technical issues and safety regulations); the Air Transport Committee (on economic questions such as economic planning, forecasting and collecting statistics); the Committee on Joint Support of Air Navigation Services (on the construction, maintenance and improvement of internationally used air navigation service appliances in areas without sovereignty over the airspace and on the financing of air navigation services facilities in those states which lack sufficient financial resources); and the Finance Committee (on the management, control and monitoring of the budget). Additional committees may be formed, partly on a continuing basis, but sometimes only as ad hoc committees.
The ICAO has seven regional offices which are responsible for nine different air navigation regions (Bangkok for Asia and the Pacific, Cairo for the Middle East, Dakar for West and Central Africa, Lima for South America, Mexico City for North and Central America and the Caribbean, Nairobi for East and South Africa and Paris for Europe and the North Atlantic). At the regular air navigation meetings, the particular problems of these air navigation regions are discussed and allocated to the respective Air Navigation Commission who will then prepare recommendations for the specific region.
Furthermore, the Council performs arbitral functions in the mediation of differences of opinion regarding the interpretation and application of the Chicago Convention and its annexes. The procedural rules are based on those of the ICJ (International Court of Justice). If the Council sees the possibility of negotiating a dispute bilaterally or multilaterally during an ongoing dispute settlement proceeding, it can encourage the parties to do so. The Council may call in individuals or groups to assist the mediation, as long as the involved parties consent. If these efforts do not lead to a resolution, the suspended dispute settlement proceedings may be continued. The members of the Council decide on the case at issue with a majority vote, though members of the Council are prohibited from voting in the consideration of any dispute to which they are privy (Art 84 Chicago Convention). The decision can be appealed to the ICJ. An arbitral tribunal may only review the decision if one of the contending parties is not a member of the ICJ Statute and if the parties can agree upon a composition of the tribunal. If the latter is not the case, a tribunal will be appointed by the Council President (Art 85 Chicago Convention). The decisions made by the ICJ or an arbitral tribunal are binding on the parties. Noteworthy is the fact that members of the Council are not to be regarded as independent judges, but rather as representatives elected by their states who make their decisions from a political perspective.
The sovereign body of the ICAO is the General Assembly, which is composed of representatives from all contracting states. The Assembly, in which every state is entitled to one vote, meets every three years. It is responsible, on the one hand, for determining the tasks of the other bodies and, on the other hand, for supervising their operations concerning law, economics and technology. The Assembly also determines the dues of the contracting states and outlines the budget of the organization.
The third ICAO body is the Secretariat, which is located at the seat of the organization in Montreal. It is headed by the Secretary General who is elected for a three-year period of office. The Secretary General assumes the role of the CEO of the organization. He manages the Secretariat as well as the seven regional offices. The tasks carried out in these offices are summarized and coordinated by the Secretariat. In addition, the Secretary General is in charge of the management and appointment of personnel. The Secretariat is divided into five main divisions: the Air Navigation Bureau, the Air Transport Bureau, the Technical Cooperation Bureau, the Legal Bureau and the Bureau of Administration and Services. Instructions by the Council are binding on the Secretariat.
The ICAO is primarily financed by the dues of the contracting states. The amount of these dues is based on the financial capability of the particular state. 75 per cent of the dues are in accordance with the UN scale, by which the amount of dues payable is reduced proportionally to decreasing per-capita income. The remaining 25 per cent is determined according to the specific share of the respective contracting state in global air traffic. The Assembly determines the budget and the proportional dues of each state for a three-year period.
6. Implementation into national law
The ICAO cannot directly set binding laws for its contracting states. Therefore, the states have to convert the elaborated guidelines and recommendations that appear in the form of annexes into their respective national law in order for them to take effect. After the adoption of the annexes by the Council with a two-thirds majority vote, according to Art 90 of the Chicago Convention, the Council submits the annexes to each contracting state. The states are given a three-month time limit to voice their objection, which can be extended by the Council. Thereafter, the annexes will become effective if the majority of the states do not oppose them. Where the necessary opposition exists, the annexes are not effective for any particular state. If the majority of the contracting states, however, do not oppose the annexes, this does not give rise to an automatic obligation for the contracting states to adopt the annexes into their national law. According to Art 38 of the Chicago Convention, the states can report differences between the national rules and the rules of the ICAO and are not obligated to implement the new rules into national law even in case of the acceptance of the annexes; rather, adoption is left to the state’s own decision. This so-called contracting out exists for all annexes with the exception of annex 12, which governs the so-called rules of the air.
7. Future developments
In the time since its foundation, the ICAO has provided proof of its competence, particularly concerning the unification of national rules for air traffic. The 18 annexes to the Chicago Convention are a particularly substantial contribution to the increase of flight safety. Today’s civil aviation law would be unimaginable without the ICAO. Particularly worth mentioning is the Convention for the Unification of Certain Rules for International Carriage by Air, concluded by the initiative of the ICAO in Montreal on 28 May 1999, which harmonizes and modernizes numerous rules on air carriage liability (air transportation (contractual liability)). Similarly, the ICAO has been able to meet the needs arising from technical advances and their resulting judicial requirements. Because of the technical character of the rules, the organization has remained widely unaffected by global political conflicts. The scope of the ICAO has expanded over the course of time and current developments, such as the use of satellites for communication and navigation, present new challenges. The threat of terrorism, brought into focus after 11 September 2001, and its impact on civil aviation is on the ICAO’s current agenda. The role of the ICAO in future international civil aviation will be determined not only by traditional, but also by such novel challenges.
Walter Schwenk, Handbuch des Luftverkehrsrechts (1981); Heiko F Schäffer, ‘Von Kitty Hawk nach Montreal—Der Weg zur International Civil Aviation Organisation (ICAO)’ (2003) 10 TranspR 377; Günther Unser, Die UNO: Aufgaben, Strukturen, Politik (2004); Knut Ipsen, Völkerrecht (2004); Heinrich Mensen, Moderne Flugsicherung (2004), Stephan Hobe and Otto Kimminich, Einführung in das Völkerrecht (2004); Walter Schwenk and Elmar Giemulla, Handbuch des Luftverkehrsrechts (2005); IH Ph Diederiks-Verschoor, An Introduction to Air Law (2006); Ludwig Weber, International Civil Aviation Organization (2007); Michael Milde, International Air Law and ICAO (2008); Jiefang Huang, Aviation Safety through the Rule of Law, ICAO’s Mechanisms and Practices (2009).