How Effective Has ICAO Been as a Dispute Settlement Body - Research Paper Example

RESEARCH PROJECT: How effective has ICAO been as a dispute settlement body? What role does ICAO have under its charter to resolve disputes between Member States? INTRODUCTION One of the many functions of the International Civil Aviation Organization (ICAO) is to bring together States and major aviation industry organizations to establish policies and standards, and resolution of strategic directions on essential issues. Chapter XVIII of the Chicago Convention, which deals with disputes and default (Articles 84-88), establishes the aims and goals of ICAO in the matter of settling disputes. Against this backdrop, this paper assesses the effectiveness of ICAO in resolving aviation disputes between contracting States. It also examines the roles that ICAO plays under its charter to resolve disputes between the contracting states. ICAO BACKGROUND INFORMATION ICAO was established in 1944 as a United Nations (UN) organ to promote the safe and orderly development of international civil aviation all over the world. Initially, the organisation was created as the Provisional International Civil Aviation Organization (PICAO), which later became ICAO in 1947 (Diederiks-Verschoor & Butler, 2006, p. 45). The organization sets standards and regulations for aviation, security, safety, efficiency, and regularity among other areas. By resolving disputes between its member States, ICAO also serves as a forum for cooperation in all fields of civil aviation among the 190 contracting nations (UN, 2008, p. 59). The ICAO Council (hereunder the “Council”) is the organ of ICAO charged with the responsibility to handle matters of technical, legal and economic nature – of which dispute settlement between member States is included (Diederiks-Verschoor & Butler, 2006, p. 45). The other organ of ICAO is the Assembly (Diederiks-Verschoor & Butler, 2006, p. 45). EFFECTIVENESS OF ICAO AS A DISPUTE SETTLEMENT BODY The effectiveness of ICAO as a dispute settling body can be evaluated by looking at the organisation’s powers. Chapter XVIII of the Chicago Convention formalises the arbitral powers of the Council through the wording of Article 84 regarding settlement of disputes: “If any disagreement between two or more contracting States relating to the interpretation or application of this Convention and its Annexes cannot be settled by negotiation, it shall, on the application of any State concerned in the disagreement, be decided by the Council” (Chicago Convention). The above provision of Article 84 of the Chicago Convention exhibits two important points. First is that the ICAO member States ought to make an effort to resolve their disputes by themselves, through negotiations. The second point is that the word “shall” in the provision asserts the decision making powers of ICAO as an indisputably mandatory character as argued by Abeyratne (1995, p. 280). This point is further reinforced in Article 86 of the Convention which indicates that unless the Council decides otherwise, the decision made by the Council on whether an international airline is operating in conformity with the provision of the Convention shall stand unless they are reversed in an appeal. Thus, as Abeyratne (1995, p. 280) notes, a decision taken by the Council is “juridically” dignified by Article 86 of the Convention”. Furthermore, the ICAO Council has the powers of sanction granted by the Convention, in case any decision that it makes is not adhered to (Abeyratne, 1995, p. 281). ICAO’s power to impose sanctions due to disputes Discussing the powers of sanction granted to ICAO by the Convention, Schenkman (cited by Abeyratne, 1995, p. 281) argues that “the power of sanctions in this field is an entirely new phenomenon, attributed to an aeronautical body…none of the pre-war instruments in the field of aviation had the power of sanctions as a means of enforcement of its decisions.” This means that ICAO emerged as a body that could discipline errant aviation industry players, which is a new occurrence that had never happened before. This is stated clearly in Article 87 of the Chicago Convention that pertains to penalties for non-conformity of airline: “Each contracting State undertakes not to allow the operation of an airline of a contracting State through the airspace above its territory if the Council has decided that the airline concerned is not conforming to a final decision rendered in accordance with the previous Article” (Chicago Convention). The essence of Article 87 is that it is necessary for the ICAO Council to make a determination that the airline in question is not abiding by a final decision before applying the sanction. Thus, ICAO is depicted as an impartial body willing to make a determination before imposing any sanction. As Kohona (1985, p. 248) points out, prima facie, such a decision would involve severe economic ramifications to the defaulting airline, and therefore, would have to be meticulously arrived at. But the power of ICAO to impose sanctions against an aggressor in a dispute is questionable. For instance, would it be possible to impose sanctions against an airline of a State that generates a high proportion of air traffic such as the USA? The answer seems to be in the negative, and history shows that ICAO has imposed only very few sanctions since it was established. For a country like USA which has the potential for massive air traffic, it could retaliate by barring the other members of the ICAO from overflying its space, thus inflicting economic harm on them, possibly of a higher magnitude than that caused to itself by the imposition of the original sanction (Kohona, 1985, p. 248). ICAO can also be deemed to have little power to intervene in what the world’s major powers can do regarding disputes. For instance, when a Pakistani aircraft was hijacked to Afghanistan in 1981, the G7 governments deemed that the Afghan government had failed to conform to its obligations under the Hague Convention and imposed sanctions (MacKenzie, 2010, p. 272). Even then, this action did not have a major impact on international aviation, as out of the G7 States, only France, the United Kingdom and Germany had air services to Afghanistan and terminated them (MacKenzie, 2010, p. 273). This example illustrates ICAO’s failure to agree on the use of sanctions, and that despite the existence of ICAO, some States would still act independently of the organization in settling aviation disputes. ICAO’s mediation/arbitration perspective in settling disputes According to Kirgis (1995, p. 843), the Chicago Convention established a formal procedure by which ICAO may settle disputes between two or more member States as pertains to the interpretation or application of the Convention as well as its annexes. There are also other multilateral aviation agreements that make use of the Council’s dispute settlement power. In case any member State is involved in a disagreement with another, it may refer the case to the Council if it cannot be settled through negotiation. This form of settling disputes was adopted in a number of disputes starting from the 1950s, notably a case between Israel and Egypt, two cases between India and Pakistan, a case between Spain and the United Kingdom, and another between the United States and 15 States of the European Union (MacKenzie, 2010, p. 199; Joyner, 1995, p. 843). Israel v. Egypt During the 1950s and beyond Israel’s neighbours discriminated against Israelis and Israel aircraft (MacKenzie, 2010, p. 199). As a result of this hostility, Egypt barred Israelis from the Cairo regional office and there was no communication between Lod Airport in Tel Aviv and Cairo. Israel complained to ICAO about the discrimination against its aircraft, which clearly contravened the Chicago Convention, but found sympathy from a section of States and aggression from others. In fact, Egypt reminded ICAO that the discrimination against Israel was based on the presence of a technical state of war between Israel and her neighbouring states. Consequently, there was little that the Council would do (MacKenzie, 2010, p. 199). United Kingdom v. Spain (1967) The United Kingdom government submitted an application and memorial claiming that the government of Spain had established a prohibited zone in the Bay of Algeciraz adjacent to the British Airport of Gibraltar (Milde, 2008, p. 189). The United Kingdom claimed that this was a contravention of Article 9 of the Chicago Convention since the extent and location of the prohibited zone was not practical and this interfered unnecessarily with aviation. The cause of the dispute was a political problem and the existing tension between Spain and the United Kingdom with reference to the legal status of Gibraltar that was handled also on a bilateral basis and in other channels, including the UN. The ICAO Council was thus well aware of the matter, but proceeded very slowly, without dealing with the substance of the matter. Milde (2008, p. 189) argues that it must have been clear to the parties that because of the demonstrably political nature of the issue underlying the aviation aspects, no decision could be expected from the Council. In deed, the matter ended with an “inconclusive conclusion”, meaning that technically the case is still pending at ICAO; and could be revived at any time (Milde, 2008, p. 189). The matter could appear amicably resolved if ICAO had recorded discontinuance of the proceedings or if it had adopted a decision on the merits of the aeronautical nature regardless of any political underlying issue. Notably, policy consideration prevailed in the case and the adversarial type of proceedings were not pressed by the Council or by the parties. Milde (2008, p. 189) notes that this approach taken in the case “may appear to be incorrect in theory but the prudent approach of the Council in this matter helped to achieve or preserve an acceptable international modus vivendi in the matter without a direct confrontation which any adjudication based exclusively on legal considerations would have undoubtedly entailed”. Pakistan v. India (1971) In this matter, Pakistan presented two cases. The first case was an application under Article 84 of the Chicago Convention and Section 2 of the Transit Agreement while the second case was a complaint under Section 1 of Article II of the Transit Agreement (Milde, 2008, p. 190). The fact of the matter was that on 4 February 1971 India had suspended all overflight rights of the Indian territory by Pakistani airplanes. Subsequently, India effectively cut off any economically viable air communications between East and West Pakistan. India did not lodge a counter-memorial but filed a preliminary objection questioning the jurisdiction of ICAO to handle the matter. India’s contention was that the operation of the fundamental treaties (i.e. the Chicago Convention and the Transit Agreement) had been suspended because of the hostilities between in the two countries in 1965 and their application was not fully revived after the Tashkent Declaration (Milde, 2008, p. 190). In addition, India relied on Article 89 of the Chicago Convention that would allow it “freedom of action in case there was war or an emergency (Milde, 2008, p. 190). The ICAO Council rejected India’s submissions and determined that it had taken jurisdiction to consider Pakistan’s complaint (Trapp, 2011, p. 225-226). But India was not satisfied with this decision and went further to appeal to the International Court of Justice (ICJ), pursuant to Article 84 of the Chicago Convention. The ICJ confirmed that in deed ICAO had the jurisdiction to consider the legality of India’s measures against Pakistan. But after ICJ’s decision, the matter was settled in an out-of-court agreement between India and Pakistan and was removed from the Council’s agenda. Consequently, a final decision on the legality of India’s measures against Pakistan was never reached (Trapp, 2011, p. 226). The dispute between Pakistan and India clearly shows one of the intricacies inherent in the application of international law, and particularly questions the effectiveness of international dispute-settling organisations such as ICAO in handling such disputes. The United States v. 15 States of the European Union (2000) According to Milde (2008, p. 192), this was the last formal dispute so far presented to the ICAO Council under Chapter XVIII of the Chicago Convention. The US presented a case against the then 15 States of the EU since the EU itself could not be a respondent according to Article 84 of the Chicago Convention, even though it was an EU Regulation that elicited the dispute. The subject of the Regulation was a flagrant departure from Annex 16 of ICAO that would not prevent aircraft of “Chapter 2” noise level to be modified to achieve a “Chapter 3” noise certification. The EU wanted to eliminate from its airspace any “recertified civil subsonic jet aeroplanes” as of 1 April 2002. Whereas the direct thought may have been to minimize noise levels in the European airspace, it did not concern the aircraft fleets of the European states manufactured by European companies specifically to meet Chapter 3 standards. On the other hand, all Boeing 707, Boeing 727 and the initial Boeing 737 made in the US – although hush kitted to conform to Chapter 3 noise certification and still having a prolonged economic and significant operational lifespan – would not be permissible in European airspace if their engine by-pass ratio was three to one. The US wanted clarification whether the by-pass ratio was the real benchmark for the assessment of the noise level. The implication would have been that many US carriers’ airplanes would have directly faced elimination from the European airspace, and similarly, some US aircraft, engine and hush kit manufacturers would have suffered economic losses (Milde, 2008, p. 192-193). According to Milde (2008, p. 193), The EU States lodged a preliminary objection to the jurisdiction of ICAO, claiming inter alia, that negotiations had not been exhausted. The ICAO Council unanimously asserted its jurisdiction over the matter and the EU states did not appeal but submitted their counter-memorial on the merits. Nonetheless, negotiations continued and the parties and the Council finally reached an agreement. The EU revoked Regulation 925/1999 by Directive 2002/30 on 26 March 2002 and the parties agreed to discontinue the proceedings (Milde, 2008, p. 193). Therefore again, ICAO did not produce a decision in the dispute, which had major proportions of operational and economic corollaries. All the cases above indicate that ICAO has shown little effectiveness in settling major disputes. As MacKenzie (2010, p. 201) argues, “The ICAO Council has significant ability to arbitrate and adjudicate disputes between its members, at least on paper”. There are only few cases in which ICAO’s power was effective and led to amicable settlements of relatively minor problems. But as evidenced by the cases discussed above, ICAO seems to avoid matters that have significant economic and political ramifications. MacKenzie (2010, p. 201) further notes that “the Council has shown itself very cautious in using power, however, preferring to encourage a negotiated settlement in all cases rather than forcing a decision on either party”. This point again emphasises Article 84 of the Chicago Convention that encourages parties in a dispute to resolve the disputes by themselves – within which ICAO operates. Therefore, ICAO’s secret has been to keep the parties in a dispute talking and, in many cases, letting them make arrangements to settle things. Additionally, ICAO does not employ coercion in technical matters, and the same philosophy is applied in dispute resolution. The organisation has had limited success when the parties concerned are willing to let it help, but when the parties in dispute are not willing to accept ICAO’s intervention, the Council has a more disappointing track record (MacKenzie, 2010, p. 201). ICAO’S ROLE IN RESOLVING DISPUTES BETWEEN MEMBER STATES Formal dispute settlement process Under Article 84 of the Chicago Convention, there is a procedure for resolving disputes between two or more member States relating to the understanding and application of the Convention. Under this provision, ICAO plays an adjudicative role. However, such decision by the Council may be appealed either to include an ad hoc arbitral tribunal or the ICJ (Nase, 2003, p. 1; Kirgis, 1995, p. 843). Article 85 of the Chicago Convention distinctly provides for this appeal. In case a member is not concerned in a dispute or does not agree with the Statute of the ICJ and the contracting parties are not able to agree on the choice of the arbitral tribunal, each of the disputing parties names one arbitrator from a list of arbitrators maintained by the ICAO Council (Nase, 2003, p.1). The list comprises air transport experts nominated by international organizations or States which are willing to act as mediators or as members of the dispute settlement panel (ICAO Secretariat, 2003, p. 2). In case the disputants cannot settle on a party from the list, the ICAO Council President selects an “umpire” from the list (Nase, 2003, p. 1). Thus, the arbitrators and the umpire constitute the arbitral tribunal that hears the appeal. Decisions made about the appeal are final and binding upon the parties. For instance, if an airline does not comply with a final decision, member States agree not to permit it to operate through their airspace; and if a member fails to comply, the ICAO Assembly is required to suspend its voting power in the Assembly as well as the Council (Kirgis, 1995, p. 843). Informal dispute resolution process The Council President has, in various cases, used his offices to mediate differences between member States (Kirgis, 1995, p. 845). In such cases, official records are not kept, and as Kirgis (1995, p. 845) notes, it seems that the process has helped to avert relatively minor disagreements from growing into major disputes. The Council has also been used in a number of politically sensitive situations. Due to the reliability of the office of the President of the Council, the respect that those who have served in the office have earned, and the autonomy they enjoy from governmental instructions, they are distinctively capable of defusing disputes that do not have a highly notable political content. Under Article 54(n) of the Chicago Convention, the ICAO Council must consider any issue relating to the Convention which any contracting state refers to it. In accordance with Article 55(e), the Council may, at the request of any member state, investigate and report on any situation that may appear to pose avoidable obstacles to the development of international air navigation. Through the power embodied in these articles, the Council or its President may act a mediator in a dispute (Kirgis, 1995, p. 845). CONCLUSION In conclusion, ICAO’s performance in settling disputes has been mixed. In some cases, the organisation has been firm to the extent of imposing sanctions against parties found to have acted in contravention of the stipulations in the Chicago Convention. But the Council seems to be cautious in making decisions because its actions could have serious economic and political ramifications to the parties involved. In such cases, ICAO has avoided confrontation, instead letting the parties in dispute to “talk”, with the hope that doing so would help the parties to work things out. Significantly, ICAO does not use coercion, and hence it has been effective only in cases where the States in dispute are willing to allow it to intervene in the dispute. Where States are not willing to cooperate and where the consequences of making firm decisions are perceived to be dire, ICAO’s role has been wanting. ICAO’s role in dispute settlement has been both formal and informal. Under the formal dispute settlement process, Article 84 of the Chicago Convention sets out the procedure for resolving disputes, and is supported by Article 85 which provides for appealing. Under the informal dispute resolution process, ICAO has intervened through mediation of many minor disagreements to avert major disputes. This occurs under the guidance of Articles 54(n) and 55(e) of the Chicago Convention. References Abeyratne, R. I. H. (1995). Legal and regulatory issues of computer reservation systems and code sharing agreements in air transport. Biarritz: Atlantica Séguier Frontières. Chicago Convention (1944). Convention on International Civil Aviation, signed at Chicago, on 7 December 1944 (Chicago Convention). Retrieved 02 November 2012, from http://www.mcgill.ca/files/iasl/chicago1944a.pdf Diederiks-Verschoor, I. H. P. & Butler M. A. (2006). An introduction to air law (8th edition). Alphen aan den Rijn: Kluwer Law International. ICAO Secretariat (2003). “Improving dispute settlement in a liberalized environment.” Paper Presented at the Worldwide Air Transport Conference: Challenges and Opportunities of Liberalization, Montreal, 24 to 29 March 2003. Retrieved 04 November 2012, from http://www.icao.int/Meetings/ATConf5/Documents/ATConf5_wp015_en.pdf Kirgis, F. L. (1995). “Aviation”. In Schachter, O. & Joyner, C. (eds). United Nations legal order Volume 2. Cambridge: The American Society of International Law. Chapter 18, pp. 825-858. Kohona, P. T. B. (1985). The regulation of international economic relations through law. Leiden: Brill. MacKenzie D. (2010). ICAO: A history of the International Civil Aviation Organization. Toronto: University of Toronto Press. Milde, M. (2008). International air law and ICAO. The Hague: Eleven International Publishing. Nase, V. (2003). “ADR and international aviation disputes between states — Part 2.” ADR Bulletin, 6(6), 1-6. 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