the chicago convention as the constitution of an international (civil aviation) organization...

The Chicago Convention as The Chicago Convention as the Constitution of an the Constitution of an

International (Civil Aviation) International (Civil Aviation) OrganizationOrganization

Professor Dr. Paul Stephen Professor Dr. Paul Stephen DempseyDempsey

Director, Institute of Air & Space LawDirector, Institute of Air & Space LawMcGill UniversityMcGill University

Copyright Copyright © 2014 by Paul Stephen Dempsey© 2014 by Paul Stephen Dempsey

The Chicago Convention of The Chicago Convention of 1944 has two principal 1944 has two principal

functions:functions:I.I. THE CHICAGO CONVENTION IS A SOURCE THE CHICAGO CONVENTION IS A SOURCE

OF INTERNATIONAL AIR LAW (Articles 1-OF INTERNATIONAL AIR LAW (Articles 1-42)42)

II.II. THE CHICAGO CONVENTION IS THE THE CHICAGO CONVENTION IS THE CONSTITUTION OF AN INTERNATIONAL CONSTITUTION OF AN INTERNATIONAL ORGANIZATION (Articles 43-96) - ICAOORGANIZATION (Articles 43-96) - ICAO

The Chicago ConferenceThe Chicago Conference

The Chicago Conference laid The Chicago Conference laid the foundation for the postwar the foundation for the postwar establishment of the establishment of the International Civil Aviation International Civil Aviation Organization [ICAO].Organization [ICAO].The Provisional International The Provisional International Civil Aviation Organization Civil Aviation Organization [PICAO] functioned from June 6, [PICAO] functioned from June 6, 1945, until April 4, 1947. 1945, until April 4, 1947.

ICAO began operations April 4, ICAO began operations April 4, 1947, and that same year was 1947, and that same year was included under the umbrella of included under the umbrella of the United Nations’ Economic the United Nations’ Economic

and Social Council [ECOSOC].and Social Council [ECOSOC].

ICAO TodayICAO Today

• A specialized branch of the A specialized branch of the United Nations;United Nations;

• Headquartered in Montreal, Headquartered in Montreal, with regional offices in with regional offices in Paris, Dakar, Cairo, Paris, Dakar, Cairo, Nairobi, Bangkok, Mexico Nairobi, Bangkok, Mexico City & Lima.City & Lima.

• 191 member States (one 191 member States (one less than membership in less than membership in the UN).the UN).

ICAO’s Objectives under Art. 44ICAO’s Objectives under Art. 44• Ensure the safe and orderly growth of international civil aviation Ensure the safe and orderly growth of international civil aviation

throughout the world.throughout the world.• Encourage the arts of aircraft design and operation for peaceful Encourage the arts of aircraft design and operation for peaceful

purposes.purposes.• Encourage the development of airways, airports and air navigation Encourage the development of airways, airports and air navigation

facilities for international civil aviation.facilities for international civil aviation.• Meet the needs of the people of the world for safe, regular, efficient Meet the needs of the people of the world for safe, regular, efficient

and economical air transport.and economical air transport.• Prevent economic waste caused by unreasonable competition.Prevent economic waste caused by unreasonable competition.• Ensure that the rights of the Contracting States are fully respected Ensure that the rights of the Contracting States are fully respected

and that every Contracting State has a fair opportunity to operate and that every Contracting State has a fair opportunity to operate international airlines.international airlines.

• Avoid discrimination between Contracting States.Avoid discrimination between Contracting States.• Promote safety of flight in international air navigation.Promote safety of flight in international air navigation.• Promote generally the development of all aspects of international Promote generally the development of all aspects of international

civil aeronautics.civil aeronautics.

ICAO’s Organizational StructureICAO’s Organizational Structure

• ICAO is comprised of an Assembly, a ICAO is comprised of an Assembly, a Council and a Secretariat. Council and a Secretariat.

• The principal officers of ICAO are the The principal officers of ICAO are the President of the Council, and the President of the Council, and the Secretary General. Secretary General.

The ICAO SecretariatThe ICAO Secretariat

The Secretariat is headed by the Secretary The Secretariat is headed by the Secretary General elected by the Council. General elected by the Council. The Secretariat is divided into five principal The Secretariat is divided into five principal divisions corresponding to the committees and divisions corresponding to the committees and commissions of the Council: commissions of the Council:

the Air Navigation Bureau, the Air Navigation Bureau, the Air Transport Bureau, the Air Transport Bureau, the Technical Co-operation Bureau, the Technical Co-operation Bureau, the Legal Bureau, and the Legal Bureau, and the Bureau of Administration and Services.the Bureau of Administration and Services.

ASSEMBLY

COUNCIL

PRESIDENT

Air Navigation Commission

Air Transport Committee

Personnel Committee

Technical Cooperation Committee

Committee on Unlawful Interference

Finance Committee

Committee on Joint Supportof Air Navigation Services

SECRETARY-GENERAL

Air Navigation Bureau

Air Transport Bureau

Legal Affairs & External RelationsBureau

Technical Cooperation Bureau

Bureau of Administrationand Services

The AssemblyThe Assembly

• Composed of representatives from all 191 Composed of representatives from all 191 Contracting States, the ICAO Assembly is the Contracting States, the ICAO Assembly is the sovereign body of ICAO. sovereign body of ICAO.

• It meets every three years, reviewing in detail It meets every three years, reviewing in detail the work of the Organization, setting policy for the work of the Organization, setting policy for the forthcoming years, and passing a triennial the forthcoming years, and passing a triennial budget. budget.

• The Assembly elects the members of the The Assembly elects the members of the Council, the governing body, for a three-year Council, the governing body, for a three-year term.term.

• The Assembly approves budgets and financial The Assembly approves budgets and financial arrangements.arrangements.

The CouncilThe Council

The Council is the executive body The Council is the executive body of ICAO.of ICAO.It is comprised of members elected It is comprised of members elected by the Assembly from 36 States by the Assembly from 36 States (originally 27 States):(originally 27 States):

PART IPART I - States of chief importance - States of chief importance in air transportin air transport

PART IIPART II - States which make the - States which make the largest contribution to the provision largest contribution to the provision of facilities for air navigationof facilities for air navigation

PART IIIPART III - States whose designation - States whose designation will ensure that all major areas of will ensure that all major areas of the world are representedthe world are represented

Chicago Convention Art. 50(b)Chicago Convention Art. 50(b)

The CouncilThe Council

Unlike the executive institutions of its U.N. siblings, the Council is a Unlike the executive institutions of its U.N. siblings, the Council is a permanent body. permanent body.

It elects its President and appoints the Secretary General and It elects its President and appoints the Secretary General and members of permanent commissions.members of permanent commissions.

It submits annual reports to Assembly.It submits annual reports to Assembly.The Council is generally responsible for implementing ICAO objectives.The Council is generally responsible for implementing ICAO objectives.Moreover, it was vested with both quasi-legislative power (in its ability Moreover, it was vested with both quasi-legislative power (in its ability

to adopt standards and recommended practices [SARPS]), and to adopt standards and recommended practices [SARPS]), and quasi-judicial power (in its ability to settle disputes arising under the quasi-judicial power (in its ability to settle disputes arising under the Chicago Convention).Chicago Convention).

The Council adopts Standards and Recommended Practices as The Council adopts Standards and Recommended Practices as Annexes to the Chicago Convention. Annexes to the Chicago Convention.

In the development of Standards, the Council is assisted by the Air In the development of Standards, the Council is assisted by the Air Navigation Commission in technical matters, the Air Transport Navigation Commission in technical matters, the Air Transport Committee on economic matters, and the Committee on Unlawful Committee on economic matters, and the Committee on Unlawful Interference on aviation security matters.Interference on aviation security matters.

Council PresidentsCouncil Presidents

• Edward Pearson Warner ( (United States) (1947-1957) ) (1947-1957)

• Walter Binaghi ( (Argentina) ) (1957-1976)(1957-1976)

• Assad Kotaite ( (Lebanon) ) (1976-2006) (1976-2006)

• Roberto Kobeh Gonzalez Roberto Kobeh Gonzalez ((MexicoMexico) (2006-2012) ) (2006-2012)

• Benard Aliu (Nigeria)Benard Aliu (Nigeria)((2012-2012-present)present)

SARPsSARPs

The ICAO Council is authorized to adopt international The ICAO Council is authorized to adopt international standards and recommended practices [SARPs] on standards and recommended practices [SARPs] on issues affecting the safety and efficiency of air navigation issues affecting the safety and efficiency of air navigation and, for convenience, designate them as Annexes to the and, for convenience, designate them as Annexes to the Chicago Convention. Chicago Convention. SARPs become effective as Annexes to the Convention SARPs become effective as Annexes to the Convention not less than three months after they are approved by a not less than three months after they are approved by a two-thirds vote of the Council, unless during that period two-thirds vote of the Council, unless during that period they are disapproved by a majority of the members of the they are disapproved by a majority of the members of the ICAO General Assembly. ICAO General Assembly. Typically, they are not issued until after extensive Typically, they are not issued until after extensive consultation with member States, and consensus is consultation with member States, and consensus is achieved, a process that takes two years or longer. achieved, a process that takes two years or longer.

Article 37Article 37

[T]International Civil Aviation Organization will adopt and amend from time to time, as may be necessary, international standards and recommended practices and procedures dealing with:

a) Communication systems and air navigation aids, including ground marking;

b) Characteristics of airports and landing areas;

c) Rules of the air and air traffic control practices;

d) Licensing of operating and mechanical personnel;

e) Airworthiness of aircraft;

f) Registration and identification of aircraft;

g) Collection and exchange of meteorological information;

h) Log books;

i) Aeronautical maps and charts;

j) Customs and immigration procedures;

k) Aircraft in distress and investigation of accidents;

Article 37 (continued)Article 37 (continued)

. . . and such other matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate.

Promulgation of Annexes to the Promulgation of Annexes to the Chicago ConventionChicago Convention

Article 54: The Council shall:l) Adopt in accordance with the provisions of Chapter VI

international standards and recommended practices; for convenience, designate them as Annexes; and notify all contracting States of the action taken;

m) Consider recommendations of the Air Navigation Commission for amendment of the Annexes and take action in accordance with the provisions of Chapter XX;

Article 57: The Air Navigation Commission shall:Article 57: The Air Navigation Commission shall:

a) Consider, and recommend to the Council for adoption, modifications of the Annexes.

The Process of Adopting SARPSThe Process of Adopting SARPS

• Proposed technical SARPS are reviewed first by the Air Proposed technical SARPS are reviewed first by the Air Navigation CommissionNavigation Commission

• Proposed SARPS are “vetted” to States for comment Proposed SARPS are “vetted” to States for comment and consultationand consultation

• The Council approves new SARPS by a two-thirds The Council approves new SARPS by a two-thirds majoritymajority

• The “Green Edition” is circulated to member States four The “Green Edition” is circulated to member States four months before the Effective Datemonths before the Effective Date

• A majority of States can veto the SARPS by registering A majority of States can veto the SARPS by registering their disapproval (but this has never happened)their disapproval (but this has never happened)

• States also may “opt out” by registering their differencesStates also may “opt out” by registering their differences• After the Effective Date, the Secretariat issues a “Blue After the Effective Date, the Secretariat issues a “Blue

Edition” of the SARPSEdition” of the SARPS• States are expected to comply except to the extent they States are expected to comply except to the extent they

have registered differenceshave registered differences

Promulgation of Annexes to the Promulgation of Annexes to the Chicago ConventionChicago Convention

Chapter XX Article 90:a) The adoption by the Council of the Annexes described in

Article 54, subparagraph l), shall require the vote of two-thirds of the Council at a meeting called for that purpose and shall then be submitted by the Council to each Contracting State. Any such Annex or any amendment of an Annex shall become effective within three months after its submission to the Contracting States or at the end of such longer period of time as the Council may prescribe, unless in the meantime a majority of the Contracting States register their disapproval with the Council.

b) The Council shall immediately notify all Contracting States of the coming into force of any Annex or amendment thereto.

SARPSSARPSICAO’s standards are binding, at least in the absence of a notification of the ICAO’s standards are binding, at least in the absence of a notification of the Council of a member State's inability to comply:Council of a member State's inability to comply:““A A StandardStandard is defined as any specification for physical characteristics, is defined as any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform configuration, material, performance, personnel or procedure, the uniform application of which is recognized as necessary for the safety or regularity application of which is recognized as necessary for the safety or regularity of international air navigation and to which Contracting States will conform of international air navigation and to which Contracting States will conform in accordance with the Convention; in the event of impossibility of in accordance with the Convention; in the event of impossibility of compliance, notification to the Council is compulsory under Article 38 of the compliance, notification to the Council is compulsory under Article 38 of the Convention.” Convention.” http://www.icao.int/icao/en/anb/mais/http://www.icao.int/icao/en/anb/mais/

Recommended practices are viewed as merely desirable; member States Recommended practices are viewed as merely desirable; member States need not notify the Council of their intent to comply, although they are so need not notify the Council of their intent to comply, although they are so encouraged:encouraged:““A A Recommended Practice Recommended Practice is any specification for physical characteristics, is any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform configuration, material, performance, personnel or procedure, the uniform application of which is recognized as desirable in the interest of safety, application of which is recognized as desirable in the interest of safety, regularity or efficiency of international air navigation, and to which regularity or efficiency of international air navigation, and to which Contracting States will endeavour [sic] to conform in accordance with the Contracting States will endeavour [sic] to conform in accordance with the Convention. States are invited to inform the Council of non-compliance.” Convention. States are invited to inform the Council of non-compliance.” http://www.icao.int/icao/en/anb/mais/http://www.icao.int/icao/en/anb/mais/

The AnnexesThe AnnexesAnnex 1: Personnel LicensingAnnex 1: Personnel LicensingAnnex 2: Rules of the AirAnnex 2: Rules of the AirAnnex 3: MeteorologyAnnex 3: MeteorologyAnnex 4: Aeronautical ChartsAnnex 4: Aeronautical ChartsAnnex 5: Units of Measurement to Be Used in Air-Ground CommunicationsAnnex 5: Units of Measurement to Be Used in Air-Ground CommunicationsAnnex 6: Operation of Aircraft, International Commercial Air TransportAnnex 6: Operation of Aircraft, International Commercial Air TransportAnnex 7: Aircraft Nationality and Registration MarksAnnex 7: Aircraft Nationality and Registration MarksAnnex 8: Airworthiness of AircraftAnnex 8: Airworthiness of AircraftAnnex 9: Facilitation of International Air TransportAnnex 9: Facilitation of International Air TransportAnnex 10: Aeronautical TelecommunicationAnnex 10: Aeronautical TelecommunicationAnnex 11: Air Traffic ServicesAnnex 11: Air Traffic ServicesAnnex 12: Search and RescueAnnex 12: Search and RescueAnnex 13: Aircraft Accident InquiryAnnex 13: Aircraft Accident InquiryAnnex 14: AerodromesAnnex 14: AerodromesAnnex 15: Aeronautical Information ServicesAnnex 15: Aeronautical Information ServicesAnnex 16: Environmental ProtectionAnnex 16: Environmental ProtectionAnnex 17: Security -- Safeguarding International Civil Aviation Against Acts of Annex 17: Security -- Safeguarding International Civil Aviation Against Acts of Unlawful InterferenceUnlawful InterferenceAnnex 18: Safe Transport of Dangerous Goods by Air Annex 18: Safe Transport of Dangerous Goods by Air Annex 19: Safety Management Annex 19: Safety Management

State DutiesState Duties

Under Article 12 of the Chicago Convention, it is the Under Article 12 of the Chicago Convention, it is the responsibility of every member State to keep its own responsibility of every member State to keep its own regulations uniform “to the greatest possible extent” with regulations uniform “to the greatest possible extent” with the Standards and Recommended Practices promulgated the Standards and Recommended Practices promulgated by ICAO. by ICAO. Under Article 37, States are obliged to “collaborate in Under Article 37, States are obliged to “collaborate in securing the highest practicable degree of uniformity securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation.”But if they find it “impracticable to comply”, under Article But if they find it “impracticable to comply”, under Article 38, they are to notify ICAO of differences between their 38, they are to notify ICAO of differences between their own practices and those established by the SARPs. own practices and those established by the SARPs.

ICAO Audits of State ComplianceICAO Audits of State Compliance

Safety Oversight Program launched in 2004; Mandatory Universal Safety Oversight Audit

Programme (USOAP) established in 1999;

– 35th Assembly resolution: restructured to adopt systems approach to audits from 1 Jan 2005.

After 9/11, Universal Security Audit Programme (USAP) launched.

In 2008, transparency, audit results posted on ICAO website.

The Chicago Convention

The Chicago ConventionICAO


Standards & Recommended Practices



States



StatesLegislation



StatesLegislation

Regulatory Agency



StatesLegislation

Regulatory Agency

Regulations



StatesLegislation

Regulatory Agency

Regulations

Airlines Manufacturers

Airmen

The Chicago ConventionThe Chicago Convention


Standards &Recommended Practices



National Legislation



National Legislation

Regulations

PANS & SUPPSPANS & SUPPSICAO also issues Procedures for Air Navigation Services [PANS],ICAO also issues Procedures for Air Navigation Services [PANS],[1][1] and and Regional Supplementary Procedures [SUPPS].Regional Supplementary Procedures [SUPPS].[2][2] Still another form of Still another form of rulemaking that has been employed by the Council is the Technical rulemaking that has been employed by the Council is the Technical Instructions which provide detailed explanations of how Annexes are to be Instructions which provide detailed explanations of how Annexes are to be implemented.implemented.[1][1] “Procedures for Air Navigation Services (or PANS) comprise operating “Procedures for Air Navigation Services (or PANS) comprise operating practices and material too detailed for Standards or Recommended practices and material too detailed for Standards or Recommended Practices - they often amplify the basic principles in the corresponding Practices - they often amplify the basic principles in the corresponding Standards and Recommended Practices. To qualify for PANS status, the Standards and Recommended Practices. To qualify for PANS status, the material should be suitable for application on a worldwide basis. The material should be suitable for application on a worldwide basis. The Council invites Contracting States to publish any differences in their Council invites Contracting States to publish any differences in their Aeronautical Information Publications when knowledge of the differences is Aeronautical Information Publications when knowledge of the differences is important to the safety of air navigation.” important to the safety of air navigation.” http://www.icao.int/icao/en/anb/mais/http://www.icao.int/icao/en/anb/mais/

[2][2] “Regional Supplementary Procedures (or SUPPs) have application in the “Regional Supplementary Procedures (or SUPPs) have application in the respective ICAO regions. Although the material in Regional Supplementary respective ICAO regions. Although the material in Regional Supplementary Procedures is similar to that in the Procedures for Air Navigation Services, Procedures is similar to that in the Procedures for Air Navigation Services, SUPPs do not have the worldwide applicability of PANS.” SUPPs do not have the worldwide applicability of PANS.” http://www.icao.int/icao/en/anb/mais/http://www.icao.int/icao/en/anb/mais/

ICAO as a Forum for Multilateral ICAO as a Forum for Multilateral ConventionsConventions

The ICAO Legal Committee is open to all ICAO member The ICAO Legal Committee is open to all ICAO member States.States.If the texts If the texts aare mature, diplomatic conference to adopt new re mature, diplomatic conference to adopt new instruments.instruments.n the area of aviation security, ICAO served as the institution n the area of aviation security, ICAO served as the institution which prepared, and facilitated the adoption and acceptance which prepared, and facilitated the adoption and acceptance of the of the Tokyo Convention of 1963Tokyo Convention of 1963, the , the Hague Convention of Hague Convention of 19701970, the , the Montreal Convention of 1971Montreal Convention of 1971, the , the Beijing Beijing Convention and Protocol of 2010, Convention and Protocol of 2010, and the and the Montreal Protocol Montreal Protocol of 2014of 2014. . ICAO also has served as the forum for several conventions ICAO also has served as the forum for several conventions and protocols which have sought to update the and protocols which have sought to update the Warsaw Warsaw Convention of 1929Convention of 1929 on carrier liability: The on carrier liability: The Hague Protocol of Hague Protocol of 1955, 1955, the the Guadalajara Convention of 1961, Guadalajara Convention of 1961, the the Guatemala Guatemala City Protocol of 1971, Montreal Protocols 1-4 of 1975, City Protocol of 1971, Montreal Protocols 1-4 of 1975, the the Montreal Convention of 1999Montreal Convention of 1999, and the , and the Montreal Convention of Montreal Convention of 2009.2009.

ICAO as a Dispute Resolution BodyICAO as a Dispute Resolution Body

ICAO has been asked to exercise its quais-judicial ICAO has been asked to exercise its quais-judicial dispute resolution functions on only five occasions: dispute resolution functions on only five occasions: India v. Pakistan India v. Pakistan (1952)(1952) – – involving Pakistan’s refusal to involving Pakistan’s refusal to allow Indian commercial aircraft to fly over Pakistan; allow Indian commercial aircraft to fly over Pakistan; United Kingdom v.United Kingdom v. Spain Spain (1969)(1969) – – involving Spain’s involving Spain’s restriction of air space at Gibraltar; restriction of air space at Gibraltar; Pakistan v.Pakistan v. India India (1971)(1971) – – involving India’s refusal to involving India’s refusal to allow Pakistani commercial aircraft to fly over India; allow Pakistani commercial aircraft to fly over India; Cuba v.Cuba v. United States United States (1998)(1998) – – involving the US refusal involving the US refusal to allow Cuba’s commercial aircraft to fly over the United to allow Cuba’s commercial aircraft to fly over the United States; and States; and United States v.United States v. Fifteen European States Fifteen European States (2003)(2003) – – involving EU noise emission regulations involving EU noise emission regulations

Convention on International Civil AviationConvention on International Civil Aviation Convention relative à l'aviation civile Convention relative à l'aviation civile internationale internationale Convenio sobre Aviación Civil Convenio sobre Aviación Civil Internacional Internacional Конвенция о международной Конвенция о международной гражданской авиации гражданской авиации

The Chicago Convention as The Chicago Convention as the Constitution of an the Constitution of an

International OrganizationInternational Organization


Director, Institute of Air & Space LawDirector, Institute of Air & Space LawMcGill UniversityMcGill University

Copyright Copyright © 2014 by Paul Stephen Dempsey© 2014 by Paul Stephen Dempsey

Blacklisting Blacklisting


Director, Institute of Air & Space Director, Institute of Air & Space LawLaw

McGill UniversityMcGill University

www.iasl.mcgill.cawww.iasl.mcgill.cahttp://www.mcgill.ca/iasl/

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