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THE SETTLEMENT OF DISPUTES IN INTERNATIONAL CIVIL AVIATION.
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THE SETTLEMENT OF DISPUTES
IN INTERNATIONAL CIVIL AVIATION.
G.M. Kakkar LL.M. (Air & Space . L~)
The Settlement of Disputes in International Civil Aviation.
The primary purpose of the study is to examine the
machinery and procedure for the settlement of disputes in
international civil aviation.
Part One of the inquiry begins with an outline of
the traditional methods available in international law for
the peaceful resolution of disputes, including negotiations,
mediation, conciliation, arbitration and judicial settlement.·
Arrangements for the peaceful settlement found in the more
important multilateral and bilateral agreements, sucb as the
U.N. Charter, the O.A.S. Charter, the Antarctic Treaty and
treaties of commerce and navigation are also examined.
Part Two of the study focuses upon the settlement
of disputes procedures found in multilateral and bilateral
civil aviation agreements. AlI the major multilateral
aviation conventions are critically examined. Particular
attention is paid to the recent arbitrations involving
bilaterals concluded by the u.s. with France and Italy.
In Part Three the focus is upon ICAO as the
principal world community organ for the pacifie resolution
of differences arising out of various uses of airspace. The
ICAO Rules for Settle~ent of Disputes are discussed in
detail and their practical usefulness evaluated.
In Conclusion, certain specifie proposaIs are
offered to improve the effectiveness of the arrangements for
the peaceful settlement of aviation disputes.
/
THE SETTLEMENT OF DISPUTES
IN INTERNATIONAL CIVIL AVIATION
by
GuI Mohammed Kakkar
(Afghanistan)
A thesis submitted to the Faculty of Graduate Studies and Research of McGill University, Canada, in partial fulfilment of the requirement for the degree of Master of Laws.
Institute of Air and Space Law McGill University Montreal, Quebec, Canada
~ Gu! Mohammed .Kakkar 1968 /, 1 ' . .. "
April 1968
• ACKNOWLEDGMENT
l should like to acknowledge my indebtedness
to Professor Ivan A. Vlasic, for his understanding
supervision, constant help in comments, constructive
criticism and guidance which enabled the author to write
this thesis.
It is also a pleasant dut Y to express my deep
appreciation and gratitude to Dr. G.F. FitzGerald, Senior
Legal Officer of the ICAO Legal Bureau, for his untiririg
help, encouragement, guidance, understanding and patience
in the preparation of this work.
Thanks are also due to Professor M.A. Bradley,
his kind assistance on frequent occasions have been of
great help.
Finally, l wish to thank aIl the ICAO (Legal
Bureau, Technical Assistance Bureau, Distribution Unit)
for their kind help one way or another.
GuI Mohammed Kakkar
INTRODUCTION
PART ONE
Chapter One
Chapter Two
CON T E N T S
. . . . . . . . . . . . . . . . METHODS OF PEACEFUL SETTLEMENT OF DISPUTES IN INTERNATIONAL LAW.
Page
1
4
General Obligation to Settle International Disputes by Peaceful Means. • •• 4
1. Meaning of the term "International
2.
Dispute ". . . . . . . . . . . . . . . 7
Types of Dispute subject to Peaceful Settlement. • • • • 9
Various Methods of Peaceful Settlement • • 10
I. Political Methods.
1. Direct Negotiations. • • • • • • • Il
2. Good Offices and Mediation ••••• 13
3. Inquiry and Conciliation ••••• 14
II. Legal Methods.
1. Arbitration. . . . . . . . • • • • 16
2. Judicial Settlement. . . . . • 20
3. Advisory Opinions of the Interna-tio~al Court of Justice. • •• 23
Chapter Three Treaty Arrangements of the Settlement of· Disputes.
1. The Charter of the United Nations. · .26
2. The Charter of the Organization of American States. · . · · · · · · · · • 29
3. The Charter of the Organization of African Unity. . · .- · · · · · · · · .33
4. The Rome Treaty (European Economie Treaty) (E.E.C.). · . · · · · · · · · .35
5. The European Corivention for the Peaceful Settlement of Disputes. · · .36
PART TWO
Chapter One
Chapter Two
- ii -Page
6. Bilateral·'I'reaties of Commerce and Navigation. •.• • • • • 38
7. The Antarctic Treaty. . . . . . 40
METHODS OF PEACEFUL SETTLEMENT IN CIVIL AVIATION AGREEMENTS.
Procedure in Force Prior to the Conference on International civil Aviation, 1944.
I. Multilateral Agreements. . . . . a. Paris Convention, 1919. . 42
b. Madrid Convention, 1926. · · · 44
c. Havana Convention, 1928. · . . · · 45
II. Bilateral Agreements. . . . · · · 45
Procedures in Force Following the Chicago Conference, 1944.
l. Multilateral Arrangements. • .50
1. The Convention on International Civil Aviation. • • •••••• 50
2. The International Air Services Transit Agreement and the International Air Services Transport Agreement (ICAO). . • • • •• • 61
3. Joint Financing Agreements in the North Atlantic Region. • • • • • •. 63
4. Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface CICAO). • • • • • •• 64
5. The International Convention Relating to Co-operation for the Safety of Air Navigation (EURO-CONTROL). • • • • • • • • • • • • • 66
6. Convention Relating to the Creation of an Agency Responsible for the Operation of Facilities and Services provided to Ensure Air Navigation Safety in Africa and Madagascar (ASECNA) ••••••••• 70
PART THREE
, Chapter Orie
Chapter Two
- iii -
Page
7. European Civil Aviation Conference (ECAC). • • • • • • • • • • • • •• 71
8. Multilateral Agreement on Commercial Rights of Non-Scheduled Air Services in Europe (ECAC) ••••••••••• 72
9. Standard Clauses for Bilateral Agreements dealing with Commercial Rights of Scheduled Airlines (ECAC) ••••• 75
10. Agreement on Tariffs for Scheduled Air Services. • • • • • • • •• • 77
Il. Convention Establishing the Central American Air Navigation Services Corporation (COCESNA) •••• 78
II. Bilateral Agreements. • • • •• • 80
1. The Chicago Type Agreements.. 81
2. The Bermuda Type Agreements •••• 82
3. The Soviet Type Agreements. • •• 86
4. Recent Arbitral Settlements •••• 87
a. U.S.-France Arbitration ••••• 87
b. U.S.-Italy Arbitration. •• 94
THE ICAO MACHINERY FOR THE SETTLEMENT OF DISPUTES.
The Competence of ICAO Organs ••
Types of Disputes Within ICAO's Competence. • • • • • • • • • •
99
·104
Chapter Three The ICAO Rules Relating to the Settle-ment of Differences. • • • • • . • • • • 107
1. History of the Rules for the Settlement of Differences in PICAO-
2.
ICAO. • • • • • • • • •
Causes of Disagreements and Complaints. • • • • • •
. . . . 108
110
Chapter Four
- iv -
Page
3. Organs Entrusted with Sett1ement ••• III
4. Nature and Binding Force of Decisions and Action of the Parties in Relation to the Decision ••••••••••• 114
5. General Comments on the 1953 Ru1es •• 115
6. The 1957 Ru1es. • • . . . . . . . . • 118
Resort to ICAO Machinery. 134
1. India and Pakistan Dispute: The First Application of Chapter XVIII of the Convention. 0 • • • • • • ~ • • • • • 134
2. Other Disputes Referred to ICAO. . . • 140
a. The Ba1100n Incident: Protest by Czechos1ovakia. • • • • • •• • 140
3. ProposaI of Czechos1ovakia Regarding the Export of Equipment Required by ICAO Standards and Recommended Practices. • • • • • • • • . • • •• 155
CONCLUSION AND RECOMMENDATIONS
1. The Attitude of States Towards a Third-Party Adjudication of Aviation Disputes. • • • • • ••••••••• 157
2. Recommendations. • • • • • • • • •• 160
FOOTNOTES. • • • • • • • • • • • • • • • • • • • • • • • 169
BIBLIOGRAPHY. . . . . . . . . . . . . . APPENDIX "A". . . . . . . . . . . APPEND IX "B". . . . . . . . . . . . .
195
204
205
- 1 -
Introduction
The movement toward a peaceful settlement of international disputes is essential if the world is to survive in this era of nuclear weapons and space
technology. History abounds in examples showing that
even initially innocuous disputes may escalate into dangerous confrontations and, on occasion, into violence. Accumulation of unresolved controversies in various parts of the globe inevitably increases international tension and contributes to the sense of instability in the world arena. For these reasons it is obvious that today, more than ever before, maximum efforts should be devoted to indu ce States to use the available machinery for a nonviolent solution of their differences. The United
Nations Charter recognizes the importance of this question, particularly in Article 2, paragraph 3 and
Chapter VI.
The Second World War conclusively proved that aviation possesses immense possibilities either for good or evil. It represents both a threat and a promise. It can inflict and has inflicted immense deprivations upon mankind; it can also continue to bring fresh hope and opportunity to the peoples of the world. If intelligently used, aviation can be the best means of promoting the
- 2 -
understanding among the peoples. Even though written at
the height of the Second World War, the Preamble to the
Convention on International Civil Aviation demonstrates
that the nations assembled at Chicago believed.in civil
aviation as a potent contrib~tor to the preservation of
the world peace.
Being a vast international enterprise, affecting
many and diverse national interests, including security,
prestige and economics, civil aviation on occasion causes
conflicts among States. Conflicts of States arising out
of aeronautical activities may be solved by resort to
many different peaceful procedures. For example, the
States may resort to direct negotiations, arbitration or
judicial settlement, or they may request the intervention
of the ICAO Council. In view of this diversity in the
procedures for solving aviation conflicts, this study
includes the variety of procedures found in international
agreements on aviation. For the sake of cornpleteness it
has also been considered necessary to include a summary
of the solutions adopted in the more important non
aviation multilateral treaties, such as the United
Nations Charter, Charter of the Organization of American
states and the Charter of the Organization of African
Unit y, the Rome Treaty of European Economie Community
and the Antarctic Treaty.
- 3 -
International bodies such as the International
Civil Aviation Organization must have definitive rules
for the settlement of differences that may arise between
component contracting States because it is a major
function of these bodies to promote the rule of law in
international affairs. Such provisions exist in ICAO's
basic charter, the Convention on International Civil
Aviation and, in pursuance of these provisions, ICAO has
established detailed rules for the settlement of
differences. In the course of this study special
attention will be given to examining these.
- 4 -
PART ONE - METHOD OF PEACEFUL SETTLEMENT OF DISPUTES
IN INTERNATIONAL LAW.
Chapter One - General Obligation to Settle International Disputes by Peaceful Means.
Generally, disputes arise between States much
in the same way as between individuals, except that the
consequences· of international disputes may be much more
serious. Apart from minor differences and squabbles
which regularly occur even between friendly States, sorne
disputes cause prolonged frictions and tensions and
represent a menace to peace and security or, at the very
least, a threat to the equilibrium in international
relations. It is with the settlement of this type of
disputes that this study is concerned.
The term "dispute" has been defined as a dis-
agreement on a point of law or fact, a conflict of legal
views or of interest between the parties which have
reached a stage at which the parties have formulated
claims and counter-claims sufficiently definite to be
passed upon by a court or other body set up for the ( 1)
pacific settlement. The rules and procedures adopted by
international law for the settlement of differences are
based partly on practice and partly on a number of
important law-making conventions such as the Hague
Conventions of 1899 and 1907, the latter replacing the
- 5 -
1899 Convention. The 1899 Convention endeavoured (in
Articles 2-8) to induce the signatory Powers to have
recourse more frequently than heretofore to good offices (2)
and mediation. These Articles of the Convention made it
clear, that States which are strangers to a dispute had
a right to offer good offices or mediation, and that the
exercise of this right must not be regarded as an
unfriendly act.
Provisions with respect to arbitration were
also incorporated in the Hague Convention of 1907. Thus,
Article 37 states that IIInternational arbitration has for
its object the settlement of disputes between States by
Judges of their own choice and on the basis of respect
for law" and that "recourse to arbitration implies an
engagement to submit in good faith to the award". By
Article 16 of the Hague Convention of 1899 and by Article
38 of the Hague Convention of 1907, the contracting
powers recognized arbitration as the most effective and,
at the same time, the most equitable means of settling
differences of a legal cha~acter in general and
especially differences regarding the interpretation or
application of international treaties. Furthermore, by
Article 10 of t~e Hague Convention of 1899 and by Article
10 of the Hague Convention of 1907, International
Commissions of Inquiry can be established by special
- 6 -
agreements between the parties in a dispute. To
facilitate resort to arbitration, the Hague Peace
Conferences of 1899 and 1907 established "the Permanent
Court'of Arbitration". Provision was also made for the
establishment of a panel of jurists fromwhich arbitra-
tors may be selected for tribunals set up for the
settlement of differences. States parties to the Hague
Conventicmsagreed to use their best efforts to insure
the pacifie settlement of differences through the
following additional procedures: "good offices", (3)
"mediation", and "international commissions of inquiry".
The Covenant of the League of Nations marked
an important advance in the matter of dispute-settlement
by collective action. In the place of the inconclusive
and largely nominal provisions of the Hague Convention
relating to mediation and good offices, the Covenant
accepted the principle of the right and the dut Y of the
League to assist the parties and, more generally, to
take action with respect to the settlement of disputes.
Members of the League bound themselves not to resort to
war before submitting their disputes to the procedure (4)
laid down in the Covenant.
The Charter of the United Nations signifies a
further advance in the direction of a peaceful settlement
of international differences. It contains elaborate
- 7 -
provisions establishing the wide competence of the
United Nations, in particular that of the Security
Council, in the matter of settlement of disputes and
the corresponding obligations of the members of the United
Nations. The scope of the obligations of the member
States are clearly mentioned in Article 1(1) and
Article 2(3) of the Charter of the United Nations. It
imposes upon members the dut y to seek first of aIl the
settlement of disputes by peaceful means of their own
choice. Neither party is to bring a dispute be~ore the
Security Council of the General Assembly under Article 33
until peaceful means have been tried. The question of
settlement of disputes under the United Nations Charter
will be explored below.
"It is sùfficient here to say that not only has
the international community at its disposaI a variety of
procedures whereby States may peacefully settle their
controversies but that there is clearly a moral obligation
upon them to resort to such procedures whenever involved
in a dispute which is endangering the maintenance of peace.
1. Meaning of the Terrn "International Dispute"
An international dispute rnay be defined as any
conflict between two or more States which leads to
friction, rnisunderstanding or discord in the disposaI of
rights, privileges, property, services or other economic
values or rnatters of concern to the freedorn, security and
- 8 -
well-being of such States or peoples. International
differences may arise in relation to interest which can (5)
be broadly distinguished as legal or political. Legal
differences orconflicts of rights are those arising from
disputes or controversies to which recognized legal
principles of more or less clearly established rules and
customs of International Law may be more or less readily
applied. Political differences or conflicts of interests
are those which result from a conflict of political,
social, or economic interests and to which it is difficult
or impossible to apply amicable modes of settlement.
It has been stated that the distinction between
legal and political disputes (or justiciable, and non-
justiciable, dispute or disputes as to respective rights,
and conflicts, of interest) is of doubtful scientific
value when forming part of treaties e:fj;"'obligatory arbitral (6)
or judicial settlement, as it is difficult to draw a line
betweenlegal and political differences. However, that
distinction is firmly embodied in international practice.
The UN Charter provides that in making its recommendations
with regard 'to procedures of settlement, the Security
Council should also take into consideration that legal
disputes should as a general rule be referred by the
parties to ICJ in accordance with the provisions of the (7)
Statute of the Court Article 36(2).
- 9 -
2. Types of Disputes Subject to Peaceful Settlement
Every international dispute, however trivial,
represents a potential threat to peace for no one has yet been able to predict the course a particular disagreernent will take. Disputes are but the symptoms, in concrete form of latent emotions, desires, suspicions and drives for power. Their emergence is a warning signal that the parties are in conflict over matters which are of substantial interest to them. Every dispute is, therefore, of international concern and should be treated as such.
As far as international law and the UN Charter are concerned, a dispute, as defined in Chapter VI of the Charter (Articles 33-34) is of international concern only when it endangers peace, or when there is friction which might lead to a situation that may endanger peace. Provisions are not made for the control of a dispute while it progresses toward this stage, nor for the settlernent in its incipient stages, nor is there any procedure for determining at what point or in what manner the critical
(8) period is to be determined.
- 10 -
Chapter TWQ - Various Methods of Peaceful Settlement. u_
There are three basic methods for the settlement
of a dispute:
(a) it can be negotiated through essentially
political techniques until a mutually acceptable
solution is found;
(b) it can be arbitrated or adjudicated through
legal techniques with a view to finding out who
has the law on his side; or
(c) it can be settled by coercion or threat of
coercion.
In certain cases where popular passion becomes
inflamed, and especially where the object of the dispute
is a matter of great importance to one or both nations, a
policy of drift may in time become a policy of violence.
Violence may even be the preferred "solution" for one or
both parties. In such cases the failure to resort to
peaceful settlement techniques, and the allowing of tension
to grow to the breaking point, may be quite deliberate.
However, our concern here is with the peaceful methods of
settlement, that is, political and judicial methods, with
which we deal next.
- Il -
I. Political Methods.
·1 •. Direct Negotiâtions.
The simplest means of settling differences
between states and that to which States as a rule resort (9)
before they make use of other means, is negotiation. It
is the most commonly used means for the pacifie settlement
of international disputes. This term covers aIl kinds of
diplomatie discussions, exchanges of notes and the like.
In the process of negotiation the parties seek a solution
by direct exchange between themselves. Diplomatie annals
are full of instances where such settlements have been
successfully reached. However, in certain circumstances
direct negotiation will not settle the controversy
because:
(a) it is not appropriate for resolving disputed
facts objectively and impartially, a task of (IO)
particular difficulty in international disputes~
(b) in the absence of a moderating third party
influence, the negotiators usually stake claims
as high as possible in a process of bargaining,
regardless of the legal or other merits and this
aggravate rather than ease the dispute;
Cc) the States concerned are often grossly unequal
in bargaining power; and a small state negotiating
with a strong and powerful State may find itself
subject to the pressure of the other.
- 12 -
(d) it remains open always to either party to
declare that it is unable or unwilling to give
way. Such a deadlock can be created by the
subjective choice of either party, more easily
than if there is interposition of a third state,
or of an international organ. It was for the
latter reason that the Permanent Court of Inter-
national Justice (PICJ) declared in one case
that "the question of importance and chances of
success of diplomatie relations is essentially (11)
a relative one".
Accordingly, where the subject matter of a
dispute is one of a complex nature, requiring thorough
investigation and involving sorne measures of controversy
as to the legal or other merits, the disputing states need
to have recourse to alternative techniques of resolving
the conflict, more adequate than that of diplomatie
negotiation.
Yet in most cases the States parties will need
to negotiate, particularly when the dispute concerns the
interpretation of a treaty containing a dispute clause (12)
requiring the parties to engage in direct negotiations.
Negotiations figure prominently among the means of settle-
ment enumerated in the UN Charter as incumbent upon the
parties prior to invoking the jurisdiction of the Security
- 13 -
Council. Thus in Article 33(1) it is expressly declared that the parties to any dispute which is likely to
endanger the maintenance of international peace and security shall first of aIl seek a solution, inter alia by "negotiation" and it is provided in Article 33(2) that the Security Council shall, when it.deems necessary, calI
(13) upon the parties to settle their dispute by such means.
2. Good Offices and Mediation
The basic feature of these methods consists in the action of an outside agency, State or person to get the parties together and help them in a more or less
informaI way to find the basis for the resolution of their dispute. The difference between good offices and mediation is that, whereas the process of good offices consist in calling negotiations between the conflicting states into existence, mediation involves direct conduct of
negotiations between the parties at issue on the basis of proposaIs made by a mediator. However, diplomatic
practice and treaties do not always distinguish between good offices and mediation. The difference between them is not important. Oppenheim has claimed that there is
(14) only a "theoretical distinction exists between them".
The function of good offices may be performed either by states, or by individuals, (whether in a private capacity, or by virtue of high political office in a third State), or by international organs, such as the Security
- 14 -
Council of the United Nations. An illustration of the
last was when by Resolution of 25 August 1947, the
Security Council tendered its good offices in the dispute
between the Netherlands and Indonesia.
The value of good offices and mediation for the
amicable settlement of international conflicts, whether
before or after the parties have resorted to violence, is
considerable. In some instances good offices of States
and individuals have been the means of bringing a war to (15)
an end. The UN Charter gives every member State, as
weIl as ta the Security Council, the right of invoking
the collective mediation of the Security Council by
bringing to the attention of the Security Council or of
the General Assembly any dispute or any situation which
might lead to an international friction or give rise to a (16)
dispute.
3. Inquiry and Conciliation
Inquiry and conciliation are additional methods
for the peaceful settlement of disputes. They can be used
where diplomatie negotiations have become deadlocked. The
essential idea is to refer the dispute to an entity or a
group which may be already in existence (such as the
League of Nations or the ULlited Nations Security Council)
or one to be appointed for the purpose. The duties of
such an organ are to make an impartial investigation (in
the case of inquiry) and of fer suggestions for a settle-
/
- 15 -
ment. Such an organ, when especially appointed for the
dispute, either by the parties or by the League Council
or UN Security Counci1, where these bodies set up special
groups for the purposes of particular cases, are usually
called either commissions of inquiry or commissions of (17)
conciliation.
In a narrow sense, conciliation is the process
of settling a dispute by referring it to a commission of
persons whose task is to elucidate the facts and (usua1ly
after hearing the parties and endeavouring to bring them
to an agreement) to make a report containing proposals
for a sett1ement, but which does not have the binding (18)
character of an award or judgement.
The purpose of an inquiry is, without making
specifie recommendations, to establish the facts which
may be in dispute and, thereby, prepare the way for a
negotiated adjustment. It shou1d be pointed out that the
foremost dut Y of the commission of inquiry is to investi-
gate the circumstances of the case and issue a report
1imited to a statement of facts. The report in no way
has the character of an award; and the parties are free (19)
as to the effect to be given to it.
Conciliation differs from arbitration and
judicia1 settlement in that under conciliation the parties
are under no 1egal obligation to adopt the proposaIs for
a settlement which are suggested to them. By contrast, a
- 16 -
legal obligation exists to comply with award or (20) judgement of a duly constituted tribunal.
Historically, Conciliation Commissions were provided for in the Hague Conventions of 1899 and 1907 for the settlement of international disputes. Further-more, a number of conciliation treaties referring
expressly to the Resolution of the Third Assembly of the (21)
League of Nations were concluded. The obligation to submit disputes to conciliation was also made part of
(22) numerous, more general, treaties on pacific settlement. Thus, the American Treaty on Pacific Settlement (Pact
of Bogota) ·of 30 April 1948, provides for Commissions of Investigation and Conciliation which must be convened by the Council of Organization of American States at
(23 ) the request of either party to the dispute.
II. Legal Methods
1. Arbitration
The term "Arbitration" commonly refers to the determination of a difference between States through a legal decision of one or more umpires, or a tribunal (other than a court), or certain persons designated arbitrators, freely chosen by the parties. The arbitral settlement of disputes may be considered as a significant departure from the preferred practice of States, namely
- 17 -
that each State remains the final judge in its own
suit.
As is weIl known, there is no universally
recognized central political authority above the
sovereign States and no international court can exercise
any jurisdiction over them without their consent. A
State cannot as a general rule summon another State to
appear before a tribunal for the purpose of settling
differences in the way that private individuals can
compel one another to litigate under the municipal law
to which they are subject. As the PICJ stated in 1923,
nit is weIl established in International Law that no
State can without its consent be compelled to submit its
disputes with other States either to mediation or to (24)
arbitration or to any kind of pacific settlement.
However, international practice demonstrates
that many disputes involving purely legal issues are
referred to arbitrators for settlement. Nowadays many
treaties contain provisions calling upon the parties to
submit their disputes to arbitration.
Modern international arbitration is believed
to have been initiated by the Jay Treaty of 1794, and is
considered to have developed in four stages: first, from
the Jay Treaty to the Alabama Case in 1872; second, from
1872 to the Hague Convention No. 1 in 1899; third, from
1899 to the establishment of the Permanent Court of
- 18 -
International Justice in 1921; and fourth, the contem(25 )
porary stage.
In particular, it may be noted that by
Article 16 of the Hague Convention of 1899 and Article 38
of the Hague Convention of 1907, both of which relate
to the pacifie settlement of international disputes, the
contracting Powers recognized arbitration as the most
efficacious and at the same time the most equitable means (26 )
of determining differences between States. A most
important step was taken in 1899 when the Hague
Conference not only codified the law as to arbitration
but also laid the foundations of the Permanent Court of
Arbitration. The Hague Conference of 1907 completed the
work of the 1899 conference.
The Permanent Court of Arbitration is an
institution of a peculiar character. It is neither
"permanent" nor is it a "Court". The members of the
"Court" are appointed by States which are parties to one (27 )
or bnth of the Conventions adopted by the Hague Conferences.
Each State signatory to the Convention appoints four
members, and when two States refer a dispute to the Court,
each one, unless they agree otherwise, selects two
arbitrators from the members, of whom only one may be
national, and the four arbitrators then choose an umpire.
The machinery has proved simple and useful, and several
important cases have been heard by the Court, including
- 19 -
the North Atlantic Fisheries case between the United
Kingdom and the United states of America in 1910.
The arbitral award is given after deliberations
behind closed doors, and the proceedings remain secret;
the members of the Tribunal vote, and the majority of (28)
the votes makes the decision of the Tribunal. The
award, when duly pronounced and notified to the agents
of the parties, decides the dispute finally and without I29-)
appeal. An arbitral award is final unless the parties
have otherwise agreed, but arbitrators have only such
powers as the parties have conferred upon them in the
compromis, the document by which they refer the dispute
to the Court, and if the Court should depart from the
compromis, for example by purporting to decide sorne
question which was not submitted to it, or by not apply-
ing the rules of decision agreed to by Parties, it
follows that the award is without binding force. It is, (30 )
in fact, not an award at aIl. As a general rule an
arbitral award is binding only upon the parties to the
proceedings. But when there is the question of inter-
preting a convention to which States other than States
a+ variance are parties, the conflicting States have to
inform aIl other contracting Powers in good time. Each
has a right to intervene in the case before the Tribunal,
and, if one or more avail themselves of this right, the
interpretation contained in the award is binding upon (31)
them also.
- 20 -
There will always be a place for arbitration
in the relations between States. The arbitral procedure
is more appropriate than the more formaI court procedure
for the settlement of technical disputes because of its
flexibility and relative informality which lead to a
saving of time and expense. Moreover, the general
principles governing the-practice and powers of arbitral
tribunal are fairly weIl recognized. Indeed, until the
establishment of permanent international courts,
arbitration served as the basic method for settling
international disputes.
2. Judicial Settlement
The procedures for arbitration and judicial
settlement are closely related; indeed, the former is
only a species of the latter, for an arbitrator is in
effect a judge. (32 )
The only general organ of judicial settlement
at present available to the international community is
the International Court of Justice (ICJ) at the Hague,
which succeeded to, and preserves continuity with the
PICJ. Unlike arbitral tribunals which as a rule are not
constituted on a permanent basis, the ICJ is a permanent
body. For this reason, it is able to develop a
continuity of legal out look not possible with arbitral
tribunals.
- 21 -
The ICJ was established according to Article 92
of the UN Charter. This article provides that the ICJ
shall be the principal judicial organ of the United
Nations. AlI members of the United Nations are ipso
facto parties to the Statute of the Court, but other
States may become parties to it on conditions to be laid
down in each case by the United Nations General Assembly (33 )
upon the recommendation of the Security Council. The
conditions to be laid down in this connection have up to
the present, been the same for each case, namely accep-
tance of provisions of the Statute., .acceptance of the
obligation& and undertaking to contribute to the expenses (34)
of the Court.
The Court consists of fifteen judges.
Candidates for membership of the Court are nominated by
the national groups on the panel of Permanent Court of (35 )
Arbitration. From a list of nominees, the General
Assembly and the Security Council, voting independently, (36)
elect the members of the Court. They are elected for
nine years and are re-eligible (Article 13 of the Statute).
Not only are the highest legal qualifications requisite
under the Statute for election to the Court, but also
appointrnents are made with due regard to ensuring that
the judges el.ected represent "the main forms of civiliza(37)
tion" and the "principal legal systems of the World".
- 22 -
No judge, when actually performing his duties
in the Court may exercise any political or administrative
functions or engage in any other occupation of a (38 )
professional nature. A member of the Court cannot be
dismissed unless in the unanimous opinion of the other (39)
members he has ceased to fulfil the required conditions.
The jurisdiction of the Court is open to the
States parties to the Statute and other states on ( 40)
conditions to be laid down by the UN Security Council.
The ICJ's jurisdiction is two-fold: (a) to
decide contentious cases and (b) to give advisory opinions.
Both are judicial functions. Under Article 36, paragraph 1
of the Statute, the Court has jurisdiction over aIl cases
which parties refer to it. Such reference would normally
be made by the notification of a special agreement known
as a compromis. The Court has compulsory jurisdiction
where the parties concerned are bound by treaties or
conventions in which they have agreed that they should
bring certain disputes to the Court.
Among the instruments providing for reference
of questions or disputes to the Court are numerous
bilateral air transport agreements, treaties of commerce
and navigation, Consular Conventions r the Peace Treaty
with Japan 1951 (Article 22) and the European Convention (41)
for the Peaceful Settlement of Disputes.
- 23 -
Article 36, paragraph 2 of the Statute is the
so-cal1ed optiona1 clause whereby a party to the statute
may at any time declare that it recognizes as compulsory
ipso facto and without special agreement "in relation to
any other Statesaccepting the sarne obligation" the
jurisdiction of the Court in aIl legal disputes
concerning:
a. the interpretation of a treaty;
b. any question of International Law;
c. the existence of any fact which, if established,
would constitute a breach of an international
obligation;
d. the nature or extent of the reparation to be
made for the breach of an international
obligation.
The dec1arations referred to above may be made uncondi
tiona1ly or on condition of reciprocity on the part of
several or certain states, or for a certain time. The
Court decides aIl questions by a majority of judges
present and, if the voting is equal, the President has a
casting vote (Articles 55-61).
3. Advisory Opinions of the International Court .
of Justice.
The jurisdiction of the Court may be advisory.
Article 65 of the Statute provides that the Court may
give an advisory opinion on any 1egal question at the
- 24 -
request of whatever body may be authorized to do so by
the UN Charter or in accordance with it. These bodies
are, according to Article 96 of the Charter, the General
Assembly, the Security Council and other organs of the
United Nations and specialized agencies of the UN
authorized by the General Assembly to ask for advisory (42)
opinions.
It should be noted that, while the Permanent
Court of International Justice and ICJ have disposed of
a substantial number of contentious matters and requests
for an advisory opinion, states have generally showed
marked reluctance to bring before the Court matters of
vital concern to them or to accept compulsory adjudication (43)
in such matters. However, the Court has adjudicated
many questions raising important points of law or
difficult problems of treaty interpretation ... · Sorne of
these judgements or opinions arose out of political
disputes which came before the League of Nations Council,
or before the UN Security Council, e.g. the Permanent
Court's advisory opinion on Frontier between Turkey and ( 44)
Iraq; on the Customs Regime between ( 45)
Germany and Austria; (46)
on the Nationality Decrees in Tunis and Morocco; and the
ICJ's advisory opinions on voting procedures in the (47)
United Nations. Even though advisory opinions are not
binding, request for an advisory opinion by a United
Nations organ may be said to introduce a certain measure
- 25 -
(48) of obligatory jurisdiction of the Court.
While it is difficult to predict with any
degree of certainty what the future of the ICJ will be,
it is certain that the Court can and should perform a
valuable function as the supreme judicial organ of the
world community for the settlement of international
disputes, including those arising out of aeronautical
activities. That, of course, does not mean that resort
to the ICJ will be the most effective method of
settling every dispute. The best method for resolving
a particular controversy will 'depend very much on the
nature of the dispute itself. Sorne disputes are
inherently susceptible of being decided on the basis of
law while others, which are based on conflicts of
political interest rather than on legal controversies,
lend tnemse~ves to a solution by other means. It is
clearly desirable that purely legal disputes be, in the
first place, submitted to judicial settlement by the ICJ.
However, on occasion it isdifficult to make a clear-cut
distinction between legal and non-Iegal disputes; even
in "purely" legal disputes sometimes there are often
political and non-legal aspects.
- 26 -
Chapter Three. - Treaty Arrangements for the Sett1ement
of Disputes.
1. The Charter of the United Nations
The Covenant of the League of Nations marked
a significant advance in the matter of sett1ement of
disputes by collective action. As successor ta the
League of Nations, the United Nations has taken over
important ~esponsibilities for "adjudging international
disputes. According ta Article 2 of the Charter one of
the fundamental objectives of the Organization is the
peaceful settlement of disputes between member States.
The members of the UN family have undertaken ta settle
their disputes by peaceful means and ta refrain from
threats of war or the use of force. Moreover, the
Organization has taken upon itself - according ta
Article 2 (6) ta "emsure that states which are not
Members of the United Nations act in accordance with
these ~rinciples sa far as may be necessary for the
maintenance of international peace and security".
Under the Covenant of the League of Nations
the jurisdiction of the Council was, in general, limited
ta disputes likely ta lead ta a rupture of international
relations. Similarly, under the Charter of the UN the
competence of the Security Council in the matter of
settlement of disputes is in many ways confined ta
disputes of a grave character, i.e. disputes likely ta
- 27 -
(49) disturb the peace. In this connection important
responsibilities devolve on the General Assembly and
on the Security Council, corresponding to which wide
powers are entrusted to both bodies.
Under Article 14 of the Charter the General
Assembly is given authority, subject to the peace
enforcement powers of the Security Council, to
recommend measures for peaceful adjustment of any
situation which is likely to impair general welfare or
friendly relations among nations. The Security Council
acts, broadly speaking, in two kinds of disputes:
a) disputes which may endanger international peace and
security; b) cases of threats to the peace, or breach
of peace, or acts of aggression. In the first case, the
Security Council, if it deems necessary, may at any
stage recommend appropriate procedures or methods for
settling the disputes. In the second case, the Security
Council is empowered to make recommendations or decide
what measures are to be taken to maintain or restore
international peace and security, and it may calI on the
parties concerned to comply with certain provisional (50)
measures.
The powers of the Security Council in the
matter may be classified under four headings: a) investi-
gation, b) conciliation and mediation,'c) recommendations
of procedures or terms of settlement, d) imposition and
- 28 -
(51) enforcement of terms of settlement. It must be borne
in mind that while the powers of the Security Council
with respect to the settlement of disputes are defined
in Chapter VI of the UN Charter (Articles 33-38), there
are available to it under Articles 24 and 25 the
additional powers.
The General Act for the Pacific Settlement of
International Disputes, adopted by the Assembly of the (52)
League of Nations on 26 September 1928, was brough up
to date by the General Assembly of the UN which, on
28 April 1949, approved several amendments to the
General Act, substituting for references to the League
of Nations and the Permanent Court of International
Justice (PICJ) references to the United Nations and the (53)
International Court of Justice (ICJ). The 1949 General
Act provides for conciliation of aIl disputes, with the
exception of those which are actually subject to the (54)
jurisdiction of ICJ. If there is a dispute in which
"the parties are in conflict as to their respective
rights", they are bound to submit it to ICJ, unless they (55 )
agree to resort to an arbitration. Even when the parties
have agreed to arbitr~te, either may bring the matter
before the Court by unilateral application if they fail
to approve a special agreement (compromis) or fail to (56 )
appoint an arbitrator.
- 29 -
Legal disputes, however, are not to be
referred to the Court under the General Act; when efforts
at conciliation have failed, the controversy is to be
submitted to an arbitral tribunal of five members.
Special provisions are included in the Act to ensure the
establishment of the tribunal and the submission of the
cases to it even if no special agree~ent should be
concluded. The tribunal is bound to apply "the rules in
regard to the substance of dispute enumerated in
Article 38 of the Statute of the International Court of
Justice", but in so far "as there exists no such rule
applicable to the dispute, the Tribunal shall decide ex (57)
equo et bono".
The UN Charter also stipulates in Article 52(2)
that: "The Member of the United Nations entering into
[regionall arrangements or constituting [regionall
agencies shall make every effort to achieve pacifie
settlement of local disputes through such regional
arrangements or by such regional agencies before referring
them to the Security Council".
2. The Charter of the Organization of American States
The Organization of American States has broad
regional responsibilities in the economic, social and
political fields. These responsibilities can be compared
to those assigned to the United Nations for the world.
The Charter of the Organization of American States,
- 30 -
(58) signed at Bogota on 30 April 1948, the American Treaty
(59) on Pacific Settlement of 30 April 1948 (the Pact of
Bogota) and the Inter-American Treaty of Reciprocal
Assistance of 2 September 1947, signed at Rio de Janeiro,
are the basic authoritative texts relating to the
functioning of OAS. For purposes of othis study the most
significant among these documents are the two Treaties
of Bogota. Through these agreements, the American
republics have, inter alia, formally condemned war and
undertaken to submit to peaceful procedures aIl disputes
which arise among them.
Under Chapter IV of the OAS Charter the parties
are obliged to settle their disputes through one from
among the following procedures: direct negotiation, good
offices, mediation, investigation and conciliation,
judicia1 procedure, arbitration, and such other special (60)
procedures as might be agreed upon. The Charter also
provides that aIl international disputes which arise
among the American States shall be submitted to the
peacefu1 procedures set forth in the Charter, before being (61)
referred to the Security Council of the United Nations,
and the OAS undertakes to keep the United Nations informed
of any action it takes with regard to a dispute involving
its member States.
The significance attached by OAS to the
pacific settlement of disputes is reflected in the
- 31 -
decision of the member States to adopt a special treaty (the Pact of Bogota) to establish adequate procedures for the pacifie settlement of disputes and de termine the appropriate means for the application of these procedures, so that no dispute between Arnerican States will faïl to
(62 ) be settled definitively within a reasonable periode
The Pact of Bogota codifies aIl provisions of Inter-Arnerican agreements on various aspects of peaceful
(63) settlement of international disputes. It deals not only with<arbitration, but also with good offices, mediation, investigation, conciliation and judicial settlement. When the conciliation procedure does not lead to a
solution and the parties to a dispute have not agreed upon an arbitral procedure, either of them may submit
(64 ) the dispute to the ICJ, if it is "of juridical nature". If the Court determines that the dispute relates to "matters which are within the domestic jurisdiction of the State", or to "matters already settled by arrangements between the parties or by arbitral award or by decision of an international court or which are governed by agreements or treaties in force", or to claims of
nationals of one State against another State "\'{hen the said nationals have had available the means to place their case before competent domestic courts of respective State", then it is obliged to declare itself to be without jurisdiction to hear the controversy and the
- 32 -
(65 ) controversy itself "shall be declared ended". None of
these three categories of disputes can, therefore, be
submitted to arbitration, except by express agreement of (66)
the parties concerned. But if the Court "for reason set
forth in Articles V, VI and VII of the Pact declares
itself to be without jurisdiction", the parties are (67 )
obliged to submit the dispute to arbitration, in
accordance with the Provision of Chapter Five of the
Pact.
Consequently, if a dispute, on the one hand,
should not be of a judiciàl character and the Court
should declare itself to be without jurisdiction, and if,
on the other hand, the dispute should not belong to one
of the three categories of disputes discussed above, any
party to such a dispute would be entitled to refer the (68 )
dispute to arbitration. Since 1948 the OAS, in the
application of the above provisions in regard to the
settlement of disputes through its Peace Committee, has
achieved considerable success in the settlement of (69 )
numerous controversies submitted to it.
It may also be noted that the Pact of Bogota
contains an elaborate scheme to prevent frustration of
its arbitral procedure through a refusaI to appoint an (70)
arbitrator or by a refusaI to draw up a special agreement.
- 33 -
3. The Charter of the.Organization of African Unit y (71)
The OAU Charter, signed at Addis Ababa on 25 May
1963 by the representatives of thirty States is another
recent multilateral treaty containing provisions relating
to the peaceful solution of international disputes. The
principal objectives of the Organization of African Unit y
are: the achievement of the unit y of the African States,
the eradication of aIl forms of colonialism on the
continent and the development of cooperation among the (72)
mernber States in political, economic and social fields.
Of particular relevance to our discussion is that part
of the Charter which deals with the peaceful settlement
of disputes. Thus Article XIX of the Charter provides:
"Mernber states pledge to settle aIl disputes among themselves by peaceful means and, to this end decide to establish a Commission of Mediation, Conciliation and Arbitration, the composition of which and conditions of service shall be defined by a separate Protocol to be approved by the Assembly of Heads of States and Governments. Said Protocol shall be regard~d as forming an integral part of the present Charter".
(73) The Protocol signed at Cairo on 21 July 1964 provided the
machinery necessary to put into effect the above general
stipulation. It prescribes that the Commission will
consist of twenty-one mernbers elected by the Assernbly of
the Heads of States and Governments. The President and
two Vice-Presidents of the Commission are full-time
mernbers of the Commission, while the remaining eighteen (74 )
are part-time mernbers. The consent of any party to a
- 34 -
dispute to submit to the jurisdiction of the Commission
may be evidenced by a prior written undertaking by such
party, actual reference by such party of a dispute to
the Commission's jurisdiction "in respect of a dispute
referred to the Commission by another State, by the
Council of Ministers, or by the Assembly of Heads of (75)
State and Government". Where the matter is referred to
the Commission for arbitration, the arbitral tribunal is (76)
to be established under Article XXVII of the Protocol.
In the absence of any provision in the
compromis regarding the applicable law, the arbitral
tribunal shall decide the dispute in accordance with
"treaties concluded between the parties, international
law, the Charter of the Organization of African Unit y,
the Charter of United Nations and, if the parties agree,. (77)
ex aequo et bono.
To date, the Organization has dealt with four
border disputes: Morocco-Algeria, Somalia-Ethiopia,
Somalia-Kenya and Ghana-Upper Volta. While the OAU
settled none of these disputes, it did nevertheless
adopt a general resolution on border disputes. Since the
adoption of this resolution, no new crisis over terri-
torial questions has occurred in Africa. The disputes
with which the OAU was concerned have not been resolved,
and in the Somali conflict with Ethiopia and Kenya the
Shifta violence continues, but sorne territorial disputes
- 35 -
have been contained and, un1ike the Congo, they did (78)
not assume co1d-war connotations.
4. The Rome Treaty (European Economie Treaty) (E.E.C.)
On 25 March 1957, Be1gium, the Federal Repub1ic
of Germany, France, Italy, Luxembourg and the Nether1ands
signed the Treaty estab1ishing the European Economie
Community, commonly known as the "Common Market". At
the same time, these countries signed the Treaty
establishing the European Atomic Energy Community (Euratom).
These two treaties complete the trilogy which began with
the Treaty estab1ishing the European Coal and Steel (79)
Community, signed on 18 April 1951 by the same governments.
In the 1egal framework set up by these treaties, the
European Court of Justice at Luxembourg occupies a very (80)
important place. It is competent not on1y to decide
disputes between the member States of the Communities
as to their obligations under the Tre-a:ties Tir. c~s. C.
Treaty, Article 89; Euratom Treaty, Articles 142-143 and
E.E.C. Treaty, Articles l70-~~but also it has a wide
jurisdiction of largely novel character in so far as
international disputes are concerned.
These treaties cover a wide variety of
disputes inc1uding:
a. Disputes between member States relating to
the obligation of any of the three treaties
that are submitted to the Court by virtue of
- 36 -
(81) an arbitral agreement.
b. Disputes among member States concerning (82)
applications of E.C.S.C. Treaty, no time(83)
limit being specified.
~. Disputes submitted to the Court pursuant to
an arbitral agreement contained in a contract
concluded under private or public law by or (84 )
on behalf of one of the Communities presumably
governed by the particular arbitral agreement.
d. Disputes between the Economie or Euratom
Communities and their employees as laid down
in the relevant Statute of Service or Condi(85)
tions of Employment. Furthermore, disputes
between the E.E.C. and Euratom fall within the
jurisdiction of the European Court (E.E.C.
Treaty, Article 179, Euratom Treaty, Article
152) .
5. The European Convention for the Peaceful Settle-
ment of Disputes.
This Convention, adopted under the auspices of (86)
the Council of Europe and signed on 29 April 1957, is
mode lIed on the General Act for the Settlement of Inter-
national Disputes. It provides for the judicial settle-
ment of "aIl international legal disputes", and for (87)
conciliation and arbitration of aIl other disputes.
Article" l of the Convention refers to disputes identical
- 37 -
to those listed in Article 36(2) of the Statute of the
ICJ.
The Cbnvention incorporates effective
provisions to ensure an arbitration even if one of the
parties shou1d fail to cooperate in the appointment of (88)
arbitrators or the conclusion of·special agreements with
respect to the applicable rules. The Convention departs
from the General Act in providing that, "if nothing is
laid down in the special agreement or no speical agree-
ment has been made, the Tribunals should decide ex aequo
et bono, having regard to the general principles of
international law, while respecting the contractual
obligations and the final decisions of international (89)
tribunals which are binding on the parties".
Since 1957 a considerable number of disputes
which might not have been submitted to the ICJ have been (90)
submitted to ECJ for settlement. This is because the
European Court has a very important role as a supra-
national administrative Court, charged with ensuring the
observance of legality for the Organs of the Committees
(the High Authority and the Assembly of the E.C.S.C.,
the Commission of E.E.C. and the Euratom, and the (91)
Council of aIl three bodies).
It may be noted that, on 28 September 1965,
the Consultative Assembly of the CounciI of Europe
recommended that, in addition to the procedures estab1ished
- 38 -
by the Convention for the peaceful settlement of
disputes, the Council of Ministers should set up a
special committee wh~ch might be called an,Interim
European Committee for the settlement of disputes. The
Committee would have power to consider any dispute or
threat of a dispute among member States of the Council
of Europe with a view to making suggestions and (92)
proposaIs for their solutions.
6. Bilateral Treaties of Commerce and Navigation.
General clauses on the peaceful settlement of
disputes are frequently included in bilateral treaties
of friendship, commerce, and navigation. Sorne such
agreements provide for the settlement of disputes
concerning their interpretation or application by means
of diplomacy and if diplomacy cann~t lead to a satis
factory adjustment then many of the treaties provide for
intervention of the ICJ, unless the parties agree to
settlement by sorne other means. Those clauses vary from
vague to specifie. Sorne are very brief and simple and
the relevant examples can be found in the Treaty of
Friendship and Commerce and Navigation between U.S.A. (93)
and Japan of 2 April 1953, Article XXVI, and the Treaty
of Friendship and Commerce and Navigation between U.S.A. (94)
and Ireland, signed at Dublin on 21 January 1950. Sorne
provide for resort to arbitration and the ICJ, at the
discretion of the parties, as for instance, Article 2
- 39 -
of the Treaty of Friendship between the Philip·pines and (95)
Switzerland which declares that:
"Should any dispute arise between the two High Contracting Parties, which cannot satis{actorily be adjusted by diplomacy, or through conciliation or mediation, the Parties shall not use force for $ettlement, but shall agree to submit the dispute to a court of arbitration, or to ICJ. If they fail to agree on this point, each Party may bring the dispute before the ICJ provided it is a legal dispute enumerated in Article 36(2) of the Statute of the Courtil.
On the other hand, the Treaty of Commerce and
Navigation between the Soviet Union and Hungary of 15 (96)
July 1947 contains under Article 16 the reference merely
to arbitration:
"The settlement of any disputes which may arise in connèction with contracts relating to commerce between the Parties may be effected by means of arbitration.
Each Contracting Party shall be prepared, at the request of the other Party, to enter into negotiations with a view to concluding an agreement regarding the best method of arbitration on uniform lines based on the principle of parity".
Historically, arbitration seems to have been the preferred
modality for the ·settlement of disputes arising out of
commercial treaties. Thus, for example, the General
Treaty of Friendship, Commerce and Navigation ("The Jay
Treaty") concluded in 1794 between the U.S.A. and U.K.,
provided for arbitration. British-American arbitration
constitutéd in fact the bulk of the international
arbitration during the nineteenth century. Of the
• - 40 -
various non-political questions which had been out-
standing between the two countries, the Jay Treaty (97)
provisions settled almost aIl the disputes by arbitration.
7. The Antarctic Treaty.
The Antarctic Treaty was signed in Washington (98)
on 1 December 1959. The provisions of the Treaty of
interest in the context of this study can be briefly
stated as follows: two or more members who have a dispute
concerning the "interpretation or application" of the
Treaty are merely obliged to consult among themselves
with a view to having the dispute resolved by any of the (99)
usual procedures for the peaceful settlement of disputes.
If a dispute cannot be settled by these
traditional means, it may be referred to the International
Court of Justice, but there is no provision for
compulsory jurisdiction. A dispute cannot be taken to
the Court without the consent, in each case, of aIl (100)
parties to the dispute. As a matter of fact, for
disputes relating to the Antarctic, this provision would
operate to remove any general obligation to adjudicate
previously assumed by any of the contracting parties
vis-à-vis one another. Moreover, the comparative termi-
nology and binding force of declarations under
Article 36(2) of the statute of the World Court and that
of this portion of the Antarctic Pact could not conceiv-
ably allow aState to avoid litigation that would not
- 41 -
have been avoidab1e, in good conscience, in the
absence of the Treaty.
- 42 -
PART TWO. - METHODS OF PEACEFUL SETTLEMENT IN CIVIL
AVIATION AGREEMENTS.
Chapter One. - Procedures in Force prior to the Conference on International Civil Aviation, 1944
1. Multilateral Agreements.
a. Paris Convention of 1919
Fo11owing the end of Wor1d War l, on the
initiative of the French Government a conference of
thirty-eight States was convened in Paris. As a resu1t
of their de1iberations, the first international conven-
tion on air navigation was opened for signature on
13 October 1919. The main princip1es of the Convention
may be stated as fol1ows:
(i) The recognition that every State has complete
and exclusive sovereignty over the airspace
above its territory (Article 1).
(ii) The freedom of innocent passage of aircraft of
contracting States over the territory of other
contracting States and the right to use the
public aerodromes of those States (Article 2).
(iii) For mi1i~ary reasons or in the interest of
public safety, aircraft may be prohibited from
f1ying over certain areas of a State's
territory, no distinction being made between
its own and a foreign aircraft (Article 3).
(iv) Aircraft of non-contracting States were not to
be permitted to enter the airspace of contract-
ing States.
- 43 -
(v) Uniform and obligatory regulation to ensure
safety of air navigation.
The importance of the Paris Convention cannot
be overemphasized. Apart from providing the basic
principles of international air law its provisions
became part of the national legislation of the contracting
States and thus helped the development of national air
law in Europe, which up to that time had been rather
limited.
A most significant achievement of the Convention
was the creation of the International Commission for
Aerial Navigation (I.C.A.N.). This Commission possessed
administrative, legislative, executive and judicial
powers as weIl as being an advisory body and a center of
documentation. Under the Paris Convention the I.C.A.N.
was empowered to pass upon disputes pertaining to the
technical annexes attached to the Convention. Questions
arising with reference to interpretation of the Convention
were to be settled by reference to PICJ, or if one of
the states concerned in the dispute had not accepted the
statute of the Court, it could demand a settlement by
arbitration. If there was a question whether the Conven-
tion or an annex was involved in the dispute, the matter (101)
was to be settled by arbitration. It should be noted
that no substantial dispute was ever submitted to I.C.A.N.
for resolution.
- 44 -
b. The Madrid (Ibero-American) Convention of Air Navigation, 1926.
This Convention was signed on 1 November 1926 (102)
by Spain and twenty South American States. Spain had
dec1ined to ratify the Paris Convention because she was
not granted a voting power within the I.C.A.N. equa1 to
that accorded France and Ita1y. The Ibero-American
Convention was c10sely modelled on the 1919 Paris
Convention. The on1y significant change was the
elimination of aIl inequalities among the contracting (103)
States. The Convention provided for the establishment
of the Ibero-American Commission for Air Navigation
(C.I.A.N.A.), in which eacb State was to have one vote.
As far as the settlement of disputes is
concerned, the Ibero-American Commission was given
power to pass upon disputes pertaining to the technical
regulations annexed to the Convention. In case of
disagreement regarding the interpretation or execution
the question was to be submitted to an arbitral tribunal (104)
from whose decision there was no appeal. The Convention
omits aIl references to the PICJ because it was thought
to be too close to the League of Nations from which
Spain had just withdrawn.
It is a1most certain that the machinery for
the settlement of disputes created by this Convention
was never employed. The Convention itself remained
- 45 -
throughout its existence a most ineffective instrument, (105)
having received ratification from only seven States.
c. The Havana (Pan Arnerican) Convention on Commercial Aviation 1928.
The refusaI of the U.S.A. and sorne South
American Republics to become parties to the Paris Con-
vention of 1919, led those States to draw up their own (106)
international air convention. An International American
Commercial Aviation Commission was established to draft
a legal code on civil aviation. The draft Convention
was submitted to the sixth Pan American Conference which
met in Havana on 1 January, 1928. Sixteen States had
ratified it by 1944, when the Chicago Convention was
concluded. As far as the settlement of disputes is
concerned the Havana Convention made provisions for
arbitration, but like the Madrid Convention it contained (107)
no reference to the PICJ. No aeronautical disputes are
known to have been submitted to arbitration under the
provisions of the Havana Convention.
II. Bilateral Agreements.
Many air transport agreements concluded between
the two World Wars contained general clauses for the
settlement of (108)
disputes as for example, the Greece-poland
Agreement of 1931, Hungary-Netherlands (110)
(109) Agreement of 1935,
Germany-Greece Agreement of 1936, and France-Hungary
- 46 -
(111) Agreement of 1935, and etc. There were however, sorne
agreements which make no provision for settlement and
disputes were presumably to be resolved through the
usual diplomatic channels. It was provided in sorne
cases that if diplomacy could not lead to a satisfactory
adjustment, the dispute should, at the request of either
party, be referred to an arbitral commission. Although
new agreements have replaced those concluded before
1939, it may be of more than historical interest to
guote a few examples of the settlement of disputes
clauses found in such agreements. Thus, Article 18 of (112)
the Agreement between Greece and poland provides:
"Disagreement relating to the application of the present Convention which cannot be settled through the diplomatic channel shall, on the request of one of the High Contracting Parties, be submitted to the decision of an Arbitral Tribunal"
"Such Tribunal shall be constituted in the following manner:
"Within one month of the date on which one of the High Contracting Parties has communicated to the other High Contracting Party the request for constitution of an Arbitral Tribunal, each of the High Contracting Parties shall designate an arbitrator. Within the month ne~{t following, the arbitrators shall meet to choose an umpire."
"If the arbitrators cannot agree on the choice of the umpire, the High Contracting Parties shall each designate a third party State and the third party State so designated will proceed to the nomination of the umpire, either by common agreement or by each proposing a name and then determing the choiee by lot."
- 47-
"The decision of the Arbitral Tribunal shall be binding on the High Contracting Parties".
"The expenses of the arbitration shall be fixed by the Tribunal and shall be borne by the High Contracting Parties in equal shares".
Article 23 of the Agreement between Hungary and (113)
Netherlands provides:
1. "Any dispute regarding the interpretation and application of the present Convention which cannot be settled amicably through the usual diplomatie channels shall be referred, at the request of either High Contracting Party, for arbitration to an arbitral tribunal constituted as laid down in the present Article. The decision of the arbitral tribunal shall be binding on both High Contracting Parties.
2. The arbitral tribunal shall consist of three members and shall be so constituted that each State can appoint its arbitrator within one month from the date of the request.
3. The chairman of the arbitral tribunal shall be appointed in the course of the following month by agreement between the two High Contracting Parties. The chairman must be a national of sorne third State and must not be resident in the territory of either High Contracting Party or hold any office in said countries.
4. If, in the course of a month, either High Contracting Party has not appointed its arbitrator on the arbitral tribunal, or if, during the following month, no chairman has been selected in the absence of agreement between the two Contracting Parties, the President of the Swiss Federal Council shall be asked to make the necessary appointments.
5. The seat of the arbitral tribunal shall be determined by the chairman.
6. The decision of the arbitral tribunal shall be adopted by a majority vote. The form of proceedings shall be decided by the arbitral
- 48 -
tribunal; they may be conducted by correspondence if no objection is raised by the two High Contracting Parties.
7. Each High Contracting Party shall pay the emoluments of its own arbitrator and one ha If of the emoluments of the chairman, as weIl as one half of the costs of the proceedings".
provides:
(114) The Agreement between Germany and Greece
"Points of detail in connection with the execution of the present Convention shall be settled, wherever possible, by direct agreement between the competent authorities of the two Contracting Parties.
Each of the Contracting Parties shall notify the other of any breaches of the provisions of the present Convention committed within its territory by nationals, whether persons or undertakings, of the other State.
In the event of dispute between the two Contracting Parties in regard to the interpretation or application of the present Convention, any proposaI by either Party for the submission of the dispute to the decision of an arbitral tribunal must be accepted by the other Party, including proposaIs for the reference of the preliminary question whether the dispute admits of such submission to an arbitral tribunal.
The arbitral tribunal shall be constituted for each particular case by the appointment by each Party of one of its own nationals as arbitrator, and the choice of both Parties of a national of a friendly country as third arbitrator.
The two Contracting Parties reserve the right to appoint the third arbitrator in any given dispute by preliminary agreement with one another for a limited period only.
The decision of the arbitrators shall be binding. "
- 49 -
Sorne pre-war agreements provided for the
sett1ement of disputes invo1ving their interpretation or
application by means of a reference of dispute to the
PCIJ, as e.g. the agreement between Great Britain and (115)
Greece of April 1931, and the convention between France (116)
and Hungary of 1935.
It shou1d be noted that agreements between
Be1gium and France (1930) and between France and Greece
(1931) provided for an appea1 to the PCIJ on1y if the
parties fai1ed to agree upon the choice of an arbitrator.
The agreement between France and po1and (1930) stipu1ated,
as an alternative, for appea1 to an arbitral tribunal, as
laid down by the Hague Convention of 1907.
On the other hand, sorne of the Pre-Chicago
Convention air transport agreements to which the U.S.A.
was a party did not provide for the sett1ement of (117) (118)
differences (e.g. U.S.A. and ~èbanon, U.S.A. and Germany, (119) (120)
U.S.A. and Ita1y, U.S.A. and The Union of South Africa, (121) (122) (123)
U.S.A. and Denmark, U.S.A. and Sweden, U.S.A. and Norway, (124)
and U.S.A. and Canada).
- 50 -
Chapter Two. - Procedures in Force Following the
Chicago Conference, 1944.
I. Multilateral Arrangements.
1. The Convention on International Civil Aviation
The purpose of this Part is to discuss briefly
the proceedings of the Chicago Conference which gave
birth to the Convention on International Civil Aviation
of 7 December 1944. It is against the background of this
Conference that the methods for the settlement of disputes
~n ~he field of international civil aviation will be
considered in detail below (Part Three).
The Chicago Conference was convened by the
United States of America in order to "make arrangements
for immediate establishment of provisional world air
routes and services"~ to "set up an interim council to
collect, record and study data concerning international
aviation and to make recommendations for its improvement",
and to "discuss the principles and methods to be followed (125)
in the adoption of a new aviation convention", and to
establish a new permanent aeronautical body to replace (126)
the International Commission for Aerial Navigation set up
under the 1919 Convention. The Conference which took
place from 1 November to 7 December 1944, was attended
by fifty-four States with more than 400 delegates. The
participating countries were (a) members of the wartime
United Nations, (b) States associated with the United
- 51 -
Nations and (c) Neutral States. AlI the invited States
attended, except the Soviet Union, Argentina and Saudi
Arabia.
The Chicago Conference heard many different
views with respect to the Post-War organization of the
world's civil air transport. The Chief of the American
Delegation, Mr. Adolf Berle, who was the President of
the Conference, explained his government's policy as
being aimed at a general system of rights for aircraft
to travel and to carry on international commerce by air.
This system was to be supervised by an international
body with executive functions in the technical field and
acting in an advisory capacity in matters of an economic (127)
nature.
A contrary view, partly shared by the British
Delegation, also "favoured the establishment of an
international aeronautical body, but would endow it with
the additional powers of fixing routes, frequencies and
rates.
The joint Australian and New Zealand proposaI
was much more ambitious. It envisaged the internationali-
zation of aIl international air services which would be
operated by a single internationally owned entity. This
proposaI, however, was rejected at an early stage of
the discussion.
- 52 -
Due to the great experienoe of the participants in technical questions relating to aviation, agreement on these was easily reached. However the Conference engaged in lengthy discussions on commercial questions, where no agreement satisfaci:ory to aIl could be achieved. The best that could be done was to provide for transit and transport rights of scheduled international air services in two separate agreements: the International Air Services Transit Agreement and the International Air Transport Agreement.
The Convention is undoubtedly the most
important document produced by the Conference and can be considered as the constitution of international civil air navigation.
Before discussing the provisions of the Chicago Convention relating to the settlement of civil aviation disputes, it will be of interest to examine sorne ideas on this problem as expressed in the provisions of the
draft multilateralagreement on commercial rights in international civil air transport. At the first session of the Assembly of the International Civil Aviation
Organization (ICAO) held at Montreal from 6 to 27 May, 1947, the Air Transport Committee of the provisional International Civil Aviation Organization (PICAO)
presented for consideration the draft multilateral
Agreement on Commercial Rights in International Civil
- 53 -
Air Transport. The purpose of this proposed agreement
was to provide for the multilateral exchange of both
transit and transport rights, the alI-important subject
on which no final understanding had been reached at
Chicago in 1944. In preparing the draft agreement the
Air Transport Committee of PICAO, which had been
functioning in Montreal for almost two years, seemingly
concluded that the Council of the Organization was not
the best forum for the settlement of disputes. The draft
agreement was submitted to the Assembly and contained the
following arbitration provision:
Article 17
"a. Any disagreement arising between contracting States on the interpretation or application of this Agreement which cannot be settled by negotiation, shall be resolved by an arbitral tribunal, the members of which shall be appointed by the President of the Council of International Civil Aviation Organization. The method of selecting members of su ch arbitral tribunal and the conduct of their proceedings shall be governed by Rules as established by the Council.
"b. If, upon the application of any contracting State as to a matter covered by Article 8 or Article 14 of this Agreement, the President of the Council of International Civil Aviation Organization, on evidence submitted, shall be of the opinion that a temporary restraining order is required, he may issue such order. The order of the President shall remain in effect until the decision of the arbitral tribunal cornes into force, unless sooner modified or revoked by him.
"c. Contracting States shall conform to decisiop..s of su ch tribunal and orders of the President, and shall require their airlines to conform
- 54 -
thereto. If an air1ine of any contracting State fai1s to conform to any such decision or order, each other contracting State undertakes not to a1low the operation of such airline through "the airspace above its territory until such time as the air1ine is acting in conformity to such decision or order." (128)
The official commentary submitted to the
Assembly with the draft agreement contained the following explanation:
"The need for sorne effective agency to interpret and en force the Agreement is obvious in view of its deliberate generality and flexibi1ity. Such interpretation is best left to a proper tribunal: enforcement is achieved through adequate sanction for the decisions of the tribunal." (129)
Four main alternative methods of dealing with disagreements were considered as follows:
"To give the Council of ICAO power to render binding decisions in somewhat the same manner as is now provided by Chapter XVIII of the Convention.
"To give the Council merely advisory powers of decision.
"To provide for arbitral tribunals with binding powers.
"To provide for a permanent tribunal within ICAO. Il
"The first alternative was rejected because of the belief that the Council, while weIl suited to serve as a legislative body is, by its very nature, improperly suited to be competent as a judicial body. It is a Council of States. The individuals who serve as representatives on the Council are necessarily subject to instructions in casting the votes of their respective States.
- 55 -
Accordingly, the final vote on a judicial question pending in the Council might easily be merely a summing up of the political forces currently operating in the twenty-one States represented. It seems unlikely that the Council will be any more able than a national legislative body to establish a clear line oÏ precedents, to follow the precedents once established or to act generally in a juridical manner.
"Although there was sorne support for the appointment of a permanent tribunal within the Organization this was deemed inadvisable because of the expense involved and the unpredictable volume of litigation. In this connection it was recalled that, although several bilateral agreements provide for application to the Council of PICAO for advisory report in case of dispute, no such application have as yet been made.
"To give the Council advisory powers only was deemed to combine several of the objections to the Council's acting at aIl in a judicial capacity, with a further objection that the Council's decision once rendered would not be enforceable.
"Appointment of a tribunal with power to render binding decisions was deemed necessary, since it seemed unlikely that any State would grant the rights conferred by the Agreement without more protection th an an advisory decision. The objections above recited to the use of existing or contemplated permanent agencies did not seem to apply to ad hoc arbitral tribunals·. Appointment of such tribunals with binding powers was accordingly deemed the best solution. By providing that aIl members of the tribunal are selected by the President of the Council, the objection is avoided that arbitral tribunals often consist of two advocates (the nominees of respective parties) and one judge (the third member selected by the other two). The provision of a power in the
- 56 -
President of the Interim Council to make temporary restraining orders was deemed a necessary complement in view of the inevitable delays in convening a speèial tribunal and trying a controversy before it.
"It will be observed that, although Article l7(c) requires contracting States to conform to decisions and orders, the sanctions provided apply only to airlines of contracting States which fail to conform thereto. The Committee believed that it was preferable, on the whole, to rely on the undertaking of States to abide by the decisions without seeking to impose sanctions against the States themselves in case of violation". (130)
When the draft agreement was being considered by
the Assembly in 1947, two important amendments were
advanced, one by the United States, the other by the
United Kingdom. Neither suggested the use of the
procedure found in the Convention. The procedure
suggested by the United States was as follows:
"Ca) If any disagreement shall arise between contracting States with respect to the interpretation or application of this Agreement, it shall be the dut Y of such States to use their best efforts to settle such disagreements by negotiation. If such disagreement cannot be settled by negotiation, it shall be submitted for an advisory opinion to an arbitral tribunal consisting of one arbitrator designated by each party to the disagreement plus at least one additional arbitrator, or as many more as are necessary to avoid having an even number of arbitrators on the tribunal. Within thirty days after the conclusion of negotiations, the parties to the disagreement shall eaèb designate an arbitrator, 'and within thirty days after such designation
- 57 -
the arbitrators so designated shall seiect the additional arbitrator or arbitrators by unanimous vote. If the arbitrators designated by the parties shall fail to name the additional arbitrator or arbitrators within such time, or if one or more of the parties shall fail to name 'within su ch time the arbitrator.that it is entitled to name, such arbitrators shall be named by the President of the Council of the ICAO from a panel of arbitrators to be established by the Council1 provided, however, that any arbitrator or arbitrators appointed as a result of the failure of the parties to agree upon such arbitrator or arbitrators shall not be of the same nationality as any of the parties to the disagreement.
n(b} Any such arbitral tribunal may act by majority vote. The conduct of the arbitration proceedings before such tribunal shall be governed by rules established by the Council which rules shall permit any contrating State to present to the arbitral tribunal in writing views and evidence relating to the subject of disagreement. A modus vivendi pending the opinion of the arbitral tribunal shall be determined by negotiation between the parties to the disagreement.
n(c} The executive authorities of the contracting States will use their bes.t efforts under the powers available to them to put into effect the recommendations contained in any such advisory opinion. n (131)
The United Kingdom's chief representative did
not suggest actual amenda tory language. He did, however,
make it clear that the United Kingdom's view ca lIed for a
special tribunal identified with ICAO, but not formed
from it1 also that the tribunal then suggested was one in
which the president should be "an international jurist of
- 58 -
distinction", the two other members to be experts chosen from a panel. No final action on the draft agreement
was taken at the 1947 Assembly.
The chief difficulty, according to John C.
Cooper, was that the Chicago Convention covered many
complicated problems of international air navigation, and the proposed multilateral agreement would be merely
supplementary to the Convention. The Agreement would provide, it was hoped, a definite "set of rules" under which international scheduled air transport operation
might be conducted between member States, supplementing the maze of special agreements then existing. If such a multilateral agreement were signed it would exist side by side with the Convention. But Cooper held, the
arbitral procedure in the Convention was quite different from the various schemes proposed for the Multilateral Agreement. The procedure set up in the Convention must be used in disputes arising under the Convention and the new procedures contemplated by the draft multilateral
(132) agreement must be used in disputes under that Agreement.
It was Cooper's view that in many foreseeable cases - so closely were the subject matter of the Conven-tion and the draft agreement interwoven - it would be extremely difficult to determine which procedure should be used. This might produce serious legal and political questions. It would seem much simpler then to provide
- 59 -
in the proposed Multilateral Agreement for use of the
procedure provided by the Convention. Then, if necessary,
the Convention could be later amended if its judicial
procedure was not considered satisfactory.
Before adjournment, the Assembly did take one
constructive step in furthering the use of arbitration in
international aviation disputes. It gave the Council
temporary power to act in any dispute regardless of
whether or not it involved an interpre~ation of the (133)
Convention.
We now turn to a brief examination of the
provisions for the settlement of disputes found in the
Interim Agreement and the Convention. The Conference had
the forethought to provide for settlement of disputes
that might arise before the Convention came into force
and while the Interim Council was functioning. Section 6(8)
of Article III of the Interim Agreement, dealing with the
Interim Council, therefore provided that it might act as
an arbitral body for any disputes arising among member (134)
States which the parties submit to it. The Interim
Council was empowered to render a final decision if the
parties agreed in advance to accept it as final and
binding. The procedure to be fol1owed was to be
determined by agreement between the Interim Council and
the interested parties. It is worth mentioning that the
Interim Counci1 cou1d act as an arbitral body upon request
- 60 -
of aIl of the parties concerned, to a dispute and not
upon the request of only one interested State.
The most significant aspect of the Interim
Agreement was that it provided arbitral facilities for
the parties to a controversy and thus aided the aviation
industry and the public during the reconstruction periode
The question of the settlement of disputes
under the Chicago Convention will be analyzed in detail
in a la ter chapter. However, it may be useful even at
this stage to note sorne salient features in the procedure
set up by the Convention.
An element of prime importance in the . formula
adopted by the Chicago Convention is that while it
permits the parties first to settle their dispute by
direct negotiations'before the matter is brought to the
Council, the disagreement is no longer allowed to drift
along aimlessly while the parties avoid or prolong
negotiations. Under the Chicago formula any interested
State may bring the matter before the Council for
decision. Furthermore, parties to the Convention commit
themselves to the pacifie settlement of their disagree
ments on both the interpretation and the application of
the Convention and its Annexes, and thus consent to
obligatory settlement if and when a disagreement arises.
The Council as an executive body has original jurisdic
tion over the disagreement, provided the parties fail to
- 61 -
settle their differences through their own negotiations.
In addition, since any State concerned in the disagree-
ment may submit it to the Council, it is no longer the
sole privilege of the parties to settle or not to settle
their differences. Finally, no member of the Council is
entitled to vote in the consideration of any disagreement
to which it is a party.
After PICAO, the provisional organization which
preceded ICAO, had come into existence, its Council
framed ru1es to serve in case it was asked to adjudicate
between two or more contracting States. The first set of (135)
rules was adopted by the PICAO Council in 1946. However,
no occasion arose to invoke them until the India-Pakistan
dispute of 1952-1953, in which Afghanistan was an (136)
intervenant. Moved by the filing of this dispute, the (137)
Council developed a new set of rules on 25 May 1953, to
govern the settlement of disagreements. These Ru1es,
after reception of comments from the contracting States,
were revised by a group of experts in 1955 and were (138)
finally adopted by the Counci1 on 9 April 1957.
2. The International Air Services Transit Agreement and the International Air Transport Agreement (ICAO).
The Transit Agreement, also known as the "Two
Freedoms Agreement", was signed on 7 December 1944 by
thirty-two States. The Agreement purports to create a
- 62 -
conventional right of innocent passage for scheduled
international flights, granting to the contracting States
so-called first "Two Freedoms" (Le. passage without
landing and landing for non-traffic purposes). This
treaty removes one of the great stumbling-blocks in the
pa th of the development of international air transport
over a large part of the World, and it represents a
genuine advance, albeit a modest one, in substantive (139)
international air law. As at 29 February 1968, the Air
Transit Agreement had been accepted by seventy-three (140)
States.
The Transport Agreement, also known as the
"Five Freedoms Agreement", was signed on 7 December 1944,
by twenty States. The signatories included the United
States of America but not the United Kingdom nor any
other member of the Commonwealth. This Agreement
represented an attempt to achieve on a multilateral basis
the essential freedoms of air trade. In addition to the
"Technical Freedoms" of transit and stops for non-
commercial purposes, it contains the three "Commercial
Freedoms" (to discharge passengers and freight in a
foreign country, to embark them in a foreign country and
to carry them from one foreign country to another). The
Agreement was sponsored by the U.S.A. which, throughout
the Chicago Conference, identified itself most conspic-
uously with the principle of freedom of international
- 63-
navigation without, however, being prepared to accept
what must be regarded as the necessary concomitant of
the principle, namely, a substantial measure of
regulation by or under the auspices of an international (141)
authority.
The Transport Agreement failed to attract a
sufficient number of States to make it an effective
instrument of international commerce by air. It was
denounced by the U.S. in 1946, and by 29 February 1968 (142)
only thirteen States were effectively bound by it.
With respect to the settlement of disputes,
these .. two agreements both contain an identical clause
which calls for the submission of disputes relating to
their interpretation and application, which cannot be
settled through negotiation, to the machinery provided (143)
for in Chapter XVIII of the Chicago Convention.
3. Joint Financing Agreements in the North Atlantic Region.
The Chicago Convention contains provisions
designed to secure that there will be airports and air
navigation facilities of the standard specified under the (144)
Convention eventually available for international air
traffic in the territories of aIl contracting States. In
addition, certain services and facilities must be provided
in regions of undetermined sovereignty and on the high
seas, where no one nation can be charged with these
- 64 -
responsibilities. Since air navigation aids are
complex and costly and sometimes States singly cannot
affDrd to provide and operate them, Chapter XV of the
Convention provides that the ICAO Council may arrange
for the joint financing of required facilities and
services by interested States.
At the First Session of the Assernbly of ICAO
in May 1947, resolutions were passed laying down in
detail the policy to be followed by the Organization in
providing financial and technical aid under the above (145)
provisions of Chapter xv.
Joint financing agreements currently applicable
and negotiated at conferences held under ICAO auspices
are the Agreement on the Joint Financing of North
Atlantic Ocean Stations (Paris, 1954), as modified by a (146)
Final Act (The Hague, 1960) and the two Agreements on the
Joint Financing of Certain Air Navigation Facilities of
Denmark and Iceland (Geneva, 1956).
AlI three Agreements contain identical provis-
ions on the settlement of disputes which accord the (147)
Council recommendatory functions.
4. n Aircraft
On the initiative of ICAO, the First Conference
on International private Air Law held after World War II
- 65 -
met at Rome from 9 September to 7 October 1952. The
Conference adopted the Convention on Damage Caused by
Foreign Aircraft to Third Parties on the Surface signed (148)
at Rome on 7 October 1952. Chapter III of the Convention
provides for the settlement of disputes in regard to (149)
questions arising under it. The pertinent clauses are ..
extremely narrow in scope and arewholly concerned with
the problem of insurance. Where the State overflown has
reasonable grounds for doubting the financial responsi-
bility of an insurer, that State may request additional
evidence. The ensuing dispute may, at the request of one
of the States concerned, be submitted to an arbitral
tribunal which shall be either the Council of ICAO or a
person or body mutually agreed upon by the parties.
However, until this tribunal has given its decision, the
insurance in question must be considered provisionally (150)
valid by the State overflown. Any requirements imposed
in accordance with this article are to be notified to the
Secretary General of the International Civil Aviation
Organization who shall inform each contracting State.
No provision is made, however, as to the time
within which arbitration must be commenced or completed,
nor is it clear whether, in the event of the failure of
the parties to agree upon another person or body, the
Council of the ICAO automatically becomes the arbitral
tribunal. With these matters left unsettled, it seems
- 66 -
evident that resort to arbitration affords little
opportunity for the State overflown to dispel effectively any doubts it may have with respect to the financial responsibility of a given insurer.
5. The International Convention Relating to Cooperation for the Safety of Air Navigation (EUROCONTROL).
Eurocontrol is an example of how technical
developments can force states into a cooperation which covers political and economic relations as weIl as technical matters. The International Convention relating to the Cooperation for the Safety of Air Navigation was signed in Brussels on 13 December 1960 and came into force (151) on 1 March 1963. The Organization established by this Convention is concerned with the unification of air
traffic control services of a number of West-European
States which had previously maintained their own air traffic control centres. Its field of application is at the present limited to the control of air traffic in the upper air space of the member States of civil aircraft and those of military aireraft which conform to ICAO procedures. The Organization has legal personality and also corporate capacity under the municipal laws of the eontracting parties, including the right to sue, and to
(152) acquire or transfer movable or immovable property.
- 67 -
Eurocontrol is composed of the Permanent
Commission, a deliberative body formed of two representa-
tives from each of the contracting parties, only one of
whom has a right to vote, and the Agency, which is the
executive body. The Eurocontrol Commission has a dual
role: on the one hand, to lay down a common policy on
certain matters relating to air traffic control and, on
the other, to exercise the power of general supervision of (153)
the activities of the Agency as defined in the Convention.
In view of the importance of this task, the member States
are represented on the Commission by their ministers
responsible for civil aviation and their ministers of
Defence.
The Agency is the executive organ of the
Organization and its functions are contained in a Statute (154)
annexed to the Convention. Its role consists in
organizing air traffic services in prescribed air space,
in accordance with the decisions of the Commission and
installing necessary facilities to ensure efficient and
smooth operation. To this end, the Agency works in close
cooperation with military authorities in order to satisfy
the needs of the air traffic under its control as (155)
economically as possible.
In the matter of settlement of disputes Article
33 of Eurocontrol Convention provides:
- 68 -
"1. Any dispute which may arise ei ther between the Contracting Parties, or between the Contracting Parties and the Organization represented by the Commission, relating to the interpretation or application of the present Convention or of its Annexes and which it has not been possible to settle by direct negotiation or by any other method, shall be referred to arbitration on the request of any one of .the parties.
"2. For that purpose, each of the parties shall in each case nominate an arbitrator, and the arbitrators shall agree on the nomination of a third arbitrator. Should one of the parties not haVe nominated its arbitrator within two months of the date of receipt of the request of the other party, or should the nominated arbitrators fail, within those two months, to agree on the nomination of the third arbitrator, any party may request the President of the International Court of Justice to make the nominations.
"3. The arbitral tribunal shall de termine its own procedure.
"4. Each party shall bear the cost of its own arbitrator and its representation in the proceedings before the tribunal; the costs of the third arbitrators and other costs shall be borne equally by the parties ·to the dispute. The arbitral tribunal may however de termine a different sharing of costs if it thinks fit.
"5. The decisions of the arbitral tribunal shall be binding on the parties to the dispute."
As can be seen, Article 33 requires, as the
first step in the process of settling a dispute, direct
negotiation or consultation between the parties concerned.
As a second step, disputes which cannot be settled by
direct negotiation are referred to arbitration. The
- 69 -
principle of allowing each party to nominate one
arbitrator is retained. The arbitrators must agree on
the nomination of a third arbitrator and if they fail
to nominate him in the specified time then, on the
request of any party, the President of the ICJ may make
the nomination (paragraph 2 of Article 33). Furthermore,
under paragraph 3, the arbitral tribunal is authorized
to de termine its own procedure. Finally, and most
importantly, the decision of the tribunal is not subject
to appeal and therefore it will be final and binding upon
the parties concerned.
Under the Eurocontrol Convention, States
abandon part of their sovereignty in their national air-
space to a common authority endowed with full legal
powers in Eurocontrol airspace. The question may
therefore arise as to where claims against Eurocontrol
should be brought. The Agreement itself does not
indicate where claims should be submitted and, whether
aircraft operators will have to submit their claims to
the national aviation authorities of the country where
damage occurred. The Convention makes no provision for
any specifie national jurisdiction. This fact should
be stressed since the statutes of other international
public entities contain ciauses which provide for (156)
national jurisdiction.
- 70 -
6. Convention relating to the Creation of an Agency Responsible for the Operation of Faci1ities and Services Provided to Ensure Air Navigation Safety in Africa and Madagasca~. (ASECNA) •
The Agency for the Safety of Air Traffic in
Africa and Madagascar (ASECNA) was established by a
Convention signed by 13 States on 12 December 1959 at (157)
St. Louis de Senegal. The signatories agreed to establish
an organization with legal status and financial autonomy
for the purpose of operating services designed to ensure
the regularity and safety of civil air transport in and (158)
over the territories of the contracting States. Such
services in the territories of the ASECNA member States
before they became independent had been provided by France.
The independent common organization, ASECNA, now renders
the above-mentioned services on a common basis for the new
States. In particular, the ASECNA administers air naviga-
tion facilities for technical and traffic control, flight
information, meteorologica1 observation and transmission
thereof, as weIl as the services required for approach to
and landing at the airports listed in the Annex to the (159)
Convention.
In contrast to Eurocontrol, the treaty which
establishes the ASECNA has no provisions specifically
relating to the settlement of disputes. This, however, is
not the only anomaly of the ASECNA constitutive agreement.
The Governing Body of the Organization consists of 24 (160)
members half of whom are French nationals. With the
- 71 -
exception of those described in Article 19 of the Statute,
decisions are taken by simple majority of members voting, (161)
the President having the casting vote. Under this
arrangement, there will seldom arise a dispute which could
not be informally resolved within the Governing Body, (162)
considering that 12 of its members are French nationals.
7. European Civil Aviation Conference (ECAC).
The ECAC was created at an ICAO sponsored
Conference on the Coordination of Air Transport in Europe, (163)
convened at Strasbourg in 1954. The main purpose of the
ECAC is to "review the development of intra-European air
transport with object of promoting the coordination, the
better utilization, and the orderly development of such (164)
air transport Il •
The Conference convenes its own meetings, and
arranges its agenda. However, ICAO supplies the adminis-
trative and other services, and bears indirect costs
attributed to the ECAC. Direct costs incurred by ICAO are
reimbursed to ICAO by ECAC members in proportion to their (165)
current ICAO contributions.
It shou1d be noted that the ECAC was not
established by an international treaty, but by virtue of
an ECAC resolution which makes no provision for the settle-
ment of disputes. However, ECAC had occasion to consider
this question r in connection with its Multilateral Agree-
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ment on Commercial Rights of Non-Scheduled Air Services
in Europe (Paris, 30 April 1956), the Standard Clauses
for Bilateral Agreements (1959), and most recently in the
International Agreement on the Procedure for the Establish-
ment of Tariffs for Scheduled Air Services (1967). These
texts will now be briefly examined.
8.
Under this treaty, the contracting States have
agreed that aircraft engaged in non-scheduled commercial
flights within Europe which do nct harm their scheduled
services should be freely admitted to their respective
territories for the purpose of taking on or discharging
traffic.
On the question of disputes the Agreement
provides in Article 4:
"1. If any dispute arises between Contracting States relating to the interpretation or application of the present Agreement, they shall in the first place endeavour ta settle it by negotiation between themselves.
"2. (a) If they fail to reach a settlement they may agree to refer the dispute for decision to an arbitral tribunal or arbitrator.
(b) If they do not agree on a settlement by arbitratian within one month after one State has informed the other State of its intention to appeal to such an arbitral authority, or if they cannat within an additianal three months after having agreed to refer the dispute to arbitration reach
- 73 -
agreement as to the composition of the arbitral tribunal or the person of the arbitrator, any Contracting State concerned may refer the dispute to the Council of the International Civil Aviation Organization for decision: No member of the Council shall vote in the consideration by the Council of any dispute to which it is a party. If said Council declares itself unwilling to entertain the dispute, any Contracting State concerned may refer it tothe International Court of Justice.
"3. The Contracting States undertake to comply with any decision given under paragraph (2) of this Article.
"4. If and so long as any Contracting State fails to comply with a decision given under paragraph (2) of this Article, the other Contracting States may limit, withhold or revoke any rights granted to it by virtue of the present agreement".
The above provisions of the Paris Agreement follow the
usual pattern of arbitral clauses in international treaties.
Two points, however, merit attention. First, the Agreement
expressly provides for the contingency of the ICAO Council
refusing to act as an arbitral body. Secondly, reference
of a dispute which the parties fail to settle by negotiation
or arbitration may be made not only by the parties directly
involved in the dispute, but also by other contracting
States concerned. Since, in principle, any controversy
regarding the interpretation or application of a multi-
lateral treaty can concern not only the parties directly
involved but also aIl other contracting States, this might
mean that any of the latter may refer an unsettled dispute
- 74 -
to the ICAO Council or the ICJ, as the case may be, (166)
without prior consent of the parties directly in dispute.
In addition, mention may be made of the right of inter
vention of parties to a multilateral agreement whenever
its interpretation is in issue in a case before the ICJ.
This is because Article 63 of the Court's statute provides
that:
"1. Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith.
"2. Every state so notified has the right to intervene in the proceedingsi but if it uses this right, the construction given by the judgment will be equally binding upon it."
Furthermore, from the comparative point of view,
one may effectively argue that, under the provisions of
the 1956 Paris Agreement, more confidence and faith have
been entrusted to the ICAO Council than is the case under
Chapter XVIII of the Chicago Convention. Thus, under the
Paris Agreement, the ICAO Council has been recognized as
a final court of arbitration for any dispute arising
between contracting States and relating to the interpreta-
tion or application of the Agreement, unless the ICAO
Council itself (and this would be rare) declares its
unwillingness or inability to entertain the dispute. The
contracting States undertake to comply with any decision
- 75 -
given under Article 4(2).
Furthermore, if and so long as a contracting
State fa ils to comply with the decision, the other contrac-
ting States may limit, withhold or revoke any rights
granted to it by the virtue of the 1956 Agreement. In
other words, the Paris Agreement provides for a collective
sanction against the State refusing to comply with the
decision.
9. Standard Clauses for Bilateral Agreements dealing with Commercial Rights of Schedu~ed Airlines (ECAC) •
In 1959 ECAC adopted Standard Clauses for
Bilateral Agreements dealing with Commercial Rights of
Scheduled Air Services. The purpose of these clauses was
to develop greater uniformity in bilateral air transport
agreements among the ECAC mernber States.
Article 13 of the ECAC Standard Clauses for
Bilateral Agreements provides for the settlement of disputes
as follows:
"1. If any dispute arises between the Contracting Parties relating to the interpretation or application of this present Agreement, the Contracting Parties shall in the first place endeavour to settle it by negotiation.
"2. If the Contracting Parties fail to reach a settlement by negotiation, they may agree to refer the dispute for decision to sorne person or body, or the dispute may at the request of either Contracting Party be submitted for decision to a tribunal of three arbitrators, one to be nominated by each Contracting Party and the third to be appointed by the two so
- 76 -
nominated. Each of the Contracting Parties shall nominate an arbitrator within a period of sixt Y days.from the date of receipt by either Contracting Party from the other of a notice through diplomatie channels requesting arbitration of the dispute and the third arbitrator shall be appointed within a further period of sixt Y days. If either of the Contracting Parties fails to nominate an arbitrator within the period specified, or if the third arbitrator is not appointed within the period specified, the President of the Council of the International Civil Aviation Organization may be requested by either Contracting Party to appoint an arbitrator or arbitrators as the case requires. In such case, the third arbitrator'shall be a national of a third State and shall act as president of the arbitral body.
"3. The Contracting Parties undertake to comply with any decision given under paragraph 2 of this Article".
(167) It has been authoritatively asserted, that a
substantial number of bilateral air transport agreements
concluded between ECAC States contain a provision requiring
direct negotiation or consultation between the parties as
a first step towards settling a dispute (paragraph 1 of
Article 13). As a second step, a majority of agreements
refer to ICAO, its Council, or a tribunal established
within ICAO, while other agreements refer to some other
person or body, as the authority for rendering an advisory
report or a decision. With few exceptions, aIl bilateral
agreements, irrespective of whether direct negotiation or
reference to the Council of ICAO forms part of the agreed
procedure, contain a clause on arbitration either as an
- 77 -
alternative to a decision by the Council or as the
principal method of settling disputes (paragraph 2 of
Article 13). These agreements invariably include a
provision concerning the States' obligation to comply
with the decision given (paragraph 3 of Article 13). In
the light of the foregoing, the Standard Clauses
recommended by ECAC appear to conform to the general
pattern.
10. Agreement on Tariffs for Scheduled Air Services. (168)
The purpose ofothis Agreement concluded under the
auspices of ECAC, is to achieve (presumably, world-wide)
uniformity in the establishment of tariffs for scheduled
air services. The principles and procedures set up under
this agreement will apply not only to situations where the
contracting parties do not have a bilateral agreement
between them, or when their bilateral contains no tariff
clause, but will replace su ch clauses in any bilateral
agreement presently in force between such contracting
parties. The Agreement envisages that the tariffs will
normally be agreed upon by the airlines operating on a
given route, subject to the approval of the aeronautical
authorities of the contracting parties concerned.
In the event that the aeronautical authorities
disagree on the question of tariffs, the Agreement
stipulates in Article 2(7) that the dispute "shall be
- 78 -
settled in accordance with the provisions in the relev~~t
bilateral air transport agreement". If there is no such
agreement between the parties in dispute, or if their
bilateral agreement contains no provisions for the settle-
ment of differences, Article 3 outlines the procedures
that the parties "may agree~' -to follow in order to
resolve the controversy. The text of this article repro-
duces almost verbatim the recommendation contained in (169)
Article 13 of the ECAC Standard Clauses.
Il. Convention Establishin the Central American Air Navigation Services Corporat10n COCESNA).
It appears that organized cooperation among the
Central American States in the matter of civil aviation
safety commenced with the establishment of the Flight
Information Center at Tegucigalpa in October 1957. To
promote still further the efficiency of regional air
navigation, the results of this cooperation and the needs
of the rapidly expanding civil aviation services led in
1960 to the conclusion of a regional convention which
established the Central American .Air Navigation Services (170)
Corporation. An important objective of the Convention was
to avoid duplication of services and to promote a rational
integration of services so that the Contracting Parties
might meet their international commitments.
The "Central American Air Navigation Services
Corporation" (COCESNA) has the exclusive franchise for the
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air traffic services and aeronautical telecommunication
services and aeronautical radio navigation aids in the
territories of the Contracting Parties. It provides such
services and aids as are specified 'in ICAO Regional Plans,
in the territories of the Contracting Parties and in such
other areas as have been entrusted to them by international (171)
agreements. COCESNA may provide to other States, by
agreement, such services and aids as are specified in ICAO (172)
Regional Plans. It may also provide such services and
aids, not specified in the ICAO Regional Plans, within the
territories of the Contracting Parties by contract to any (173)
public or private party.
This Corporation has a legal personality. It
has the capacity to exercise rights, to enter into contracts
and to be represented before the courts and outside the
countries. For the performance of its functions, it has (174)
the status of a public utility agency.
The COCESNA Convention under Article 25 provides:
"Any dispute between the Contracting Parties or one or more of the Contracting Parties and the Corporation concerning the interpretation or application of the Convention which cannot be settled by direct negotiations shall be resolved by an arbitration tribunal composed as follows: each of the Contracting Parties shall dra'!;" up and maintain a li st of three judges belonging to their Supreme Court of Justice. Within six months of the entry into force of this Convention such list shall be notified to the Secretary General of the Organization of Central American States.
- 80 -
"The Secretary General of the Organization of Central American States shall for each litigation draw lots to select from among the complete list of nominees the arbiters, each to be of a different nationality, who shall make up the tribunal.
"The decision shall be rendered by a majority vote and shall be res judicata in respect of the parties concerned". (175)
Unlike most of the previously discussed European
conventions on civil aviation, this Convention does not
provide a role in the settlement of disputes for the ICAO
Council or the ICJ, or the President of the ICAO Council.
II. BILATERAL AGREEMENTS
Bilateral air transport agreements provide for
the exchange of air traffic rights and the regulation of
air services between the territories of the countries
parties to these agreements. While a bilateral air agree-
ment is a treaty between two governments, the actual
negotiation of such an agreement is almost always delegated
by the government to the department responsible for civil
aviation matters. Hard bargaining characterizes the
negotiations of these agreements, because each party is
under heavy pressure from its own airline or airlines to
gain as many foreign traffic rights as possible, without
substantially increasing competition on the routes to be
flown.
Since these are intergovernmental agreements the
individual airlines cannot bring an action under them.
- 81 -
Only through its government can an airline demand, for
example, arbitration for an infraction of the agreement.
The airline merely utilizes the rights which its government
has obtained under the agreement and allocated to the (176)
airline.
As already indicated, direct negotiation is
universally recognized as the initial means of peaceful
settlement of any kind of dispute. Bilateral air services
agreements are no exception to this method of solving
international controversies. If direct negotiations and
consultations fail, then arbitration can be used to settle
the conflict. Almost aIl modern bilateral air transport (177)
agreements provide for arbitration.
The provisions for settlement of disputes under
the most common types of bilateral agreements, the Chicago
type, the Bermuda type and the Soviet type, will now be
discussed.
1. Tbe Chicago Type Agreements.
It will be recalled that the proposaI for a
multilateral agreement for the exchange of commercial air
traffic rights was rejected by the majority of States at
the Chicago Conference. Bilateral negotiations became the
only means by which the "commercial freedoms" could be
obtained. The Chicago Final Act contained a "Standard Form (178)
of Agreements for provisional Air Routes". Thus served as
- 82 -
a model for many bilateral agreements which are therefore ( l79)
called "Chicago Type Agreements".
Article 9 of the Standard Form of Agreement for
Provisional Air Routes drawn up at Chicago was left blank,
with a note stating that the parties could insert in its
place provisions for arbitration, if they so desired.
Nevertheless, the participants at the Chicago Conference
knew the value of arbitration; both the Interim Agreement (180)
and the Chicago Convention contain clauses for arbitration.
But the representatives at Chicago did not attempt to draft
a model arbitration clause for use in the varied
circumstances that might be faced by the parties to bilateral
air transport agreements.
2. The Bermuda Type Agreements.
In January 1946, representatives of the United
States and the United Kingdom met at Bermuda in order to
work out a standard agreement which would serve as a model
for aIl air transport agreements to be concluded by the two (18l)
countries. The Bermuda Agreement was admittedly a (182)
compromise. Each nation granted to the air carriers of the
other nation the two "technical freedoms" to operate
through the airspace of the other and to land for non
traffic purposes, subject to the right of states to
designate routes and airports, as defined in the Chicago (183)
Transit Agreement. Each nation further granted to the
- 83 -
other the three "commercial freedoms" the so-called third,
fourth and fifth freedoms which cover traffic rights.
However, in contra st to the technical privileges these
commercial freedoms are valid only for the locations named
in the agreement and on routes generally indicated
(Anne x III), and in accordance with certain general traffic
princip1es and limitations. These principles are: govern(184)
ment approva1 of rates, adequate traffic capacity and an
"ex-post facto review" of the carriers' operation as to
their comp1iance with these princip1es.
Against this background, we may now examine the
procedure for the settlement of disputes established under
the Bermuda Agreement. This Agreement provides in Article 9
that disputes which cannot be settled by negotiation shall
be referred to the Interim Counci1 of the provisiona1
International Civil Aviation Organization (PICAO), which
must now be read as "ICAO". In the Annex to the Bermuda
Agreement there is an additiona1 arbitration clause for
air transport rates. If the contracting parties cannot
agree on common rates, either party may refer the matter (185)
to PICAO for advisory report.
The parties to the Agreement further promise to
use their best efforts to put into effect the advisory
opinion on rates referred to in II(g) of the Annex. One
may assume, that the parties wou1d fee1 ob1iged to make
the same effort to put into effect advisory opinions
e
- 84 -
(186) contemplated in Article 9 of the Agreement.
The arbitration clause found in the United
Kingdom-Columbia air transport agreement of 1947 is (187)
typical of British practice. Its similarity to the
arbitration clause of the Bermuda Agreement is noticeable.
If the parties cannot negotiate a settlement or agree on an
arbitral tribunal either party may submit the disagreement
for decision to ICAO. The Agreement stipulates that a
competent organ within ICAO shall be the arbitral tribunal;
until that organ has been established, ICAO Council shall
arbitrate. But such an arbitral organ for bilateral air
transport agreements has never been created by ICAO. It
would seem, therefore, that ICAO's Council would continue
to have jurisdiction if any dispute were referred to it
under this treaty. The parties agree to comply with the
decision of the arbitral body.
It may be noted that although provision is made
for institutional arbitration in the agreements concluded
immediately after the Chicago Conference, it was abandoned
in later agreements. Thus, the PICAO Council had the
provisional function of considering disputes arising under (188)
bilateral agreements. The Bermuda Agreement of 1946, as
already stated, refers disputes to the PICAO Council for
advisory opinion. However, as .late as 1953, in the U.S.(189)
Japan Agreement the institutional method was used. This
agreement refers only disputes about rates to the ICAO
- 85 -
Council for advisory opinion. It shou1d be noted that the
present u.s. aviation agreements deviate substantia1ly from
the original Bermuda Type and most of them refer disputes (190)
to a tripartite independent arbitral tribunal.
It is of some interest to mention that certain
agreements stipulate that the parties shal1 submit their
dispute to a person or body CIeAO) for advisory opinion,
and alternatively, or if they so agree, to a tripartite
inde pendent tribunal. This procedure which offers the
parties a multiple choice can be found in the U.S.-Iran (191)
Agreement of 1957, and in a number of bilaterals concluded
by the European countries. The more simple approach,
consisting merely of a consultation and submission to an
independent tripartite tribunal, appears in severa1 recent (192)
u.s. agreements. At the present time the two-step
arbitration method is preferred, apparent1y, for its
simplicity.
The tripartite method has been criticised as
creating too much pressure within the tribunal on the third
member from the two national representatives. The criticism
that the two appointees of the parties invo1ved become
advocates of their own countries is not te be disregarded.
However, the tripartite tribunal is now firmly established
as the customary arbitration method in modern air transport
agreements.
- 86 -
3. The Soviet Type Agreements. = The Soviet Union's reluctance to submit its
disputes to a third party adjudication is clearly evident
in its bilateral air agreements. A typical solution
adopted by the U.S.S.R. can be seen from the following
clauses found in its bilaterals concluded with India and
Pakistan.
Article 17 of the Soviet Union-India Air Transport (193)
Agreement provides that:
"A. If any disputes arise between the Contracting Parties relating to the interpretation or application of the present Agreement, the Contracting Parties shall settle it by negotiation between themselves.
"B. If the Contracting Party fail to settle the dispute by negotiations, then either Contracting Party may limit, withhold or revoke any righ:t.s""'bio.hit has granted by virtue of the present Agreement".
Article 12 of the Soviet Union-Pakistan Air (194)
Transpùrt Agreement provides that:
"Any dispute arising out of the interpretation or implementation of this Agreement and/or its Annex may be settled by means of direct negotiations, between the designated airlines themselves, failing which, the dispute may be settled by negotiations between the two Aeronautical Authorities. If the two Aeronautical Authorities also fail to reach an agreement, the matter shall be referred to Contracting Parties for settlement".
Many agreements concluded by other Socialist countries
follow in this regard the Soviet practice. For example,
Article III of the Poland and Austria Air Transport Agree(195)
ment provides that:
- 87 -
"All problems connected with the safety and technical operation of flights are described in Annex 2 of this Agreement and shall fall within the competence of the Aeronautical Authorities of Contracting Parties Il .•
Article IV also provides:
"All questions of a commercial nature, especially the establishment of flights schedu.les including frequency of service, tariffs, payment procedures as weIl as the servicing of aircraft on the ground shall be regulated in separate agreements between the designated Australian and Polish airlines" •
4. Recent Arbitral Settlements.
This part of the study deals with two recent
arbitration cases involving the interpretation of bilateral
air services agreements concluded by the U.S. with France
and Italy. First the decision of the Arbitral Tribunal (196)
in the air transport dispute between the U.S. and France
is analyzed y followed by a review of the advisory opinion
of the Arbitral Tribunal in the dispute between the U.S. (197)
and Italy.
a. U.S.-France Arbitration
22 February 1964, the day the Arbitral Tribunal
announced its decision in the U.S.-France air traffic (198)
rights dispute must be considered a landmark date in inter-
national air transport arbitration. It was the first time
in history that rights granted under a bilateral air (199)
transport agreement became the object of an arbitral (200)
decision, even though, as will be recaIled, most of the
- 88 -
bilateral air transport agreements (including U.S.-France (201)
agreement of 1946) provide for resort to arbitration.
Until 1963 not once had any state employed this method
of settlement.
This dispute was primarily concerned with the
interpretation of terms figuring in the description of
u.s. routes and ensuing applications at the operational
level by a U.S. airline, Pan American Airways (PAA) , over
sectors between Paris and points to the east. Under the
1946 bilateral agreement, France granted the U.S. two (202) ..
routes through the "Near East". Route one extends from
the United States to Paris and beyond via Switzerland,
Italy, Greece, Egypt, the Near East, India, Burma, (203)
Thailand, Hanoi to China and beyond. Route two extends
from the United states over Spain to Marseilles and then
via Milan and Budapest to Turkey and beyond, meeting
another U.S. air route in India. Service on Route One
was inaugurated by the Trans World Airlines (TWA). This
company still operates on this route.
It should be noted that Route Two is only
indirectly relevant to the dispute, for the essence of the
"Near East" problem are the commercial traffic rights in
Paris.
In 1950, the Civil Aeronautics Board (CAB) of the
United States gave PAA permission to operate services on
- 89 -
(204) Route One, which until then had been a110cated sole1y ta
TWA. Short1y thereafter, PAA announced the inauguration
of a U.S.-Paris-Rome-Beirut service, which was objected
to by the French. France maintained that Beirut was not
specifica11y designated in the American Route One in the
1946 U.S.-France agreement it cou1d not be inc1uded
within the definition of the term "Near East" used in the
route description. Traditiona1 p01itica1, economic and
cultural ties with Syria and Lebanon were also stressed as
giving France a particular interest in the air service
between France and Beirut. In spite of these reservations,
PAA was given permission to serve Beirut, which from the
French point of view this could be considered on1y as a
temporary arrangement.
In 1955, PAA notified France of its intention to
extend its U.S.-Paris-Rome-Beirut service as far as Tehran
in Iran. The French renewed their objections indicating
that Tehran was not designated in Route One and was in the
Middle East and not in the "Near East". However, PAA was
again given permission to operate the service but, as in (205)
the previous instance, on a temporary basis and under the
same conditions.
The same year another project of PAA encountered
French opposition. This was the inauguration of a Paris-
Rome-Istanbul service. France refused to grant the
American airline Fifth Freedom rights between Paris and
- 90 -
Istanbul on the ground that Turkey did not come within
the meaning of the term "Near East". This country is
specifically designated in the American route schedule,
but on Route Two and not on Route One passing through
Paris. Section VII of the Annex to the 1946 bilateral
provides for the possibility of making changes in the (206)
American routes. However, according to France's restrictive
interpretation of the term, this could mean only minor
changes and the disputed route to Istanbul would not
qualify as such. As a result, PAA had to operate the
service without traffic rights between Paris and Istanbul.
Sebsequent plans by PAA to extend its route
sectors east of Paris (to Ankara, Bagdad, Tehran) brought
the crisis to a head, resulting in 1962 in the American
request for arbitration. It is important to note that in
1961 PAA was given provisional permission to operate a
service to Tehran, and between September 1961 and October
1962, this permission was renewed. Since no permanent
agreement had been reached on the issue, as of 31 October
1962 PAA was forbidden to exercise traffic rights between
Paris and Tehran and vice versa. The negotiations having
failed, the U.S. Ambassador in Paris notified the French (207)
Government that his country desired arbitration as provided (208)
in Article X of the 1946 Agreement (as amended in 1951).
The two basic issues submitted for arbitration
can be summarized as follows:
- 91 -
- a question involving the interpretation of the contractual texts, in particular the interpretation of the term "Near East" used in the description of the American Route One~
- the legal consequences of the de facto situations arising from the stands taken by the French authorities with respect to PAA's successive programmes, such stands being either negative as in the case of traffic rights to Turkey, or positivealbeit temporary - in the case of Tehran. (209)
The question whether a U.S. airline had the right
to operate air services between the U.S. and Turkey via
Paris, the Tribunal answered in the affirmative. This was
not by the virtue of the 1946 Agreement, since Turkey is not
within "Near East" in Route One, but as a consequence of
French p~rmission of 1955 given PAA ta serve Istanbul.
As ta the exercise of traffic rights by the U.S.
airline between Paris and Istanbul, Ankara or any other
point in Turkey, the answer was in the negative. It will
be recalled that the 1946 agreement did not authorize the
service to Turkey, nor did the subsequent permission to
serve Turkey include commercial traffic rights.
To the question as to whether a U.S. airline had
the right to operate services between the United States
and Iran via Paris, the Tribunal answered in the affirmative.
By the terms of the decision, PAA's operations on the Paris-
Turkey route were confirmed, but without Fifth Freedom
rights, and on the Paris-Iran sector with full traffic rights.
Following the original decision, the Tribunal
was requested by the two parties to explain the nature and
- 92 -
scope of the Fifth Freedom rights it granted to the u.s.
airline between Paris and Iran. The Tribunal gave its
interpretative decision on 28 June 1964. Recalling
certain considerations it had explicitly formulated in
its previous decision, the Tribunal stressed the fact that
the permission given to the U.5. airline to exercise the
rights in question did not follow from the 1946 agreement,
but from the implicit agreement arising from the consent
of the French authorities as from 14 May 1955 and
constantly confirmed by their attitude in the subsequent
years. As to the path of the route, the U.5. airline was
authorized to exercise Fifth Freedom rights between Paris
and Tehran on the U.S.-Paris-Rome-Beirut-Damascus-Tehran
route, with the possibility of eliminating one or more
intermediate stops (the so-called "omission of the stops
clause") •
Although the Tribunal decided in favour of France
in the matter of the legal interpretation of the U.5.
France bilateral air transport agreement, its decision
favours the United States on a question which is both
legal and equitable, i.e. whether it would be fair to
deprive PAA of traffic rights which it had obtained legally
and which France had permitted the airline to enjoy for a
considerable period of time. By authorizing the tribunal
to determine the basis for the award, the parties made
possible equitable consideration.
- 93 -
By way of a conclusion it seems usefu1 to under-
score certain salient featureR of this arbitration, since
in some respects ·it is likely to set a precedent.
Many bilateral air transport agreements contain
clauses relating to.the settlement of disputes, but it is
generally accepted that the decisions, given as result
of judicia1 (arbitration) proceedings, shall not be binding
on the parties involved. Such is the case with the
arbitration clause in Article X of the 1946 U.S.-France (210)
agreement. However, in this dispute, the U.S. and France . . (211)
agreed in advance to accept the decision as binding. This
was a prudent step in view of the anxiety of the parties to
settle a dispute which, despite aIl their efforts, they
had failed to settle by prior negotiations and the hazard
of further delays which would have almost inevitably
resulted from a purely advisory opinion. The arbitral
decision put an end to harmful ambiguity.
Another important point is that the arbitral
award was accompanied by a subsequent interpretation. This
was a necessary addition in view of both the intricate
arguments of the arbitrators and the practical needs
involved in implementing a decision expressed in terms too
general to embrace aIl the possibilities. The interpreta
tion largely closed the gap which al1 too often exists
between a legal decision and its Implementation.
- 94 -
Finally, it is of sorne significance, and hope-
fully a practice which will be followed by others, that
the parties in this dispute had employed, however,
indirectly, the services of ICAO. Thus, when the arbitra-
tors nominated by the parties cou Id not agree on the
selection of the third member, the President of the ICJ,
having consulted the President of the ICAO Council,
appointed an Italian Professor, Roberto Ago, to the
Tribunal on 26 March 1963.
b. U.S.-Italy Arbitration. (212)
This dispute involved the interpretation and
application of the U.S. and Italy Air Transport Agreement (213)
of 1948. More specifically, the Italian authorities
objected to the inauguration by TWA of an alI-cargo service
by Boeing 707-320C aircraft. The Italian argument was
that the terms of thêir bilateral agreement with the U.S.
which, like aIl bilaterals of the traditional type refers
to mixed air services (passenger-freight and mail)~ did
not cover air services specializing in any one of these
types of traffic. Hence, it was argued, a freight service
as TWA's required special and additional permission.
According to the terms of the agreement, disputes
such as this were to be resolved, first, through consulta-
tion between the parties (Article 10) and, if that should
fail, through arbitration (Article 12). The U.S. asked
- .95-
for consultation in December 1963 and in March 1964 the
parties discussed their disagreement wit~out narrowing the
gap between their respective positions. AlI they could
agree upon was to proceed to the next step - arbitration.
The arbitration agreement, signed in Rome on 30 June 1964,
set out the terms of the dispute (Article 1) as follows:
"The Tribunal is required to decide the following question: Does the Air Transport Agreement between the United States of America and Italy of 6 February 1948, as amended, grant the right to a designated airline of either party to operate scheduled flights carrying cargo only?" (214)
The resolution of this question rested primarily
on the construction cf certain provisions of the agreement,
namely, Article l(d) of the 1948 agreement, which states
that, except where otherwise provided in the text, the
definitions found in Article 96 of the Chicago Convention
shall apply to the 1948 agreement. Article 96(a) of the
Convention defines "air services" as "any scheduled air
service performed by aircraft for the public transport of
passengers, mail or cargo". Under Article 2 of the agree-
ment, each government grants to the other the rights
specified in the Annex (to the Agreement) for establishing
the international civil air routes and services described
therein. Sections l and II of the Annex provide that each
party grants to the other party the right to conduct air
transport services by one or more carriers designated in
- 96 -
accordance with the agreement on the routes specified in
the appropriate schedule, which transit or serve commer-
cially the first party's territory.
In the view of the Agent of the U.S., these
provisions were crucial to answering the question. However,
Section III of the Annex, upon which the main thrust of
Italian Agent's argument rested provided: "One or more air
carriers, designated by each of the contracting parties
under the conditions provided in the present Agreement and
the Annex thereto will enjoy, in the territory of the
other contracting party, rights of transit and of stops
for non-traffic purposes, as weIl as the right to commercial
entry and departure for international traffic in passenger,
mail and cargo at the points enumerated on each of the (215)
routes'lri.. Schedules attached". The Italian government
argued that Section III was decisive. The phrase"passen-
gers, mail and cargo" used in that provision excluded
application of the definition of air services as the
specific reference was a case of the text providing other-
wise. The word "and" in the phrase was used in a cumulative
sense. Consequently, when read as a whole, Section III
granted only the right to operate combination services. It
is of importance to note that such alI-cargo services had
been conducted prior to this dispute by the American
airline on the basis of special concessions or tacit (216)
authorization.
- 97 -
For the U.S. SectionsI and II of the Annex
contained the key provisions. They provided for the
ex change of rights between the parties.and, when used in
conjunction with the definition of air services in the
Chicago Convention, conferred the right to carry passengers,
mail or cargo. Section III should, therefore, be construed
in harmony with these provisions. Furthermore, the U.S.
argued, Section III referred only to types of load and not
the means of transport employed. As far as the use of "and"
and "or" is concerned, these words are employed indiscrim-
inately to describe the whole system of commercial air (217)
service. The subsequent conduct of the parties in allowing
alI-cargo services. to be operated was evidence that the (218)
agreement was intended to cover also cargo services.
The arbitral tribunal announced its decision in
July 1965. By two votes to one it concluded that the
agreement authorized the operation of alI-cargo services.
Thus, the U.S. won the case. The tribunal rejected the
Italian argument that the words "to embark and disembark
international traffic in passenger international traffic
in passenger, mail and cargo" controlled the type of
service that could be provided and that there would be only
a combination service, i.e. a service intended for the
carriage of aIl three types of traffic.
A few aspects of this arbitration merit attention.
Even_~hough under Article 12 of the 1948 agreement Italy
- 98 -
and the U.~ •. agreed to usetheir best efforts to put the advisory opinion ioto effect, when the tribunal gave its decision in July 1965~ both sides were reluctant to comply with it. This negative attitude must be contrasted with the attitude displayed by the U.S. and France toward the decision rendered by the arbitral body in their recent dispute. Of special importance is the U.S.position that because the tribunal heavily relied on factors uniquely relevant to the U.S.-Italy agreement, its decision is not automatically applicable to other bilateral agreements
(219) concluded by the U.S. In view of the present expansion of the· alI-cargo services by the U.S. international carriers, this position could result in renewed costly litigation between the U.S. and other countries. On the other hand, the reaction of the Italian government has been to give
(220) notice of termination of the agreement, because it also found the decision unsatisfactory.
The tribunal in this case did not adopt a new procedure and the proceedings were based on the terms of the original air services agreement. It is worth noting that this agreement (a Bermuda type) incorporates twentyyear old procedures and such procedures may no longer be the most effective method for the settlement of problems arising from the rapidly growing international air trans-port industry.
- 99 -
PART THREE - THE ICAO MACHINERY FOR THE SETTLEMENT OF
DISPUTES.
Chapter One - The Competence of ICAO Organs
The principal organs of the International Civil Aviation Organization are the Assembly, the Council, the Air Navigation Commission, the Air Transport Committee, the Legal Committee, the Committee on Joint Support of Air Navigation Services and the Secretariat. Most directly relevant to this study are the Assembly and the Council.Their competence, functions, powers and duties are briefly outlined below.
The Assembly - Competence, Functions, Powers and Duties. - The Assembly is the supreme body of the Organiza-tion. Its sessions are open to attendance by representa-tives of aIl contracting States. The ICAO Assernbly is a new creation in the field of international civil aviation organization and it differs from the pre-war International Commission for Air Navigation (ICAN) in several important respects. Under the Chicago Convention the constitutional functions, powers and duties of the Assembly include the following:
1. To elect at each session its President and other (221)
officersi
2. To elect the contracting States to be represented (222)
on the ICAO Councili
3. To delegate to the Council the powers and
ft
- ~oo -
authority necessary or desirable for the (223)
discharge of the duties of the organization,
and to take decisions or action on reports of, (224)
or matters referred to it by the Council;
4. To vote the annual budgets and determine the (225)
financia~ arrangements of the Organization;
5. To consider proposaIs for the modifications or
amendments of the provisions of the Convention
and, if it approves of the proposaIs, recommend (226)
them to the contracting States.
6. To enter into "appropriate arrangements" with
the UN Organization, to approve arrangements by
the Council with other international bodies, and
to perform certain functions under the Interna-
tional Air Transit Agreement and the Transport (227)
Agreement.
7. To deal with any matter within the sphere of
action of the Organization not specifically (228)
assigned to the Council.
The Paris Convention did not establish a body
comparable to the ICAO Council. But Article 34 of the
Convention did create the International Commission for Air
Navigation, a "permanent Commission placed under the
direction of the League of Nations". This Commission was
open to aIl members of the ICAN just as the ICAO Assembly
is open to aIl the States adhering to the Chicago C.onvention.
- 101 -
Both the ICAO Assembly and ICAN would dea1 with genera1
policy matters. However, the ICAN, unlike the ICAO
Assemb1y, was also authorized to adopt the Annexes to the
Paris Convention, whereas under the Chicago Convention,
this task is carried out by the ICAO Council, a body of
limited membership.
Moreover, in the case of disputes, ICAN dealt
with disputes pertaining to technical annexes, while in
ICAO this function is carried out by the Council which also
deals with disputes relating to the interpretation or
application of the Convention. By contrast, disputes
involving the interpretation or application of the Paris
Convention would have been referred to the PCIJ.
The Council. - The Council is a permanent body,
responsible to the Assembly, composed of the representatives
of twenty-seven contracting States elected by the Assemb1y (229)
every three years. It derives its powers and authority
from the Convention and the Assembly.
In electing the members of the Council the
Assembly is bound to give adequate ~epresentation to (a)
the States of chief importance in air transport (b) the
states not otherwise included in (a) which make the largest
contribution to the provision of facilities for interna-
tional civil air navigation, (c) the States not otherwise
included in (a) or (b) whose designation will ensure that
aIl the major geographic areas of the world are represented (230)
on the Council.
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The Council elects its president (who need not
be a national of a member of the Council) for a term of (231)
three years. Decisions of the Counci1 require approval by (232)
a majority of its members; no member may vote in the (233)
consideration of a dispute to which it is a party. Any
contracting State may participate, without a vote, in the
consideration of any question which especia11y affects its
interest.
The Council determines its own organization and (234)
rules of procedure. The Convention requires the Council
to establish two subsidiary bodies, the Air Transport (235) (236)
Committee and the Air Navigation Commission. It may also
create "subordinate air transport commissions" on a (237)
regional or other basis.
The powers and duties of the Council are as
follows:
1. General Functions (238)
a. To submit annua1 reports to the Assemb1y;
b. To carry out the directions of the Assembly
and discharge the duties and obligations which (239)
are laid on it by the Convention;
c. To consider any matter relating to the Conven(240)
tion which any contracting State refers to it.
2. International Administrations
a. To conclude arrangements with other interna(241)
tional bodies;
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b. To perform certain functions under the Air (242)
Transit and Air Transport Agreements;
c. To make recommendations for improvements to (243)
airports and other navigation facilities.
3. Legislative and Quasi-legislative Functions
To adopt and amend International Standards and
Recommended Practices and Procedures in matters
concerned with safety, regularity and efficiency (244)
of air navigation these being designated as
Annexes to the Convention.
4. Clearing House Functions
a. To collect and publish information relating to
the advancement of air navigation and operation (245)
of international services.
b. To file traffic reports and statistics relating (246 )
to international airlines of contracting States;
c. To register and publish aeronautical agreements
and arrangements to which contracting States (247)
are parties.
5. International Administration of the Organization (248)
a. To administer the finances of the Organization;
b. To appoint the Secretary General and other
personnel and to administer their terms and
conditions of services, training, salaries and (249)
etc.
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6. Supervisory Functions
a. To undertake research into aIl aspects of
air transport and air navigation which are (250)
of international importance;
b. To study any matters affecting the Organiza-
tion and operation of international air
transport and to submit to the Assemb1y plans {251}
re1ating thereto;
c. To investigate, at the request of any contrac-
ting State, any situation which may appear to
present avoidab1e obstacles to the deve10pment
of international air navigation, and report (252)
thereon;
7. Judicia1 Functions.
One of the most important functions of the Counci1
is the judicia1 one provided by Chapter XVIII
(Articles 84-85) of the Convention. This
function of the Council, i.e. the sett1ement of
differences, is the main topic of the paper, it
will be exp10red in greater detai1 be1ow.
Chapter Two - Types of Disputes within the ICAO's Competence
Under Chapter XVIII of the Chicago Convention,
the ICAO Counci1 is empowered to sett1e disputes between
- lOS -
contracting States relating to the application and
interpretation of the Convention. The decision of the
Council may be appealed to the ICJ or an ad hoc tribunal (253)
agreed upon by the parties. The general statement
contained in Article 84 of the Chicago Convention appears
to confer upon the Council very broad competence, embrac-
ing many different kinds of disputes including those
involving prohibited zones, denial of navigation facilities
and failure to render assistance to aircraft in distress.
The extent to which the Council has used this competence
will be discussed below.
The International Air Services Transit Agreement
and the International Air Transport Agreement both contain
a clause which subjects disputes relating to their
interpretation and application and which cannot be
settled through negotiations, to the procedure established
under Chapter XVIII of the Chicago Convention. The two
Agreements provide that Chapter XVIII of the Chicago
Convention shall be applicable "in the same manner as
provided therein with reference to any disagreement
relating to the interpretation or application of the
Chicago Convention".
In regard to the disputes under these two Agree-
ments, Article 66{b) of the Chicago Convention would apply
- 106 -
and could cause difficulty. That Article provides that:
"Members of the Assembly and the Council who have not accepted the International Air Services Transit Agreement or the International Air Transport Agreement drawn up at Chicago on December 7, 1944 shall not have the right to vote on any question referred to the Assembly or the Council under the provision of the relevant Agreement".
In a Council composed of 27 member States, a substantial
number of them might not have accepted the Transit Agree-
ment and few would be parties to the Air Transport Agree(254)
ment which has only 13 signatories. Hence, only sorne
members of the Counci1 might be able to "Tote in a case
submitted to it under these agreements.
This situation cannot but impair the qualifications
of the Council as a body for settling disputes. On the
other hand, it is possible to maintain that the words "in
the same manner ••• " in the Transit and Transport Agreements
are intended to exclude the application of Article 66{b)
of the Chicago Convention so that Chapter XVIII applies to
the Transit and Transport Agreements as if the dispute
were one arising out of the Chicago Convention itse1f.
Moreover, Article 66(b) does not app1y to disputes submitted
to it under bilateral agreements, te the extent that the
Council can be induced to overcome its own reluctance te (255 )
accept jurisdiction in respect of these agreements.
It may also be added that the Transit and Trans-
port Agreements confer on the ICAO Council an equitable
jurisdiction in respect of any injustice or hardship
- 107 -
resulting from their operation.
Furthermore, if the ICAO so recommends, the
Assembly may by a two-thirds vote suspend from its rights
and privileges under the agreements any contracting State
which fails to take such corrective action as may have
been recommended to it by the Council. In cases arising
under this heading, it would be difficult to avoid the
conclusion that Article 66Cb) of the Convention has to be
applied.
Chapter Three - The ICAO Rules Relating to the Settlement of "Differences"
Under Chapter XVIII of the Chicago Convention,
the Council of the ICAO is empowered to settle disputes
between contracting States relating to the interpretation (256)
or application of the Convention.
After PICAO came into existence, its Council
began to frame rules for use in cases where it was asked to
adjudicate between two or more contracting States. The (257)
initial rules were adopted by the PICAO Council in 1946. (258)
When the India-Pakistan dispute arose in 1952, a Council
Working Group was appointed to prepare new rules to govern
the settlement of disputes by the Council. The Council (259)
adopted provisional rules on 25 May 1953, after the India-
Pakistan dispute had been settled. These rules, after
reception of comments from the contracting States, were
- 108 -
revised by a Group of Experts in 1955 and finally adopted (260)
by the Council on 9 April 1957. The historical background of these rules will now be given in detail.
1. History of the 'Rules :E-or the Settlement of Disputes in PICAO-ICAO.
Early in 1946 "Rules Governing the Settlement of (261)
Differences between contracting States were drafted in PICAO. After their approval by the Interim Council on 24 April 1946, they were presented for comments to the Interim Assembly which made a number of suggestions. They were finally approved by the Interim Council on 10 September (262) 1946. The initial "Rules" established a procedure for the settlement not only of "differences" under the provisions of the Interim Agreement (Article 111(8), but also of "complaints" or "disagreements" which may arise under the International Air Service Transit Agreement and the Inter-national Air Transport Agreement (Article II, Sections 1
(263 ) and 2, Article IV, Sections 2 and 3 respectively). No occasion arose for applying those Rules.
When the Chicago Convention came into being it was felt necessary to prepare a completely revised set of "Rules" as the disagreements that could be settled under the provisions of the Chicago Convention are more limited than, and to some extent different from, those which might have been settled under the provisions of the Interim
Agreement. On 21 May 1952, .the ICAO Council established a
- 109 -
working group to prepare new rules to govern the settle
ment by Council of disagreements, differences and disputes
between contracting States. On 21 May 1953 the Council (264)
provisionally adopted the Rules for the settlement of
differences drawn up by the group and directed that they
be circulated to the contracting States with a view to
their final adoption at the session of Council to be held
in October 1953. The Rules were circulated and certain
cornrnents on the Rules were received from States. A new
working group of Council examined the matter and on
6 Decernber 1954, the Council decided "to refer the Rules
for finalization to a group of legal experts nominated by
the Chairman of the Legal Committee in consultation with (265)
the President of the Council". The word "finalization"
was intended to mean the drawing up of a final draft of the
Rules by the group with a view to their adoption by the
Council. The Group of Experts was asked to consider the
Rules in the light of principles applicable to procedure
in international adjudications and the comments made by (266)
States with respect to the Rules.
In March 1955, the Chairman of the Legal Committee
nominated the group of experts from among the members of (267)
the Legal Committee. This group, which was not a Sub-
Cornrnittee of the Legal Cornrnittee, met at the Hague from
31 August to 5 September 1955 and produced draft rules for
the settlement of differences which were submitted
- 110 -
directly to the Council in accordance with Council's (268)
decision mentioned earlier.
By formally adopting these rules on 9 April
1957, the Council completed a project which had been going
on intermittently for several years. The 1957 Rules (269)
replaced those provisionally adopted on 25 May 1953.
2. Causes of Disagreements and Complaints.
In addition to the Chicago Convention, there are
today in force more than twelve-hundred aeronautical (270)
conventions and agreements. Many of these contain clauses
under which the parties have agreed to refer disputes to
the ICAO Council and other bodies.
The cause of disagreement most commonly mentioned
in any convention or agreement relates to the interpreta-
tion or application of any provision thereof, although the
Chicago Convention (Article 84) refers also to Annexes
adopted by the Council. By way of further examples
reference could also be made to the North Atlantic Ocean
Stations Agreement of 1954, Article XV; the Agreement on
Joint Financing of Certain Air Navigation Services in
Denmark and Iceland (1956) Article XVIII; and lastly the
Paris Multilateral Agreement on Commercial Rights of Non-
Scheduled Air Services in Europe of 30 April 1956,
Article 4, aIl of which provide for the settlement of
disputes concerning the interpretation or application of
these instruments.
•
, III -
The Council may also be called upon to consider
"complaints" which may arise under the Transit Agreement
(Article II, Section 1), or the Transport Agreement
(Article IV, Section 2). A complaint could originate in
an "action'" taken under the Agreement by a State party to
that Agreement, and which another State party to the same
Agreement deems to cause injustice or hardship to it.
The Chicago Convention (Article 15), the Transit
Agreement (Article l, Section 4) and the Transport Agree
ment (Article l, Section 5(2), also mention possible
"representations" made by a contracting State for the
purpose of a review by Council of charges imposed by
another State for the use of airports and other facilities.
In addition to classifying the causes of dis
agreements and complaints according to such provisions as
those mentioned above, the disagreements and complaints
could also be classified as political, technical, economic
or legal or a combination thereof.
3. Organs entrusted with Settlement.
The consideration and settlement of any disagree
ment or complaint arising out of the provisions of the
Convention and the Transit and Transport Agreements, as
the case may be, are always entrusted to the Council, with
the possibility of appeal in certain cases to an arbitral
tribunal or the ICJ.
- 112 -
Bilateral air transport agreements provide for (271)
the competence of various organs •. Thus , certain agreements
recognize the exclusive competence of the Council~ others
leave the parties a choice between the Council and an
arbitral tribunal, another body or person~ still others
recognize the competence of the Council only after failure
of the parties to agree on the choice of an arbitral
tribunal, body or person.
Certain bilateral agreements refer to a "special
tribunal established or to be established in ICAO" for
the purpose of settling disputes arising thereunder.
States which have agreed on such a provision would seem to
have considered the possibility of the establishment in
ICAO of a special tribunal along the lines discussed at the
Commission on a Multilateral Convention in 1947 and
defined in Article 22 of draft attached to the final Report (272)
of the Commission.
When the competence of an arbitral tribunal is
recognized without any reference to the Council or ICAO,
the President of the Council is, however, empowered by
certain agreements to appoint arbitrators or umpires.
Finally, sorne agreements concluded at the time of PICAO
mentioned only the Interim Council as a competent organ,
generally with a possible alternative choice of an arbitral (273)
tribunal, another body or person.
- 113 -
When ICAO was preparing rules governing the
settlement of differences by the Council, it was held that
the rules have no application to disputes arising under
bilateral air transport agreements, because the Chicago
Convention does not oblige ICAO to perform arbitral (274)
functions stated in bilateral aviation agreements. One
may question the propriety of this exclusion in view of
the many hundreds of such agreements which provide for some
participation by the ICAO in the arbitration.
ICAO should prescribe rules governing arbitration
of bilateral agreements at the eailiest possible date, if
it wants to play any role at aIl in the settlement of
disputes arising thereunder. One commentator has correctly
observed that the negative attitude of ICAO is particularly
damaging because it encourages the existing trend away from (275)
arbitration of international conflicts.
The Council's failure to perform satisfactorily
its role in the settlement of disputes arising under the
bilateral air transport agreements has caused many States
to omit in their agreements any reference to ICAO. Instead,
such agreements, as may be recalled, provide for a private
tripartite tribunal in which the President of the ICJ is
the appointing authority in case a party fails to name his
appointee to the tribunal, or if the two members fail to
agree on the third within the time limit specified in the
agreements.
- 114 -
4. Nature and Binding Force of Decisions and Action of the Parties in Relation to the Decision.
Civil aviation agreements generally mention the
nature of the decision.sought by the organ whose competence
is recognized. The decisions may be: a final and binding
decision, a decision subject to appeal or an advisory (276)
~pinion. With respect to a final and binding decision,
such agreements often declare that the parties undertake to
abide or comply with the decision. They also sometimes
indicate that the parties undertake to comply not only with
the final decision, but also with any provisional measures.
The fact that certain agreements specify that the
settlement will be reached in accordance with Article 84 or
with Chapter XVIII of the Convention implies a possibility
of appeal from a decision of the Council. An agreement may
also specify that disputes thereunder governed by Chapter
XVIII of the Convention should follow the procedure of that
Chapter and that the other matters of the same agreement (277)
should be treated pursuant to another procedure. As
regards advisory opinions or reports, parties on occasion
undertake to make their best efforts to comply with such
opinions or reports or with recommendations. In the case
of complaints under the Transit Agreement (Article II,
Section 1) and the Transport Agreement (Article IV,
Section 2 and Article II, Section 5(2» as weIl as in the
case of a request for review under Article 15 of the
Convention, the Council is to make recommendations.
- 115 -
5. General Comments on the 1953 Rules.
Since the Rules on the Settlement of Differences
adopted by the Council in 1957 were to a great extent
based on Rules adopted by it in 1953, it is necessary to
comment on certain aspects of the 1953 Rules.
The Council and a Council Working Group found
that the PICAO Rules Governing the Settlement of Differences
between Contracting States, approved in September 1946,
could not serve as a basis for the preparation of new Rules,
since the terms of reference established by the Interim
Agreement on International Civil Aviation for the settlement
of differences by the PICAO Council were quite different
from the terms of reference established by the Chicago
Convention for the ICAO Council in the settlement of dis-
agreements. Thus, the scope of the 1953 Rules is somewhat (278)
restricted as compared to that of the 1946 Rules.
In preparing the 1953 Rules the Working Group
considered the pertinent provisions of the Convention, the
Transit Agreement and the Transport Agreement and agreed
that "there were marked differences in character between
"disagreements" arising under Article 84 of the Convention,
Article II, Section 2 of the Air Transit Agreement and
Article IV, Section 3 of the Air Transport Agreement, on
the one hand, and "complaints" under Article II, Section 1
of the Transit Agreement and Article IV, Section 2 of the
Transport Agreement on the other hand; and that "disagree-
- 116 -
ments" and "complaints" should therefore be given separate (279)
recognition and treatment in the Rules. Consequently,
Part l of the Rules deals with "disagreements" while
Part II deals with "complaints". These two parts prescribe
the successive steps of the proceedings from the filing of
the application (in the case of "disagreement") or the
request (in the case of a "complaint"), as the case may be,
up to and including the last Council decision. Part III
includes general provisions applicable to both "disagree(280)
ments" and "complaints".
As regards the steps which may lead to a final
settlement of a disagreement, Chapter XVIII of the Convention
and the Transit and Transport Agreements which incorporate
Chapter XVIII by reference, provide not only for an initial
decision of the Council, but also for a possible appeal
from the decision under certain conditions. With respect
to complaints under the Transit and Transport Agreements,
certafn measures may be taken after a recommendation has
been made by the Council. However, it was agreed that the
Rules should be concerned only with the disagreements or
complaints without containing a reference to any action
subsequent to a decision or recommendation of the Council.
Therefore, the Rules do not prescribe any procedure
governing appeals, although mention has been made of the
possibility of appeal in Article 16.
- 117 -
The overall aim in the drafting of the 1953
Rules was to establish procedures as simple and flexible
as possible, in order to provide workable machinery for
the Council, taking into account the many ways in which
this body differs from the conventional type of court or
arbitral tribunal. Particular emphasis was put on the
achievement of the following objectives:
(a) to encourage negotiations between the parties involved in disputes (Articles 6(2) and l4)~
(b) to have the case handled by smaller groups of the Council whenever possible (Article 6(2), 13 and 23);
(c) to avoid oral proceedings as far as possible (Articles 9(1) and 11(2) ~ and
(d) to make the application of the Rules flexible in order to meet different circumstances (Article 33).
In addition, a study Ly the Working Group of the
ICJ Rules and of the 1952 report of the International Law
Commission indicated that provision should be made in the
Rules for:
(a) intervention on the part of aIl States parties
to the particular Act, the interpretation or
application of which is in question, subject to
any such intervening state undertaking to be
equally bound by the resulting decision of the
Council (Article 17);
(b) a possibility for revision or interpretation of
a decision of the Council which is final, the
- 118 -
right to request a revis ion to be available
only under very special circumstances (ALticles (281)
19, 20 and 27).
The text of the 1953 Rules, unlike Article l of
1946 Rules, makes a sharp distinction bei.:ween disagreements
and complaints. Moreover, the text of the 1953 Rules makes
it clear that they are not intended to govern the settle-
ment of differences referred to Council under provisions of
agreements other than those appended to the Final Act of
the Chicago Conference. The 1957 Rules will now be
discussed in the light of the foregoing comments.
6. The 1957 Rules.
After ICAO received comments from contracting (282)
States on the 1953 Rules they were revised by a Group of
Experts in 1955 and finally adopted by the Council on 9 April (283)
1957. The 1957 Rules are divided into three parts. Part l
deals with disagreements relating to the interpretation or
application of the Chicago Convention or the Transit and
Transport Agreements. Part II relates to complaints causing
injustice or hardships to the complaining States under the
Transit and Transport Agreements, and Part III contains
general provisions. Thus, the 1957 Rules follow the sarne
pattern as the 1953 Rules.
The 1957 Rules likewise differentiate between
"disagreernents" and "cornplaints". This distinction does
- 119 -
not exist in the Convention, which refers merely to
"disagreements". The distinction was adopted on the
recommendation of the Working Group of Experts to
differentiate between disagreements which the Council
must decide (Le., "disagreements" under the Convention
and the Transit and Transport Agreements) and those where
its sole obligation is to calI the parties involved into
consultation (i.e., "complaints" under the Transit and
Transport Agreements). The Council is under no obligation
to make a dêcision in the case of complaints. Furthermore,
the recommendations made in the case of complaints are not
binding on the parties, nor, unlike the case of disagree-
ment, are the Council's findings in relation to complaints
appealable. Above aIl, a disagreement presupposes a
violation of sorne provision of the Convention, or a dispute
as to the interpretation or application of the Convention
or its Annexes. A complaint does not arise out of a
violation of the Agreements. It only alleges injustice or
hardship inflicted upon the complaining State in regard (284 )
to the Transit and Transport Agreements.
In this connection, the question may arise as to
whether the Rules should include provisions to govern the
proceedings before the Council in respect of disputes
arising from bilateral air transport agreements and certain
other agreements besides those appended to the Final Act of
the Chicago Convention. The answer to this question is in
- 120 -
(285) the negative, as already mentioned. The Rules have no
application to disputes arising under those agreements,
because the Chicago Convention makes no specifie provision
for ICAO to act as arbiter in relation to bilateral agree
ments, although the Convention would not seem to preclude
the Council from doing so if asked.
Negotiations. The Rules for Settlement of
Differences recognize the above-mentioned distinction
between disagreements and complaints, and provide sorne
common procedures for both. Thus, before any request is
filed with the ICAO Council for its decision, it is
necessary for the aggrieved contracting State to try to (286)
settle the matter by negotiation. The Council, therefore
must first determine whether there have been negotiation (287)
between the parties.
Filing of Application and Reply. In ease of
failure of negotiations, the Rules provide for filing of an
application stating the relevant facts and supporting data
along with a statement of law and relief sought from the (288)
Council. This is followed by notification of the filing of
the application to member States in case of disagreement
and to the respondent alone in the case of a complaint.
The respondent will then file a counter-memorial in reply
to the allegations in the application along with supplemen-
tary factual and legal data, if any. The applieant may
file a reply to the counter-memorial and this may be
- 121 -
followed by a rejoinder by the respondent. The respondent
may also file a preliminary objection as to the Council's
jurisdiction over the dispute and this may be decided by (289)
Council without going into the merits of the case.
Action by the Council in Case of Disagreement.
After the receipt of the application and the counter-
memorial, the Rules authorize the Council to invite the
parties to continue their negotiations. Indeed, according
to Article 14(1) of the Rules, the Council "may, at any
time during the proceedings and prior to the meeting
at which the decision is rendered as provided in Article
15(4), invite the parties to the dispute to engage in
direct negotiations, if the Council deems that the possi-
bilities of settling the dispute or narrowing the issues
through negotiations have not been exhausted". The Council
may either ask for renewed negotiations between the parties
or undertake an examination of the matter by itself or (290 )
through a 'Cornmittee of five members of the Council. The
Council may also, after hearing the parties, entrust any
individual or body to conduct an inquiry or give an expert
opinion on the technical points in the dispute. This
expert opinion will be communicated to the Council and the (291)
parties will be duly notified. The Council may also ~dmit
any evidence in addition to that given in the pleadings.
AlI these functions may be exercised by the Committee (292 )
appointed for that purpose by the Council. The Committee
- 122 -
will of course submit its report to the Council as weIl
as to the parties involved.
According to Article 2(g) of the Rules, after
the disagreement has been brought to the Council, the
memorial attached to the application must conta in "[al
statement that negotiations to settle the disagreement had
taken place between the parties but were not suëcessful".
It seems, therefore, somewhat curious that the Rules give
the Council the role of promoting negotiations, as the
usual role of a tribunal is not to promote negotiations
between the parties and it may even be improper to do so.
Competence of the Council to delegate its
function to a committee: There has been some controversy
as to the legal status of the report prepared for the
Council by the Committee. The ICAO Secretariat was dubious
of the Council's competence to delegate its judicial (293)
functions to such a Committee. The Secretariat could
visualize a situation where a small committee might be
asked to report on a particular matter, but it did not
consider the delegation of judicial functions to such a
committee to be desirable. This stand was supported by the (294)
United Kingdom ar.d New Zealand. Nevertheless, Article 15
of the Rules does not question the validity of a report of
the Council Committee and it provides that nafter considera-
tion of the report of the Committee . . . . , the Council shall
render its decision".
- 123 -
Admitted1y, the Counci1 may rnake further inquiries after the receipt of the Committee's report, but it should be remernbered that the Committee wou1d
comp~isefive members of the Counci1 and it rnay be very difficu1t for the other members of the Counci1to disregard the opinion of their co11eagues who happen to be more informed of the matter than the Counci1 as a who1e. The Committee's report, therefore, would 1ike1y affect the u1timate decision of the Council. On the positive side, it may be useful to have such a report prepared by a smal1 group of Council mernbers, since a srna11 group wou1d be better able to study and investigate the matter in an efficient manner. The joint effect of the report and the observations thereon shou1d enable the Counci1 to give an opinion which would constitute a judicia1 decision.
However, the lega1ity of such a Cornmittee is open to question. Thus, while Article 52 of the Convention provides that the Council "may delegate authority with respect to any particu1ar matter to a committee of its members" , there is no provision in the Convention under which Council can delegate its judicia1 functions under Article 84 to a Committee.
On the question whether Council's functions under Article 84 can be delegated to a "Cornmittee of its mernbers",
(295) the fo1lowing observations may be made:
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(a) The power of delegation under Article 52 is "with
respect to any particular matter". This expression would
no doubt include the delegation to such a Committee of the
investigation of a specifie question of the fa ct or the
taking of evidence of a particular witness. It is, however,
open to doubt whether the whole case pending before the
Council under Article 84 can be handed over by Council to a
Committee of its members. Such action would be contrary to
the general legal principle that the court of first instance
should give its decision after hearing the parties itself.
Having regard to this expression "with respect to any
particular matter" found in Article 52 and to the general
principle referred to above, it is to be doubted whether
delegation of Council's functions under Article 84 would be
in accordance with the intentions of the States which
signed and ratified the Chicago Convention.
(b) A precedent exists in Article 26 of the ICJ
Statute for the constitution of a Chamber of the Court for
dealing with particular categories of cases, but the power
of such a Chamber to hear and determine a case is subject
to the condition that "the parties so request".
(c) Twenty-seven Council Member States would no doubt
constitute a large judicial tribunal. But the fact that,
at the time of its drafting it was intended that the Council
Members would have as many as twenty-one members did not
- 125 -
preclude the framing of Article 84 of the Convention.
(d) If, pursuant to ArtiQle 52, Council delegates
authority to a committee of its members, the decisions of
such a committee "may be appealed to the Council by any
interested contracting State". There would thus be the
inter-position of a first appeal prior to the application
of the latter part of Article 84.
(e) If such a committee of Council were empowered
only to make recommendations upon a case after hearing it,
there would, legally, be no appeal to Council and the
parties would be free to challenge or de fend the recommen
dations and canvass their merits before the Counci1. The
proceedings wou1d in such a case be undu1y prolonged. The
objectives of speedy justice and simp1ified procedure would
thus not be attained.
Intervention. Article 17(1) of the 1953 Ru1es and
Article 19(1) of 1957 Ru1es permit any member State to
intervene in the proceedings if nit is a party to the
particu1ar instrument, the interpretation or application of
which has been made the subject of a dispute under these
Rules, and which is direct1y affected" by the controversy.
During the preparation of the Rules by the Working
Group thèfo1lowing viewswere expressed on the question of
who may intervene: (1) In case of a dispute re1ating to the
application or the interpretation of an instrument, any
party to the instrument may intervene; (2) there cou1d be
- 126 -
intervention by a disputant only; and (3) there could be
intervention by affected parties only.
Judging by the experience of the India-Pakistan
dispute, any member State which considers itself directly (296)
affected, as Afghanistan was in the India-Pakistan dispute,
can request the Council's permission to join the proceed-
ings. The Council may, however, refuse such a permission
if it is satisfied that the petitioner is not affected by
the dispute.
There is also the problem of the time limit for
such an intervention. Article 19 of the 1957 Rules is
silent on the matter. In the India-Pakistan dispute,
however, Afghanistan joined the proceedings after Pakistan
had submitted the counter-memorial and the Working Group
had been appointed. Under the circumstances, it is
desirable that intervention be made at anearly opportunity.
This can be achieved if the Council notifies aIl the
potential intervenors and fixes a time within which the
State concerned may file a declaration of intervention.
This period could begin from the date on which the
memorials filed and end at a date not later than two to
three months after the submission of the counter-memorial
by the respondent.
Whether or not the intervention as envisaged in
the Rules is desirable is difficult to say. On the
positive side, intervention simplifies the proceedings by
- 127 -
bringing about the consolidation of what might otherwise
be a series of disagreements on the same or related issues.
It also reduces the risk of there being contradictory
decisions in cases related to the same controversy. In
this connection it should be noted that Article 63 of the
ICJ Statute and Article 66 of the ICJ Rules provide for
the intervention of States parties to a convention under
discussion. No such provision, however, is to be found in
Chapter XVIII of the Chicago Convention.
On the negative side, to afford any State party
to the Convention or the Transit and Transport Agreements
the right to intervene, whenever the construction of these
instruments is in question, would seem to give aIl members
of Council a right to intervene in dispute that they are
collectively bound to settle as members of Council. The
practical result of this could be that each Council Member
State would have to deprive itself of the right to vote in
the Council as a penalty for intervention in proceeding
under Article 84. The total votes in the Council could,
after a certain number of interventions, conceivably be
reduced below the majority of its members required for
taking decision (Article 52) with the result that it would
be impossible for the Council to take a decision in a case
under Article 84, thus frustrating the entire scheme of
settlement of disputes under Chapter XVIII.
- 128 -
Time-limit. While the 1953 Rules were in the
process of preparation, it was suggested, that while there
must be considerable flexibility in the matter of time-
limits in a procedure involving sovereign States as parties,
the best method of achieving such flexibility would be to
establish set limits in the Rules, allowing the Council to
vary such limits at its discretion. This suggestion was
not accepted. It was felt that, as the time-limits required
in cases of disputes which would arise in any part of the
i world might vary widely, it would not be exped1ent to
indicate such limits in the Rules save in those instances (297)
where a minimum time-limit can be safely predicted. Thus,
the Rules for 1953 contain only three fixed time-limits
and the 1957 Rules conta in only two. For example, a time(298)
limit of sixt Y days for appeals is provided in both Rules;
and there is a limit of one month for an objection to a
declaration of the intervention. But whereas Article 19(3)
of the 1953 Rules provided a limit of six months for the
filing of an application for revision, the 1957 Rules
contain no such limit because they have no revision clause.
The last sentence of Article 84 of the Convention
states that any appeal from the decision of the Council
shall be notified to the Council within 60 days of receipt
of notification of the decision by the Council. The Group
of Experts considered this provision as implying that an
appeal to the ICJ has to be filed within the same period
- 129 -
of 60 days. This interpretation, however, is far from
being self-evident.
The next question is whether the Court itself may
permit the appeal to be filed after the 60 day limite It
is very probable that the Court would feel itself bound by
the mandatory limit in Article 84. Of course, distinction
could be drawn between the pro forma filing of the appeal
and the filing of detailed pleadings.
Decision. The Council may settle the dispute
~ parte or after hearing the parties. The decision of the
Council shall be by a vote and must include, inter alia,
"the conclusions of the Council together with its reasons
for reaching them" as weIl as "a statement of the voting
in Council showing whether the conclusions were unanimous
or by a majority vote". Furthermore, the Rules allow those
members of the Council who have voted against the majority
to file a dissenting opinion.
There is a problem as to the size of the majority
required for a valid decision. Article 52 of the Chicago
Convention provides that Council decision "shall require
approval by a majority of its members". This provision
requires that out of twenty-seven members there must be
fourteen votes in favour of a decision. However, since,
according to Articles .:53 and 84 of the Convention and
Article 15(5) of the 1957 Rules for Settlement of Differences,
no member of the Council may vote in the consideration by
- 130 -
the Council of a dispute to which it is a party, it may
weIl happen that the Council will find itself unable to
give a decision. The possibility of a tie vote must also
be taken into account.
A solution to the former problem may lie in the
suggestion by Dr. E.M. Loaeza of Mexico. He proposed that
Council Members who are parties to a dispute should not be
considered members of the Council for the purposes of a
particular dispute and the decision by the Council should
be by a majority of the remaining members. Another possible
solution could be to require a majority of the Council
members present at the time of a decision, or a simple
majority. From among the three solutions the first seems
more compatible with Article 52 of the Convention, because
under the Convention as weIl as under the Rules, an
interested member of the Council is prevented from partici(299)
pating in voting in the decision. Because the Council
membership may vary in each case, the decision should be by
majority of those who are competent to vote.
The anomaly may occur that a Council member
directly affected by a given dispute or interested therein
may not choose to intervene. Such an instance could have
occurred in the India-Pakistan dispute. Conceivably, that
dispute could have been brought by Afghanistan against
Pakistan. India, then a member of the Council and directly
affected by, and interested in, the dispute, could have
- 131 -
chosen not to intervene. Under these circumstances, India
would not have been entitled to vote. This is because
Article 84 of the Chicago Convention and Article 15(5) of
the present Rules prevent only that Council member from
voting who is a "party" to the dispute.
Appeals. As already stated, there can be an appeal (300 )
against a decision of the Council. Not only should it
be filed within 60 days from the date of communication of
the Council decision to the appellant, but the filing of
the appeal shall be reported within 60 days to the Secretary (301) .
General. The question arises whether the Council may permit
the appeal to be filed after the 60 day period specified in
Article 84'. It is doubtful whether such an extension
would be compatible with the mandatory period specified in
Article 84; the Rules adopted by the Council cannot over-
ride the Convention.
The appeal~ however, can be filed either before
the ICJ or before an ad hoc arbitral tribunal. This can be
done conveniently before the ICJ within the limited period
of 60 days. Filing of an appeal before the ad hoc arbitral
may, however, raise sorne problems as to the time-limit.
Thus the choice of a~bitrato~s may take sorne time and
Article 85 of the Convention itself contempla tes three
months for the purpose. If this is SOr with which organ
could the appeal be filed within 60 days? Presumably, the
appeal could be filed with the ICAO Secretary General for
- 132 -
the purpose of transmission to the ad hoc tribunal when
established. But this is neither implied from Article 85
of the Convention, nor provided for in the Rules.
Default of Appearance. Article 16 of the Rules
confers upon the Council the authority to decide the case
in the event that one of the parties to a dispute fails to
appear before the Council or fails to defend its case.
The Council will exercise this prerogative only when so
requested by the other party and after having satisfied
itself that it has "jurisdiction in the matter" and that
"the claim is weIl founded in fact· and law".
Implementation of the Council's Decision - Entirely
unique provisions are contained in the Chicago Convention
for obtaining compliance with a judicial decision. 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 of (302)
the Council. This provision puts the responsibility for
enforcement of the penalty upon other contracting States
following notification by the Council. It is a severe
penalty and should not be imposed unless the decision is
concerned with a very serious matter. Airline services
should not be suspended except for overriding reasons,
since public convenience and necessity must be respected.
- 133 -
In this connection, a penalty provided for by
Article 88 of the Convention must also be taken into
account. According to that Article, "The Assembly shall
suspend the voting power in the Assembly and in the Council
of any contracting State that is found in default under
the provisions of this Chapter". Thus there may be a
penalty for two types of offences, namely, for the defaulting
contracting State party to the disagreement and for a
contracting State which permits the operation of the
defaulting airline through its airspace. As the wording
of Article 84 is of a mandatory nature, it could be implied
that there would be an automatic suspension of the voting
rights of the defaulting contracting state. By this
interpretation the Assembly will have no other choice than
to apply the sanction under Chapter XVIII of the Convention.
But what happens if the Assembly, which is a political
organization, does not approve sanctions against the
defaulting State? Such a situation could weIl be imagined
in a political organi~ation such as ICAO where the gentle
methods of diplomacy rather than sanctions prevail. The
Assembly should be given more freedom in regard to the
sanction described in Article 88 of the Convention.
- 134 -
Chapter Four -"Resort to the ICAO Machinery
The Chicago Convention was the first post-war
legal text which established a machinery for the pacifie
settlement of aviation disputes. It thus provided the
participants in international air navigation with the
opportunity to resolvetheir differences in a manner
least disruptive of international public order. Under
Chapter XVIII of the Convention the ICAO Council is
empowered to act as a tribunal for contracting States in
any dispute concerning the interpretation or application
of the Convention and its Annexes. Similar questions may
be brought before the Council under Articles 54(j) and (n), (303)
55(e} and 15.
Sorne of the conflicts that have been brought
before the Council are now examined.
1. India-Pakistan Dispute: The First Application of Chapter XVIII of the Convention.
In 1952, the ICAO Council faced for the first
time a disagreement between two contracting States relating
to the interpretation or application of the Convention and
the Transit Agreement. On 21 April 1952, India brought
its dispute with Pakistan before the ICAO Council, under (304)
Chapter XVIII of the Convention, a11eging that there was a
disagreement between the two States "re1ating to the
interpretation and application of the provisions of the
- 135 -
Convention on International Civil Aviation signed at
Chicago on 7 December 1944, particularly Articles 5, 6 and
9 thereof and as to the interpretation and application of
International Air Services Transit Agreement". India
maintained that Pakistan, in establishing prohibited areas
along the border of Afghanistan and refusing to allow
Indian aircraft to overfly it, transit without landing and
land for non-traffic purpose, was preventing direct Indian
services between Delhi (India) and Kabul (Afghanistan)
because any pràcticable route for these services involved
overflight across West-Pakistan.
India complained that Pakistan had denied her
the following routes:
(i) De1hi-Kabul via peshawar: Length 642 miles on
the direct and natural route; (ii) Delhi-Karachi
Quetta-Kandahar-Kabul: Lengtn about 1450 miles. In
March 1950 Pakistan prescribed the latter as the
only route between India and Afghanistan. But in
September 1951, the privilege of transit was denied
even on this route; and (iii) India-Karachi-Jiwani
Zahidan-Kabul: even longer than route (ii). In
March 1951 even this route was denied.
India al1eged that the action by Pakistan was in
violation of the latter.'s obligations under the Convention
and the Transit Agreement. It further asserted that
Pakistan held the view that Section 1 of Article 1 of the
- 136 -
Agreement was superseded by Article 6 of the Convention,
this view being in contradiction to the advisory opinion (305 )
of the ICAO Council expressed on 22 March 1951 given on a
reference made by Pakistan.
The prohibited area extended the entire length
(approximately 1900 miles) of West Pakistan's West Frontier
"from the Himalayas almost down to the Arabian Sea". The
Indian Government submitted that this area was not reason-
able in extent and location and unnecessarily interfered
with air navigation and, moreover, that the prohibition
was discrimina tory since an Iranian airline was permitted
to operate a scheduled air service over the prohibited
area. A flight avoiding the prohibited area involved a
distance of 2080 miles, this being substantially longer
than the routes described above.
In reply to a communication of the Secretary (306) (307)
General of ICAO, Pakistan stated, on 30 May 1952, that the
prohibited area had been created in 1935, before the
partition of India, primarily for security reasons, and
these reasons had become even more compelling after the -
partition. (308)
Furthermore, while establishing this prohibited
area Pakistan had not increased it in the slightest, and
the said area was imposed in the interest of Indian aircraft
to protect them against the hostility of Muslim tribes in (309)
this area. For aIl these reasons the Government of
Pakistan requested the rejection of the Indian application
- 137 -
"in the interest of safety of air passengers and crew"
while admitting discrimination in favour of Iran.
We may now examine the effect of this prohibited
area upon a third party, because the Indian complaint was
subsequently supported by Afghanistan.
It would be difficult to find another country
which depends more completely for its export and import,
on the good-will and facilities of neighbouring countries
than Afghanistan. It is a landlocked country. The nearest
seaport is more th an 1000 miles from its frontier.
Furthermore, because of its configuration there are no
railways and no navigable waterways. Therefore, air
services (domestic and international) play a vital role in
the life of the country.
On 18 June 1952, the Government of Afghanistan (310)
cabled the Council stating that the operation of a scheduled
air service on the direct Oelhi-Kabul route, on the
establishment of which Afghanistan and India were agreed,
was being impeded by the action of Pakistan, so that the
operating airline was obliged to use the much longer route
for which permission had been granted. Afghanistan affirmed
that the direct Kabul-Peshawar-Oelhi route had, at its
representation, been recognized as an international air
route at the regional (air navigation) conference held in
Cairo in 1946 and requested the Council to take irnrnediate
- 138 -
and effective steps to eliminate the difficulties which
prevented its use.
The Council constituted a Working Group of
Council representatives to consult with the High
Commissioners of India and Pakistan to Canada in order to (311)
solve the dispute. After consultation, the Group
recommended to the Council, inter alia, (i) that Pakistan
be asked to expand her reply~ (ii) that India be asked to
comment on the expanded Pakistani reply~ (iii) that both
States be requested to limit as far as possible their
comments and arguments to points directly involved under
the Convention and the Transit Agreement~ and (iv) that
both States be urged to resume direct negotiations for a
possible solution. In her expanded reply to ICAO in (312)
September 1952, Pakistan claimed that each member of ICAO
could express its opinion on the interpretation and
application of the Convention and the Agreement, and that
the prohibited area was reasonable due to the conditions
existing in the region. It was further stated that, in
case the political situation deteriorated, other areas
might be declared prohibited under Article 9(b). India
was, however, assured of aIl privileges subject to the
observance of prohibited areas. The Indian Government, (313)
in comments dated 15 October 1952, maintained that
clause (b) of Article 9 had no relevance to the case, and (314)
the conditions since 1935 had so changed that the restric-
tions were no longer valide
- 139 -
,e-i r.===~~~----------.--------~~.~----------1 .
'ROIIIBITED AREA IN PAKISrAS
"EW ROUTE
FOR~ER ROUTE
1 l
1 l
1 ; .
i
1
~
The .above map shows the new routes (broken 1ines)
ope~ to Indian aireraft f1ying to Kabu1, Afghani.stan, via
Pakistan.
- l~O -
Possibly, as a result of the Council's urging
that the parties continue direct negotiations, the High
Commissioners of India and Pakistan to Canada, announced
at a special meeting of the Council on 19 January 1953,
that their respec'cive governments had solved the problem
amicably. Pakistan agreed to allow Indian civil aircraft
to fly over Pakistan territory to Kabul vial two 20-mile
wide corridors.
In this instance, as can be seen, the proceedings
of Council were interrupted, before a decision could be
reached, by the parties themselves. While from the point
of view of the parties directly involved such an outcome is
preferable to a formaI adjudication, it is perhaps to be
regretted that the Council missed this early opportunity to
pass upon an important question arising out of Article 9 of
the Chicago Convention. The point clearly in need of
authoritative·-interpretation in regard to prohibited areas
is the requirement of Article 9 that such areas be "of
reasonable extent and location so as not to interfere
unnecessarily with air navigation". It is of course,
conceivable that the Council could have solved this dispute
without clarifying this issue.
2. Other Disputes Referred to ICAO.
a. The Balloon Incident: Protest by Czechoslovakia
On 21 January 1956, the Government of Czechoslovakia
protested to ICAO against violations of its airspace by
- 141 -
free unmanned balloons, which coming from the west, drifted (315)
over its territory. The prote st asserted that domestic
and international air traffic over Czechoslovakia was
endangered by the presence of those balloons, believed to
have been launched from the territory of West Germany, and
requested that steps be taken to remove the hazard. Again,
in a letter dated 22 February 1956, the Czech Government
informed ICAO that various types of balloons had been
observed over Czech territory and that air traffic had been
interfered with. The Czech note stated that one of the
balloons carried four cases containing cameras, radio and
other equipment, with a total weight of 160 Kilograms.
Moreover, according to the complaint, the investigation into
the cause of the crash of a Czech air liner which had
occurred on 18 January 1956, revealed that the aircraft had
collided with the cargo released by a leaflet balloon.
The complaint of Czechoslovakia received important support
from a neutral source when on 13 April 1956, the Director
General of IATA informed ICAO that free balloons had been
encountered on air routes in Europe.
In a letter dated 23 April, the U.S. Represen-
tative on the ICAO Council advised the President of the
Council that the launching of large weather balloons from
the Federal Republic of Germany by,the U.S. Air Force had
been discontinued and that it was understood that the Free
Europe Committee, a privately sponsoredenterprise, was
- 142 -
limiting itself to the use of balloons of characteristics
approximating those of the standard rad~osonde balloons,
which had never been considered to constitute a hazard
to aircraft, even in dense traffic areas. The Czech
Delegation to the Tenth Session of the Assembly presented (316)
a paper in which the background of Czech complaint was
summarized and sorne factual data taken from the survey
conducted by IATA were added. The paper contained a draft
resolution inviting all contracting States to refrain from
sending uncontrolled balloons over the territory of
countries which gave no authorization for such flights.
The subject was discussed at the l6th meeting of Executive (317)
Committee of the Tenth Session of the Assembly, held on
11 July 1956. But the Executive Committee adopted a motion
of the Delegate of the Philippines, presented under the
Rule 42(c) of the Standing Rules of Procedure, to adjourn
debate on the grounds that the Assembly was not the proper
forum for the discussion of the political aspects of the
situation and the safety aspect could be brought to the (318)
attention of the Council by the Czech Government. As a
result, no decision was taken on the matter.
Subsequently, at the request of Czechoslovakia
the Council considered the subject at the third meeting (319)
of its twenty-ninth Session, held on 19 July 1956, and
instructed the Secretary General to carry out a study to
establish the facts and to present the results of this study
- 143 -
to the Air Navigation Commission, which in turn would
submit its conclusions and recommendations thereon to the
Council. In order to obtain as much information as
possible, a "State letter" seeking relevant data was sent
to aIl contracting States on September 21, 1956.
According to the U.S.paper presented to the
Council, the point which the Czech Government had made in
its complaint to the ICAO had aIl been made in the
diplomatie notes delivered to the u.s. Government in this
matter and disputes about lawand facts which were raised
before the Council were the same as those raised in the
exchange of the diplomatie notes. Therefore, the u.s.
Government refrained from pursuing this matter further
since the diplomatie channels had not yet been exhausted.
The u.s. Government expressed the belief that
the Council should refer the legal aspects of the question
to the Legal Committee and the technical aspects to the
Air Navigation Commission for appropriate study and reports (320)
to the Council. The U.S., nevertheless, replied to a
questionnaire of the ICAO Secretary General and submitted (321)
a document prepared by the Free Europe Committee. The
relevant comments of the Free Europe Committee can be
summarized as follows: The Committee asserted that its
leaflet program had not constituted a violation of any
international obligation, and that neither Article 1 nor
- 144 -
Article 8 of the Chicago Convention had been violated.
The Committee emphasized that although Article 8 provides
that "No aircraft capable of being flown without a pilot
shall be flown without a pilot over the territory of a
contracting State without special authorization by that
State" , that Article had no applicability whatever to its
leaflet operation. The Free Europe balloon operations were
not a civil aviation operation for remuneration. The
balloons were comparatively small and they were not equipped
to function, nor were they capable of functioning, as
carriers of persons or cargo, but were just for the purpose
of the direct dissemination of information. In addition,
the balloons were outside the scope of the Convention,
because the latter was applicable only to such instrumen
talities using airspace as are customarily registered and
are a part of civil aviation.
The position of U.S. with respect to this dispute
and its apparent support for the arguments submitted by
the Free Europe Committee merit closer scrutiny. For
example, the U.S. felt that the case required careful
fact-finding by a competent authority but did not suggest
ICAO as such authority. It is difficult to see, as far as
the aims, objectives and legal capacity of international
civil aviation are concerned, a better qualified and more
competent authority to investigate this matter than ICAO.
- 145 -
At that time, ICAO was the only organization responsible
for the safety of international civil aviation and therefore
clearly competent to take action in such matter.
Even if the Free Europe Committee in its state-
ments completely denied the application of the provisions
of the Chicago Convention in the question that was before
the Council, that could not give the Committee the right
to send balloons over the territories outside the State in
which they were launched. An analysis of the Convention
and Annexes, to which we now turn, will readily demonstrate
the illegality of these flights.
First of aIl, it is abundantly clear that the
penetration of any vehicle, including balloons, into the
airspace of aState without that State's express permission
is contrary to Article 1 of the Chicago Convention, which
recognizes that every State has complete and exclusive
sovereignty over the air~pace above its territory. Secondly, (322)
as Annex 7 specifies that a balloon is to be considered as
an aircraft, such flights are contrary to Article 8, which
forbids the launching of pilotless aircraft including
balloons over the territory of a contracting State without
special authorization from that State. Therefore, one
cannot see any reason why Articles 1 and 8 are not applicable
in the case of the launching of balloons by the Free
Europe Committee.
- 146 -
Thirdly, in so far as concerns the Czech
complaint, the release of these balloons seriously
endangered the safety of civil air transportation over a
part of its territory and no attempt to place them in the
same class as meteorological balloons could change this
fact. Furthermore, one must not overlook the fact that
modern technology makes it feasible to build a balloon of
small size and weight which, equipped with many transitor
type devices for reconnaisance purposes, could seriously
endanger the security of a nation. It is therefore,
submitted that in so far as concerns the Chicago Convention,
the unauthorized flight of any kind of balloons or other
instrumentalities (large or small) over the territory of
any other country is unlawful.
When the result of the Secretary General's fact
finding were presented to the Council in April 1957,
conflicting reports on the one hand, that the launching of
balloons had been discontinued and, on the other, that
groups of them were still being observed over Czech
territory, - led the Council to defer any decision. By
the time the Council returned to the subject on 14 June
1957, Czechoslovakia reported that no balloons had been
observed in its airspace since March. In view of this and
of the assurance that the Free Europe Committee had ceased
aIl free balloon launchings and had no intention of resum
ing them, the Council decided that no further action on
- 147 -
(223) the request of Czechos10vakia was necessary.
The Counci1 did, however, add to its work
program the item "Prob1ems re1ated to F1ight of Uncontro11ed
Ba1100ns", and ear1y in 1958 had to decide whether a
study of the genera1 prob1ems of interest to international
civil aviation in connection with f1ight of such ba1100ns
shou1d he carried out and, if so, what aspects it shou1d
cover and how it shou1d be conducted. No action was taken
on this matter. The same question came up again in 1960,
but before any action had been taken it was found that
1aunching had stopped. However, thistime the Counci1 made
a dec1aration to the effect that the f1ight of uncontro11ed
ba1100ns, not re1eased under proper safeguards and
conditions, cou1d constitute a definite hazard to the
safety of air navigation, and at the same time drew the
attention of contracting States to Article 8 of the Conven-
tion on International Civil Aviation and urged them to
take whatever action they considered appropriate or (324)
necessary to ensure the safety of f1ight.
n. Jordan and Syria: Request for Review under Article 15 of the Convention.
Another instance of a member State requesting
the Counci1's intervention occurred in 1958, when the
Government of Jordan asked the Counci1 to review under
Article 15 of the Convention charges imposed by Syria for
- 148 -
the use of aeronautical facilities and services in its
territory. The Council considered the matter on two
occasions, each time calling for further information. The (325)
matter was not again submitted to the Council for review.
o. United Arab Republic and Jordan: Reciprocal Prohibition of Flights.
On 27 September 1958, the Council had before it a
communication from the United Arab Republic, indicating
that Jordan had prohibited flights to or over its territory
by U.A.R. carriers and also a communication from Jordan,
stating tha.t the U.A.R. had withdrawn permission for
Jordanian air carriers to fly over or land in its territory.
Each party maintained that the other had violated the
Chicago Convention and the bilateral agreement between the
two countries, and asked the Council to take the necessary
mèasures. The Council instructed the Secretary General to
seek clarification from the two countries on certain points,
and pending receipt of it and a decision on the action to
be taken, invited them to permit air services between their ( 326)
two countries to be resumed.
The Council also authorized the President to
of fer his own good offices or those of the Secretary General
towards reaching a settlement of the differences. The
President and the Secretary General accordingly sent
communications to the two countries. In October, Jordan
replied that it would be willing to agree to a resumption
of operations by U.A.R. carriers, provided Jordanian
- 149 -
carriers were a110wed to resume operations at the same
time. Ear1y in November, the U.A.R. informed the Organiza-
tion that Jordanian carriers had been given temporary
permission to operate into its territory. Operations
between two countries by Jordanian and U.A.R. carriers (327)
were accordingly resumed. Beyond the intervention mentioned
above, the Counci1 did not take any other action in this
controversy.
d. Israeli Comp1aint: Article 54(j) of the Convention.
In 1956, the Israeli Delegation to the Tenth
Session of the Assemb1y sought the help of the Assemb1y in
regard to the situation in the Middle East. It maintained
that certain measures being taken by the Arab States with
respect te aircraft en route to or from Israel were
infractions of the Convention that shou1d have been reported
by the Counci1 under Article 54(j). After a brief
discussion, the Standing Ru1es of the Procedure were
invoked to stop the debate on the ground that a1though the
situation had technical aspects, it was essentially part (328)
of a 1arger politica1 problem outside the purview of ICAO.
e. Lebanon and Syria:Investigation under Article 55(e) of the Convention.
In a submission dated May 1956, Lebanon requested
an investigation by the Counci1, under Article 55(e) of
the Convention, of the situation createdby a Syrian
- 150 -
requirement that certain airline services which were
previously overflying Syrian territory make a stop at (329)
Damascus airport.
In view of the fact that Syria surrounds Lebanon
to the North and to the East, Lebanon felt that it was
impracticable to by-pass Syrian territory on East-West
trunk services serving Beirut which constitute the bulk
of traffic within the region. In view of the short
distance between the two airports (less than 40 miles with
10,600-foot mountains in between) such an obligatory haIt
at Damascus by services serving Beirut would obviously
present substantial difficulties to normala~r navi9ation,
involving serious delays which would be costly and
operationally highly undesirable.
As it often does on such occasions, the Council
deferred action until more information was available. The
matter was brought up again by the Representative of
Lebanon on 18 July 1956, at which time a representative of
Syria asked that the request be dismissed on the ground
that there was.no basis for Council action as there had been (330)
no infraction of the Convention. The attitude of the
Council was typical. It asserted that no information
justifying departure from its previous decision to defer
had been presented. There the matter was left to stay.
o
- 151 -
The above review thus shows that the only case
brought to the ICAO Council for decision under Chapter XVIII
.was the India-pakistan dispute of 1952-1953, in which
Afghanistan was an intervenant. But, even in this dispute,
the Council did not act in a judicial capacity as requested
by India and as authorized under the terms of the Chicago
Convention. Instead, the Council requested the parties to
negotiate. In doing so, it ignored the weIl established
practice in international relations that when the parties
have decided that an agreement cannot be reached by
negotiation, it is not the function of the tribunal to
mediate or conciliate.
In the complaint relating to the violations of
Czechoslovakian airspace by propaganda balloons, and in
the Lebanese complaint over the landing in the Syrian
territory, it was suggested that the Council did not
decide the disputes because of political considerations.
This lends support to the belief that absolute separation
of political considerations from a decision of the Council
is not possible. Another view is that the Council, not
being specifically requested to act in these cases under
Chapter XVIII, did not wish to convert the references
into "disputes".
- 152 -
f. Disagreement between Spain and the United Kingdom over the Prohibited Area off Gibraltar.
On Il April 1967, the Spanish Government
announced the establishment of a prohibited area in the
Algeciras Region which would be off limit to aIl types of
flying one month after the date on which notification of
the action was made to ICAO. ICAO received this notifica(331)
tion on the 15 April 1967. The prohibited area was
purportedly established by the virtue of Article 9 of the
Chicago ConventiOh. In the opinion of the Government of
the United Kingdom this action seriously obstructed the
"normal routes of access for aircraft using Gibraltar (332)
airport." Hence, in a request (not, however, filed under
Article 84) for the ICAO Council's intervention, the
United Kingdom maintained that the Spanish action was in
contravention of Article 9(a) of the Chicago Convention
because the prohibited area was of such extent and location
as to interfere unnecessarily with air navigation in that
it would affect the safety and regularity of flight by
civil aircraft to and from Gibraltar.
In its reply, Spain asserted that Gibraltar was
a military airport with a prohibited area of its own and
did not really fall within the purview of the Convention.
Even if this had not been the case, it would not be
unlawful, under Article 9(a) of the Convention, for a
prohibited area to interfere with air navigation if this
- 153 -
was necessary, and the sole judge of the necessity was
the State establishing the restrictions. The prohibited
area of Algeciras had been established, Spain argued, for (333)
reasons of rnilitary necessity and public safety. In this
matter it had acted in the exercise of its sovereign
rights which could not be questioned by any other State
or by the ICAO Council, since Article 1 of the Chicago
Convention was in this respect quite categorical.
At its special meeting on 10 May 1967, the
Council decided to include in its agenda the request of
the U.K., submitted under Article 54(n) of the Convention,
to consider the intent of Spain to establish a prohibited
area in the vicinity of Gibraltar. In the course of the
proceedings a proposaI was made by Australia, seconded by
the U.K., requesting the Counci1 to instruct the
Secretariat to provide full technical information and
asking the Air Navigation Commission to make an assessment
of the effect of the prohibited area on the operations of
civil air traffic at Gibraltar airport. A vote taken on
part one of this proposaI resulted in 8 for, 7 against, and
12 abstention. Since the Representative of Spain invoked
Article 52 of the Convention, which meant that 14 votes
would be necessary for approval of the proposaI, part one
did not carry, and part two, being directly related to it,
failed automatically. After a lengthy debate in the
- 154 -
Council, the matter ended inconclusively on 13 May 1967.
The Council did not reach any decision, not even a
decision that this was a matter on which it should take no (334)
decision. Thus the Council missed an opportunity to play
a useful role in the solution of a problem faced by two
contracting States.
It should be noted that Spain did not oppose
the inclusion of this item on the Council's agenda - it
abstained. However, it did make it clear that it
considered the question submitted by the U.K. to be a
political one, forming part of the complex problem of the
status of Gibraltar. For that reason, Spain held that the
dispute should be discussed within the framework of the (335)
Spanish-British negotiations recommended by the U.N.
On 6 September 1967, the U.K. Representative in
the Council came back to the ICAO Council, this time with
an application concerning its disagreement with Spain filed
pursuant to Article 84 of the Chicago Convention and (336)
Article 2(g) of the Rules for Settlement of Differences.
The President of the ICAO Council, in accordance with
Article 28(3) of the Rules for Settlement of Differences
decided on 15 September 1967, that the Spanish Government
should submit its Counter-Memorial by 1 February 1968.
- 155 -
3. ProposaI of Czechoslovakia Regarding the Export of Equipment Required by ICAO Standards and Recommended Practices.
For the purposes of completeness, still another
reference by a member State to the Council should be
mentioned.. It involved a proposaI by the Delegation of
Czechoslovakia that the Assembly adopt a resolution
recommending that contracting States permit the export of
the equipment required by ICAO Standards and Recommended
Practices to other contracting States which might wish to
install it at their airports. In the paper submitting (337)
this proposaI, it was explained that, with a view to
ensuring the safety of air traffic at Prague Airport in
low visibility_conditions, the Czechoslovak authorities
wished to install an ICAO-type ILS in 1956 and an ICAO-type
VOR in 1957, and aiso that they wished to complete, during
1956, the equipment of CSA aircraft used on international
routes with ILS and VOR airborne sets and multi-channel VHF
airborne communication sets, but had been unable to obtain
the equipment. In some cases the inquiries sent to the
producers had remained unanswered; in other cases the reply
had been returned that there was no hope of obt~ining the
necessary export Iicenses. The technical aspects of the
Czechosiovak Delegation's submission were considered by
the Technical Commission which reported to the Executive
Committee that it regarded the equipment recommended for
e
- 156 -
at Prague under the European-Mediterrane'an Regional Plan
as being essential to the safety and regularity of
international traffic.
The Czech proposaI was not, however, adopted,
because its declared purpose was not within the sphere of
action of the Organization. Instead it was proposed that
the Committee recommend to the Plenary that the question
be referred to the Council with instructions to apply to
it as soon as possible the regular ICAO procedurè for
the elimination of serious deficiencies in air navigation
facilities and services. This recommendation was followed
and action on the matter was presented for Council (338)
consideration on 27 November 1956. Consideration was
deferred until more information was available on the matter.
It was understood that the Secretary General would take (339)
whatever action was possible under the normal procedure.
There is no indication that the matter was brought back to
the Council for further consideration.
1.
- 157 -
CONCLUSION AND RECOMMENDATIONS
The Attitude ef States Towards a Third-Party
Adjudication of Aviation Disputes.
The idea of resolving international disputes
through intervention of an impartial third party, after
diplomacy has failed, is a deep-rooted human aspiration.
It can be found expressed in countless multilàteral and
bilateral agreements, including the UN Charter and the
Chicago Convention. Generally, States are free to settle
their disputes by peaceful means of their own choice. But
due to certain considerations, which will soon be
identified, they are aIl too often reluctant to submit
their disputes to a third party. This is especially true
of major countries which, apparently because of their
political and economic power, pre fer to seek settlement
through direct negotiations.
Many different considerations (e.g., political,
economic and technological) affect the method which a
State will choose for the solution of its dispute with
another State. One possibility is, of course, to refer
the dispute to the ICJ. However, as is weIl known, the
ICJ is only on rare occasions chosen by States as the
forum for the solution of their differences. Arbitration,
another useful method for peaceful settlement of interna-
tional disputes is likewise seldom resorted to by the ,)
disputing States. As Jenks says, "since the second World
- 158 -
War remarkable advances have been made in virtually every sector of international organization except the judicial (340) sector". This unwillingness to resort to third-party judgment is clearly contrary to the Charter of the UN and the expectations of the peoples of the World.
The factors which seem to dictate the attitude of States towards international adjudication can be listed as follows:
(a) No State is willing to submit its vital
interests in security or economics to the uncertainties of a third-party decision, and the areas considered to belong to the category of "vital" interests are steadily increas-ing.
(b) In certain cases where questions of national prestige are involved, States generally do not wish to risk a defeat in a tribunal.
(c) AlI too often a State will act on the premise that its political, economic and military power-base provides adequate guaranty for settling a dispute in its favour without the intervention of an unpredictable third-party.
(d) Finally, there is, of course, the lack of
confidence in the impartiality or even the competence of judicial authorities.
- 159 -
Reluctance to resort to an impartial adjudication
can be observed also in the International Civil Aviation
Organization whose Convention prescribes a procedure for
judicial settlement of disputes which cannot be settled by
negotiations. It is recalled that such disputes are to be
decided in the first instance by the Council, subject to
appeal to the ICJ or an ad hoc arbitral tribunal. However, - --- (34l)
experience has shown, and commentators have agreed, that
the Council of ICAO is not weIl suited to perform judicial
functions in aviation disputes because of the political
forces that inevitably come into play within its ranks.
The fundamental rule of arbitration law is that an
arbitrator must be impartial. This rule is difficult to
observe in the Council, which consists of 27 member States
whose representatives would normally be expected to
present the views of such States to the Council. But it
is obvious that the Council representatives cannot take
instructions from their national authorities and at the
same time perform the function of an impartial arbiter in
disputes coming before the Council. The Chicago Convention
does make one step towards impartiality in that it does
not permit aState to vote in a dispute in which it has an (342)
interest. But this safeguard alone cannat compensate for
the principal weakness of the Council.
Furthermore, sorne States have no confidence in
the Council as a judicial body because they consider that
- 160 -
. the national representatives have been chosen for their knowledge of air transport and air navigation rather th an for their experience in law.
2. Recommendations.
Contemporary technological and scientific advances have done much to stimulate economic, political and social progress in aIl parts of the world. A significant aspect of this process has been the development of aeronautical technology. The changes brought about by the post-war technological revolution clearly require appro-priate legal arrangements, worldwide in scope, which will secure maximum use of available resources with a minimum of friction· and waste. This is especially urgent at this stage in the development of civil aviation, with "jumbo" air liners and supersonics about to enter the already highly competitive international air market. Accordingly, the question arises whether the Chicago Convention, now almost a quarter of a century old, and the present ICAO Rules for the Settlement of Differences are adequate to cope with the aviation problems of the late nineteen-sixties and ensuing decades. The answer would have to be in the negative.
(343) As already mentioned, the difficulties that may
be encountered in connection with the settlement of
disputes arising under the Convention include those
- 161 -
concerned with voting (Article 52), certain aspects of
the machinery for the settlement of disputes (Chapter XVIII)
and certain provisions of the ICAO Rules for the Settlement
of Differences, such as those relating to further
negotiations (Article 6 and 14) and the competence of the
Council to de1egate its functions to a cornrnittee [Article
6(2), 13 and 23]. It is believed that these and certain
other difficulties could be overcome by the adoption of
measures outlined below.
Voting - The provisions of Article 52 require
amendment in order to clarify voting problems which may
arise in the Council's consideration of disputes. One
solution may be that Council members who are parties to a
dispute should not be considered to be members of the
Council for the purposes of that dispute and the decision
by the Council should be taken by majority of the remain
ing members. Another solution could be to require for a
decision the majority vote of the Council. Still another
possibility is to pre scribe that the decision will be
taken by a simple majority vote of the Council members
present at the time of the decision and eligible to vote.
Finally, the President of the Council could also be given
the right to vote.
Recornmendation - A situation could arise where
sorne of the Council members may be involved directly or
indirectly in a particular dispute and under these
- 162 -
circurnstances it would be difficult for the Council to
take a decision.
In order to avoid this difficulty, the best
alternative would be that the decision of the Council in
the case of a dispute should be taken by a simple majority
vote of the Council rnernbers and eligible to vote at the
tirne of the decision, and not to disqualify rnernbers
involved in the dispute. In the case of the ICJ a judge
is not disqualified rnerely because his State is party to a
case.
Time-lirnit for appeal - Under Article 84 of
the Chicago Convention, the decision of the Council is
appealable within 60 days of the receipt of the notifica-
tion of the Council decision. It is thus irnplied that an
appeal to the ICJ or an ad hoc arbitral tribunal has to
be filed within the sarne period of 60 days.
Recornrnendation - Conceivably, 60 days for the
notification of the appeal to the ICAO Council is sufficient.
However, due to the complicated nature of sorne disputes that
could arise, it would be impossible to bring an appeal
frorn a Council deéision to the ICJ or an ad hoc arbitral
tribunal within the same period of 60 days. Therefore, it
is recornrnended that Article 84 be amended so as to provide,
in addition to the tirne-lirnit for notification to the
Council, a time-lirnit of six months or even as rnuch as one
year, within which an appeal shall be filed with ICJ or
other ad hoc arbitral tribunal.
- 163 -
Place for filing appeal - Moreover, in the case of the ad hoc tribunal it is not clear with whom the appeal could be filed, since, until tribunal is established, it has no registry. Presumably, the appeal could be filed with the Secretary General or President of the Council
for the purpose of transmission to an ad hoc tribunal to be established.
In addition, Article 85 of the Convention provides for a period of three months during which a party to:a dispute may appoint an arbitrator and if that party fails to act the President of the Council may appoint the arbitrator. Article 85 also stipulates that if "within 30 days the arbitrators cannot agree on an umpire, the President of the Council shall designate an umpire". It is not clear whether the 30-days period runs from the end of the three-months period mentioned above or the date on which the President names the missing arbitrator.
Recommendation - In order to avoid these
uncertainties, it is recommended that appropriate amend-ments be made to Article 85.
Penalty for non-conformity - As mentioned (344 )
earlier, there are two severe penalties provided under Chapter XVIII of thè Chicago Convention, namely the penalty for non-compliance by the airline with the decision of the (345) Council (denial of the right of access to the airspace of
- 164 -
the Contracting Parties), and for non-conformity by a (346)
contracting State (suspension of the voting power in the
Assembly and in the Council).
Recommendation - It is recommended that the
penalty should be less severe in the case of the airline
and that an air service should not be suspended in the
case ofnon-compliance with a decision on a minor matter.
In serious cases the Organization would be given more
power to take direct action against the State whose airline
is found to be in default. Such Stat~ should be suspended
from the exercise of the rights and privileges of member-
ship by the Assembly upon the recommendation of the Council
or by the Council if the Assembly is not in session. The
exercise of those rights and privileges could be restored
by the Council on receipt of evidence that the State
concerned was conforming with decision.
The provision for suspension of voting power
should not be mandatory on a minor matter, but should be
permissive as in Article 62 of the Convention. For serious
infractions, as when a member State has persistently
violated the decision of the Council, there would be no
option but for the Assembly - or the Council if the
Assembly is not in session - to suspend that State's
voting power.
Negotiation - The ICAO Rules contain provisions
for further negotiations between the parties even after a
- 165 -
dispute has been brought to the Council (Articles 6 and
14). As already stated, it is not the role of a tribunal
to promote negotiations between the parties.
Recommendation - Therefore, the provisions which
provide for renewed negotiations should be deleted from
the Rules.
Competence of the Council to delegate its
functions - The ICAO Rules, in providing for the examination
of a dispute by a committee of five Council member
[Article 6(2), 13 and 23], contemplate an unauthorized
delegation of the Councills judicial powers to a smaller
body.
Recommendation - It is recommended that these
provisions be deleted from the Rules.
Additional Recommendations:
ProposaI for a new tribunal within the framework
of ICAO - As it is almost axiomatic that the Council, as
now constituted, will never be able to act in a genuinely
impartial manner, it would be useful to amend the Chicago
Convention so as to provide for an ad hoc arbitral
tribunal of first instance with competence to settle any
disputes arising under the Convention, such competence to
include settlement of disputes stemming from bilateral air
transport agreements. This tribunal should be composed of
five experts from among rnember States, elected by the
Council for a long period (e.g. 9 years). No two of these
- 166 -
experts should be of the same nationality. They should be
elected from among persons who possess qualifications
relevant to civil aviation. To secure their impartiality
and protec~ them against various pressures, it would be
advisable that their allowance be paid by ICAO. Such a
tribunal would, of course, make sense only if its decisions
were made binding. The tribunal should have a statute
which would provide- for the adoption of rules of procedure
by the Council.
ProposaI for tribunal outside the framework of
the ICAO - As mentioned earlier, States prefer to settle
civil aviation disputes by negotiation or by an ad hoc
arbitration rather than to have recourse to the ICJ or to
the ICAO Council. When negotiations fail States are likely
to refer their civil aviation disputes to tripartite
arbitral bodies. The advantages of such arbitration over
reference to the ICJ or the ICAO Council are (1) the
expeditious solution of disputes (because of informa lit y) ,
(2) privacy of proceedings, (3) greater scope in choice of
arbitrators (the parties usually assist in choosing the
tribunal and, therefore, they may designate arbitrators who
will be especially qualified for the particular kind of
dispute concerned), (4) the low over-all cost of the
proceedings and (5) the obligation of the parties, due to
their prior agreement, to submit to arbitration. A general
advantage is that this process is less legalistic than
- 167 -
procedures for judicial settlement and may be more concerned
with justice than political procedures will be. Therefore,
private arbitration might be a good means for settling
certain civil aviation disputes.
Institutional Arbitration - Lastly, reference may
be made to the advantages of institutional arbitration.
The benefit of this kind of arbitration is also obvious.
Little time is wasted ~n the selection of arbitrators. By
contrast, much time is wasted when each treaty provides for
its own tribunal, and ignores the existence of such an
institution as the Permanent Court of Arbitration. Moreover,
a dispute may worsen while the parties haggle over appoint-
ments to an ad hoc tribunal. The existence of a panel of
qualified arbitrators from which the arbitral tribunal must
be selected is a valuable step in the direction of settling
a dispute. Unfortunately, since the ICJ was designated as
the "principle judicial organ" of the UN, little attention
has been paid to the Permanent Court of Arbitration. Its
only use in civil aviation disputes occurred recently when
some of its rules of procedure were adopted by the U.5.-
France Arbitral Tribunal.
The question may arise as to why the ICJ should
not be the right forum for settling civil aviation disputes?
The answer is that the ICJ is too cumbersome a body for
this purpose, since some disputes would require more
speedy treatment action than the ICJ could give.
- 168 -
Recommendation - It is recommended that the
Permanent Court of Arbitration be used for the settling
of civil aviation disputes, provided it is furnished with
qualified technical or econornic assessors to assist it in
a particular case.
- 169 -
F 0 0 T NOT E S
1. See Mavrommatis Palestine Concessions Case, P.I.C.J., Publication Series A, No. 2, p. 11 (1924).
2. 2 Oppenheim, International Law 10 (7th ed., 1952).
3. See for details Oppenheim, id. pp. 10-40; Brierly, The Law of Nations 350-352 (6th ed., 1963).
4. For a fuller account, se: Oppenheim, ~.cit., note 2 supra. pp. 97-104 and Br1erly, id. pp. 376-380.
5. It is not always possible to separate in practice, legal and political differences, for most disputes usually contain both. On this distinction, see Briggs, The Law of Nations 1042-1045 (2nd ed., 1952); Brierly, ~.cit., note 3 supra, pp. 346-366°.
6. Oppenheim, ~.cit., note 2 supra, pp. 3-4,3Q. For further details in regard to distinction between legal and political disputes, see p. 4, n. 1.
7. Article 36(2) of the Statute of the ICJ. See below, p. 23.
8. The provisions of the Charter of the UN, notably those of the Chapter VI, provide for the implementation of this general principle. The parties to any dispute "the continuance of which is likedly to endanger the maintenance of international peace and security" are obliged first of aIl to seek a solution by negotiation, inquiry, mediation, conciliation, and judicial settlement, orOother peaceful means of their own choice (Article 33(1). Chapter VIII of the Charter provides that if members of the UN have entered into regional arrangements or constituted regional agencies for the settlement of their disputes, they "shall make
- 170 -
every effort" to achieve peaeeful settlement by sueh means before referring their disputes to the Security Couneil of the UN (Article 52(2), and the Seeurity Council from time to time may investigate any dispute or any situation which might lead to international frictions or give rise to a dispute, or determine whether its continuance is likely to endanger the maintenance of international peace and security (Article 34).
9. For fuller account of the role of negotiation, see Oppenheim, ~.cit., note 2 supra, pp. 6-7; lOppenheim, International Law 781-783 (7th ed., 1948); Gobdrich and Hambro, Charter of the United Nations Commentary and Documents 240 (1949).
10. Stone, Legal Control of International Conflict 63 (1954).
Il. Mavrommatis Palestine Concessions Case, ~.cit., note 1 supra 13 Per Judge Loder for the Court.
12. See, e.g., Article 2 of the Pact of Bogota, 1948; Article 4(1) of the Multilateral Agreement on Commercial Rights of Non-Scheduled Air Services, 1956; Article 25 of the Diplomatie Conference for the Establishment of Central American InterGovernmental Corporation for Aeronautical Communication; Article 33(1) of the International Convention Relating to Co-operation for the Safety of the Air Navigation of 1963 (Eurocontrol); Article XI(l) of the Antarctic Treaty of 1959; Article 2 of the Treaty of Friendship between Philippines and Switzerland 1958; Article 4 of the North Atlantic Treaty of ·1949 and etc.
13. See, e.g., Chapter VI of the Charter of the UN.
- 171 -
14. Oppenheim, 22.cit., note 2 supra, p. 10, for further de~ai1s, see ~tone, ~.cit., note 10 supra, pp. 69-72; Br1er1y, 22.C1t., note 3 supra, pp. 373-376; Starke, An Introduction to International Law, 3~g-3~2 (5th ed. 1963).
15. For examp1e the President of the U.S.A. in his private capacity, provided the means for bringing a war between Russia and Japan to an end by the be11igerents inducing to open negotiations which 1ed to the conclusion of peace of Portmouth on 5 September 1905.
16. Article 33-34-35 and 37 of the Charter of the UN.
17. Hartmann, The Relations of Nations 228-229 (2nd ed. 1962).
18. Oppenheim, 22.cit., note 2 supra, p. 12.
19. Articles 9-36 of the Hague Convention of 1907 and Articles 9-14 of the Hague Convention of 1899, [had on1y six Articles].
20. Oppenheim, ~.cit., note 2 supra, p. 13.
21. E.g. Fin1and and Sweden, and Norway and Sweden concluded such treaties. 28 L.N.T.S. 310 (1924) (Norway and Sweden); 29 L.N.T.S. 29 (1924) (Fin1and and Sweden).
22. Oppenheim, ~.cit., note 2 supra, pp. 88-91.
23. Article XV of the (Pact of Bogota), 30 April 1948 30 U.N.T.S. 84 (1949).
24. Oppenheim, ~.cit., note 2 supra, p. 22.
25. Stone, ~.cit., note 10 supra, p. 76.
26. In the present century a large number of arbitration treaties have been entered into, the ear1iest one between U.K. and France in 1903. The latter stipulated that "differences of a legal nature or re1ating to the interpretation of treaties" were to be re:Çerred to the Hague Permanent Court of Arbitration, provided they do not affect the vital interests, the independence, or honour of the two States, and do not concern the interest of third parties.
- 172 -
27. Article 23 of the Hague Convention of 1899 and Article 44 of the Hague Convention of 1907. See also Article 4(2) of the Statute of the ICJ.
28. Article 78 of the Hague Convention of 1907.
30. Brierly, ~.cit., note 3 supra, pp. 350-354~ Oppenheim, op.cit., note 2 supra, pp. 37-39.
31. Article 84 of the Hague Convention of 1907.
32. As distinct from a regional judicia1 tribunal, such as the Court of Justice of European Communities under the Treaties of 18 April 1951 and 25 March 1957.
33. Article 93 of the Charter of the UN.
34. Article 35 of the Statute of the ICJ. See also UN General Assemb1y Resolution No. 91(1) 15 October 1946.
35. Articles 3(1), 6 and 25 of the Statute of the ICJ.
36. Articles 8 and 10 of the Statute of the ICJ. Nonmembers of the UN, parties to the Statute of the ,Court may participate in the elections of judges by the General Assembly in accordance with conditions laid down in the General Assembly Resolution of 8 October 1948.
37. Article 9 of the Statute of the ICJ.
38. Article 16 (1) provides: "No member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature". (2) Any doubt on this point shall be settled by the decision of the Court. See, Hudson, Permanent Court of International Justice 164-166 (1943).
39. Art ic le 18.
40. Article 35. The conditions as laid down by the Security Council in a Resolution of 15 October 1946, where that such State should deposit with the Court;s Registrar a declaration accepting the Court's jurisdiction in accordance with the Charter and Statute of the Court and Rules of the Court, and with good will accept the obligations of the Article 94 of the UN Charter.
- 173 -
41. The European Convention for the Peacefu1 Sett1ement of Disputes, 29 April 1957, 320 U.N.T.S. 243 (1959).
42. Article 96 of the Charter of the UN.
43. Starke, ~.cit., note 14 supra, p. 380.
44. Pub. P.C.I.J. (1925) Series B. No. 12.
45. Pub. P.C.I.J. (1931) Series AlBINo. 14.
46. Pub. P.C.I.J. (1932) Series B. No. 4~ The Court ru1ed that questions of nationa1ity case be10ng to the domain of -exclusive domestic jurisdiction in a matter of nationa1ity invo1ved, or if aState purports to exercise jurisdiction in a matter of nationa1ity in a protectorate.
47. See South-West African-Voting Procedure, Advisory Opinion ·of 7 June 1955 ICJ Report (1955).
48. Oppenheim, ~.cit., note 2 supra, p. 68.
49. Chapter VI of the UN Charter especia11y Articles 33 and 34.
5 0 • Artië le s 3 6 and 3 8 •
51. Articles 34, 35, 24(2) and Article 39~ Cf. enforcement of terms, see Article 24 the first two paragraphs.
52. 93 L.N.T.S. 343; 4 Hudson, International Legislation 2529-2544 (1928-1929).
53. UN General Assembly Official Record, Third Session, Part II. Resolution 268A (III), la (1949); 71 U.N.T.S. 101 (1950).
54. Revised General Act for the Pacific Settlement of International Disputes 1949 Articles 1 and 20.
55. Article l~ of the General Act.
56. Article 19.
57. Articles 21 and 28.
58. Charter of the Organization of American States signed at Bogota on 30 April 1948 119 U.N.T.S. 48 (1952).
- 174 -
59. The Inter-American Treaty on Pacific Settlement of 30 April 1948 (Pact of Bogota text in 30 U.N.T.S. 55 1949).
60. Article 21 of the OAS Charter.
61. Article 20.
62. Article 23.
63. Article LVIII of the Inter-American Treaty on Pacific Settlement. (Pact of Bogota).
64. Articles XXXI and XXXII.
65. Article XXXIV.
66. Article XXXVIII.
67. Article XXXV.
68. Articles XXXVIII and XXXIV.
69. Fenwick, The Organization of American States 199-208 (1963) •
70. Articles XL, XLIII and XLV of the Inter-American Treaty on Pacific Settlement (Pact of Bogota).
71. 479 U.N.T.S. 70 (1963). The Charter came into force on 13 September 1963, after two-third of the signatory States had deposited their instrument of ratification with the Government of Ethiopia.
72. Article 2(1) of the Charter.
73. Text of the Protocol in 3 International Legal Materials 1116-1122 (1964).
74. Protocol, Articles II and VI.
75. Protocol, Article XIV.
76. According to Article XXVII of the Protocol, the arbitral tribunal shall be established in the following manner:
(a) each party shall designate one arbitrator from among the Members of the Commission having legal qualifications;
- 175 -
(b) the two arbitrators thus designated shall, by common agreements, designate from among th~ Members of the Commission a third person who shall act as Chairman of the Tribunal;
(c) where the two arbitrators fail to agree, within one month of their appointment, on the choice of the person to be the Chairman of the Tribunal, the Bureau shall designate the Chairman.
77. Ibid., Article XXXX. See also Sohn, "Report on International Arbitration, " International Law Association Helsinki Conference 19-20 (1966).
78. For the details about these disputes see, Saadia Touval "The Organization of African Unit y and African Borders" 21 International Organization 102-125 (1967).
79. Campbell and Thomson, Common Market Law Text and Communities 1-2 (1962).
80. For a fuller account see Valentine, 1 The Court of Justice of the European Communities, Jurisdiction and Procedures (1965); Bowett, The Law of International Institutions 168-181, 248-251 (1963).
81. E.C.S.C. Treaty Article 43; Euratom Treaty Article 154 and E.E.C. Treaty Article 182.
82. E.C.S.C. Treaty Article 89, para. 1.
83. Such a dispute can be submitted regard1ess whether there is an express clause covering jurisdiction or note
84 E.C.S.C. Treaty Article 42; Euratom Treaty Article 153; E.E.C. Treaty 181.
85. Euratom Treaty Article 152; E.E.C. Treaty Article 179.
86. 320 -D.N.T.S. 243 (1959).
87. Articles 4 and 19 of the Convention.
88. Articles 21 and 25.
89. Article 26.
90. For the list of cases see Common Market Law Report, 1 1960-1963 and etc. See also Yearbook for 1961-1967.
- 176 -
91. E.C.S.C. Treaty Article 33, 35 and 38; E.E.C. Treaty Article 173 and 176; Eurotom Treaty Articles 146 and 149.
92. The Counci1 of Europe, 17 the Ordinary Session (second part) text adopted by the Assernb1y, Recornrnendation 426 (1965).
93. 206 U.N.T.S. 143 (1955). This Treaty was signed on 2 April 1953 at Tokyo, Japan.
94. 206 U.N.T.S. 269 (1955), Article XXIII.
95. Phi1ippines-Switzer1and 30 August 1956, 293 U.N.T.S. 43 (1958).
96. 216 U.N.T.S. 248 (1955).
97. Simpson and Hazel Fox, International Arbitration Law and Practice 1-14 (1959).
98. For the text of the Antarctic Treaty, see 54 A.J.I.L. 347-383 (1960).
99. Article XI(l).
100. Article XI(2).
101. Article 37 of the 1919 Paris Convention. Note: The first paragraph of Article 37 was amended by a protoco1 of 15 June 1919. For the text of the Paris Convention, see Hudson, 1 International Legislation 359-392 (1919-1921).
102. For the text of the Madrid Convention, see III Hudson, id 2019-2023 (1925-1927).
103. Article 24 of the Convention.
104. Article 37.
105. Shawcross and Beaumont, Air Law 27 (lst ed. 1945).
106. For the text of the Havana Convention, see 129 L.N.T.S. 223 (1932).
107. Article 36 of the Convention.
108. Convention Re1ating to the Operation of Regu1ar Air Lines, signed at Athens April 1931. 129 L.N.T.S. 313 (1932) •
- 177 -
109. Article 23 of the Convention, 171 L.N.T.S. 385 (1937).
110. Article 20 of the Agreement, 182 L.N.T.S. 9 (1937).
Ill. Article 23 of the Convention, 173 L.N.T.S. 243 (1937).
112. Note 108 above.
113. Note 109 above.
114. Note 110 above.
115. Article 22 of the Convention between Great Britain and Greece, signed at Athens on 17 April 1931.
116. Note III above.
117.
118.
119.
120.
121.
122.
123.
124.
Executive Agreement
Id. , No. 38 (1933).
Id., No. 24 (1931) •
Id. , No. 54 (1934) •
Id. , No. 58 (1934) •
Id., No. 47 (1933) •
Id. , No. 50 (1933) •
Id. , No. 129 (1938) .
Series, U.S.A. No. 166 (1940).
125. Proceedings of the International Civil Aviation Conference, Department of State, (U.S. Gov't Printing Office, Washington, 1948), p. 12. See a1so Report of the Chicago Conference on International Civil Aviation (UN Information Organization, London, 1945); B1ueprint for Wor1d Civil Aviation, Dept. of State No. 2348! Conference Sere 70 (Gov't Printing Office, Washington, 1945), and Schenkman, International Civil Aviation Organization 107-118 (1955).
126. Article 80 of the Chicago Convention.
127. See Burden, "Opening of the Sky", in B1ueprint for Wor1d Civil Aviation, '1.9 11945} ~~ ..
- 178 -
128. Cooper, "New Prob1ems in International Civil Aviation Arbitration Procedure", 2 International Arbitration J. 120-124 (1947).
129. Ibid.
130. Ibid.
131. Ibid.
132. Ibid., p. 23.
133. Resolution Al-23. See ICAO Doc. 7670, pp. 21-22 (1956r.
134. Article III Section 6(8) of the Interim Agreement ICAO Doc. 2187, p. 29, see Appendix "A".
-135. ICAO Doc. 2121 C/228, 24 September 1946.
136. See be10w pp. 134-140.
137. ICAO Doc. 7392 C/962, 25/5/53.
138. ICAO Doc. 7782 C/898, 16/4/57.
139. Jennings, "International 22 B.Y.LL. 208 (1945). "An Historica1 Survey of L.J. 125 (1960).
Civil Aviation and the Law" See a1so Sand and others, the Law of F1ight" 7 McGi11
140. ICAO Doc. 7965.
141. 10ppenheim, International Law 558 (8th ed. 1955).
142. ICAO Doc. 7965.
143. Sec. 2 of Article II of the Transit Agreement and Sec. 3 of Article IV of the Transport Agreement~
"If any disagreement between two or more contracting States re1ating to the interpretation or application of this Agreement cannot be sett1ed by negotiation, the provisions of Chapter XVIII of the above-mentioned Convention sha11 be applicable in the same manner as provided therein with reference to any disagreement re1ating to the interpretation or application of the above-mentioned Convention".
- 179 -
144. Articles 28, 37 and 69-70 t of the Chicago Convention.
145. Resolution Al-64 and Annex, ICAO Doc. 4411, A1-P/45, 71-78 (1957).
146. The ICAO Counci1 accepted responsibilities under the 1954 Agreement on beha1f of the Organization on 7 April 1954. See ICAO Doc. 7510-JS/559, p. 3, para. 2. In 1960, the Counci1 accepted the recommendations on Ocean Weather Stations, made by the Hague Conference, and decided that they cou1d be imp1emented without modifying the 1954 Agreement, see ICAO Doc. 8080-JS/579, p. 23.
147. For examp1e, Article XV of the Agreement on the North Atlantic Ocean Stations provides that: .
"Any dispute relating to the interpretation or application of this Agreement or Annex II, which is not sett1ed by negotiation, sha1l, upon the request of any Contracting Government party to the dispute, be referred to the Council for its recommendation~'. See a1so Article XVIII of the Danish and Ice1andic Agreements ICAO Doc. 8080-JS/579, p. 9 (reproduced in the Report of Proceedings of 1956 ICAO Joint Financing Conference for the revis ion of the Danish and Ice1andic Agreements) (ICAO Doc. 7726-JS/563i ICAO Doc. 7727-JS/564).
148. For the text of the Rome Convention of 1952 see, ICAO Doc. 7364 October 1952.
149. Article l5(7} (a).
150. Article l5(7} (b).
151. The Eurocontrol Convention was signed by West Germany, Be1gium, France, the United Kingdom, Luxembourg and the Netherlands. For the text see 523 U.N.T.S. 117 (1965) .
152. Article 4 of the Convention.
153. For the Commission's functions, see Article 6(1} (a), (b) , (c) , (e) , (f) and (g~)of the Convention.
154. Article 2 of the Statute in Annex II, for details see Art ic le 2 (l) , (2) , (3) and ( 4) •
- 180 -
155. For a fu11er Statement on the Eurocontro1 (Commission & Agency), see R. Bu1in, "Eurocontro1 - A European Organization" J.R.A.S. 160-162 (1965); for more recent deve10pments see 23 ICAO Bulletin 17 (1968).
156. Thus the Statutes of, e.g.Eurofima, the Bank for International Sett1ement, the Luxembourg Rai1way Company and the Basle-Mulhouse Airport.
157. For the text of the ASECNA, see 28 R.G.D.A. 280 (1965); Yearbook of Air & Space Law 116 (1965).
158. The ASECNA Convention, Article. 1.
159. Article 4.
160. Article 6 of the Statute of ASECNA.
161. Article 13.
162. For a description of the structure, functions and working methods of the ASECNA, see Tance1in, "L'Agence pour la Securite de la Navigation Aerienne en Afrique et Madagascar", 28 R.G.D.A. 280-312 (1965).
163. ICAO Doc. CATE/1 (1954).
164. ICAO Doc. ECAC/1, 5 (1965).
165. ICAO Doc. 8185 ECAC/4/l 67 (1961).
166. Subject, however, to the ru1e enunciated by ICJ in the case of the Monetary Go1d Removed from Rome in 1943, ICJ Reports 19 (1954).
167. Secretariat Notes on Standard Clauses for Bilateral Agreements Deve10ped by "ECAC" Session (March, 1956) 27 J.A.L.C. 281-289 (1960).
1~8. For the text see ICAO Doc. 8681, Ju1y 1967.
169. See above, pp. 75-76.
170. Convention Estab1ishing the Central American Air Navigation Services Corporation. This Convention was signed on 26 February 1960 (at Tegucigalpa, by the P1enipotentiaries of Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua). For the text, see ICAO Doc. 8055. See a1so Article 1.
- 181 -
171. Article 2(1) (a) and (b).
172. Article 2(2).
173. Article 2(c).
174. Article 3.
175. Article 25.
176. For details ab0ut bilateral agreements, see Lissitzyn "Bilateral Agreements on Air Transport", 30 J.A.L.C. 248-263 (1964); Azzie, "Specifie Problems Solved by the Negotiation of Bilateral Air Agreements", 13 McGill L.J. 203-208 (1967).
177. Aeronautical Agreements and Arrangements, ICAO Doc. 8727-LGB/252 January 1968.
178. See Recornrnendation No. VIII in the Final Act of the Chicago Conference. For an analysis of differences between the various clauses used in bilateral air transport agreements and clauses recornrnended by the Chicago Conference and the Strasbourg Conference, see Handbook on Administrative Clauses in Bilateral Air Transport Agreements, ICAO Circular 63-AT/6 (1962).
179. Shawcross and Beaumont, 1 Air Law 280·-281 (3rd ed., 1966).
180. The Interim Agreement Article III, Section 6(8) and Chapter XVIII of the Convention. See Appendix "A" and "B".
181. Final Act of the Civil Aviation Conference, held at Bermuda, l5th January to llth February, 1946, and Agreement between the United Kingdom and the Government of the United States of America relating to Air Services between their respective territories, 30 U.N.T.S. 253 (1946).
182. Ses Joint Statement by the United Kingdom and U.S. Delegations, 14 Dept. of State Bull. 302-306 (No. 347, 1946); Cooper,"The Bermuda Plan: World Pattern for Air Transpott,"25 Foreign Affairs 59-71 (1946).
183. Article l, Sec. 4 of the Transit Agreement.
184. Article II of the Annex to the Bermuda Agreement not only refers to the rates fixed by IATA, but also provides for an "open rate situation" where IATA rates would not be applicable.
- 182 -
185. To be exercised by PICAOls Interim Counci1, if consultation between the governments cou1d not sett1e the dispute. See Article 9 of the Agreement and Article II(g) of Annex.
186. The origin of the advisory report is found in the Interim Agreement on International Civil Aviation. Article III, Sec. 6(8) gives the PICAO Counci1 the function of acting as an arbitral body for aIl disputes re1ating to international civil aviation among member States.
187. U.K.-Co1umbia Agreement, 160 U.N.T.S. 297 (1953); Art ic le 10 ( 1) (a) , (b) , (3) and ( 4) •
188. Article III, Sec. 6(8) of the Interim Agreement. See Appendix "A".
189. U.S.-Japan Agreement (1953), 4 ~.S.T. 1948.
190. E.g., U.S.~Denmark (as amended 1954), 5 U.S.T. 1422; U.S.-India Agreement (1956), 9 U.S.T. 275; U.S.Germany Agreement (1955), 7 U.S.T. 527; U.S.-Korea Agreement (1957), 8 U.S.T. 549; U.S.-Iran Agreement (1957), 9 U.S.T. 470; and Norway and Burma Agreement (1953), 174 U.N.T.S. 9 (1953).
191. U.S.-Iran Agreement (1957), 9 U.S.T. 470.
192. E.g., Article XV of the U.S.-Canada Agreement of 1966 ICAO Reg. No. 1915.
193. India-Soviet Union Agreement of 1958, ICAO Reg. No. 1380 as amended in 1962, ICAO Reg. 1656; 393 U.N.T.S. 3 (1961).
194. Pakistan-Soviet Union Agreement 1963, 499 U.N.T.S. 162 (1964). See a1so Ghana-Soviet Union Air Transport
Agreement 1962, ICAO Reg. No. 1731.
195. Po1and-Austria Agreement of 1956, 334 U.N.T.S. 222 (1959) and Sweden-Po1and Agreement of 1956, 334 U.N.T.S. 257 (1959).
196. Decision of the Arbitral Tribunal, estab1ished pursuant to the Arbitration Agreement signed at Paris on 22 January 1963, between the U.S. and France, decided at Geneva on 22 December 1963 pub1ished in 3 Int l 1 Legal Materia1s 668 (Ju1y 1964) and in I.T.A. (Institut du Transport Aerien) Study 66/2-E (1966).
- 183 -
197. Ita1y-U.S. Air Transport Arbitration; Advisory Opinion of the Tribunal (given at Geneva, 17 Ju1y 1965) is pub1ished in 4 Int l 1 Legal Materials 974 (1965) •
198. Note 196 above.
199. Approximate1y 1200 bi1atera1 agreements are registered with ICAO up to January 1968. ICAO Doc. 8727-LGB/252. The number quoted does not inc1ude agreements not registered with ICAO.
200. Larsen, "Arbitration of U.S.-France Air Traffic Rights" 30 J.A.L.C. 231-247 (1964). For genera1 bib1iogr~phy see p.231, note 3.
201. U.S.-France Air Transport Services Agreement 27 March 1946, 61 Stat. 3445 T.I.A.S. No. 1679; 139 U.N.T.S. 114 (1952).
202. U.S.-France Agreement Annex, Schedu1e II.
203. Ibid.
204. North Atlantic Route Transfer Case, CAB Docket No. 3589; U.S. Av. Report 335 (1950).
205. ABC Wor1d Airways Guide 350 (May 1955).
206. Section VII, of the Annex reads as fo11ows:
"Changes made by the either Contracting Party in the routes described in the Schedu1es attached except those which change the points served by these air1ines in the territory of the other Contracting Party sha11 not be considered as modifications of the Annex. The aeronautica1 authorities of either Contracting Party, may therefore proceed uni1atera11y to rnake such change, provided, however, that notice of any change is given without 'de1ay to the aeronautica1 authorities of the other Contracting Party.
If such other aeronautica1 authorities find that, having regard to princip1es set forth in Section IV of the present Annex, interests of their air carrier or carriers are prejudiced by the carriage by the air carrier or carriers of the first Contracting Party of traffic between the territory of the second Contracting Party and new point in the territory of a third country, the authorities of two Contracting Parties sha11 consu1t with a view to arriving at a satisfactory agreement".
- 184 -
207. Decision of the Arbitral Tribunal note 196 above.
208. U.S.-France Air Transport Agreement note 201 above as amended 139 U.N.T.S. 151 (1951).
209. I.T.A. (Insfitut du Transport Aerien) Study 66/2-E (1966). See also Larsen, note 200 above.
210. Article X of the 1946 U.S.-France Air Transport Services Agreement readsas follows: Except as otherwise provided in this Agreement or its Annex, any dispute between the Contracting Parties relating to the interpretation or application of this Agreement or its Annex which cannot be settled through consultation, shall be referred for an advisory report to the Interim Council of the provisional International Civil Aviation Organization, in accordance with the provisions of Article III, Section VI(8) of the Interim Agreement on International Civil Aviation signed at Chicago on December 7, 1944, or its successor.
211. U.S.-France Exchange of letters 8 December 1962 and 9 January 19630 As quoted in the decision of the Arbitral Tribunal. See also note 196 above.
212. U.S.-Italy Air Transport Arbitration; Advisory Opinion of the Tribunal. See note 197 above. For an account of the Advisory Opinion, see Bradley, "International Air Cargo Services: The Italy-U.S. Air Transport Arbitration" 12 McGill L.J. 312-326 (1966); Larsen, "The United States-Italy Air Transport Arbitration: Problems of Treaty Interpretation and Enforcement". 61 American Journal of International Law 496-520 (1967).
213. Air Transport Agreement between the Government of the United States of America and the Government of Italy, signed at Rome, on 6 February 1948, 73 U.N.T.S. 113 (1950); amended by an exchange of notes effective 24 March 1950, 89 U.N.T.S. 394 (1951); and by an exchange of notes effective on 4 August 1960, 388 U.N.T.S. 338 (1961).
214. Article 1 of the Compromis Between the United States of America and Italy Relating to the Agreement of February 6, 1948, as Amended. T.I.A.S. No. 5624 (US Gov't Printing Off. Washington, 1964).
- 185 -
215. Section III of the Air Transport Services Agreement and Protocol between the United States of America and Italy signed at Rome February 6, 1948. The words "as weIl as the right to embark and disembark •••• " are literaI translation of the Italian text of the Agreement. The authentic English text reads "a.'swell as the right of commercial entry and departure for •••• " The first is used as it appears to have been preferred by the Tribunal.
216. Note 197 above, p. 978.
217. Note 197 above, p. 978. In support of these points it was pointed out: (a) The Chicago Convention, and the Bermuda Agreement, upon which the Agreement with Italy was based, was clearly intended to regulate aIl scheduled commercial services and (b) "and" and "or" are used indiscriminately in the Chicago Convention and other agreements, in the Italian Translation of Article 6 of the Agreement and in other Italian Agreements.
218. It appears that both parties acted from 1948 up to July 1963 on the basis that the 1948 Agreement did cover alI-cargo services. See above note 197, p. 978~ Larsen, ~.cit., note 200 supra, p. 509.
219. Bradley, ~.cit., note 212 supra, p. 325 n. 39.
220. The Aeroplane 12, 16 June 1966; Article 9 of the U.S.-Italy Air Transport Service Agreement of 1948 provides that the Agreement shall terminate one year after the notice of ter.mination is given by either pêlxty. The Italian denunciation of 1 June 1966 takes effect on 1 June 1967. See 5 II Diritto Aereo 173 (1966) .
221. Article 49(a).
222. Articles 49(b) and 50.
223. Article 49(g) and (h). The Assembly may also "establish such subsidiary commissions as it may consider to be necessary or desirable" and refer "any matter within its sphere of action" to su ch commissions, or to any "other body".
224. Article 49(c).
- 186 -
225. Articles 49(e) ,Cf) and 61.
226. Articles 49(j) and 94.
227. Articles 49(i) and 64-66.
228. Article 49(k).
229. Article 50(a). By an amendment adopted at the Assembly's first Extraordinary Session (June, 1961), the composition of the Council was increased from twenty-one to twenty-seven Contracting States. This amendment came int.o effect on l7th July 1962. See 17 ICAO Bulletin 163 (1962); ICAO Doc. 7300/3.
230. Article 50(b).
231. Article 51. This Article also lays down the duties of the President, in very general terms. By Article 59 the President is forbidden to "seek or receive instructions in regard to the discharge of (his) responsibilities from any authority external to the Organization", and each contracting State undertakes not to "seek to influence any of its nationals in the discharge of their responsibilities" to the Organization.
232. Article 52. The adoption of the Annexes to the Convention requires a two-thirds vote; see Article 90.
233. Article 53.
234.
235.
236.
237.
238.
239.
240.
241.
Article 54 (c) •
Article 54 (d) .
Articles 54 (e) ,
Article 55 (a) •
Article 54 (a) .
Article 54 (b) •
Article 54 (n) •
Article 65.
242. Article 66.
243. Articles 69-76.
55(b) and 57.
- 187 -
244. Articles 37, 54(1),(m) and 90.
245. Article 54(i).
246. Article 67.
247. Articles 81-83.
248. Article 54(f).
249. Articles 54(h) and 58.
250. Article 55(c).
251. Article 55(d}.
252. Article 55(e}.
253. A1though the Chicago Convention refers to the PCIJ, the jurisdiction thus conferred has now devo1ved upon the ICJ by virtue of Article 37 of the Statute of the Court. The appea1 to an ad hoc tribunal is intended for cases where one of the parties to the dispute is not a party to the Statute of the Court.
254. ICAO Doc. 7965, January 1968.
255. Cheng, The Law of International Air Transport 454 n. 5, (1962). An ICAO Committee created to draft the ru les of Procedure of the Counci1 acting in its judicia1 capacity, maintained that the ICAO Counci1 was not ob1iged to accept jurisdiction conferred upon it by bi1atera1 agreements (ICAO Doc. 7456, A8-p/2 8/4/54 p. 6). The Nether1ands De1egate, Dr~ Copes Van Hasselt, right1y commented: "Since the Counci1 had longer been aware that many of the bi1atera1 agreements registered with the Organization in comp1iance with Chapter XVIII of the Convention contained clauses providing for the references of disputes to the Counci1, he did not think it wou1d be appropriate for it to wait unti1 a dispute was actua1ly referred to it before accepting the responsibi1ities p1aced upon it by these agreements. Ibid., p. 7. Dr. Cheng ?ubmits that, in order to exc1ude the application of Article 66(b} from the sett1ement of dispute arising under the two agreements on account of words "in the same manner", it will be necessary to re1y very heavi1y on the Advisory Opinion of the ICJ on South-West AfricaVoting Procedure ICJ Report 67 (1955).
- 188 -
256. Chapter XVIII of the Chicago Convention, see Appendix "B".
257.
258.
259.
260.
261.
262.
ICAO Doc. 2121 C/228,
See be10w pp. 134-140.
ICAO Doc. 7392 C/962,
ICAO Doc. 7782 C/898,
ICAO Doc. GE RSD WD #
Note 257 above.
24 September 1946.
25 March 1953.
9 April 1957.
l, 9/5/55 p. l, para.
263. ICAO Doc. 1171 15/5/52, p. l, para. 2.
264. Note 259 above.
3.
265. Ibid., p. 2. For the history of certain prov1s10ns of the Ru1es, see Commentary of the Secretariat on the Ru1es (ICAO Doc. GE RSD WD # l, 9/5/55).
266. ICAO Doc. GE RSD WD # 2, 14/2/55.
267. The Group of Expertson the Ru1es for the Settlement of Differences was composed of the fo11owing: Diaeddine Sa1eh (Egypt), A. Garnau1t (France), R. Monaco (Ita1y), I. Narahashi (Japan), E.M. Loaeza (Mexico), J.H. Beekhuis (Nether1ands), K. Sidenb1adh (Sweden) and R.O. Wi1berforce (United Kingdom). Miss H.A. Co1c1asser (USA), Mr. H.A. Perucchi (Argentina) were a1so nominated, but unab1e to accepte
268. ICAO Doc. 2271, 15/5/56, pp. 2-3.
269. Report of the Counci1 to the Assemb1y for 1957 ICAO Doc. 7866, A11-p/3, p. 46.
270. ICAO Doc. 8727-LGB/252, January 1968.
271. For the 1ist of the States recognizing the competence of Counci1 and' or other organs, see ICAO Doc. 1171, 15/5/52, pp. 15-22.
272. Ibid., Doc. 1171, p. 3.
273. Ibid.
274. Chapter XVIII of the Chicago Convention, see Appendix liB".
- 189 -
275. Cheng, ~.Cit~i note 255 s~pra, 460.
276. ICAO Doc. 1171, 15/5/52, p. 3, paras. 17-18.
277. Ibid., p. 4.
278. Group of Experts on the Ru1es for the Sett1ement of Differences, Note and Commentary, ICAO Doc. GE RSD WD # 3, 6/5/55, p. 1. See for comparative study, the Ru1es Covering the Sett1ement of Differences between States. ICAO Doc. 2121 C/228, 24/9/46.
279. ICAO Doc. GE RSD WD # 3, 6/5/55, p. 16.
280. Ibid.
281. Ibid., pp. 1-2.
282. Note 259 above.
283. Note 260 above.
284. ICAO Doc. GE RSD WD # 3, 6/5/55, p. 17 reads:
Distinction between dis agreements and comp1aints
It appears necessary to make a distinction between disagreements and comp1aints for the fo110wing reasons:
(i) Counci1 is ob1iged to engage in and decide on the sett1ement of disagreements fa11ing under Chapter XVIII of the Convention or Section 2 of Article II of the Transit Agreement and Section 3 of Article IV of the Transport Agreement, while under Se~tion 1 of Article II of the Transit Agreement and Section 2 of Article IV of the Transport Agreement, Counci1 is free to make recommendations or not in respect of complaints, the on1y obligation in these cases being to calI the States concerned into consultation.
(ii) In the case of a decision on a disagreement, an appeal is open to the ICJ or to an arbitral tribunal, whi1e any findings or recommendations arrived at by Counci1 in the case of comp1aints are not open to appeal. The authority or binding effects of the two types of Council conclusions are different as in the case of complaints there is no provision that an eventual finding or recommendation is binding. However, there is, in the case of complaints, the question of subsequent action by Council and possible reference to the
- 190 -
Assembly, as contained in the last part of Section 1 of Article II ~f the Transit Agreement and in the last part of Section 2 of Article IV of the Transport Agreement.
(iii) A complaint may be lodged when aState deems that action by another State "is causing injustice or hardship to it". Under such wording aState may complain not only in cases where it cannot be held that the other party has violatedthe letter of the Agreement or is applying a disputed interpretation, but, it is believed, also in cases where the "action" may be justified under the letter of the Agreement but still is causing "injustice or hardship". The situations that may arise in the case of complaints might be so different that it would be unwise to have the Rules include, in respect of complaints, the formaI procedure laid down in the case of disagreement.
285. Note 255 above.
286. Article 2 (g) of the 1957 Rules pr.ovides: that every application must contain "[a] statement that negotiations to settle the disagreement had taken place between the parties but were not successful". Article 21 of the Rulesrelating to complaints contains the same statement.
287. Provision for the procedure of negotiations before the final filing of a request for the Council's decision is the re-affirmation of established practice in international law that the parties should settle disputes between them by mutual negotiations. This practice is even more necessary in the field of international civil aviation which affects aIl the States of the world and where utmost mutual cooperation and good-will is necessary for its successful operations.
288. Article 2 (a) , (c) , (e) and (d) of the Rules.
289. Articles 3, 4 and 5.
290. Article 6(1) and (2).
291. Article 8(1) and (2).
292. Article 9.
293. ICAO Doc. GE RSD WD # 2, 14 February 1955, p. 8.
- 191-
294. ICAO Doc. 1685, 16 March 1954, pp. 4-5, Appendix "A".
295. These observations are based on ICAO Doc. GE RSD WD # 3, 6 May 1955, pp. 6-7.
296. For a fu11er account of the India-Pakistan dispute, see be10w pp. 134-140.
297. ICAO Doc. GE RSD WD # 3, 6/5/55.
298. Article 16(2) of 1953 Ru1es and Article 18(2) of 1957 Ru1es, Article 17(3) of 1953 Ru1es and Article 19(3) of 1957 Ru1es.
299. Article 84 of the Chicago Convention and Article 15(5) of the Ru1es.
300. Article 84 of the Chicago Convention and Article 18(2) of the 1957 Ru1es.
301. Notification of the appea1 to the Counci1 through the Secretary General is necessary in order to stay execution of its decision or to submit a record of the proceedings to the ICJ or to the arbitration tribunal GE RSD WD # 3 of 5 May.1955, p. 12.
302. Article 87, of the Chicago Convention see Appendix "B"~
303. See, e.g., Articles 54(j) ,en), 55(e) and 15 of the Chicago Convention.
304. ICAO Doc. 1169, 8/5/52.
305. ICAO Doc. 1003, 25/9/51. For further information see Report of the Counci1 to the Assemb1y on the Activities of the Organization 1952 ICAO Doc. 7367 A7-P/l, pp. 74-76; Vol. 7, No. 7 ICAO Bulletin 14-15 (Ju1y-August 1952, Vol. l, No. 7, ICAO Bulletin 4 (January-February 1953) and ICAO Doc. GE RSD WD # 4.
306. ICAO Doc. 1170, 9/5/52 para 5 thereof.
307. ICAO Doc. 1205, 5/6/52.
308. Government of Pakistan, NOTAM No. 10 of 1949.
309. As a resu1t of a treeaty ca11ed "Gandomak" which was conc1uded on May 1879 and renewed with an agreement 1893 between Afghanistan and Great Britain, a large popu1ated area remained outside the Kingdom of
- 192 -
Afghanistan. Under this Agreement, which was signed by Sir Mortimer Durand, the Foreign Secretary of India, and the King of Afghanistan, Amir Abdur Rahman Khan, the British retained control of certain areas and imposed a border 1ine upon Afghanistan. As W.K. Frél:ser in his Book Afghanistan: A Study of Deve10pment (1950) has stated, it was i11ogica1 from the point of view of ethnography, strategy and geography to recognize the "Durand Line" as a natural border of Afghanistan. It cuts across one of the main Indus watersheds and it sp1its a nation such as Afghanistan into two even1y divided tribes.
310. ICAO Doc. GE RSD WD # 4 on 18 June, cable from Afghanistan requesting ICAO to take certain action in regard to a comp1aint against Pakistan. See ICAO Doc. 122, 19/6/52, pp. 1-2.
311. ICAO Doc. 7291-7 C/847-7, p. 97; see a1so ICAO Doc. 1214, 16/6/52.
312. ICAO Doc. 1300, 23/10/52.
313. Ibid.
314. Id., p. 19.
315. ICAO Doc. 2371, 12/3/57, p. 2. For detai1s see pp. 1-25.
316. Under Agenda Item 8 A1-WP/87.
317. A1-WP/150 Min. Ex-16.
318. Doc. ïïû9 A1-Ex/36, 15/8/56, p. 27.
319. ICAO Doc. 2248 and Doc. 2251.
320. ICAO Doc. 2402, 8/4/57, pp. 2-15.
321. Ibid.
322. Annex 7 became effective on lst Ju1y 1949.
323. Report of the Counci1 to the Assemb1y for 1957, Doc. 7866 A11-P/3, pp. 43-44.
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324. Report of the Council to the Assembly for 1960, Doc. 8140 A14-P/3, pp. 65-66; ICAO doc. 3176~
325. Report of the Counci1 to the Assemb1y for 1958,. ICAO Doc. 7960 A12-P/1, p. 60; ICAO Üoc. 2661, 26/3/58 and ICAO Doc. 2688, 8/5/58.
326. Report of the Counci1 to the Assemb1y for 1958, Doc. 7960 A12-P/1, p. 60.
327. Ibid.
328. ICAO Doc. 7709 A10-Ex/36, 10th Assemb1y Report of the Executive Committee 1956, pp. 27-28 and Report of the Counci1 to the Assernb1y for 1956, ICAO Doc. 7788 A-11-P/1,-p~49,1956.
329. Doc. 7788, 49, 1956; ICAO Doc. 222~, 14/5/56 and ICAO Doc. 7739-C/894, pp. 18-19-26-28.
330. Ibid., Doc. 7788, p. 49, 1956.
331. ICAO Doc. 4582, 1/5/67, p. 1.
332. ICAO Doc. 8693-C/973 (April-June 1967), pp. 8-11.
333. Ibid., p. 9.
334. ICAO Doc. 4582 and 4583, 27/4/67.
335. U.N. Resolution 2231 (xxi), approved on 20 December 1966, by the General Assemb1y recommended that the U.K. shou1d proceed without de1ay to the deco10nization of Gibraltar in negotiation with the Spanish Government.
336. ICAO Press Re1ease Doc. VIII 28 September 1967.
337. ICAO Doc. 7709, A10-Ex/36 Assemb1y, pp. 19-20 and see ICAO Doc. A10-WP/150, Min. Ex/1-17, pp-;' 85 and 135.
338. ICAO Doc. 2233, 27/11/56.
339. ICAO Doc. 7763-C/896 Action of the Counci1, Twentynine Session 1956, p. 15.
- 194 -
340. Jenks, The Prospect of International Adjudication 1 (1964) •
341. Goedhuis, "Questions of Public International Air Law", 81 Recueil des cours de (La Haye, 1952, p. 205 and 267); Cheng, ~.cit., note 255 supra 460; Hingorani, "Dispute Settlement in International Civil Aviation", 14 Intll Arb. J. 15 (1959).
342. Article 53 of the Chicago Convention.
343. See above pp. 129-131.
344. See above pp. 132-133.
345. Article 87 of the Chicago Convention, see Appendix "B".
346. Article 88 of the Chicago Convention, see Appendix "B" •
BOOKS
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B l B L l 0 G R A P H Y
Bebr, G., Judicial Control of the European Communities, . (London, 1962).
Bowett, D.W., The Law of International Institutions, (London, 1963).
Brierly, J.L., The Law of Nations, (6th ed., London, . 1963).
Campeêll,A., and Thpmpson, D., Common Market Law-Text and Commentaries, (London, 1962).
Carlston, K.S., The Process of International Arbitration, (New York, 1946).
Cheng, B., The Law of International Air Transport, (London, 1962).
Cooper, J.C., The Right to Fly, (New York, 1947).
Cooper, J.C., The Fundamentals of Air Power (Washington, D.C., 1948).
Fenwich, C.G., The Organization of American States, (Washington, D.C., 1963).
Goedhuis, D., Air Law in the Making, (The Hague, 1938).
Goedhuis, D., Question of Public International Air Law, 81 Recueil, des cours de (la Haye, 1952).
Goodrich & Hambro, Charter of the United Nations, Commentary and Documents, (2nd and rev. ed., London, 1949).
Hartmann, F.H., The Relations of Nations, (2nd ed., - New York, 1961).
Hudson, M.O., 4 International Legislation, (Washington, 1928-1929).
Hudson, M.O., Permanent Court of Justice, (New York, 1943).
- 196 -
Jenks, C.W., The prosrects of International Adjudication, (London, 1964 •
Leonard, JJ, • .L ... ,International Organization, (New York, 1951).
Oppenheim-Lauterpacht, International Law, Vol. 1 (7th ed., London, 1948), Vol. II (7th ed., London, 1952), and Vol. 1 (8th ed., London, 1955), edited by H. Lauterpacht.
Proceedings of the International Civil Aviation Conference, Chicago, Ill. ~'l November-7 Deceriiber 1944. 2 Volumes, publication 2820, International Organization and Conference Series IV, International Civil Aviation Organization Vols. 1 and 2 (Washington, D.C., 1948-1949).
Rosenne, S., The World Court What it is and How it Works, (New York, 1962).
Sand, P.H., Pratt, G.N., and Lyon, J.I., An Historical Survey of the Law of Flight,(Montreal, 1961).
Schenkman, J., International Civil Aviation Organization, (Geneva,1955).
Shawcross & Beaumont, Air Law, (lst ed., London, 1945), (3rd ad., Vol. l, London, 1966).
Starke, J.L., An Introduction to International Law, (5th ed., London, 1963).
Stone, J., Legal Control of International Conflict, (New York, 1954).
Tombs, L.C., International Organization in European Air Transport, (New York, 1936).
Valentine, D.G., The Court of Justice of the European Communities, Vol. 1 (London, 1965).
Verploeg, E.A.G., The Road Towards A European Common Air Market, (Utrecht, 1963).
ARTICLES
Azzie, R., "Specifie Problems Solved by the Negotiation of Bilateral Air Transport Agreements" 13 McGill L.J. 203-208 (1967).
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Bradley, M.A., "International Air Cargo Services: The Italy-USA Air Transport Agreement Arbitration", 12 McGill L.J. 312-326 (1966).
Cooper, J.C., "New Problems in International Civil Aviation Arbitral Procedure", 2 Int Il Arbt'hJ .. r. 119-124 (1947).
Cooper, J.C., "The Bermuda Plan-World Pattern for Air Transport", 25 Foreign Affairs 59-71 (1945).
Cooper, J.C., "The Proposed Multilateral Agreement on Commercial Rights in International Civil Air Transport", 14 J.A.L.C.125 (1947).
Domke, M., "International Civil Aviation Sets New Pattern", 1 Int l 1 Arb? .. ".J·.l. 20-29 (1945).
Hingorani, R.L., "Disputes Settlement in International Civil Aviation", 14 Intll Arb-~"J;r., 14-25 (1959).
Jennings, R.Y., "International Civil Aviation and the Law", 22 B.Y.I.L. 208 (1945).
Larsen, P.B., "Arbitration in Bilateral Air Transport Agreement", 2 Arkiv for Luftrett 145-161 (1964).
Larsen, P.B., "Arbitration of the United States-France Air Traffic Rights Dispute", 30 J.A.L.C. 231-247 (1964).
Larsen, P.B., "The United States-Italy Air Transport Arbitration: problems of Treaty Interpretation and Enforcement", 61 A.J. I.L. 496-520 (1967).
Lissitzyn, O.J., "Bilateral Agreements on Air Transport", 30 J .A.L.C. 248-263 (1964).
Saadia, T., "The Organization of African Unit y and African Borders", 21 International Organization 102-125 (1967).
Sohn, L.B., "Report on International Arbii:ration" International Law Association, Helsinki Conference (1966).
- "How to Make Effective the Pacific Settlement of Disputes unde:!:' the United Nations Charter" International Arbitration Journal 143-153 (1945).
1
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DOCUMENTS
Multilateral Treaties
The Covenant of the League of Nations.
The Charter of the United Nations.
The Charter of the Organization of American States.
The Charter of the Organization of African Unity.
The Statute of the International Court of Justice.
The Hague Conventions for the Pacific Settlement of International Disputes, 1899-1907.
Convention Relating to the Regulation of Aerial Navigation, Paris, 1919. 1 Hudson, International Legislation 359 (Washington, 1919-1921).
The Ibero-American Convention on Aerial Navigation, Madrid, 1926. III Hudson, International Legislation 2019 (Washington, 1925-1927).
The Havana (Pan-American) Convention on Commercial Aviation, 1928. 129 L.N.T.S. 223 (1932).
Convention on International Civil Aviation, Chicago, 7 December 1944. ICAO Doc. 2187, Doc. 7300/3.
Interim Agreement on International Civil Aviation. ICAO Doc. 2187.
International Air Services Transport Agreement, Chicago, 7 December 1944. ICAO Doc. 2187.
International Air Services Transit Agreement, Chicago, 7 December 1944. ICAO Doc. 2187.
Multilateral Agreement on Commercial Rights of NonScheduled Air Services in Europe, Paris, 1956. ICAO Doc. 7695.
Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, Rome, 1952. ICAO DOC. 7364.
e
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The European Convention for the Peacefu1 Sett1ement of Disputes, 29 April 1957. .3'20 U.N.T.S. 243 (1959).
International Convention Re1ating to'Cooperation for the Safety of Air Navigation (EUROCONTROL), 13 December 1960. 523 U.N.T.S. 117 (1965).
Convent~on Re1ating to the Creation of an Agency Responsib1e for the Operation of Faci1ities and Services provided to Ensure Air Navigation Safety in Africa and Madagascar, 1959 (ASECNA) 28 R.G.D.A. 280 (1965)~ Yearbook of Air & Space Law 116 (1965).
The Antarctic Treaty, Washington, D.C., 1959. 54 A.J.I.L. 347 (1960).
Treaty between the Federal Repub1ic of Germany, the Kingdom of Be1gium, the French Repub1ic, the Ita1ian Repub1ic, the Grand Duchy of Luxembourg and the Kingdom of the Nether1ands Instituting the European Coa1 and Steel Community. Signed at Paris, on 18 April 1951. 261 U.N.T.S. 143 (1957).
Treaty Estab1ishing the European Economie Community. Common1y known as "Common Market" 25 March 1957. 298 U.N.T.S. Il (1958).
Treaty Estab1ishing the European Atomic Energy Community, (EURATOM), 25 March 1957. 294 U.N.T.S. 262 (1958).
Bilateral Treaties of Commerce and Navigation.
United States-Ire1and, 206 U.N.T.S. 270 (1955).
United States-Japan, 206 U.N.T.S. 143 (1955).
USSR-Hungary, 216 U.N.T.S. 247 (1955).
China-Spain, 181 U.N.T.S. 81 (1953).
Lebanon-Liberia, 151 British and Foreign State Papers, 346 (1948-111).
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Bilateral Air Transport Agreements, prior to the Chicago Convention of 1944.
Estonia-Fin1and, 12 September 1936, 172 L.N.T.S. 346 (1936).
France-Hungary, 23 Ju1y 1935, 173 L.N.T.S. 243 (1937) • . Greece-Po1and, April 1931, 129 L.N.T.S. 313 (1932).
Hungary-Nether1ands, 8 June 1935, 171 L.N.T.S. 385 (1936).
USA-Canada, Ex. Agree: No. 129. USA (Govt. Printing Office Washington, 1938).
USA-Denrnark, Ex. Agree. No. 58, USA (G.P.O. Washington, 1934).
USA-Gerrnany, Ex. Agree, No. 58, USA (G.P.O. ,Washington, 1938).
USA-Ita1y, Ex. Agree. No. 24, USA (G.P.O. Washington, 1931).
USA-Liberia, Ex.Agree. No. 166, USA (G.P.O. Washington, 1940).
USA-Norway, Ex. Agree. No. 50, USA (G.P.O. Washington, 1933).
USA-Sweden, Ex. Agree. No. 47, USA (G.P.O. Washington, 1933) •
USA-Union of South Africa, Ex. Agree. No. 54 USA (G.P~O. Washington, 1934).
Bilateral Air Transport Agreements after the Chicago Conference, 1944.
Norway-Burma, (1953), 174 U.N.T.S. 49 (1953).
Norway-U.K., (1955), 223 U.N.T.S. 362 (1955).
Po1and-Sweden, (1956),. 334 U.N.T.S. 257 (1959).
U.K.-Co1umbia, (1947), 160 U.N.T.S. 297 (1953).
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U.K.-Denmark, (1952), 151 U.N.T.S.3 (1952).
U.~.~Greece, (1945),35 U.N.T.S. 163 (1946).
U.K.-Ita1y, (1948), 94 U.N.T.S. ,239 (1951).
U.K.-USSR, U.K.T.S. No. 58 (1959) Cmnd. 798.
U.S.-Denmark (as amended in 1954) 5 U.S.T. 1422; 222 U.N.T.S. 366 (1955).
U~S.~France, (1946), Stat. T.I.A. No. 1679.
U.S.-Germany, (1955), 7 U.S.T. 527; 275 U.N.T.S. 3 (1957).
U.S.-India, (1956), 7 U.S.T.275; 272 U.N.T.S.75 (1957).
U.S.-Iran, (1957), 9 U.S.T. 407; 308 U.N.T.S. 147 (1958).
U.S.-Ita1y, (1948), 73 U.S.T. 113 (as amended by, exchange of r.otes effective 29 March 1950).
U.S.-Japan, (1953), 4 U.S.T. 1948; 212 U.N.T.S. 27 (1947).
U.S.-U.K., (The Bermuda Agreement), 60 Stat. 1499; " 3 U.N.T.S. 253 (1947).
USSR-Pakistan, (1963), ICAO Reg. 1729,499 U.N.T.S. 162 (1964).
USSR-India, (1958), ICAO Reg. No. 1380 f 393 U.N.T.S. 3 (1961) as amended 13 November 1962. ICAO Reg. No. 1656.
USSR-Ghana, (1962), ICAO Reg. No. 1731.
ICAO DOCUMENTATION
Annexes.
Ru1es of the Air, Annex 2 (5th ed., March 1966).
Aircraft Nat'iona1ity and Registration Marks, Annex 7 (2nd ed., April 1964).
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Circu1ars
Handbook 0n Administrative Clauses in Bilateral Air Transport Agreements (Cir. 63-AT76, 1962).
Resolutions
Authorization of the Counci1 to act as an Arbitral Body, Al-23, May 1947. - -- -- --
Definition of "International Standards" and "RecommendedPractices", Al-31, May 1947-. -
Approva1 of Action taken ~ the Interim Counci1 on Joint Support Cases, Al-64, May 1947.
ICAO-Counci1 Working Papers. C-WP. No.
1003 (25/9/51), 1169 (8/5/52),1170 (9/5/52), 1171 (15/5/57), 1205 (5/6/52), 1214 (23/10/52), 1294 (23/10/52), 1300 (23/10/52),2222 (14/5/56), 2248 (16/7/56), 2251 (18/7/56), 2350 (8/2/57), 2371 (12/3/57),2402 (8/4/57),2458 (11/6/57), 2546 (27/11/57), 2661 (26/3/58), 3136 (9/5/60), 3176 (10/6/60).
ICAO-Counci1 Working Group on the Ru1es for the Sett1ement of Differences. RSD Working Group, No.
2 (11/5/52),3 (11/7/52), 4 (11/7/52), 5 (31/7/52), 6 (15/10/52), 7 (5/12/52), 8 (29/12/52), 9 (20/3/53), 10 (8/5/53).
ICAO-Counci1 Group of Experts on the Ru1es for the Sett1ement of Differences. GE RSD WD No.
1 (9/5/55): 2 (14/2/55), 3 (6/5/55) , 4 (5/5/55), 5 (29/7/55), 6 (2/9/55) , 7 (2/9/55) , 8 (2/9/55) , 9 (30/1/56) •
ReEorts of the Counci1 to the Assemb1y
ICAO Doc. 7367 A7-P/1, 1952.
ICAO Doc. 7788 AII-P/1, 1956.
ICAO Doc. 7866 AII-P/3, 1957.
ICAO Doc. 7960 A12-P/l, 1958.
ICAO Doc. 8140 A14-P/3, 1960.
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MISCELLANEOUS
ICAO Doc. 2121 C/228, 24/9/46, Ru1es Governing the Sett1ement of Differences Between States.
ICAO Doc. 7392 C/9a2~, 25/5/53, Ru1es for the Sett1ement of 'Differences.
ICAO Doc. 7782 C/898, 9/4/57, Ru1es for the Sett1ement of Differences.
ICAO Doc. 7709, A10-Ex/36.
ICAO Doc. WP/150, Min. Ex/1-17.
ICAO Doc. 8727 LGB/252, January 1968, Aeronautica1 Agreements and Arrangements.
ICAO Doc. 8080-JS/579, Acts on the Joint Financing of the North Atlantic Ocean Stations 1954 and 1960.
ICAO Doc. 7726-JS/563, Agreement on the Joint Financing of Air Navigation Services in Green1and and Faroe Islands, 25 September 1956.
Pub. P.C.I.J. , (1925) Series B. No. 12.
Pub. P.c. I.J. , (1931>., Series A/B/No. 14.
Pub. P.C.I.J. , (1932) Series A/B/No. 4.
ICJ Re'I2ort 67 , 7 June (1955) South-West African-Voting Procedure, Advisory Opinion.
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Appendix "A"
When expressly requested by aIl the parties concerned, act as an arbitral body on any differences arising among member States relating to international civil aviation matters which may be submitted to it. The Council may render an advisory report or, if the parties concerned so expressly decide, they may obligate themselves in advance to accept the decision of the Council. The procedure to govern the arbitral proceedings shall be determined in agreement between the Council and all tne interested parties.
.' - 205 -
APPENDIX "B"
Article 84
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. No member of the Council shall vote in the consideration by the Council of any dispute to which it is a party. Any contracting State may, subject to Article 85, appeal from the decision of the Council to an ad hoc arbitral tribunal agreed upon with the other parties to the dispute or to the Permanent Court of International Justice. Any such appeal shall be notified to the Council within sixt Y days of receipt of notification of the decision of the Council.
Article 85
If any contracting State party to a dispute in which the decision of the Council is under appeal has not accepted the Statute of the Permanent Court of International Justice and the contracting States parties to the dispute cannot agree on the choice of the arbitral tribunal, each of the contracting States parties to the dispute shall name a single arbitrator who shall name an umpire. If either contracting State party to the dispute fails to name an arbitrator within a period of three months from the date of the appeal, an arbitrator shall be named on behalf of that State by the President of the Council from a list of qualified anq available persons maintained by the Council. If, within thirty days, the arbitrators cannot agree on an umpire, the President of the Council shall designate an umpire from the list previously referred to. The arbitrators and the umpire shall then jointly constitute an arbitral tribunal. Any arbitral tribunal established under this or the preceding Article shall settle its· own procedure and give its decisions by majority vote, provided that the Council may determine procedural questions in the event of any delay which in the opinion of the Council is excessive.
Article 86
Unless the Council decides otherwise, any decision by the Council on whether an international airline is operating in conformity with the provisions of this Convention shall remain in effect unless reversed on appeal. On any
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other matter, decisions of the Council shall, if appealed from, be suspended until the appeal is decided. The decisions of the Permanent Court of International Justice and of an arbitral tribunal shall be final 'and binding.
Article 87
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.
Article 88
The Assembly shall suspend the voting power in the Assembly and in the Council of any eontracting State that is found in default under the provisions of this ~hapter.
