PAIL Institute Publications

PAIL Institute Monograph Series

Law-Making in the International Civil Aviation Organization

Author(s): Buergenthal, Thomas

Hardcover - 247 pages (1969)
ISBN: 0-8156-2139-6; LC: 72-80016

Price: US $42.00

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About This Publication

More than 110 sovereign states participate in the activities of the International Civil Aviation Organization—a specialized agency of the United Nations—which is concerned with the safe, orderly, and efficient development of international civil air transport. This volume examines the organization's law and practice in the areas of membership, legislation, settlement of disputes, and amendatory processes.

Professor Beurgenthal explores the extent to which law affects ICAO's decision-making process, what the nature of that law is, and how it is developed by analyzing the manner in which ICAO has dealt with certain important problems having legal and constitutional ramifications; by inquiring what considerations (political, economic, technical, or legal) prompted a given decision; and by examining the legislative content of these decisions.

The author observes that the creative element in the law-making process of an international organization is its "institutional personality" which reveals itself in the day-to-day practice of the organization. By revealing for the first time ICAO's dynamic and sophisticated law-making process, he demonstrates that long-term international cooperation for resolving modern technological problems is by no means impossible, and that international organizations with specialized technical functions can make substantial progress in regulating the conduct of governments.

The aviation law specialist, those interested in problems of international organizations, and those attorneys here and abroad who must render advice on international civil aviation problems will find in this book a vast amount of highly relevant legal information that has never been adequately analyzed before.

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About The Author(s)

Thomas Buergenthal currently sits on the International Court of Justice in The Gahue. Professor Buergenthal is the Lobingier Professor of International and Comparative Law at The George Washington University Law School and the Presiding Director of its International Rule of Law Center. He is also the U.S. national member of the United Nations Human Rights Committee, the first American to serve on that body. In addition to his academic career, Professor Buergenthal served 12 years as judge and a term as President of the Costa Rica-based Inter-American Court of Human Rights. In 1992-93, Professor Buergenthal served on the three-member UN Truth Commission for El Salvador, which investigated the large-scale violations of human rights committed in that country during its 12-year civil war. Professor Buergenthal is the author of more than a dozen books and a large number of articles on international law, human rights and comparative law subjects.

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Reviews

Lissitzyn, American Journal of International Law
"In his admirably thorough and well-written monograph, which is the only extensive published study in English of some of the law-making activities of ICAO, . . . Professor Buergenthal has made a contribution of outstanding value to our knowledge and understanding of the international legislative process."

W. C. B., Georgia Journal of International and Comparative Law
"Thomas Buergenthal's Law Making in the International Civil Aviation Organization is a unique study designed to assess the substantial law-making accomplishments of the International Civil Aviation Organization."

Gist, International Journal
"This comprehensive, scholarly publication provides perceptive insights, . . . is logically organized, concise, and authoritative . . . . Dr. Buergenthal's recommendations are competently supported by precise analyses of underlying issues. . . . He is to be commended for this valuable work which should be useful to those interested in international civil aviation and to students surveying the legal complexities of important international organization."

Erler, American Journal of Comparative Law
"This book is not only written in a commendable scholarly manner but also in a superb style . . . . It is indispensable for any research on ICAO. Furthermore, it is a most useful key for the understanding of the legal structure and law-making activities of any specialized agency of the United Nations."

Bleicher, Vanderbilt Law Review
"Professor Buergenthal gives every evidence of a thorough knowledge of the first twenty years of ICAO practice, and his results show just how indispensable this information is. The book is even more valuable because the author is refreshingly unafraid to point out the errors and misunderstandings of other, often more superficial, analysis."

Partan, Buffalo Law Review
"Professor Buergenthal's examination of the four selected areas of ICAO practice is . . . systematic and comprehensive. . . . Each part is . . . a useful addition to the literature on the law of ICAO and the entire work deserves to be read on this basis alone."

Yearbook of World Affairs
"Professor Buergenthal's attempt to explore the significance of the legal element in the decision-making processes of the International Civil Aviation Organization has been wholly successful. His Law-Making in the International Civil Aviation Organization augurs well for corresponding volumes on other specialised agencies, planned to be included in Professor Lillich's Procedural Aspects of International Law Series."

Foreign Affairs
"A solid and scholarly monograph. . . ."

Goldie, Virginia Journal of International Law
"The book under review should. . . be recognized as a pioneering work in an exciting new field of international legal studies. . . . This reviewer recommends Professor Buergenthal's book as a work of reference to scholars, including teachers contemplating the scope and contents of courses in international organizations."

Scoutt, The Georgetown Law Journal
"[S]uccinct analysis of the structure of ICAO. . . ."

Wurfel, Fordham Law Review
"[T]his is a complex book. . . . [R]ead it. . . . [I]t is hoped that the review may stimulate readers with even a casual international law interest to pursue this in-depth study of ICAO law-making."

Dwivedi, Indian Journal of International Law
"[O]n a careful examination of the book it is found that the investigator is not inspired by the flash of inspiration but by thoughtful and profound studies. . . . The author, to my mind is an experimentalist. His is the approach of a practical lawyer. . . . The book may prove to be of great service to all those who are engaged in the practice of international law."

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Availability

Law-Making in the International Civil Aviation Organization is available from:

William S. Hein & Co., Inc.
1285 Main Street
Buffalo, NY 14209

(716) 882-2600
(800) 828-7571 (toll free)
(716) 883-8100 (fax)
e-mail: mail@wshein.com
website: http://www.wshein.com/
Hein Item #: 306520

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Table of Contents

Editor's Foreword				vii
Preface				ix
General Introduction				1
	Purpose and Scope			1
	ICAO: Its Function and Institutions			3
Part I: Membership in ICAO and Related Problems				13
	Introduction			13
	Acquisition of Membership			14
		General Membership Problems		14
		Membership by Ratification of the Convention		14
		Membership by Adherence to the Convention		16
		Membership by Admission		18
		Special Membership Problems		24
		Reservations to the Convention		24
		New States		29
	Termination and Suspension of Membership			35
		Termination of Membership		35
		Denunciation of the Convention		35
		Expulsion		38
		Suspension of Membership and Voting Rights		46
		Suspension for Failure to Discharge Financial Obligations		46
		Suspension for Failure to Discharge Obligations under Chapter XVIII of the Convention		52
		Suspension at the Request of the United Nations		52
	Conclusion			54
Part II: ICAO Technical Legislation				57
	Introduction			57
	International Standards and Recommended Practices (SARPS)			58
		General Characterization		58
		The Development, Adoption, and Amendment of Annexes		62
		The Entry into Force of an Annex or Amendment		66
		The Right of Disapproval		66
		The Promulgation of an Annex		69
		Compliance with International Standards and Recommended Practices		76
		The Rules of the Air Governing Flights Over the High Seas (Article 12)		80
		The Journey Log Book Requirement (Articles 29 and 34)		85
		Recognition of Certificates and Licenses (Article 33)		86
		Notification of Differences		88
		Notifiable Differences and Manner of Notification		94
		Legal Consequences of Failure to Notify Differences		98
		Implementation of International Standards and Practices		101
		Implementation of Regulatory SARPS		102
		Implementation of Regulatory SARPS		102
		Implementation of SARPS Relating to Air Navigation Facilities, Personnel, and Equipment		112
	Other Forms of ICAO Technical Legislation			114
		PANS and SUPPS		115
		The Relation Between SARPS, PANS, SUPPS, and Regional Plans		117
	Conclusion			119
Part III: ICAO and the Settlement of International Civil Aviation Disputes				123
	Introduction			123
	Settlement of Disputes under the Chicago Acts			124
		Under the Convention on International Civil Aviation		124
		Jurisdiction		125
		The Role of the ICAO Council		136
		The Decision		140
		The Appeal		141
		Enforcement of Decisions		146
		Under the International Air Services Transit and Air Transport Agreements		154
		Disputes		155
		Complaints		158
	Judicial Functions Assigned to ICAO by Other International Agreements			166
		Under Multilateral Agreements		166
		Under Bilateral Agreements		174
	The ICAO Rules for the Settlement of Disputes			179
		Evolution and Scope of the Rules		179
		Content of the Rules		183
		Rules Applicable to Disputes		183
		Complaints		192
		General Provisions		193
	Conclusion			195
Part IV: ICAO and the Law Governing Amendments to the Convention on International Civil Aviation				199
	Introduction			199
	Application of Article 94(a)			202
		The Two-Thirds Vote of the Assembly		202
		Entry into Force of Amendments		206
		Effect of Entry into Force		206
		Number of Ratifications Required for Entry into Force		217
		Date of Entry into Force		219
	The Application of Article 94(b)			221
	ICAO Policy Relating to Amendments			222
		The Submission of Proposed Amendments		222
		The Protocol of Amendment		224
	Conclusion			226
General Conclusion				229
Note on ICAO Documentation				231
Bibliography				237
	Books			237
	Periodical Literature			239
Index				243