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SETTLEMENT OF DISPUTES AT ICAO AND SUSTAINABLE DEVELOPMENT BY SHREEGOWRI K L
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Article Details
SETTLEMENT OF DISPUTES AT ICAO AND SUSTAINABLE
DEVELOPMENT
AUTHORED BY – SHREEGOWRI K L
ROLL NO – 20191BCL0026
BCOM.LLB (HONS) SEC 5
The International Civil Aviation
Organization (ICAO) is a specialized agency of the United Nations responsible
for regulating and coordinating international air travel. It plays a
significant role in ensuring the safety, security, and efficiency of
international civil aviation. When it comes to settling disputes at ICAO, it
primarily deals with disputes related to aviation matters, including those
involving its member states and international aviation agreements.
This article aims to present the
dispute settlement mechanism established in Chapter XVIII of the Chicago
Convention. To this end, the article will analyse how the Council could resolve
a potential dispute in the field of sustainable development. For this exercise,
a hypothetical case will be analysed, in which the European Union (EU) decides
to unilaterally implement its emissions trading scheme in the field of
aviation. This case will serve as a potential scenario to consider if the
dispute settlement mechanism set out at Article 84 of the Chicago Convention
could be efficient in order to resolve such a dispute. The said dispute
settlement mechanism has been criticized many times in ICAO’s history due inter
alia to the incapacity of the Council to provide for a merit-based decision. In
fact, the five disputes brought under the present article have always been
resolved through diplomatic channels, involving the good offices of the
President of the ICAO Council. Therefore, despite the peculiarity of the EU representation
at ICAO, the article will demonstrate that a potential dispute with respect to
sustainable development will most likely be resolved the same way that it has
been done previously in ICAO’s history.
A procedure for resolving conflicts
between the member states of the International Civil Aviation Organisation
(ICAO) is contained in the Chicago Convention, which established the
organisation. According to the pertinent section of this Convention, the ICAO
Council has the authority to engage in sui generis judicial proceedings, which
have not been frequently utilised in the organization's history (though there
appears to be a growing interest in their usage). This article examines the
background of this procedure's application, examines some of its contentious
aspects, and highlights some recent developments in the field. These include
the International Court of Justice's ruling in the appeal "BAHRAIN, EGYPT
AND UNITED ARAB EMIRATES v. QATAR" and the ongoing review of the ICAO
Rules for Settlement of Differences.
Keywords-: International Civil Aviation
Organization, Chicago Convention, Settlement of
Disputes, ICAO Rules of Procedure, Bahrain, Egypt and United Arab Emirates v.
Qatar, ICJ verdict
Negotiation, investigation,
mediation, conciliation, arbitration, judicial settlement, recourse to regional
agencies or arrangements, or other peaceful ways of their own choosing are
among the strategies employed for the peaceful resolution of international
issues (Article 33, UN Charter).
Since the beginning of human
civilization, relationships between people and between different groups or
social collectives have been shaped by the gradual creation of written and oral
covenants, which have served as a foundation for governing and constructing our
"society of coexistence." Historically, this notion has been explored
under the label “Social Contract Theory,” that is: the belief that persons’
moral and/or political duties are dependent upon a contract or agreement among
them in order to construct the society in which they live. People have good, if
self-serving, motives to acclimatise to the artifice of morality in general as
this state contains a figure endowed with the authority and capacity to
administer sanctions for violations of such a contract.
Groups of people living together then
obtained three things they lacked in the pre-covenant period (the so-called
"State of Nature"): laws, judges to decide cases involving laws, and
the executive power required to implement these laws. These items were formed
when they consented to form a political society and government.
Therefore, each individual transfers to the
government they have established via the agreement the authority to defend
themselves and punish those who violate the Law of Nature. Consequently, a
major tenet of the "social contract state" is that compliance with
the conditions (or "terms") of any such covenant should be the rule
rather than the exception; otherwise, cohabitation would be chaotic, if not
impossible.
For this reason, it is essential to
have a sovereign who has the authority to both impose and punish rules. The
same rules apply, mutatis mutandi, to the cohabitation of sovereign States. The
modern concept of "world order" originated with the signing of the "Peace
of Westphalia"2 and the adoption of its political theory. Because this
theory was founded on the creation of an autonomous system of states that would
refrain from interfering in the internal affairs of others and would mutually
control each other's aspirations through practical methods, it did not include
the imposition of a single moral vision. Rather, it demonstrated a pragmatic
adjustment of the European governments' requirements to the actualities of an
overall balance of power at that point.
Each state was given the quality of
sovereign control over its own area in exchange. Thus, this article examines
the parameters of the Chicago Convention's dispute resolution provisions, the
ICAO Council's jurisdiction for settling disputes, the current application
procedures before the Council, and the cases that the Council has previously
heard. In view of the circumstances previously outlined, this chapter takes a
closer look at the sorts of legal proceedings that particular States could
pursue against the EU. Furthermore, because of the EU's ambiguous status at the
ICAO, there can be uncertainty about the parties involved in a future
application.
A procedure in which a dispute is
submitted, by agreement of the parties, to one or more arbitrators who make a
binding decision on the dispute This paper will going forward prove the
statement.
RESEARCH
QUESTION
What are the most effective methods
to resolve the disputes by using international law and
RESEARCH
METHODLOGY
OBJECTIVES
CHICAGO CONVENTION PROVISIONS FOR THE
SETTLEMENT OF DISPUTES
Articles 84 to 88 of Chicago
Convention Chapter XVIII contains the provisions for resolving disputes.
According to Article 84, the Council will resolve any dispute between two or
more contracting states over the interpretation or implementation of this Convention
and its Annexes upon request from any State involved. This clause also states
that no member of the Council may cast a vote when the Council is debating a
dispute in which it has a stake. A judgement made by the ICAO Council may be
appealed to the International Court of Justice (ICJ) by a disputing party.
Article 85 describes the circumstances under which a State party to a dispute
may file an appeal council resolution does not become a party to the ICJ
Statute.
Since all 191 ICAO Member States are also
signatories to the UN Charter and have so recognised the Statute of the ICJ de
facto, it appears that this clause is no longer applicable. Furthermore,
Article 86 states that any ruling made by the Council regarding whether a
foreign airline is operating in accordance with the Chicago Convention's
provisions will stand unless overturned on appeal and that, in the event that
the Council's decisions are appealed, they will be halted until the appeal is
resolved. The ICJ's or an arbitral tribunal's rulings are final and
enforceable. The Chicago Convention outlines two different kinds of punishments
to guarantee adherence to rulings under Chapter XVIII: one for individual
airlines and the other for States.
The first is outlined in Article 87,
which states that each contracting state agrees to refrain from permitting an
airline operating within its airspace if the Council determines that the
airline in question is not abiding by a final decision made in line with
Article 86. Regarding the penalties for States, Article 88 states that the ICAO
Assembly will suspend the ability of any contracting state found to be in
violation of this chapter's provisions to vote in both the Assembly and the
Council. Over the years, a number of people have criticised these punishments.
For instance, Professor Milde has noted that in order to uphold Article 88's
sentence, the majority of States of the Assembly have to be in favour of such
measure and would be “undoubtedly motivated by many policy considerations”
THE RULES OF PROCEDURES FOR THE
SETTLEMENT OF DIFFERENCES
The Rules of Procedure for the
Settlement of Differences (the Rules), which were enacted by the Council, add
to the provisions of the Chicago Convention regarding disputes. The process for
a State to submit an application to the Council is outlined in these Rules. The
Council performs judicial powers in accordance with these Rules. In addition to
oral hearings, the Council bases its findings on the written documents—memories
and countermemories—that the parties have submitted. The emphasis placed on
mediation and conciliation, either before to or during the procedures, is
another significant feature of the Rules. For example, Article 14 of the
Regulations stipulates that any contracting state presenting a dispute to the
Council sent must include evidence that attempts to resolve the dispute through
talks between the parties were must prove that attempts to resolve the dispute
through talks between the parties were unsuccessful in order to qualify for
settlement.
Additionally, the Council has the
right to invite the disputing parties to direct discussions at any point
throughout the proceedings in an effort to resolve the disagreement or focus
the problems. Furthermore, to aid in the negotiating process, the Council may
choose one person or a team of people to mediate disputes between the parties.
Professor Milde claims that because this allows for the President's good
offices and encourages mediation and conciliation by the Council, it manifestly
deviates from judicial powers.
According to Professor Buergenthal,
this means that the Council's primary duty under Chicago Convention article 84
is "to assist in settling rather than in adjudicating disputes." The
Rules' close alignment with the Court of International Justice's Rules is
another intriguing feature of the latter. This resemblance might potentially
lead to some issues because the ICJ is a court and functions only as a
tribunal. As a result, the Council's established Rules could not apply to a
political entity that doesn't follow the customs of a court of law. The Rules
were originally enacted in 1957 and then revised in 1975; they haven't been
changed since. In light of this, some have argued recently in favour of the
Council reviewing these Rules, which could be a good chance to consider the
political uniqueness of this body.
THE CONSIDERATION OF ENVIRONMENT AND
SUSTAINABLE DEVELOPMENT BY THE ICAO COUNCIL
As per the Kyoto Protocol's Article
2.2, cooperation between 60 States and ICAO is required to decrease greenhouse
gas emissions (GHG). However, ICAO does not believe that the aforementioned
clause gives the Organisation the authority to take particular action in that
regard. As Professor Dempsey rightly notes, a strict interpretation of the
Kyoto Protocol implies that only a subset of States have a duty to address the
problem of greenhouse gas emissions from international aviation. To be clear, ICAO is not required by the
Kyoto Protocol or the Chicago Convention to create a policy on greenhouse gas
emissions, but it is also not prohibited from doing so. States are thought to
be able to debate any such concerns in the ICAO forum.
ICAO is under no special duty to take
up such an issue unless its Member States so request. Nevertheless, it appears
that the ICAO Assembly's decision to take action to address the aviation and
climate change issue was sparked by the signing of the Kyoto Protocol. In light
of this, an examination of ICAO Assembly Resolutions from 1998 to the present
shows the political determination of Member States to address the matter.
Moreover, neither civil aviation nor
the ICAO are mentioned in the most current agreement, which was signed at the
Conference of the Parties in Paris in December 2015 (COP21). Surprisingly, the
initial section on aviation was eliminated entirely from the final accord. The final agreement's exclusion of aviation,
however, is unlikely to have much of an effect on the ICAO procedure. In fact,
the momentum generated in Paris will continue to exert pressure on States at the
ICAO to address aviation emissions by putting in place a unique MBM system,
among other things, according to the ATAG spokesman.
SCOPE AND
LIMITATIONS
Dispute
Resolution Mechanisms: The scope includes an in-depth examination of the
mechanisms and procedures employed by ICAO for resolving disputes. This can
encompass negotiation, consultation, arbitration, or even cases referred to the
International Court of Justice (ICJ).
Sustainable
Development Aspects: The research can explore how the settlement of disputes at
ICAO impacts sustainable development, covering areas such as environmental
impact mitigation, safety, security, infrastructure development, and
international cooperation in aviation.
Legal and
Policy Analysis: The paper may include legal and policy analyses of ICAO
agreements and conventions, international treaties, and relevant policies that
relate to dispute settlement and sustainable development.
Data
Availability: Access to comprehensive and up-to-date data on disputes and their
outcomes at ICAO may be limited due to confidentiality concerns. Some
information may not be publicly accessible.
LIMITATIONS
Subjective
Nature: The assessment of sustainable development and its impacts can be
subjective. It may vary based on different perspectives and interpretations,
making it challenging to provide concrete and universally accepted conclusions.
Complex
Legal Framework: The legal aspects of ICAO agreements and conventions can be
intricate. Understanding the legal nuances may require a background in
international law, which may be a limitation for some researchers.
Resource
Constraints: The research may be constrained by limited resources, both in
terms of time and funding, which could affect the depth and breadth of the
analysis and the ability to conduct extensive fieldwork.
Evolution
of ICAO: ICAO's policies, mechanisms, and dispute resolution practices may
evolve over time. The research might not capture the most recent developments
in dispute resolution within the organization.
Political
Sensitivities: Disputes at ICAO can sometimes be politically sensitive, and the
organization's actions or decisions may be influenced by diplomatic
considerations. These political complexities can affect the research's scope
and analysis.
Limited
Generalizability: The findings of the research may not be universally
applicable, as the impact of dispute settlement on sustainable development can
vary from one case to another and from one region to another.
OUTCOMES
1. Scarcity of cases submitted to ICAO
There have only been five examples of
disputes between Member States brought to the Council for resolution since the
ICAO's founding and more than 70 years. However, in two additional conflicts
between Member States (including three distinct claims), the intervention of
the ICAO Council has been requested recently.
Considering this, it is possible to
draw the statistical conclusion that the number of conflicts submitted for
adjudication grew dramatically in less than a year. It is premature to infer,
therefore, that this represents a reaffirmation of the worldwide aviation
community's faith and confidence in the reliability and efficacy of the ICAO
dispute resolution system among States. Undoubtedly, it seems a little
premature to issue a death certificate for the Chapter XVIII that some writers
have recommended.
2. Rules for the Settlement of Differences
The Council may suspend or modify the Rules,
subject to the parties' consent, if it believes that doing so will result in a
more efficient or timely resolution of the issue, despite the Rules for the
Settlement of Differences appearing to be rather strict. The WG-RRSD is
currently revising the Rules to address a number of concerns connected to their
modernization. It also seeks to develop new and creative procedures that will
enable the prompt, transparent, and speedy resolution of disputes.
While the scope of the revision goes
beyond that, taking into account the rules and procedures governing the
settlement of disputes in other international judicial and dispute settlement
bodies, the alignment with the new Rules of Procedure of the ICJ is a very
significant example of the initiatives. The worldwide aviation community is
sufficiently reassured by all of these factors along with the expertise of the
group's expert members to maintain faith in the WG-RRSD's ability to
successfully modernise the ICAO Rules and get over their current challenges.
3. The peculiar nature of the Council
The "political nature of the
Council" is the primary reason for the criticism directed at the ICAO
process for resolving disputes between States, as this article explains. This
author believes that, contrary to what other writers have indicated, such a
claim cannot be seen as inevitably leading to the conclusion that this role
should be given to an elected body of judges or arbitrators who might operate
with "due judicial detachment."
First of all, it is quite improbable
that States would be willing to voluntarily submit their disagreements to a
final judgement. According to an author, unless States make every effort to
resolve the issue through direct negotiations, "however imperfect the
current machinery may be, it is available to States and its existence can act
as a deterrent that it could be used with all the undesirable publicity and
further inflame the adversarial attitudes." More significantly, such
criticism ignores the reality that the Council is actually a political,
diplomatic, and rule-setting organisation that has been given the authority to
settle disputes by the Chicago Convention.
4. Lack of results
It is a truth that the Council has
not yet issued a formal ruling on the merits of any of the cases that have been
submitted to it for consideration. To the best of this author's knowledge, this
does not in any way indicate that the Council did not fulfil its duty to settle
conflicts. That might be claimed in the event that the aforementioned result is
attained against the wishes or interests of the Council. It's actually the
opposite, though. ICAO has extensive arbitral authority under several bilateral
air transport agreements and complete adjudicatory authority under the Chicago
Convention, but it has shown little interest in using either of these powers,
preferring to use its good offices to bring the parties to a settlement of the
conflict. The parties were able to settle the dispute in all five of the cases
that were brought between 1952 and 2000 thanks to ICAO's assistance with
conciliation and mediation, as well as the procedures' delay.
The 1957 Rules imply that discussions
and agreements are preferable to decisions and penalties. The ICAO itself
prefers mediation, conciliation, and the careful use of good offices as the
most efficient and effective methods of resolving conflicts. The Council made
an effort to use its best offices in every matter that it considered in order
to facilitate the parties' ability to come to an amicable agreement. From this
vantage point, it is clear that the ICAO has accomplished a great deal, either
by actively participating in the process of mediating a peaceful resolution
between the involved States or by actively deactivating all ongoing issues.
CONCLUSIONS
It seems that the Chicago
Convention's Article 84 dispute resolution system might still be used in the
event of a dispute involving environmental preservation and sustainable
development, despite all the barriers. As seen, it would appear that a dispute
involving a significant number of States would differ somewhat from instances
that were more regional or bilateral in character in the past. However,
conciliation and mediation will take precedence in a highly political
disagreement like the EU-ETS, therefore this conflict resolution process is
still applicable and suitable. There are significant procedural obstacles. The
ICAO Council members' readiness to basing their judgement on sustainable
development principles is also unclear. Although the Chicago Convention does
not mandate this outcome, it also does not exclude the use of more stringent
environmental protection rules.
Article Information
SETTLEMENT OF DISPUTES AT ICAO AND SUSTAINABLE DEVELOPMENT BY SHREEGOWRI K L
Authors: SHREEGOWRI K L
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/16
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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