Disputes Resolution under the International Civil Aviation Organization
Sept 23, 2020
By: William Cattan, Partner
Zarak Khan, Associate
Zoya Khan, Paralegal
The International Civil Aviation Organisation (“ICAO”) is a specialised UN agency that was established pursuant to the Convention on International Civil Aviation (“Chicago Convention”) with the simple aim to ‘create and preserve friendship and understanding among the nations and peoples of the world’.
The ICAO was established to be a permanent body comprised of 193 member states. These member states work collaboratively to, (i) decide on international civil aviation Standards and Recommended Policies (SARPs), (ii) coordinate global plans for safety and air navigation, (iii) monitor and report on the air transport sector’s performance, and (iv) carry out audits on member states’ civil aviation practices in an effort to maintain a safe, secure, environmentally responsible and economically viable global civil aviation sector. Further, the Council of the ICAO (“Council”) is elected by the UN Assembly every 3 years and consists of 36 members elected in 3 groups. The Council adopts standards and recommended practices concerning air navigation, infrastructure, flight inspection, prevention of unlawful interference, and it facilitates of border-crossing procedures for international civil aviation.
At both an international and local level, member states have mechanisms that regulate every aspect of their aviation industry, with many of these laws and regulations being guided by ICAO’s SARPs and principles. The SARPs have assisted in the safe flying of 100,000 daily flights and ensure that civil aviation practices comply with global standards. The aviation industry contributes greatly to the global economy. It can also generate a large number of disputes and disagreements.
Aviation disputes can be divided into two categories; (i) non-commercial disputes and (ii) commercial disputes. The ICAO predominantly hears commercial disputes and usually reserves non-commercial disputes to be heard at a local level. Article 84 to 88 of the Chicago Convention sets out the ICAO’s dispute settlement provisions. Article 84 states, “If any disagreement between two or more contracting States relating to the interpretation or application of this Convention 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.”
Before disputes are brought before the ICAO, the Chicago Convention strongly encourages disputes to be resolved peacefully and amicably. The Chicago Convention is supplemented by the Rules of Procedure for the Settlement of Differences. Under these Rules, the Council functions as a judicial body and importance is given to mediation and conciliation either before or during the proceedings. Article 14 of the Rules states that any member state submitting a dispute before the Council for settlement shall demonstrate that negotiations to settle the dispute peacefully have taken place but were unsuccessful. The Council has the power to assign individuals to mediate between the disputing parties, illustrating that the Council’s main role is to assist the parties to reach an agreement rather than to adjudicate.
The first dispute submitted to the Council for judgment was a complaint made by India against Pakistan in April 1952. India alleged breach of the Chicago Convention and the bilateral transit agreement by Pakistan’s refusal to permit Indian aircraft to fly through Pakistani airspace to and from Afghanistan. In 1952, no formal dispute procedural rules had been promulgated, so, the Council appointed a working group of three Council representatives to act as mediators. The representatives suggested the disputing parties “enter into further direct negotiations as soon as possible”. By June 1953, the parties had reached an amicable resolution with very minimal intervention from the Council.
As of 2019, the ICAO Council had only heard five disputes with an additional two submissions waiting to be heard. To date, the Council has not issued a decision on the merits of a case. It seems that on every occasion, mediation as well as the recommendations of the President of the Council have resolved the dispute. Furthermore, the Chicago Convention has produced several multilateral agreements and very few of those seem to employ the dispute settlement language contained in the Convention. Newer agreements have abandoned using the ICAO as a forum for dispute-resolution and most call for dispute resolution via arbitration whilst giving some authority to the President of the ICAO Council to assist in designating arbitrators.