NOTES
REGULATORY PROCEDURES OF ICAO
AS A MODEL FOR IMCO
Jochen Erler*
One of the most interesting features of modern international law is
the regulatory activity of inter-governmental organizations.’ The
success of these organizations, particularly of the specialized agencies
of the United Nations, has revealed that such a functional approach
in international law will serve the family of nations best. However, as
Schwarzenberger rightly points out :
“The limitations of the powers of these institutions appear more significant
than the deceptively wide scope of their jurisdiction. Institutions of this
type offer improved techniques of international co-operation. Even in rela-
tion to members, these activities remain largely optional and as yet hardly
indicate any general movement towards international government on a
world scale.” 2
The procedures of the International Civil Aviation Organization
(ICAO) concerning promulgation of international regulations consti-
tute an excellent example of improved techniques based on optional
acceptance by States. The regulatory procedures of ICAO have proven
so successful that they will probably serve as a model for a “Conven-
tion on Facilitation of International Maritime Traffic” which is being
prepared by the Inter-governmental Maritime Consultative Organiza-
tion (IMCO) for adoption in the spring of 1965.
The Regulatory Procedures of ICAO
The Chicago Conference on International Civil Aviation of 1944
followed the pattern of the Paris Convention 3 when it inserted in the
Chicago Convention provisions for the establishment of a permanent
* Rechtsreferendar, University of Heidelberg; LLM., McGill University.
‘The Yearbook of International Organizations
(1962/63) enumerates 147
inter-governmental organizations.
2 Schwarzenberger, “Reflections on the Law of International Institutions”, 13
Curr. Leg. Probl. 283 (1960).
3 International Convention relating to the Regulation of Aerial Navigation,
Paris, Oct. 13, 1919; in Hudson, 1 Interational Legislation 359 (1931).
No. 3]
NOTES
international organization. 4 In recognition of the successful work of
the International Commission for Air Navigation (ICAN), 5 the Chi-
cago Conference also conferred certain regulatory powers on the
newly established organization. The Council and its subordinate
bodies, the Air Navigation Commission, the Air Transport Committee,
the Committee on Joint Support of Air Navigation Services and the
Finance Committee, provide the continuing direction of the work of
the organization. One of the major duties of the Council is to adopt
“international standards” and “recommended practices” 6 and to
incorporate these as Annexes to the Convention. 7
In comparing the legal status of the Chicago Annexes with that
of the Paris Annexes, one notes a remarkable departure from the
Paris model. The Paris Convention provided that the technical regu-
lations contained in the Annexes had a binding effect, obliging the
members of ICAN to implement them. By contrast, the regulations
made under the Chicago Convention have no such binding force.” A
review of certain features of the Chicago Convention will clearly
indicate the difference.
First one should note that it is within the discretion of each
member State to implement the regulations of ICAO only “to the
greatest possible extent” (Art. 12), or “so far as its laws permit”
(Art. 26). Other escape clauses require that the regulations be imple-
mented only in so far as the States “may find it practicable”.9 Second-
ly, it will be observed that according to Article 90 of the Chicago
4 Convention on International Civil Aviation, Chicago, Dec. 7, 1944, Art. 43;
in Peaslee, 2 International Governmental Organizations 989 (2nd ed., 1961).
5 Usually known under its French name “Commission Internationale de la
Navigation Arienne” (CINA). This Commission was established by the Paris
Convention.
6With regard to Annex 9 (Facilitation),
the Council of ICAO defined
“standards” and “recommended practices” as follows: “Standards : Any speci-
fication, the uniform observance of which has been recognized as practicable
and as necessary to facilitate and improve some aspect of international air
navigation, which has been adopted by the Council pursuant to Article 54(1)
of the Convention, and in respect of which non-compliance must be notified by
States to the Council in accordance with Article 38. Recommended Practice: Any
specification, the observance of which has been recognized as generally practi-
able and as highly desirable to facilitate and improve “some aspect of inter-
national air navigation, which has been adopted by the Council pursuant to
Article 54(1) of the Convention, and to which Contracting States will endeavour
to conform in accordance with the Convention.” See Foreword to Annex 9, 4th
ed (1960). Italics added.
7 Articles 37 and 54(1) of the Chicago Convention.
8 The only exception being the legislative function with respect to the Rules
of Flight over the High Seas (Art. 12; Annex 2).
9 The identical or comparable phrase appears in Articles 22, 23, 25, 28 and 37.
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McGILL LAW JOURNAL
[Vol. 10
Convention the majority of ICAO’s members can prevent a regula-
tion from coming into force :
“… Any such Annex or any amendment of an Annex shall become effective
within three months after its submission to the contracting States or at
the end of such longer period of time as the Council may prescribe, unless
in the meantime a majority of the contracting States register their dis-
approval with the Council…”
This change from international legislation under ICAN-to quasi-
legislation under ICAO 10 is due to the fundamental objective of the
Chicago Convention, the establishment of a uniform system for air
navigation with a universal adherence. To achieve this universality,
the drafters, of course, had to take into account the policy of the
United States which during World II had become the greatest air
power. Although a signatory to the Paris Convention, the United
States for political reasons did not join ICAN 11 and in 1928 initiated
a separate regional treaty, the Habana Convention.12 The reluctance
of the United States to confer legislative power on an international
organization led at the Chicago Conference to the creation of a new
procedure for the adoption of international regulations. According to
the Chicago Convention, member States are permitted to depart from
ICAO’s regulations. The only obligation which the Chicago Conven-
tion explicitly imposes on the members of ICAO in this respect is
the duty of each State to notify ICAO of any differences that exist
between its national regulations and the international standards
contained in the Annexes.'” In the words of Article 38 of the Con-
vention :
“Any State which finds it impracticable to comply in all respects with
any such international standard or procedure, or to bring its own regula-
tions or practices into full accord with any international standard or pro-
cedure after amendment of the latter, or which deems it necessary to adopt
regulations or practices differing in any particular respect from those
established by an international standard, shall give immediate notification
to the International Civil Aviation Organization of the differences between
its own practice and that established by the international standard.
10 The “legislative principle” allows international organizations
to act as
international legislatures, whereas the “consent principle” permits only quasi-
legislation. See Bowett, The Law of International Institutions 6 (1963).
11 For a variety of reasons, Brazil, China, Columbia, Germany, Hungary,
Turkey and the U.S.S.R. similarly refused to join ICAN. However, the Paris
Convention embraced 22 European States with their colonies, 4 States from
Latin America, 3 States from Asia, Canada, the Union of South Africa, Australia
and New Zealand.
12 Pan-American Convention on Commercial Air Navigation, Habana, Feb. 20,
1928; in Hudson, 4 International Legislation 2354 (1931).
13 This method of “opting-out” or “contracting-out”
regulatory procedures of the World Health Organization
World Meteorological Organization (Art. 8).
is also applied to the
(Art. 22) and the
No. 3]
NOTES
In the case of amendments to international standards, any State which does
not make the appropriate amendments to its own regulations or practices
shall give notice to the Council within sixty days of the adoption of the
amendment to the international standard, or indicate the action which it
proposes to take.
In any such case, the Council shall make immediate notification to all other
States of the difference which exists between one or more features of an
international standard and the corresponding national practice of that State.”
A careful reading of this Article reveals that this obligation to
notify is only with respect to “international standards”; no notifica-
tion is necessary in the case of “recommended practices”. 1 The draft-
ers of the Chicago Convention felt that important regulations, such
as those dealing with the safety of air navigation, 15 should be drawn
up as “standards”. Departures from such regulations could, however,
be expected to be minor. Nevertheless, the knowledge of even a minor
departure from an international “standard” may be of great im-
portance for the safety of air navigation. Therefore, in order to
enable ICAO to ensure safety, notification of all departures from
“standards” was made mandatory for the member States.
There is, however, in practice not much difference between
“standards” and “recommended practices”. Following the invitation
by ICAO to extend the notification of differences to “recommended
practices”, the member States of ICAO now also notify their depart-
ures from “recommended practices”.
IMCO’s Draft for a Convention on Facilitation
The functions of IMCO are, inter alia, “to provide machinery for
co-operation among Governments in the field of governmental regula-
tion and practices relating to technical matters of all kinds affecting
shipping engaged in international trade, and to encourage the general
adoption of the highest practical standards in matters concerning
maritime safety and efficiency of navigation”. 16 It is obvious that
such duties, especially those relating to improving the standards of
maritime safety, confer upon IMCO a degree of regulatory compe-
tence. But neither the IMCO Convention itself, nor the “Convention
on Safety of Life at Sea” of 1948 17 or the “Convention for the Preven-
14 Supra, note 6.
15 Annex 2 (Rules of the Air); all its regulations are “standards”.
16 Convention on the Inter-governmental Maritime Consultative Organization,
Geneva, March 6, 1948; having received 21 ratifications, it came into force
on March 17, 1958; see Peaslee, 1 International Governmental Organizations
904 (2nd. ed., 1961).
17 3 United States Treaties and Other International Agreements 3451 (1955).
McGILL LAW JOURNAL
[Vol. 10
tion of Pollution of the Sea by Oil” of 1954,’8 contain any simplified
amending procedure comparable to that of ICAO. 19 This omission in
the relevant maritime conventions may be explained by the fact that
the annexes to these conventions contain material of a relatively
static nature which does not require continuous amendments as is the
case with most of the Annexes to the Chicago Convention.
At present, the traditional procedures for the amendment of
multilateral treaties is applied to the amendment of the maritime
annexes, in consequence of which, full-scale conferences must be con-
vened. Such conferences, i.e. meetings of the Assembly of IMCO,
took place in 1960 and 1962; in 1960 to bring up-to-date the standards
of the Safety of Life at Sea Convention; and in 1962 to amend the
Prevention of Pollution of the Sea by Oil Convention. However, the
forthcoming “Convention on Facilitation of International Maritime
Traffic” is expected to replace these traditional amending procedures
by the same flexible procedure as applied successfully by ICAO. 20
The draft of this Convention, now under consideration by an Expert
Group in the Secretariat of IMCO, resembles, in regard to technical
provisions, the pattern of the Chicago Convention. While the draft
Convention consists of a small number of articles setting up the
objectives of the Convention, all the technical regulations, such as
“standards” and “recommended practices”, 1 are to be included in a
comparatively extensive Annex which will be subject to an uncompli-
cated amending procedure.
The details of this procedure have not yet been elaborated. There
are, however, the following principles which the Expert Group agreed
upon:
1. “The provisions of the Annex are of a nature that calls for a more
flexible amendment procedure than is usual in respect of the articles of
a Convention.
18 Final Act of Conference and Text of the International Convention for the
Prevention of Pollution of the Sea by Oil (Cmd. 9197, 1954).
19 For example, the recommendations for amendments to the Safety Regulations
are not only subject to the approval of the Council, but they also require adop-
tion by the Assembly of IMCO (Art. 30 of the IMCO Convention).
20 See IMCO Doe. FAL/EG. 11/7 (Expert Group on Facilitation of Travel
and Transport, 2nd session, agenda item 7, “Report of the Group of Experts”).
21 The draft Convention’s definitions of “standards” and “recommended prac-
tices” closely follow those of ICAO. Art. 5 of the draft Convention prescribes
that: “For the purpose of the present Convention, a) “standards” are those
provisions whose uniform application by Contracting States is deemed to be
necessary and practicable in order to facilitate international maritime traffic;
b) “recommended practices” are other provisions whose application by Con-
tracting States is regarded as desirable in order to facilitate international
maritime traffic”.
No. 3]
NOTES
2. Because of the technical nature of the standards and recommended
practices, any amendments should go through a body of experts set up
by the Organization. Whatever its title, this body would constitute a piece
of machinery through which all amendments would pass.
3. Once such a body had, in one way or another, been set up within the
it would be for the
Organization, and had recommended amendments,
Assembly or Council to take the final decisions as to whether such amend-
ments should be communicated to the Contracting States with a view to
their acceptance by them.
4. To be effective, the proposed body of experts would need to have suf-
ficiently wide powers, and to meet at least every two years…-22
These principles reveal some similarity with the procedure of
ICAO in that the body of experts would have to submit its recom-
mendations for the final decision to one of the competent organs of
IMCO, i.e. the Council or the Assembly. Furthermore, considering the
experience of ICAO’s Facilitation Division, which is in charge of the
preparatory work for the amendment of Annex 9 (Facilitation) of
the Chicago Convention, the two-year interval for the meetings of
IMCO’s body of experts seems quite reasonable. 23
An interesting feature of the IMCO draft Convention is the fact
that the contracting parties shall be under the obligation “not to
establish any regulations and formalities which are less favourable
than the standards”. As a consequence, the “standards” of IMCO will
have a stronger legal status than ICAO’s “standards”. On the other
hand, since the “recommended practices” of IMCO are to be imple-
mented at the discretion of the member States, their legal effect will
be identical with that of the “recommended practices” of ICAO.24
It is significant that the IMCO draft Convention does not follow
the complicated wording of Article 38 of the Chicago Convention, but
follows rather the practice of ICAO. Thus the parties to the future
convention shall be obligated to give notification not only of depart-
ures from “standards”, but also of departures from “recommended
practices”. Article 6 (a) of the draft provides accordingly:
“Any Contracting State which finds it impracticable to comply with any
of the standards or recommended practices as set out in the Annex to
this Convention shall notify to the Inter-Governmental Maritime Consultative
Organization, hereinafter referred to as “the Organization”, any differences
between such standards or recommended practices and its own requirements
with the reasons therefor within two months of the entry into force of the
Convention in respect of that Contracting State.”
22 Two other principles, not of particular relevance to this survey, have been
omitted.
23 The Facilitation Division of ICAO held its sessions in 1946, 1948, 1951,
1955, 1959 and 1963.
24 Art. 4 of the draft Convention.
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In regard to the publication of such departures, IMCO shall inform
its members only of differences concerning the “standards”, whereas
the notification of departures from “recommended practices” shall
be done only upon request.2 5
One can say, in summary, that IMCO’s draft Convention consti-
tutes a noteworthy piece of international law-making. The interna-
tional regulations which will be laid down in the Annex to the future
Convention are expected to bring uniformity and simplification of
domestic regulations, in that they will eliminate some documentary
requirements, standardize and simplify the remaining forms, and
provide uniform facilities at international harbours. Such regulations
will be amended under a procedure which not only largely embodies
well-tested ICAO practices but also marks an improvement in compa-
rison with the relevant provisions of the Chicago Convention. It is
to be hoped that the principles incorporated in this draft will find
support at the diplomatic conference which will be convened in
spring 1965 for adoption of the new convention.
25 Art. 6 (b) of the draft Convention. Such distinction is in the author’s opinior
neither necessary nor desirable.
