The Role of the International Civil Aviation Organization on Deregulation, Discrimination and Dispute Resolution

Download or read book The Role of the International Civil Aviation Organization on Deregulation, Discrimination and Dispute Resolution written by Paul Stephen Dempsey and published by . This book was released on 2013 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: The ICAO is one of the largest specialized organizations of the United Nations. Like the United Nations, the ICAO is comprised of an Assembly of general membership and a quasi-executive Council of more limited membership. Because virtually all nations of the world are parties to the Chicago Convention, the Assembly has 150 member states. Like the United Nations, each member of the ICAO has an equal vote. Membership in the Council is based on three considerations: 1) nations "of chief importance in air transport"; 2) nations "which make the largest contribution to the provision of facilities for international civil air navigation"; and 3) other states whose membership on the Council will ensure some measure of geographic parity. Unlike the United Nations Security Council, none of the thirty-three members of ICAO Council enjoys a veto. The ICAO Council enjoys comprehensive legislative power. Thus, it holds authority to promulgate "International Standards and Recommended Practices" as Annexes to the Chicago Convention upon approval by two-thirds of the Council members. An Annex ordinarily becomes effective within three months, unless a majority of Assembly members officially object. Traditionally, ICAO has focused on technical and navigation issues rather than economic aspects of international aviation. With the emergence of United States initiated deregulation, however, a growing number of nations have utilized the multilateral forum of the organization as an area in which to register their disapproval with the disruptive effects of unilateral efforts of the United States to impose its will upon the international aviation community. Formal protests to United States unilateral initiatives, particularly in the fields of antitrust and ratemaking, have been adopted by ICAO on several occasions since the "open skies" regime began. Diplomatic resistance to the extraterritorial application of United States antitrust laws has been robust. In 1978, the CAB issued a Show Cause Order which proposed to eliminate lATA's antitrust immunity - a threat which received a thundering storm of protests from the world community, and was ultimately withdrawn. The extraterritorial reach of civil and criminal United States antitrust laws in the Laker bankruptcy case led to fierce opposition by the British government, causing a capitulation of the United States justice Department's Grandjury investigation. More recently, the threat of competition laws has proliferated. The Trade Practices Commission of Australia attempted to withdraw antitrust immunity from domestic and international airlines. The Commission of the European Economic Community has threatened to apply Articles 85 and 86 of the Rome Treaty to activities of international carriers The ICAO has grown increasingly active in this area. As "open skies" began in 1977, the ICAO convened what has been described as "the most important gathering since Chicago," a Special Air Transport Conference in Montreal which adopted Recommendation 11 advising that "unilateral action by governments which may have a negative effect on carriers' efforts toward reaching agreement should be avoided as far as possible." When the United States Civil Aeronautics Board issued its International Air Transport Association (IATA) Show Cause Order in 1978 threatening revocation of the antitrust shield for consensual ratemaking activities, the ICAO Council adopted a Resolution requesting Contracting States "to refrain from any unilateral action which would endanger multilateral fares and rate setting systems." The lATA system was supported at Montreal by more than 100 governments, leaving the United States almost isolated.