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The second dimension to the Resolution is that it the function of the Council in this case, to use the words of operative clause 6 of Resolution A36-2 to “apply and review... the procedure to inform Contracting States within the scope of Article 54(j) of the Chicago Convention, in the case of a State having signi.cant shortcomings with respect to ICAO safety related SARPs in order for other Con-tracting States to take action in an adequate and timely manner”. Surprisingly the Council is asked by the Assembly to restrict itself to determining the adherence to SARPs and report its .ndings thereof, which is already a function handed down in the Convention to the Council in Article 38.658
Again, it is not clear as to why the Assembly refrained from applying the rest of Article 54(j) to its Resolution, which makes it incumbent upon the Council to report the failure to carry out recommen-dations or determinations of the Council. This application would have served the purpose of the Assembly better than the mere restriction to the SARPs in the Annexes.
656Resolution A35-6, Operative Clause 7.
657Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944 (ICAO Doc 7300/9, Ninth Edition, 2006). 658Article 38 provides: inter alia that any Contracting State can .le a difference to a standard and
notify the Council which in turn is required to make immediate noti.cation 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.
The third dimension is that the Council, under the Convention, has only func-tions (which are in essence duties) and no powers.659
On the other hand the Assembly has powers and duties accorded to it in the Chicago Convention,660
one of which is to delegate to the Council the powers and authority necessary or desirable for the discharge of the duties of the Organization and revoke or modify the delegations of authority at any time.661
However, in this instance there is no indication that the Assembly exercised its powers to delegate its authority or power to the Council to apply and review the procedure in Article 54(j). If this had been the case, the Council would have had the same right and the authority of the Assembly to take appropriate action as deemed necessary in the manner in which the information derived from safety and security audits would be disseminated and reported to other States.
A power is the capacity to direct the decisions and actions of others. A function on the other hand is to perform, execute or administer.662
A power is also de.ned as an ability on the part of a person to produce a change in a given legal relation by doing or not doing a certain act.663
In this context the Council only has a duty or function to report to States shortcomings of other States detected during the course of safety and security audits with regard to adherence by the ICAO member States of SARPs. It is therefore incontrovertible that Assembly Resolution A36-2 merely hands over to the Council the function to report an infraction of the Chicago Convention as well as shortcomings with regard to SARPs and recommendations and determinations of the Council in that regard.
The Chicago Convention bestows neither the ability nor the power on the Council to investigate and determine on its own initiative whether there has been an infraction of the Convention. There is also no speci.c provision which entitles the Council to notify the State concerned that an infraction has taken place. However, Article 54(n) provides that the Council can consider any matter relating to the Convention which any Contracting State refers to it, giving the Council the capacity to make its own determination and recommendations pertaining to a matter referred to it. It is also noteworthy that both Article 15 of the Convention, which allows the Council to report and make recommendations resulting from a review by the Council of charges imposed for the airports and other facilities, and Article 69, which gives the Council competency to make recommendations to member States for the improvement of air navigation facilities, are two instances of speci.c provision being made within the Convention where the Council can make recom-mendations for the consideration of ICAO member States.
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Aviation Security Law 航空安全法(199)
