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659Although Jacob Schenkman, in his well documented and logically reasoned treatise on ICAO states that “The Council has been entrusted with duties, powers and functions...” he does not give a
single
example
of
such
a
power.
See
Capt.
Schenkman
(1955, p. 158).
660
Article 49 of the Convention. 661Article 49(h). 662Black (1990, p. 673). 663Black (1990, p. 1189).
B. The Role of the ICAO Council 273
Clearly, non compliance with SARPs and shortcomings or de.ciencies in secu-rity cannot be classi.ed as infractions of the Convention. An infraction is a violation and arguably applicable to the Chicago Convention itself and not to the Annexes which only contain SARPs that are not strictly legally binding so as to constitute a violation if not followed. Therefore, the Assembly, in A36-2 quite clearly meant the reportage of failure to carry out recommendations and determinations of the Council with regard to SARPs. This is clearly an administrative function and not a judicial function, since an administrative act is usually referred to as similar or related activities regarding the handling and processing of information.
Another important dimension to the Council’s role as per A36-2 in divulging security information is that ICAO has already entered into memoranda of under-standing with the States audited that audit reports will be con.dential and made available to the State audited and relevant ICAO staff on a need-to-know basis. These agreements also require that, concurrently with the preparation of the report, a non-con.dential audit activity report limited to the name of the audited State, the identity of airports visited during the audit, and the completion date of the audit will be developed for release to all Contracting States. Reports to the Council are required to be in a form that maintains the con.dentiality of the audit report in relation to the State concerned. Accordingly, ICAO has restricted itself for purposes of con.dentiality to giving only limited and non speci.c details of audits to its member States. This raises a legal issue as to ICAO’s right to contravene its agreement with member States in deference to an Assembly Resolution. This issue also seemingly goes to the root of ICAO’s empowerment by its member States and ICAO’s accreditation to such States.
International organizations can generally only work on the basis of legal powers that are attributed to them. Presumably, these powers emanate from the sovereign States that form the membership of such organizations.664
Therefore, the logical conclusion is that if international organizations were to act beyond the powers accorded to them, they would be presumed to act ultra vires.665
It should be noted that ICAO does not only derive implied authority from its Contracting States based on universality but it also has attribution from States to exercise certain powers. The doctrine of attribution of powers comes directly from the will of the founders, and in ICAO’s case, powers were attributed to ICAO when it was established as an international technical organization and a permanent civil aviation agency to administer the provisions of the Chicago Convention. In addition, ICAO could lay claims to what are now called “inherent powers” which give ICAO power to perform all acts that the Organization needs to perform to attain its aims not due to any speci.c source of organizational power but simply because ICAO inheres in organization hood. Therefore, as long as acts are not prohibited in ICAO’s constit-uent document (the Chicago Convention), they must be considered legally valid.666
664See de Witte (1998, pp. 277–304). 665Klabbers (2002, p. 60). 666Seyersted (1963, p. 28).
Over the past two decades the inherent powers doctrine has been attributed to the United Nations Organization and its specialized agencies on the basis that such organizations could be stulti.ed if they were to be bogged down in a quagmire of interpretation and judicial determination in the exercise of their duties. The advan-tages of the inherent powers doctrine are twofold. Firstly, inherent powers are functional and help the organization concerned to reach its aims without being tied by legal niceties. Secondly, it relieves the organization of legal controls that might otherwise effectively preclude that organization from achieving its aims and objectives. The ability to exercise its inherent powers has enabled ICAO to address issues on aviation insurance and establish an insurance mechanism; perform man-datory audits on States in the .elds of aviation safety and security; and establish a funding mechanism to .nance aviation safety projects, all of which are not provided for in the Chicago Convention but are not expressly prohibited.
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