Aviation Security Law 航空安全法(201)

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With regard to the conferral of powers by States to ICAO, States have followed the classic approach of doing so through an international treaty. However, neither is there explicit mention of such a conferral on ICAO in the Chicago Convention nor is there any description of ICAO’s powers, except for an exposition of ICAO’s aims and objectives. The Council of ICAO is designated both mandatory and permissive “functions”, although the Council could impose certain measures when provisions of the Convention are not followed. Therefore States have not followed the usual style of conferral of powers in the case of ICAO, which, along the lines of the decision of the International Court of Justice in the 1996 WHO Advisory Opinion case667
was that the powers conferred on international organizations are normally the subject of express statement in their constituent instruments.668
This notwith-standing, it cannot be disputed that ICAO Contracting States have conferred certain powers on ICAO to perform its functions independently. For example, ICAO is a legal entity having the power to enter into legal agreements with legal entities including other international organizations with regard to the performance of its functions.
Conversely, an international organization must accept conferred powers on the basis of Article 34 of the Vienna Convention on the Law of Treaties which stipulates that a treaty does not create rights or obligations of a third State without its consent. This principle can be applied mutatis mutandis to an international organization such as ICAO. The conferral of powers on an international organiza-tion does not ipso facto curtail the powers of a State to act outside the purview of that organization unless a State has willingly limited its powers in that respect. This principle was recognized in the Lotus Case669
where the Provisional International Court of Justice held that a State can exercise powers on a unilateral basis even while the conferral to the Organization remains in force. The Court held that restrictions upon the independence of States cannot be presumed.670

667Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, 1996, p. 64.
668Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, 1996, p. 79.
669PCIJ Reports Series A, No. 10, p. 4.
670PCIJ Reports Series A, No. 10, p. 18.

B. The Role of the ICAO Council 275
ICAO’s conferred powers enable the Organization to adopt binding regulations by majority decision (which is usually unnecessary as most of ICAO policy is adopted through consensus). However, States could opt out of these policies or make reservations thereto, usually before such policy enters into force. This is because States have delegated power to ICAO to make decisions on the basis that they accept such decisions on the international plane. In such cases States could contract out and enter into binding agreements outside the purview of ICAO even on subjects on which ICAO has adopted policy. The only exception to this rule lies in the adoption of Standards in Annex 2 to the Chicago Convention on Rules of the Air, in particular navigation over the high seas and other over.ight areas where freedom of .ight prevails which all Contracting States are bound to follow in order to maintain global safety.
The 35th Session of the Assembly, when it addressed the issue of expanding the audits from a limited Annex basis to a comprehensive systems approach, instructed the Secretary General to make the .nal safety audit reports available to all Con-tracting States and also to provide access to all relevant information derived from the Audit Findings and Differences Database (AFDD) maintained by ICAO.671
Furthermore, in Resolution A36-2 (Uni.ed Strategy to Resolve Safety Related De.ciencies) the Assembly, in operative Clause 6 of the Resolution, directs the Council to apply and review, as necessary, the procedures 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 Contracting States to take action in an adequate and timely manner.
　
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