Aviation Security Law 航空安全法(91)

曝光台 注意防骗 网曝天猫店富美金盛家居专营店坑蒙拐骗欺诈消费者

The second issue is, can ICAO be recognized as having legal capacity, .rstly in Canada, which is home to ICAO and secondly in any of ICAO’s member States. The Headquarters Agreement between ICAO and Canada,295 in Article 2, explicitly provides that ICAO shall possess juridical personality and shall have the legal capacities of a body corporate including the capacity to contract; to acquire and dispose of movable and immovable property; and to institute legal proceedings. With regard to the question as to whether ICAO can be sued in Canada, Article3of the Agreement provides that the Organization, its property and its assets,296 wher-ever located and by whomsoever held, shallenjoythe same immunity from suit and every form of judicial process as is enjoyed by foreign states. Canada’s recognition of ICAO having legal capacities of a body corporate is consistent with Article 104 of the UnitedNations Charter which provides that the United Nations shall enjoyin the territory of each of its member States such legal capacity as may be necessary for the exercise of its functions and the ful.lment of its purposes.297 The question which naturally arises from these provisions is “what effect does the Headquarters Agreement between ICAO and the Government of Canada have as a legally enforceable document before the local courts”? In the 1988 Applicability of the Obligation to Arbitrate Case,298 where the International Court of Justice had to consider whether United States anti-terrorism legislation necessitated the closure of the Palestine Liberation Organization’s observer mission to the UN in New York, the Court held that the United States was obligated to respect its obligation, contained in Article21 of the UN Headquarters Agreement with the United States, that the United States had to enter into arbitration in case of a dispute on the interpretation of the Agreement. The court laid particular emphasis on the fact that provisions of a treaty must prevail over the domestic law of a State Party to that treaty.299 Therefore, there is no room for doubt that ICAO is able to conduct
294Article 44(d).
295Headquarters Agreement Between the International Civil Aviation Organization and the Gov-ernment of Canada, ICAO Doc 9591.
296“Assets” include funds administered by ICAO in furtherance of its constitutional functions.
297By virtue of Article 57 of the United Nations Charter, which provides that the various

specialized agencies shall be brought into relationship with the United Nations, the acknowledged
status of the United Nations as per Article 104 can be applied to ICAO.
298ICJ Reports 1988, 12; 82 ILR 225.
299Id. 33–34.

B. Innovative Security Tools 119
business both in Canada and in the territories of any of its member States as a juridical person.
4. ICAO’s Immunities and Liabilities
At customary international law, the position of an international organization regarding immunity from suit and other judicial process is unclear300 and falls within applicable treaty provision, such as the United Nations Charter, Article 105 of which clearly stipulates that the United Nations Organization shall enjoy in the territoryof each of its members such privileges and immunities as are necessary for the ful.lment of its purposes. Immunities of the United Nations system are also addressed in the General Convention on the Privileges and Immunities of the United Nations of 1946, which sheds some light as to the rights and liabilities of the United Nations and its various entities.301 ICAO’s legal liability within Canada may well hinge on the recognition by the Canadian government that ICAO shall enjoy the same immunity from suit and everyform of judicial process as is enjoyed by foreign States. Should the matter of ICAO’s immunity be brought before a court within Canada, such court might well look into the true worth of the statement.
Immunity of foreign States in a local jurisdiction has undergone an interesting metamorphosis, from the recognition of personal sovereignty to acceptance of more abstract concepts of State sovereignty. The immunity accorded to ICAO by Canada would impute to the Organization the independence and equality of a State, which municipal courts would be reluctant to impugn or question unless with the consent of ICAO.302 The United States courts have held that some acts deserve exclusive and absolute immunity, such as internal administrative acts, diplomatic activity and the grant of public loans.303 In the1988 case International Tin Council v. Amalga-met Inc.,304 The plaintiff ITC averred that it was not obliged to go in for arbitration on the ground that it was an international organization and action under the litigation was performed by the plaintiff as an act of State. The court found this argument untenable as it could not .nd a “sovereign” character in the contract in
　
中国航空网 www.aero.cn
航空翻译 www.aviation.cn
本文链接地址：Aviation Security Law 航空安全法(91)