In the aviation industry which is heavily regulated with regional, transnational, and national regulations which are all expected to be under the umbrella of the Chicago Convention, any application of “ordinary meaning” of text must be teleological and related to the object and purpose of the provisions of the treaty.
by Ruwantissa Abeyratne
The United Nations has recognized 7th December of each year as “International Civil Aviation Day” and this year, the International Civil Aviation Organization (ICAO) – which is the specialized United Nations agency on the subject of international civil aviation – has given this day the theme “Advancing Innovation for Global Aviation Development. This theme – which is laudable, given the modern world we live in – is, in and of itself both ambivalent and ambiguous in the use of the word “innovation”. From a hermeneutic point of view, the more progressive approach would be to interpret the word as referring both to scientific and technological innovation as well as creative and innovative thinking on reviewing the Chicago Convention of 1944 which was signed on 7 December 1944 and which entered into force in April 1947. It has been 75 years in application with very few amendments to it. Since it is after the Chicago Convention that International Civil Aviation Day is named, this day should be primarily looked at in the perspective of the effectiveness of the treaty in its service to the international aviation community.
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| Juan Santamaria International Airport, Alajuela, Costa Rica [ Photo: Josue Isai Ramos Figueroa/Unsplash] |
The Chicago Convention established ICAO, ascribing to the Organization its aims and objectives (not a “mandate” as often misquoted). Therefore, ICAO is guided by the principles of the treaty. Although there are no specific provisions in the Chicago Convention that inspire “innovation” there is much room in its overall philosophy to innovate through interpretation of the provisions to suit modern times.
As a treaty , the Chicago Convention is intriguing as well as unique in its terminology and presents many ambiguities which make it somewhat difficult to interpret, opening it to review. The Vienna Convention on the Law of Treaties (the principles of which apply to the Chicago Convention) in Article 31 (1) and (2) states that a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. In this context there are two issues with the Chicago Convention. One is its terminology which sways back and forth on its lack of precision. Words such as “States may” (discretionary) , “States recognize” and “undertake”, “deem” as well as “shall” (peremptory) and “ This Convention shall be applicable only to civil aircraft” (peremptory), “the contracting states recognize” (acknowledge?) do not provide States precise guidance as to what they are obligated to do or not under the Convention.
These various terms which are couched in ambiguity make it difficult to interpret the true intent of the drafters of the treaty from an originalist point of view. The only conclusion one can make is that the founding fathers of the Convention, realizing that air transport could evolve exponentially in the future, left room for interpretation as exigencies demanded. This ambivalence has blurred the clarity required in the Convention. Furthermore, these terms make it even more difficult to place them in the modern context in a meaningful way. One commentator addressed this difficulty by saying “the problem of treaty interpretation…is one of ascertaining the logic inherent in the treaty and pretending that this is what the parties desired. In so far as this logic can be discovered by reference to the terms of the treaty itself, it is impermissible to depart from those terms. In so far as it cannot, it is permissible”.
The problem with the Chicago Convention is that, given its variance in abstruse terminology, the Vienna Convention itself – the beacon that shines a light on treaty law – has added to the obfuscation in laying down general principles that a treaty must be interpreted in good faith in accordance with the “ordinary meaning” to be given to the terms of the treaty in their context and in the light of its object and purpose. “Ordinary” connotes a common, routine, or usual context of a normal order of things and events and it may not clearly provide interpretative guidance. The Chicago Convention and many of its Annexes which are technical in nature contain technical terminology and not ordinary words. In a hermeneutic sense the Chicago Convention and its unique and esoteric regime cannot always be interpreted in ordinary usage. In the aviation industry which is heavily regulated with regional, transnational, and national regulations which are all expected to be under the umbrella of the Chicago Convention, any application of “ordinary meaning” of text must be teleological and related to the object and purpose of the provisions of the treaty.
Another difficulty presented by the Chicago Convention is the lack of accessibility by many States to knowledge of their obligations under the Convention. In particular, States do not have a clear picture of their obligations in terms of ratification of amendments to the Chicago Convention. At the 41st Session of the ICAO Assembly which concluded on 7 October of 2022 The Republic of Korea pointed out “States do not have sufficient information about amendments made to international air law instruments. ICAO needs to continue to make the effort to ensure Contracting States can easily be aware of and understand the amendments. There is no clash between a ratifying Contracting State’s international air law instruments and those of a non-ratifying Contracting State, and therefore, both remain valid. There is coexistence among ratified international air law instruments that remain valid between ratifying Contracting States, non-ratified international air law instruments that remain valid between non-ratifying Contracting States, and nonratified international air law instruments that remain valid between ratifying and non-ratifying Contracting States. Thus, a harmonious international law order continues to remain in place”.
ICAO Assembly, in response adopted a Resolution which inter alia urged all Contracting States (to the Chicago Convention) which so far had not done so to ratify those amendments to the Chicago Convention which were not yet in force, while urging the Secretary General of ICAO to take all practical measures within ICAO’s means in cooperation with States to provide assistance, if requested, to States encountering difficulties in the process of ratification and implementation of the air law instruments, including the organization of and the participation in workshops or seminars to further the process of ratification of the international air law instruments.
Hopefully, International Civil Aviation Day in 2023 would be on the theme of the relevance of the Chicago Convention to international civil aviation in modern times.
Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.
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