Academic journal article Law and Policy in International Business

Fifty Years after the Chicago Conference: A Proposal for Dispute Settlement under the Auspices of the International Civil Aviation Organization

Academic journal article Law and Policy in International Business

Fifty Years after the Chicago Conference: A Proposal for Dispute Settlement under the Auspices of the International Civil Aviation Organization

Article excerpt

Introduction

In the U.S legal system the term "alternative dispute resolution" most commonly refers to non-adjudicatory methods of dispute settlement. In the context of international civil aviation, however, non-adjudicatory methods of dispute resolution are the norm. Negotiation is by far the most common means of addressing international differences, while adjudication is perhaps the most severe alternative approach to resolving disputes - one that historically has been invoked sparingly.

This Note proposes an improved system for resolving international civil aviation disputes in which adjudication, while still to be undertaken with caution, will present a more viable option that is more likely to clarify the rights and obligations of the parties involved. This will be accomplished by integrating the latest dispute resolution mechanism of the General Agreement on Tariffs and Trade (GATT) into the International Civil Aviation Organization (ICAO).

Part I of this Note provides a basic overview of the course of international aviation relations over the last fifty years. Part II explains why the ICAO is the logical institution into which international aviation disputes should be channeled. Part III explores the weaknesses of prior GATT dispute resolution mechanisms and how the latest reforms to the GATT system have addressed these weaknesses, which presently plague the ICAO dispute resolution process. Part IV lays out a blueprint for the integration of the GATT system into the ICAO framework, explaining how the ICAO system will be strengthened in the process. Finally, Part V concludes with some thoughts on enforcement, sanctions, and a new role for the ICAO.

I. Losing Their Bearings: The Burgeoning Of Disputes In

Contemporary International Civil Aviation

While it is not the purpose of this Note to analyze the state of international aviation and the likely course of relations in this field, it would be impossible to propose a system of dispute resolution without discussing briefly the disputes which the system will be called upon to resolve and how those disputes have evolved.

A. The Chicago Conference and The Advent Of Bilateralism

The manner in which participants in the international civil aviation industry relate to one another, or fail to relate to one another, may be traced back fifty years to the International Civil Aviation Conference held in Chicago in November of 1944. Then, as now, the unpredictability of international relations convinced many that stability could be secured by systems fostering cooperation among States. Unfortunately, this ideal proved maddeningly elusive.

At the Chicago Conference, virtually all of the postwar civil aviation powers gathered(1) to craft a multilateral agreement governing international civil aviation, that would head off potential economic and technical problems while laying the foundation for the future growth and regulation of the industry.(2) The drafters' hopes of reaching agreement on both economic regulation (i.e., routes, rates, frequencies and capacity) and safety fell victim to economic and political rivalries, thus limiting the gathering's success to technical issues and the creation of the International Civil Aviation Organization (ICAO).(3) The principal spoilers, the United States and Great Britain, adhered to irreconcilably divergent philosophies regarding the framework under which international aviation should operate.

The United States, the major civil aviation power, promoted a free-market philosophy characterized by unrestricted operating rights on international routes for carriers of all nations.(4) Great Britain, fearing U.S. dominance in a freely competitive market, proposed the creation of an international regulatory body that would distribute routes and determine how many passengers could be carried by a carrier on a particular route; the frequency of flights along a route by a given carrier; and fares. …

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