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Published online by Cambridge University Press: 10 March 2017
1 Council Regulation No, 925/99, 1999 O.J. (L 120) 47.
2 The International Civil Aviation Organization (ICAO) was created pursuant to the Convention on International Civil Aviation, Dec. 7,1944, 61 Stat. 1180,15 UNTS 295 [hereinafter Chicago Convention], to promote the safe and orderly development of civil aviation. The ICAO is a specialized agency of the United Nations that sets international standards and guidelines necessary for the safety, security, efficiency, and regularity of international air transportation. It also provides a forum for cooperation in all fields of civil aviation among the 186 ICAO member states. Aircraft noise standards are found at Annex 16 to the Chicago Convention.
3 See Preliminary Objections Presented by the Member States of the European Union, Disagreement Arising Under the Convention on International Civil Aviation Done at Chicago on 7 December 1944 at 2, para. 7 [hereinafter EU Preliminary Objections] (on file at GWU), Decision of the ICAO Council on the Preliminary Objections in the Matter “United States and 15 European States (2000)’’ (Nov. 16, 2000) [hereinafter ICAO Council Decision] (on file at GWU).
4 The regulation imposes restrictions on a category of aircraft defined as those modified to meet ICAO noise standards. Expressly included in that category are aircraft fitted with “hushkits,” which are devices fitted to aircraft engines to make them quieter. The category also includes aircraft on which original engines are removed and replaced with new engines, but only if those new engines have a bypass ratio (a particular design standard) of less than 3.0. See Council Regulation No. 925/99, supra note 1, Art. 2. According to the United States, engines of U.S. manufacture that commonly are used for replacing aircraft engines have bypass ratios of less than 3.0, whereas the engines of European manufacturers that commonly are used for this purpose have, at a minimum, a 3.1 bypass ratio. See Memorial of the United States Under Article 84 of the Convention on International Civil Aviation at 6-7 (on file at GWU), ICAO Council Decision, supra note 3.
5 See Chicago Convention, supra note 2, Arts. 11, 15, 61 Stat, at 1183, 1184, 15 UNTS at 304, 306.
6 This dispute was only the second in the history of the ICAO that had been decided by the ICAO Council in its judicial capacity, the first being the dispute between India and Pakistan almost 30 years ago. See Appeal Relating to the jurisdiction of the ICAO Council (India v. Pak.), 1972ICJREP.46 (Aug. 18). A dispute of this type is brought under Article 84 of the Chicago Convention and Article 2 of the Rules for the Settlement of Differences, ICAO Doc. 7782/2 (2d ed. 1975). The ICAO Council is a body comprising representatives from 33 of the 186 contracting states to the Chicago Convention. Every three years the ICAO Assembly selects the states that are to be represented on the council. The rules for selecting members ensure adequate representation of the states “of chief importance in air transport,” of states that are significant providers of facilities for international civil air navigation, and of other states as necessary to insure that all of the major geographic areas of the world are represented. Chicago Convention, Art. 50. In accordance with Article 15 (5) of the Rules for Settlement of Differences, council members representing a party to a dispute brought under Article 84 do not have the right to vote in any decision in the case.
7 Under Article 27 of the Rules for the Settlement of Differences, supra note 6, member states involved in a dispute may not be represented by their representatives on the ICAO Council. Consequently, in this dispute the United States is represented by David S. Newman of the Office of the Legal Adviser, U.S. Department of State, while the EU member states are represented by Jean-Louis DeWost, who heads the European Commission’s Legal Service but is acting in his personal capacity.
8 ICAO Council Decision, supra note 3.
9 EU Preliminary Objections, supra note 3, at paras. 9-19.
10 Response of the United States of America to the Preliminary Objections Presented by the Member States of the European Union, Disagreement Arising Under the Convention on International Civil Aviation Done at Chicago on 7 December 1944 at 2-9 [hereinafter U.S. Response to Preliminary Objections] (on file at GWU), IGAO Council Decision, supra note 3.
11 Rules for the Settlement of Differences, supra note 6, Art. 2(g).
12 ICAO Council Decision, supra note 3.
13 EU Preliminary Objections, supra note 3, at paras. 20-28. Under the local remedies rule, “the State against which an international action is brought for injuries suffered by private individuals has the right to resist such an action if the persons alleged to have been injured have not first exhausted all the remedies available to them under the municipal law of that State.” Ambatielos Arbitration, 12 R.I.A.A. 83, 118-19 (1956).
14 U.S. Response to Preliminary Objections, supra note 10, at 9-17.
15 ICAO Council Decision, supra note 3.
16 The council’s reasoning on this point appears inconsistent with the decision of the International Court of Justice in Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ REP. 15, 42 (July 20), in which the Court found itself “unable to accept that an important principle of customary international law should be held to have been tacitly dispensed with.” The Court in that case had found that the local remedies rule should be considered in any dispute arising under an international agreement unless the agreement explicitly provides for its nonapplication.
17 EU Preliminary Objections, supra note 3, paras. 29-46.
18 U.S. Response to Preliminary Objections, supra note 10, at 17-22.
19 ICAO Council Decision, supra note 3.
20 “Any contracting State may, subject to Article 85, appeal from the decision of the Council to an ad hoc tribunal... or to the Permanent Court of International Justice.” Chicago Convention, supra note 2, Art. 84. Article 85 clarifies the ambiguity of Article 84 by noting that an ad hoc arbitral tribunal is relied upon where a party to a dispute has not accepted the Statute of the Permanent Court of International Justice and the parties to the dispute cannot agree on the choice of the arbitral tribunal. While the Convention is not clear on whether a party to a dispute under Article 84 has the right to appeal an ICAO Council decision on jurisdiction, the International Court of Justice has decided that such appeal is possible. Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pak.), 1972 ICJ REP. 46, 60 (Aug. 18).
