Do we need a new Chicago Convention? Don’t replace it, fix it!

  • January 17, 2018
  • Yolanda Kalogirou

It goes without saying that our society’s mentality nowadays revolves around throwing away anything and everything that no longer serves our purposes rather than altering or fixing it, in order for it to correspond to our current interests. This mentality is strongly evident in the discussions among eminent members of academia as well as several actors from the aviation industry on the usefulness – or, for the bolder ones, the abolition – of the Chicago Convention. But what is the Chicago Convention and how did it become the hot-potato issue in the global aviation scene?

The Chicago Convention was concluded in 1944 in an effort to contribute to “the development of international civil aviation in a safe and orderly manner,” as stated in its preamble. It came into effect in 1947. As years passed, as the fledgling aviation industry transformed into one of the most dominant industries globally, as new technologies emerged, many started questioning the Convention’s efficiency and even its raison d'ĂŞtre in this new world order. Despite the fact that it has previously been characterized as the “constitution” of air law, is this still the case, given the acute criticism it has received?

The Chicago Convention is seen by some as inadequate, and we cannot but admit that the majority of them are right. It has yet to deal with and/or regulate the reduction of aviation emissions, fair and liberalized competition within an environment of continuously globalized markets, or suborbital flights – despite the International Civil Aviation Organization’s working paper in 2015, in which it was admitted that they could potentially fall under said regime. What is more, the silence of the Chicago Convention on these and many other issues has led to a plethora of bilateral Air Services Agreements, which can have destructive consequences to the uniformity of the air law regime, leading to an inevitable fragmentation of its corpus.

Leaving aside the Chicago Convention’s disadvantages, let us not forget the beneficial role it played for the more than half-century since its adoption. Its success can easily be considered as self-evident given the number of ratifications it has received.

Even those who strongly support the idea that the Chicago Convention is outdated regarding specific issues cannot but recognize that adopting a new convention would be almost impossible, time-consuming and inconvenient, since it would potentially create contradictory provisions that would disrupt the existing balance.

Since neither abolishing the Convention, nor preserving it as is, are workable solutions, where do we stand?

A possible answer lies within the Convention itself. According to Article 94, any proposed amendment is subject to approval by a two-thirds vote of the Assembly and will then be in force only for the states that ratify it. This alone could cause an even more dangerous fragmentation than the one already produced as a collateral result of the bilateral ASAs, leading to further confusion. Fortunately, paragraph (b) of Article 94 provides for a “safety net” in just such a case: it specifies that "any State which has not ratified within a specified period after the amendment has come into force shall thereupon cease to be a member of the Organization and a party to the Convention,” rendering the amendment’s ratification almost obligatory, in order for states to avoid being marginalized.

To conclude, within the international legal system and under the doctrine of International Paretianism, the ratification and accession to conventions is the cornerstone of state sovereignty. In this context, states give up a part of their sovereignty to undertake obligations in exchange of benefits. Given the amendment procedure, it is up to the discretion of states to collectively decide whether the ambiguities and lacunae of the Chicago Convention are of such importance as to impede the realization of its mandate. In this case, states should manifest and implement such will, until their goal is definitively and ultimately achieved, namely, until the amendments proposed and ratified become a substantial component of the core of the “constitution” of air law.

Yolanda Kalogirou  is an LL.M. Candidate in Air and Space Law at McGill University

Indicative list of main sources

  1. Brian F. Havel & Gabriel S. Sanchez, “Do We Need a New Chicago Convention?” (2011) 11 Issues Aviation L. & Pol'y 7.
  2. Edward McWhinney, “International Law and the Freedom of the Air - The Chicago Convention and the Future,” (1969) 1 Rutgers-Cam L.J.
  3. Helen Hart Jones, “Amending the Chicago Convention and Its Technical Standards - Can Consent of All Member States Be Eliminated” (1949) 16 J. Air L. & Com.
  4. International Civil Aviation Organization, The History of ICAO and the Chicago Convention, online: https://www.icao.int/about-icao/History/Pages/default.aspx.
  5. John Cobb Cooper, “The Chicago Convention - After Twenty Years” (1965), 19 U. Miami L. Rev.

Paul Stephen Dempsey, Public International Air Law (Montreal: Institute and Centre for Research in Air & Space Law, McGill University, 2017).