51吃瓜网

As delegates from 193 Member States, along with invited non-Contracting States and international organizations, prepare to convene in Montreal for the 42^nd Assembly of the International Civil Aviation Organization (ICAO), the doors of 999 Robert-Bourassa Boulevard remain closed to Kosovo and Taiwan. Their absence, arguably, not only weakens ICAO鈥檚 mission of safe and sustainable skies but also places political considerations above the industry鈥檚 paramount value of safety. Academics have warned that blocking their participation in ICAO鈥檚 rule-making process poses a risk to aviation safety and security.[[1]] Believing that international law should resolve this question, this commentary proposes a legal pathway for non-UN members to express their consent to be bound by (Chicago Convention) and thereby secure ICAO membership.

1. The Chicago Convention鈥檚 Barrier to Non-UN States

To become a member of ICAO, a State must express its consent to be bound to the Chicago Convention. The Chicago Convention provides three possible ways for a State to do so: (1) sign and ratify the Convention (Article 91(a)); (2) adhere to the Convention (Article 92(a)); and (3) be admitted to the Convention (Article 93). The ratification of the Chicago Convention has been done only by the signatory States, which some interpreted to be the States that had delegates at the Chicago Conference in 1944.[[2]] Under this interpretation, if a State that was not present at the Chicago Conference wishes to become a member of ICAO, it may do so either through adherence or through admission.

To adhere to the Convention, pursuant to Article 92(a), a State must either be a member of the United Nations, be associated with a member thereof, or have remained neutral during the Second World War. When the Convention was drafted in 1944, the term 鈥淯nited Nations鈥� referred to the Allied Forces, rather than the international organization established in 1945 to secure world peace, which is also known today as the United Nations (UN).[[3]] However, the subsequent practice has consistently been that a UN Member State鈥檚 notification of adherence to the Convention satisfies the requirements of Article 92(a). Kosovo and Taiwan are not UN Member States, and thus, adherence to the Convention to become ICAO members is not possible for them.

Following this generally accepted view, the only remaining provision for non-UN Member States to join ICAO appears to be Article 93, namely by being admitted to participate in ICAO. However, Article 93 imposes a particularly stringent standard for admission by requiring a four-fifths majority vote of the ICAO Assembly, as this option was originally intended to apply to enemy States of the Allied Forces.[[4]] Moreover, pursuant to , the UN General Assembly may recommend the rejection of a State鈥檚 Article 93 application. ICAO must accept any such recommendation. For Kosovo and Taiwan, admission remains unattainable for now, as the number of States recognizing them falls short of the four-fifths majority of ICAO鈥檚 193 members. In Taiwan鈥檚 case, s statehood. Pursuing this path only leads back to a political deadlock.

2. Knocking Through Article 91(a): An Alternative Pathway to ICAO

Article 91(a) of the Convention provides a potential legal pathway to open the blocked doors. It reads:

This Convention shall be subject to ratification by the signatory States. The instruments of ratification shall be deposited in the archives of the Government of the United States of America, which shall give notice of the date of the deposit to each of the signatory and adhering States.

Ratification of the Convention is, without doubt, reserved for signatory States. However, the Convention does not specify which States qualify as signatories. Moreover, it remains open for signature in Washington, D.C., without any provision establishing a closing date. For instance, Colombia participated in the Chicago Conference but only signed and ratified the Convention on 31 October 1947鈥搈ore than half a year after it had already entered into force.听Based on the above, Thomas Buergenthal has observed that, 鈥淸i]t is therefore possible that any [S]tate which is not subject to [Article 93] could join ICAO either by depositing an instrument of adherence, if it has not previously signed the Convention, or by signing it and then depositing an instrument of ratification.鈥漑[5]] Accordingly, a non-UN member may sign and ratify the Convention and thereby attain ICAO membership without being subjected to the uphill admission process originally designed for the enemy States of the Allied Forces. For Kosovo and Taiwan, the question becomes whether they satisfy the criteria of statehood necessary to pursue this route.

3. Between Statehood and Depositary Duties

Following the above interpretation, the remaining issue for Kosovo or Taiwan in pursuing the path under Article 91(a) will be the US鈥� acceptance of their signatures and instruments of ratification. This issue can be further divided into two levels: the statehood of Kosovo and Taiwan, and the obligations of a depositary State.

1. Kosovo

Although Kosovo鈥檚 statehood remains contested by some States, its legality as a State is beyond doubt. In its , the International Court of Justice affirmed that 鈥済eneral international law contains no applicable prohibition of declarations of independence.鈥� It concluded that Kosovo鈥檚 unilateral declaration did not violate international law. Kosovo meets all the criteria for statehood and has declared itself a State. Moreover, it , including the US. Thus, for purposes of Article 91(a), Kosovo should be regarded as possessing the requisite statehood to sign and ratify the Chicago Convention and thereby qualify for ICAO membership.

2. Taiwan

The statehood of Taiwan presents a far more complex issue. Following the , under which the Qing Empire ceded Formosa (Taiwan) and the Pescadores Islands (Penghu Islands) to Japan, Taiwan became a Japanese colony for half a century. After Japan鈥檚 defeat in the Second World War, it renounced all right, title, and claim to Formosa and the Pescadores in . However, nowhere in this treaty did Japan cede sovereignty over Taiwan to either the People鈥檚 Republic of China or the Republic of China, whose government fled to and has exercised effective control over the said islands since 1949.

Many Taiwanese international law scholars argue that Taiwan has exercised its right to self-determination through the constitutional reforms initiated in the 1990s and through multiple direct presidential elections held by an electorate composed solely of the Taiwanese people, thereby establishing itself as an independent State (see e.g. and for summaries of the debates). This is also . By contrast, James Crawford, an authoritative figure in the study of statehood, contends that, despite Taiwan meeting nearly all the criteria of statehood, it does not qualify as a State because Taiwan has never formally declared itself an independent State distinct from China.[[6]]

One could argue that Taiwan is not a State and, therefore, cannot sign and ratify the Chicago Convention, as the Convention is reserved for sovereign States. However, in 1986, the Cook Islands notified the US government of its adherence to the Chicago Convention, before any State had recognized it as a sovereign State, and the US accepted this notification, decades before . Thus, as this precedent demonstrates, recognition as a sovereign State is not a prerequisite to ratifying the Chicago Convention and to join ICAO.

Despite that only 12 States currently maintain diplomatic relations with the Republic of China (Taiwan), its capacity to consent to be bound by treaties and to join intergovernmental organizations is recognized. For instance, Taiwan joined the World Trade Organization as a 鈥�,鈥� and has become a member of multiple intergovernmental Regional Fisheries Management Organizations as a 鈥�.鈥� Taiwan is likewise an international aviation entity: the Taipei Flight Information Region, managed by the Taiwan Civil Aviation Authority, ; the independently investigates aviation accidents and incidents occurred on Taiwanese territory in accordance with Annex 13 to the Chicago Convention. Furthermore, Taiwan has concluded . These examples of Taiwan鈥檚 active role in international civil aviation make clear that it is capable of contributing even more if allowed to join ICAO.

3. The obligations of a depositary State

The final issue is whether the US, as the depositary State, should accept Kosovo鈥檚 or Taiwan鈥檚 signature and deposit of the instrument of ratification of the Chicago Convention. The duties of a depositary State are governed by the law of treaties, in particular Articles 76(2) and 77(2) of the (VCLT). It should be noted that the VCLT, which entered into force on the 27th of January 1980, does not apply retroactively to the 1944 Chicago Convention; however, Article 76(2) of the VCLT, which is relevant to the following discussion, reflect customary rule,[[7]] and thus such rule applies to the present question of the US鈥檚 duties as depositary of the Chicago Convention.

Pursuant to Article 76(2) of the VCLT, the depositary 鈥渋s under an obligation to act impartially in its performance.鈥� The VCLT makes a clear distinction between a State acting as a depositary and as a party to the treaty. Since the depositary鈥檚 role is limited to the custody and administration of the treaty, a State in that capacity must not impose its political views. For example, on 21 June 1989, Palestine transmitted to Switzerland a communication regarding its participation in the four 1949 Geneva Conventions and their 1977 Additional Protocols. In accordance with the VCLT, Switzerland issued a to the contracting parties regarding Palestine鈥檚 communication. Still, it noted that, due to the controversy surrounding Palestine鈥檚 statehood at the time, it was not in a position, as depositary of these treaties, to determine whether the communication qualified as an instrument of accession. It should be kept in mind that 1989 was long before Palestine was recognized as a non-member observer State by the UN General Assembly.

4. Answering the Knock

Kosovo鈥檚 unilateral declaration of independence has been deemed lawful by the International Court of Justice, and with its statehood now widely recognized, opposing its signature and ratification of the Chicago Convention on political grounds would violate the depositary鈥檚 duty of impartiality; thus, if Kosovo ratifies, the US must accept and notify all contracting States so that Kosovo may enter ICAO.

Taiwan鈥檚 case is more complex due to its disputed status and limited recognition (notwithstanding the precedent of the Cook Islands), which makes immediate acceptance difficult. Nevertheless, its active role in international aviation demonstrates its capacity to contribute. When the day comes that Taiwan declares statehood and seeks to join under Article 91(a), the US, as depositary, should likewise answer its knock.

CHENG Chao-Ting, LLM graduate from the Institute of Air and Space Law, 51吃瓜网.

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In keeping with 51吃瓜网鈥檚 commitment to academic freedom, the Institute of Air and Space Law supports the free expression of ideas in its publications. The views expressed in this commentary are solely those of the author(s) and do not reflect the official positions or views of the Institute of Air and Space Law, the Faculty of Law, or 51吃瓜网. Furthermore, authors represent only themselves; they do not represent their countries of nationality nor any organizations with which they may be affiliated.