CC Amendment

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Articles

Do We Need a New ChicagoConvention?

by Brian F. Havel* & Gabriel S. Sanchez**

Introduction

Do we need a new Chicago Convention?1 According to some ofinternational aviation’s lawyers, government officials, industryexecutives, and academics, the Convention – originally drafted in1944 and rarely amended since – has outlived its usefulness.2

This perception of the treaty’s alleged timeworn frailty variesfrom critic to critic, although a significant contingent of theseskeptics believes, perhaps as a matter of faith more than anythingelse, that the Chicago Convention blocks authentic globalizationof the international air transport market. The blame for the pre-sent regime of thousands of air services agreements (ASAs),3 mostof them freighted with market access and investment restrictions,

* Distinguished Research Professor of Law and Director, International Avia-tion Law Institute, DePaul University College of Law; 2011-12 Keeley VisitingFellow, University of Oxford, Wadham College.** Adjunct Professor of Law and Senior Research Fellow, International Avia-tion Law Institute, DePaul University College of Law.1 Convention on International Civil Aviation, opened for signature Dec. 7,

1944, 61 Stat. 1180, 15 U.N.T.S. 295 (entered into force Apr. 4, 1947)[hereinafter Chicago Convention].

2 See, e.g., CHICAGO COUNCIL ON GLOBAL AFFAIRS & INTERNATIONAL

AVIATION LAW INSTITUTE, SUSTAINABLE AVIATION POLICIES FOR

AMERICA AND THE WORLD: A SYNOPSIS OF THE PROCEEDINGS 15–16(2006) (recounting the “suggestion of convening another Chicago Conven-tion to address the remaining issues of liberalization in an aviation-spe-cific forum”).

3 For detailed analysis of international aviation’s trade regime, includingrecent proposals to further liberalize the sector, see Brian F. Havel &Gabriel S. Sanchez, The Emerging Lex Aviatica, 42 GEO. J. INT’L L. 639(2011).


8 Issues in Aviation Law and Policy [Vol. 11:1

is typically assigned to Chicago despite the fact the treaty hasvery little to say concerning international aviation’s commerciallandscape. Indeed, the shift from a regime of highly restrictiveASAs, which crested in the 1977 “Bermuda II” Agreement be-tween the United Kingdom (U.K.) and the United States (U.S.),4

to the substantially (though not fully) liberalized template of theU.S.-initiated “Open Skies” policy,5 occurred beyond the shadowof the Chicago Convention. As well, the establishment by theEuropean Union (EU) of a common air transport market amongits 27 Member States, including full intra-Union traffic and in-vestment rights, was unimpeded by the Convention.6 The Inter-national Civil Aviation Organization (ICAO), an official UnitedNations (U.N.) organ created by the Convention, continues topromote comprehensive air transport liberalization without ap-parent concern that an open market order for air services will runafoul of the treaty’s terms.7 To be sure, some still insist that anamended or revamped Chicago Convention could do more to pro-mote liberalization, such as abolishing the explicit right of Statesto reserve their domestic aviation markets for their national air-lines (“cabotage”) or compelling signatories to allow their airlinesto be owned and controlled by foreign nationals. Thesehallmarks of a truly free aviation trade environment remainflashpoints for most States’ aeropolitical relations. And there isno evidence that the world’s 194 States (190 of which are cur-rently party to the Convention) are willing to use multilateralismto pursue such a transformation in aviation’s trade order.

Beyond economic liberalization, there are other potential rea-sons why critics might call for a new Chicago Convention. Com-

4 Agreement Concerning Air Services [Bermuda II], U.S.-U.K., June22–July 23, 1977, 28 U.S.T. 5367 (no longer in force). See also Bin Cheng,The Role of Consultation in Bilateral International Air Services Agree-ments, as Exemplified by Bermuda I and Bermuda II, 19 COLUM. J.TRANSNAT’L L. 183 (1981); Harriet Oswalt Hill, Comment, Bermuda II:The British Revolution of 1976, 44 J. AIR L. & COM. 111 (1978).

5 Under this 1992 international aviation initiative, restrictions on routes,fares, and capacity have been specifically targeted for removal from allU.S. ASAs. See In the Matter of Defining “Open Skies,” Order 92-8-13,1992 DOT Av. LEXIS 568 (Dep’t of Transp. Aug. 5, 1992).

6 See generally MARTIN STANILAND, A EUROPE OF THE AIR? THE AIRLINE

INDUSTRY AND EUROPEAN INTEGRATION (2008).7 See Innovative ICAO Conference Facilitates Air Services Negotiations

Between States to Enhance Efficiency, ICAO J., 2009, at 21, availableat http://www.icao.int/ICAN2009/docs/ICAO_Journal_ICAN2008_Vol64Num01_p21.pdf.


2011] Do We Need a New Chicago Convention? 9

pared to the relatively sophisticated “automatic” disputesettlement machinery of the World Trade Organization (WTO),8

the Chicago Convention’s adjudicative provisions,9 which are as-signed to ICAO,10 appear flimsy.11 Further, the procedures foramending the Convention are cumbersome,12 which may accountfor why these procedures have so rarely been engaged. And de-spite pretensions to the contrary,13 ICAO does not possess thepower to promulgate new international aviation law. At best, theorganization can, through the tacit consent of the Chicago Con-vention’s State parties, update the Standards and RecommendedPractices (SARPs) contained in the treaty’s annexes.14 But thepenalties for failing to adhere to a newly promulgated SARP are,for all practical purposes, illusory.15 Strengthening the juridicaland legislative powers of ICAO no doubt has appeal to so-called“global legalists,” committed to a robust conception of an “inter-national rule of law” as a constraint on State behavior, but elidingsovereignty in this way has little appeal to many of the world’s

8 Dispute Settlement Understanding, Ann. 2 to the WTO Agreement, inFinal Act Embodying the Results of the Uruguay Round of MultilateralTrade Negotiations, Apr. 15, 1994, 33 I.L.M. 1226; see also generally War-ren F. Schwarz & Alan O. Sykes, The Economic Structure of Renegoti-ation and Dispute Resolution in the World Trade Organization, 31 J.LEGAL STUD. S179 (2002).

9 See Chicago Convention, supra note 1, art. 84. R10 See ICAO, Rules for the Settlement of Differences, ICAO Doc. No. 7782/2

(1975).11 See Gabriel S. Sanchez, The Impotence of the Chicago Convention’s Set-

tlement Provisions, 10 ISSUES AVIATION L. & POL’Y 27 (2010).12 To amend the treaty, two-thirds of the agreement’s State parties would

have to accept a proposed amendment in principle before submitting theamendment to their domestic ratification procedures. Only after two-thirds of those ratification processes prove successful will the amendmenttake effect and then only for those members which have ratified it. SeeChicago Convention, supra note 1, art. 94. In other words, up to a third of Rthe Convention’s State parties can reject an amendment indefinitely with-out incurring any consequences for doing so.

13 See PAUL STEPHEN DEMPSEY, PUBLIC INTERNATIONAL AIR LAW 51(2008) (claiming that ICAO has “quasi-legislative power”).

14 See Chicago Convention, supra note 1, art. 37. Any proposed SARP can Rbe rejected if a majority of the Chicago Convention’s contracting Statesobject within three months of the amendment’s promulgation. See id. art.90(a).

15 Any State which cannot or does not wish to comply with a new SARP isentitled to inform ICAO of that fact without risk of forfeiting any rightsconferred by the Convention. See id. art. 38.



most aeropolitically powerful nations.16 China and the U.S.,though embracing quite distinct notions of international law, areequally unenthusiastic about the kind of supranational institu-tion-making that motivates (for example) the EU.17 EnhancingICAO’s powers could jeopardize its longstanding legitimacy as aneutral forum for States to address challenges to the “safe andorderly” development of international aviation,18 including nego-tiating treaties of common interest that have addressed, inter alia,aircraft hijacking19 and airline liability rules.20

While skeptical of the strong claim that the Chicago Conven-tion is outmoded and should be dethroned, this Article advancesthe more modest suggestion that the political and normative costsof negotiating a new Chicago Convention outweigh the purportedbenefits. That is to say, the Article does not defend any particularaspects of the Convention as “optimal,” nor does it assert that theratio of “good-to-bad” in the treaty justifies its retention. Rather,it is suggested that the Convention, as it currently stands, is anefficient facilitator of global aerotechnical coordination and coop-eration among nearly all of the world’s States. A replacementConvention, or more accurately a competing Convention (not allof the parties to the present Convention would migrate to its suc-cessor), featuring provisions not always matched to the diffuseinterests of over 190 States, could destabilize cooperation by split-ting the current regime into two or more inconsistent rivals. Inmaking this point, the Article takes its bearings from the legal-economic principle of International Paretianism, i.e., that “allState parties [to an agreement] must believe themselves better offby their lights as a result of the . . . treaty.”21 As a pragmaticindicator of feasibility, International Paretianism casts a cold eye

16 See ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND:AFTER THE MADISONIAN REPUBLIC ch. 5 (2010) (surveying the topogra-phy of global legalism and highlighting its limitations).

17 See generally Anu Bradford & Eric A. Posner, Universal Exceptionalismin International Law, 52 HARV. INT’L L.J. 1 (2011).

18 See Chicago Convention, supra note 1, pmbl. R19 Convention for the Suppression of Unlawful Seizure of Aircraft, opened

for signature Dec. 16, 1970, 860 U.N.T.S. 105.20 Convention for the Unification of Certain Rules for International Car-

riage by Air, opened for signature May 28, 1999, 2242 U.N.T.S. 350.21 ERIC A. POSNER & DAVID A. WEISBACH, CLIMATE CHANGE JUSTICE 6

(2010). For an application of the International Paretian principle to avia-tion, see Brian F. Havel & Gabriel S. Sanchez, Toward a Global AviationEmissions Agreement, 36 HARV. ENVTL. L. REV. (forthcoming), availableat http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1911508.



on the ambitious visions of legalists. At the same time, however,it sets a more realistic understanding of the limits of internationallaw while contributing to a fuller appreciation of why far-reach-ing instruments such as the Chicago Convention persist despitetheir criticized imperfections.

I. Background

Convened on November 1, 1944, the International Civil Avia-tion Conference (“Chicago Conference”) brought together 54 al-lied and neutral States for the purposes of establishingprovisional world air routes and services and to set up an interimcouncil to collect, record, and study data concerning internationalaviation.22 Though some of the Chicago Conference’s partici-pants, notably the U.S. and U.K., hoped to reach consensus onframing civil aviation’s international operating environment, ir-reconcilable differences about how much liberality to tolerate re-sulted in a text with few hard economic provisions.23 Basicmovement privileges, such as flyover and landing rights for re-fueling purposes, were assigned to a separate treaty, the so-called“Two Freedoms Agreement.”24 Commercially valuable market ac-cess privileges (i.e., traffic rights), were packaged into the so-called “Five Freedoms Agreement”25 – an accord which failed toreceive more than a handful of ratifications. In response to Chi-

22 For a more detailed discussion of the Conference, see BRIAN F. HAVEL,BEYOND OPEN SKIES: A NEW REGIME FOR INTERNATIONAL CIVIL AVIA-

TION 97–103 (2009).23 The most salient economic provisions include the treaty’s recognition of

the customary international law principle of airspace sovereignty, see Chi-cago Convention, supra note 1, art. 1; the mandate that “[n]o scheduled Rinternational air services may be operated over or into the territory of acontracting state, except with the special permission or authorization ofthat state,” id. art. 6; and the right of States to limit domestic (“cabotage”)routes to their home carriers, id. art. 7. Though some analysts have ar-gued that the Convention’s cabotage provision functions as a barrier tofull liberalization, these claims appear to be based on a highly constrainedreading of Article 7. See HAVEL, supra note 22, at 122–26. Further, Arti- Rcle 7 has not stopped a handful of States from trading cabotage rights intheir ASAs. See, e.g., Alan Khee-Jan Tan, Singapore’s New Air ServicesAgreements with the E.U. and U.K.: Implications for Liberalization inAsia, 73 J. AIR L. & COM. 351, 362–64 (2008) (discussing the inclusion ofcabotage rights in the Singapore/U.K. ASA).

24 International Air Services Transit Agreement, opened for signature Dec. 7,1944, 84 U.N.T.S. 389.

25 International Air Transport Agreement, opened for signature Dec. 7, 1944,171 U.N.T.S. 387.



cago’s inability to deliver a multilateral treaty regime to dis-tribute traffic rights, States resorted to reciprocal bilateralexchanges in order to secure foreign market access for their aircarriers. The result was (and is) an uneven concatenation ofthousands of ASAs controlling not only traffic rights, but pricing,capacity, and flight frequency as well. In recent decades, the U.S.and EU have pursued more flexible agreements, but no multilat-eral instrument which could deliver comprehensive liberalizationto the international air transport sector has emerged.26

While the Chicago Convention left air services trade to beworked out in piecemeal exchanges by States acting outside itsorbit, the treaty’s primary utility arises from its promotion ofmultilateral cooperation and coordination on matters such astechnical and safety standards,27 aircraft registration and mark-ings,28 and air navigation.29 While these technical provisions,such as secure admission to foreign States’ air navigation facili-ties, could have been worked out on a bilateral or region-to-regionbasis, the Chicago Convention is a “one-stop shop” that relievesits adherents of the costs of multiple negotiations and the risks ofcolliding and inconsistent standards. Wherever Singapore Air-lines flies in the world, for example – whether it is to the UnitedStates, Germany, or China – its pilots know the communicationsystems its aircraft must possess; the air traffic control, customs,and immigration procedures they must follow; and the character-istics of the airports and landing areas at all destination points.30

In a fractured system, with overlapping or disparate rules operat-ing across individual States and regions, Singapore Airlines or

26 The closest the international community has come to such a mechanism isthe WTO’s General Agreement on Trade in Services (GATS), whichcould, in theory, apply WTO free trade disciplines to the air transportsector. However, strong interest group pressure forced all but a handfulof ancillary air services to be barred from GATS negotiations. See GATS,Annex on Air Transport Services, Marrakesh Agreement Establishing theWorld Trade Organization, Annex 1B, Legal Instruments – Results of theUruguay Round, Apr. 15, 1994, 1869 U.N.T.S. 183, 33 I.L.M. 1125, 1167.For a discussion on how GATS could still deliver liberalization to interna-tional air cargo services, see Brian F. Havel, Rethinking the GeneralAgreement on Trade in Services as a Pathway to Global Aviation Liberal-isation, 45 IRISH JURIST 47 (2010).

27 See Chicago Convention, supra note 1, ch. VI. R28 See id. ch. V.29 See id. ch. IV.30 These terms are set out as SARPs in the annexes to the Convention. See

supra notes 14–15 and accompanying text. R



any other international air carrier, would be burdened with repe-titious technical compliance costs. And even if the multilateralnorms enshrined in the Chicago Convention and in its annexesare suboptimal, unless a critical mass of States – including theworld’s largest aviation markets – defects to a new set of rules,most States are unlikely to have compelling reasons to break fromthe treaty’s terms; to the contrary, they would punish their airtransport sectors by doing so.31

Finally, as noted in the Introduction, ICAO is endowed by theConvention with a qualified set of powers, including limited dis-pute settlement authority and the ability to update the SARPscontained in the Convention’s annexes. Arguably, however, theseare not the Organization’s most important functions. Through itstriennial Assemblies and in other official settings, ICAO also pro-vides fora in which States share information, proclaim griev-ances, and sponsor new international agreements. This role goeshand-in-glove with the Convention’s promotion of internationalcoordinating and cooperative goals, and may explain why ICAO,unlike its parent institution, the U.N., has secured high compli-ance with the terms of its constitutive treaty. Though the Organi-zation has been criticized for its (in some eyes) pusillanimousresponse to high-profile challenges such as international avia-tion’s perceived role in global warming,32 it is not clear that it haseither power or legitimacy to do anything more than facilitate dis-course and provide guidance for State action through hortatoryresolutions. Moreover, ICAO cannot allow itself to become un-moored from the interests of the Chicago Convention’s State par-ties. All amendments to the Convention, including new SARPsfor the annexes, must meet with either the explicit or tacit accept-ance of ICAO’s membership; the Organization has never had orbeen provided with the latitude to make adverse or nonconsen-sual incursions against State sovereignty. Indeed, the harshestpenalty a nonconforming State party to the Convention can sufferis a loss of voting rights – a sanction which carries few, if any,practical consequences.33

31 Cf. JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNA-

TIONAL LAW 86–87 (2005) (applying this logic in the context of universalcommunications standards).

32 See Havel & Sanchez, supra note 21 (discussing ICAO’s role in aviation Remissions regulation).

33 See Chicago Convention, supra note 1, art. 88. Any State which loses its Rvoting power within ICAO is still free to object to newly promulgated



Looked at in this light, it is not difficult to see why the ChicagoConvention has survived for seven decades. Few (if any) Statescombine the aeropolitical power and global influence to unseatthe Chicago regime on their own, and every State party to theConvention enjoys, at least to some measurable extent, the effi-ciencies of having a uniform system of technical rules and stan-dards to steer the provision of international air services. Preciselybecause hard economic rights were mostly untethered from theConvention, acceptance of the treaty did not come with the costof adopting the contentious and ideologically charged vision offree trade championed by the U.S. at the Chicago Conference.Instead, liberalization, for better or worse, unfolded incrementallyas global attitudes toward service-sector protectionism softened –a development which would certainly have been stunted had theChicago delegates coalesced around or acquiesced in a liberal eco-nomic order. Despite this, some still believe that the Conventioncould serve as a catalyst for accelerated liberalization, while alsovesting ICAO with muscular global regulatory powers, if only theinternational community would come together to revisit its terms.As the next two Parts will discuss, however, bold regime changeis neither politically feasible nor normatively (legally) efficient.

II. The Political (In)feasibility of a New Chicago Convention

For a new Chicago Convention to arise and supersede the cur-rent treaty, all (potentially) 190 State parties would have to be-lieve that they are better off under the replacement. This simplebut powerful insight, denoted in the international legal literatureas the principle of International Paretianism, is not an ethicalprinciple; it is a practical constraint which acknowledges that“treaties are not possible unless they have the consent of [S]tates,and [S]tates only enter treaties that serve their interests.”34 The

SARPs, see supra notes 14–15, or resist adopting a proposed amendment Rto the Convention itself, see supra note 12. R

34 POSNER & WEISBACH, supra note 21, at 97; see also generally Havel & RSanchez, supra note 21. That States only enter into international agree- Rments for self-interested reasons will hardly come as a shock to those whosubscribe to the Realist School of international relations. See generallyHANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR

POWER AND PEACE (4th ed. 1967). In the last decade, however, this in-sight has been operationalized through the application of rational-choicetheory to international law. See, e.g., GOLDSMITH & POSNER, supra note31; ECONOMICS OF PUBLIC INTERNATIONAL LAW (Eric A. Posner ed., R



costs and benefits bound up with how these interests are calcu-lated will vary from State to State and may reflect either a wideor narrow range of considerations. State A may boost its effort toestablish a military base in State B by accepting an ASA withState B that economically disadvantages State A’s indigenous aircarriers. On the multilateral level, the calculus of interests atstake can grow exponentially, though the most salient ones arelikely to be obvious.

For example, when negotiating for a new Chicago Convention,all parties are apt to want at least the equivalent degree of coordi-nating and cooperative benefits they enjoy under the present re-gime, even if there is widespread disagreement over details. Butthis does not mean they will necessarily seek enhanced benefits.Economically weak States in Africa, for example, will likely seekuniversal technical and safety standards which approximate theirpresent capacity for compliance so that they avoid any penalties(including reputational loss) for a continuing failure to meet inter-nationally-mandated “minima.”35 On the other hand, aeropoliti-cal powers such as the U.S. and EU, which enjoy optimizedsafety records, will demand standards matching their nationallevels of oversight in order to secure a safe international operatingenvironment for their airlines but also to discourage third-partyStates from conceding a backdoor economic benefit to their owncarriers by agreeing to less stringent compliance. In a “transfer”Convention, the kind of organism into which the Eurozone hasmutated by default,36 these perspectives could be better recon-ciled if economically well-off States agreed to provide wealthtransfers to poorer countries in order to backstop (and graduallyimprove) the performance of those countries’ air transport safetyregimes.37 But in order for such compromises to be feasible, In-ternational Paretianism expects that rich States would have to be-

2010); Alan O. Sykes, The Economics of Public International Law (JohnM. Olin L. & Econ. Working Paper No. 216 (2d ser.) July 2004); Sympo-sium, Rational Choice and International Law, 31 J. LEGAL STUD. S1(2002).

35 See generally Geoffrey Thomas, Africa’s Safety Travails, AIR TRANSP.WORLD, Oct. 2010, at 35–38.

36 See Charlemagne, Germany’s Euro Question, ECONOMIST, Sept. 10, 2011,available at http://www.economist.com/node/21528639 (analyzing the po-litical fallout from Germany’s central role in rescuing failing economies inthe Eurozone).

37 For how this approach may be necessary for an international aviationemissions treaty, see Havel & Sanchez, supra note 21. R



lieve that raising safety standards in the aggregate provides asufficient benefit to justify a wealth transfer. If these wealthyStates became concerned that the transfers would work instead asa de facto subsidy to competing foreign airlines, a transfer schemewould not be sustainable. In that scenario, the policy choice maybe to agree on minimal common safety standards in order to in-duce accession to a new Chicago Convention or to insert “soft”penalties for non-conforming countries.38

Beyond safety, any attempt to invigorate the Convention’s cus-tody of economic issues would likely spark aeropolitical acri-mony. While the U.S. now scores over 100 liberal open skiesbilateral agreements, rising economic powers such as China andRussia remain leery of high-octane liberalization. Moreover, Ca-nada has joined a number of EU Member States in pivoting to-ward a protectionist stance against Gulf-based airlines Emirates,Etihad, and Qatar Airways, fearing that the Middle Eastern triadwill erode the competitive positions of their national airlines.39

Despite a steady expansion of market access freedoms for interna-tional airlines over the past two decades, it is difficult to say withany confidence that there is a settled international consensus onthe appropriate level of liberalization for the global aviation sec-tor. Key trade privileges, notably crossborder investment andcabotage, continue to be off the negotiating table for economicsuperpowers such as the U.S., dampening any prospect for revi-siting those matters within the scope of a new Chicago Conven-tion. Similarly, comprehensive regulatory convergence, ahallmark of the EU’s external aviation trade policy, remains un-palatable to the U.S.40 Other States, too, are likely to resist sacri-ficing their autonomy over regulatory matters, particularly inareas such as competition law.41 It is doubtful that a new Chi-

38 Arguably, this is what the present Chicago Convention already does withrespect to SARPs. See supra note 15. In order to compensate for this R

apparent enforcement defect, the U.S. and EU have developed their ownmechanisms to sanction airlines and States which fail to adhere to theConvention’s technical and safety standards. See generally Andreas Korr,Will “Blacklists” Enhance Airline Safety? (FOV Discussion Papers No.32, 2006).

39 See, e.g., Robert Wall, Qatar Airways Executive Lashes Out Against Euro-pean Airlines Group, AVIATION DAILY, Feb. 11, 2011, at 1.

40 See generally Richard Smithies, Regulatory Convergence – Extending theReach of EU Aviation Law, 72 J. AIR L. & COM. 3 (2007).

41 Cf. Anu Bradford, International Antitrust Negotiations and the FalseHope of the WTO, 48 HARV. INT’L L.J. 383 (2007) (discussing why States



cago Convention would be allowed to claim any more trade oreconomic issues than the few it already possesses.42

Just as unconvincing are suggestions to use a new ChicagoConvention to upgrade ICAO’s oversight and enforcement au-thority. As already noted, the world’s three leading aeropowers –the U.S., EU, and China – profess substantially divergent viewsof international law and of the permissible jurisdictional reach ofinternational legal institutions.43 Additionally, any proposal tobolster ICAO’s powers is likely to encounter substantial disagree-ment concerning which States ought to hold the reins. The “oneState, one vote” mantra still has normative resonance for thosewho subscribe to the ideal of sovereign equality, but few contem-porary international institutions actually defer to each State’svote (and potential veto).44 The U.N. Security Council, for exam-ple, is beholden to the interests of its permanent members, andthe WTO, which is superficially compliant with the notion of sov-ereign equality, still compels States to settle their disputes bilater-ally. In reality, only the most powerful members of aninternational organization are likely to have the capability of tak-ing strong retaliatory measures against defectors.45 ICAO, thoughadjudicatively weak, has rarely had reason to exercise its disputesettlement powers during the lifespan of the Chicago Convention,probably reflecting the fact that the parties have seen little wis-dom in defection from the treaty’s terms.46 Given that long re-cord of stability, it is unclear why ICAO requires greater disputesettlement powers than those it already possesses. If anything, anattempt to turbo-charge ICAO’s judicial competence wouldheighten fractiousness among a new Chicago Convention’s nego-tiating parties, at best resulting in a return to the status quo ante.Moreover, any ambitious hopes to endow ICAO with binding leg-

have not been able to reach a multilateral consensus for antitrustenforcement).

42 See supra note 23. R43 See generally Bradford & Posner, supra note 17. R44 And even if they did, there is an obvious democratic deficit when all

States vote in technical equality. There is considerable scholarly discus-sion of the undemocratic implications of (for example) China and Trinidadand Tobago having an exactly equal voice in the voting conclaves of inter-national institutions. See generally, e.g., Elizabeth McIntyre, WeightedVoting in International Organizations, 8 INT’L ORG. 484 (1954); cf. alsoATHENA DEBBIE EFRAIM, SOVEREIGN (IN) EQUALITY IN INTERNA-

TIONAL ORGANIZATIONS (1999).45 See generally GOLDSMITH & POSNER, supra note 31, 150–62. R46 For further discussion of this possibility, see Sanchez, supra note 11. R



islative powers would be quickly tempered by the reality that nointernational legal organization (outside the special circumstanceof the EU institutions) holds such far-reaching authority. Al-though ICAO has arguably been more successful than other inter-national institutions in inducing global cooperation that conformsto the terms of its constitutive treaty, that fact does not by itselflegitimize a further accretion of powers. ICAO’s relative success,as suggested earlier, can be attributed to its function as a neutralforum where bottom-up State interests rather than top-downmandates promote cooperative outcomes.

With this sketch of contentious issues in mind, it appearsdoubtful that a new Chicago Convention, particularly one whichboasts additional provisions covering air services trade and morepowers for ICAO, can satisfy the International Paretian principle.Even if it is true that some of the current Convention’s terms aresuboptimal and in need of overhaul, piecemeal adjustmentswould be better handled through the comparatively less onerousamendment process set forth in the treaty.47

III. The Normative (In)efficiency of a New Chicago Convention

Still, assuming that the foregoing evaluation is correct and thata new Chicago Convention encompassing all 190 of the currenttreaty’s State parties is infeasible, some might contend that asmaller number of likeminded States could forge a new multilat-eral agreement which, in time, would displace the old. After all,the shift in international aviation’s liability regime from the air-line-friendly terms dictated by the 1929 Warsaw Convention (andits amending instruments) to the plaintiff-friendly Montreal Con-vention of 1999 has been incremental; to avoid jurisdictionalblack holes, many countries remain parties to both treaties.48

While the compliance costs of being part of both the Warsaw andMontreal regimes are negligible, adherence to two different “Chi-cago” systems would not be so easy.

Consider, for example, a scenario where each treaty systemcustomizes its own air traffic management (ATM) procedures and

47 Stress should be placed on the word “comparatively” since, as discussed insupra note 12, the Chicago Convention’s amendment process is quite Rcumbersome.

48 See generally PAUL STEPHEN DEMPSEY & MICHAEL MILDE, INTERNA-

TIONAL AIR CARRIER LIABILITY: THE MONTREAL CONVENTION OF 1999(2005).



required specifications for onboard communications equipment.Airlines performing services to countries which are parties to dif-ferent regimes would confront not only much higher compliancecosts but also potentially dangerous confusion over which rulesand standards to apply across borders. Air services trade wouldsuffer as States which adhere to one regime may curtail or evendecline access rights to airlines from States adhering to the rivalConvention system. Most air services agreements, including theU.S. Open Skies agreements, presuppose that both parties aremembers of the Chicago Convention (and of ICAO) and are there-fore in full compliance with the treaty’s terms and with its techni-cal acquis.49 In an imagined environment where two regimes co-exist, either these formerly “background” terms would have to bestandardized within bilateral air services arrangements (a processwhich would add substantial complexity and confusion) or, asnoted, States would simply dispense with providing market ac-cess to adherents of the other regime.

The parallel existence of two Chicago-style regimes would ex-acerbate the perceived problem of fragmentation in internationallaw, which notoriously results in conflicting international normsand legal uncertainty.50 This possibility would likely not alignwith the theoretical models of global legalists, certainly, but itwould also create immediate challenges for States (and their air-lines) which must navigate the dictates of two potentially conflict-ing bodies of law. Under internationally recognized rules oftreaty interpretation, States which subscribe to a new “Chicago”Convention would still be bound to the terms of the originaltreaty with respect to all States which refuse to adhere to the newregime.51 In other words, defection to the new ordos would not

49 This term, borrowed from EU jurisprudence, usefully captures the fullpanoply of an international organization’s regulatory activity, including(in the case of ICAO) the range of Standards and Recommended Practicesauthorized under the Chicago Convention. See generally EUROVOC,Community Acquis, http://eurovoc.europa.eu/drupal/?q=request&uri=http://eurovoc.europa.eu/210682. On the mutual expectation of compli-ance with the Chicago Convention, see U.S. Dep’t of State, Air TransportAgreement Between the Government of the United States of America andthe Government of [country] art. 1(4) (Jan. 10, 2008), available at http://www.state.gov/documents/organization/114970.pdf.

50 See generally U.N., Int’l L. Comm’n, Fragmentation of InternationalLaw: Difficulties Arising from the Diversification and Expansion of Inter-national Law, Doc. No. A/CN.4/L.682 (Apr. 13, 2006).

51 Vienna Convention on the Law of Treaties art. 30(4), opened for signatureMay 23, 1969, 1115 U.N.T.S. 331 [hereinafter Vienna Convention]. Al-



override a State’s obligations to the old unless, of course, it de-nounced the original treaty (and thus sacrificed its benefits aswell).52 States which refused to adopt the new Chicago Conven-tion would simply retain the rights and obligations of the originalregime. This messy legal reality could have a powerful dissuasiveeffect on States contemplating participation in both regimes. Ifthe path of least resistance (and complexity) remains fidelity onlyto the original Chicago Convention, the new regime and the frac-tured environment it would bring into being would have to yieldsignificant countervailing benefits in order to generate adherence.For the reasons discussed in the previous Part, it is doubtful thatsuch benefits are likely to be included in a new Chicago Conven-tion in the first place, regardless of the particular constellation offounding parties. And even if some of these new ideas for eco-nomic liberalization or enhanced institutional powers werestitched into the new agreement, they would be unlikely to deliverfully on their promise without the universalism reflected in thecurrent Convention.53

Finally, it is important to recognize that a replacement ChicagoConvention, even if it were to win widespread acceptance, wouldalmost certainly lack the structural pliability that its predecessorhas exhibited (if partly by historical accident54). States have usedICAO as an efficient conduit to develop subject-specific responsesto issues as diverse as air carrier liability, air crimes55 and, morerecently, global ATM modernization.56 In the realm of air ser-vices trade, the fact that the original Convention had very little to

though the Vienna Convention has not received universal ratification, itsterms are recognized as a codification of the customary international lawgoverning treaty interpretation. See RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAW OF THE UNITED STATES pt. III, Introductory Note.52 See Vienna Convention, supra note 51, art. 60. R53 For example, assuming that a new Chicago Convention eradicated the

traffic rights artifice and mandated unrestricted market access among itsState parties, this benefit would lose its savor if major air transport mar-kets such as the U.S. and EU refused to go along. Similarly, an unrestric-tive crossborder investment regime for aviation, if included in a newChicago Convention, could be effectively stymied if the aforementionedmarkets threatened to invoke the nationality clauses in their respectiveASAs to lock out foreign air carriers owned by third-party nationals. Forfurther discussion of the nationality rule’s chilling effect on internationalairline investment, see Havel & Sanchez, supra note 3, at 648–53. R

54 See supra notes 22–33 and accompanying text. R55 See supra notes 19–20 and accompanying text. R56 See Brian F. Havel, A U.S. Point of View on European ATM Develop-

ments, in ACHIEVING THE SINGLE EUROPEAN SKY (SES): GOALS AND



say on the matter allowed latitude to likeminded States to evolveliberalized air services agreements. States would be wise to re-main circumspect about the coverage “bandwidth” of any one in-strument, especially given the negotiating costs associated withmodifying or abandoning outmoded provisions. One of the mostenlightened features of the existing Chicago Convention isICAO’s ability continually to devise and update SARPs, therebykeeping the treaty, within certain constraints, reflective of bestpractices in technical and safety matters. And even though Statesmay evade SARP compliance and incur no direct penalties, defec-tions attract secondary sanctions such as reputational loss anddamage to aeropolitical relations. Experience offers no reason tobelieve that a more invasive dispute settlement and enforcementsystem will yield superior results.57

Conclusion

Though imperfect, the Chicago Convention is a fixed compasswithin international law because of its demonstrated cooperativebenefits. Calls for a replacement Convention, this Article argues,fail on grounds of political feasibility and normative efficiency.While they may be provoked by dissatisfaction with internationalaviation’s current regulatory landscape, a new Convention mightnot easily replicate the cooperative ethos embedded in Chicago.None of this is to argue, however, that the present Conventionsystem is optimal or that efforts to amend the treaty are somehowspurious. New issues and challenges will demand fresh intellec-tual energy and some degree of continuing reform will probablybe necessary. Aviation’s role in climate change, for example, hasput the Convention and ICAO directly in the crosshairs of a hugeinternational controversy. While the Paretian principle suggests

CHALLENGES (D. Calleja-Crespa & P. Mendes de Leon eds., forthcoming2011).

57 What if, for instance, a new Chicago Convention required all State partiesto immediately withdraw market access rights from the airlines of a scoff-law State? This seemingly powerful sanction would be largely nullifiedby the harsh fact that multilateral enforcement of international agree-ments is difficult to coordinate and monitor. Every potential enforcer hasan incentive to “cheat” and to rely on the agreement’s other parties to bearany costs associated with the punishment.



that any consequent treaty reform is likely to be modest,58 pastevidence also indicates that ICAO is well-suited to broker con-flicting State perspectives.59 In the sphere of economic liberaliza-tion, too, ICAO is acting through its Legal Committee to evaluatea joint U.S./EU proposal (referred to it by U.S. Department ofState officials) for a multilateral waiver of the nationality provi-sion in States’ air services agreements.60 The Chicago Conven-tion will continue to be a “steady state” system that changes onlyincrementally. For those in search of more ambitious experi-ments, especially in economic regulation, the busiest laboratorieswill likely be regional and cross-regional rather than multilateral.

58 For a comprehensive discussion of the international political hurdles con-fronting strong measures to combat climate change, see POSNER & WEIS-

BACH, supra note 21. R59 For a survey of ICAO’s success in fostering a series of anti-air crime trea-

ties, see MICHAEL MILDE, INTERNATIONAL AIR LAW AND ICAO ch. 8(2008).

60 See ICAO, Econ. Comm’n, Facilitating Airlines Access to InternationalCapital Markets, A37-WP/190 (Sept. 13, 2010).

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