The Resolution of Inter-State Disputes in Civil Aviation by Luping ZHANG. Oxford: Oxford University Press, 2022. xx + 256 pp. Hardcover: £80.00; eBook available. doi: 10.1093/oso/9780192849274.001.0001

Abstract

It has been 75 years since the International Civil Aviation Organization (ICAO) began operations in 1947. Since then, the ICAO, which was created by the Convention on International Civil Aviation in 1944 (the Chicago Convention), has developed extensive rules for international law related to aviation. In addition to the ICAO’s rule-making function, Chapter XVIII of the Chicago Convention empowered the ICAO Council to settle any dispute concerning the interpretation of the Convention. Specifically, Article 84 of the Chicago Convention established a three-stage process for resolving disputes between state parties: 1) negotiations, 2) decision by the ICAO Council and 3) appeal to either an arbitral tribunal or the International Court of Justice (ICJ). Zhang’s book systemically investigates the dispute settlement mandate of the ICAO Council and explores how its dispute settlement mechanism should be modernized for international civil aviation. Her empirical research indicates that not only multilateral aviation law treaties, including the Chicago Convention, but also bilateral air services agreements depend on three institutions: the ICAO Council, ad hoc arbitral tribunals, and the ICJ. Although the ICJ has the final say in the adjudication of international aviation disputes, the ICAO Council acts as a ‘court of first instance’ in practice. Yet the ICAO Council is rarely used as a dispute resolution forum. There have been only seven cases thus far, and even in those disputes, the ICAO Council has not issued any decisions on the merits. After analysing the ICAO Council’s deficiencies in regard to the current dispute resolution mechanisms and the limits of ad-hoc arbitration, she concludes that the dispute resolution mechanisms in international civil aviation have failed to meet the increasing demand for a rule-based decision-making process with sufficient transparency and legal reasoning in the current era. Zhang argues that states are looking for more judicialized dispute resolution and recommends two possible routes for reform: the amendment of the ICAO Council’s procedures for dispute resolution and the establishment of an arbitral institution within the ICAO system. Ideally positioned at the intersection of aviation law scholarship and international dispute resolution scholarship, this book effectively fills the academic gap in this area. Since empirical research is rare in the field of aviation law, the data collected and analysed by the author deserves close attention. Interestingly, one of her recommendations is already on the move. The ICAO Legal Committee established a working group in 2019 to review the rules for the settlement of differences. Although the new rules are expected to facilitate the dispute settlement process, they will not bring about fundamental change. Zhang’s bolder recommendation of establishing an arbitral institution at ICAO is both presented persuasively and worth considering. This book exhibits the author’s extensive research in both dispute resolution and aviation law and she has satisfied the needs of both fields.