TNAG-1063-FCO40-1313-Air-services-between-the-UK--China-and-Hong-Kong-(including--1981 — Page 19

RESTRICTED

DSR 11C

R

24. Academic Opinion and past practice.

The view of Frofessor Cheng in the leading, though now rather dated, text book on the law relating to international air transport has been indicated in paragraph 7. His view is shared by Hesse in the final paragraph of "Some Questions on Aviation Cabotage" ([1953] McGill Law Journal 128). Robinson in "Changing Concepts of Cabotage" ([1968] Journal of Air Law and Commerce) 553) provides, at pages 560-565, an interesting examination of the attention paid by ICAO to Article 7, but is as inconclusive as was ICAO. Lewis in a more recent article "Air Cabotage: Historical and Modern-Day Perspectives" ([1980] JALC 1059) touches

on the problem, at pages 1062 to 1065, but mainly deals with US domestic law. The Institut du Transport Aérien

made a study of cabotage in 1969. That study instances several cases where cabotage rights have been granted (copy extract attached) and concludes: "Practically speaking the general compromise of ambiguity and silence enables the cabotage situation to be workable. From the theoretical view-point, the essence of the problem is not solved"

conducted lay the European Conference C. Ciel Dindless (CCAC) attacked (Ommere :)).

as Arge

27. Remedies

воз

1

Article & envisages disputes about interpretation or application of the Chicago Convention which cannot be resolved by negotiation being referred to the Council of ICAO, with the possibility of appeal to an arbitral tribunal or the International Court of Justice (LCJ). This procedure, including appeal to the ICJ, was used in the case of a dispute between India and Pakistan about twenty. years ago. It has many unsatisfactory features. However, KARALAMA following the demonstration in that case that the Council of ICAO is not a suitable tribunal for resolving legal issues, there is a reasonable prospect of the matter reaching arbitration or judicial determination by the ICJ without prolongued debate in the Council.

RESTRICTED

/26. Conclusions