頁籤選單縮合
題 名 | 國際民航組織與中華民國--就國際民航組織與聯合國的法律關係而論中華民國派遣觀察員參加前者活動之法律障礙=The ROC and the ICAO--The Relevance of ICAO-UN Legal Relations to the Quest of the ROC for the ICAO Observership |
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作 者 | 高聖惕; | 書刊名 | 政大法學評論 |
卷 期 | 68 2001.12[民90.12] |
頁 次 | 頁263-335 |
分類號 | 557.92 |
關鍵詞 | 國際民航組織; 芝加哥國際民用航空公約; 聯大第二七五八號決議; 中華民國政府; 中華人民共和國政府; ICAO; R.O.C.; P.R.C.; Chicago convention on international civil aviation; ICAO observership; |
語 文 | 中文(Chinese) |
中文摘要 | 依據一九七一年國際民航組織理事會的決議,中華民國政府失去了在該組織中代表中國的權利,不再具有該組織的會員資格。此項理事會決議之通過,實係國際民航組織對於聯合國建議的回應。具體而言,聯合國大會同年稍早曾通過第二七五八號決議,敦促聯合園所有 |
英文摘要 | The ROC Government lost its membership in the International Civil Aviation Organization (1CAO) and its title to represent China therein in accordance with a 1971 ICAO Council Resolution. Such ICAO Council Resolution was adopted as a response to the 1971 UN General Assembly Resolution 2758 (XXVI), which constituted a recommendation to all Specialized Agencies, that the PRC Government be recognized as the only legitimate representative of China in the UN and all the related organizations and that the Chiang Kai-shek representatives be expelled there from. It is hence of interest to explore the legal consequences and relevance of the UN recommendations to the ICAO when evaluating the legal feasibility of the ROC's application for the ICAO Observership. To begin with, the history of the ROC and PRC Governments' competition for the representation of China in the ICAO will be discussed. This can identify the context in which the ROC Government was ousted from the ICAO. And the manner in which the ICAO dealt with the UN recommendation (2758 Resolution) will exemplify how the legal relations between the ICAO and the UN can be understood through practice. The author then will deliberate on the general framework of the ICAO-UN legal relations, which is based on the related articles of the 1944 Chicago Convention on International Civil Aviation and the 1947 UN-ICAO Agreement. Such survey intends to uncover the circumstances under which the UN recommendations become legally binding upon the ICAO. As the practice of international organizations serves to interpret the legal instruments of the organization and is capable of modifying the substance of such instruments, there is a need to dig into the related ICAO practice in its relations with the UN. Thus the author will make an empirical examination to ascertain whether through practice the UN has in fact expanded the legal effects of its recommendations upon the 1CAO to the point beyond what has been stipulated by the 1944 Chicago Convention and 1947 UN-ICAO Agreement. As a result, the empirical observation on the related practice of the ICAO Council indicates that the legally binding force of the UN recommendations upon the ICAO has not been expanded beyond the scope defined by the three provisions, namely, Article 93 and Article 93 and of the 1944 Chicago Convention, as well as Article II of the 1947 UN-ICAO Agreement. The proposal for the ICAO Council to invite the ROC Government to send observers to participate in ICAO meetings in the capacity of Other Body as defined in various ICAO Rules of Procedures (the topic of which has been treated by the same author in a Procedures (the topic of which has been treated by the same author in a separate published article) will not be considered inadmissible and unconstitutional as far as ICAO-UN legal relations is concerned, unless the nature of the proposal falls within the scope of one of the three above- mentioned articles. The author will then compare each of the three articles with the nature of such proposal and provide reasons to show why all these articles are inapplicable. The final conclusion is that the UN 2758 Resolution is not legally capable of disabling the ICAO Council from inviting the ROC Government to send observers to participate in ICAO meetings in the capacity of Other Body as defined in various ICAO Rules of Procedures. |
本系統中英文摘要資訊取自各篇刊載內容。