34TH ANNUAL CONFERENCE, Jerusalem, Israel, 27-31 March 1995
WP No. 139
Until now, in very broad terms, ATCOs felt bound by two different levels of rules: the technical ones, as issued by ICAO (and adapted by the national authorities) and the existing laws in the country where they worked. This was, and still is, for most of the world, “the world as we knew it”. However, the evolution or the European Community (specially after the Maastricht Treaty), now European Union showed that another form of Legislation – the “Supranational” one -, can rapidly establish itself in Europe, but also in other parts of the world if, as recent initiatives seem to indicate, the example is to be followed.
Laws and Regulations
For most of the common citizens around the world, the existence of a law means that the existing law making powers in the country (Parliament, President, Crown, Emperor….) passed or approved it. It is also common belief that any regulation has to obey to the terms of a law. This view is, in broad terms, correct, although for instance in the common law countries the relation between the two legal instruments is quite different since the regulations have to obey to the unwritten law: but even in those countries the number of statutes is increasing steadily. The second great feature of law is its nationality, that is a law is, in principle, only applicable on a certain territory or to the members of a certain community. But the number of exceptions to this principle is enormous. First, there are a vast number of countries that do not correspond to a single nation. Second, even among those countries, the relations between nations and between the various nations and the central administration is quite different.
Treaties and Conventions
At first sight, some treaties would appear to be a first form of “supranational” legislation, since they can make the same legal rule valid in a number of different countries; however, it is not so: the contents of treaties is necessarily international but not “supranational”. The countries who sign a treaty do it invested of their full sovereignty, while the very idea of “supra nationality” goes exactly the other way.
The UN Resolutions
Another example of supranational legislation would appear to be the United Nations resolutions, since the decisions are taken by a power external to the national sovereignty. Again, it’s a false conclusion. The UN resolutions are international decisions, taken by the international community, who may have a coercive effect on those States who fail to respect the UN Charter. But, here again, there is no voluntary delegation of sovereignty and therefore the “supranational” nature is out of the question’
The EU at the Present Stage
The idea of “supra nationality” as designed and existing in the EU means:
a) the transfer of part of the sovereignty of the States to the authority of the Community;
b) the irrevocable independence of the organs of the community vis-à-vis the Governments of the Member States;
c) the existence of the communitary competence, that is, the organs of the Community exert their own competence not a mere mandate or a delegation of powers from the Member States.
In this frame, it is clear that what once was a co-operation organisation is now an integration organisation At this stage, some of you will be yawning, since there is no apparent reason for you to bother about what seams to be an exclusively European matter. However, the number of co-operation organisations is quickly in various parts of the world and many develop in the same way. Just as a reminder, when started to discuss the privatisation of Air Traffic Services it also appeared to be an European matter. Well, look where we are now:
Implications in the Air Navigation World
The existing “Supranational” legislation issued by the up to this point is of technical nature (in this sense, it’s really more “supranational” regulations than anything else), but the declared aim is to establish a “single European agency” for Air Traffic Services, repeatedly shown by the Community, clearly indicates that sooner of later we will be facing at least the attempt to establish “Supranational” legislation in fields who can range from the structure of airspace to the social conditions, including the technical aspects of the profession, such as recruitment, training, licensing, medical assessment and so on.
Because of the “supranational nature” of the above mentioned legislation, it seems wise that the Federation itself will intervene from a very early stage and to the widest possible extent at Community(ies) level. This example is also, as indicated before, a warning to those MAs placed in geographic regions where these kind of multilateral State organisations begin to surface.
That this Paper is accepted as Information Material.
Vlad CONSTANTINESCO in: “Compétences et pouvoirs dans les Communautés Européennes,” Paris, LGDJ, 1974.
Von LINDEINER-WILDAU K., “La Supranationalité en tant que principe de droit”. Leyde, Sitjthoff. 1970.
HERAUD, G. “Observations sur la nature juridique de la Communauté Economique Européenne”, RGDIP, 1928 page 28.
MOTA DE CAMPOS, J., “Direito Comunitario”, Lisboa, FCG, 1989.
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