International Law Of Civil Aviation
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Transcript of International Law Of Civil Aviation
INTERNATIONAL LAWrelevant to civil aviation
Agus Susanto SH.MM.
International LawRelevant to civil aviation
Civil Aviation :- Operating globally- with common world-wide requirements
- safety- regularity- efficiency
- depends on international co-operation& co-ordination
- substantially affected by international law
& international organizations
International Law
1. Nature of international law :
- distinguish international law from municipal or domestic law
- distinguish public international law from private international law
- how does international law become municipal law ?
International Law
2. Sources of international law :
- treaties
- custom or general practice of states
- general principles recognized by civilized nations
- decisions of judicial & arbitral tribunals
- distinguished writings
- declarations of international organizations
International Law
3. State Sovereignty :
the right under international law..
- to exercise the function of the state
- to the exclusion of any other state
- over a certain area of the world
State territory includes the airspace above
International Law
4. State Jurisdiction :
- the sovereign right of states to exercise control
- a right recognized rather than conferred by international law
- states must act to assume jurisdiction over person & things
International Law
4. State Jurisdiction :
steps for exercising jurisdiction according to law :
(i) creation of rules to define & impose control
(ii) adjudication – applying law to facts
(iii) enforcement of adjudicated outcome
International Law
4. State Jurisdiction :grounds for exercising criminal jurisdiction :
(i) territorial principle- control of crimes committed within
state’s territorial boundaries- ships & aircraft on state’s register
considered quasi-territory
(ii) nationality principle- control of crimes by state’s nationals
committed outside the state’s boundaries
International Law
4. State Jurisdiction :grounds for exercising criminal jurisdiction :
(iii) passive personality principle- control of crimes against nationals
outside state’s boundaries
(iv) protective principle- control of non-nationals whose
activities outside state’s boundaries are
prejudicial to state security
International Law
4. State Jurisdiction :grounds for exercising criminal jurisdiction :
(v) universal principle- control of crimes against general
international law where universal jurisdiction of all states is recognized
eg. piracy
limits to jurisdiction: may not be exercised by means of physical intervention in another
state’s territory
International Law
4. State Jurisdiction :
essentially takes two forms :
- territorial jurisdiction
- extra-territorial jurisdiction
in most states: laws are assumed to operate extra-territorially unless expressly stated to do so
International Law
5. Nationality :
a concept that links - persons- ships- aircraft- space objects…to a given state
- the state determines who / what possesses its nationality
- including ships & aircraft
International Law
5. Nationality:
- international law governs the validity of state claims :
- as to extra-territorial jurisdiction over nationals & persons whose conduct affects the state’s nationals
- against other states whose conduct affects the state’s nationals
International Law
6. State Responsibility :
- states are responsible for breaches of their international obligations
- breaches of obligations may result in responsibility :
- to act to rectify the breach- to make reparations for
damage
International Law
7. Sovereign Immunity :
- customary international law recognizes states as generally immune from the territorial jurisdiction of other states
ie. States cannot be sued in another state’ courts
- immunity not normally extended to state- owned commercial enterprises
- immunity also extends to execution of judgments foreign states
International Law
8. Treaties :
- agreements between states that are legally binding under international
law
- consent to treaties…- signature & ratification- accession- exchange of notes
- amendment : usually by protocol
- withdrawal : by denunciation
International Law
8. Treaties :
interpretation…..Vienna Convention 1969
- analyze normal meaning of words in context
- consider intent & purpose
- consider subsequent practice indicating consensus about interpretation
International Law
8. Treaties :
peremptory norms… Vienna Convention 1969Art 53 :
a treaty is void…if it conflicts with a peremptory norm of international
law‘peremptory norm’ = a norm or
principle recognized by the international community as a whole as a norm from which no deviation is
permitted
International Law
9. Peaceful settlement of Disputes
- inquiries, consultations & negotiation
- conciliation
- treaty dispute resolution processes
- UN security Council
- arbitration
- judicial settlement
International Law
10. United Nations
created 1945…to promote world peace & security
main UN organs :- Security Council- General Assembly- Secretary General &
Secretariat- International Court of Justice
International Law
11. Other International Organizations
- structures
commonly : general assembly
executive councilsecretariat
- contributions to international lawdeclarations : embryo
international principles multilateral treaties
- legal personality : optional
International regulatory framework
related to civil aviation
Agus Susanto SH.MM.
International regulatory framework
1. Origins :
- 1903 – beginnings of powered aviation
- World War I – development of military aviation
- Paris Convention 1919 – first international aviation law convention
- 1919-1944 period – gradual growth of international air transport
- Chicago conference 1944 – planning the development of post-war air
transport
International regulatory framework
2. Chicago conference outcomes :
- Chicago Convention 1944 (Convention on International Civil
Aviation)
- International Air Services Transit Agreement 1944
- International Air Transport Agreement 1944
International regulatory framework
3. Chicago Convention 1944
main aims :
- to meet world needs for safe, regular & efficient air transport
- to establish the basic international regulatory framework
- to establish the International Civil Aviation Authority (ICAO)
International regulatory framework
4. Chicago convention 1944-basic principles
- state sovereignty Art. 1:
The contracting states recognize that every state has
complete and exclusive sovereignty over the territory above its territory
…territory includes territorial waters
International regulatory framework
4. Chicago Convention 1944 – basic principles
- application of conventionArt.3 (a):…applies only to civil
aviation & not state aircraft
- nationality of aircraftArt.17: Aircraft have the
nationality of the state in which they are registered
Art.20 : Every aircraft…shall bear its appropriate nationality & registration marks
International regulatory framework
4. Chicago Convention 1944 – basic principles
- flight over territory of contracting states
Art. 6:No scheduled international air
service may operate over or into the territory of a contracting state, except with special authorization….
International regulatory framework
4. Chicago Convention 1944 – basic principles
- flight over territory of contracting states
Art. 5:grants aircraft not engaged in
scheduled international air services the right to-make flights into and in transit across the territory of a contracting state, and to-make non-
traffic stops…….
International regulatory framework
4. Chicago Convention 1944 – basic principles
- flight over territory of contracting states
Art. 7:
permits contracting states to reserve all traffic
between places in their territory for their own national carriers
(known as ‘cabotage’)
International regulatory framework
4. Chicago Convention 1944 – basic principles
- non-discrimination…between national aircraft & aircraft
of other contracting states regarding :
- flight over prohibited areas : Art. 9
- entry & departure regulations : Art.11
- airport / air navigation charges : Art. 15
International regulatory framework
4. Chicago Convention 1944 – basic principles
- rules of the air
Art. 12: …each contracting state must enforce Convention’s rules as to flight & maneuver against its own national aircraft (wherever they
may be) and to any foreign aircraft operating within its territory
Art. 12: …rules in force over high seas are the Convention’s rules
International regulatory framework
4. Chicago Convention 1944 – basic principles
- misuse of civil aviation prohibited : Art.4
- aircraft in distress : Art. 25
- accident investigation : Art. 26
- freedom of action in war or national emergency : Art. 89
International regulatory framework
5. International Civil Aviation Organization (ICAO)
- established by Chicago Convention, Part II
aims & objectives :- to develop the principles of international air
navigation- to foster the development of international
air transport- to insure safe & orderly growth of
international civil aviation- to meet the needs of the world for safe,
efficient, regular and economical air transport
International regulatory framework
5. International Civil Aviation Organization (ICAO)main organs :
- Assembly – all Chicago contracting states
- Council – 33 elected states representing:
(1) states of chief importance to air transport
(2) other states making largest contribution to international air navigation facilities
(3) other states that ensure representation of all major world areas
International regulatory framework
5. International Civil Aviation Organization (ICAO)
main organs :
- Air Navigation Commission
- Air Transport Commission
- Secretariat
- Legal Committee
International regulatory framework
8. ICAO – Settlement of disputes
- interpretation :Art. 84: disputes referred to ICAO Council for decision…appeals to arbitral tribunal /
international court of justice
- expulsion :originally – no expulsion provision for ICAO
members
- financial delinquency :Art. 63: Gen. Assembly may suspend state’s
Assembly vote
International regulatory framework
6. Chicago Convention Annexes
- Personnel Licensing - Aeronautical Telecommunications- Rules of the Air - Air Traffic Services- Meteorological Service - Search and Rescue- Aeronautical Charts- Aircraft accident investigation- Units of Measurement - Aerodromes- Operation of Aircraft - Aeronautical Information Services- Aircraft Nationality & - Environmental Protection Registration Marks - Security- Airworthiness of Aircraft - Dangerous Goods by Air- Facilitation
International regulatory framework
6. Chicago Convention Annexes
adoption process :Art. 90 : ICAO Council adopt by two thirds
vote
Annex or amendment enters force 3 months later…
unless in the meantime a majority of contracting states object
International regulatory framework
6. Chicago Convention Annexes
legal effect :- within contracting states :
Annexes not binding domestically until given force of law
- over the high seas :
rules of Convection (including Annexes)
apply automatically – Art. 12
International regulatory framework
6. Chicago Convention Annexes
obligation of contracting states :
Art.12: must keep flight & maneuver rules uniform to “greatest extend possible”…with Convention rules
Art.38: if compliance found impracticable…state need only notify ICAO of any difference between its own practice and that established by the international standard
International regulatory framework
7. ICAO – promotion of international aviation law
1948 : Geneva Convention on rights in aircraft
1952 : Rome Convention on surface damage
1955 : The Hague Protocol to Warsaw Convention 1929
1961 : Guadalajara Convention-supplement to Warsaw
1963 : Tokyo Convention on Jurisdiction & commander’s powers
1970 : Hague Convention on Hijacking
International Air Services
Key State interest :
-. International trade
-. Balance of trade-. Communications-. Business-. Tourism-. Employment opportunities-. National Security-. Foreign Relations