Part I – GENERAL__________________________________________________________________________________5

1. The Sources of Int’l Air Law_______________________________________________________________________5

Q? How does customary law relate to int’l law?________________________________________________________5Pre-1919 Paris Convention:_________________________________________________________________________51919 Paris Convention Background:__________________________________________________________________6

Part II: STATE SOVEREIGNTY______________________________________________________________________6

Three Air Law Issues Involving Sovereignty_____________________________________________________________61) Safety Oversight (discussed below)_________________________________________________________________62) Air Navigation System (see GNSS below)____________________________________________________________73) Commercial Regulation of Int’l Air Transport________________________________________________________7Chicago Evolution Not Revolution___________________________________________________________________7

1) Paris Convention : Sovereignty ______________________________________________________________________8Q? US - Paris Convention Problems?_________________________________________________________________8

2) Chicago Conference Background: ___________________________________________________________________8Chicago Convention : Sovereignty__________________________________________________________________9

3) Maritime Law___________________________________________________________________________________10

PART III: STATE & CIVIL AIRCRAFT______________________________________________________________12

1) What legally is an aircraft?________________________________________________________________________12

2) Civil vs. State Aircraft ____________________________________________________________________________12Q? “functional approach” w.r.t. aircraft?____________________________________________________________13Q? factors to be used in the functional approach?______________________________________________________14Q? What happens to an aircraft in the foreign sovereign air space without authorization?______________________14Q? Does Tokyo, Hague, Mtl., or apply to military aircraft?_______________________________________________15Q? Does ICAO EVER consider matter related to military aircraft?_________________________________________15Q? What can be done to clarify what is or is not a military aircraft?_______________________________________15Q? Deregulation?_______________________________________________________________________________16

PART IV: NATIONALITY & REGISTRATION________________________________________________________16Q? What is “nationality” of a ship or an aircraft?______________________________________________________16Q? What are the requirements for registration?________________________________________________________17Q? What are operating units (i.e. SAS)?______________________________________________________________18

‘ Nationality & Registration of Aircraft operated by Joint orgs or int’l operating agencies’ - Milde ______________________________________________________________________________18

Q? What about SAS?_____________________________________________________________________________19Q? Problem of nationality?________________________________________________________________________19Q? difference b/t the aircraft nationality & airline nationality?____________________________________________20Q? Can responsibilities be transferred from one state to another without changing the registry?_________________20Q? How are joint air orgs effect other conventions w.r.t. nationality & jurisdiction problems?__________________21

PART V: AIR FREEDOMS & CABOTAGE___________________________________________________________22

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1) Air Freedoms 1-9________________________________________________________________________________22Q? Do you think that Canada can grant to American Airlines the right of cabotage?___________________________23Q? How does cabotage effect EU territory?___________________________________________________________24Q? What are slots & issues thereof?_________________________________________________________________24

PART VI: DEFENCE OF AIRSPACE_________________________________________________________________24Q? What is 3 bis that resulted from the 1983 Russian / Korean homicide?___________________________________25Garcia v. Garzon - the use of force must be proportionate to the danger _______________________________25Corfu Channel (ICJ 1950’s) - Protection of human life is an essences of int’l law ____________________________26Q? Why hasn’t the U.S. ratified 3bis Chicago?_________________________________________________________26Q? What about the right of self-preservation?_________________________________________________________26

1) Air Defence Identification Zone____________________________________________________________________26Q? Are such zones lawful?________________________________________________________________________27

2) Interception of Aircraft___________________________________________________________________________27Interception of Civil Aircraft vs Misuse of Civil Aviation - Milde________________________27Hainan Incident (2001) ___________________________________________________________________________28

3. Aircraft in Distress_______________________________________________________________________________28Q? What are the implications of art. 25?_____________________________________________________________28

PART VII: UNLAWFUL INTERFERENCE AND AERIAL INTRUSIONS_________________________________29

Introduction_______________________________________________________________________________________29Aeronautical Convention Consequences - Milde_______________________________________________________29Customary Law Based Upon Incidents of Aerial Intrusions_______________________________________________30

The Fog of Peace: The use of Weapons agst Aircraft – Geiser______________________________________________30State Practice - Military Aircraft__________________________________________________________________30State Practice - Civil Aircraft____________________________________________________________________31Q? Why add 3 bis if it’s customary law already?_____________________________________________________33Misuse of Civil Aviation (discussed below)__________________________________________________________33State Practice – Criminal Use of Civil Aircraft_______________________________________________________34State Practice – Terrorist Use of Civil Aircraft_______________________________________________________34State Practice – Political Use of Civil Aircraft_______________________________________________________34Factors Leading to the Wrongful Use of Force Agst Aircraft in Flight_____________________________________34Conclusions and Recommendations________________________________________________________________35

Int’l Fight Agst Terrorism in the Air - Milde______________________________________________35

Tokyo Convention p169 Bible_____________________________________________________________________35

Hague Convention, 1970 “Suppression of unlawful seizure of aircraft” __________________________________37

Montreal Convention, 1970 for the Suppression of Unlawful Acts _______________________________________38

Mtl. (1991) Plastic Explosives _____________________________________________________________________40

Annex 17 : (p.477 vol II)_________________________________________________________________________41

Unruly Passengers______________________________________________________________________________41

PART VIII: ACCIDENT INVESTIGATION___________________________________________________________44Q? plane crashes in the high seas?__________________________________________________________________44Q? participate in an accident investigation?___________________________________________________________44Q? int’l accident investigation organization?__________________________________________________________44Q? KE 007?____________________________________________________________________________________45

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ICAO: Annex 13___________________________________________________________________________________45Q? What are the problems of Annex 13?______________________________________________________________45

2. EU Guidelines for Accident Investigations___________________________________________________________46

PART IX: INT’L CIVIL AVIATION ORGANIZATION (ICAO)__________________________________________46

1) Introduction to Int’l Organizations_________________________________________________________________46Q? What do we need to find in an int’l organization?___________________________________________________47Q? How does specialized int’l agencies relate to the UN Charter?_________________________________________47

2) Historical Background – Int’l Civil Aviation Conference (Chicago 1944)__________________________________48Q? What is the history of ICAO?____________________________________________________________________48Q? What was the merit of the Conference?____________________________________________________________48

3) Int’l Structure of ICAO – Membership, Representative Bodies & Functions_______________________________48Q? Does ICAO meet the int’l org requirements discussed above?__________________________________________48Q? What is the basic make-up of ICAO?______________________________________________________________49Q? How does one become a “Member” of ICAO?______________________________________________________49Q? How does one become expulsed from ICAO?_______________________________________________________50

4) Amending the Chicago Convention _________________________________________________________________50Q? Is the Consensual Principle for amendment problematic?_____________________________________________51

5) ICAO Executive Council__________________________________________________________________________51

a) ICAO Law-Making Function______________________________________________________________________52Q? SARPS Defined?_____________________________________________________________________________53Q? Are Annexes of the same force as Chicago?________________________________________________________53Q? How are SARPS/Annexes created & amended?_____________________________________________________53Q? Annex disapproval in whole or part?_____________________________________________________________54Q? Why are Annexes or amendments thereto very rarely disapproved?_____________________________________54

US FAA Safety Oversight__________________________________________________________________________54

ICAO Safety Oversight___________________________________________________________________________55

Q? How is the ICAO Safety Audit implemented?_______________________________________________________55Q? Environment used to regulate?__________________________________________________________________56

Q? Does ICAO regulate over the High Seas?__________________________________________________________56Q? Is Annex 2 only mandatory over the high seas?_____________________________________________________56Q? Is Annex 11 mandatory over the high seas?________________________________________________________56

Recognition of Certificates & Licenses (s.33)__________________________________________________________57Notification of Differences_________________________________________________________________________57Lack of Notification of Differences w.r.t. safety oversight________________________________________________57

Fostering the Domestic Implementation of SARPS______________________________________________________58

Procedures for Air Navigation Services (‘PANS’) & Regional Supplementary Procedures (‘SUPPS’)_____________58

Enforcement of Safety Oversight____________________________________________________________________59Conclusion : Paris vs. Chicago_____________________________________________________________________59

Aviation Safety and Security - Legal Developments______________________________________________________60Aircraft Safety: Bogus Parts_______________________________________________________________________61

b) Quasi-Judicial Function___________________________________________________________________________61

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Q? Can you appeal an ICAO decision?______________________________________________________________61Q? What are the problems w/ the ICAO Quasi-Judicial Process?__________________________________________61Other Legal Issues: Russian “Royalties”_____________________________________________________________62

PART X: GLOBAL NAVIGATION SATELLITE SYSTEM (GNSS)_______________________________________63Q? Should ICAO give GPS stnds?___________________________________________________________________65

PART XI: IATA______________________________________________________________________________________________66

1) Membership Background:____________________________________________________________________________________66

2) Two Basic Documents Establish IATA:_________________________________________________________________________66Q? Can non-schedule carriers (charterers) join IATA?_____________________________________________________________67

2) Structure of IATA:_________________________________________________________________________________________68

3) Main functions of IATA_____________________________________________________________________________________69Trade Association Function:__________________________________________________________________________________69Tariff Coordination Function:________________________________________________________________________________69Q? Why was a Conference System implemented?_________________________________________________________________69Q? What happens if a bilateral air transport agreement does not mention gov’tl approval?________________________________70

4) 3 Types of Conferences:_____________________________________________________________________________________70

Unanimity Voting Rules:_______________________________________________________________________________________70Q? What does the agency conference do?_______________________________________________________________________72

5) Misc. IATA Functions:_______________________________________________________________________________________73

6) Contract Of Carriage_______________________________________________________________________________________74Q? What types of rules do the conditions of contract contain?_______________________________________________________74

7) Conditions of Carriage are much more detailed._________________________________________________________________75a) Rules Governing The Ticket________________________________________________________________________________75b) Rules Governing Inadmissible Passengers_____________________________________________________________________75Q? When is a carrier entitled to refuse carriage to a person who presents himself at the gate?_____________________________75

8) Interline System: Resolution 780_______________________________________________________________________________75Q? Why do you have a resolution & an agreement & in what form has the agreement been made?__________________________76Q? What is the significance of MITA?__________________________________________________________________________76

9) Regional Organizations______________________________________________________________________________________77Q? Why was the regional organization set up in the first place?______________________________________________________77Q? Why was this regulated by the European Union & not ECAC?____________________________________________________78

Part XII: EXAM – HOW TO IMPROVE THE SYSTEM:________________________________________________79

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Part I – General1. The Sources of Int’l Air LawQ? What is int’l law?

Int’l law is a man made instrument – it is States political will, what they want it to be, often in the form of Treaties (bilateral & multilateral). The States themselves make the law that evolves vis-à-vis the practice of States.

It is the fundamental axiom in the UN Charter of the sovereigns rights (absolute power not subject to any o/; a sovereign, however, must have (1) territory, (2) pop. & (3) a central governing power that is recognized in the int’l community for legal & business relations – some claim “recognition” can merely be declared, o/s claim it takes more than mere rhetoric).

There is specificity to subject & to sources of law. As sovereign states are equal – hence int’l law is a creation of the states themselves vis-à-vis int’l custom (which is in practice among states & been on going for a long time); treaties in which States give their sovereign will to follow (i.e. bilateral, multi-lateral (open to all states) under the general principle pacta sunt seruanda – which is one of the back bone of public int’l law in general –“meeting of the minds of the states”). Remember law is a man made instrument to organize social relations – where conflict of interests are present (i.e. drive on the right or left – who has priority at an intersection. Law is to harmonize social relations & keep them in balance. I.e. there could not be talk of aviation law before aviation started.

Law cannot develop faster than human relations. Technology by itself creates the law. It is the human or social relations that the technology creates which require the law. Law cannot develop faster than the development of the social relations that it is supposed to govern. An individual is an “addressee” of int’l law not a subject thereof.

Q? How does customary law relate to int’l law?The fundamental source of int’l law is customary law, which eventually becomes codified (see art. 38 of the I.C.J. (Int’l Crt of Justice)):

(1) Opinio luris ac necessitatis (2) Usus Longaevus – “X” must be estab. over a “long use”: how much time is debatable.

Q? What is meant by the words “air space”?Air space is the envelope of air around the globe (highest ever reached was 80km above the earths surface). In the last century, it was romantic to think of airspace as the common heritage of mankind - It belongs to everyone. As we are all free to breathe the air, we can all freely use it for aerial exploitation & navigation.

Q? What is the developmental history of public int’l air law?The development of aviation is a consequence of the development of social relations.

1) 1871-Franco-Prussian War: The Prussians have Paris under siege. Both sides are using hot air balloons (defined as an aircraft). Under Bismarck’s signature there comes a warning to France that any balloon that would fly over territory occupied by Prussians would be dealt w/ as an intruder & will be shot down & its occupants will treated as enemy forces behind its lines. This is the first harbinger of the attitude of the nation-states.

States assert special rights in the air space & do not like people just flying around over their territory without permission.

2) Versailles Peace Conference:Pre-1919 Paris Convention:

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Prior to Versailles there was a conference in 1910 that France had convened, which was abortive, nevertheless, it had some important ideas. For ex. it gave birth to the idea that an aircraft must be registered in a particular country. However, at the conference, there was no agreement as to the airspace. The UK did not have airships in 1910 & Germany did have them & these did have the potential of reaching the UK. Hence, the UK said did wish to permit just anybody to fly over our territory b/c they wanted to protect their industry. Thus, the 1910 conference was arguably in & of itself a failure.

1914-1918 – Aviation became even more of an issue as states uniformly began to restrict airspace. There was then a consensus to proclaim that each state enjoys exclusive sovereignty space over their territory & waters – this was not a creation of a right, rather it was recognition of the right. This was all done in the shadow of war to protect oneself agst foreign intrusions. Of course in the evolution of law later in Chicago the wartime allies (enemies of Berlin, Rome & Tokyo) illustrated that those countries had their rights to do business (flying). US wanted fee airspace everywhere, but the economic protectionism prevented this via the exclusive air space of each sovereign state.

1919 Paris Convention Background:

Versailles Conference, however, started where the 1910 conference finished & adopted in October 1919 the Paris Convention on the Regulation of Int’l Air Navigation. Versailles Treaty concluded Germany was to be disarmed & can’t have military or naval aviation. Due to this rule in Versailles, people started asking what is a military aircraft? What is an aircraft & how should we regulate it? Suddenly, some people at the Conference remembered the abortive conference convened by France in 1910 that tried to negotiate the first-ever treaty on the utilization of the air space by aviation. This is the first real source of Public Int’l Air Law & says in the very first art. something very dramatic & vastly different from 1800’s thinkers who had said that air space should be an area of unrestricted access. The difference from what the 1800’s thinkers had argued for & what was actually included in the 1919 document is due to the experience of WWI where nation-states saw that aircraft could be used for military purposes & used very effectively.

Part II: State Sovereignty Sovereignty is the very core of entry into binding pacts b/t & among nations. Sovereignty is essential, but is being eroded. Yet, at the same time, sovereign jurisdictions are growing in as it continues to evolve. The adherence of State to a convention is an act of sovereignty by which that State accepts being bound by the provisions of that convention.

Every State has complete & exclusive sovereignty over the airspace above its territory & territorial waters. By its terms, complete & exclusive sovereignty implies an absolute right to take whatever action the offended state deems appropriate. However, according to custom & agreement responses are dependent on whether the aircraft was civil or military & whether it was in distress, hostile or peaceful, in a state of war or peace & the existing political climate. Political will of States must reassess the legal axiom of sovereignty and its practical interpretation and application. Aviation must no longer be perceived primarily as a potential menace to the national security it is an essential public service. It safety, regulatory and economic efficiency should be the guiding principled of regs, taking priority over national pride, prestige and wasteful protectionism.

Three Air Law Issues Involving Sovereignty1) Safety Oversight (discussed below)

Safety is one of the main objectives of Chicago. Ss. 37 & 38 established a sound & workable process of (1) collaboration by States working in ICAO to establish int’l standards & procedures; (2) incorporation by sovereign States of such standards & procedures into their national legislation & regulations & (3) immediate notification to ICAO of any departures from such int’l

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standards & procedures. Each State is expected to have & follow its own oversight procedures to ensure that standards related to safety are followed. Chicago does not allow for a situation where States do no comply & do not file differences. Although a major problem is the failure of many States to fulfill the ob they assumed to notify IAO of any differences b/t these int’l standards & practices & those that each State actually maintains. Sovereignty of States of course effectively precludes the design or use of sanctions to obtain the essential compliance.

Any State that receives flights of aircraft registered in the non-complying State has every reason to be concerned about whether int’l standards & procedures are being followed. These concerns can be exacerbated if there is reason to believe that the State of registry does not have or is not implementing safety oversight.

2) Air Navigation System (see GNSS below)Safety & universal compliance w/ minimum standards are of such overriding importance that in the absence of any system of enforcement new mechanisms are required to ensure them yet without militating agst the principle of sovereignty. ICAO policy statement holds that GNSS systems shall adhere to the following precepts: universal accessibility, sovereignty, authority & responsibility of Contracting States, responsibility & role of ICAO, technical coop, institutional arrangements & implementation, global navigation satellite system, airspace organization & utilization, continuity & quality of service & cost recovery. The full implementation of an integrated global satellite-based air navigation system is bound to infringe on States’ sovereignty. As stated by Wassenberg, “States are free to choose what they feel is right & what they think is wrong. The ultimate choice is b/t absolute independence & national freedom on the one hand & international economic, financial, technological, social & environmental inter-dependence & int’l co-operation.”

The concept of global air traffic mgmt is widely recognized as essential. Strategic airspace mgmt on a regional & global scale will employ infrastructure planning & implementation to achieve a cohesive, global system of airspace organization, supporting CNS/ATM facilities & services & corresponding airborne capabilities. In addition to cooperation & mutual trust, the formulation of many contractual legal instruments, agreements probably crafted to both maintain & yield some sovereignty at the same time will presumably be required.

3) Commercial Regulation of Int’l Air TransportChicago assigns ICAO a role “to foster the development of int’l air transport so as to be meet the needs of the peoples of the world for safe, regular, efficient & economical air transport.”

The establishment of the WTO means that there is now an additional non-aviation source of pressure for this sector to liberalize as well as a new regulatory framework available to all sectors. And it uses negotiating mechanisms that are unique to the int’l trade environment, where so-called commitments, exemptions & reciprocity are the means but where reciprocity ahs a somewhat different purpose & meaning. Whether or not the member of the WTO seek to extend the GATS coverage of aviation that body will nevertheless inevitably exert a significant impact on this as on all business sectors, simply because it has the agenda & the multilateral capability to address a number of other critical issues such as foreign investment.

Chicago Evolution Not Revolution

What will be particularly challenging for int’l air transport & for whoever & however it is regulated, will be to achieve orderly change & adjustment through regulatory evolution. Aviation in a large degree lives as a prison of a nationalist, protectionist, anti-competitive and restrict policies like no other service industry. Questions of sovereignty i.e. how much can be yielded & what must be maintained of it in a competitive globalizing, market place is negotiable but necessary. Legal tools, however, need to be devised to pursue adaptation of from national,

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regional & various int’l regulations, decisions, conventions etc.. For as was demonstrated in Chicago 1944 sovereignty is still a powerful concept in the minds of regulators & it colours attitudes to many of these aspects of int’l air transport life. But it is also under great pressure to adjust to new realities as aviation should be global, competitive, safe and economic.

1) Paris Convention: Sovereignty

Q? Did the Paris Convention create the concept of sovereignty over one’s airspace? 1 Paris Convention The contracting powers recognized that every nation-state has full & complete sovereignty

over its airspace. Bar in parem non habet imperiu = An equal does not have any power over an equal.

Sovereignty of the air is an absolute axiom & cornerstone of int’l air law; the Paris Convention did not create this right. Rather, the delegates merely “recognized” this principle. Thus, it must have existed prior to the Paris Convention as a pre-existing customary rule of int’l law as evidenced by the practice of states asserting their exclusive right since the mid 19th century & only exacerbated very vigorously during WWI.

Effectively, the Paris Convention codified the customary int’l law that every nation-state has full & complete sovereignty over its airspace (see what customary law is above). Real positive law of aviation was developed in the shadow of war & thus w/ the exacerbated concerns for safety, security, disarmament of those who started war. Hence, public int’l air law also has roots in conflict.

Q? Was the Paris Convention liberal compared to today’s standards?Yes. Under Paris, aircraft of other contracting states had the right of “innocent passage” across the airspace of the contracting states. Meaning that there was liberalism to the degree that there was a fundamental right to fly . Today, there is no right to fly that exists by itself .

Q? Did the Paris Convention separate civil from state aircraft? Yes. The Paris Convention drew a line b/t civil aircraft & state aircraft (military & other aircraft for purposes other than commercial [coast guard, customs, police, security]) purposes.

**Paris Convention Summary:(1) Drew a distinction b/t civil & military aircraft(2) Provided for a registration of the nationality of the aircraft(3) Created a rudimentary int’l organization—Int’l Committee of Air Navigation—that

was a precursor in many ways of today’s ICAO.

Q? US - Paris Convention Problems?The USA was the driving spirit for the post-WWI arrangements. Paris Convention even foresaw the drafting of int’l standards & recommended practices. These standards were to be elaborated by the Council of ICAN & formulated as annexes to the Convention. But, the annexes could be amended by a majority of ICAN. As a result, a state would sign the Convention & would be bound by its terms but these terms could be changed by a majority of ICAN. This seemed like an open-ended commitment & was a threat to a nation’s sovereignty. Thus, the US did not want join. However, others say that the USA did not join due to isolationism. Still others say that the USA did not join b/c there was no cross-Atlantic travel at the time & the USA did not foresee possible int’l problems.

2) Chicago Conference Background:US in 1925 & 1927 became party to other regional agreements (Ibero-American & Pan-American agreements). This atomization & regional agreements can be understood since aviation was regional at the time.

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The Allies before the end of the WWII started to think about post-war arrangements in many aspects. Thus, the Chicago Conference dealing w/ aviation law was convened from November 1 1944 to December 7 1944. There was no preparatory work for this conference. 52 states convened to talk about post-war aviation. The U.S. presented a package, which was very far-reaching.

The US emerged from WWII as the strongest country had interests from the rest of the countries. Thus, the UK rejected freedom of navigation (followed closely by France). The UK proposed an int’l technical & economic body that would allocate to states their share of int’l carriage. This also was unacceptable. New Zealand & Australia wanted int’l ownership of air routes by way of int’l corporations that would have sole monopoly to operate all the traffic. For example, there would be a corporation that would control all air traffic from Australia to Europe & one company that would control all traffic b/t North America & South America. Thus, all routes would be monopolized by different regional actors. Canada, however, played a decisive role in this conference. Canada conciliated the warring factions. C.D. Howe, Minister of Wartime Production in Canada, played a very important role. Canada came w/ the compromise that was eventually accepted. Canada said let us create an int’l organization which would have a strong mandate to regulate the technical & operational aspects of air navigation. Canada said when it comes to air transport & economic rights, we should relegate it to separate instruments or bilateral agreements.

Chicago Convention: SovereigntyChicago Conference adopted the Convention on Int’l Civil Aviation (Chicago Convention) which opened for signature on 7 December 1944 & entered into force on 4 April 1947. In b/t those dates, there was an agreement on the PICAO (Provisional Int’l Civil Aviation Organization). Moreover, two other agreements were also opened for signature. The first was Agreement on Two Freedoms, the second was Agreement on Five Freedoms.

1 Chicago “The contracting states recognize that every state has complete & exclusive sovereignty over the airspace over its territory.”

Thus, the territory of a state is a three-dimensional. So, the principle of sovereignty is the absolute axiom of int’l air law. However, there is no sovereignty over the high seas. Hence, there is a “freedom” of aerial navigation as well. (see safety standards though)

6 Chicago “No scheduled int’l air service may be operated over or into the territory of a contracting State, except w/ the special permission or other authorization of that State, & in accordance w/ the terms of such permission or authorization.”

I.e. one needs an accepted flight plan etc.As a result of Chicago, no right to fly for commercial purposes. No right to have a scheduled flight. Even unscheduled flying has a very dubious legal position in aviation law.You can get involved in int’l scheduled flights only if you have permission or authorization either based on bilateral air services agreement (done by nation-states) or by multilateral agreement.

The bilateral air services agreement developed in a certain format that is very similar. A bilateral agreement concluded in 1945 w/ the U.S. & U.K., which took place in Bermuda. This agreement designed a certain structure & pattern how states can achieve their rights. This was known as the Bermuda Agreement & there was Bermuda 2. Then, this was followed by a liberal bilateral format known as “Open skies.”

Q? What terms do states agree to on in these bilateral agreements?Destinations, frequencies, & capacity, are all discussed in these agreements. The basic philosophies in these bilateral agreements are equality of opportunity or equality of advantage. Equality of Opportunity means that the airlines of my country get the same opportunity in your country as your airlines get in my country. Equality of Advantage means that I want my airlines to have an equal actual benefit to the benefit your airlines get in my country.

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3) Maritime Law

Q? Can you fly over territorial waters under Chicago? 2 Chicago “For the purposes of this Convention the territory of a State shall be deemed to be the land areas &

territorial waters adjacent thereto under the sovereignty, suzerainty, protection, or mandate of such state.”

Territorial waters:In maritime law, we define the territorial waters as being no more than 12 miles (historically it was 3 miles – the distance a cannon fires). Sometimes 12-mile limit is less (b/c ano/ state is so close) other States, however, claim more ex. Ecuador & Brazil claim territorial waters to 200 miles. The 12-mile limit is seen as an integral part of the territory of the state.

However, in maritime law, there is the right of “innocent passage” for both civil & state ships (arts. 2-32). This means that the ships have the right to pass innocently through the territorial waters either b/t one part of the high seas through the territorial waters to the internal waters or through one part of the high seas across the territorial waters to another part of the high seas. Even warships have this right. The only limitation is that submarines must exercise the right of “innocent passage” in territorial waters on the surface.

A totally different situation exists in aviation. The territorial waters are an integral part of the territory & thus there is no right of “innocent passage.” Thus, you must have special authorization or permission to enter the airspace above the territorial waters. This is an important distinction.

Aircraft are also free to fly over territories of undetermined sovereignty. Places like the Arctic region. There is a Washington Treaty of 1960 of legal regime of Antarctica. The basic tenor of the treaty is that the powers that were players in that region could not agree on the legal regime for sovereignty on that area.

Contiguous Zone:Does not extend beyond 24 nautical miles – coastal State may exercise control nec to prevent infringement of its customs, fiscal, immigration or sanitary laws and regs w/in its territory and punish for such infringement as per art. 33 UNCLOS.

EEZ:Beyond territorial waters there is the EEZ, which is to 200 miles, which is a compromise in int’l law. US has a 200 mile EEZ even though they didn’t agree to UNCLOS, instead it was claimed via a Presidential Proclamation.

Effectively, the sovereign rights of the coastal state are to use the living & non-living recourses of the sea, the seabed & subsoil up to 200 miles (art. 56 UNCLOS). Coastal states have no special rights above the EEZ and cannot interfere with others right to navigation and overflight therein. ALL other States enjoy the freedoms of the high seas w.r.t. to navigation and overflight in the EEZ, in using these rights States shall have due regard to the rights and duties of the coastal State in accordance with UNCLOS and other rules of int’l law. (s.58 para 3 UNCLOS).

Note is arguable that the coastal State COULD be permitted to exercise limited jurisdiction in the EEZ w.r.t. aircraft by regulating i.e. supersonic flight generating sonic boom, levels of noise, pollution by dumping of fuel etc. After all States are obliged to adopt laws and regs to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under its sovereign and to vessels flying their flag or aircraft of their registry, taking into account SARPS and the safety of air navigation (212 para 1, 222 UNCLOS, Annex 16 Chicago), which could have direct implication on Chicago.

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Practically and in general the EEZ should be deemed to have the same legal status as the high seas.

High Seas:All parts of the sea (72%) that is not included in the EEZ, territorial sea or internal waters of the state, or in the arch pelagic waters. On the high seas all States enjoy the traditional freedoms of navigation, over flight. High seas are reserved for peaceful purposes and no State may validly purport to subject any part of the high seas to its sovereignty.

Annex 2 Chicago Effects:Adoption & amendment of Annex 2 – Rules of the Air – remains a constitutional prerogative of the Council of ICAO under 12, 35, 54(l) and 90 Chicago. The mandatory ap over the straits and UNCLOS leads to a conclusion that the States bordering the straits cannot file a difference to Annex 2 of Chicago.

States bordering straits are obliged not to hamper transit passage and must give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge. There shall be no suspension of transit passage. (art. 44 UNCLOS)

Sic Uterre Tuo Ut Alienum Non Caedas – use your right so as you do not cause damage to another.

4) Artificial Island Airport : Jurisdiction & Boundary Issues

Uius est solum eius est usque ad coelum = He who owns the land owns all the way to the heavens/stars. This, however, was prior to the existence of aviation therefore is not relevant.

Holland has no territory but wants to expand into the EEZ. Of course one can build an artificial island on their EEZ but ideas do differ as to the ability to build an airport on it. The Dutch gov’t ultimately backed out b/c the airport wouldn’t be in the Netherlands for the following reasons: (UK & France was agst it).

Is the building of an artificial island in the EEZ permissible itself? Yes, BUT….under applicable int’l law, operationally it would be a free port. As no sovereignty is involved and the rule of the high seas prevails.

What is the regime for an artificial island & the airspace above it? The island is not in the Netherlands. The artificial island is not Dutch sovereign territory. The Netherlands has jurisdiction over that island. To have jurisdiction means the freedom by the Dutch government to apply their laws & the authority of the judicial & administrative bodies. Jurisdiction is far different of sovereignty. It is one part of sovereignty, it is not sovereignty.

The breadth of the protective zone around the artificial island is 500 meters. That “breadth” denotes a two dimensional aspect, not a three-dimensional aspect. Hence, would that protective zone also extend upwards?

What would be the applicable laws of the island? The coastal State is not granted any sovereign rights outside its territorial waters, the artificial island will not be part of its territory if it is in the EEZ.

Would not the presence of the artificial island jeopardize the navigation of other states?

Can Netherlands grant traffic rights to other states to & from the artificial island?

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The traffic rights are tied to the territory of the State. It cannot be assumed that such economic rights could be granted on an exclusive basis by the coastal State w.r.t. to an airport in the EEZ which is not in its sovereign territory. Art. 58 applies 87 UNCLOS concerning over flight to the use of the air space over the EEZ. The coastal State may regulate the navigation around and over artificial island, taking into account of the IMO and ICAO. The traffic rules of Article 12 Chicago apply over the high seas. The coastal State does not have exclusive economic rights in int’l air transport. Not having such rights itself, the coastal State cannot grant them to others = Nemo plus iuris ad alium transferu. The idea of granting traffic rights is tied to the territory of the state. Thus, you give rights to fly from & to you territory. The problem is that the artificial island is not in territorial waters. The artificial island is thus not part of the territory of the Dutch Government.

Note: Additional issues will arise w.r.t to the Warsaw system and Montreal 1999 as they make their application dependent on the points of origin and of destination in the territory of a contracting State.

Note: Japan does have an airport on the sea but it is within the territorial waters & does attach via a causeway to the mainland (most expensive airport in the world – a wide body aircraft costs $60,000 to land, compared to $4,500 to land at Dorval – hence a lot of people don’t go to Osaka).

Part III: State & Civil Aircraft

1) What legally is an aircraft? The Paris & Chicago do not define an aircraft. Only secondary legal sources do, although, one such legal source where aircraft is defined is Annex 7 to Chicago, which deals w/ nationality & registration of aircraft.

Annex 7 Chicago Intro. “any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air agst the earth’s surface.”

The words “other than” were added in 1967 to make it clear that the Hovercraft is not included in the definition of aircraft. However, for the UK a registered Hovercraft on int’l sailing, for passengers the Hovercraft is classified as an aircraft & the carriage of passengers is governed by the Warsaw Convention. For the cargo though the Hovercraft is a ship & it is governed by the maritime law. Anyway, int’ly, the hovercraft is not an aircraft.

The definition of aircraft is open-ended. Thus, a kite could be an aircraft. Note, however, that the Space shuttle is not an aircraft when it takes off. However, when it is landing, it is an aircraft (according to ICAO) since it is not being power by a rocket. The Americans, by domestic legislation, have said that the space shuttle is not an aircraft. However, by int’l law, on descent, the space shuttle is an aircraft, although it really doesn’t make a difference practically b/c it lands flying over int’l waters & never flies over the airspace of ano/ state – therefore it is highly unlikely that there ever will be int’l implications whether the space shuttle is an aircraft or not unless there is an freak emergency situation that may engender the issue in some manner.

2) Civil vs. State AircraftWhat is permitted to civil aircraft is not necessarily permitted to state aircraft. For that matter, the entire spectrum of int’l air law simply does not necessarily apply to state aircraft.

Q? Why do different law apply to Civil & State Aircraft? The different types of aircraft share the same airspace, may mutually interact & should be subject to similar or identical standardized rules to secure mutual safety of air navigation. Military aircraft practice of State could form a basis for the development of customary law but it is not transparent or uniform & is often shrouded in secrecy. Since the inception of aviation States have been openly hostile to the idea that their military aircraft – tools & symbols of their military power, sovereignty, independency & prestige – should be subject to int’l regulation.

The conventions were made in the shadow of war. In those days, aircraft were tools of espionage & war. Nowadays, the things done by military aircraft in terms of espionage are now done better by a

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satellite. However, the conventions are creatures of history as they were drawn up at a time when aircraft were the main tool of espionage & thus state aircraft were excluded from the scope of applicability of Chicago.

3 Chicago “This convention shall be applicable only to civil aircraft & shall not be applicable to state aircraft.” Thus, state aircraft are not governed by this convention. ICAO has no jurisdiction whatsoever w/ respect to state aircraft & any lawmaking instruments emanating from ICAO are ipso facto not applicable to state aircraft.

Q? What, is considered to be a state aircraft?30 Paris (a) military aircraft (b) aircraft employed in State service (all o/s are deemed private).31 Paris (liberal) It granted, in time of peace, ‘freedom of innocent passage’ above its territory w/out

distinction of nationality. Although art. 32 stated that no military aircraft shall fly over nor land without special authorization.

30 & 31 Paris do not give a definition of military aircraft but rather set a presumption what is to be deemed to be a State or military aircraft.

3(b) Chicago aircraft used in military, customs & police services shall be deemed to be state aircraft. This is not a definition of an aircraft. It is only a refutable presumption. The drafters of the Convention could not have had in mind anything else but a functional approach. b/c 3(b) Chicago uses limiting language such as “aircraft used for military, customs, police etc.”

3 problems have been identified w/ article 3(b) Chicago:(1) Can certain aircraft used in military, customs or police services be considered to be civil & not

state aircraft?(2) 3(b) does not say whether aircraft used in other gov’tl services can be so deemed. Is 3(b)

exhaustive or just informative (ie Ejusdem generis) The word “deemed” creates a rebuttable presumption. However the Secretariat believes art. 3(b)’s wording of “deemed” is just another way of stating that for the purposes of Chicago, certain aircraft shall be, or be considered to be state aircraft. If drafters intended some aircraft used in the specified services could still be considered civilian they would better express their intention by using the phrase “may be deemed” instead of “shall be deemed”

(3) Convention provides no guidance as to when an aircraft can be considered to be used in military, customs & police services?

Civil or military character of an aircraft will NEVER be meaningfully determined solely on the basis of its technical features.

Q? What characteristics could distinguish an aircraft to characterize it as a military aircraft?(1) Design of the aircraft & its technical characteristics

Not reliable to define the nature of the craft.(2) Registration Marks

But this fact is not a proof that the aircraft is being USED in military services at the time.(3) Ownership

Is a valid indication if owned by the State but does not prove that it is again USED in military services.

(4) Type of Operation (Functional Approach)The nature of the flight, docs on board, flight plan, communication procedures, composition of the crew, flight secrecy could assist in qualifying a plane as civil or military.

Q? What do we mean when we say “functional approach” w.r.t. State aircraft?We mean the following: What does the aircraft does? What is its purpose? What is its actual involvement?

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3(b) Chicago wording, (& in light of art. 31 Vienna) in the absence of any other guidance suggests that the drafters had in mind a functional approach to determine the status of the aircraft as civil & military, regardless of the design, technical characteristics, registration, ownership etc. – the status of the aircrafts is determined by the function it actually performs at any given time. Persuasive value are also found in the recollection of the Chairman of the drafting committee for art.3 who wrote the “Convention is purposely less definite than some of its predecessors….The determining factor...is whether a particular aircraft is, at a particular time, actually used in one of the 3 special types of services….otherwise, it is a civil aircraft.”

Ex. F-18 military aircraft flown by military pilots “used” in a civil flight plan is NOT a state aircraft. Even “Air Force-1” the Presidential airplane has flown on a civilian flight plan (although the President was not on board – if he was it would automatically be called a State aircraft).

Insurance Issue– as insurance would likely be for civilian not military where normally an aircraft i.e. Air-Transit would be used for civil purposes but then used on a military/police mission may not be covered by their insurance policy.

Q? What are some factors to be used in the functional approach?(1) Nature of cargo carried (2) Ownership of the aircraft(3) Operation(4) Passenger or Personnel carried(5) Aircraft registration & nationality markings(6) Secrecy of the flight (i.e. flight plan filed)(7) Nature of the crew(8) Operator(9) Documentation(10) Area of operations(11) Customs clearancesThis list is not exhaustive & depending on the facts different weights must be given to different factors.

3(c) Chicago special permission & authorization is needed before state aircraft can fly over ano/ countries territorial airspace.

3(d) Chicago “The contracting states undertake when issuing regulations for their state aircraft that they will have due regard for the safety of navigation of civil aircraft.” This is an unequivocal legal undertaking of States. In practice, you have to take into account the magnitude of civil aviation in the country; otherwise you are causing a risk.

The law making power of ICAO w.r.t. SARPS is restricted to civil aircraft. In practice the definition of what constitutes a military aircraft should be very narrow & should reflect the true military mission of the flight. A possible analogy could be w.r.t. UNCLOS art. 29 w/ the definition given to a warship.

Any confusion in the actual confusion in the legal status of an aircraft could have very serious consequences & would raise doubts about the law applicable to such aircraft i.e. Chicago & its annexes, o/ int’l law instrument, bilateral agreement, insurance etc.

Q? What happens to an aircraft in the foreign sovereign air space without authorization?(1) Intercepted for purposed of identification(2) Directed to leave the violate air space by a determined route(3) Directed to land for further investigation/prosecution.(4) Forced to land for further investigation/prosecution.

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Q? How would this affect the violating State?Violating aircraft would face int’l responsibility – could have a duty to apologized, promise to penalize the individual involved, promise not to repeat such action, craft may be forfeited, crew may be imprisoned or o/ sanctions. In times of peace, however, use of force would be reprehensible & contrary to all humanitarian concepts, as it would amount to a death sentence without due process of law or right to appeal. (see 3 bis adopted as a result of Korean Air flight 007)

9 Chicago States have adopted a legal undertaking to insure that the flight of pilotless aircraft in regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft.

35(a) Chicago no munitions of war or implements of war may be carried in or above the territory of a State in aircraft engaged in int’l navigation except by permission that State & each State may define by its regulations what constitutes implements of war.

Q? Does Tokyo, Hague, Mtl., or apply to military aircraft?NO 1 para 4 Tokyo; art. 3 para 2 Hague &; art 4 para 1 Mtl. Convention. However, these conventions share the same problem w.r.t. identifying what is classified as civil & military aircraft.

Q? Does ICAO EVER consider matter related to military aircraft?Yes. W.r.t. Interception & Resolution A32-14, Appendix P calls for the application of ICAO rules of the air over high seas by military aircraft (annex 2). The “Associated Practice” attached to Appendix P also exhorts States to coordinate w/ all States responsible for the provision of air traffic services over the high seas.

More info. see “high seas” below.

W.r.t. accident investigation Chicago’s applicability will depend largely on the domestic laws of the State concerned as art. 1 states that every State has complete & exclusive sovereignty over the airspace over its territory. Thus States are not bound by art. 26 nor annex 13. This is also true where over flight permission has not been obtained by a state aircraft (ie Hainan). As a matter of practice States usually apply military rules & processes to military aircraft & personnel only.

Chicago also does not state & cannot determine whether & to what extent the flight crew of a Red Cross or other medical aircraft is given protection in war zones even where they are their to aid injured civilians as it would still have fall under a 3(b) functional analysis.

Q? What can be done to clarify what is or is not a military aircraft?Many other fields where the ICAO SARPS contained in the 18 Annexes should be made applicable to state aircraft in the interests of safety, standardization & uniformity of the legal regulation. However, this cannot be achieved without a profound amendment of the Chicago. However, nothing prevents the States themselves to accept the ICAO SARPS into their national legislation applicable to their state aircraft & thus achieve a better harmony & coordination b/t their civil & state aviation. Such action seems to imperative b/c the distinction b/t civil & state aircraft is in practice frequently obliterated as there is no reliable & generally accepted legal definition of what is civil & what is state aircraft as examples in art. 3(b) cannot be taken as all encompassing.

Among the priorities of the alignment of domestic regs for military aircraft on the int’l stnds could be the following:

(1) Personnel training & licensing (Annex 1)(2) Rules of the Air (Annex 2)(3) Aircraft Operation (Annex 6)(4) Airworthiness (Annex 8)(5) Aeronautical Communications (Annex 10)(6) Air traffic services (Annex 11)(7) Search & Rescue (Annex 12)

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(8) Accident Investigation (Annex 13)(9) Environmental protection (Annex 16)Aviation is a global activity & the interest of global aviation safety do justify balancing & harmonization of the rules, stnds & procedures & making them applicable both to civil & sate/military aircraft.

-Amendment of Chicago is not recommended b/c the procedure is difficult & when / if ever brought into force it will likely not apply to all contracting States. Interpretation is preferred & the council might consider it useful to adopt an interpretation of art. 3(b) similar to the one adopted in 1952 in respect of the “definition of a scheduled int’l air service” & giving consideration to amending the ICAO Model Flight Plan Form & Annexes 2, 6 & 9, thus clarifying what is a military aircraft.

Q? Deregulation?Deregulation started by Carter in 1976 – it’s a v. domestic issue – it really means a flexible use of the market – it was believed this would lead to further competition. Whether it achieved its purpose is yet to be seen b/c as smaller airlines started up bigger ones swallowed them up. Some big airlines also couldn’t survive. It was partnerships that survived i.e. survival of the fittest who where able to survive the competition.

The concept of deregulation is not the same as gov’tal regulation. Deregulation refers to the economic side (however, competition is even regulated as it prevents predatory pricing, etc.). There will still be a growing regulation of operation standards as the gov’t will protect & regulate flight safety, airworthiness, licensing of crews – the private sector can’t be trusted. Safety & security is the role of the State.

Part IV: Nationality & Registration

Since the abortive conference of 1910, the thinking was that aircrafts must have nationality, like a ship. The analogies w/ maritime law were prevalent. Ship has a quasi-personality. The ship has a nationality & is registered in a particular state & carries the flag of that state. Each ship on the high seas must carry a flag. If it does not, it may be suspected as being a pirate ship.

What is “nationality” of a ship or an aircraft? In involves social relations. It is a particular relation of an entity to a particular state from which some rights & duties & follow.

Nationality was first firmly rooted in the 1919 Paris Convention on Int’l Regulation of Civil Aviation. Aircraft. That means that each aircraft has a link to a particular state & from that link there flows rights & obligations.

What nationality does an aircraft have? Aircraft under art. 17 Chicago has the nationality of the state in which it is registered. Hence, the nationality is created by the act of registration. No aircraft can take off in Canada or in the U.S. or in any other country unless it is registered.

What does registration mean? 18 Chicago Double registration is not possible. An aircraft cannot be validly registered in more than one state. A registration in one state can be cancelled & substituted by new registration another state. There is no prohibition on that.

How is the registration done? 19 Chicago “The registration or transfer of registration of aircraft in any contracting State shall be made in accordance w/ its law & regulations.”

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It is lex fori that governs the registration of the aircraft in a particular country. Aircraft must also be certified as being airworthy. Without such its not an aircraft – it’s a piece of mobile property not authorized to fly. States regulated airworthiness, personnel, risk mgmt, & that parties carry the required insurance for damage that might be caused by the operation of that aircraft.

What are the requirements for registration?The laws differ very much. There is a spectrum of different requirements.

1st requirement for registration: AirworthinessNo aircraft can be registered unless it is first certified as airworthy. It must have the capability of safe flight. This is a very complex procedure.

31 Chicago [Certificate of Airworthiness] “Every aircraft engaged in int’l navigation shall be provided w/ a certificate of airworthiness issued or rendered valid by the state in which it is registered.”

Annex 8 to the Convention on Int’l Civil Aviation sets the standard for airworthiness.

European Committee has created a Joint Aviation Authority. They produce standards that are equal to those of the FAA & in some environmental aspects supersedes them

2nd requirement of registration: Most states have a provision stating that an aircraft may be registered in that state only if its owner is a corporate body having its permanent residence & its principal place of business in that country or that the owner is a citizen of that country or the owner is a permanent resident of that country.

3rd requirement of registration: Some states require prior to registering your aircraft, that you are properly covered by valid insurance policies.

4th requirement of registration: Some states require prior to registering your aircraft, that you, the owner, have a crew that is properly licensed to operate the aircraft.

National Marks:An aircraft that is registered must display in prescribed manner its nationality & its registration marks. The nationality marks are selected from the call signs of the radio stations as attributed by the Int’l Telecommunications Union. For instance, for Canada, it is C or CF. For the U.S., it is N. You will find this in Annex 7.

Q? What does it mean for an aircraft to poses a nationality?The meaning of the nationality of an aircraft is that the state concerned has some particular duties.

12 Chicago “Every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply w/ the rules & regulations relating to flight & manoeuvre there in force.”

30(a) Chicago “the aircraft may have a radio station only if a license to install & operate such apparatus has been issued by the appropriate authorities of the state in which the aircraft is registered.”

Thus, there are int’l responsibilities of the state of nationality. The state has the right to license a radio station; thereby they carry responsibility for its operation.

30(b) Chicago the radio station may be operated only by a flight crewmember who carries a special license for that purpose issued by the authorities of the state in which the aircraft is registered. Again you see the responsibility of the state.

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31 Chicago “every aircraft must be provided w/ a certificate of airworthiness issued or rendered valid by the state in which it is registered.”There is a special function of the state of nationality of the aircraft: Pilot & aircrew must be provided w/ certificates of competency or licenses which prove their competency, their skills, that they passed examinations & that they are physically & otherwise fit. That certificate must be issued or rendered valid by the state in which the aircraft is registered.

32(b) Chicago “Each contracting State reserves the right to refuse to recognize , for purpose of flight above its own territory, certificates of competency & licenses granted to any of its nationals by another contracting State.”

33 Chicago “Certificates of airworthiness & competency & licenses issued or rendered valid by the contracting State in which the aircraft is registered, shall be recognized as valid by the other contracting States, provided that the requirements under which such certificates or licenses were issued or rendered valid are equal to or above the minimum standards which may be established.”If the certificate meets the minimum standards set out in Annex 1, it must be accepted.As long as states issue certificates of airworthiness & air licenses those stnds shall (“must”) be recognized by all contracting states, which are those stnds set by ICAO.Therefore, if an Afghan plane flying out & wanting to land in Pakistan, so long as those certificates meet the min. stnds & rendered valid to min. stnds Pakistan must recognize the worthiness of the plane that wishes to land.

Q? What are operating units (i.e. SAS)?Operating units are composed of more than one state. For example, SAS. The three states that comprise the Scandinavian Airline System agreed that they would divide the fleet b/t them & thus each would register the aircrafts that belong to them.

Sweden, Norway & Denmark always negotiate & conclude their bilateral agreements jointly & each of these agreements contains an SAS clause, specially permitting that any aircraft of SAS, wherever registered, can be used for the particular voyage.

‘Nationality & Registration of Aircraft operated by Joint orgs or int’l operating agencies’ - Milde Joint registration: two or more states will establish a joint register, which will be kept by one of the states

concerned. It will contain data of registration of aircraft, which are part & parcel of the joint enterprise.

Int’l registration: registration w/ an int’l entity or body, like ICAO or the UN. However, it did & does not work. EU could create a European Union Register since they have a Joint Aviation Authority. But, even this is difficult.

77 Chicago (last sentence) Allows joint operations.-It aids the acquisition & economic operation by allowing two or more States to combine & share resources, which is of particular relevance in the developing world. -The establishment of such operating agencies creates complex social relationships on the int’l level, which may require either new specific int’l legal regulations or a creative application of the exiting rules of int’l air law. The existing framework of int’l air law does not present any obstacles to the establishment of joint operating agencies. ARAB AIR CARGO actually opened the way for development of this type of int’l cooperation.

78 Chicago Deals w/ the function of Council as they may suggest to contracting States to form a joint ors to operate air services on any routes in any regions.

79 Chicago Allows a State to participate in operating orgs or in pooling arrangements.

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The wording of Chicago sets the following basic legal conditions for joint air transport operating organizations or int’l operating agencies:

(a) Only tow or more contracting states may participate, according to art. 77.(b) Such orgs & their operations are subject to Chicago.(c) Joint orgs are encouraged in 77 Chicago (otherwise enumerated in 55 Chicago).(d) Under 79 Chicago, participation in joint operating orgs are a sole prerogative of sovereign

States; they may participate in such arrangements either through the Government or through an airline company designated by the Government & such airline companies may at the full discretion of the State be state-owned or partly State owned or privately owned.

This has imp legal consequences. As the entire arrangement has an int’l character & except under special contractual arrangements, would NOT be governed by the joint org or agency would not be applicable. This problem was foreseen in Chicago but was not clearly solved.Art. 77 uses the wording “determine” which must be construed as meaning “decide” w/ a binding force on all contracting States. A similar provision will be found in art. 12 w.r.t. rules over the high seas. Nevertheless, 12 nor 77 could be interpreted as authorizing the Council to alter any of provisions of Chicago but their object is to provide a special machinery for making supplementary rules in respect of specific matters not regulated explicitly.

Q? What about SAS?SAS (above) is not a joint operating org under Chapter XVI & its successful operational experience has not contributed in any way to the solution of the problem posed by the last sentence of art. 77. The SAS solution actually avoids, rather than solves the problems relating to nationality of aircraft operated by int’l operating agencies.

Q? Problem of nationality?‘Nationality’ of aircraft is a very new concept in int’l law & was formally established only in art. 6 of the Paris Convention, which states that aircraft possess the nationality of the State on the register of which they are entered. Chicago attaches numerous responsibilities to the State of registry. The fundamental question is whether, in case of an int’l operating agency, an entity other than a contracting State could assume those responsibilities, which under Chicago attach to the State of registry. 77 hold that the joint org is to be subject Chicago & unless Chicago itself is amended, no o/ entity but a contracting State can assume the responsibilities, which attach to the State of registry.

Meaning Red Cross or UN planes still have to be registered in a State & that State continues to hold the responsibilities so required under Chicago.

In art. 77, the partial implementation of the nationality was left in the ands of the council of ICAO, which adopted 2 guidelines (1) Joint Registration & (2) Int’l registration. Thus, each case is decided by the ICAO council as to the nationality of the aircraft at issue.

ARAB AIR CARGO decision (cooperative b/t Iraq & Jordan) they had to:(1) Bear a common mark (4YB) & not the nationality mark of any State(2) Joint register shall be separate & distinct from the national registers of Jordan & Iraq(3) Joint register shall be maintained by Jordan(4) Jordan & Iraq shall be jointly & severally bound to assume the obligations &

responsibilities which ICAO attaches.(5) Operation by the jointly registered aircraft shall not give rise to any discrimination in

other contracting States(6) Shall ensure that the joint endeavor meets their laws, regs & procedures are meet when

engaged in int’l air navigation in a uniform manner under ICAO & its annexes. (7) Must inform ICAO Secretary General w.r.t. Tokyo, Hague & Montréal which country has

been designated to be the State of registry for the purpose of registration.AIR ARAB CARGO sets a historical precedent.

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One should be skeptical of int’l registration b/c behind that registration is functions & duties. i.e. the UN doesn’t have competence to perform the nec. functions. i.e. airworthiness, licensing etc. the same applies w/ ICAO , they don’t have a mandate or authority to perform the duties. Thus, currently int’l registration is not functional.

Note: EU & SE Asia is now developing joint int’l authorities to specialize in those functions required i.e. safety & licensing. BUT they cannot manipulate the concept of cabotage. Flights that cross a boarder are still int’l flights – not cabotage just because they have an joint org.

Q? Is there a difference b/t the aircraft nationality & airline nationality?Yes.Nationality of the airline is a matter of domestic law. Aircraft has the nationality of the state in which it is registered. It is prohibited to have dual nationality. However, the process of registration is subject to national laws within the limits of the applicable int’l standards. It is the state concerned that decides who can register an aircraft & what are the conditions for registrations. While states differ on this, there are certain common features; namely, states do not permit foreigners or foreign corporations not having principal place of business in that state & they want to have genuine link b/t the owner/operator of the aircraft & the state concerned. Flags of convenience are a no—no in int’l aviation law.

-Nationality of the airline, may be different than nationality of the aircraft (Chicago doesn’t help us out here).

-Incorporation places nationality on the airline. Theory of incorp. doesn’t work in a real life as corporations are incorporated for various reasons. i.e. Linktenstein (sp.) is the world equivalent of Delaware. Theory of incorporation leads to a distortion of reality.

-Principle Place of Business determines nationality of corporation – States look to (1) substantial ownership (2) effective control. This is not part of int’l law – one exception (historical) in s.5 Chicago.

-Bermuda Convention (1977) agreement that airlines must be substantially owned & effectively controlled by at least one State.

-Bermuda II – i.e. US can only designation an airline where the airline is substantially owned & effectively controlled by that one nation – its national protectionalism. (this is not legally binding & is an obstacle to globalization). The EU broke this concept into “Europeanization” as opposed to nationalization. Protectionist policy hinder the flow of capital & development of the industry.

Q? Can responsibilities be transferred from one state to another without changing the registry?Yes. 83 bis Chicago tries to a remedy the problem where an aircraft will be leased by Air France & registered in the U.S. since the funding is coming from a US bank, which allows the US bank can receive a tax deduction.

W/out the ability to transfer registration responsibilities, which must be agreed to by both parties, i.e. France & U.S, problems would arise as an aircraft that was operated by Air France, could spend all its time away from the U.S. & yet the U.S. would be legally responsible for its airworthiness.

Hence, the adoption of 83 bis Chicago, adopted in 1980, & in force 1998, thus giving the state of registry the opportunity to delegate or transfer to the state of the actual operator some of the functions & duties which attach to the state of registry. Int’l law attaches important functions & duties to the state of registration. Sometimes, there may be situations when the state of registry cannot conveniently & effectively perform those

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functions. Thus, the door was opened through 83bis, to delegate those powers to the state of actual operator.

Q? Why is it problematic if registry responsibilities are not transferred? 60% of all the fleet flying around are not 100% owned by the operator or by the airline. The airline will buy on credit where the title has not been passed or they are being used on the basis of lease, charter or inter-change equipment. Hence, we did see that there is a distinction b/t the state of registry & the state of the actual operator. For ex, Air France may by flying an aircraft which is registered in the U.S this is a problem b/c the nationality of the aircraft, the concept of the quasi-personality of the aircraft, attaches to the state of registration is very distinct & clearly defined in int’l obligations. The state of registry has a sort of oversight or overview & thereby, int’l responsibility for that aircraft if it engages in int’l navigation.

For example, pursuant to art.12 Chicago, that the state of registration, has the responsibility to enforce the compliance w/ the rules of the air locally wherever that aircraft is. If a Canadian aircraft is in German airspace, it is the legal responsibility of Canada to make sure & to enforce that the aircraft complies w/ the rules of the air in force in Germany. Also, art. 30 Chicago, hold that it is the state of registry that issues licenses for the operation of a radio station & that the radio equipment meets the int’l standards as defined by the Int’l Telecommunications Union. One cannot stress that enough b/c the spectrum of radio frequencies is a finite resource & any interference in frequencies can obliterate any communications.

Similarly, the license for the operator of that radio station must be issued or validated by the state of registry. Additionally, the ability of the aircraft to fly (airworthiness, art. 31 Chicago), i.e. the certificate of airworthiness, must be issued or rendered valid by the state in which the aircraft is registered. Moreover, the licenses & certificates of competency of the flight crew must be issued or validated by the state of registration. Note: the converse aspect of what we are saying is in art. 33, namely; if the certificates of airworthiness or certificates of competency comply w/ the minimum standards of ICAO (Annex I of the Chicago), then all other contracting states must recognize these documents as valid.

Therefore, the state of registry has functions & obligations. Thus, for the sake of safety, we need to keep the supervision more realistic & thus in the hands of the state of the operator rather than some remote & theoretical state of registry.

Thus, the registration & the duty of the state of registry are connected closely w/ the safety of operation. & if the state of registry does not have actual opportunity to supervise the aircraft, we are facing a safety problem since an aircraft which is registered in the U.S. may be being used in France, for example, & thus the U.S. will not have the ability to carry out its duties as imposed by Chicago.

This situation, however, has been (were agreements are made b/t governments, not airline to airline) rectified by art. 83 bis Chicago, where int’l law in the form of an amendment to Chicago gives an opportunity for the transfer, not a duty, of certain functions & responsibilities from the state of registry to the state of the actual operator.

Q? How are joint air orgs effect other conventions w.r.t. nationality & jurisdiction problems?

18 Tokyo Joint air transport operating orgs, which are operate aircraft not registered in any one State shall designate the State among them which for the purpose of Tokyo shall be considered as the State of registration & shall give notice thereof to ICAO.

& Mtl. also contain a similar comprise. This solution indicates the most practical way to solve the problems relating to nationality of aircraft in the context of Chicago. However, such a solution could not apply ipso facto as it does in Hague or Mtl. as it requires a determination by the ICAO Council to become binding w.r.t. o/ contracting States.

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Conclusion:Basically, the establishment of joint air transport operating orgs or international operating agencies could be an efficient & useful method for several States, in particular in the developing world, to combine their resources to maximum benefit for their countries. In certain cases of joint air transport operating orgs or int’l operating agencies the joint or int’l registration of aircraft may facilitate the establishment & smooth functioning of such schemes. Determination by the Council of ICAO in the case of ARAB AIR CARGO indicates that the criteria, conditions & procedures could be complied w/ w/out any difficulty.

Part V: Air Freedoms & Cabotage

Under the Chicago Convention, there is no freedom to fly! States regulate it. A little leeway is found in art. 5 Chicago where non-scheduled flights state that there is a freedom allowed. But, a flight plan still needs to be given, which gives coordinates & conditions – this flight plan, however, can still be refused. Hence, really there is no freedom, as regulation exists on all levels.

6 Chicago “No scheduled, int’l air service may be operated over or into the territory of a contracting state except w/ the special permission or other authorization of that state, & in accordance w/ the terms of such permission or authorization”This is the backbone of air transport law. Thus, there is no freedom of doing business. Everything is based on bilateral or possibly multilateral agreements. 6 Chicago is the nail in the coffin of any idea of air freedom as it states no scheduled air service can be operated over or through a State without express permission from that State. An agreement / permission that the States mutuality (based on reciprocity) are granted the privilege to do so.

1) Air Freedoms 1-9

First freedom is the freedom to over-fly the territory of State B without landing. This is a freedom, which must be granted bilaterally or multilaterally.

Second freedom is the right to over-fly the territory of State B w/ the possibility of landing for known traffic purposes. This means for purposes of technical nature (i.e. repair, fuel etc.) not for commercial purposes such as allowing mail, people, etc to leave or enter the plane.Int’l Air Services Transit Agreement, signed by 131 states (p.85 bible). defines the first two freedoms.

Third freedom is the right of the aircraft of State A to fly from state of destination (State A) to the state of destination & deposit passengers, cargo, & baggage there. For ex., XXX airline flies from Amsterdam to Brussels & carries passengers from Amsterdam to Brussels. Effectively, it’s a commercial privilege to deliver passengers, cargo & mail based on reciprocity. This nec. accompanies a 4th freedom for the flight to pick up passengers i.e. from Chicago then deliver them to T.O.

Fourth freedom is the right to pick up passengers, cargo, baggage, & mail from, for example, from Brussels to Amsterdam by an airline of State A.

Fifth freedom is to carry passengers from a point prior to my home state (ie. airline is in Mt., & this airline takes passengers coming from Mexico & takes them & my original passengers to go to State B where I can deposit them & where I can pick yet more passengers & carry them to further states).Ex., Air Canada flight from Toronto to London. In London, it deposits some passengers & takes on some new passengers & takes them to London & so on. Continuing from London to Bombay & then to Singapore.

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The 5th freedom effectively allows multi-stop int’l flights – this freedom is done through multi-lateral agreements b/t A, B & C. Note some of these 5th freedom flights can be very long w/ stops all over the place. Too long.Int’l Air Services Transit Agreement, (p.101 bible). defines freedoms 3-5. There are only a few parties thereto, but nowhere is there a better or more precise definitions on the freedoms than on IASTA.

Sixth freedom. Gulf Air operates a scheduled transport b/t Sydney, Singapore & Bahrain. They also say that they will fly you to London from Sydney & we will offer you luxurious accommodation for one night in Bahrain & next day we will take you to the airport & by another aircraft of ours you will fly to London. But, British Airways & Qantas do not like this arrangement. In Australia, Gulf Air was prohibited from advertising this cheap rate to London due to the fact that Qantas could not compete. The sixth freedom is really an economic advantage that results for an airline from the combination of the third & fourth freedoms. Remember, this does not exist in law, but is commercial practice of some airlines, which is quite arguably anti-competitive in nature.

Seventh freedom. There are situations where an airline operates b/t 2 foreign states without ever going to its home country. Trying to get a reasonable rate for a trip from Singapore to Hong Kong, Milde found out that the most suitable price & timing was on United Airlines. They offered the route daily. United Airlines feed their passengers from Hong Kong to Los Angeles.

Another example: El Al had a daily flight from Tel Aviv through Amsterdam to New York. On some holy days, the religious passengers would not fly. Thus, El Al would not fly from Amsterdam to Tel Aviv & would have to wait until the next day & then it would open the flight to new passengers in Amsterdam.

Remember, this does not exist in law, but is commercial practice of some airlines.

Eighth freedom. There would be domestic carriage performed by a foreign carrier. You have to look at Art 7 Chicago b/c this freedom is known as cabotage. Many people say that cabotage is prohibited.

Art. 7 Chicago “Each contracting State shall have the right to refuse permission to the aircraft of other contracting States to take on in its territory passengers, main & cargo carried for remuneration or hire & destined for another point within its territory. Each contracting State undertakes not to enter into any arrangements, which specifically grant any such privilege on an exclusive basis to any other State or an airline of any other State, & not to obtain any such exclusive privilege from any other State.”

Cabotage, however, is generally prohibited as a State has a right to refuse it. The State does not have to prohibit cabotage. However, if it permits cabotage it cannot do so on an exclusive basis. Thus, it would not be right, within in Canada, for example, to give American Airlines on an exclusive basis to fly from Winnipeg & Toronto. In short, cabotage is allowed if the State allows it domestically – not int’ly. Although, there is in reality intra-European cabotage already in effect, so int’l cabotage does exist – even though there are those that claim it is prohibited. Cabotage is a privilege of each sovereign state.

Note: The second sentence of art. 7 Chicago is not well understood & it has been the subject of attempts at amendment.

Q? Do you think that Canada can grant to American Airlines the right of cabotage? Let’s say within our open skies, we give you American Airlines you can fly from Seattle to Calgary & continue to Toronto. Can we do it? Yes, Canada do it. It can be done but it cannot be done an exclusive basis. All you have to do is to give the right without saying that it is being done in an exclusive.

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Ex., Canada has a bilateral agreement w/ Singapore. Canada designates Air Canada & Singapore designates Singapore Int’l Airlines. However, more & more we are coming to the practice of multiple designations. So, for instance, w/ respect to Japan, Japan has designated two airlines, JAL & ANA, w/ respect to operation to Canada. Canada has designated Canadian Int’l Airlines & Air Canada.

Q? How does cabotage effect EU territory?The EU territory is an integrated airspace, within which a community carrier (that means carrier having its headquarters in one of the states of the union) can perform cabotage. So you can think that French airlines could carry traffic from Munich to Berlin. But, for the moment, it is enroute cabotage, i.e. the flight would have to start in Toulouse & then continue to Munich & Berlin. In short, nothing prevents cabotage by European countries within the EU at this time.

Ninth Freedom - “Open Skies” Very recent development, last five years or so. Initiated by a liberal U.S., which was a return to the liberalization attempts of the USA in Chicago 1944, however this time they wanted to do it on a bilateral basis.Open skies: means that a foreign airline is allowed to fly to any city in another country without any limitations as to capacity or frequency. Open Skies Agreement provides an unlimited number of designations. If you have an open skies agreement b/t the two countries, the limits are only physical & not legal.

-There very first of the “Open Skies” agreement was b/t the U.S. & Holland. This is the trend for the future. However, in the current situation, where there are great differences b/t the economic situations of many countries, it would not safeguard the equality of the partnership.

Q? What are slots & issues thereof?-“Slot” is a segment in time & space that permits the aircraft to land or take off. This “slot” is economically a v. critical issue. These “slots” can be sold. Slot allocation is often a political matter as there is also a trend to charge more for particular slots (i.e. slots in the morning or afternoon).

- 15 Chicago discusses inter alia of airport & similar charges. Basically, there must be no discrimination – that being charges must be the same for Air India as charged to Delta at JFK be they domestic for int’l airlines.

- 10 Chicago all int’l flights must go to an airport w/ customs. An airline can charge more for noisier aircraft, daytime slots etc., as long as those surcharges apply equally to everyone

-Note: Airlines that have a bidding war on slots is discrimination as only those airlines that can afford it can have those slots.

Part VI: Defence of Airspace

16 Chicago Every state has the right to search an aircraft but within a reasonable delay.

During the Cold War, weapons were used agst a civil flight. Air France was shot on by a Soviet air force jet when Air France was flying b/t Frankfurt & Berlin & the Soviet Union said that Air France went into a prohibited area. The incidents are many see following examples:

1955: El Al Israeli aircraft was shot down over Bulgaria. 64 people died. Aircraft strayed innocently over the airspace of Bulgaria. Apology given, disclaimed responsibility, but paid compensation, ICJ heard case but Bulgaria objected to jurisdiction w/ Bulgarian consent.

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1973: Israeli Occupation Forces in Sinai shot down a Libyan aircraft flying from Tripoli to Cairo whose

airport was shut down due to sandstorm. 165 people died on that flight.

1978: Korean Air Lines (707) started from Paris to Seoul through Polar Route. Thus, they stopped in Anchorage. Their Inertial Navigation System suffered a serious defect & when they were in the Polar Area they had to rely only on the magnetic bearing. Every direction was south. Thus, they mistakenly went into territory of the USSR, which was a totally prohibited area. One Soviet Jet went to intercept the airplane. The pilot told the headquarters that it was a civil flight. The headquarters said it was an intruder & thus you must destroy it. Thus, the pilot shot a missile in the direction of the Korean Air Liner but making the mistake before firing the missile that he forgot to activate the missile. Thus, the aircraft did not explode & four people died just b/c of the mechanical impact. The airplane suffered decompression but the pilot managed to land the aircraft on a frozen lake.

Countries can declare prohibited areas legitimately as per Art. 9 Chicago. Hence, the U.S. can declare no-flight zones over N.Y. when they so desire. (This would seem to be in line w/ the fact a State is sovereign & has the right to self preservation / defence)

1983: Korean Air Lines (747) Flight 007 from New York to Anchorage, Alaska. In the programming in the Inertial Navigation System, they made a one-degree mistake. Instead of flying from Anchorage in the direction of Seoul, they flew over Russian territory of Kamchatka & over the island of Sakhalin. They were over Russian airspace for one hour & Russian air defense noted that they could not find them. Two Soviet jets were sent to intercept the 747. One of the jets said that the Korean Air Lines looked like what it was: i.e. a civil aircraft. Headquarters told him to terminate the flight. The pilot still objected to the order. The pilot, reluctantly, fired two missiles. After 14 minutes, the plane crashed into the sea. 269 people died. This was mass homicide.The Soviet attitude denied any knowledge about it. 3 days later they admitted that there was a intruder whose flight was terminated.The result of this Korean Air Line incident was the Protocol for the Amendment of the Chicago Convention & the adoption of art. 3 bis Chicago.

Q? What is 3 bis that resulted from the 1983 Russian / Korean homicide?

3bis Chicago “recognizes the prohibition of use of weapons agst civil aircraft in flight & that in case of interception the lives of persons on board & the safety of aircraft must not be endangered.”

Art. 1 & Art. 3bis are co-extensive. 3Bis much like Art. 1 simplifies customary int’l law. Many scholars don’t like art. 3Bis. I (Milde), however, agree w/ it as it is based on int’l precedents, which may be the root of int’l customary law.

ICAO doc. 7300/6 says, use of armed force agst int’l civil aviation is incompatible with the norms governing int’l behaviour and elementary considerations of humanity and with the rules, SARPS enshrined in Chicago and its Annexes and invokes generally recognized legal consequences.

Garcia v. Garzon -the use of force must be proportionate to the dangerFacts: Is an int’l arbitration decision b/t the USA & Mexico. This case has nothing to do w/ aviation in the first place. It has to do w/ unlawful immigration of Mexican citizens to the territory of the U.S.. The U.S. authorities declared that a certain portion of the Rio Grande del Norte is prohibited & nobody can cross from there. National Guard was placed there to enforce it. When the National Guard saw a boat w/ people, just started shooting at them. They killed a young innocent girl of eight years of age. Issue: Whether the US use of force was justified.

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Held: Arbitration held that the use of force must be proportionate to the danger.

Corfu Channel (ICJ 1950’s) -Protection of human life is an essences of int’l lawFacts: Corfu is an island on the northwestern part of Greece. There are waters b/t the island & the mainland. The coastal state on the other side is Albania. Albania declared that navigation through the Corfu Channel is prohibited to all military ships. Many states took an objection to this. 3 frigates of the British Navy went through the Corfu Channel & they repeated this one-week later. B/t the week, someone put in the path magnetic, wartime German mines & two of the frigates were blown up w/ 80 lost lives. Issue: Int’l Court of Justice was appropriately seized of the issue, whether the actions were justified that resulted in so many deaths.

Held: Protection of human life is one of the essences of int’l law. And that even in times of war that written int’l law in force gives considerable protection to human life. The protection of humanitarian principles in times of war so much more exacting & demanding must be the protection of human life in time of peace.

Hence, the protection of human life was declared to be a general principle of int’l law. Thus, art.3Bis Chicago is a reflection of customary, general int’l law & not an innovation. That means the past acts illustrated above of shooting down these airplanes has been unlawful.

Q? Why hasn’t the U.S. ratified 3bis Chicago?The U.S. has still not ratified art. 3Bis, while the Russians now have ratified along w/ Mexico who expressed a problem w/ drug traffickers. 3bis, however, is a reflection of customary law, therefore, may apply to the U.S. regardless even if they don’t officially ratify it (see Corfu above). U.S. reasons for not ratifying:

(1) They do not want to tie their hands w/ respect to national defence. (2) 3Bis is an integral part of the Convention & hence subject to other provisions of the Convention including Chapter XVIII (that is art. 84 & following) on the settlement of differences whereby the Convention as such is subject to compulsory jurisdiction of the ICJ & the U.S. will only submit to the ICJ on a case-by-case basis.

-Note: 3Bis only applies to civil aircraft in flight.

Q? What about the right o self-preservation?States have the right to self-preservation & this is much stronger than the right to self-defence (art. 21 of the UN). Hence, states can still use deadly force agst a civil plane where so threatened. Shooting down a terrorist plane from the sky would be justified as self-preservation under int’l law. USE OF FORCE MUST BE PROPORTIONATE TO USE OF THE PERCEIVED FORCE (discussed above). Force is permissible but it must be used in proportionate (reasonable) to the assumed threat. If you use deadly force on aircraft you are not only prosecuting those on board but also executing. Where is the process of law?

1) Air Defence Identification Zone

An air defence identification zone was first established by the U.S., & then followed by Canada. It is a zone of 300 miles beyond their territory where for safety reasons; they require any aircraft entering that zone to identify itself & to state its course & destination. If they don’t they expose themselves to the danger of being intercepted.

Where there is an interception, there is clear interaction b/t civil & state aircraft as States jealously protect their airspace. Such interception is rather unusual. When it is done it is to (a) ID the aircraft (b) maybe in distress or (c) maybe in a prohibited airspace (seen in art. 9 Chicago).

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Q? Are such zones lawful? They are prima facie unlawful. However, upon further analysis we see that US & Canada claim to a 300 mile zone is not unlawful b/c they are not asserting jurisdiction (since the countries do not set any flight coordination requirements). Hence, they do not break American or Int’l Law – in fact they are inline with art. 11 Chicago. The result of not identifying one’s self leads only to interception for safety reasons? Although, it is undesirable since the military aircrafts are coming too close for comfort w/ civil aircraft.

Art 3Bis confirms that the use of force is contrary to int’l law. Art. 3Bis does not create the prohibition of arms in interception. Rather, this prohibition as a long-standing principle of Int’l Customary Law.

2) Interception of Aircraft(see 3 bis above & discussion of civil vs military aircraft)The American & Canadian ID zones do not mean that they declare rights over the high seas, rather they only want info. w.r.t. self-preservation & safety –note the preamble of Chicago may also be read to allow such ID Zones. Nonetheless, were an aircraft w/in the zone & fail to ID oneself, it would be intercepted.

Interception means that air fighters would check them out to see if they have communication problems. They may also force it to land. Although int’l law says that a country can’t normally use weapons to force landing of an aircraft. HOWEVER,Every State does have the right to self-preservation, which means in cases of vital emergency civil aircraft can be brought down w/ weapons regardless if int’l law states that you can’t use weapons to bring down a civil aircraft as stated in art. 3bis, which in fact only recognizes the already existent customary law not to use weapons agst civil aviation.. Of course making such a decision to bring down a plane who fails to ID themselves is a rather difficult decision to make.

Again, no rule of law would prevent the right that flows from natural law of self-preservation. Note, however, that every use of force must be reasonably used in proportion to the presumed threat (as discussed above).

-Even the so-called military aircraft are obliged to behave in a manner not to jeopardize civil aviation as per 3(d) Chicago. Some argue that ICAO went to far as art.3 Chicago says that the convention doesn’t apply to state aircraft. However, we cannot over look 3(d) & 3bis so easily for here it is specifically prohibited use of weapons agst civil aircraft. And art. 4 says that each State will not use civil aviation for purposes inconsistent w/ the aims of the Convention itself.

-Remember, ICAO agreements are an expression of wills – a resolution (a unanimous expression) – it’s not a treaty. Although, it does carry weight as this is how (over a time) such an expression can become a source of int’l law. BUT, such resolutions are not legally binding on the States. ICAO can put additional practical aspects of aviation security into a proposal that will then be researched by experts & may (who knows) turn into a proposal that a country will make law. For example Resolution A25-3 calls upon States to seek to harmonize procedures for the interception of civil aircraft when issuing regs for their state aircraft.

Interception of Civil Aircraft vs Misuse of Civil Aviation - MildeThe basic argument of the opponents was that the introduction of SARPS relating to interception and dealing with state aircraft would contradict the provision of 3(a) Chicago. Others argued that it dealt with safety of civil aircraft. Commission adopted a compromise based on technical and operational consideration to achieve the widest acceptance. Resulting in a watered down text of para 3.8.1.

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-Amendment 27 of Annex 2 passed by exactly 2/3rds pursuant to art. 90–The US in fact, although not in favour of the amendment, never registers disapproval although they did make a declaration of principle contrary thereto.

Hainan Incident (2001)Facts: US EP-3 reconnaissance aircraft was forced to land on Hainan Island by Chinese fighter jets. The EP-3 was performing “routine” surveillance about 83 miles of the mainland. Pilots made two passes of the EP-3 within 1.5 meters. The US previously logged 2 diplomatic protests where US pilots were being harassed. Normally, separation b/t civil aircraft is 8km (5 miles). On the 3rd pass one of the Chinese pilots made contact w/ US aircraft, which caused the EP-3 to become unstable, hence an emergency landing was needed on Hainan Island. Emergency calls were made, but response was not heard, permission was not given, although the aircraft did land safely on the military runway. At the end of 11 days the crew was released as US claimed they regretted the incident. Aircraft, although could have been flown out but instead China said that it was to be disassembled. Chinese claimed costs of 1 million in housing. US offered less than half that – still yet to be resolved. Issue: (1) Was the interception lawful? (2) Was the information collection lawful? (3) Whether the emergency landing was legal?

Commentary:1 Chicago States enjoy complete sovereignty over their airspace. 2 Chicago Aircraft used in military services shall be deemed to be State aircraft.3 Chicago Convention does not apply to State aircraft, but art. 3(c) is imp. w.r.t. landing. (1) The interception at first have been deemed lawful but once this engendered lives it was not legal. I.e. art. 3(d) holds that military aircraft are obliged to behave in a manner not to jeopardize civil aviation, however, it was a State aircraft intercepting ano/ State aircraft therefore Chicago would not apply. Although, one may argue that the same principle is part of customary int’l law & was violated by the Chinese. (2) Information collection was lawful as it was over the EEZ not the territorial waters & was not done covertly. (3) Emergency Landing – art. 25 Chicago states generally that each State is legally obliged to provide a measure of assistance to an aircraft in distress. Hence, the landing was legally permissible.

3. Aircraft in Distress

25 Chicago An aircraft can be in distress for all sorts of reasons: loss of navigational means, low fuel, fire on board, hijacking & anything that jeopardizes the normal operation & put the joint venture (community of the aircraft, crew, passengers, & baggage) into some jeopardy.

Int’l law imposes on all 189 contracting States of ICAO, a duty to provide measures of assistance as they find practicable. Only the state concerned can judge what is practicable.

Q? What are the implications of art. 25? There is a duty to permit that the state in which the aircraft is registered or the owners to provide such measures of assistance as may be necessary. There should be coordination in search & rescue operations.

Ex. If an aircraft is hijacked, & the hijackers want to land at airport X & make a political statement at the airport you would let it land since the aircraft is in more distress if it is forced to stay in the air.

This assumes basic principles of int’l law (humanitarian concern for life) & should be kept in mind in dealing w/ art. 25. (see Corfu Channel above)

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Part VII: Unlawful Interference and Aerial IntrusionsIntroduction

Aviation security is essentially safety from man-made acts (criminal acts of which the target is int’l transport & aviation).

Terrorist acts using airlines is due to the publicity ultimately given for a particular grievance. The law is one way to deter such acts, however, it is only one tool to protect aviation, as it is only a general prevention to legislate that X act is dangerous & will produce criminal punishment in the end. Law alone is will never eliminate certain acts (i.e. murder & rape still exist). Drafting a perfect convention only produces general results – people commit acts of crime without serious consideration of being caught or the ramifications their actions will induce at the end game.

Aviation security is a global problem, single action will never do away w/ the danger,– the weakest link determining the overall security of aviation. It would be a folly to limit the roots of violent acts of aviation into one geographical area. Yes there may be a focus in one area from time to time but this is not the case when looked at throughout history. No one country in the world will ever be immune from aviation security problems.

History of legislation: 1958 Fidel Castro’s brother hijacked 2 airplanes (DC-3s) & lost public sentiment when one of them crashed. 1968 ICAO assembly in Buenos Ares wouldn’t put hijacking on the agenda. But, then the Cuban minister asked for an appointment w/ pres to discuss hijacking w/ Milde as Cubans wanted to stop hijacking brought to Cuba – it was costly & dangerous. Thus, ICAO people started to discuss safety & security w.r.t. hijacking & the council drafted a convention that was to have political obstacles.

-14% of criminal aviation attacks are terrorist attacks.

Criminal Jurisdiction is (1) personal (law of the person), (2) territorial jurisdiction (laws apply where the act took place) & (3) Universal jurisdiction, that being acts committed by whomever wherever. Hostaes humani generis – enemies of mankind = how pirates were treated, anyone who lays hands on them could prosecute & punish them. This is rare but used in int’l law. Note: Hijacking is not the same as piracy & drawing parallels is not accurate; perhaps mutiny may be a better consideration.

-Crimes of War at the Hague were slowly developed to include crimes against peace. Of greatest impact is that of crimes against humanity (i.e. Nazi violent treatment of their own citizens – those being German Jews).

-U.N. then adopted a policy against genocide.

-1929 Convention of Counterfeiting Currency was actually a watershed mark as states wanted to protect the integrity & stability of their currency. All states the same interest & giving every state power jurisdiction to prosecute criminally for this act was given regardless of which currency was being counterfeited. This is another example of the principle of universality.

FYI: Int’l stnd - nobody over 60 is allowed to be the commanding seat an int’l flight (left seat).

Aeronautical Convention Consequences - MildeChicago in times of war:

The term “war” should no longer be a part of the vocabulary of int'l law. It is only used in the preamble to the UN and at art. 89 in Chicago.

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89 Chicago In case of war, the provision of the Convention shall not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals.This is similar to art. 73 Vienna Convention on the law of Treaties

-The applicability o int’l convention during war or hostilities is to some degree a legally gray areas which the Vienna on the law of Treaties does not address.

-It could be argued that in the specific are of int’l air law the outbreak of hostilities would not suspend the duty of States to refrain from the use of weapons agst a civil aircraft in flight (belong to a belligerent or a neutral State) and in case of interception, not to endanger the lives of people on board and the safety of aircraft.

-A state however still has a right to self-preservation and world opinion will depend on the facts of each individual case w.r.t. necessity and proportion of force used.

Customary Law Based Upon Incidents of Aerial IntrusionsResponses to incidents indicate that civil and military aircraft are treated differently by custom and by necessity. U-2 incident support the proposition that force may be applied w/out warning agst a military aircraft that has intruded into the territory of another state on a definite and deliberate military mission.

See below for more. The reason, however, for different treatment is b/c every state has the right and obligation to protect itself and its people from hostile action to include intelligence gathering activity.

Chicago does NOT specifically rule out the use of force agst civil aircraft. Annex 2 rather makes a strong case agst the use of force agst civil aerial intruders. The general theme of Annex 2 is that interception should only utilized in rare instances and with the safety of the civil intruder as the prime consideration. Based on customary int’l law analogies can be draw from the Corfu Channel and Garcia cases, the Chicago and Annex 2 mean that the use of force agst civil aircraft is not justified. The only exception that has been recognized is if there is a vial security interest at state but this threshold (considering Israel downing a Libyan jet) is extremely high. Thus far, no nation has shot down a civil airliner and successfully used the security exception as a justification – although SEPT 11th would have met this threshold (however then it Domestic flights and crafts were used).

The Fog of Peace: The use of Weapons agst Aircraft – Geiser

38 ICJ Int’l law can develop from the treaties and convention states ratify.

-Customary int’l law requirement that the use of force in self-defence be both necessary and proportional under the circs. Factors considered are if the aircraft was inside or outside the territorial airspace of the State using force, the civil or military character of the aircraft, and the amount of effort expended by the State to resolve ambiguities in the situation prior to using force.

State Practice - Military AircraftUse of weapons agst military aircraft intruding into foreign airspace on a military mission has been tolerated. i.e. Military flights by Gary Powers in the U2 over USSR and USSR’s flight over Japan, which were both intercepted by the use of force, demonstrates that such action was implicitly allowed as the world community fell silent w.r.t. the use of force agst the intruding military aircraft into

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one’s sovereign airspace. As also shown by USSR’s attempt to place the US U2 flight and the Catalina Flying Boat Incident (1952) in USSR airspace (and the US claim and the Swedish gov’ts claim that their aircraft was in int’l airspace) illustrating that the use of force agst a military aircraft operating in int’l airspace or airspace of ano/ nation is not acceptable under int'l law.

State Practice - Civil AircraftRule of customary int’l law prohibiting use of weapons agst a civil aircraft in commercial airspace. i.e. (1954) Two Chinese MIG fighters shot down a British Airliner, the Chinese gov’t apologized and offered to pay compensation for the aircraft and loss of life.

Prohibition agst use of weapons agst civil aircraft even if in foreign airspace w/out authorization.i.e. Israeli El Al was shot down by a Bulgarian plane 5 miles inside their boarder. Bulgaria offered apologies and compensation. Bulgaria never suggested it had a right under customary int’l law to use force agst an intruding civil airliner, although it did have a right to defend its sovereignty but the response in this case was not proportional to the threat posed.

Problems cases:Identifying if an aircraft is civil or military; whether it was inside of territorial airspace or not at the time of the accident. Military marking and high-performance flight characteristics will, in practice, generate a rebuttable presumption that the aircraft posed a threat that justified the use of force in self-defense. Similarly, an aircraft with civil marking generates a presumption that it did not pose a threat sufficient to justify the use of force in self-defence.

If it is a State aircraft that flies over sovereign airspace then that State has the burden to innocently explain why it was there and that it was not a threat. If such evidence can be shown i.e. force majeure or poor navigation then the burden shifts to the territorial State to produce evidence it took reasonable steps to clarify the situation prior to using force as what was done when Yugoslavia shot down a US military aircraft forced into it’s airspace by bad weather. Yugoslavia offered compensation and to refrain from the use of force agst US transport aircraft in the future.

Israel shot down a Libyan civil aircraft in Israeli airspace and even though the airliner didn’t respond to communications from Israel plane to land it was still held that force was unjustifiable. However, Israeli Chief of Staff did state that Israeli military, “could not discount the possibility that a civilian aircraft could come into [Israeli] territory on a hostile mission.” Although, had they known it was a civil aircraft they would never have shot it down.

The Israeli case suggests that the use of force agst a civil airliner being used for commercial purposes will be condemned whether or not the State employing force preceded such use with a good faith attempt to communicate with the aircraft and direct it to land.

In short (thus far):A state’s right to use force agst an aircraft in flight during peacetimes is based on the degree to which that aircraft poses a threat to the vital interest of the Sate using force and the availability and effectiveness of lesser measures. Military aircraft intruding into foreign airspace on a military mission constitute a sufficient threat to justify the use of weapons in self-defense. This appears true both for tactical military aircraft and for unarmed military aircraft for intelligence gathering purposes. State practice also suggest that an aircraft with military markings will be presumed to be on a military mission unless ev is produced to the contrary by its state of registry. The Israeli shoot down of the Libyan, The Bulgarian action agst the Israeli, the Soviet shoot down of KAL (1978) and KAL 007 (1983) & the Chinese action agst the British airliner reflect similarly widespread agreement that a State may not use weapons agst an aircraft w/ civil markings unless it is clear that the aircraft is being used for a military purpose. Absent compelling ev to the contrary from the overflown state, an aircraft w/ civil markings will be presumed to be engaged in non-military commercial activity.

Uncertainty arises where civil aircraft engaged in non-military activity, which refuse directions from the State overflown. No reported cases where a State has claimed the right to shoot down an aircraft with civil markings under such circs. While refusal to land may be some ev that the aircraft is not engaged in innocent activity, it appears unlikely that this would be sufficient on its own to overcome the presumption agst using weapons. This is true given the limits of necessity &

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proportionality placed on the use of self-defense under customary int’l law. (SEPT 11th may have changed this somewhat)

Chicago Convention3(d) requires States to undertake, when issuing regs for their State aircraft, to have DUE REGARD for the safety of navigation of civil aircraft. It imposes no specific operational limits on military aircraft, the words do bound the use of such aircraft in national self-defense insofar as the provision reflects the customary int’l law that force be used only when necessary and then only in a manner proportional to the perceived threat. Effectively, 3(d) codifies the existing customary int’l law.

Appendix B to Annex 2 promulgates standards for interception of civil aircraft which incorporate the due regard language of art. 3(d). Annex B provides the interception of civil aircraft should be avoided and should be undertaken only as a last resort. Interception should be limited to determining the identity of the aircraft, unless it is nec to return the aircraft to its planned track, direct it beyond the boundaries of national airspace, guide it away from a prohibited, restricted or danger area o instruct it to land.

Adoption of Amendment 27 to Annex 2 is a watershed quasi-legislative work of the Council. First time a comprehensive set of Stnds was adopted relating to the interception of civil aircraft. The amendment includes a comprehensive set of “special recommendations” which have no legally binding force, but States have been invited to notify any departure from these. It is believed a large degree of uniformity has been introduced for interception procedures and that the safety of int’l civil aviation will be enhanced. So far no State has registered a formal disapproval to the amendment and it has become effective since 27 July 1986.

Attachment A to Annex 2 includes recommended intercept procedures. While these recommendations are intended to foster uniform practices, they are not binding on a state party to Chicago w.r.t. to employment of military aircraft w/in the state’s territorial airspace.

3 bis Chicago forbids uses of force agst civil aircraft.

(a) ob of States to refrain from resorting to the use of weapons agst civil aircraft in flight(b) ob in case of interception not to endanger the lives of person on board and the safety of

aircraft.(c) right of States to require landing where civil aircraft is flying without authority or if there

are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of Chicago. “aims” was meant to include not only those violations as spelled out in the Preamble and in art. 44 but also w.r.t. transport of illicit drugs, contraband, gun running, illegal transport of persona and anyo/ common crimes.

REMEMBER civil and state aircraft would not enjoy the same protection under 3 bis. Moreover, 3 bis is reserved to foreign aircraft & does not include aircraft of the State’s own registration as this would have exceeded the scope of the Convention which deals with int’l civil aviation (3(a)). Nonetheless, a State is still not free to treat aircraft of its own registration w/out regard to any rules as other sources of int’l law may relied on (i.e. Int'l Covenants on Human Rights) for the conduct of States (protection of the right to life, requirement of due legal process, presumption of innocence etc.).

Note 3 bis para (a) does not exclude enforcement agst foreign aircraft in flight and does not rule out the use of adequate and proportionate force and does not rule out interception as such. Any act of interception or other enforcement measure not involving the use of weapons agst civil aircraft in flight is legit and acceptable Any interception procedures consistent with the SARPS pursuant to 37, 54(1) and 90 would be consistent with relevant rules of int’l law.

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Moreover, other provisions of 3 bis that are likely to deter misuse of civil aviation is:1) Civil aircraft are unconditionally obliged to comply with an order to land and (c) is an ob to establish all nec provisions in the national law or regs to make such compliance mandatory, States are also accepting an ob to make violation of such law or regs punishable by severe penalties and to submit the case their authorities. Hence, the violator will be punished.

2) All States are accepting an unconditional ob to take appropriate measures to prohibit any deliberate misuse of any civil aircraft of their registration or operated by one having his principal place of business or permanent rez in that State.

Q? Why add 3 bis if it’s customary law already?The need to amend Chicago and add 3 bis, which is only recognition of int’l customary law, as expressed by Dr. Assad Kotaite, is b/c the “int’l community believes that only written law can remove the uncertainties of the o/ prime source, customary law, it fill existing gaps in the law and gives precision to abstract general principles, the practical aps of which have not been previously settled. … a written rule is far superior to general principles recognized as customary law b/c frequently the very existence of a customary law or its exact scope and content may remain subject to change.

Dr. A. Sciolla-Lagrange, “Words fly away but what is written remains forever.”

Tokyo : Other Legal Aspects: States can exercise criminal jurisdiction over foreign aircraft in flight under Tokyo art. 4, which permits “interference” with an aircraft in flight in order to exercise criminal jurisdiction over an offence committed on board in the following cases:

(1) offence has effect on the territory of such State(2) offence has been committed by or agst a national or permanent rez of such State(3) offence is agst the security of such State(4) offence consists of a breach of any rules or regs relating to the flight or maneuver of

aircraft in force in such State.(5) the exercise of jurisdiction is necessary to ensure the observance of any ob of such State

under a multilateral int’l agreement. 4 Tokyo is an imp addition to clarify 3 bis Chicago w.r.t. the interception of the term “any purpose inconsistent with the aims of the Convention.” As any offence foreseen in 4 Tokyo gives right to the State concerned to interfere.

Misuse of Civil Aviation (discussed below)4 Chicago is the only provision that explicitly uses the words “misuse of civil aviation” and is of no

relevance to the problem of criminal use of civil aviation (i.e. drug trafficking) since it refers only to the obs of States and to the acts of States. Drafting history of art 4 indication that it was to prevent the use of civil aviation by States for purposes, which might create a threat to the security of other nations. Thus art. 4 effectively mean “threats to the general security”. What Chicago does not address, however, is the manner in which a State may enforce their rules and regs agst an intruding civil aircraft being used for a purpose inconsistent with article 4.

11,12 and 13 Chicago confirm the rule of general int’l law that foreign aircraft, its crew, passengers and cargo do not enjoy any “extraterritorial” status while in the airspace or on the ground of another State, such aircraft are fully subject to the applicable laws of the State concerned. As a State may require the landing of a foreign aircraft involved in non-scheduled flight (art 5) may prohibit or restrict foreign aircraft from flying over its territory (art 9) may require landing of foreign aircraft at a customs airport

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(art. 10) and may search the foreign aircraft 9art. 16) and may regulate or prohibit the carriage of certain goods (art 35(b)).

State Practice – Criminal Use of Civil AircraftColumbian gov’t adopted a shoot down policy – Civil aircraft were subject to being shot down (1) if they flew w/out flight plans (2) did not respond to radio contact by pursing military aircraft and (3) if they ignored visual signals to land.

US has claimed a right under int’l law to use weapons agst civil aircraft engaged in drug trafficking. There is no record in ICAO giving an opinion on this assertion thus one may imply broad int’l consensus that the use of weapons agst civil aircraft used for drug trafficking does NOT violate int'l law. This may be limited, however, to cases where the scope of drug trafficking is such that it can reasonably be construed to have grown from a criminal problem to a national security issue.

State Practice – Terrorist Use of Civil AircraftUS intercepts Egyptian aircraft with terrorists as passengers over int’l waters and force it to land. Egypt here had a clear ob to either prosecute or extradite terrorists, it has been argued that the American action was a very limed use of force and reasonably nec and proportionate under the circs to assure the enforcement of int’l criminal law on behalf of the int’l community and within the meaning of the preamble to the UN Charter. Nevertheless, the use of self-help to intercept terrorist in flight over int’l waters remains unsettle. Irrespective of the legal arguments, the ultimate litmus test of the legality of any sate practices is the acceptance of that practice by a substantial majority of the international community.

Post SEPT 11th this seems like it would be allowed. US has even decided that it will go into a sovereign state airspace in search of a terrorist. Israel did this in 1973, however, no terrorists were found on the plane. Worldwide condemnation was immediate and severe. Israel was over the sovereign airspace of another but perhaps worse still they didn’t find who they were looking for, which might have made all the difference w.r.t. public opinion.

The issues of self-help ultimately come down to the necessity and proportionality. At present, the legality of using weapon or the threat of weapons agst civil aircraft being used to transport terrorist remains unclear.

State Practice – Political Use of Civil AircraftCuba shot down 2 civil air craft used for political uses (one of which entered Cuban airspace). ICAO Council DEPLORED Cuban action but no sanctions were taken. The issue was whether the use of civil aircraft for political purposes intended to destabilize a gov’t is sufficient to threaten that gov’t to warrant the use of weapons. Int’l law does not appear to recognize the right of a Sate to use weapons to protect a particular gov’t or leader from political as opposed to physical harm.

Factors Leading to the Wrongful Use of Force Agst Aircraft in FlightUse of weapons agst intruding military aircraft will almost always be tolerated unless circs clearly show that the aircraft did not in fact pose a threat and that he state using the force did not exercise reasonably diligence in attempting to determine this fact. The use of weapons agst intruding civil aircraft, however, will seldom be tolerated unless the state using force can produce ev that the downed aircraft was being used for a military purpose or for a purpose which, while non-military, nonetheless poses a substantial security risk to the subjacent state. One must distinguish, however, action that threatens the subjacent state from actions that merely threaten the political viability of a particular gov’t or leader. It appears that he int’l community is fare less willing to tolerate the use of weapons agst civil aircraft being used for such political purposes.

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Conclusions and RecommendationsWhile the use of weapons agst civil aircraft used for terrorist or drug trafficking purposes has received a certain amount of support from the int’l community, it is unclear whether this represents the emergence of a firmly rooted exception to the prohibition agst using weapons agst civil aircraft. Post SEPT 11th, however, I believe this is likely.

Mistaken shoot down can be lessened by better training and by following uniform intercept procedures. ICAO could also create a body to facilitate and oversee payment of compensation of victims of civil airline accidents. It can mandate a nation to pay compensation where there was not a threat to national security, on a strict liability basis, without regard to fault to alleviate political concerns of offering payment will be coloured a guilt/liability.

The military/civil distinction may still have value to allocate the BOP after shot downs, it is not an adequate rule of decision for those whom must defend their nations. Misuse of civil aircraft can as demonstrated by SEPT 11th pose a great threat to national security as military aircraft. Analyzing shoot down incident in terms of the threat posed and applying the requirement of necessity and proportionality seems far more likely to result in a reasoned balance b/t airline safety and a national security interests than a debate centered on generalized presumptions based on what the downed aircraft looked like. ICAO should address the growing threat posed by the increased misuse of civil aviation for terrorist, criminal or political purposes. Suggesting that ICAO rules requiring States to severely punish those involve underestimate the nature and scope of the problem and does little achieve a proper balance b/t safety and commercial aviation and legitimate national security interests. Why should the US be a leader in requiring locked cockpit doors and making the doors reinforced? It’s time to lead instead of follow.

Int’l Fight Agst Terrorism in the Air - MildeSafety of air navigation and air transport essentially means “absence, avoidance or prevention of a danger” to the passengers, crews, aircraft and 3Ps. Aviation is used by terrorists b/c it is essential to economies and cooperation, is highly visible, attacks agst it receive large amounts of publicity and is actually quite vulnerable.

Aviation Security remains an overriding priority of ICAO as stated in Resolution A29-5 (1992). However, the law will only offer a general prevention and is only one of the tools for mgmt of overall security.

Tokyo Convention p169 Bible There are 180 States that are signatory to Tokyo, which is rather strong contribution to int’l law – one can argue is now even customary int’l law & applies regardless if a nation has signed it or not. It was the 1st aviation security convention. It didn’t start as an aviation security convention it took a drunken man hitting people over the high seas & NY authorities said they didn’t have jurisdiction for this convention to deal w/ security issues. Scope of application of Tokyo is rather general as it applies to penal criminal law that jeopardizes safety of aircraft & of persons thereon to be of good order while on board.

3 Tokyo Vests jurisdiction into the State of registry of the aircraft.

4 Tokyo A state where one is not a signatory cannot take an action unless the offence affects the territory of that territory, national, etc. This appears to derogate from the general provision of Chicago at 11-13.

6 Tokyo says that an aircraft commander can take reasonable measure to maintain good order (i.e. restraint).

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8 Tokyo Commander may disembark the passenger at any State upon landing. The forced landing costs will be passed on to that passenger.

16 Tokyo Where a criminal offence a commander has a duty to deliver the criminal to the contracting State. It’s an informal form of extradition of the landing state.

11 Tokyo Hijacking is “unlawful seizure of aircraft.”Concerns raised that this was overly broad as a SC could seize an aircraft that could be later held to be illegal – would this then be hijacking?!11 Tokyo deals w/ unlawful seizure of aircraft. It does not deal w/ hijacking? It applies to the aftermath / consequences of the act. The only duty adopted is that of a state where it is landed to restore the aircraft to the control of the commander & second to permit the passengers the to continue w/ their journey. This only covers the consequences of the hijacking but is an obligation on the State where the airplane landed.

Tokyo does not stipulate a penalty & does not provide for extradition.

Tokyo Benefits :(1) commander of an aircraft has the right to restrain reasonably a passenger (6 Tokyo). (2) commander has the right to disembark a passenger that is disrupting. (8 Tokyo)(3) commander can deliver person to authorities in a signatory state (16 Tokyo)(4) commander can order crew members to take action as need nec. for the situation. (5) commander can authorize fellow passengers to assist restrain an unruly passenger.

Q? Is Tokyo helpful in terms of security aviation?

Tokyo convention was a pioneering legal effort that created specific jurisdiction w.r.t. states of registry, offences, & other acts that effect safety & discipline on board. This has been around for a long time w/ ships but relatively new for aviation.

1963 something more specific should be done w.r.t. seizure of aircraft (namely issues involving Cuba & Israel). These passengers were sometimes held by X country for illegally entering their country even though they were hijacked there. Due to this an article 11 of Tokyo put an int’l legal duty on to States to oblige the state to restore control of the aircraft to its lawful commander & permit the passengers & crew to continue w/ their journey. Tokyo is not very good, but is better than nothing as it provides the above enumerated benefits. And the crew is also sheltered where the captains request a member to do something. Additionally, a passenger is also sheltered from liability where the captain requests their services i.e. in dealing w/ an unruly passenger.

Tokyo was progress BUT it doesn’t apply to any specific act. Its very general. It gives the state of registry jurisdiction but then what if the aircraft lands in Cuba. There is also no duty in Tokyo to impose a legal duty to prosecute. Recall the registry may be in Ireland but the illegal act may take place in France, were the impetus for a court in Ireland to prosecute for an act over another country. This is a weakness of the convention. Another flaw is that there is no offence is enumerated or defined therein. Additionally Tokyo is weak b/c:

(1) has a lack of definitions(2) while it creates a jurisdiction it doesn’t require the duty of that jurisdiction take an action (3) Tokyo does not deal with any specific criminal act (such as unlawful seizure).(4) doesn’t mention extradition as a duty of the state either.(5) Art 4 Tokyo says that a state where one is not a signatory cannot take an action unless the offence affects the territory of that territory, national, etc. appears to derogate from the general provision of Chicago at 11-13(6) Sole jurisdiction is not very helpful in the current economic reality, when many aircraft are registered in one State but are operated in ano/.

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Hague Convention, 1970 “Suppression of unlawful seizure of aircraft” Act of seizure of control of an aircraft was an epidemic in the 1960’s. There were mixed feelings on this as some saw it as a political act & some were sympathetic of the act. Int’l community, however, started to understand that this was a very real danger as routes were not set out in the flight plan they may not have fuel or know where they are going.

Hague Convention in turn was created, it was a fabulous compromise but it left nobody happy. 1970 was a cold war period & to make such agreement was really a major achievement in & of itself. The Hague Convention was a success as to the nature of the subject, its urgency, & procedure allowed for this to take place.

Terrorism1 Hague Best possible definition of a terrorism act.

Unlawful act, in flight (merely means that outer doors are closed – the plane doesn’t have to be airborne), w/ intimidation, to seize control aircraft, accomplice – the definition is as exhaustive as possible. (Means doors are closed, not nec. in the air). The intimidation doesn’t nec. have to be onboard. I.e. either we go to Havana or in 10 mins. your house will be on fire. This is intimidation. States were eager to limit this to a int’l development for if it was domestic then domestic law would apply hence art. 3 of the Hague, which states there must be an actual landing in a foreign jurisdiction.

Punishment2 Hague States that every nation will make the one guilty suffer severe penalties.

What does severe (in the Russian version its “brutal”) mean? In some nations this may mean capital punishment o/s not.

Jurisdiction4 Hague deals w/ jurisdiction - that being when the offence is committed on board & the plane lands

in the territory. Para 2 states that each K’ing State can take measures where the alleged defender is present in their territory & does not extradite him under art. 8. Every state where the alleged offender is found has to prosecute. (Universal jurisdiction)

Extradition1970 cold war, not much int’l cooperation. But the US, USSR & Israel wanted to adopt obligatory extradition of the offender to the state of the aircraft. Thus, if you touch a U.S. aircraft & you will face U.S. justice.

Sounds good but to be adopted everyone has to be in agreement – this original proposal would have had teeth.

13 Hague Said the depositories were the US, USSR or UK meaning the political obstacles were in place, thereby ensuring the political play was not present for a country not to agree.

However, the idea of extradition of one’s own to an enemy state was too much to take by many nations. The convention & consensus was dying – as all could not agree to unconditional extradition.

Alternatives were sought (from Roman Times – Aut Dedere Aut Punire – meaning the country had to either extradite or punish the criminals themselves. Issues of punishment then arose for that meant that no matter what the said person had to be punished – hence word “punishment” changed to “prosecute” for situations where the person in question is i.e. insane. BUT even “prosecuting” was not enough for sometimes States did not want to prosecute – hence it was watered down to the point where the wording became the “possibility of prosecution.”“Don’t let the perfect be the enemy of the good.”

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Q? In short, what was the compromise discussed directly above?A. Watered down the convention greatly – down to a duty to either extradite or present the

case to national authorities for the purpose to prosecute. This is an extensive jurisdiction in art. 4. Particularly at art. 4(2), which says that contracting any state has jurisdiction to prosecute BUT one State was left open w/ out knowing why – it is believed that that state is seen as a last resort.

-Authorities must take the prosecution in the same manner as any ordinary case & not w/ politically motivated actions or non-actions by a contracting state. A state can choose not to prosecute – i.e. a safety valve – a bargaining chip. Every state has the right to wave prosecution.

7 Hague Authorities must take an action in the same manner as an ordinary matter, as opposed to one of a political matter.

9 Hague (similar to s.11 Tokyo) although art. 9 para. 2 Hague goes further than Tokyo as it says “facilitate” not “permit” thus a State must give positive assistance to the passengers & crew.In turn a report must be given tot eh ICAO w.r.t. what actions were taken to aid & assist & what action were taken agst the subject who hijacked the plane. But again nothing can be done if such a report is not given. There is no power of enforcement – the only thing that works in turn is the force of public opinion – for a report not being given to ICAO is such circs. Nations themselves will have to take legal actions.

In short, Hague:(1) Defines a particular act as an offence (seizure of aircraft)(2) Punishment is to be severe. (3) Universal jurisdiction over the offence & any other act of violence agst passenger or crew (4) Denial of a safe haven anywhere in the world(5) Aut dedere aut judicare - States must extradite or submit offender for prosecution in the

same manner as in any o/ ordinary case. (Israel, US and USSR wanted unconditional extradition of the offended, which would have really given Hague bite).

(6) Provides for mutual assistance among States in the criminal proceeding (7) Duty to report promptly to ICAO any relevant info concerning the circs of the offence

and measures taken (thus responses of States re subject to int’l scrutiny, although no sanction is stipulated in cases of non-compliance.

Montreal Convention, 1970 for the Suppression of Unlawful Acts (Ratified by 181/189 States – strong argument to claim this is not int’l customary law)

Cuba:Cuba is not party although they were in fact the initiator of something to be done w.r.t. hijacking. They are not party b/c of politics as they wanted & achieved a bi-lateral agreement w/ the US dealing separately w/ seizure of aircraft of which Cuba also received protection for Ships not just aircraft. This bi-lateral agreement may or may not still be enforce as it was to be reviewed 10 years thereafter.

Algeria:Algeria has also not signed the Convention. Prof thinks there is a silent conspiracy to allow Algeria open as a door of last resort for situations that may arise.

1 Mtl. (1970) Gives a general definition of acts of sabotage.Act must be unlawful & intentionally, (a) act of violence on board that is likely to endanger the safety of those on the aircraft, not just the passengers, unless that crime leads to a danger in civil aviation.

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Note 1(d) Mtl. (1970) - could apply to laser communications & cell phones but there is not one case under this matter but is theoretically possible, as such acts have to be shown to intentionally interfere w/ navigation communications. (although this has yet to ever occur).

2(b) Mtl. (1970) Defines destroying an aircraft ‘while in service’. “An aircraft is considered to be in service from the beginning of the preflight preparation of the aircraft by ground personnel or by the crew for a specific flight until 24 hours after any landing; the period of service shall, in any event, extend for the entire period during which the aircraft is in flight as defined in 2(a).”

Meaning the aircraft must be in the process of being in service to make it an int’l act. Ex., Putting explosives on board, threatening act to do X – hoax or not – b/c it puts the aircraft in danger as it puts the safety of all at risk by changing the flight path.

Jurisdiction:4 Mtl. (1970) Universal jurisdiction, being wherever the offender was found was not acceptable w.r.t.

all acts. Rather, universal jurisdiction is w.r.t. where the offender is found at art. 1 (a)(b)(d) & (e) not w.r.t. those acts that took place in art. (d).

1(d) Mtl (1970) refers to any person who commits an offence if he unlawfully & intentionally destroys or damages air navigation facilities or interferes w/ their operation, if such act is likely to endanger the safety of aircraft in flight.

It may be included w/in the universal jurisdiction b/c such act would normally fall under domestic law as the perpetrator would presumably be caught on the domestic territory where the act was committed.

-Mtl. (1971) has the same watered down balance as Tokyo – that being present the case to authorities for the purpose of taking legal action or extradite the individual.

In short, Mtl. (1970):(1) Reproduced structure and main principles in Hague.(2) Defines a variety of acts as an offence

encompasses acts of violence agst a person on board an aircraft in flight, destruction of or damage to an aircraft in service likely to endanger its safety in flight, placing of dangerous substance on board, destruction of air navigation facilities, interference with their operation if likely to endanger, hoaxes

(3) States undertake to punish severely (4) Universal jurisdiction

Concern b/c Mtl (1970) did not contain a “foreign element” justifying unification of law and establishing universal jurisdiction, however, this insures that there is no hiding place for an offender w/in the contracting states.

MTL DOES NOT have a legal basis for the request for extradition and a country does not have a legal duty to extradite the offender under the terms of Mtl. alone.

Mtl. Protocol p.253 of the Bible[critique] The instrument is intellectually misguided as its purpose is to deal w/ suppression of unlawful acts of violence agst civil aviation. This has happened but do we need a convention for such acts. Int’l conventions are needed for such situations were there is an int’l element where otherwise there would be a legal vacuum i.e. lack of jurisdiction or laws – an attack at an airport will be criminal act under the nation’s law. Here there is no legal vacuum. There is no doubt of jurisdiction either. So, why pass a convention when the matter will be dealt w/ nationally. One can imagine potentially that if such attacks took place & escaped & were found in another country then maybe such an int’l convention is needed, but otherwise its not needed. However,

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there was political pressure (namely from Canada) to create such a convention b/c in ’85 & ’86 there were attacks in in’tl airports & there was a tragic crash off the cost of Ireland. There was pressure by the Indian gov’t on Canada for not taking safety measures so Canada pushed the convention to show they’re proactive for security & aviation safety. Issues that arise, however, is when a criminal act becomes int’l or national?

1(bis) “any person who commits an offense where unlawful & intentionally using any devise, substance or weapon”(bare hands are not enough to constitute an offence) (A weapon is defined as any object that can used to make an attack agst body integrity more effective).

-Another problem of the protocol is exemplified by the example, if one were to destroy the shoeshine facility at the airport would that be an int’l incident.

But, anything is good to have that has int’l agreement regardless if it is a smashing success.

In short, Mtl Protocol:(1) Adds to Mtl (1970) definition of the “offence” acts of violence agst a person at an airport

serving int’l civil aviation which cause or are likely to cause serious injury or death, and the act of destruction or damage to airport facilities or aircraft not in service or disruption of the services of the airport if such act endangers or is likely to endanger safety at that airport. Note, “safety of that airport” has not been defined but was stated to show that it is the important element.

(2) It compliments the mosaic of legal tools for the prevention and suppression of unlawful acts agst civil aviation and docs the will of States to protect aviation security.

Mtl. (1991) Plastic Explosives

Semtex (a.k.a. C4) is very dangerous – it is commonly used in the armies, landscaping & industry but in the hands of criminals it is extremely dangerous b/c it cannot be easily detected. Plastic explosives cannot be found by dogs, are low density items & do not show up on an X-Ray. They are malleable (playdo-like) & it is easily hidden b/c it has low vapor pressure, as the particles don’t give a sent. It is waterproof.

ICAO had to deal w/ the universal subject of marking of explosives b/c the UN thought it would be less contentious for this body than another. ICAO’s convention was not limited just to a technical solution as technology will always continue to advance & today’s solutions are potentially tomorrow’s problems. For example, the definitions were not put into the convention itself rather it was put into the annex, which is easier to update as technology changed. Moreover, the annex is very technical so it was unlikely that States would politically object. – i.e. changes can be made without a diplomatic conference for if a state disagrees within 90 days then a conference must be called.

The convention held a plastic explosive had to have a particular additive as stated in the annex when manufactured making the G4 detectable, hence explosives had to be marked – art 4. Effectively, all new G4 would be made noticeable; but to deal w/ the existing supplies one couldn’t alter its compound nor destroy all that existed – although, it was held that all old G4 had to be used or destroyed within 3 years that were unmarked by commercial enterprises. Armies, however, were not dealt w/, as this convention was not about disarming nations.

In short, Mtl. (1991):(1) UN mandate is testimony to the law making abilities of ICAO w.r.t. speed and efficiency(2) States accept an int’l undertaking to prohibit and prevent the manufacture of unmarked

plastic explosives.(3) Prohibit movement without proper markings.

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(4) In principles existing stock of unmarked explosives must in due course be destroyed or consumed or marked or rendered permanently ineffective, (3 years for private & 15 years for military or police function.

(5) Convention exempts military devices.(6) Definition in annex as technology changes quickly & this allows for quicker amendment.

No need to convent a conference to amend, if a proposed amendment prepared by Council is not objected to by 5 or more States, it shall be deemed to have been adopted and shall enter into force for States not having expressly objected thereto. If 5 or more States object ICAO shall refer it for further consideration or may convene a conference. This is an innovative method of amendment of int’l instrument an may establish a new practice of multilateral instruments.

(7) Convention only meaningful if ALL airports are equipped w/ adequate tech for the detection marked explosives - the tech is needed is rather expensive

(8) Still need widespread ratification – help should be given to less developed State to implement and share costs.

Annex 17 : (p.477 vol II) -After Sept. 11th there was pressure on ICAO to ensure Annex 17 applies to domestic as well as int’l operations.

-Annex 17 was slow and timid in developing effective stnds.

-Chapter 3 of Annex 17 states that there should be a national program of security, airlines should have security & airports should have a security program.

-Chapter 4 of Annex 17 is the basic security measure by checking of cargo, luggage & persons. This physical prevention of course has legal ramifications. Be careful though as it does not apply just to what a passenger brings to the aircraft, but also w.r.t. what the passenger forgets in the aircraft. There also needs to be an alignment of passengers & cargo – ie, whoever checks in cargo is also onboard.

-ICAO Security Manual also exists b/c it is confidential w/drawn from general distribution b/c it would show those would be criminals know on how to breach the system – ie identifies ID procedures, invisible security etc. States elaborate on it as well.

Unruly PassengersUnruly or disruptive passengers refers to passengers who fail to respect the rules of conduct on aboard aircraft or to follow the instructions of crew members and thereby disturb the good order and discipline on board aircraft. Due to the lack of a uniform reporting system, it is not possible to provide complete and comprehensive data.

Analysis of the causes of air rage is essential for any solution for the prevention and suppression of such acts. Flying can be a stressful situation. Alcohol adds to the situation. To deal w/ such passengers Tokyo will have to be expanded & improved, as treaty action may have to be taken for a long-term solution. A danger is created on board not only by acts of violence agst other passengers or members of the crew but also by non-observance of instructions given by the crew for safety reasons.

(Model Legislation):List of Offences - A uniform list of offences is considered desirable for two reasons: (1) in order to

provide a common denominator for offences as a basis for nat’l prosecution and (2) in order to offer uniform criteria for Sates to extend their respective jurisdiction. Such a uniform list will be instrumental for the purpose of incorporating the relevant offences into States’ respective national

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laws or regulations allowing prosecution and application of sanctions. The model legislation should be incorporated into nat’l law verbatim as much as possible, so that a desirable degree of uniformity will be achieve int’ly. Such a list will in determining its basis for jurisdiction.

(1) Assault and Other Acts of Interference agst a Crew member on board a Civil Aircraft(a) Assault, intimidation or threat (physical or verbal)(b) Refusal to follow a lawful instruction given by the aircraft commander or member of the crew on

behalf of the commander.

(2) Assault & Other Acts Endangering Safety or Jeopardizing Good Order & discipline on Board a Civil Aircraft(a) sexual assault or child molestation(b) acts likely to endanger the safety of the aircraft or any person on board or if such acts jeopardizes

the good order and discipline on board the aircraft.(i) assault, intimidation or threat (physical or verbal agst ano/ person)(ii) intentionally causing damage to or destruction of property(iii) intoxication

(3) Other Offences Committed on Board a Civil Aircraft(a) smoking (b) tampering with safety-related device on board(c) operating a portable electronic device that is prohibited

(4) Jurisdiction(a) where aircraft is registered(b) principal place of business or where permanent residence(c) over ones territory(d) outside one’s territory IF:

(i) next landing is in territory(ii) aircraft commander delivered offended to authorities with the request that the authorities

prosecute (e) In flight means from the moment power is applied for the purpose of take-off

Penalties- Model legislation does not address the issue of penalties of this matters should be left to the

discretion of sovereign States

Jurisdiction – generally a State will have jurisdiction over an offence when it is committed in its territory (law of the place) or on board an aircraft on its registry (law of the thing), and jurisdiction over ones nationals committed by them or agst them (law of the person). The jurisdiction of Sate may also extend to certain offences committed outside its territory but having effects on the gov’t function of such State (protective principle). Presently there is not a clear rule under public int’l law as to what extend and condition States may exercise jurisdiction over an offence committed on board foreign aircraft outside of its territory. The absence of an int’l convention on this matter or until the practice of extending jurisdiction becomes a customary rule, a cautious attitudes should be maintained regard the extraterritorial element of such jurisdiction – although Canada and US so legislated such jurisdiction (see below).

Int’l Conventions:Tokyo, Hague and Mtl should be applied with a view of making the fullest possible use of these instruments in order to deal with unruly passenger.

Mtl (1971) if an act of assault on an aircraft in flight is likely to endanger the safety of aircraft (i.e. the commander had to leave his post) then the Mtl (1971) via art. 1, para. 1 (a) may be applied. However, Mtl. will not apply if acts committed by unruly passenger jeopardize the good order and discipline on board, without being likely to endanger the safety of the aircraft, which is a rather large limitation in dealing with unruly passengers.

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Tokyo (1963) ratified by 175 thus is part of int’l customary law. It applies not only to offences agst penal law but also to acts which, whether or not they are offences, may or do jeopardize the safety of consequences. (see Tokyo above). Int’l convention is one way to deal w/ aviation security but national measures should not be undervalued. Law of the person, territoriality, hence can prosecute if Canadian commits act in Japan & a Japanese person who commits act in Canada. Universal criminality exists as well, i.e. genocide, piracy can be given jurisdiction anywhere in the world. (discussed above)

Under 9 & 13 Tokyo, however, authorities of the State where the aircraft makes a landing are obliged to accept only the delivery of person who, in the opinion of the commander, has committed a serious offence under the penal law of the Sates o registry of the aircraft. Fore persons who have committed less serious offences or their reprehensible act, the commander may disembark them under art. 8 but the State where the aircraft has landed is under no ob to take custody or other measures (13 para 2). In order to assist commander in exercising their powers under 9 Tokyo it may be desirable to arrive at a common understanding s to what constitutes a serious offenses. I.e. via the model legislation, namely assault and damage to property.

9 Tokyo also distinguishes “delivery” from “disembarkation” of person in 8 Tokyo and specifies that such delivery must be accompanied by ev and info lawfully in the possession of the commander. These provisions appear to permit the conclusion that the State of landing has an ob to do more than just accept the delivery of the person as they should also investigate and if sufficient ev is given to consider prosecution.

Note: Under Tokyo, offenders cannot be held in restraint beyond the first stopover, by the time the aircraft has returned to the Sate of registry the offenders as well as the witnesses will be gone.

Note: 1992 ICAO passed a non-binding resolution encouraging member States to progressively ban smoking on all passenger flights (such is the case in Can. and US).

National Legislative Actions:-What is required is strong national legislation that would make the acts of air rage punishable under the domestic law and giving the jurisdiction to the local Courts, regardless of where an on board act took place (universal jurisdiction). Aviation security and safety is a common global inters and concern thus no safe haven should be open and no act should go unpunished. Such national legislation would create a commonality among nations of which a Protocol to the Tokyo may be later implemented to ensure uniformity to make such acts punishable by appropriate penalties and provide for compulsory jurisdiction of any State where the alleged offender may be found or for extradition to the state of registry. The national int’l leg should also specify the alleged offender apart from criminal shall also face civil liability for the damage to the airline or other person(s).

-Cell phones & laser-based electronics can interfere w/ airline equipment (communications & navigation), which endangers the lives of the passengers. A protocol should be added but why wait years to do so, why not urge states to take unilateral actions. Canada does have such national legislation.

-US has universal jurisdiction over any acts that are aimed agst US citizens (i.e. acts of terror).

-Bilateral/multilateral agreements have not been commonly used for dealing w/ unruly passengers, however, if such issues become serious on particular routs such a solution could be considered.

Airline Actions:

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Education of passengers that disruptive conduct on boards is not tolerated and may lead to serious legal consequences. Some airlines have even stared a blacklist to deny boarding of a passenger for future flights – although this is yet to be legally tested.

Liability: Chicago does not discuss the subject of liability for damage caused to passengers due to the act of

unlawful interference. In practice air carriers are being unduly penalized by excessive liability for damage and the risk allocation is not evenly distributed. Airlines are also victims of criminal, terrorist or insane acts and they are frequently placed in the position of an insurer of unforeseen and unforeseeable damage not connected with the performance of transport by air, rather often it is a particular gov’t that is the target. Others should share liability joint and severally, such as w.r.t. detection methods, when government does not heed warnings by its intelligence to pass on to X airline.

Part VIII: Accident InvestigationQ? Why are investigations emphasized in int’l law as governed by art. 26 Chicago?

The first to investigate is the police – so there may be domestic charges as well as an int’l inquiry. The duty to investigate is in 3.1 of annex 13 is that the sole purpose of the investigation is to learn how to prevent (via cause or causes) it is not to blame or find liability. It is with a view to presser life and avoid accidents in the future.

Was there pilot fatigue, mechanical error, alcohol involved, human error etc.?

26 Chicago “In the event of an accident to an aircraft of a contracting State occurring in the territory of another contracting State, & involving death or serious injury, or indicating serious technical defect in the aircraft or air navigation facilities, the State in which the accident occurs will institute an inquiry into the circumstances of the accident, in accordance, so far as its laws permit, w/ the procedure which may be recommended by the ICAO. The State in which the aircraft is registered shall be given the opportunity to appoint observers to be present at the inquiry & the State holding the inquiry shall communicate the report & findings in the matter to that State.”

That territorial state has the duty to implement an inquiry into the accident & can appoint observers. The state that has the duty to institute the inquiry does not have to pay for the inquiry. It only has to institute the inquiry & can accept aid from other countries.

Q? Who is responsible for instituting the inquiry when a plane crashes in the high seas? The State where the plane is registered.

Q? Who else may participate in an accident investigation?The state of registry has the right to appoint observers. However, Annex 13 (discussed below) enlarges the spectrum of states that is entitled to participate by way of appointing observers: The state of the operator has the right to appoint to observers, the state of the manufacturer of the aircraft, any state which provides information or facilities may appoint observers, the state of the nationality of the passengers on the aircraft.

Q? Is there an int’l accident investigation organization?

55(e) Chicago “The council (ICAO) may (not mandatory) investigate at the request of any contracting State any situation which may appear to present avoidable obstacles to the development of int’l air navigation.”Permissive function of ICAO Council to investigate. This was the legal basis for the ICAO investigation of flight KE 007, as USSR violated its obs under Chicago – did not investigate or invite others to do so and would not help ICAO do so either. USSR was CONDMEND for using force agst the civil flight and for not aiding ICAO.

An idea floating in the ICAO is that there should be an int’l fund, which would finance accident investigation. Moreover, there is a proposal to have the investigation int’lized. The precursor to such

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a proposal was the joining together of Arab Gulf states to investigate accidents occurring in their area. The ICAO proposal is to create an Int’l Bank of expertise within ICAO, which would investigate the accident & would be financed from an int’l fund where all contracting states would have contributed to it proportionately. This is a good proposal b/c the results of the investigation are of common interest & common impact.

Q? What was the end game of KE 007?Damn Russians. Damn Cold War. Shooting down civil flight lead to 3 bis and a clear example where accident investigation rules were infringed seeing as USSR didn’t file a difference under s.38. Late in 1993 the Council again via 55(e) re-visted the investigation and here the council may have unwittingly obliterated the concept of causation as it was a missile that was intentionally fired agst KE 007 with aim of destroying that caused the accident – NOT the error in the programming of the autopilot. Under art. 25 KE 007 should have been treated as an aircraft in distress. The second like the first investigation did not comply with art. 26 Chicago and Annex 13.

For the legal profession and the conscience of the world KE 07 is an unclosed tragedy.

ICAO: Annex 13 Annex 13 (p.430+ CB read it w/ a view of understanding the nature of the standards & recommended practices on aircraft accident investigation). It is one of the critical legal elements in aviation b/c the results of the investigation may have many consequences.

Stnd 3.1 Annex 13 The sole objective of an investigation shall be the prevention of accident & it is not the purpose of this activity is to apportion blame or liability.

Stnd 5.12 Annex 13 [Secrecy of records] (see also Attachment D to Stnd 5.12 as guidance) Certain documents in the investigation should not be made available for purposes other than for accident or incident investigation unless the appropriate authority for the administration of justice in that state determines that their disclosure outweighs the adverse domestic & int’l impact of such actions on future investigations.

The immunity of the records that is not absolute despite the strong wishes of the pilots.This standard is not generally applied b/c many countries filed differences to it.

Ex. The Scandinavian countries reject this stnd b/c freedom of information is a constitutional or quasi-constitutional right in many countries.

Stnd 5.19 Annex 13 State of registry and the State of the operator are entitled to appoint reps to participate in the investigation.

Stnd 5.22 Annex 13 State of the manufacture of the aircraft is entitled to appoint a rep to participate in the investigation where it is believed that it would be useful or result in greater safety.

Stnd 5.24 Annex 13 State providing info, facilities or experts to the State conducting the investigation is entitled to appoint an accredited observer.

Stnd 5.27 Annex 13 Recommended Practice that any State, which has a special interest in the investigation by virtue of fatalities to its citizens, should be permitted to appoint an expert to participate in the investigation.

Q? What are the problems of Annex 13?Most remarkable in light of art. 26 is its deliberate exclusion of a requirement for an investigation into serious defects in air navigation facilities. Some nations also don’t apply Annex 13 within its express terms due to lack of resources, either human or economic or both. Other countries apply Annex 13 to the letter and thus sterilise its spirit. (1) Requirements of the local law and of the local procedures are interpreted and applies so as to preclude a more efficient investigation under Annex 13 in favour of a

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legalistic and sterile interpretation of its terms. May be due to mistrust political, commercial judicially or w.r.t. insurance etc. (2) There is said to be a conscious desire to conduct the investigation in some contracting states in such a way as to absolve from any possibility of blame the authorities or nationals, whether manufacturers, operators or air traffic controller, of the country in which the inquiry is held.

Annex 13 is also complicated in procedural terms. Not all states have sophisticated aircraft accident investigation regs.

Plus, the interplay b/t criminal and aircraft accident investigation is not always clearly defined, particularly in civil regimes. The superimposition of Annex 13 on the often inadequately defined aircraft accident procedures for domestic accidents creates stresses.

Cockpit voice recorder is often misused, one should not be at a disadvantage w.r.t. civil rights by comparison w/ o/ people in the same community. Voice recordings should be privileged w.r.t. uses other than that of accident prevention. As there may be a reluctance by pilots who know their conversation is being recorded (and may be potentially used agst them personally in a criminal trial) to reveal or discuss errors they may have made, when the circs demand a full and frank disclosure in order that the proper remedies or rescue actions be instituted. In Australia the use of a cockpit voice recording is not admissible as evidence in any criminal proceedings agst crew-members. Annex 13 as well should be amended as such – at least as a Recommend Practice. Nonetheless, it may be agst public policy to exempt an entire class of offenders. However, w.r.t. safety as much should be learned as possible without fear that evidence acquired from a safety investigation will later be used in a criminal proceeding. The prevention of the repetition of such a sequence is essential and this can only be done through a knowledge and understanding of what has happened, achievable only through the accident investigation processes and usually only with the full cooperation of surviving crew members. Yet why should pilots be given greater protection than the PM would receive? Everyone has something to hide, by ensuring the cockpit voice recorded isn’t used agst the pilot doesn’t ensure that the pilot will fully inform all that is known. “everyone has something to hide”

-But, when it comes to sanction of a pilots actions perhaps taking away one’s license should suffice as an objective of punishment as opposed to imprisonment in circs of criminal neg.

2. EU Guidelines for Accident InvestigationsObjective of the Commission was to overcome shortcomings in the existing system (p.367 vol I). Its primary objective is to improve air safety And it can only be achieved if Member States entrust the investigation to permanent bodies independent of any one party or govt which could have responsibility in the cause of an accident.

Instead of adopting a Directive Council could have instead installed an independent EU Accident and Incident Investing Board. That would have solved (1) problems w.r.t. potential conflicts of interest. (2) saved certain Member States the burden of setting up an independent aeronautical boyd and investing large amounts of money in expertise and equipment which will probably be applied more frequently on a Euro scale than on a national scale.

Part IX: Int’l Civil Aviation Organization (ICAO) 1) Introduction to Int’l Organizations

One on one interaction of states does not do all of today’s development of law, but rather it is done in the institutional framework of int’l organization. Law is made in the forum of int’l organizations & is interpreted & applied by int’l bodies.

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Total globalization is not becoming an atomized mosaic of different, independent entities, but rather an interdependent world. One feature of that is the emergence of int’l organizations, organizations that are tools of multilateral diplomacy. Multilateral diplomacy was not essential in earlier history.

Int’l organizations are a social component of the Industrial Revolution. Production increased greatly & when the situation was created for the int’l exchange of goods & services. That brought things together & therefore a higher level of cooperation was needed. Plus, other technologies necessitated int’l cooperation.

It is suggested that the Congress of Vienna, which established the Concert of Europe, is the first int’l organization. This congress saw the need for continuation & permanency of that mutual, multilateral diplomacy & it continued establishing a permanent secretariat. The Concert of Europe continued even readmitting France & was aimed at the Ottoman Empire.

Int’l organizations, today, are an indispensable part of mutual relations of states. The organizations have become instruments of multilateral diplomacy.

Last century, saw the birth of the first of such int’l organizations: Universal Postal Union (Founded in1860s & headquartered in Bern, Switz.) & later was formed the Int’l Telegraphic Union (now known as the Int’l Telecommunications Union). Hence, we see that it was the evolution of economy, technology & increased int’l relations which focused the attention on int’l organization.

A real watershed was WWI. U.S. had a big role in initiatives for int’l organization. Woodrow Wilson had the foresight that the post-war arrangements, the permanent peace, will require strong int’l organization in many requests. He had drafted a blueprint for an int’l organization the purpose of which would be the maintenance of int’l peace & security, settlement of differences & int’l peaceful cooperation. The organization would be called the League of Nations (Societe des Nations). It was the precursor of the United Nations & the first attempt at an Int’l, intergovernmental organization. It was headquartered in Geneva.

Woodrow Wilson returned to the U.S. after the Versailles Treaty to face a newly isolationist America & ultimately the League of Nations would be created & the U.S. did not formally become a member. The League of Nations formed the Int’l Labor Organization, World Health Organization.

Q? What do we need to find in an int’l organization?(1) There must be an int’l agreement creating the organization, (a multilateral instrument to which

sovereign states are parties) ie. treaty(2) It has to be the subject of law(3) It has to have its own legal personality both in domestic & in int’l law(4) There must be a defined scope of its functions & its activities

Q? How does specialized int’l agencies relate to the UN Charter?57 UN Charter Discusses various specialized agencies established by intergov’tl agreements & having

int’l responsibilities, which are to be brought into a relationship w/ the UN in accordance w/ art. 63 UN Charter.

63 UN Charter Provides the vehicle for cooperation of those agencies. It is a working agreement w/ the Economic & Social Council of the UN.

We have to understand that specialized agencies are part & parcel of the UN, but that each of them is also separate & distinct. Each of the specialized agencies has its own constitution & the UN has its Charter, an agency will likely have different memberships & their budgets are separate & distinct from the UN.

Note: Specialized Agencies (such as the ICAO) are still very political entities.

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2) Historical Background – Int’l Civil Aviation Conference ( Chicago 1944) Q? What is the history of ICAO?

The 1919 Paris Convention foresaw some institutional structure & thus created the organization of very limited membership called ICAN (Int’l Committee of Air Navigation). The Paris Convention never became general & at its peak had only 39 members. Among the 39 states, the U.S., Germany, USSR, China & Brazil were not members & thus the organization was limited. That is the pre-WWII situation.

In the Atlantic Charter, initiated by FDR & Churchill, they declared the purposes of the post-war arrangements. Among the purposes, was close int’l cooperation. It was followed a year later by all the allies called the Declaration of the UN (at this point, united nations was the term that the allies called themselves) & these allies started talking about post-war arrangements.

Aviation appeared to be the first means to restore the economy & arranging transportation that was a priority for them in the post-war era. The allies during WWII, among themselves, established what they called Air Transport Command in which they coordinated all their int’l transportation to make sure that all capacity was used efficiently.

The initiative came from the Oval office by President Roosevelt. He asked for a conference to be convened on int’l civil aviation w/ a view to solve the post-war transportation problems. The conference was convened in November & December 1944. The Americans came w/ a vision to the Conference: they said let’s have an organization & let’s have an institution, but first let’s decide on the exercise of commercial rights & w/r/t these commercial rights, let’s have full freedom. The American idea was too early for the industry, however, today the idea is being used by many nation-states.

In the British vision, to have liberal air transport at that time would mean that the Americans would have dominated or even monopolized the industry. It is said that at that time the U.S. had readily available for commerce, 20,000 transport aircraft, which was far more than any of its competitors.

The Chicago Convention does not contain anything about commercial rights w/ the exception of art. 6 of the Chicago Convention, which is the nail in the coffin of freedom of air transport since as per that provision it requires bilateral agreement. Well, as a consolation, two additional agreements were opened for signature: Transit Agreement (Agreement on Two Freedoms) & the Agreement on Five Freedoms (although the second agreement is basically meaningless b/c it does not have signatories).

Q? What was the merit of the Conference? The Chicago Convention was adopted & signed on 7 Dec. 1944. The Convention has two aspects:

(1) It is an extensive codification of public int’l air law. (2) It is a constitution of an int’l organization created under that multilateral convention & working in that

framework.

That Convention could have been operative only upon the ratification of 26 states (that is 1/2 of those who participated in the Chicago Conference.) At Chicago, a convention on the Provisional Int’l Civil Aviation Organization was also adopted. It was supposed to work until the Chicago Convention would enter into force & the proper organs would be created & elected. The PICAO even had a Provisional Council that started working on recommended practices & int’l standards, elaborating on many of the Chicago instruments adopted there.

The int’l organization (ICAO) came into force on the 4th April, 1947, which was also when the Chicago Convention entered into force.

3) Int’l Structure of ICAO – Membership, Representative Bodies & Functions

Q? Does ICAO meet the int’l org requirements discussed above?It has its own legal personality as seen in art. 47 Chicago. It has clearly a defined, int’l responsibility. The purposes & aims of the organization are highlighted in art. 44 Chicago. ICAO is a specialized agency of the UN in the sense of arts. 57 & 63 UN Charter & works closely w/ the Int’l Telecommunications Union & the Int’l Maritime Organization (London) & the Int’l Postal Union.

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Q? What is the basic make-up of ICAO?Note, by being created by int’l agreement, it means that its parties are only sovereign states. Montreal is the seat of the organization & representation of the states affiliated w/ it & the senior personnel are exempt from the jurisdiction of the local courts at least w/r/t words spoken & acts done in their official capacity.

The organization created under the Chicago Convention is an int’l body. Art. 44 Chicago outlines the objectives of the organization & art. 43 named the org. ICAO of which is basically separated into 3 bodies: (a) General Assembly

49 Chicago Describes the jurisdiction of the assembly, as the supreme body, since it can do anything not specifically assigned to the council.

Thus, matters that are not in the jurisdiction of the assembly but are in the council’s are very important & that leads to the conclusion that it is not the assembly, it is, in fact, the council that is the most powerful body in ICAO.

De facto, the GA is merely a figurehead meeting every three years for a period of three weeks as per art. 48 Chicago. The GA’s basic function is to elect the council & to approve the program budget.

-Note the GA has power to suspend voting power over those States that don’t pay their fees (see art. 62 Chicago below) & more than 1/2 of the entire membership of ICAO can veto an Executive proposal (ie. implementation of a new standard) although this has never happened & likely will not b/c States have many opportunities to voice their concerns before it reaching such a point.

(b) Executive When the GA is not in session, there is a permanent executive body, which will implement decisions & guide the org. Permanent council is composed of 33 states. The council elects the council president who is the supreme individual position within ICAO. The President is elected b/c the position is rather political.

Real power within the ICAO resides w/ the Executive:For ex., 49(k) Chicago states that the election of the President of the Council is not within the jurisdiction of the assembly, but rather it is in the jurisdiction of the council.The appointment of the Secretary General (glorified position), is in the hands of the council. The adoption of standards & recommended practices under articles 37, 38, 54(l) & 90 Chicago is a critical function of the executive council in ICAO & cannot be touched by the assembly.The settlement of differences, Arts. 84-88, is within the exclusive jurisdiction of the Council.The management of the finances is within the hands of the council.Even, the convening of an extraordinary session of the assembly, under art. 48, must be convened by the Council.

(c) Secretariat Is the indispensable & most expensive part of every org. The Secretary General of the Council is appointed by the Council via art. 54(h) Chicago & b/c it is appointed the position is logically more administrative than political.

Q? How does one become a “Member” of ICAO?(Membership fluctuates around 189 members)

91 Chicago Deals w/ how States become a member by outlining how one adheres to the Convention.

92 Chicago Indicates that the convention is open for adherence “by members of the United Nations & states associated w/ them & states which remained neutral during the present world conflict.”

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Here “United Nations” means the allies in World War II & not the current world org.

93 Chicago For enemies of the allies to get into ICAO, they were subject to the approval of any general int’l organization established for the preservation of peace. Thus, for the ex-enemies of the allies, there was a need for the approval of the U.S. & an 80% vote is needed in the assembly of ICAO & there is a veto for any victim of the enemies.

Art. 93 is a historical relic – it is & should be ignored.

62 Chicago The assembly may suspend the voting power in the assembly & in the council of any contracting State that fails to discharge its financial obligations to the organization.

Q? How does one become expulsed from ICAO?93 bis Chicago Deals w/ a state’s expulsion from ICAO, as it is contingent on prior expulsion from the

The UN provision has yet to be used & is difficult – Security Council must have unanimity of the 9 permanent members along w/ the general assembly.

4) Amending the Chicago Convention Q? How was the Paris Convention to be amended?

The Paris Convention stated that it could only be amended by unanimity. Thus, at the time, the Paris Convention symbolized the consensual principle: the state can only be bound w/ respect to provisions it gave its approval to.

Q? How are voting decisions made in Chicago?48(c) Chicago Quorum is majority of the members. Given that there are 189 states in ICAO, 95(?) states

are therefore needed for quorum to have a GA.48 Chicago “Decision of the assembly shall be taken by the majority of the votes cast.”

Only “yes’s” & “no’s” are counted. Abstentions are not taken into consideration. The majority is calculated on the basis of delegates who registered to participate in their assembly & who did not advise of their departure.

That means 186 abstentions could take place, followed by one vote yes & the bill passes.Art. 48 Chicago also states that other decisions will be taken by different majorities if it is specifically stated in a different art. of the Convention.

For ex., art. 94 Chicago deals w/ the amendments to the convention & requires 2/3rds majority (127) of the assembly. This does not mean 2/3rds of those present & voting. That means that you take 2/3 of the delegations registered whether they are in or out of the meetings rooms, irrespective of abstentions. For ex., art. 45 Chicago deals w/ changing where ICAO is permanently seated (currently that’s Mtl.). 3/5ths of the contracting States need to vote in favour of such a move. For ex., art. 93 Chicago states that were an ex-enemy state of the Allies in WWII wishes to be admitted, it would take 4/5ths of those registered at the assembly to approve it.

Note: votes can be done secretly.

Q? How are amendments governed in the Chicago Convention? 94(a) Chicago A substantive amendment hereunder uses the consensus system as the amendment will

only apply to those states (at least 2/3rds (127)) that ratified it as sovereign rights of states will be paramount & will not be forced to accept the amendment even if 150 out of 189 states want it.

Effectively, this is concealed unanimity since when these requirements are met; the amendment only comes into force in respect of the states that have ratified it. It is based on the consensual principle such was the case in the Paris Convention.In contrast to amend the UN Charter, requirements must be met & then the amendment comes into force for all in the UN. This is known as the erga omnes principle, which is logical since it produces one system for all, rather than different conventions for different countries.

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Note: ICAO Executive Council has recognized the erga omnes principle so long as 2/3rds of the States agree for procedural constitutional changes, such as how many members on the Executive must be the same for all (50 Chicago).

Q? Is the Consensual Principle for amendment problematic?Yes, it presents intellectual & practical difficulties b/c not one single amendment to Chicago has been ratified across the board by all. Meaning that there are several different conventions applicable to several states & not to others. Fortunately, most amendments are rather procedural, such as art. 93Bis, which dealt w/ a state’s expulsion from ICAO, contingent on prior expulsion from the UN. Substantive amendments, which rely on the consensual principle, are exemplified by 3Bis & 83Bis.

5) ICAO Executive Council

The Council, (discussed above) the governing body that is elected by the Assembly for a three-year term, is composed of 33 States. The Assembly chooses the Council Member States under three groupings discussed below at art. 50 Chicago. As the governing body, the Council gives continuing direction to the work of ICAO. It is in the Council that Standards & Recommended Practices are adopted & incorporated as Annexes to the Convention on International Civil Aviation. The Council is assisted by the Air Navigation Commission (technical matters), the Air Transport Committee (economic matters), the Committee on Joint Support of Air Navigation Services & the Finance Committee.

The permanent council sits at any time & is arguably the most powerful. There are three sessions that cover the whole years. These sessions are divided in the council & committee phase. The council phase can be convened at any time. The council is slowly growing & this makes it less efficient & productive.

For example translation from Russian to English to Arabic is expensive.

Art. 50 Chicago Discusses election of the council. There are three groups of states:Group 1 are States, which are of chief importance in int’l air transport. Group 2 are States, which are of great importance in providing the facilities for air navigation. Group 3 States whose presence on the council would safeguard the equitable geographic distribution.

-Council has vast jurisdiction (outline discussed above), which is divided essentially into 2 general segments: (1) Mandatory functions (described & elaborated on in Art. 54)

Note: 54(n) Chicago “It is the mandatory function of the Council to consider any matter relating to the Convention which any contracting State refers to it.”

In most cases, this implies the interpretations & the application of the contents of the convention &, therefore, it has far-reaching legal consequences.

(2) Permissive functions (described & elaborated on in Art. 55).

-In short, Executive functions are: (1) Quasi-legislative (discussed below)(2) Administrative & (3) Quasi-judicial (discussed below)

84 Chicago Settlement of disputes b/t 2 or more contracting w.r.t. interpretation of the Convention SHALL be decided by the Council.

84 Chicago To appeal & ICAO decision a contracting state can go to the ICJ, which is remarkable b/c ICJ jurisdiction is normally only consensual.

The council dispute mechanism cannot effectively work & will never work. Procedurally they’re not set up to deal w/ such matters. Members are politically appointed, members are not acting independently,

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& there is no pretense to being unbiased adjudication. Although, one may argue that it does provide a deterrent, as the actions one state will be thrust into the open.

For ex., ICAO was vested in a conflict b/t Pakistan & India in 1971 & members were forced to delay the decision making process w.r.t. the dispute so a council member could receive guidance from their gov’t. Procedural problems are clearly present. Moreover, sovereignty of a State should not be so easily forgotten. In the case India closed its boarders cutting off East Pakistan from West, which India could do in a state of emergency as so declared by India b/c on of their aircraft was hijacked & blown up on Pakistan soil. The holding was ultimately appealed by Pakistan to the ICJ who chastised the ICAO council for not justifying their jurisdiction in the matter. Ultimately, the matter wasn’t settled as E. & W. Pakistan became known as Bangladesh & Pakistan.

a) ICAO Law-Making Function

Int’l aviation cannot exist without a level uniformity throughout the world, of which is recognized in art. 37 Chicago. Uniformity is need for aviation to function in a SAFE manner as legislative goals are largely determined by technical advances in the aviation field. Art. 94, however, makes this rather difficult w.r.t. amendments. Nevertheless, the council is vested w/ the power to adopt & change standardization per art. 37. (See amendments section as well)

-The most important legislative function performed by ICAO consists of the formulation & adoption of SARPS; authority for this is vis-à-vis s.37 for convenience designated as Annexes to the Convention (see 54(1) Chicago).

37 Chicago Holds that states have accepted a certain, firm, int’l obligation (“undertaking”) to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, & organizations. “To this end, ICAO shall adopt & amend from time to time as may be necessary int’l standards & recommended practices & procedures dealing w/ 37(a-k) & any such other matters concerned w/ the safety, regularity, & efficiency of air navigation as may from time to time appear appropriate.”

Therefore, anything that is important can be governed in ICAO standards & states have accepted an obligation to meet such. This is not an unconditional degree. Rather, States accepted an obligation in securing the “highest practicable degree.” Only the sovereign state concerned will judge what is practicable.

Ultra posse nemo teneor = A state is not bound to do the impossible.

38 Chicago If the state finds it impracticable to comply w/ a new or an amended set of standards, they have one legal duty: namely, they should instantly notify the council of ICAO of their different practice.

54(l) Chicago “The council is obliged to adopt in accordance w/ Chapter 6 (Arts.37 & 38) int’l standards & recommended practices.” Clarifies that the Standards are designated as annexes to Chicago only “for convenience” they are not an integral part of Chicago & do not have the same status as a binding source of int’l law.

Stnds, however, are not devoid of legal significance and of bind power for under 37 States have accepted an explicit legal undertaking to collaborate in securing the highest practicable degree of uniformity in regulations, stnd, procedures and organization in relation to aircraft, personnel, airways etc. in all matters in which such uniformity will facilitate and improve air navigation.

The legal ob of States to comply with Stnds adopted by Council under 37, 54(l) & 90 is not unconditional & the scope is limited to the “highest practicable degree” (“ultra posse nemo tenetur” is reflected in 37, 22,23, 25 & 28 (see also 61 Vienna Law of Treaties) subject to to the general requirement of good faith in the implementation of int’l obs, only the State concerned can be the

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ultimate judge of what is “practicable” in the given circs, where this is the case then the States has an unconditional legal duty under 38 to file a difference in s.38

Recall: 33 Chicago, that where one does not follow standards then their certificates for air transport won’t be recognized. Insurance policy won’t cover where then if flights go to where aviation are not in place. Meaning get w/ the program of standardization or you’re out of the aviation business.

28 Chicago there is an ob. for states, so far as it may be practical, that one provides facilities & services in their territory. I.e. airports that meets stnds of Chicago.

This does not mean that States have to build & control the airport? However, the sovereign state is responsible to ensure that those airports meet int’l stnds & practices. If you don’t want to have an airport, i.e. b/c you don’t have space for it, then you create the airport as far as practical – there is a legal duty though that if practical a state should have an airport. It is a duty of the state – regardless if it through the military, private etc.

-Another duty of the State is to have an appropriate stnds of communication, i.e. lighting, marks etc., this standardization is necessary, & those members of ICAO as much as possible have tried to coordinate such int’l stnds. ICAO’s experience indicates that it is much easier to establish a procedure for the notification of differences than it is to get states to comply w/ it. It is totally unrealistic to assert that a state’s failure to notify any differences indicates that it has none to report.

Q? SARPS Defined?Standards are procedures, facilities, materials, provisions the application of which is deemed necessary for the safe operation of int’l air navigation. Standards use the wording, States “shall”…

Recommended practices are rules on procedures, materials, & personnel, the observance of which is desirable & states shall attempt to comply. Recommend Practices use the wording, States “should” …

Resolution A1-31 defines “Standards” & “Recommend Practices” precisely & remains in force via Assembly Res. A15-8, Appendix E w.r.t. “air navigation matters”. Annex 9 defines SARPS w.r.t. int’l air transport.

Q? Are Annexes of the same force as Chicago?No. The annexes are not an integral part of the Chicago Convention & do not have the same force of int’l law as the Convention itself.

Q? How are SARPS/Annexes created & amended?All contracting States have a voice in the formulation & development of SARPS at two different stages of the drafting process. The consultative process reduces the likelihood that any SARPS will be adopted that many other States will oppose.

90 Chicago Annexes are approved or adopted & amended under art. 90 by the Council in a special meeting convened for that purpose. The required majority is 2/3rds of the council (90(a)).

-Standards are, in most cases, adopted in a unanimous manner b/c they are the product of much work & most states have had a chance to comment about them prior to voting.

-Note 90(a) speaks only of art. 54(1) when referring to the 2/3rds requirement, it is at least arguable that the adoption of amendments to Annexes requires no more than a simple majority vote of the council, & that a special meeting does not have to be called for the adoption of amendments. And considering that an amendment to an Annex can amount to a complete revision of the Annex in all

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but form it is obvious that the requirement of a 2/3rds vote applicable to Annexes could be easily circumvented. Therefore, ICAO proceeds on the assumption that an amendment to an Annex is governed by the same voting requirements that apply to annexes.

Any amendment of an annex shall be effective within 3 months after its submission unless a majority of the contracting States register their disapproval. Thus, the council has a law-making function but there is a right of veto on behalf of more than 1/2 of the entire membership of ICAO.

Hence there is a check & balance to the council’s function. It is has never happened that an annex is disallowed by more than 50% of the ICAO member states. Note 90(b) does not tell us when an Annex or amendment thereto is deemed to have “come into force”.

There are 18 annexes containing SARPS:Annex 1 of the Personnel training & licensing. Annex 2 deals w/ the rules of the air.

See High Seas below.Annex 8 deals w/ Aircraft Safety

Stnds that are not implemented w/out notifying the council is a threat to safety & security of those in aviation.

Annex 16 deals w/ aircraft noise & emissions. Deals standardization of enviro protection. I.e. Aircraft now require noise certification, as they are divided into three categories 1 being the worst 3 the best. Engine emissions & spillage of lubricants are also dealt w/ here.

Annex 17 deals w/ aviation security agst acts of unlawful interference w/ aviation & its facilities. See below for detail

Annex 18 deals w/ the carriage of dangerous cargo.See below for detail

Q? Annex disapproval in whole or part?ICAO Council Doc.5290 Council held that a State has the option to disapprove of an Annex either in whole or in part. Due to the Consultive process, however, this has been not very imp. practically.

Q? Why are Annexes or amendments thereto very rarely disapproved?(1) Compromise-oriented consultative process that precedes the adoption of an Annex or amendment (2) Member States are in a large measure free not to comply w/ the provisions of an Annex(3) Ability to partially disapprove of annex reduces likelihood that a majority of Member States will

exercise the veto power. Thus, Council has obviously watered down the veto power which 90(a) vests in the Contracting States.

(4) States have no legal ob to implement or to comply w/ the provision of an Annex unless they find it practicable to do so. (see arts 22,23, 28,37 & 38 Chicago).

US FAA Safety OversightUS strong-arm tactic is very stringent & force other States to meet ICAO safety stnds. This can embarrass other nations, however, the US is entitled to do so under art. 1, 11 (11 requires States to apply their laws and regs relating to admission and departure of aircraft equally to all aircraft without discrimination grounds of nationality – ie Identifying oneself within 400 miles), 16 (16 allows a state to search an aircraft of another state on landing or departure and to inspect certificates and other docs prescribed by Chicago) & 33 and well w/in its jurisdiction under Annex 1 and 11 in the spirit of 37 and 38. As their assessments were made in full cooperation with the States concerned. Note, the effectiveness of such action is in questionable. as its impact cannot be global it solves only specific bilateral issues. However, it did give a powerful impetus forcing ICAO to initiate actions to catch up with the US initiative.

The FAA established 3 ratings (now 2) for the status of countries at the time of safety assessment:

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(1) Does Comply with ICAO Stnds(2) Does Not Comply with ICAO Stnds

Two groups of countries thereunder (a) Those who can’t operate in the US (b) Those that operate at heightened FAA surveillance but cannot expand operations

ICAO Safety OversightICAO’s program developed after US leadership initiative relies on voluntary contribution, which is rather disappointing seeing as safety is a priority of ICAO, and should really be shared financially by the int’l community part of ICAO in its regular budget.

ICAO assesses States on a voluntary basis. Safety assessment guidelines include consideration of existing national legislation and regulations enabling States to carry out detailed safety regs and the status of implementation of SARPS and associated procedures related to the certification and supervision of the operator w.r.t. (the program focusing on Annex 1, 6 and 8 but should be expanded):

(1) Adequate organization, consistent w/ the nature and extend of the operations specified.(2) Qualified airworthiness and flight operations inspectors and licensing personnel supported

and managerial structure(3) Detailed records of training (4) Policy on the safety regulation of maintenance, flight operations and licensing(5) Availability of reference material, including ICAO docs.(6) Info on which Standards have been used for approval of air operator certificate holders or

maintenance orgs.(7) Inspection results(8) Evidence of compliance w/ airworthiness directives and of maintenance programs.(9) Evidence of procedures for the issuance, approval, suspension and revocation of licenses

when unsafe conditions are identified and records thereof.(10) Evidence major modifications to aircraft have been properly approved.(11) Evidence of overall system safety awareness and of mechanism for accident prevention.

Guidelines are not exhaustive.

-Safety oversight by an int’l team may be perceived as intrusive and offending to a sovereign State. Publicity of such safety oversight (as done unilaterally in US) may discourage States from requesting an oversight inspection. However, it is unconvincing to argue in favour of confidentiality since full transparency in matters of aviation safety is of global int’l interest. And under s.38 a State has a legal duty to notify any departures from the ICAO SARPS of which is to be published by ICAO.

Comprise, however, was achieved. The interim and final report on the safety assessment will be confidential and will be made available to a State concerned and to the ICAO Regional Office where a summary of the final report, containing info related to the difference may be made available. The result of such assessments has not been made public – the principle of confidentiality was strictly observed and thus the system lacks transparency and credibility.

Q? How is the ICAO Safety Audit implemented?ICAO introduced a safety audit in 1997. An int’l group of civil servants would by agreement visit different states, assess their safety level, their implementation of the standards, point out the shortcomings privately to the states, & offer technical assistance to states how to rectify the shortcomings. Only if the state concerned were not to comply the w/ safety standards, then ICAO would go public. (Note: the US makes public ICAO’s findings irregardless)

The safety audit is now an overriding agenda item for ICAO as over 70% of the world needs improvements in aviation safety. Again, note that a State is sovereign & can do what they want but where int’l rules & regs are not met they are out of the business of int’l aviation. this far reaching

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change was done by ICAO w/out an amendment to Chicago even though such audits are seen as an encroachment in a State’s sovereignty.

We should note here though that in the Vienna Convention on Treaties they are to be treated in light of their current use. Hence, one does not have to amend a convention every time, one can look to the current use thereof. Besides, who can practically oppose safety stnds. in aviation?

54(j) Chicago Holds that there is a mandatory function of the ICAO council to report to the GA.Hence, there is a mandate for the council to file a reference w/ the GA where a State fails its safety stnds.

54(k) Chicago A report is then given to the GA where a contracting State fails after a reasonable amount of time to make the necessary changes to those repair sighted problems.

Q? Environment used to regulate?-Aviation is a major problem on the environment. I.e. noise, of which States regulate. ICAO annex 16 stipulates different categories of noise certification. Many countries, however, have declared that many chapt. 2 countries in the annex cannot land in their state as they produce too much noise. Chapter 3 planes can land (quieter). 727, for example are too noisy, however, hushkits maybe added to chapter 2 aircraft so they are equivalent to chapter 3 aircraft. However, this is a hot issue as the UK has passed legislation that chapt. 2 aircraft upgraded to chapt. 3 aircraft are still not allowed to go to England. This is really a commercial fact to protect ones industry.

-There are commercial disputes among states. For ex. no plane can go to the US unless the State of the departing aircraft provides US stnds of security prior to departure. Its simple please meet me stnds or otherwise you’re not permitted to enter my airspace (this is far more prevalent now since Sept. 11th). Regulation takes on economic, environmental, political justification.

-These environmental stnds (i.e. noise) can be swallowed relatively easily by the developed world but those other countries that are developing can’t afford to keep up to date to meet these stnds.

Q? Does ICAO regulate over the High Seas?Yes. Although, art. 8 does say that States have jurisdiction over the high seas it goes on to say that the rules of air come from ICAO.

12 Chicago “Over the high seas, the rules in force shall be those established under this Convention.” Annex 2 deals w/ these rules of the air, which focuses on the law of flight & maneuver over the high seas, which is to have binding force over all areas of the high seas.

Annex 2 (Rules of the Air) regulates the high seas as council is given the power to legislate w/ absolution legal force even though no single state can regulate this area. Since 1951 Annex 2 has only contained Stnds ensuring that all States must follow ICAO rules of the air over 72% of the Earth’s surface.

Q? Is Annex 2 only mandatory over the high seas?To date the Council has not designated any but the Annex 2 rules as obligatory over the high seas under art. 12, however, there is no reason to believe that rules over the highs seas re limited to just limited thereto.

Q? Is Annex 11 mandatory over the high seas?No, for two reasons:

(1) B/c of the technical problems that would result whenever a State providing air traffic services decided to deviate from annex 11.

(2) As stated by the US Rep. that if the rules of Annex 11 were mandatory over the high seas they “might deter a Sate from supplying a much needed service in these areas, since… this

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service might have to be providing accordance w/ rules differing in some respects from those applicable in its own territory.”

Recognition of Certificates & Licenses (s.33)

33 Chicago Member States must recognize as valid certificates of airworthiness & licenses issued or validated by the Contracting State where the aircraft is registered, provided that at the requirements under which such certificates or licenses were issued or rendered valid are equal to or above the minimum standards which may be established from time to time pursuant to Chicago.

A State cannot afford to follow less stringent certification or licensing practices (i.e. Air Worthiness stnds in Annex 8 & Personal Licensing in Annex 1) than those prescribed by the ICAO stnds if this want to be in the business of int’l aviation.

Notification of Differences

38 Chicago Contracting States have assumed the ob. to notify ICAO of any difference b/t their own national practices & regs & those prescribed an int’l stnd. Notice bust be given w/in 60 days of the adoption of an amendment to an int’l stnd when a State does not intend to conform its practices or regs to the provisions of the amendment.

The language of s.38 raises certain problems, b/c the terminology does not correspond to the legislative scheme in art. 90. Art. 38 provides forth notification of differences immediately after a stand has been establish, while art 90 speaks of the “becoming effective” & “coming into force” of an Annex. It is therefore by no means clear, on reading these two provisions, whether the States must give the notice required under art. 38 as soon as the Annex containing the int’l stnds has become effective or when it has comes into force.

To deal w/ this ICAO adopted a resolution, wherein it abandoned the ambiguous requirement for immediate notification of differences except for deviations arising after the entry into force of an int’l stnd, the ICAO Council in effect rewrote art. 38 & thereby established a much more rational system for the notification of differences. And by 1950 ICAO concluded that the notice requirement should, in the interest of safety, be extended also to recommended practices.

Lack of Notification of Differences w.r.t. safety oversightThe continuing tolerance of the silent treatment of the ICAO SARPS on the party of many States may have been temporarily politically convenient but undermined the continuing credibility of ICAO. Safety of aviation is not served by praising the result of praising the “Emperor’s New Clothes”.

Problems of safety oversight are complicated by the increasing movement of fleet of the air carriers in from the State of registry. Thus rendering an effective oversight by the State registry difficult or impossible, the amendment of 83bis would facilitate the transfer of certain function and duties from the State of registry to the Sate of the actual operator (although this has yet to come into force for the last 15+ yrs). States (i.e. US) have begun to work outside of the sphere of ICAO in developing their Stnds (i.e. safety on flights post Sept 11th) ICAO has to learn new working methods suitable for the 21st C and putting their energy into new initiative with primary emphasis on aviation safety.

Legal Consequence of Failure to Notify Differences(see note (4) above)**Lawyers should have doubts about the “law-making functions” of ICAO. First of all, the annexes are not an integral part of the Convention & hence do not have the legal force of the Convention. States do not have an absolute duty to comply w/ them. States have a duty in good faith to do what is practicable but these particular states, themselves, are the judges of what is practicable or not. They only have a legal duty to file a difference under art. 38. The trouble is that there is no sanction if they do not file this difference. “Standards” are soft law.

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Nevertheless, “standards” are law & have force as strong as that of gravity. Certainly, a sovereign state has the freedom to totally disregard the standards drafted by ICAO. But, w/ consequences are rather high, as a State would not be able to fly since it would be deemed to be unairworthy as most countries do abide by ICAO standards & recommended practices. Hence, other states are effectively forced to follow the standards as a precondition to landing rights or not enter the field of aviation at all. Hence, ICAO standards found in the Annexes have great force in the int’l aviation community.

Dr. Cheng claims a State would “be liable to another State if the latter, or one of its nationals, suffers damage as a result of a mistaken belief, induced by the lack of notification, that the former contracting State was complying w/ a given int’l stnd.”

ICAO does have the power to impose sanctions agst states that fail to report a difference (see 54(j),(k) & arts 84-88 Chicago), but whether the thereat of sanctions would achieve the desired result is most doubtful, b/c many of the delinquent States simply do not as yet have the technical & administrative personnel to fully discharge their obs under art. 38.

However, weak the legal status of SARPS may appear in theory to be b/c of art.38, in practice they assert themselves with a persuasive objective force comparable to the law of gravity – disregarding SAPRS would entail serious consequences, possibly eliminating the State concerned from any meaningful participation in int’l air navigation and air transport. (see art. 33 and discussion w.r.t. the high seas in Annex 2 – Rules of the Air empowered by art. 12).

Fostering the Domestic Implementation of SARPSAs provided under Chapter XV Chicago, to cope with rudimentary aviation legislation and to assist developing states, ICAO has utilized some funds under the UN economic and technical development programs to dispatch ICAO assistance to help w/ the implementation of SARPS (see also art. 73). This along with national Facilitation Committees have been extremely effective in some States in bringing about compliance w/ ICAO SARPS. On the whole, however, it would not be unreasonable to assume that ICAO’s implementation efforts are probably more successful in the facilitation field than they are in the air navigation field.

This is even more problematic as ICAO has some states that cannot keep up with the amendment , whereas others find the amendment process too slow and tends to produce regs that are obsolete by the time they are adopted.ICAO is exploring the possibility of developing two sets of SARPS, a simplified and stable set for areas with less exacting operational requirements, and a more complex set for areas demanding advanced techniques and frequent changes. This two system inter-weaving model may in fact be more desirable for some form of uniformity as opposed to a mosaic of systems and stnds worldwide.ICAO GA Resolution A24-14 has also requested member States to refrain from taking unilateral measures that could affect the orderly and harmonious development of int’l air transport as it may be rather difficult of o/ States to comply with these unilateral or regional standards (although this is exactly what was done in the US w.r.t. safety measures on board planes – that being (1) Secure doors, (2) Air Marshall (3) Locked cockpit doors and (4) option for a weapon to be made available to a commander.) Such regional evolution can lead to the creation of barrier and difference b/t groups of ICAO States thereby hampering the uniformity of int’l civil aviation.

Procedures for Air Navigation Services (‘PANS’) & Regional Supplementary Procedures (‘SUPPS’)

Are simply approved by Council for world-wide or regional application The adoption technique assures considerable flexibility, it reduces the legal status of PANS and SUPPS to that of ICAO recommendation having no binding force. The one significant consequence is that PANS and SUPPS relating to the Rules of the Air are not incorporated by reference into Annex 2, are not governed by Art. 12 and thus cannot be deemed to be obligatory over the high seas.

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art. 38 is applicable here as deviations must be made know to ICAO as well.

There is no reason to assume, that the Contracting States distinguish b/t SARPS, PANS & SUPPS when deciding whether or not to comply w/ these regs.

Enforcement of Safety Oversight“Law without enforcement is not law but wishful thinking.” The “emperors new clothes” and the detached and cautious approach ICAO has taken is motivated out of political convenience and reluctance to cause a confrontation with the defaulting States but does not enhance the credibility of ICAO or aviation safety. Need not be seen as policing or punitive, full transparency and publicity of the relevant fact may create pressure of public opinion. 33 on the recognition of certificates is also potentially a very effective tool of enforcement for States as the primarily responsibility rests the sovereign States to fulfill in good faith their int’l legal obs. (2 UN Charter and 26 Vienna). Self-assessment and removal of any deficiencies is a primary duty of the States. The safety oversight program would only be an initial step towards a multilateral monitoring mechanism, an effective system of int’l monitoring and auditing would be conducive to improved level of implementation of ICAO SARPS.

The exp. of ILO could help ICAO as it is not of vital imp to amend Chicago to achieve the sought after results. Rather if the GA adopted a clear resolution directing the Council to request States to present by a specific date each year a comprehensive report on the implementation (or lack thereof) of ICAO SARPS, which would be a starting point for ICAO to negotiate safety oversight procedures.

54(j) gives the Council the mandatory power to report to other States any infraction of Chicago and could be used to report any failure to present the annual report on implementation of SARPS. Similarly, 54(k) gives the Council mandatory power to report to the GA any infraction of Chicago where a contracting State has failed to take appropriate action w/in a reasonable time after notice of an infraction. 55(e) also gives the Council discretionary power to investigate at the request of ANY Member State any situation that may appear to present avoidable obstacles to the development of int’l air navigation (i.e. Russian Airspace Royalty Charges). Council effectively has all the tools needed to enhance int’l SARPS and to assure clarity and transparency in implementation thereof as well as to assure compliance with the legal obs of s.38 . There is no need to look for new methods or difficult amendments to Chicago, it is only a matter of leaderships and political will to use Chicago in practice in the primary interest of aviation safety. As int’l aviation must operate in a safe and orderly manner governed in a transparent and uniform and predictable manner.

If such political will was taken we may see an emerging empowerment of ICAO to conduct safety audits on behalf of the int’l community and could be taken for a developing element of “supra-national” authority being delegated to an int’l entity acting in a technical field of aviation (in a manner one might argue that is the case w.r.t. rules of the air of int’l waters art.12, annex 2).

Conclusion : Paris vs. ChicagoMost commentators conclude that the legislative scheme of Chicago is a retrograde step when compared to that under Paris based on two pts. (1) technical annexes of Paris formed an integral part of and had the same force and effect as Paris itself and could be amended by ICAN on 3/4 ths vote of which all States were bound. (2) Chicago permits a Sate to disregard the provision of an ICAO annex or amendment thereto whenever such sate finds it “impracticable” to comply w/ it.

Chicago indeed compares unfavorably w/ Paris if the sole test was judging the efficacy of int’l regulatory schemes that were compulsory or non-compulsory character of their enactments. BUT this test tells us nothing about the extent legislative acts are being complied with or the function they perform as the non-binding character of ICAO Annexes probably accounts, ore than anything else, for the advances in the regulation of int’l air navigation. Had Chicago adopted the legislative scheme of Paris, many states would have stayed out of ICAO as was the case of ICAN. Knowing that it would

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be bound to implement each annex would mean each State would scrutinize these amendments with great care and primarily in terms of its ability to comply with them. There would be strong pressure to settle for less stringent technical requirements that in effect would have little practical significance.

Freedom of action that States retain in Chicago make it possible for a State to forego the involvement and control of their foreign offices in the development and adoption of ICAO Annexes, and to leave these matters to their aeronautical authorities. This frees ICAO legislative process of the legal, political and economic complications that would otherwise drastically curtail its development. Since implementation is not mandatory, state’s failure to comply with an Annex does not produce dispute-like confrontations. States are accordingly not on the defensive and permits them to explore freely their implementation problems with ICAO, to cooperate fully with ICAO technical mission and accept ICAO implementation help.

The complex and sophisticated aviation code, consisting of ICAO, SARPS, PANS and SUPPS and Regional Air navigation Plans that ICAO has been able to develop w/ very little opposition from States would not be in existence today without this built-in flexibility. The problematic situation is not due to the legislative scheme of Chicago, rather it is the wide economic and technological gap that separates nations of the world. Those State than can implement generally do so and this alone provides a level of standardization, which would likely not exist. Some compliance by all States with a few rules and almost complete compliance by some states with all the rules is better than no compliance. The more ICAO standardization there is at any given moment, the more difficult it becomes for a Sate to participate in int’l civil aviation without itself subscribing to these norms. Soft law is as strong as gravity. Where there are weaknesses in the legislation we must not forget there is not one single convention that does not have its faults, however, we cannot let the perfect be the enemy of the good – and there is a lot of good found in Chicago.

Aviation Safety and Security - Legal DevelopmentsProtection from Terrorists:

-Bag Matching, if the passenger does not board the plane, which the baggage is loaded, the luggage is removed and possibly destroyed. There is also development of existing technology to detect explosives in cargo, automated passenger profiling and the installation of anti-missile defense systems in civil aircraft.

Gore Commission Proposals:-Increase use of bomb-detection devices. Currently, there is not one single matching that can detect all possible explosive devices in baggage, carry-ons and passengers.

Carry on Baggage:There are machines that detect residue or vapor that explosives leave on the exterior of carryon-on bags. They’re very accurate and not very expensive.

Passengers:Trace devices for residues.

Bomb-Sniffing Dogs:Gore proposed to expand the number of well-trained dogs and handlers to significantly and rapidly improve security.

Screening Airline Personnel:There are proposals to require investigations of criminal back grounds and FBI fingerprint chicks for all people who screen luggage for bombs and all airport and airline employees who have access to secure areas. At the time of the Gore Commission there was not such background check.

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Automated Passenger Profiling:Uses data already available in databases to determine if any one might be at a higher risk to civil aviation than others. US Customs use similar services. Proposal of pooling data from FBI, CIA and ATF, however, may put certain passenger’s through more questioning and subject to searches b/c of their flying habits i.e. fly to Syria or Cuba often. Others suggest it is a violation of privacy rights. However, privacy rights should not be used to thwart the aims of increased aviation security.

Foreign Support:Gore proposed to provide anti-terrorism assistance in the form of airport security training to countries with airports served by airlines flying to US (weakest link theory).

Aircraft Safety: Bogus PartsUse of unairworthy parts is a problem. An audit of aircraft repair station in the US an din foreign countries revealed as many as 95% of party inventory distributors and broker were unapproved.

Using former military aircraft in civil operations:FAA has taken measures to prevent former military aircraft from being used in commercial civil aviation. When a US registered aircraft is sold, both the owner and the buyer must notify the FAA of the sale. The FAA then issues an N-number, which is linked to the aircraft’s serial number to allow the FAA to trace aircraft sold.

b) Quasi-Judicial Function

66 Chicago ICAO assumes functions, including the settlement of difference and hearing of complaints placed upon it by Chicago instruments, namely IATA & the IASTA.

Several bilateral agreements refer in one way or ano/ to the settlement of differences w/ the use of the ICAO machinery; however, Chicago contains no constitutional basis for the settlement of disputes arising from bilateral agreements. Although, this matter was dealt w/ in Resolution A1-23 that authorized ICAO Council to act as an arbitral body in any differences arising among Contracting States relating to int’l civil aviation matters as so requested by all the parties. Yet, not a single dispute has yet to be referred to the Council for arbitration under the terms of that Resolution.

84-88 Chicago Are devoted to the settlement of disagreements.The rules for the settlement of differences are modeled on the Rules of the Court adopted by the ICJ.

Article 14 Rules states that council may at any time prior to the meeting at which the decision is to be rendered, to invite the parties to the dispute to engage in direct negotiations. Council may also render any assistance likely to further the negotiation, if no solution is found the suspended proceedings shall be resumed.

84 Chicago (repeated in 53) A decision by the Council is made by a majority of the Members.

Q? Can you appeal an ICAO decision?Yes.

37 ICJ & 84 Chicago Confers an obligatory jurisdiction to the ICJ w.r.t. appeals form ICAO council. Where a decision is appealed, ICAO’s decision will be suspended the ICJ holding will then be final and binding.

Chicago also imposes sanctions for non-compliance w/ the final decision rendered under Chapter XVIII. The GA shall suspend the voting power where default and the decision to impose such a sanction need only a majority of the GA and would surely be motivated by policy considerations.

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Q? What are the problems w/ the ICAO Quasi-Judicial Process?Council is composed of States elected by the GA. The reps do not act in their individual capacity, but only as a voice of their gov’ts, unlike judges, they are not responsible solely to their conscience or to some judicial oath of office. For example, in the Minutes of the Council meeting on 29 July 2971 several Reps requested a postponement of a vote w.r.t. a settlement of difference b/t Pakistan and India so they could consult with their respective administrations to obtain instructions. Consequently, the Council cannot be considered to be a true judicial body composed of judges. The procedure for the settlement of differences by the Council is not in fact a true int’l adjudication but rather a qualified int’l arbitration sui generis. This was also echoed by Dr. Edward Warner.

Decision may be based strictly on policy or equity rather than on legal rules. States may in fact abstain in the decision-making (unlike real judges) and if several members were to do so, virtually any decision may be frustrated.

HOWEVER, it may be argued that the very existence of this adjudicating procedure has been a contributing factor in encouraging States to resolve their differences without resorting to this adversary legal procedure. One should not let the best legal solution be the enemy of the good.

ICAO still has benefits with the mechanisms in Chapter XVIII, which can creatively contribute as an “amicable compositeur” to exercise a mediating or conciliating role. 54(j) & (k) which are a mandatory function of the Council to report o contracting States any infraction of Chicago as well as any failure to carry out recommendations or determinations of the Council. Use of these provisions could help to mobilize int’l opinion and bring pressure to bear to achieve compliance with the Convention w/out the adversary bilateral proceedings. Moreover, in 54(m) there is a mandatory function of ICAO Council to consider any matter relating to Chicago which and Contracting State refers to it. Again without resort to adversary and purely legal proceedings 54(m) enables the Council to exercise a role of mediator to find an acceptable modus vivendi and avoid confrontation. Truly legal disputes should be settled only by a true judicial body, which can entail full judicial detachment, independence and expertise. The ICJ is the most suitable body for such disputes not ICAO Council.

Other Legal Issues: Russian “Royalties”15 Chicago States a firm principle of int’l law that must be implemented in good faith in all 185 States that being royalties cannot be charged to an airline for using its airspace. Russia may in fact be breaching this.

Russian authorities cannot claim they are not violated 15 Chicago, holding that it is all a matter of direct commercial negotiation b/t airlines for why they have no responsibility b/c in the bilateral agreement on air services it is that gov’t who insists on making the exercise of freedoms on certain routes conditional on the existence of such commercial agreements b/t the airlines and such are subject to gov’ts approval.

The 1st freedom of the air – the right of transit over the territory without landing is a non commercial freedom and therefore extra commercium. This is firmly recognized as a fundamental principle of s.15. No State is known to have charge foreign airlines a “toll” solely for the right of transit through its airspace. Under 82 States have accepted a legal undertaking not to enter into obs inconsistent with Chicago. It would create a dangerous precedent if ICAO States were to silently tolerate a creeping abrogation of s.15. Int’l obs must be complied with in good faith. A state should be bold enough to test the efficiency of Chapter XVIII and bring out the issue of Russian Royalties. On appeal the ICJ could make the final decision as per s.84 (seeing as there are inherent problems in the quasi-judicator role of ICAO). However, negotiation among States with all facts known would be preferable to adjudication.

If foreign airline are by agreement on air services permitted to exercise traffic right, the an int’l carrier must be assured of a legitimate share in such traffic (as seen in the 3rd and 4th freedoms by

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Bermuda I) This concept may be rusty w.r.t. equality of opportunity but boils down to an outright equality of advantage with all its anti-competitive and anti-liberal connotation distorting the concepts of market economy.

Additionally, the Russian airline does not explicitly passes the 6th freedom of traffic rights in EU and Asian terminal. This freedom remains a free choice of the passenger and is not a right of property of a Sate or airline. The passenger makes his choice among the competing airlines and routes depending on the quality of the product and price offered.

Airspace is not a “commodity” and the right of transit through it is not a “price” – such an understanding would be contrary to s.15 Chicago – to consider its air space to be a “natural resource” for the sole use of which the airlines have to pay. However, such an approach would not only be contrary to an establish int’l ius cogens but could lead to absurd consequences leading to a collapse of the entire regulatory system is a reciprocal treatment is introduced in other countries agst the Russian airline – potential slippery slope that would cripple the aviation system. Putting aviation back into an era of protectionalism and nationalism.

ICAO should be the leader in addressing and resolving the issue of Russian Royalties assisted by ECAC, EC , IATA and the WTO. Int’l good will could be marshaled to channel financial assistance to Russia to improve the essential aviation infrastructure, air navigation facilities and services to meet SARPS. That would be efficient, transparent and would represent the desirable paradigm of int’l cooperation much better than the controversial Russian Air Royalties.

Part X: Global Navigation Satellite System (GNSS)

Procedures for Air Navigation Services are not part of the “law-making” function of ICAO. They are only approved of as the general goings-on of the council. art. 54 Chicago does not adopt them. The problem arises b/c very often these rules say that they are for worldwide publication & therefore it looks like that the world must adhere to them. However, this is not the case for the reasons mentioned above.

F.A.N.S. (“Future Air Navigation Systems). This is a major difference that the future will bring – as improvements will be w.r.t. communications, navigation & surveillance (i.e. radar) as well as improved infrastructures, which will be for the purpose of air traffic mgmt, to prevent congestion, speed up flight, communication b/t ground to air & air to air & air to ground will also be enhance.

V.H.F. (Very High Frequency) covers large stretches of the Earth & aircraft can be lost in real time hence there are rather large difference b/t take offs to ensure an adequate distance b/t aircraft. How do we improve this, along w/ navigation of the aircraft. Real time can now be seen via satellite communications to achieve electronic communication for surveillance & navigation. The most imp. thing is navigation, which can be achieve through Satellite technology. the navigation system is based on radio electronic ranging. The satellites then sends a signal to X & measures this time in nanoseconds your precise position, technically its very complex & demanding.

-The advent of GNSS could meaningfully enhance the safety of air navigation. It is expected to enhance economy and regularity be permitting rationalization of air routes, reduction of the required separation of aircraft and of the congestion at airports. With additional savings for States regarding round facilities which will be made redundant. However, the tech is no “self implementing” it works only within its social context and requires a human element for its useful operation.

There are currently 1.5 global navigation systems:(1) GPS (Global Positioning System) developed originally for the US army but became public in ’83

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GPS can also be used by hikers, sail boats etc. In ’92 the system was made available by the US for 10 years for free for aviation navigation – it is a very precise system that can measure w/in centimeters but the US won’t make the complete technology available for security reasons. The DOD corrupts some info to instead be accurate +/- 100 meters, thus perfect precision isn’t known by those who may use the tech for evil uses. Nevertheless, it is still very precise.

-GPS provides positioning in real time, thus safety & economic savings are enhanced as opposed to the VHF system of long ago.

Note airports can build augmentation devices to the GPS as is done in Germany, which is accurate to w/in 10 centimeters.

(½) Russian equivalent is GLONASS, which was offered for free for 15 years in an attempt to out due the US position. The Russian version is problematic though b/c there is no political or financial will to maintain the system it is somewhat unreliable hence very few actually use the system, receivers are also not widely available. The 3rd largest airport in Russia is now using the US GPS

Sovereignty of States:To some degree, globalization and liberalization of air transport erode, with States’ consent, the rigid protection concept of sovereignty over airspace. The President of ICAO Council has even said, “the full implementation of an integrated global satellite-based air navigation system is bound to infringe on State’s sovereignty” as it will require close cooperation and coordination among States. However, the GNSS cannot be imposed on States agst their will, rather support for it will depend on their sovereign political will. Nevertheless, the full benefits of GNSS will be available only to those States that will accept an agreed cooperative framework for the GNSS as dictated by the US who are providing the system.

GNSS & Chicago:States have not accepted any ob to provide air navigation facilities and services beyond their territory under Chicago, but may do so, and no State is obliged to make use of such tech if offered. Chicago is rather neutral as to the GNSS as such global coverage was not even foreseen at the time of the drafting of Chicago.

Liability:It would be illogical and unjustifiable to delay the implementation of the GNSS or to hold it a hostage to a liability regime on the feature of which no consensus will likely ever emerge. By taking Air Traffic Control liability was a learning experience we should note that it is actually surprising to argue for liability w.r.t. the GNSS – it is after all a navigational aid, no different in substance from existing aides. Additionally, these system are currently free to an undetermined scope of potential users over which the signal providers have not control and with whom they are in no legal relationship apart from their duty to provide, in good faith, the signal as offered in their unilateral statements.

9 Precepts:ICAO on the basis of F.A.N.S.(II)3 enunciated 9 precepts of which only one was directly related to GNSS, although all have some relevance to the GNSS system. The Council Statement has no legal force and is no a source of law.

(1) Universal Accessibility:For all States w/out discrimination even to those that are declared hostile to US interests(2) Sovereignty, Authority, and Responsibility of Contracting StatesImplementation and operation must neither infringing nor impose restrictions on States’

sovereignty, authority or responsibility in the control of air navigation and the promulgation

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and enforcement of safety regs. The nature of GNSS is a sufficient safeguard to ensure these requirements are met.

(3) Responsibility and Role of ICAOICAO shall continue to discharge the responsibility for the adoption and amendment of SARPS

and asserts that it is the only int’l org that can effectively co-ordinate GNSS activities, which is a mandatory of function of ICAO. However, GPS tech was developed independently and stnds are being accepted in practical use on a wide scale. Thus, ICAO law-making function would have to follow the practice of the actual signal providers as accepted by the users. Additionally, art. 33has no relevant to the GNSS signal providers. As it obliges States only to recognize certificates and licenses (31 & 32) if ano/ State meets the min ICAO Stnds. It does not impose a duty on a State to reject them if a States does not meet those Stnds.

(4) Technical Cooperation:ICAO invites States in a position to do so to provide assistance w.r.t. technical, financial,

managerial, legal and cooperative aspects of implementation. ICAO must rely on donations and UN programs to do this themselves. However if there was adequate funding the ICAO could prove a very cost-efficient and effective means to help States implement services.

(5) Institutional Arrangements and Implementation:The institutional arrangement for the GNSS have never been defined and will remain

hypothetical depending on the actual GNSS scenario and options. Only the first option represent the current reality – GPS is the only GNSS available, viable and functioning in practice accepted world-wide.

(6) GNSSShould be developed as an evolutionary progression towards an integrated GNSS over which

contracting States exercise a sufficient level of control. The vision of global integration should take into consideration technical and economical differences in States. At the cost of 10 Billion + 500 million a year in maintenance development of another such parallel system would be technically redundant, wasteful and economically prohibitive.

(7) Airspace Organization and Utilization:Interests of efficiency and economy should motivate States to abandon the current systems

based on jealously-guarded limits of their sovereign territory – advantages of consolidation are evident but will be difficult and slow to implement in practice.

(8) Continuity and Quality of Service:One legal loophole is evident per 89 Chicago as the freedom of action is reserved to States in

case of war or declared national emergency. Despite this, however, GNSS continuity of service should be maintained and that int’l law did not allow States to put civil aviation into danger b/c of military reasons. However, no int’l guarantee can be obtained from the current GNSS providers – due to an act of God, vital interests or an act of self-preservation of the States concerned or simply the lack of funds. However, no better guarantees can be assured under even under a purely civilian GNSS under int’l control.

(9) Cost Recovery:Addresses a reasonable cost allocation b/t all users and pronounces that any recovery of costs

incurred shall be in accord w/ art. 15, including the principle that it shall neither inhibit nor discourage the use of the GNSS safety services.

Q? Should ICAO give GPS stnds? No. A new tech does not require legal regulation unless and until it creates specifically new social relations and conflicts of social interest. Caution must be exercises lest the hypothetical legal consideration become a pretext for slowing down the actual implementation of the GNSS.

The threat the US will pull the tech out from under the feet of other nations is over stated as the US would hurt themselves as the US would want to ensure quality service for its own national users and to maintain its leadership and credibility in the world. There would be no justification for questioning the good faith of the US gov’t in its commitment to provide continuing and reliable GPS services.

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GPS will one day be permanent & law will develop therewith, politics will play their role. Lately though the EU is jealous of the US GPS & are introducing their own duplication called “Galileo”. This is very costly as it will be used only for aviation, which is only for 1-2% of all GPS business which EU airlines will be force to use, hence cost/benefit is problematic.

GPS, perhaps should be regulated later but just not now. “Law if necessary but not necessarily law”.

Part XI: IATA1) Membership Background:

IATA is a body that is incorporated by law. IATA is an int’l org composed of carriers that are companies that have gotten together at the int’l level to create an int’l organization. IATA is a worldwide NGO.

The members of this organization are the airlines. Purely domestic airlines are associate members of IATA b/c IATA deals w/ int’l air transport.

There is a class of airlines that is completely forbidden from being members of IATA: non-scheduled airlines. Why? Some regulatory authorities did not want to mix apples w/ oranges. They did not want to have the charter carriers in the same grouping b/c they feared that the scheduled carriers would induce the charter carriers to cease competing w/ them & would exercise market forces on them which would mean that there would be no competition b/t the non-scheduled & scheduled carriers.

Cargo carriers can become members of IATA: Federal Express for example, or Flying Tiger Airlines. There is no requirement that the only members of IATA be passenger airlines.

It is important to note through the 1950s & 1960s, the majority of the members of IATA were government owned or controlled. Nowadays, a slight majority of carriers in IATA are privately owned or privately controlled.

2) Two Basic Documents Establish IATA:Q? How has IATA been established?

The headquarters of IATA is in Mtl. & IATA has been incorporated in Canada under Canadian law via a special act of Parliament in April 1945. It is a corporate body in the form an association. The Act of incorporation is a short document & is a framework document. It only provides for the fact that an association is hereby incorporated & the fact that that association has certain objectives & the objectives are set forth in para. 3 of the act, which are very wide & general.

See casebook for the objectives.

Para. 4 stipulates that the head office of IATA will be in the city of Montreal.

Para. 5 gives IATA the power to make by-laws, rules & regulations & establishes the basic structure of it, vesting the Executive Committee (Board of Governors) w/ the main administrative powers of the organization & these are stipulated in paragraphs 5b & 6 (i.e K, borrow funds).

Articles of Association:-EXAM –articles of association (members & rights of member & provision of conduct on air traffic) p.45+ & the rules for conduct p.65+

The actual rules of functioning of IATA are not laid in the act, but are laid down in the Articles of Association. They are comparable to the statutes of a company, which define the rights of the members of the associations among themselves (this is imp. w.r.t. day-to-day life of the assoc.)

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The Articles of Association are rules, which have been made as a matter of establishing the rules of functioning & have been adopted by the 1st Annual General Meeting of the Association. These are rules to which all members of the association have subscribed & any changes in the Articles of Association must also be approved by the Annual General Meeting. So, every member has a say & a vote in any question pertaining to amending these rules.

There are two classes of members. art. 5 para 1 defines thus as (1) Active members (2) Associate members. 1/6th of all airlines are associate members. Association was created

for int’l airlines but domestic carriers are also catered to i.e. feeder services West Jet sends people to Air Canada who flies to Japan. Therefore the second membership class (associate) is for companies like West Jet. The main difference b/t an active & associate member is that the associate member may be present but cannot vote at the conferences. Not discriminatory as the conferences make rules for int’l rule & the associate members don’t carry on int’l routes so why should they vote on tariffs that they themselves will not charge or carry thereon.

-Where general matters are decided upon w.r.t. the life of the association at the AGM. art 5 para 2 states that all members can vote at discretion of the executive outside of the conferences. Usually associates are present at the AGM & they usually can vote at the AGM budget as they pay fees & should have a say w.r.t. what happens w/ those funds.

Q? Can non-schedule carriers (charterers) join IATA?There is an imp. difference b/t schedule & non-scheduled carriers. This means that countries where they are designated are called flag carriers, whereas non-scheduled operate outside the rules as they are charterers although they may carry int’lly – Non-scheduled carriers cannot join IATA, which is a consequence of gov’t not wanting to mix charterers & scheduled carriers on the other. US gov’t when giving approval around the anti-trust rules they said the charterers (non-scheduled carriers) could not be members of IATA.

3 Articles The objectives of the Association are stated.

4 Articles states who can be members & what are the classes of members. The associate members are domestic carriers. Active members pay dues different from those of the associate members. Associate members pay less dues than active members.

4, para. 5 Articles steps need to be taken to be a member. The Board of Governors decides whether a new member is admitted.

5 deals w/ involuntary termination of membership & outlines what conditions the assoc. can kick out a carrier.The Board of Governors can terminate the membership of a carrier.

6 Articles w/ the payment of membership dues & the budget & how the membership dues will be calculated.

7 & 8 Articles deal w/ the functions of the Annual General Meeting.The ultimate authority of the association is vested in General Meeting.

9 Articles deals w/ the way in which the Board of Governors is composed.

9(2)(2)(b) Articles election of chairman of Board of Governors.Note: There are three officers who are subject to the approval of the Board of Governors: director-general, corporate secretary, the treasurer of the association.

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11 Articles lists the languages of the association: English, French, Arabic & Spanish.

2) Structure of IATA:

The structure of the organization is very much geared to this two-tear type of activity. On the trade association side, you have the Secretariat, headed by the Director General. You have two main groupings, which report to the Secretariat on legal matters, Legal Advisory Group & an Apolitical Advisory Group. & then you have four committees which report directly to the main executive body of the organization, which was called Ex. Committee & now called the Board of Governors. It consists of 25 people & most of them are the chief executive of the big carriers & each governor is elected for a period of 3 years.

GA:In theory, the Supreme Body of the Organization, is called Annual General Meeting. It is annual meeting where all members of IATA are called together. All members are entitled to participate & vote w/ one vote. This is only in theory. In practice, the Annual General Meeting does not have much power. They meet usually for two days & most of the time is taken up by routine matters or industry presentations. Thus, the real decision-making happens at the Board of Governors. Yearly assembly of the members at the Annual General Meeting & each member of the org has a seat & vote in the body. The GA determines by vote who is to become a member of the board of governors (Executive) 1/3 is elected yearly for terms of 3 years (hence they’re offset).

Executive:Then there is an executive body that is called the Board of governors, which consists of 25 members. The director general is the chief executive officer of the organization. He reports to the Board of Governors. The Executive decide on policy matters, who is the chief executive; prepare the budget (which is approved by the GA). The executive is assisted by a number of committees, which assist the board of governors normally in policy. (See below for structure). These are sub-groups of the executive as members of the committee come from those of the 25 executives.

The powers of the Board of Governors are quite extensive. Everything that is not specifically a function of the AGM, is a matter for the Board of Governors. They are also responsible for the handling of the funds & any possible miss-management of funds.

Committees:Standing committees & the so-called special committees – these are groups that are consisting of airline executives – no other executives are admitted. The committees report to the board & make recommendations on policy matters, one of these committees is called the legal advisory council, which consists of the 25 legal advisors of the airline & make recommendations to the board. Committees are advisory in nature & do not do more than that, as it is the Board that approves recommendations.

The financial committee demonstrates the complexity, as it is full of interest groups b/c of the need for expert advice. A lot of the committee recommendations are translated into internal decision-making where all airlines will be effected by such decisions. i.e. how they handle cash flow & Ks. Decisions can also take place w/ regard to gov’t policy & try to influence gov’t decision-making. This is noted in the Sept. 11 incident w.r.t. war/risk insurance as it was cancelled. This demonstrates that when airlines have a particular need they’ll speak w/ one voice so gov’t will listen.

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The four committees, the cargo committee, financial committee, technical committee, traffic committee, report on their respective industry matters directly to the board of governors & prepares the decision-making of the board of governors.

3) Main functions of IATAWhat does the organization & what does the organization stand for? Why do the carriers regroup in such an organization & pay the high dues to maintain the organization?

The organization has a two-fold purpose & therefore a two-type structure:

Trade Association Function:Main purpose of the organization: to work w/ gov’ts to pursue measures that the industry needs to develop. IATA represents of all members when lobbying gov’ts & enlisting the support of the governments towards what the industry is doing. This is called the trade association function: You harmonize the rules by which the members operate. You represent the members towards the government, you establish a liaison b/t the gov’t & the members &, if necessary, you lobby the gov’t in favour of the aims of the members. They also lobby ICAO, thus the lobbying effect is not done only on the individual government level. These are the classical functions of the organization.

Tariff Coordination Function:Another group of functions & for which IATA was more known in 50s, 60s, & early 70s than the classical function are called tariff coordination. The carriers meet in conferences & discuss & usually agree on the fares & the rates that are going to be filed w/ gov’ts on the int’l routes in question. The fares are the term used to describe for passenger rates. The term “rates” means the price charged for the transportation of cargo. “Fares & rates” when used together are called tariffs.

Tariff coordination is a system, which deals w/ routes by geographical region. These conferences are divided into 3 geographical regions:

(1) The Americas(2) Europe & Africa(3) Asia & Oceania.

When you have transatlantic routes, we used to have an amalgamation of the Conferences of the Americas & Europe & Africa. The conference system is a system that has set up specific conferences for specific geographical regions. W/ deregulation, this conference system has lost a lot of its clout. In the 60s & 70s, all the int’l routes were subjected to this conference system. Beginning the late 1970s, some countries were no longer so happy w/ the system. For example, the American carriers were required to stay out. Later they were allowed to rejoin.

This conference system has been phased out in the North America & Europe. Thus, there are some areas in the world where the conference system has been phased. But, in most other areas the conference system is still working & is still used.

-On the tariff coordination side, you have basically the same scenario w/ the director general & the secretariat. Thus they have a double function. & then you have all the conferences. The conferences are, at least in theory, sovereign: they do not report to anyone. They are sovereign for procedural matters & on certain policy matters they are subject to the policy guidance of the Board of Governors. But, as far as individual decision-making is concerned, the conferences are sovereign &, therefore, not subject to reporting to anyone.

Q? Why was a Conference System implemented?The conference system is used b/c of the interrelationship b/t the different routings in the global system, you need a way of establishing a fares & rates system where the interrelationship b/t the varied routes could be taken into account. No single government & no single carrier could establish

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the fares & rates on int’l routes without taking into account the neighboring routes & the feeder routes. B/c of this interrelationship, the governments thought that the best system would be a system whereby the carriers themselves established the fares in the same way this had been done previously in the maritime conferences. After the second world war, when IATA & the int’l air traffic system was re-established, most governments thought the best way for establishing int’l fares & rates would be a system which would be modeled on the maritime conferences. This is why they fostered & encouraged the re-establishment of IATA in 1945 in Havana. In the following year, when the U.S. & the U.K. met at Bermuda to negotiate their first bilateral air transport agreement, the two parties agreed that the fares & the rates under the Bermuda I, 1946 agreement would be established by a conference system & they had IATA in mind.

They stipulated, however, that any fares & rates that would be agreed to in such a conference would be made subject to governmental approval. Thus, it is a mixed system: the carriers themselves are left to negotiate the fares & rates but those fares & rates cannot enter into force before they have been agreed to & approved by the governments concerned. So, this was the pattern that showed the way. The Bermuda I agreement established a pattern which later on was emulated by all other governments. They used the Bermuda I agreement as a model for the way in which tariffs should be coordinated & agreed upon. All subsequent bilateral agreements until the early 1980s, followed exactly this model. IATA was almost entrusted by the governments w/ the negotiation & coordination of fares & rates subject only to government approval. This is the basis on which the tariff coordination system was set.

This activity for IATA was not only extensive, but it also put IATA in the driver’s seat b/c IATA was not only given the powers to coordinate those tariffs but also to enforce them. If there was a carrier who would dare to charge to lower than the fares agreed upon in conference, IATA was authorized to investigate this & if there was an infringement to impose fines. This is why IATA came to be known as a cartel. Thus, IATA got a bad name in the late 70s & early 80s. Thus, IATA had some anti-trust proceedings agst them. Thus, in the early 80s, IATA had to loosen up its rules & its enforcement powers were taken away from them. So, today the tariff coordination functions are still there. But, IATA today is a toothless tiger: they can agree to the fares, but if a carrier goes its own way, IATA can do nothing about it. Since 1978, no member is no longer obliged to participate in tariff coordination.

Q? What happens if a bilateral air transport agreement does not mention gov’tl approval?The fact that governmental approval is not mentioned does not mean that the governmental approval is not necessary. In fact, certain governments require governmental approval of all results of tariff coordination conferences. The U.S. Government is one such government & since 1993 the E.U. government does the same.

4) 3 Types of Conferences:

Unanimity Voting Rules:Conference rules operate under rules, details are not imp., except one should know that the conference follows unanimity rules. Meaning rules coming out of these conferences must be adopted by unanimous consent of all members. Majority does not simply rule b/c it (i.e. which service conference sometimes operates on) would not allow for uniformity as those who do not vote in favour of such a rule will simply not apply the rule & administering such a system would not be practical. Thus, negotiations are very arduous & long.

Since, 1978 you can agree to a rule or tariff but do something entirely different as there is an absence of sanctions. Don’t forget that there are practical pressures of operation b/c if one airline isn’t following the same rules – then they may cut themselves out of the aviation business. Soft law becomes very strong operationally.

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Again, when it comes to voting in the conference system there is a rule unanimity, which means all the carriers that participate in the conference much vote in favour of the proposal some exceptions do exist – i.e. services conferences (see rules of conduct for IATA traffic conferences) & the exception that applies says that as far as the scope of the decision making conferences are concerned a majority of 2/3 is sufficient. This is the only exception that is under the IATA rules at art. 8 para 6 on the rules of IATA traffic conferences. Imp. exception from the unanimity rule as it deals w/ recommended practices, which does not have the same binding force as a resolution as the tariff coordination conference. B/c it doesn’t have a binding force it was acceptable to have a 2/3 majority. In the field of the services conference there is another exception at art. 8 para 5, which deals w/ industry stnds. Industry standards maybe adopted by 4/5th majority – which by its nature should apply to everyone – abstentions are also not counted (p.69 CB) Note there is also a special feature of industry stnds in the field of services as after the adoption of the package every member is free if they cannot adhere to the service they can file a notice stating that they were unable to adhere to the stnd. Once a filing notice is made they are entitled to refrain from implementing that conference package.

Q? If you are a member do you have to participate in the meeting & activities of the conference?This was an issue before 1978, but under the new rules every member can elect to participate under the conference system. None of the members have to be involved in the tariff conference - associate carriers can also elect whether or not they want to be part of the agency & service conferences. There is a certain amount of flexibility in the system now as members may or may not participate & as far as the agency & services conferences associate members can elect to participate or not.

(1) Tariff coordination conference: (Tariff Function discussed above)This is the most important type of conference. It is the classical activity of the conferences to coordinate fares & rates.

-Note Conference tariffs are recommendations w.r.t. legal force, even if they’re gov’tly approved for reasons of competition. This changed after 1978. Rather the conference tariffs were used as indicators (bench marks for elsewhere in the world).

Q? When & how do tariff decisions become effective?! This is imp b/c some countries only apply decisions that have been approved by gov’t, for ex. the US has held that only gov’t approved decision can be applied by airlines. The US has rather stringent anti-trust rules (i.e. price fixing is an offence) One might say these airlines who set around the tariff tables at conferences are price fixing but this is an exception from anti-trust rules in the US, however, these int’l price fixing has to be first submitted to the gov’t for approval & cannot be applied until the US has approved them. This is a legally valid condition that the US dept of transport has allowed (immunization) In practice when the conferences have met & have voted by unanimity for a proposal package, the airlines can’t apply such proposal until submitted to the gov’t who studies it for 2-3 mths, which is normally later approved w/ an effectiveness date put on the package stating when the package comes into force – this usually coincides w/ a new time table (one is the summer schedule the other is the winter). The effectiveness date usually coincides w/ the schedule.

Note: Sometimes a package will not be approved by a particular country i.e. India or UK, which result in IATA meeting again to negotiate the package.

(2) Services conference: These are concerned w/ the harmonization of the rules b/t the carriers & w/ particular reference to the interline system. The services conferences are actually charged w/ rule-making for the purposes of the interline system in order to ensure that the rules are the all the same among all the participating carriers.

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Services conferences establishes rules about operation on the passenger & cargo side. for ex. the question of when the airline is going to accept your ticket, under which circs can the airline refuse to accept the ticket i.e. where the ticket is not validated or doesn’t show the name of the passenger the airline can refuse to honour the ticket. Similarly, the airline can impose condition w.r.t. transport of those physically disabled i.e. how far in advance a handicap person must give notice to receive such service. This is nec. w.r.t. the amount of inter-lining going on (changing carriers during the same ship) – they should be subject to the same rules, w/out such confusion will follow.

(3) Agency conferences:K b/t agent & IATA w.r.t. what the agency can & cannot do. Important b/c when agents receive the tickets its like cash & the agents have rules to follow w.r.t. such (i.e. how they’re filled in, security (safe), how funds must be handled, how quickly agent must remit those funds to the carrier etc.)

Types of Tickets: Dedicated airline ticket: where airline logo & name is shown on the cover bank settlement plan ticket: where IATA logo is on the cover of ticket. The carrying carrier’s code needs to be inserted. It is a neutral ticket that can be ticketed on any of the IATA carriers.

Combined ticket & boarding pass: where the ticket itself is combined w/ the boarding pass. This is also uniform.

Electronic ticket: this ticket also has a specific format, which is also agreed upon by the carriers.

Thus, you have different types of ticket but they are all uniform around the world & that is the domain of the services conference. But the ticket is only a small portion of what the conference does. Ex., the transportation of handicapped people, the rules that apply to such transportation is standardized by the Services conference. Ex., is the reservation system. This is also standardized by the services conference.

Q? What does the agency conference do? IATA has accredited agents. This accreditation system is uniformly applied. There is an agency accreditation contract b/t the airlines & the agent & there are a number of rules that apply b/t the airlines & the accredited agents. The rules are comprised in the so-called agent handbook. Those rules are made comprised in the agent handbook & those rules are made by the agency conference. Thus, the agency conference standardized the rules that apply b/t the principal (the airline) & the agent which is the person acting as the representative of the airline when making the contract of carriage w/ the passenger or the cargo shipper. This relationship is a standardized relationship & the agent basically has no choice of sort of changing the rules of that relationship. The agent has very little room to negotiate w/ the airline. There are about 14,000 int’l travel agents & thus the system could not be administered if everybody was trying to get his own terms. Thus, in order to make the system manageable, the airlines insist on uniformity.

This system is administered by the agency conference. The agency conference has a secretary who is the agency administrator & is part of the secretariat & reports to the Director General & reports to the agency conference & is responsible to the agency conference for the good administration of the system.

Q? How high is the commission of the travel agent on a sale? The standard level of commission which carriers used to pay & has recently decreased. W/ increasing volume, the carriers usually pay an override commission. The standard commission in the industry used to be 9% of the value of the int’l ticket. In recent years, b/c of the decreasing strength

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of the agent & the increasing strength of other distribution methods (internet & electronic ticketing), the carriers have decreased the commission to 7%.

A carrier that no longer feels dependent on the agency system will tend to give a lower commission. The general level under the agency system is still 9%, but carriers can make individual arrangements.

The general level for override commissions used to be in the order of 11% or 12%. The carriers would honor a large amount of volume of a travel agent would give them 11 or 12%.

The profit margin of most carriers on an int’l ticket will be only 5%.

The cargo agency system itself, the contract & the rules that govern the cargo agents, are agreed to in the cargo-agency conference. The commission is not discussed in the cargo-agency conference since it is a matter of negotiation.

Q? How Do The Committees Prepare The Decision Making In The Conferences?Each of three conference mentioned above has its own committees, which prepares that particular conference’s decision-making. & all of these committees are serviced by the secretariat. Each committee has a secretary who is a member of the secretariat. So, the preparation of decision-making is facilitated by the fact that the secretaries usually need to make sure that all the information from other IATA bodies are fit into the meeting they are preparing.

Recap: You will recall our discussion of the unanimity principle & the fact that the packages coming out of tariff conferences are subject to governmental approval & this requirement of governmental approval is not contained in the rules for the conduct of tariff conferences themselves, but is contained in the applicable bilateral air transport agreements & that the first bilateral air transport agreement which stipulated this mechanism was the Bermuda I agreement of 1946 which was followed by most countries until the advent of “Open sky” agreements.

5) Misc. IATA Functions:

The billing & settlement plans b/t the travel agents & the carriers:It deals w/ the throughput of funds from the agents to the carriers on a monthly basis & involves a very enormous amount of cash. You can imagine the amount of monies that travel agents are taking in every month. These plans do not exist in all of the countries. These funds are forwarded to the Billing & Settlement run by IATA & distributed to the carrier to which it is due & the distribution of these funds is the reason why the remitting funds is done through IATA. Before IATA did it, it was a very complicated thing b/c each travel agent had to calculate which amounts are due to which carrier.

So, now agents provide a magnetic tape & IATA puts all the magnetic tapes together & computes what is due to each other carrier. IATA also takes in the cash & it goes through an IATA bank account & is then redistributed to the carriers.

This is one of the main programs of IATA’s financial services

Program for taxes & charges on travels: This IATA service is trying to negotiate w/ countries on these taxes on travels.

Fuel Trade forum: forum within IATA that invites the big oil companies who produce & sell aircraft fuel at the airport. It deals w/ one issue the price of aircraft fuel

Airport & ground handling services: IATA has a ground handling council in which the carriers are represented on the one hand & the ground handling companies are represented on the other hand.

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Ground-handling is a field where some carriers perform the functions themselves & sometimes you have professional ground handling companies or the airport itself does the ground handling . IATA has created a ground-handling model agreement which most parties follow & so the legal aspects of ground handling are discussed in the ground handling council, but the agreements are made outside the council b/t the parties in order to avoid anti-trust accusations.

Ground handling means dealing w/ the aircraft on the tarmac side & dealing w/ the passengers & cargo on the terminal side.

Dangerous goods Panel: What type of dangerous goods can be carried & under what circumstances & what must be the packing & labelling requirements. You have various categories.

Live Animal Regulations: Under what conditions, can live animals be carried on board aircraft?

Seminar services: interested parties in the industry are called together to discuss a particular topic usually over a day or two. This was only created in the 1990s

Training services: in a unit that conducts professional training courses for members of the industry. Professionals can keep up to date. Participants are usually airline professionals, such as lawyers. The idea was to keep their knowledge up to date.

Airline/Airport designator service: each airline has a two-letter designator & each airport has a three letter designator & IATA assigns this.

In-flight survey: a service that provides questionnaires for the airlines. The questionnaires will process the questionnaires & the evaluation of the replies & will provide the response to the airline that asked for the questionnaire.

All of these functions deal w/ trade association.

6) Contract Of Carriage

Conditions of Contract: are reproduced in the ticket. There are a set of 11 paragraphs which provide the main skeleton of the rules of contract of carriage b/t the passenger & the carrier. It is a summary of the rules that apply to the contract of carriage.

There is a clause within the conditions of contract that incorporate by reference the conditions of carriage of the carrier & any agreements on fares & rates that are applicable to this transportation.

This clause is legally very imp. This means that the contract is a contract of adhesion.

Conditions of Carriage: are not reproduced into the ticket, but are incorporated into the conditions of K.

When a passenger is denied access to the conditions of carriage, a passenger would have a good case to say that they have not been incorporated into the K.

Q? What types of rules do the conditions of contract contain?Basically, the conditions of contract are framework conditions.

Para 1 of the conditions of contract contains definitions.

Para 2 of the conditions of contract, gives the carrier a contractual basis to apply Warsaw. This clause will need to be changed once the Montreal Convention is enforced.

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Para 3 has the incorporation by reference clause. It incorporates the applicable tariffs & the carrier’s conditions of carriage & related regulations, which are made part hereof.

Para 8: rule that governs the duration of the contract.

Clause relating to time shown in the timetables not being guaranteed has caused considerable controversy. It has been litigated quite a bit. This clause generally means that a carrier can say “I cannot guarantee the times, & therefore if I can get you there in time, fine & if not it is not my problem.” Some passengers have found this completely inequitable. There are number of cases where the passenger has succeeded w/ a claim that if a carrier holds out a schedule to the public, then normally the carrier must make sure that he can keep those times except only if there is force majeure. In Europe, this clause has been struck down by a number of courts. In the U.S., Weber is not aware of any case where the court has struck down this clause. Thus, many airlines in Europe do not use this clause.

Para 10: passenger shall comply w/ government travel requirements. That means in particular documentation, such as passport.

Para 11: no agent or servant or representative of the carrier has the authority to alter or modify or waive any of the provisions of the K. Only the carrier himself can agree to modifications to the K.

7) Conditions of Carriage are much more detailed.

a) Rules Governing The Ticket

The ticket is regarded as prima facie evidence of a contract. It is not the K itself b/c the contract itself consists of the ticket, conditions of contract, the conditions of carriage & the applicable tariffs. All these elements together form the contract. But when a passenger comes w/ a ticket, art. 3 of the conditions of carriage states that the ticket constitutes prima facie evidence of the contract of carriage.

It is prima facie evidence b/c the ticket is a document, which establishes a presumption that the holder of the ticket has concluded a contract of carriage w/ the carrier. It is only prima facie evidence to protect the carrier. It has to do w/ the question as to what point in time is a contract of carriage concluded as a K of carriage is concluded only when the ticket is issued & the passenger has paid the price of the ticket.

b) Rules Governing Inadmissible Passengers

Q? When is a carrier entitled to refuse carriage to a person who presents himself at the gate?

Overbooking is most common form of denied booking.(5) Ano/ case of denied booking is when carrier says you presented yourself at the gate too late.(6) Ano/ case of denied booking might have to w/ the development of pregnancy.(7) Ano/ case of denied booking might be to a problem w/ a state of health (alcohol or drug use)The question in these cases is what is the carrier entitled to do? Can the carrier legally refuse carriage or is the carrier obligated to take the passenger?

Rules w/r/t these matters are laid down in art. 8 of the conditions of carriage. Art. 8 lists cases where exceptionally a carrier is entitled to refuse. This means that as a basic rule a carrier is obligated to carry anyone who does not fall under these refusal exceptions. The exceptions basically cover cases as follows:

a) Where the carrier is under an order to comply w/ any applicable laws or regulations.b) Where the conduct, age, or mental or physical state of the passenger is such as to require the special

assistance of the carrier.

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8) Interline System: Resolution 780

It is a system of uniform law which passengers & shippers do not see much of in daily operations. But, it is a very important ingredient of the int’l air transport system b/c it regulates the rules under which the 650 participating airlines around the world cooperate in accepting each other’s passengers, tickets & cargo. Such common practice that it is almost taken for granted. Without interline, code-sharing & alliance systems would not be possible. It is the skeleton on which today’s scheduled air transport system is built.

The interline system is laid down in Resolution 780 as well as in an agreement in Attachment A thereto, which contains the heart to Resolution 780. Effectively, there are two agreements: (!) for passengers & (2) for cargo. However, they are both v. similar & it would be redundant to discuss them separately.

Q? Why do you have a resolution & an agreement & in what form has the agreement been made?Normally, w/in the IATA framework, agreements b/t the airlines are expressed through conference resolutions.

But, the particularity of the Multilateral Interline Traffic Agreement (MITA) is that you have a number of important obs in the agreement, which have very imp financial implications. Therefore, the carriers, for reasons of ev., prefer to not only pass a resolution (which is not signed by any of the carriers) on this matter but to also close this agreement in the form of a signed agreement which means that each carrier who joins MITA must physically sign through an authorized officer a copy of the MITA as evidence that it legally subscribes to the obs under the MITA & must sign a signed copy to the secretariat of IATA to signify its acceptance of the agreement.

This is a particularity. Most of the other obs of a carrier are closed in the form of a resolution. Here, rather, you have a signed copy of the agreement from each participating carrier.

Q? What is the significance of MITA?A passenger who wants to fly from Montreal to Paris to Rome then back to Paris & then back to Montreal. This travel will involve two carriers. On the Montreal-Paris part of the route, the carriers might be Air Canada or Air France. On the Paris-Rome part of the route, the carriers might be Air France or Alitalia. The passenger buys his ticket in Montreal & will pay for his ticket in Montreal. How is the second leg valid & how do you get the payment from Air Canada to the second carrier & how can the passenger be sure that the second will say that it did not get its money yet or that did not consent to carrying it?

Thus, the interline is all about the issuance of tickets on behalf of other carriers & secondly ensuring that the money that is due to the other carrier or carriers will be properly transferred to them.

The basic mechanism for interline objectives is done in two parts:

(1) As far ticketing is concerned, you have an agency relationship b/t X & Y. MITA expressly states that when one carrier in MITA issues a ticket on behalf of ano/, that it is done on the basis of an agency relationship b/t the two. Thus, the first carrier acts as agent on behalf of the second carrier & the second carrier explicitly recognizes that agency relationship. The first carrier acts in the name & on behalf of the second carrier. As stated in art. 2 of the Interline Agreement “Each party here to this agreement is hereby authorized to issue & complete tickets, MCO’s exchangeable for tickets for transportation of passengers in the form approved by & in accordance w/ the tariffs & terms, provisions & conditions of the tickets . . .” Hence, there is a mutual authorization among the parties to issue tickets on behalf of each o/ & establishes the agency relationship b/t the parties.

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(2) The second part of the mechanism is the mutual acceptance of tickets that parties have issued on behalf of each o/. art. 2.2 MITA provides for such an ob of ticket acceptance as it says each party agrees to accept each such ticket or o/ transportation doc & to honour each MCO issued by any other party.

There is also a mechanism that will ensure the transfer of the funds from one carrier to the second carrier. In the relationship b/t X & Y, the transfer of funds should not be seen in isolation. If you have carrier X owing some funds to carrier Y, there will be other times that carrier Y will carrier X some funds b/c carrier Y will also sell interline tickets. Thus, the carriers will do an offset at the end of a month & only the remaining amount is transferred to the carrier, which has a credit. This is done through the IATA clearing house. IATA clearinghouse collects the records of all the obs of carriers’ agst each o/.

8 MITA deals w/ billing & settlement in the interline system.

8.1 MITA “Each issuing airline agrees to pay to each carrying airline the transportation charges applicable to the transportation performed by such carrying airline & any additional transportation or non-transportation charges.”It establishes the general principle of payment of the relating charges.

8.2 MITA states that billing of accounts payable through this agreement shall be in accordance w/ the rules in the IATA Revenue Accounting Manual. The manual states that “Unless otherwise agreed, settlement of amounts payable pursuant to this

agreement b/t the parties shall be in accordance w/ the manual of the regulations & procedures of the IATA clearing house.”

9) Regional Organizations

The states in Europe did not want to have a Regional Air Transport Commission of ICAO b/c they wanted certain flexibility. The EU did not want a completely independent organization but they wanted something in b/t that consisted of the following:

The new body would be organizationally independent but would be run physically from the ICAO regional office. The premises where the European organization would be seated would be made available by ICAO as per financial arrangement b/t ICAO & ECAC, under which the indirect cost of running the organization would be borne by ICAO. Direct cost of running ECAC would be borne by ECAC. ICAO would have a say on the agenda & the work program of the new organization. This was the actual work of the organization would be tied in w/ ICAO.

The structure of the organization was set out in a resolution of the ECAC member states. The historical development of this body is set out in the art. of Weber at pg. 75(?) & the negotiations of the format in which this regional organization set up.

Q? Why was the regional organization set up in the first place?In the early 50s, European governments & the European carriers wanted to have much greater degree of facilitation. Facilitation is used to describe the process of facilitation of int’l air transport w/ regard to existing governmental bureaucracy.

Facilitation deal w/ the effort to reduce the amount of bureaucracy or red tape back to a minimum. To allow efficient operation unhampered by unnecessary bureaucracy. In the post-war period, the level of bureaucracy was so high, that European states decided to do something about it.

Also, European states wanted to see if they could agree to multilateral agreements on traffic rights.

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On the first subject, ECAC has been quite successful. The first thing it had to do away was w/ landing card. Passenger & cargo manifest were done away w/.

But, in the field of liberalization & multilateral agreements on traffic rights on scheduled services, ECAC failed. When this failure became clear, people attempted open skies in non-scheduled services. Thus, ECAC did nevertheless succeeded in concluding a Multilateral Agreement on the Rights of Non-Scheduled Services (Paris Agreement, 1956). This agreement did not get a lot of fanfare. But, it had a lasting impact on the development of commercial charter services in Europe. This is one of the achievements of ECAC, to have contributed to a very strong, commercially viable development of non-scheduled services in Europe & particularly IT services. IT services are charter services which stand for Inclusive Tours where you typically have a service going from a urban center to a vacation place & return. The development of this kind of travel service was such that in the 1980s, total inter-European traffic was more than 50% non-scheduled services. The liberalized environment within Europe made that possible. This relatively obscure agreement has had a profound impact on the development of non-scheduled services in Europe & it is reproduced on pg. 109 of the casebook.

Multilateral Agreement on Commercial Flights of Non-Scheduled Services in Europe, Paris 1956. This is a multilateral agreement.

art. 2, paragraph 2b: IT services is provided for. IT services flourished in an unforeseen way. Great Britain have the largest piece of these services.

The agreement has been copied in Southeast Asia & the Middle Eastern states are thinking about such an agreement.

The two legs on which ECAC has been standing on: liberalization of commercial rights of air services & facilitation. In the field of liberalization ECAC had to wait until the EU had adopted its packages of liberalization on the scheduled services.

The field of liberalization of scheduled services was a matter for the European Union. The European scene characterized by the work of ECAC until 1986 b/c ECAC was the only body in the field of civil aviation coordination in Europe until 1986 when the E.U. was for the first time given some power in the field of civil aviation in a court judgment in a case (Nouvelle Frontiere, 1986) decided by the European Court of Justice where for the first time the court held that the European bodies had powers dealing w/ civil aviation & particularly w/ competition matters under the Rome Treaty. This decision reproduced on page 290 of the casebook. This decision propelled the question of whether or not the European bodies had some powers in the field of aviation. This matter had always been disputed. There was a case in 1974 (French Seam case) which somewhat timidly decided this question. It gave some powers to the European bodies, but it was not quite clear what the European bodies could do w/ these powers. Therefore, the European bodies had remained inactive from 1974 to 1986.

From 1986 & the new decision of the European Court of Justice, the European bodies started to assume their authority in civil aviation & then passed the first regulator package in 1987. Thus, from this time, the European bodies were not only involved w/ aviation, but also regulated.

There was a second package of regulations in 1990 & a third package in 1993. These regulations regulated the types of fares & the procedure that should be applied in fares & fares packages. Joint operation among airlines was regulated.

Q? Why was this regulated by the European Union & not ECAC?The tools for regulation are quite different from one organization to another. Structurally speaking, ECAC is a very traditional inter-governmental organization which can make some recommendations,

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but which cannot make legally binding decisions that are directly applicable & that are directly binding on the operators. This is legally & structurally not possible.

Everything that ECAC does is usually done by recommendations. ECAC has done some useful work in noise abatement, reducing the noise of air traffic.

The tools which ECAC used were recommendations which were directed to its own member states. But each state could decide whether to implement the recommendations. The EU functions on a different basis that has much vaster powers than a body ECAC. Its structure is that it can make rules which are directly binding on companies & thus avoids waiting for the individual governments to change their laws, to rules & to implement. The European bodies have themselves legislative powers, regulations are like legislative acts which will be enforced by the courts & the administrative acts have the force of law w/ respect to those companies.

ECAC has more members than the EU. ECAC has 37 member states & the European Union only has 15 member states.

Since ECAC has been the first body historically speaking to be a mixed concept b/t an independent body & a body tied to ICAO, what about the other geographical areas of the world?

We have a number of organizations. For example, the African Civil Aviation Commission which is seated in Dakar, Senegal & it has the same status of ECAC. It is not a regional air transport commission, it is not independent. It is a mixed concept. It is set up on the regional premises of ICAO in Africa. ICAO has a say in the work program of the AFCAC.

The main thrust of AFCAC’s work is to train personnel & liberalization & facilitation within Africa. At present, it is trying to put together a Multilateral Agreement on Traffic Rights within Africa. It has tried to do this before. It has 54 member states & it is the biggest regional organization

The AFCAC Constitution is an int’l agreement & it is in the process to be amended.

In Latin America, we have the Latin American Civil Aviation Commission. Also, a copy of ECAC. It has been tailored to the needs of Latin America. It has been a bit more political than the other regional organization. Traditionally, U.S. carriers have had a lot of 5th freedom rights in Latin America. One of the reasons this organization was set up was to ensure that 5th freedom rights within Latin America would be restricted. They are involved in training & set up a number of professional training schools.

In the Middle East, there is the Arab Civil Aviation Commission. It has no financial arrangement w/ ICAO. ICAO does not have a say on this body’s work program. They were originally seated in Cairo. Then, they moved to Morocco & now is back in Egypt. Their agreement is reproduced on pg. 118. Part of their work is to liberalize the rights in air services.

These regional groupings will coordinate their policy positions among themselves before each important meeting, such as the ICAO assembly.

Three other bodies that exist at a regional level:1) Euro-control—deals w/ air traffic control, & are spearheading European air traffic management. Collects the route charges for the use of the navigational services.

2) ASICKMA, provides air traffic control services for the African region.

3) COSISNA, for 5 central-American countries which provides air traffic control of services.

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Part XII: EXAM – HOW TO IMPROVE THE SYSTEM: How do you believe Chicago should be amended to reflect the current situation? In answering the question though – look at how realistic the change would be?

Revisit Fundamental Principles:Air transport should be fully included into the WTO concept of trade in services to balance the needs and interest of sates in the overall economic spectrum rather than in one isolated aviation industry. There is also significant reason to abandon the difference b/t state and civil aircraft as they share the airspace and air navigation facilities and serviced – they should observe int’l SARPS. Aviation however should remain one of the most regulated industries to assure overriding principles of safety and security of which can only be meaningfully performed by States or joint orgs and the industry itself cannot be self-regulating.

Nationality and Registration of Aircraft:Chicago attaches several function and duties w.r.t. an aircraft state of registry . In practice, however, the State of registry in not necessarily the State of operator and may find it impracticable to discharge the appropriate function and duties (83bis allows delegation however there is no recorded ap of this provision). Concept of nationality of aircraft has to be creatively adjusted to make a wider use of non-national registration of aircraft in the form of joint or int’l registration reflecting multinational ownership and operation of aircraft by possible future int’l operating agencies. An update concept of registration of aircraft on a non-national or int’l basis could facilitate int’l financing of the fleets of aircraft by a more effective system of securitization. It could also contribute to safety of flight and more unity in the application of safety stnds if the certificates of airworthiness, licenses etc., are issued not by the Sate of registry but by a wider non-national authority or int’l agency.

Safety:Standards have to be properly enforced by national administrations and compliance with them should be strictly audited by ICAO and or by int’l regional orgs.

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Aircraft Accident Investigation:Prevention of aircraft accidents is assisted by through investigation of all accidents only an appropriate determination of the cause(s) can lead to effective correction of any faults in tech, procedure or human conduct.

GNSS:GNSS in time will require SARPS, especially if it to become the sole means of navigation globally. However, it is imp to refrain from undue hast in law-making since the systems are fast evolving there is little practical exp with the social relation involved. GNSS should be introduced into practical ap without delay and should not be held hostage to eventual agreement of the applicable legal regs. Law will follow when there is sufficient practical exp with the operation of the GNSS permitting a realistic analysis of the possible conflicts in the social relations created b/t the GNSSS, which call for such regs and uniformity. (see GNSS precepts)

Aviation Security:Security from man-made danger are an integral part of safety and better conventions are hardly needed. Criminal law represents only a general prevention. Effective specific prevention can be provided only by security checks at the airports separating the potential offender from his target and preventing the introduction of weapons and dangerous substance on board aircraft.

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Unruly Passengers:Tokyo would encompass such acts, it does not create a wide enough jurisdiction or duty to prosecute. States may assist in a solution by effective national leg criminalizing such act and establish appropriate jurisdiction regardless that the act may have occurred on a foreign plane and beyond its territory (i.e. see model legislation – after which such national initiative will enhance by a Protocol the jurisdictional scope of Tokyo – this is an urgent area of priority).

Health Issues:Old people and length of travel may lead to the need for the presence of medical personnel and equipment on board for extended flight to respond to any medical emergencies.

Banning of Drugs:Keep aviation “drug free” enforce random testing of personnel for the presence of substance. 400 lives of passenger on an aircraft have an overriding right to protection agst those individuals human and or privacy rights in this regard. Limiting the sale of alcohol may also be a good idea.

Quasi-Judicial Function of ICAO:Creation of an int’l court for major criminal acts agst aviation security could prove useful and would reflect the global concern of the int’l community for the preservation of aviation security.

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CTRL – SHIFT – F9

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