International Law Of Civil Aviation

INTERNATIONAL LAWrelevant to civil aviation

Agus Susanto SH.MM.

International LawRelevant to civil aviation

Civil Aviation :- Operating globally- with common world-wide requirements

- safety- regularity- efficiency

- depends on international co-operation& co-ordination

- substantially affected by international law

& international organizations

International Law

1. Nature of international law :

- distinguish international law from municipal or domestic law

- distinguish public international law from private international law

- how does international law become municipal law ?

International Law

2. Sources of international law :

- treaties

- custom or general practice of states

- general principles recognized by civilized nations

- decisions of judicial & arbitral tribunals

- distinguished writings

- declarations of international organizations

International Law

3. State Sovereignty :

the right under international law..

- to exercise the function of the state

- to the exclusion of any other state

- over a certain area of the world

State territory includes the airspace above

International Law

4. State Jurisdiction :

- the sovereign right of states to exercise control

- a right recognized rather than conferred by international law

- states must act to assume jurisdiction over person & things

International Law

4. State Jurisdiction :

steps for exercising jurisdiction according to law :

(i) creation of rules to define & impose control

(ii) adjudication – applying law to facts

(iii) enforcement of adjudicated outcome

International Law

4. State Jurisdiction :grounds for exercising criminal jurisdiction :

(i) territorial principle- control of crimes committed within

state’s territorial boundaries- ships & aircraft on state’s register

considered quasi-territory

(ii) nationality principle- control of crimes by state’s nationals

committed outside the state’s boundaries

International Law

4. State Jurisdiction :grounds for exercising criminal jurisdiction :

(iii) passive personality principle- control of crimes against nationals

outside state’s boundaries

(iv) protective principle- control of non-nationals whose

activities outside state’s boundaries are

prejudicial to state security

International Law

4. State Jurisdiction :grounds for exercising criminal jurisdiction :

(v) universal principle- control of crimes against general

international law where universal jurisdiction of all states is recognized

eg. piracy

limits to jurisdiction: may not be exercised by means of physical intervention in another

state’s territory

International Law

4. State Jurisdiction :

essentially takes two forms :

- territorial jurisdiction

- extra-territorial jurisdiction

in most states: laws are assumed to operate extra-territorially unless expressly stated to do so

International Law

5. Nationality :

a concept that links - persons- ships- aircraft- space objects…to a given state

- the state determines who / what possesses its nationality

- including ships & aircraft

International Law

5. Nationality:

- international law governs the validity of state claims :

- as to extra-territorial jurisdiction over nationals & persons whose conduct affects the state’s nationals

- against other states whose conduct affects the state’s nationals

International Law

6. State Responsibility :

- states are responsible for breaches of their international obligations

- breaches of obligations may result in responsibility :

- to act to rectify the breach- to make reparations for

damage

International Law

7. Sovereign Immunity :

- customary international law recognizes states as generally immune from the territorial jurisdiction of other states

ie. States cannot be sued in another state’ courts

- immunity not normally extended to state- owned commercial enterprises

- immunity also extends to execution of judgments foreign states

International Law

8. Treaties :

- agreements between states that are legally binding under international

law

- consent to treaties…- signature & ratification- accession- exchange of notes

- amendment : usually by protocol

- withdrawal : by denunciation

International Law

8. Treaties :

interpretation…..Vienna Convention 1969

- analyze normal meaning of words in context

- consider intent & purpose

- consider subsequent practice indicating consensus about interpretation

International Law

8. Treaties :

peremptory norms… Vienna Convention 1969Art 53 :

a treaty is void…if it conflicts with a peremptory norm of international

law‘peremptory norm’ = a norm or

principle recognized by the international community as a whole as a norm from which no deviation is

permitted

International Law

9. Peaceful settlement of Disputes

- inquiries, consultations & negotiation

- conciliation

- treaty dispute resolution processes

- UN security Council

- arbitration

- judicial settlement

International Law

10. United Nations

created 1945…to promote world peace & security

main UN organs :- Security Council- General Assembly- Secretary General &

Secretariat- International Court of Justice

International Law

11. Other International Organizations

- structures

commonly : general assembly

executive councilsecretariat

- contributions to international lawdeclarations : embryo

international principles multilateral treaties

- legal personality : optional

International regulatory framework

related to civil aviation

Agus Susanto SH.MM.

International regulatory framework

1. Origins :

- 1903 – beginnings of powered aviation

- World War I – development of military aviation

- Paris Convention 1919 – first international aviation law convention

- 1919-1944 period – gradual growth of international air transport

- Chicago conference 1944 – planning the development of post-war air

transport

International regulatory framework

2. Chicago conference outcomes :

- Chicago Convention 1944 (Convention on International Civil

Aviation)

- International Air Services Transit Agreement 1944

- International Air Transport Agreement 1944

International regulatory framework

3. Chicago Convention 1944

main aims :

- to meet world needs for safe, regular & efficient air transport

- to establish the basic international regulatory framework

- to establish the International Civil Aviation Authority (ICAO)

International regulatory framework

4. Chicago convention 1944-basic principles

- state sovereignty Art. 1:

The contracting states recognize that every state has

complete and exclusive sovereignty over the territory above its territory

…territory includes territorial waters

International regulatory framework

4. Chicago Convention 1944 – basic principles

- application of conventionArt.3 (a):…applies only to civil

aviation & not state aircraft

- nationality of aircraftArt.17: Aircraft have the

nationality of the state in which they are registered

Art.20 : Every aircraft…shall bear its appropriate nationality & registration marks

International regulatory framework

4. Chicago Convention 1944 – basic principles

- flight over territory of contracting states

Art. 6:No scheduled international air

service may operate over or into the territory of a contracting state, except with special authorization….

International regulatory framework

4. Chicago Convention 1944 – basic principles

- flight over territory of contracting states

Art. 5:grants aircraft not engaged in

scheduled international air services the right to-make flights into and in transit across the territory of a contracting state, and to-make non-

traffic stops…….

International regulatory framework

4. Chicago Convention 1944 – basic principles

- flight over territory of contracting states

Art. 7:

permits contracting states to reserve all traffic

between places in their territory for their own national carriers

(known as ‘cabotage’)

International regulatory framework

4. Chicago Convention 1944 – basic principles

- non-discrimination…between national aircraft & aircraft

of other contracting states regarding :

- flight over prohibited areas : Art. 9

- entry & departure regulations : Art.11

- airport / air navigation charges : Art. 15

International regulatory framework

4. Chicago Convention 1944 – basic principles

- rules of the air

Art. 12: …each contracting state must enforce Convention’s rules as to flight & maneuver against its own national aircraft (wherever they

may be) and to any foreign aircraft operating within its territory

Art. 12: …rules in force over high seas are the Convention’s rules

International regulatory framework

4. Chicago Convention 1944 – basic principles

- misuse of civil aviation prohibited : Art.4

- aircraft in distress : Art. 25

- accident investigation : Art. 26

- freedom of action in war or national emergency : Art. 89

International regulatory framework

5. International Civil Aviation Organization (ICAO)

- established by Chicago Convention, Part II

aims & objectives :- to develop the principles of international air

navigation- to foster the development of international

air transport- to insure safe & orderly growth of

international civil aviation- to meet the needs of the world for safe,

efficient, regular and economical air transport

International regulatory framework

5. International Civil Aviation Organization (ICAO)main organs :

- Assembly – all Chicago contracting states

- Council – 33 elected states representing:

(1) states of chief importance to air transport

(2) other states making largest contribution to international air navigation facilities

(3) other states that ensure representation of all major world areas

International regulatory framework

5. International Civil Aviation Organization (ICAO)

main organs :

- Air Navigation Commission

- Air Transport Commission

- Secretariat

- Legal Committee

International regulatory framework

8. ICAO – Settlement of disputes

- interpretation :Art. 84: disputes referred to ICAO Council for decision…appeals to arbitral tribunal /

international court of justice

- expulsion :originally – no expulsion provision for ICAO

members

- financial delinquency :Art. 63: Gen. Assembly may suspend state’s

Assembly vote

International regulatory framework

6. Chicago Convention Annexes

- Personnel Licensing - Aeronautical Telecommunications- Rules of the Air - Air Traffic Services- Meteorological Service - Search and Rescue- Aeronautical Charts- Aircraft accident investigation- Units of Measurement - Aerodromes- Operation of Aircraft - Aeronautical Information Services- Aircraft Nationality & - Environmental Protection Registration Marks - Security- Airworthiness of Aircraft - Dangerous Goods by Air- Facilitation

International regulatory framework

6. Chicago Convention Annexes

adoption process :Art. 90 : ICAO Council adopt by two thirds

vote

Annex or amendment enters force 3 months later…

unless in the meantime a majority of contracting states object

International regulatory framework

6. Chicago Convention Annexes

legal effect :- within contracting states :

Annexes not binding domestically until given force of law

- over the high seas :

rules of Convection (including Annexes)

apply automatically – Art. 12

International regulatory framework

6. Chicago Convention Annexes

obligation of contracting states :

Art.12: must keep flight & maneuver rules uniform to “greatest extend possible”…with Convention rules

Art.38: if compliance found impracticable…state need only notify ICAO of any difference between its own practice and that established by the international standard

International regulatory framework

7. ICAO – promotion of international aviation law

1948 : Geneva Convention on rights in aircraft

1952 : Rome Convention on surface damage

1955 : The Hague Protocol to Warsaw Convention 1929

1961 : Guadalajara Convention-supplement to Warsaw

1963 : Tokyo Convention on Jurisdiction & commander’s powers

1970 : Hague Convention on Hijacking

International Air Services

Key State interest :

-. International trade

-. Balance of trade-. Communications-. Business-. Tourism-. Employment opportunities-. National Security-. Foreign Relations