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The Role of the Chicago Convention and the ICAO in the development

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					The Role of the Chicago Convention and the ICAO in the
development of International Air Law: A Critical
Approach.


                                       Introduction

Within barely two generations, aviation has developed into a major industry and has become
an indivisible part of the economic and social life on the global level. In the year 2000 aircraft
of the world have carried 1.57 billion passengers – a quarter of the mankind took a flight in
that year.
The international air transport creates complex social relations that require legal regulation on
the international level. A specialized and demanding field of the legal expertise – air law –
has developed during the 20th century that requires a wide spectrum of knowledge of the
general international law, comparative law, private international law and many related
disciplines.
The fundamental requirement for the understanding of the complex legal regulation of
international air transport is the ready availability of the basic legal sources treaties,
agreements, protocols, etc. However, even with the growing availability of the Internet
databases, it is not always easy to gain access to updated sources of international air law.
The sources of International air law are- National air regulations (Acts made by parliament),
Bilateral air regulations (Regulations between two parties), Regional air regulations ( Among
European Union, North America region, SAARC region), Global air regulation ( ICAO,
IATA, Airport council etc.). The 190 States which are members of the International Civil
Aviation Organization (ICAO) use ICAO as the global forum for cooperation in all fields of
civil aviation. This means that, every year, the equivalent of one third of the world’s
population flies under the responsibility of States which have pledged to comply with the
thousands and thousands of standards and regulations set by ICAO.

                                          Overview
Law of the air in the broadest sense is law connected with the use of the air, including radio and
satellite transmissions; more commonly, it refers to laws concerning civil aviation.
It starts from entering the airport for security check in (Annex 7-Security). It continues with
machine readable biometric passport (Doc 9303) to design of aircraft (annex 8-Airworthines)
to Pilots, engineers and air traffic controller license (Annex 1-Licensing) to flight time
(Annex 6-Operation of aircraft). This shows that air is full of rules (Annex 2-rules of the air).
Even if it not at matured stage even then thousands of ICAO provisions have already been
implemented by 190 member states.
Definition of International Law verses International Air Law;
International law which is also called 1-Law of nations, 2-international law, 3-Inter state
law, 4- Transnational law is “the name for the body of customary and treaty rules which are
considered legally binding by civilized states in their intercourse with each other.”
Air law is the branch of International law that concerns flight, air travel, and associated legal
and business concerns.
Some of air law area of concern overlaps that of admiralty law. However, the business
aspects of airlines and their regulation also fall under aviation law. In the United States, the
Federal Aviation Administration (FAA), in India, the Director General of Civil
Aviation(DGCA), in Britain, the CAA, governs applied aspects of flight under National
Regulation. In the international realm, the International Civil Aviation Organization (ICAO)
provide general rules and mediates international concerns to an extent regarding aviation law.
The ICAO is a specialized agency of the United Nations.

Philosophy of Air Law- Concept of state Sovereignty in the airspace or Roman Law maxim-
Cujus est solum ejus est usque ad coelum (Who owns the land owns the skies).

Customary Law: In the early times the questions arose over the rights of balloons to cross
national borders safely. Example Paris police regulations on balloons of 1783 and the Hague
conferences of 1899 & 1907, which prohibited the discharge of projectiles and explosives
from balloons

Theories: Scholars proponed theories on Sovereignty and Jurisdiction- Free Air Theory,
Complete Sovereignty Theory, Restrictive Sovereignty Theory and Complete Sovereignty but
innocent passage.

Source of Air Law: As specified in introduction following are the sources of air law-
1) National Aviation Regulation: These are source of Legislative component for making of
laws, policies, rules and regulations for granting or denying of permission. The executors are
Ministry of civil aviation, DGCA, Airports Authority of India, Air India corporation, BCAS,
private operators and Concessioners. The objectives are to meet the following-
       a) to provide law for the transport requirements of foreign commerce,
       b) to promote tourism sector,
       c) to provide employment and earn foreign exchange,
       d) to meet the needs of the postal system,
       e) to create the conditions for a viable,
       f) to create a healthy air transport sector,
       g) to aid in national development,
       h) to serve national defense,
       i) to meet disaster assistance needs etc.
As a legislative component the ACT 1934 was enacted by the parliament where the powers of
the central government is defined to make rules, to give punishment, to compensate and to
use special powers in emergency. The other Acts are-
       a) The Tokyo Convention Act-1975,
       b) The Anti – Hijacking Act-1982,
       c) The Suppression Of Unlawful Acts Against Safety of Civil Aviation Act-1982.
       d) The Airport Authority of India Act, 1994
       e) The carriage by Air, 1972
Based on these acts various Rules are defined like -
       a) The Aircraft Rules, 1937.
       b) The Aircraft Rules,1994(Demolition of obstructions caused by buildings and trees).
       c) Aircraft Rules, 2003.
       d) The aircraft (public health) rules, 1954.
       e) The Indian Aircraft Rules, 1920, Rules as to Aircraft Arriving In or Departing
           from India.
Regional air regulation:
It is the agreement between parties as defined in Doc 7030 ( Regional supplementary
procedures). Generally multilateral agreements are failure and bilateral agreements are more
popular. The main objective is conclusion, implementation or continuance of some kind of
intergovernmental agreement or understanding concerning air services between the territories
of two countries. These regulations are gaining importance due to growing Regionalism and
international air law.
Global Air Regulation:
International conventions related to aviation law are-
        a) Chicago acts and related protocols which includes Chicago convention, Transit
        agreement, Transport agreement, Trilingual text, Final clause, Article 83bis, Article
        3bis.
        b) Aviation security instrument which includes The Tokyo convention, The hague
        convention, The Hague convention, Montreal convention-1971, 1988, 1991
        c) Joint financing instrument which includes Joint financing Iceland, Geneva 1956.


                                             ICAO
I.      HISTORY
First International Convention relating to Regulation of Aerial Navigation was held in Paris
October, 13, 1919. It had five main provisions:
1.      Established basic principles of air sovereignty.
2.      Prescribed guidelines for national registration of aircraft.
3.      Placed restrictions on movement of military aircraft.
4.      Defined aircraft navigation rules and the establishment of international airways.
5.      Created the International Commission for Air Navigation (ICAN).
Paris Convention of 1919 was followed by Inter - American International Convention, also
known as Pan American Convention, at HAVANA (CUBA), February 20, l928.
On October 12, 1929, Convention for the Unification of Certain Rules Relating to International
Carriage by Air was held at Warsaw, known as Warsaw Convention. This was followed by
other conventions.
Second World War led to a quantum leap in aviation. War necessitated that men and materials
must be carried by air in the shortest possible time, to the remotest corners of the world,
preferably by the shortest routes. United States took initiative and leading role in this regard and
conducted exploratory discussions with other allied nations during 1944. On the basis of the
talks, invitations were sent to 55 allied nations and neutral states to meet in CHICAGO in
November 1944. Of these 55 invitees, 52 attended and held discussions for five weeks. Today
there are 190 contracting states.
The following instruments were formulated on December 7, 1944.
1.      INTERIM AGREEMENT OF CIVIL AVIATION
       It laid down certain principles and arrangements for the Contracting States to follow for
       the interim period till formation of ICAO. This organization was known as Provisional
       International Civil Aviation Organization (PICAO).
2.     THE CONVENTION OF INTERNATIONAL CIVIL AVIATION which laid down
       certain principles and arrangements for the growth of international civil aviation in a safe
       and orderly manner and international air transport services to be established on the
       basis of equality of opportunity and to operate in a sound and economically viable
       manner. It also provided for the establishment of a permanent body charged with the
       administration of these principles and arrangements known as INTERNATIONAL
       CIVIL AVIATION ORGANIZATION ( ICAO ).


3.     INTERNATIONAL AIR SERVICES TRANSIT AGREEMENT. (DOC 7500)
       Under this agreement, each signatory contracting state grants the other the following two
       "Freedoms of the Air" in respect of scheduled international air services:
       i.    The privilege to fly across its territory without landing.
       ii.   The privilege to land for non-traffic purposes.
4.     INTERNATIONAL AIR TRANSPORT AGREEMENT (DOC 2187), India is not
       a signatory to this agreement
Each contracting State grants to the other contracting States the following freedoms of the air
in respect of scheduled international air services:
       1. The privilege to fly across its territory without landing;
       2. The privilege to land for non-traffic purposes;
       3. The privilege to put down passengers, mail and cargo taken on in the territory of
       the State whose nationality the aircraft possesses;
       4. The privilege to take on passengers, mail and cargo destined for the territory of the
       State whose nationality the aircraft possesses;
       5. The privilege to take on passengers, mail and cargo destined for the territory of any
       other contracting State and the privilege to put down passengers, mail and cargo
       coming from any such territory.
With respect to the privileges specified under paragraphs 3, 4 and 5 of this section, the
undertaking of each contracting State relates only to through services on a route constituting a
reasonably direct line out from and back to the homeland of the State whose nationality the
aircraft possesses.
The privileges of this section shall not be applicable with respect to airports utilized for
military purposes to the exclusion of any scheduled international air services. In areas of
active hostilities or of military occupation, and in time of war along the supply routes leading
to such areas, the exercise of such privileges shall be subject to the approval of the competent
military authorities.
III.           BODIES OF ICAO
1.     The Assembly
It is composed of representatives from all Contracting States and is the sovereign body of
ICAO. It meets every three years, reviewing in detail the work of the Organization and
setting policy for the coming years. It also votes a triennial budget.Extraordinary meetings of
the Assembly may be held at any time upon the call of the Council or at the request of any
ten contracting States addressed to the Secretary General. All contracting States shall have an
equal right to be represented at the meetings of the Assembly and each contracting State shall
be entitled to one vote. Delegates representing contracting States may be assisted by technical
advisers who may participate in the meetings but shall have no vote.
2.     COUNCIL
The COUNCIL is a permanent body responsible to the Assembly and is composed of 36
contracting states elected by the Assembly for a three year term. It is headed by the President
of Council elected for 3 years by council. The Council has three primary functions:
       a.   Legislative - adopts technical standards which have legal influence on States.
       b.   Judicial - empowered to adjudicate upon disputes by States.
       c.   Administrative - appointment of Secretary General and members of Committees
            and Commissions.
The Council consists of one Commission and six standing committees:
1.     The Air Navigation Commission
2.     The Air Transport Committee
3.     Legal Committee
4.     Committee on Joint Support of Air Navigation Services
5.     The Finance Committee
6.     The Personnel Committee
7.     The Committee on Unlawful Interference.


3.     The Secretariat.
Corresponding to each ICAO Committee and Division is a section of the ICAO, made up of
staff members selected for technical competence in their respective fields which supplies
technical and administrative aid to the governmental representatives who make up the ICAO
Council, committees and divisions. The Secretariat is headed by a Secretary General who is
appointed by the Council. It is divided into five main divisions:
              The Air Navigation Bureau,
              The Air Transport Bureau,
              The Technical Co-operation Bureau,
              The Legal Bureau,
              The Bureau of Administration and Services.


       IV.MEMBERS OF UN WITH WHOM ICAO WORKS IN CLOSE CO-OPERTION
                  Governmental Organisation
              The World Meteorological Organization,
              The International Telecommunication Union,
              The Universal Postal Union,
              The World Health Organization
              The International Maritime Organization.


                Non-governmental organizations
              The International Air Transport Association (IATA),
              The Airports Council International,
              The International Federation of Airline Pilots Associations,
              The International Council of Aircraft Owner and Pilot Associations.


V.         SEVEN ICAO REGIONAL OFFICES


1.     Bangkok,(Thailand) - Asia and Pacific Region
2.     Cairo, (Egypt)-         Middle East Region
3.     Dakar, (Senegal)        -       Western and Central African Region
4.     Lima, (Peru)            -       South American Region
5.     Mexico, (Mexico)        -       North American, Central American
                                       and Caribbean Region
6.     Nairobi, (Kenya)        -       Eastern and South African Region
7.     Paris, (France) -       European and North Atlantic Region


VI.         OBJECTIVES OF ICAO
The aims and objectives are to develop the principles and techniques of international air
navigation and to foster the planning and development of international air transport so as to:
       a.   ensure the safe and orderly growth of International Civil Aviation throughout the
            world;
       b.   encourage the arts of aircraft design and operation for peaceful purposes;
       c.   encourage the development of airways,airports and air navigation facilities for
            nternational Civil Aviation;
       d.   meet the needs of the peoples of the world for safe, regular, efficient and conomical
            air transport;
       e.   prevent economic waste caused by unreasonable competition;
       f.   ensure the rights of Contracting States are fully respected and that every Contracting
            State has a fair opportunity to operate international airlines;
       g.   avoid discrimination between Contracting States;
       h.   promote safety of flight in international air navigation;
       i.   promote generally the development of all aspects of international civil aeronautics.
VII.           STANDARDS
       SARPS
       International Standards and Recommended Practices (SARPS) are adopted by the
       Council and are designated, for convenience, as ANNEXES to the Convention. The
       uniform application by Contracting States of the specifications contained in the
       International Standards is recognized as necessary for the safety and regularity of
       international air navigation, while the specifications in the Recommended practices is
       regarded as desirable in the interest of safety, regularity, or efficiency of international air
       navigation. Knowledge of any differences between the national regulations or practices
       of a State and those established by an International Standard is essential to the safety or
       regularity of international air navigation. In the event of non-compliance with an
       International standard, a State has, in fact, an obligation to notify the council of any
       differences. The differences with different countries are filed in supplementary to
       Annexes. A total of 18 Annexes have been adopted:
Note: Sixteen out of eighteen Annexes to the Convention are of a technical nature and therefore
fall within the responsibilities of the Air Navigation Bureau and its sections. The remaining two
Annexes, Facilitation and Security, are under the purview of the Air Transport Bureau.

                       Chicago Convention (Doc 7300)
The Chicago Convention is a 100-page+ document, amended eight times since 1944, and
formerly housed at the ICAO, which publishes an online version in many different languages.


Chicago convention has been divided into four parts, 22 Chicago convention has been
divided into four parts, 22 chapters and 96 articles. chapters and 96 articles.
Part 1 Air navigation art. 1 Part 1 Air navigation art. 1-42 Covering six chapters 42 Covering
six chapters including the schedule and non including the schedule and non-schedule flights
schedule flights.
Part II International Civil Aviation Organization (ICAO) Part II International Civil Aviation
Organization (ICAO) Structure, powers and functions of the ICAO are covered Structure,
powers and functions of the ICAO are covered under articles 43 under articles 43-66 66
Part III Int. Air Transport regulations and their Part III Int. Air Transport regulations and their
implementations are covered under articles 67 implementations are covered under articles 67-
79
Part IV Final Provisions including the authentic languages, Part IV Final Provisions including
the authentic languages, signature, ratification, amendments etc. are covered under signature,
ratification, amendments etc. are covered under articles 80 articles 80-96.
CHAPTER-I
General Principles and Application of the Convention (From 1-4) discusses the state
sovereignty, territory, civil and state aircraft and use of civil aviation. Whole air law is
developed on the concept civil aviation.
According to Article I the contracting states recognises that every state has complete and
exclusive sovereignty over airspace above its territory.
Chapter – II
Flight over territory of contracting states Article (5-16) discusses issues relating to the
scheduled and non-scheduled air services, cabotage, pilotless aircraft, prohibited areas,
landing at custom airports, air rules and regulations, airport charges etc.
Article 6 “No scheduled international air services may be operated over or into the territory
of a contracting state, except with the special permission or authorization of that state, and in
accordance with the terms of such that state, and in accordance with the terms of such
permission or authorization.”
Chapter- III
It discusses about the Nationality and Registration of Aircraft from articles 17-21 of the
convention. According to Article 17 Aircraft have the nationality of the state in which they
are they are registered. Other important provisions of nationality of the aircraft include dual
registration, national laws governing registration, display of marks and Reports of
registrations.
Chapter-IV
The articles 22-26 of the Chicago Convention deal with the measures to facilitate air
navigation. Provisions were made for facilitating the flight of aircraft engaged in international
air navigation, including simplification of customs requirements, giving assistance to aircraft
in distress, aiding investigation of accidents, exempting aircraft from seizure by reason of
patent claims or infringements and by the adoption of Standards and Recommended Practices
(SARPs) in respect of airports, radio services, meteorological and other air navigation
facilities, standard communication procedures, codes, markings, signals, lighting and
publication of charts & maps.
Chapter V
Articles 29-36 deals with the condition to be fulfilled with respect to aircraft documentation,
radio equipment, certificate of airworthiness, licence of personals, journey log books, cargo
restriction and the photographic apparatus.
Chapter VI
Article 37-42 deals with International Standard and Recommended services (SARPS).
Chapter VII-XIII
Article 43-66 deals with Organisation structure of ICAO with method of selecting, financing
voting, powers and duration etc.

  Accomplishment of Chicago Convention and ICAO in Air Law
This instrument provided for complete modernisation of the basic public international law for
air. A standard form of Bi-lateral agreement for exchange of air routes was prepared and
recommended by this convention in the final clause. This convention brought 98 countries on
a single platform for removing differences among themselves. It forced the nations to come
together so that a world wide common basis was established for technical and operational
aspects. It made the states respect the sovereignty of territories of other states but also made
them to give full extension in aid in case of disaster or emergency.
Airline nationality is nowhere mentioned in the convention though it has become a important
part of bilateral air transport agreements whose substantial ownership and effective control
requirements have effectively precluded adoption of the maritime law notion of Flag of
convenience into international aviation. Strangely when the word aircraft has been used
number of times but the term “aircraft” has not been defined in the convention. Maybe it
takes definition from Doc 4444 (PANS, Air traffic services). It is the only international
convention which clearly defines difference between the State and Civil aircraft, pilot and
pilotless aircraft. It is clearly mentioned that it is applicable to only civil aircraft and not state
aircraft. Article 3bis clearly refrain use of weapons against civil aircraft but history shows
that it has been used by Russia and USA may be intentionally or by mistake. This convention
does not specify any punishment or compensation in case of violation of laws defined in the
convention. For compensation Warsaw convention or Montreal convention 1999 is referred.
Air Law has proven itself a comprehensive and up-to-date view of all the main components
making up this interesting and topical branch of international law. Coverage includes such
aspects as liability of the carrier, insurance, product liability, sovereignty in airspace, aviation
personnel, organisations and conventions, automation, liability for damage, search and rescue
operations, and criminal offenses such as hijacking.
A basic principle of international air law is that every state has complete and exclusive
sovereignty over the airspace above its territory, including its territorial sea. At the turn of the
20th century the view that airspace, like the high seas, should be free was sometimes
advanced. But the principle of airspace sovereignty was unequivocally affirmed in the Paris
Convention on the Regulation of Aerial Navigation (1919) and subsequently by various other
multilateral treaties. The principle is restated in the Chicago Convention on International
Civil Aviation (1944).
                                        Conclude
ICAO does not possess any regulatory authority with respect to air transport except in the field
of Air Navigation. It can provide debating forum and provide Guidance material but with no
legal binding force.
The question would best be phrased in terms of whether or not certain specific aspects of the
Chicago Convention may be considered customary law as opposed to all items contained
within the treaty. Merely because an item appears in a treaty, or even many treaties, and is
followed broadly by a large number of states, it still may not qualify as custom. The best
example is the matter of extradition. Even though it is provided for in numerous treaties
(including Montreal Convention) it is still considered a creature of treaty law, not custom.
Still today, the articles of the Convention on International Civil Aviation form a succinct code
of law without which carriage by air would be impossible on the scale at which it presently
functions.This convention convened by ICAO was intended to formulate certain agreed
principles and agreements to ensure safe and orderly development of civil aviation on the
basis of equality, soundly and economically. In fact it is becoming a viable constitution for
the post-war global air world.




                                        Reference
1.     Introduction to International air law- Dr. V. Balakista Reddy
2.     Institute of Air and space law (www.iasl.ac.in)
3.     www.icao.int
4.     www.dgca.nic.in
5.     www.aai.aero
6.     Chicago convention as a source of air law- Prof. Paul Stephen, Director IASL.

				
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