ICAO and Obligations Cast on Contracting States By

ICAO and Obligations Cast on Contracting States By Dr. Sanat Kaul Chairman IFFAAD(India) and former Indian Representative on the Council of ICAO One day Orientation Programme on Civil Aviation Friday 26 th August, 2011 at NIAMAR/AAI HQRS

Sovereignty of Air Space Article 1 of the Chicago Convention of 1944 states that every State has complete and exclusive sovereignty over the air space above its territory. The principle of Air Sovereignty is the basis of Chicago Convention and leads to bilateral Air Services Agreements.

While height of air space has not be defined, it is generally accepted to be 100 kms vertically above and beyond this is outer space which comes under the jurisdiction of Outer Space Treaty and is not subject to National Appropriation by claim of sovereignty or occupation or by any other means.

Sovereignty over High Seas Article 12 of the Chicago Convention, 1944 provides that sovereignty over air space over the high seas shall be based on the Rules provided under Chicago Convention. It is, therefore, clear that air space over high seas is common to all and ICAO has divided this air space and allotted it to various countries for air space management.

Article 3 of the Chicago Convention clearly states that the Convention is applicable only to civil aircrafts and not to state aircrafts which includes military, customs and police.

Article 4 of the Chicago Convention obliges all members states for not using civil aviation for any purpose inconsistent with the aims of the Convention.

Obligation to allow Civil Aircrafts of other States Under Article 5 of Chicago Convention, each contracting State is obliged to provide for other contracting States fly into or in transit non stop across its territory and to make stops for nontraffic purposes without the necessity of obtaining prior permission, and subject to the right of State flown over to require landing. This of course is subject to conditions of safety etc. This provision however does not apply to scheduled international air services except with special permission or authorization of that State and this is the basis of bilateral agreements.

Nationality of Aircraft The next set of obligation is regard to the nationality of aircraft under Articles 17, 18, 20 & 29 and Annexe 7 of the Chicago Convention – the aircraft must have a nationality of the State in which they are registered and no aircraft can be registered in more than one State at a time. The change in registration is allowed. Some States adopt their registration based on the nationality of air craft owner while some allow domicile. The basic purpose of this is to avoid to concept of flag of convenience which is being followed in the case of Maritime Registration of Ships. However, 83 bis allows some flexibility as it allows a State

Duty Free POL to Aircrafts of other States To facilitate air navigation between countries, Article 24 of Chicago Convention provides that aircrafts on a flight, to, from, or across the territory of another contracting State shall be admitted temporarily free of duty subject to custom regulations of the State. Further, fuel, lubricating oil, spare parts provided to the aircraft shall be exempt from custom duty.

Air Navigation Facility Each contracting State is obliged to provide as far as practical air navigation facility to facilitate international air navigation in accordance with SARP established by ICAO. In addition it is their obligation to provide aeronautical maps and charts

Search, Rescue and Accident Enquiry Further each contracting State is obliged under Article 25 to provide assistance to aircraft of another country in distress in its territory. Article 26 obligates the contracting States that in case of an accident happening in the territory of another contracting State involving death or serious injury or indicating serious technical defects, the State will institute the inquiry into the circumstances of the accident etc.

Certificate of Air Worthiness Each aircraft registered by a State needs a certificate of air worthiness to be issued by a State of its Registry. The air worthiness will be based on ICAO Standards. Each aircraft is obliged to carry its certificate of registration air worthiness, appropriate licenses for the crew, the journey log book, aircraft radio station license, a list of names of passengers and the place of embarkation and destinations as well as cargo, manifest and detailed declaration of cargo.

Making of Air Law by ICAO Under Article 50 of the Chicago Convention of 1944, the Council of ICAO has been constituted as a permanent Rule making Body consisting of originally 21 members and currently 36 member countries. The Council main role is to adopt International Standards and Recommended Practices for smooth running of International Civil Aviation.

Under Article 37, the Council of International Civil Organization is supposed to adopt International Standards and Recommended Practices (SARPs) which the contracting States are obliged to follow. Today there are 18 Annexes containing SARPs on various subjects like safety, security, environment, licensing etc. All the States are obliged to adopt the standard in their internal Laws, Rules and Regulations. If a State does not find it practical to adopt a standard into its own Rules and Regulations, it is required to give notice to the Council within 60 days with the Council of ICAO and the Council if accepts the request, will notify all the other States the

Responsibility of State and Airport Operators The regulatory process governing Aerodromes and Air Navigation Services involve State responsibility/obligation. Aerodromes and Air Navigation Services have to be certified by appropriate authorities and have to follow ICAO annexes especially 10 and 11. The is state liability to quality air navigation services which include runway incursions.

Obligation to provide Air Navigation Articles 22 & 28 of Chicago Convention obliges Member States to facilitate and expedite navigation by Aircraft between territories of contracting States for which they can put a user charge on a nondiscriminatory basis. However, if the quality of Air Navigation Service was insufficient or misleading, can the State be held responsible and penalized? This question remained unanswered as so far sovereign immunity has been sought in most cases as State has been a service provider but it is unlikely to be accepted in future. However, with privatization of air navigation services and switch over to satellite based navigation, this is issue is gaining importance.

Obligation to provide Security Under Annex 17 Contracting States are obliged to provide Security to Aviation over their area. With increase in security issues especially after 9/11 when civil aircrafts were used as instruments of destruction, there has been a major shift to improvement of security. Annexed 17 lays down detailed security obligations. ICAO is also conducting detailed audit on security provided by each contracting State in order to improve and harmonize the security system the world over.

Obligation towards Environment While environment does not find a mention in Chicago Convention, 1944, it has now become a very important issue with ICAO. Annex 16 is entirely for environment protection. As issues of global warming come to the forefront, ICAO has also been taking proactive action. Emissions at airports are becoming an issue of obligation. Emissions by aircrafts in flights are also becoming an issue and ICAO has taken certain steps to mitigate it. Meanwhile, European Commission has gone beyond and enacted a legal instrument bringing their domestic emission trading scheme to cover international flights into EU w. e. f. 01. 2012.

Failure to implement SARPs It is the obligation of each Contracting State to follow the SARPs. However, since there was no supervisory body, it was found that many countries were defaulting in their obligations. As a result, United States started inspecting and auditing States whose aircrafts coming into their territory and started categorizing countries into two types. Similarly, European Union also started a similar audit but based not on countries but airlines. It barred certain airlines whose safety record was not found good enough from entering EU. As a result, ICAO decided to have voluntary audit of all countries and it has found this practice universally acceptable bringing in a much

Is ICAO an Aviation watchdog? ICAO is much more than a watchdog. It is a body that makes International Laws on Aviation which are followed the world over While it does not have any punitive authority over its contracting states, it is becoming more and more powerful to control violations. Its Audit policy, though based on a voluntary basis, is becoming a strong watchdog over defaulting States

Dispute Resolution ICAO has powers under Articles 84, 85 and 86 has power to arbitrate in disputes between states. It has looked into disputes between India and Pakistan, US and Cuba and US and EU amongst other Incase arbitration by ICAO is not found acceptable the only recourse left is the International Court of Justice

Obligations of states during WAR While ICAO statutes are valid during war as provided in Article 89 which states ‘In case of war, the provision of this Convention shall not affect the freedom of action of any state’. It is however, expected that states will not shoot at a civil aircraft even if it violates another’s air space. After shooting of a Korean civil aircraft by Soviet Russia for violating Russian air space on April 20 th 1978 killing 113 passengers with 11 injured, ICAO amended its Article 3 by adding Article 3 bis.

Article 3 bis Art 3 bis refrains States from using weapons against civil aircraft in flight and also provides that in case of interception, lives of persons on board and safety of aircraft must not be endangered. ICAO Council did discuss the use of a civil aircraft for criminal purposes like smuggling drugs, gun running or illegal transport of persons but offered no comfort to victim state

9/11 and shooting of aircraft Five aircrafts were hijacked on 11 th Sept 2001 from Boston. One of these aircrafts was actually shot down by US Government. How legal was the shooting down? First, it was a domestic flight and therefore technically did not attract Art 3 Bis. Otherwise also this aircraft was targeting the White House, seat of the President of USA.

Infraction Article 54 (J) makes it mandatory upon the Council of ICAO to report to any contracting State any infraction of the Chicago Convention as well as any failure to carryout recommendations and determination of the Council. They are also required under Article 54 (K) to report to Assembly any infraction of the Convention by a Contracting State. However, so far the Council has failed to report any such infraction either to the country or to the assembly. This provision gives substance clout to ICAO to discipline its members who are not implementing their obligations but has never been used.

Thank You