Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
Aviation Safety and Security - Legal Developments
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- Aircraft Safety: Bogus Parts
- Q Can you appeal an ICAO decision
- Q What are the problems w/ the ICAO Quasi-Judicial Process
- Other Legal Issues: Russian “Royalties”
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. 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 Function66 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. 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 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. Directory: pubdocs -> files files -> International maritime conventions files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law files -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Topic One Seaworthiness and Common Venture, chapter 15 Download 0.73 Mb. 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