Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
Three Air Law Issues Involving Sovereignty
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- 2) Air Navigation System (see GNSS below)
- 3) Commercial Regulation of Int’l Air Transport
- Chicago Evolution Not Revolution
- 1) Paris Convention : Sovereignty
- Q Was the Paris Convention liberal compared to today’s standards
- Q Did the Paris Convention separate civil from state aircraft
- Q US - Paris Convention Problems
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 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 RevolutionWhat 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, 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: SovereigntyQ? 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: Drew a distinction b/t civil & military aircraft Provided for a registration of the nationality of the aircraft 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. 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