Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
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- Chicago Convention: Sovereignty
- Q What terms do states agree to on in these bilateral agreements
- 3) Maritime Law
2) Chicago Conference Background:US in 1925 & 1927 became party to other regional agreements (Ibero-American & Pan-American agreements). This atomization & regional agreements can be understood since aviation was regional at the time. The Allies before the end of the WWII started to think about post-war arrangements in many aspects. Thus, the Chicago Conference dealing w/ aviation law was convened from November 1 1944 to December 7 1944. There was no preparatory work for this conference. 52 states convened to talk about post-war aviation. The U.S. presented a package, which was very far-reaching. The US emerged from WWII as the strongest country had interests from the rest of the countries. Thus, the UK rejected freedom of navigation (followed closely by France). The UK proposed an int’l technical & economic body that would allocate to states their share of int’l carriage. This also was unacceptable. New Zealand & Australia wanted int’l ownership of air routes by way of int’l corporations that would have sole monopoly to operate all the traffic. For example, there would be a corporation that would control all air traffic from Australia to Europe & one company that would control all traffic b/t North America & South America. Thus, all routes would be monopolized by different regional actors. Canada, however, played a decisive role in this conference. Canada conciliated the warring factions. C.D. Howe, Minister of Wartime Production in Canada, played a very important role. Canada came w/ the compromise that was eventually accepted. Canada said let us create an int’l organization which would have a strong mandate to regulate the technical & operational aspects of air navigation. Canada said when it comes to air transport & economic rights, we should relegate it to separate instruments or bilateral agreements. Chicago Convention: SovereigntyChicago Conference adopted the Convention on Int’l Civil Aviation (Chicago Convention) which opened for signature on 7 December 1944 & entered into force on 4 April 1947. In b/t those dates, there was an agreement on the PICAO (Provisional Int’l Civil Aviation Organization). Moreover, two other agreements were also opened for signature. The first was Agreement on Two Freedoms, the second was Agreement on Five Freedoms. 1 Chicago “The contracting states recognize that every state has complete & exclusive sovereignty over the airspace over its territory.” Thus, the territory of a state is a three-dimensional. So, the principle of sovereignty is the absolute axiom of int’l air law. However, there is no sovereignty over the high seas. Hence, there is a “freedom” of aerial navigation as well. (see safety standards though) 6 Chicago “No scheduled int’l air service may be operated over or into the territory of a contracting State, except w/ the special permission or other authorization of that State, & in accordance w/ the terms of such permission or authorization.” I.e. one needs an accepted flight plan etc. As a result of Chicago, no right to fly for commercial purposes. No right to have a scheduled flight. Even unscheduled flying has a very dubious legal position in aviation law. You can get involved in int’l scheduled flights only if you have permission or authorization either based on bilateral air services agreement (done by nation-states) or by multilateral agreement. The bilateral air services agreement developed in a certain format that is very similar. A bilateral agreement concluded in 1945 w/ the U.S. & U.K., which took place in Bermuda. This agreement designed a certain structure & pattern how states can achieve their rights. This was known as the Bermuda Agreement & there was Bermuda 2. Then, this was followed by a liberal bilateral format known as “Open skies.” Q? What terms do states agree to on in these bilateral agreements?Destinations, frequencies, & capacity, are all discussed in these agreements. The basic philosophies in these bilateral agreements are equality of opportunity or equality of advantage. Equality of Opportunity means that the airlines of my country get the same opportunity in your country as your airlines get in my country. Equality of Advantage means that I want my airlines to have an equal actual benefit to the benefit your airlines get in my country. 3) Maritime LawQ? Can you fly over territorial waters under Chicago?2 Chicago “For the purposes of this Convention the territory of a State shall be deemed to be the land areas & territorial waters adjacent thereto under the sovereignty, suzerainty, protection, or mandate of such state.” Territorial waters: In maritime law, we define the territorial waters as being no more than 12 miles (historically it was 3 miles – the distance a cannon fires). Sometimes 12-mile limit is less (b/c ano/ state is so close) other States, however, claim more ex. Ecuador & Brazil claim territorial waters to 200 miles. The 12-mile limit is seen as an integral part of the territory of the state. However, in maritime law, there is the right of “innocent passage” for both civil & state ships (arts. 2-32). This means that the ships have the right to pass innocently through the territorial waters either b/t one part of the high seas through the territorial waters to the internal waters or through one part of the high seas across the territorial waters to another part of the high seas. Even warships have this right. The only limitation is that submarines must exercise the right of “innocent passage” in territorial waters on the surface. A totally different situation exists in aviation. The territorial waters are an integral part of the territory & thus there is no right of “innocent passage.” Thus, you must have special authorization or permission to enter the airspace above the territorial waters. This is an important distinction. Aircraft are also free to fly over territories of undetermined sovereignty. Places like the Arctic region. There is a Washington Treaty of 1960 of legal regime of Antarctica. The basic tenor of the treaty is that the powers that were players in that region could not agree on the legal regime for sovereignty on that area. Contiguous Zone: Does not extend beyond 24 nautical miles – coastal State may exercise control nec to prevent infringement of its customs, fiscal, immigration or sanitary laws and regs w/in its territory and punish for such infringement as per art. 33 UNCLOS. EEZ: Beyond territorial waters there is the EEZ, which is to 200 miles, which is a compromise in int’l law. US has a 200 mile EEZ even though they didn’t agree to UNCLOS, instead it was claimed via a Presidential Proclamation. Effectively, the sovereign rights of the coastal state are to use the living & non-living recourses of the sea, the seabed & subsoil up to 200 miles (art. 56 UNCLOS). Coastal states have no special rights above the EEZ and cannot interfere with others right to navigation and overflight therein. ALL other States enjoy the freedoms of the high seas w.r.t. to navigation and overflight in the EEZ, in using these rights States shall have due regard to the rights and duties of the coastal State in accordance with UNCLOS and other rules of int’l law. (s.58 para 3 UNCLOS). Note is arguable that the coastal State COULD be permitted to exercise limited jurisdiction in the EEZ w.r.t. aircraft by regulating i.e. supersonic flight generating sonic boom, levels of noise, pollution by dumping of fuel etc. After all States are obliged to adopt laws and regs to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under its sovereign and to vessels flying their flag or aircraft of their registry, taking into account SARPS and the safety of air navigation (212 para 1, 222 UNCLOS, Annex 16 Chicago), which could have direct implication on Chicago. Practically and in general the EEZ should be deemed to have the same legal status as the high seas. High Seas: All parts of the sea (72%) that is not included in the EEZ, territorial sea or internal waters of the state, or in the arch pelagic waters. On the high seas all States enjoy the traditional freedoms of navigation, over flight. High seas are reserved for peaceful purposes and no State may validly purport to subject any part of the high seas to its sovereignty. Annex 2 Chicago Effects: Adoption & amendment of Annex 2 – Rules of the Air – remains a constitutional prerogative of the Council of ICAO under 12, 35, 54(l) and 90 Chicago. The mandatory ap over the straits and UNCLOS leads to a conclusion that the States bordering the straits cannot file a difference to Annex 2 of Chicago. States bordering straits are obliged not to hamper transit passage and must give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge. There shall be no suspension of transit passage. (art. 44 UNCLOS)
This, however, was prior to the existence of aviation therefore is not relevant. Holland has no territory but wants to expand into the EEZ. Of course one can build an artificial island on their EEZ but ideas do differ as to the ability to build an airport on it. The Dutch gov’t ultimately backed out b/c the airport wouldn’t be in the Netherlands for the following reasons: (UK & France was agst it). Is the building of an artificial island in the EEZ permissible itself? Yes, BUT….under applicable int’l law, operationally it would be a free port. As no sovereignty is involved and the rule of the high seas prevails. What is the regime for an artificial island & the airspace above it? The island is not in the Netherlands. The artificial island is not Dutch sovereign territory. The Netherlands has jurisdiction over that island. To have jurisdiction means the freedom by the Dutch government to apply their laws & the authority of the judicial & administrative bodies. Jurisdiction is far different of sovereignty. It is one part of sovereignty, it is not sovereignty. The breadth of the protective zone around the artificial island is 500 meters. That “breadth” denotes a two dimensional aspect, not a three-dimensional aspect. Hence, would that protective zone also extend upwards? What would be the applicable laws of the island? The coastal State is not granted any sovereign rights outside its territorial waters, the artificial island will not be part of its territory if it is in the EEZ. Would not the presence of the artificial island jeopardize the navigation of other states? Can Netherlands grant traffic rights to other states to & from the artificial island? The traffic rights are tied to the territory of the State. It cannot be assumed that such economic rights could be granted on an exclusive basis by the coastal State w.r.t. to an airport in the EEZ which is not in its sovereign territory. Art. 58 applies 87 UNCLOS concerning over flight to the use of the air space over the EEZ. The coastal State may regulate the navigation around and over artificial island, taking into account of the IMO and ICAO. The traffic rules of Article 12 Chicago apply over the high seas. The coastal State does not have exclusive economic rights in int’l air transport. Not having such rights itself, the coastal State cannot grant them to others = Nemo plus iuris ad alium transferu. The idea of granting traffic rights is tied to the territory of the state. Thus, you give rights to fly from & to you territory. The problem is that the artificial island is not in territorial waters. The artificial island is thus not part of the territory of the Dutch Government. Note: Additional issues will arise w.r.t to the Warsaw system and Montreal 1999 as they make their application dependent on the points of origin and of destination in the territory of a contracting State. Note: Japan does have an airport on the sea but it is within the territorial waters & does attach via a causeway to the mainland (most expensive airport in the world – a wide body aircraft costs $60,000 to land, compared to $4,500 to land at Dorval – hence a lot of people don’t go to Osaka). 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. Share with your friends:
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