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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- 2) Civil vs. State Aircraft
- Q Why do different law apply to Civil State Aircraft
- Q What, is considered to be a state aircraft
- Q What characteristics could distinguish an aircraft to characterize it as a military aircraft
- Q What do we mean when we say “functional approach” w.r.t. State aircraft
- Q What are some factors to be used in the functional approach
- Q What happens to an aircraft in the foreign sovereign air space without authorization
- Q How would this affect the violating State
- Q Does Tokyo, Hague, Mtl., or apply to military aircraft
- Q Does ICAO EVER consider matter related to military aircraft
- Q What can be done to clarify what is or is not a military aircraft
- Q Deregulation
Part III: State & Civil Aircraft1) What legally is an aircraft?The Paris & Chicago do not define an aircraft. Only secondary legal sources do, although, one such legal source where aircraft is defined is Annex 7 to Chicago, which deals w/ nationality & registration of aircraft. Annex 7 Chicago Intro. “any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air agst the earth’s surface.” The words “other than” were added in 1967 to make it clear that the Hovercraft is not included in the definition of aircraft. However, for the UK a registered Hovercraft on int’l sailing, for passengers the Hovercraft is classified as an aircraft & the carriage of passengers is governed by the Warsaw Convention. For the cargo though the Hovercraft is a ship & it is governed by the maritime law. Anyway, int’ly, the hovercraft is not an aircraft. The definition of aircraft is open-ended. Thus, a kite could be an aircraft. Note, however, that the Space shuttle is not an aircraft when it takes off. However, when it is landing, it is an aircraft (according to ICAO) since it is not being power by a rocket. The Americans, by domestic legislation, have said that the space shuttle is not an aircraft. However, by int’l law, on descent, the space shuttle is an aircraft, although it really doesn’t make a difference practically b/c it lands flying over int’l waters & never flies over the airspace of ano/ state – therefore it is highly unlikely that there ever will be int’l implications whether the space shuttle is an aircraft or not unless there is an freak emergency situation that may engender the issue in some manner. 2) Civil vs. State AircraftWhat is permitted to civil aircraft is not necessarily permitted to state aircraft. For that matter, the entire spectrum of int’l air law simply does not necessarily apply to state aircraft. Q? Why do different law apply to Civil & State Aircraft?The different types of aircraft share the same airspace, may mutually interact & should be subject to similar or identical standardized rules to secure mutual safety of air navigation. Military aircraft practice of State could form a basis for the development of customary law but it is not transparent or uniform & is often shrouded in secrecy. Since the inception of aviation States have been openly hostile to the idea that their military aircraft – tools & symbols of their military power, sovereignty, independency & prestige – should be subject to int’l regulation. The conventions were made in the shadow of war. In those days, aircraft were tools of espionage & war. Nowadays, the things done by military aircraft in terms of espionage are now done better by a satellite. However, the conventions are creatures of history as they were drawn up at a time when aircraft were the main tool of espionage & thus state aircraft were excluded from the scope of applicability of Chicago. 3 Chicago “This convention shall be applicable only to civil aircraft & shall not be applicable to state aircraft.” Thus, state aircraft are not governed by this convention. ICAO has no jurisdiction whatsoever w/ respect to state aircraft & any lawmaking instruments emanating from ICAO are ipso facto not applicable to state aircraft. Q? What, is considered to be a state aircraft?30 Paris (a) military aircraft (b) aircraft employed in State service (all o/s are deemed private). 31 Paris (liberal) It granted, in time of peace, ‘freedom of innocent passage’ above its territory w/out distinction of nationality. Although art. 32 stated that no military aircraft shall fly over nor land without special authorization. 30 & 31 Paris do not give a definition of military aircraft but rather set a presumption what is to be deemed to be a State or military aircraft. 3(b) Chicago aircraft used in military, customs & police services shall be deemed to be state aircraft. This is not a definition of an aircraft. It is only a refutable presumption. The drafters of the Convention could not have had in mind anything else but a functional approach. b/c 3(b) Chicago uses limiting language such as “aircraft used for military, customs, police etc.”
Can certain aircraft used in military, customs or police services be considered to be civil & not state aircraft? 3(b) does not say whether aircraft used in other gov’tl services can be so deemed. Is 3(b) exhaustive or just informative (ie Ejusdem generis) The word “deemed” creates a rebuttable presumption. However the Secretariat believes art. 3(b)’s wording of “deemed” is just another way of stating that for the purposes of Chicago, certain aircraft shall be, or be considered to be state aircraft. If drafters intended some aircraft used in the specified services could still be considered civilian they would better express their intention by using the phrase “may be deemed” instead of “shall be deemed” Convention provides no guidance as to when an aircraft can be considered to be used in military, customs & police services? Civil or military character of an aircraft will NEVER be meaningfully determined solely on the basis of its technical features. Q? What characteristics could distinguish an aircraft to characterize it as a military aircraft?Design of the aircraft & its technical characteristics Not reliable to define the nature of the craft. Registration Marks But this fact is not a proof that the aircraft is being USED in military services at the time. Ownership Is a valid indication if owned by the State but does not prove that it is again USED in military services. Type of Operation (Functional Approach) The nature of the flight, docs on board, flight plan, communication procedures, composition of the crew, flight secrecy could assist in qualifying a plane as civil or military. Q? What do we mean when we say “functional approach” w.r.t. State aircraft?We mean the following: What does the aircraft does? What is its purpose? What is its actual involvement? 3(b) Chicago wording, (& in light of art. 31 Vienna) in the absence of any other guidance suggests that the drafters had in mind a functional approach to determine the status of the aircraft as civil & military, regardless of the design, technical characteristics, registration, ownership etc. – the status of the aircrafts is determined by the function it actually performs at any given time. Persuasive value are also found in the recollection of the Chairman of the drafting committee for art.3 who wrote the “Convention is purposely less definite than some of its predecessors….The determining factor...is whether a particular aircraft is, at a particular time, actually used in one of the 3 special types of services….otherwise, it is a civil aircraft.” Ex. F-18 military aircraft flown by military pilots “used” in a civil flight plan is NOT a state aircraft. Even “Air Force-1” the Presidential airplane has flown on a civilian flight plan (although the President was not on board – if he was it would automatically be called a State aircraft). Insurance Issue– as insurance would likely be for civilian not military where normally an aircraft i.e. Air-Transit would be used for civil purposes but then used on a military/police mission may not be covered by their insurance policy.
Q? What are some factors to be used in the functional approach?Nature of cargo carried Ownership of the aircraft Operation Passenger or Personnel carried Aircraft registration & nationality markings Secrecy of the flight (i.e. flight plan filed) Nature of the crew Operator Documentation Area of operations Customs clearances This list is not exhaustive & depending on the facts different weights must be given to different factors. 3(c) Chicago special permission & authorization is needed before state aircraft can fly over ano/ countries territorial airspace. 3(d) Chicago “The contracting states undertake when issuing regulations for their state aircraft that they will have due regard for the safety of navigation of civil aircraft.” This is an unequivocal legal undertaking of States. In practice, you have to take into account the magnitude of civil aviation in the country; otherwise you are causing a risk. The law making power of ICAO w.r.t. SARPS is restricted to civil aircraft. In practice the definition of what constitutes a military aircraft should be very narrow & should reflect the true military mission of the flight. A possible analogy could be w.r.t. UNCLOS art. 29 w/ the definition given to a warship. Any confusion in the actual confusion in the legal status of an aircraft could have very serious consequences & would raise doubts about the law applicable to such aircraft i.e. Chicago & its annexes, o/ int’l law instrument, bilateral agreement, insurance etc. Q? What happens to an aircraft in the foreign sovereign air space without authorization?Intercepted for purposed of identification Directed to leave the violate air space by a determined route Directed to land for further investigation/prosecution. Forced to land for further investigation/prosecution. Q? How would this affect the violating State?Violating aircraft would face int’l responsibility – could have a duty to apologized, promise to penalize the individual involved, promise not to repeat such action, craft may be forfeited, crew may be imprisoned or o/ sanctions. In times of peace, however, use of force would be reprehensible & contrary to all humanitarian concepts, as it would amount to a death sentence without due process of law or right to appeal. (see 3 bis adopted as a result of Korean Air flight 007) 9 Chicago States have adopted a legal undertaking to insure that the flight of pilotless aircraft in regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft. 35(a) Chicago no munitions of war or implements of war may be carried in or above the territory of a State in aircraft engaged in int’l navigation except by permission that State & each State may define by its regulations what constitutes implements of war. Q? Does Tokyo, Hague, Mtl., or apply to military aircraft?NO 1 para 4 Tokyo; art. 3 para 2 Hague &; art 4 para 1 Mtl. Convention. However, these conventions share the same problem w.r.t. identifying what is classified as civil & military aircraft. Q? Does ICAO EVER consider matter related to military aircraft?Yes. W.r.t. Interception & Resolution A32-14, Appendix P calls for the application of ICAO rules of the air over high seas by military aircraft (annex 2). The “Associated Practice” attached to Appendix P also exhorts States to coordinate w/ all States responsible for the provision of air traffic services over the high seas. More info. see “high seas” below. W.r.t. accident investigation Chicago’s applicability will depend largely on the domestic laws of the State concerned as art. 1 states that every State has complete & exclusive sovereignty over the airspace over its territory. Thus States are not bound by art. 26 nor annex 13. This is also true where over flight permission has not been obtained by a state aircraft (ie Hainan). As a matter of practice States usually apply military rules & processes to military aircraft & personnel only. Chicago also does not state & cannot determine whether & to what extent the flight crew of a Red Cross or other medical aircraft is given protection in war zones even where they are their to aid injured civilians as it would still have fall under a 3(b) functional analysis. Q? What can be done to clarify what is or is not a military aircraft?Many other fields where the ICAO SARPS contained in the 18 Annexes should be made applicable to state aircraft in the interests of safety, standardization & uniformity of the legal regulation. However, this cannot be achieved without a profound amendment of the Chicago. However, nothing prevents the States themselves to accept the ICAO SARPS into their national legislation applicable to their state aircraft & thus achieve a better harmony & coordination b/t their civil & state aviation. Such action seems to imperative b/c the distinction b/t civil & state aircraft is in practice frequently obliterated as there is no reliable & generally accepted legal definition of what is civil & what is state aircraft as examples in art. 3(b) cannot be taken as all encompassing. Among the priorities of the alignment of domestic regs for military aircraft on the int’l stnds could be the following: Personnel training & licensing (Annex 1) Rules of the Air (Annex 2) Aircraft Operation (Annex 6) Airworthiness (Annex 8) Aeronautical Communications (Annex 10) Air traffic services (Annex 11) Search & Rescue (Annex 12) Accident Investigation (Annex 13) Environmental protection (Annex 16) Aviation is a global activity & the interest of global aviation safety do justify balancing & harmonization of the rules, stnds & procedures & making them applicable both to civil & sate/military aircraft. -Amendment of Chicago is not recommended b/c the procedure is difficult & when / if ever brought into force it will likely not apply to all contracting States. Interpretation is preferred & the council might consider it useful to adopt an interpretation of art. 3(b) similar to the one adopted in 1952 in respect of the “definition of a scheduled int’l air service” & giving consideration to amending the ICAO Model Flight Plan Form & Annexes 2, 6 & 9, thus clarifying what is a military aircraft. Q? Deregulation?Deregulation started by Carter in 1976 – it’s a v. domestic issue – it really means a flexible use of the market – it was believed this would lead to further competition. Whether it achieved its purpose is yet to be seen b/c as smaller airlines started up bigger ones swallowed them up. Some big airlines also couldn’t survive. It was partnerships that survived i.e. survival of the fittest who where able to survive the competition. The concept of deregulation is not the same as gov’tal regulation. Deregulation refers to the economic side (however, competition is even regulated as it prevents predatory pricing, etc.). There will still be a growing regulation of operation standards as the gov’t will protect & regulate flight safety, airworthiness, licensing of crews – the private sector can’t be trusted. Safety & security is the role of the State. 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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