Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
‘Nationality & Registration of Aircraft operated by Joint orgs or int’l operating agencies’ - Milde
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- Q What about SAS
- Q Problem of nationality
- Q Is there a difference b/t the aircraft nationality airline nationality
- Q Can responsibilities be transferred from one state to another without changing the registry
- Q Why is it problematic if registry responsibilities are not transferred
- Q How are joint air orgs effect other conventions w.r.t. nationality jurisdiction problems
‘Nationality & Registration of Aircraft operated by Joint orgs or int’l operating agencies’ - MildeJoint registration: two or more states will establish a joint register, which will be kept by one of the states concerned. It will contain data of registration of aircraft, which are part & parcel of the joint enterprise. Int’l registration: registration w/ an int’l entity or body, like ICAO or the UN. However, it did & does not work. EU could create a European Union Register since they have a Joint Aviation Authority. But, even this is difficult. 77 Chicago (last sentence) Allows joint operations. -It aids the acquisition & economic operation by allowing two or more States to combine & share resources, which is of particular relevance in the developing world. -The establishment of such operating agencies creates complex social relationships on the int’l level, which may require either new specific int’l legal regulations or a creative application of the exiting rules of int’l air law. The existing framework of int’l air law does not present any obstacles to the establishment of joint operating agencies. ARAB AIR CARGO actually opened the way for development of this type of int’l cooperation.
Only tow or more contracting states may participate, according to art. 77. Such orgs & their operations are subject to Chicago. Joint orgs are encouraged in 77 Chicago (otherwise enumerated in 55 Chicago). Under 79 Chicago, participation in joint operating orgs are a sole prerogative of sovereign States; they may participate in such arrangements either through the Government or through an airline company designated by the Government & such airline companies may at the full discretion of the State be state-owned or partly State owned or privately owned. This has imp legal consequences. As the entire arrangement has an int’l character & except under special contractual arrangements, would NOT be governed by the joint org or agency would not be applicable. This problem was foreseen in Chicago but was not clearly solved. Art. 77 uses the wording “determine” which must be construed as meaning “decide” w/ a binding force on all contracting States. A similar provision will be found in art. 12 w.r.t. rules over the high seas. Nevertheless, 12 nor 77 could be interpreted as authorizing the Council to alter any of provisions of Chicago but their object is to provide a special machinery for making supplementary rules in respect of specific matters not regulated explicitly. Q? What about SAS?SAS (above) is not a joint operating org under Chapter XVI & its successful operational experience has not contributed in any way to the solution of the problem posed by the last sentence of art. 77. The SAS solution actually avoids, rather than solves the problems relating to nationality of aircraft operated by int’l operating agencies. Q? Problem of nationality?‘Nationality’ of aircraft is a very new concept in int’l law & was formally established only in art. 6 of the Paris Convention, which states that aircraft possess the nationality of the State on the register of which they are entered. Chicago attaches numerous responsibilities to the State of registry. The fundamental question is whether, in case of an int’l operating agency, an entity other than a contracting State could assume those responsibilities, which under Chicago attach to the State of registry. 77 hold that the joint org is to be subject Chicago & unless Chicago itself is amended, no o/ entity but a contracting State can assume the responsibilities, which attach to the State of registry. Meaning Red Cross or UN planes still have to be registered in a State & that State continues to hold the responsibilities so required under Chicago. In art. 77, the partial implementation of the nationality was left in the ands of the council of ICAO, which adopted 2 guidelines (1) Joint Registration & (2) Int’l registration. Thus, each case is decided by the ICAO council as to the nationality of the aircraft at issue. ARAB AIR CARGO decision (cooperative b/t Iraq & Jordan) they had to: Bear a common mark (4YB) & not the nationality mark of any State Joint register shall be separate & distinct from the national registers of Jordan & Iraq Joint register shall be maintained by Jordan Jordan & Iraq shall be jointly & severally bound to assume the obligations & responsibilities which ICAO attaches. Operation by the jointly registered aircraft shall not give rise to any discrimination in other contracting States Shall ensure that the joint endeavor meets their laws, regs & procedures are meet when engaged in int’l air navigation in a uniform manner under ICAO & its annexes. Must inform ICAO Secretary General w.r.t. Tokyo, Hague & Montréal which country has been designated to be the State of registry for the purpose of registration. AIR ARAB CARGO sets a historical precedent. One should be skeptical of int’l registration b/c behind that registration is functions & duties. i.e. the UN doesn’t have competence to perform the nec. functions. i.e. airworthiness, licensing etc. the same applies w/ ICAO , they don’t have a mandate or authority to perform the duties. Thus, currently int’l registration is not functional. Note: EU & SE Asia is now developing joint int’l authorities to specialize in those functions required i.e. safety & licensing. BUT they cannot manipulate the concept of cabotage. Flights that cross a boarder are still int’l flights – not cabotage just because they have an joint org. Q? Is there a difference b/t the aircraft nationality & airline nationality?Yes. Nationality of the airline is a matter of domestic law. Aircraft has the nationality of the state in which it is registered. It is prohibited to have dual nationality. However, the process of registration is subject to national laws within the limits of the applicable int’l standards. It is the state concerned that decides who can register an aircraft & what are the conditions for registrations. While states differ on this, there are certain common features; namely, states do not permit foreigners or foreign corporations not having principal place of business in that state & they want to have genuine link b/t the owner/operator of the aircraft & the state concerned. Flags of convenience are a no—no in int’l aviation law. -Nationality of the airline, may be different than nationality of the aircraft (Chicago doesn’t help us out here). -Incorporation places nationality on the airline. Theory of incorp. doesn’t work in a real life as corporations are incorporated for various reasons. i.e. Linktenstein (sp.) is the world equivalent of Delaware. Theory of incorporation leads to a distortion of reality. -Principle Place of Business determines nationality of corporation – States look to (1) substantial ownership (2) effective control. This is not part of int’l law – one exception (historical) in s.5 Chicago. -Bermuda Convention (1977) agreement that airlines must be substantially owned & effectively controlled by at least one State. -Bermuda II – i.e. US can only designation an airline where the airline is substantially owned & effectively controlled by that one nation – its national protectionalism. (this is not legally binding & is an obstacle to globalization). The EU broke this concept into “Europeanization” as opposed to nationalization. Protectionist policy hinder the flow of capital & development of the industry. Q? Can responsibilities be transferred from one state to another without changing the registry?Yes. 83 bis Chicago tries to a remedy the problem where an aircraft will be leased by Air France & registered in the U.S. since the funding is coming from a US bank, which allows the US bank can receive a tax deduction. W/out the ability to transfer registration responsibilities, which must be agreed to by both parties, i.e. France & U.S, problems would arise as an aircraft that was operated by Air France, could spend all its time away from the U.S. & yet the U.S. would be legally responsible for its airworthiness. Hence, the adoption of 83 bis Chicago, adopted in 1980, & in force 1998, thus giving the state of registry the opportunity to delegate or transfer to the state of the actual operator some of the functions & duties which attach to the state of registry. Int’l law attaches important functions & duties to the state of registration. Sometimes, there may be situations when the state of registry cannot conveniently & effectively perform those functions. Thus, the door was opened through 83bis, to delegate those powers to the state of actual operator. Q? Why is it problematic if registry responsibilities are not transferred?60% of all the fleet flying around are not 100% owned by the operator or by the airline. The airline will buy on credit where the title has not been passed or they are being used on the basis of lease, charter or inter-change equipment. Hence, we did see that there is a distinction b/t the state of registry & the state of the actual operator. For ex, Air France may by flying an aircraft which is registered in the U.S this is a problem b/c the nationality of the aircraft, the concept of the quasi-personality of the aircraft, attaches to the state of registration is very distinct & clearly defined in int’l obligations. The state of registry has a sort of oversight or overview & thereby, int’l responsibility for that aircraft if it engages in int’l navigation. For example, pursuant to art.12 Chicago, that the state of registration, has the responsibility to enforce the compliance w/ the rules of the air locally wherever that aircraft is. If a Canadian aircraft is in German airspace, it is the legal responsibility of Canada to make sure & to enforce that the aircraft complies w/ the rules of the air in force in Germany. Also, art. 30 Chicago, hold that it is the state of registry that issues licenses for the operation of a radio station & that the radio equipment meets the int’l standards as defined by the Int’l Telecommunications Union. One cannot stress that enough b/c the spectrum of radio frequencies is a finite resource & any interference in frequencies can obliterate any communications. Similarly, the license for the operator of that radio station must be issued or validated by the state of registry. Additionally, the ability of the aircraft to fly (airworthiness, art. 31 Chicago), i.e. the certificate of airworthiness, must be issued or rendered valid by the state in which the aircraft is registered. Moreover, the licenses & certificates of competency of the flight crew must be issued or validated by the state of registration. Note: the converse aspect of what we are saying is in art. 33, namely; if the certificates of airworthiness or certificates of competency comply w/ the minimum standards of ICAO (Annex I of the Chicago), then all other contracting states must recognize these documents as valid. Therefore, the state of registry has functions & obligations. Thus, for the sake of safety, we need to keep the supervision more realistic & thus in the hands of the state of the operator rather than some remote & theoretical state of registry. Thus, the registration & the duty of the state of registry are connected closely w/ the safety of operation. & if the state of registry does not have actual opportunity to supervise the aircraft, we are facing a safety problem since an aircraft which is registered in the U.S. may be being used in France, for example, & thus the U.S. will not have the ability to carry out its duties as imposed by Chicago. This situation, however, has been (were agreements are made b/t governments, not airline to airline) rectified by art. 83 bis Chicago, where int’l law in the form of an amendment to Chicago gives an opportunity for the transfer, not a duty, of certain functions & responsibilities from the state of registry to the state of the actual operator. Q? How are joint air orgs effect other conventions w.r.t. nationality & jurisdiction problems?18 Tokyo Joint air transport operating orgs, which are operate aircraft not registered in any one State shall designate the State among them which for the purpose of Tokyo shall be considered as the State of registration & shall give notice thereof to ICAO. & Mtl. also contain a similar comprise. This solution indicates the most practical way to solve the problems relating to nationality of aircraft in the context of Chicago. However, such a solution could not apply ipso facto as it does in Hague or Mtl. as it requires a determination by the ICAO Council to become binding w.r.t. o/ contracting States.
Basically, the establishment of joint air transport operating orgs or international operating agencies could be an efficient & useful method for several States, in particular in the developing world, to combine their resources to maximum benefit for their countries. In certain cases of joint air transport operating orgs or int’l operating agencies the joint or int’l registration of aircraft may facilitate the establishment & smooth functioning of such schemes. Determination by the Council of ICAO in the case of ARAB AIR CARGO indicates that the criteria, conditions & procedures could be complied w/ w/out any difficulty. 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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