Last updated: August 19, 2019
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Introduction: Before the advent of aircraft, law-makers cared little for the sky above. Even when Ghenghis Khan’s falcons preceded his master’s hoards of horseback warriors, it was probably a welcome intrusion on airspace: a life-saving signal to run and hide! But balloons made way to dirigibles, then to winged aircraft. In the First World War, weapons were fitted onto aircraft and the world took notice. All Nations and states looked up and demanded and enforced sovereignty over their respective territories.

The idea of freedom to fly over other countries is based on a principle published in 1609 by Hugo Grotius defending the right of the Dutch India Company to trade in the Far East. Called Mare Librium, it stated that any country could sail on the seas without restrictions by other Nations. The work of Grotius and of others like him formed the basis of much modern International Law. Overview: Development of International Air Law:

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The question of National air space first arose when balloons used during the Franco-Prussian war in 1870-71. After the war, opinion was divided as to whether the air should be treated like the high seas, free for the use of all, or whether a Nation should be able to control, who used it. The issue became relevant to powered flight in 1909, when the French pilot Louis Bleriot crossed the English Channel to England. The next year, in 1910, an International Conference of Diplomats in Paris failed to reach an agreement on the question.

After World War I, the United States, the “British Empire”, Brazil, France, Greece, Italy, Japan, Poland, Czechoslovakia in total 26 countries met in Paris and drew up the Convention Relating to the Regulation of Air Navigation known as Paris Convention, 1919. They voted to give each Nation “complete and exclusive sovereignty over the airspace above their territory”. Neither the United States nor Russia signed the agreement. The delegates also established the International Commission on Air Navigation (ICAN) as a forum to discuss the rules for allowing foreign aircraft to use sovereign irspace. Also, in the same year, six European airlines formed the International Air Traffic Association (IATA) to help airlines standardize their paperwork and passenger tickets and also help airlines compare technical procedures. The IATA also created some common rights for passengers, such as the right to be paid, if an airline caused a passenger loss, damage, or death. The Havana Convention on Civil Aviation was drawn up in 1928, and ratified in February 1931, by the U. S. Senate.

Agreed to by 21 Western Hemisphere countries, the convention guaranteed the right of innocent passage of aircraft and formulated the rules for International Air Navigation between the contracting states relating to aircraft identification, landing facilities, and standards for pilots. It also stated the right of each country to set the route to be flown over its territory. In 1929, delegates to the Warsaw Convention, which included the United States, agreed to limit passenger compensation for loss of property or harm to a passenger by an airline to $8,300.

This amount was measured using gold based on the value of the French franc. In response to the invitation of the United States Government, representatives of 54 nations met at Chicago from November 1 to December 7, 1944, to “make arrangements for the immediate establishment of provisional world air routes and services” and “to set up an interim council to collect, record and study data concerning international aviation and to make recommendations for its improvement. ” The Conference was also invited to “discuss the principles and methods to be followed in the adoption of a new aviation convention. At the Conference, delegates agreed upon a new convention, which formed the basis of Air Law ever since, both Domestically and Internationally. The Chicago Convention adopted most of the 1919 Convention, in particular the all-important statement of Aerospace Sovereignty. The Chicago Convention, 1944, is known throughout the world by its formal title, the Convention on International Civil Aviation. It was signed on December 7, 1944. The Chicago Convention of 1944 also created an independent agency, the successor to the International Commission for Air Navigation.

The new agency still exists and is a major player in International Law: The International Civil Aviation Organisation (ICAO), based in Montreal. The laying of the foundations of ICAO was initiated by the US, and developed through consultations between the ‘Major Allies’, which set up the permanent International Civil Aviation Organisation, a specialized agency of the United Nations charged with coordinating and regulating international air travel. The Convention establishes rules of airspace, aircraft registration and safety, and details the rights of the signatories in relation to air travel.

The Convention also exempts air fuels from tax. The Convention has since been revised eight times (in 1959, 1963, 1969, 1975, 1980, 1997, 2000 and 2006). The most important work accomplished by the Chicago Conference was in the technical field because the Conference laid the foundation for a set of rules and regulations regarding air navigation as a whole, which brought safety in flying a great step forward and paved the way for the application of a common air navigation system throughout the world. In the aggregate, the Convention became known principally for its five freedoms which the signatories granted to each other.

They were contained in a sub-agreement called International Air Transport Agreement: • The right to fly across another’s territory without landing; • The right to land for non-traffic purposes (such as to re-fuel); • The right to put down passengers and cargo taken on in the territory of the aircraft’s nationality; • The right to take passengers and cargo destined for the territory of the aircraft’s nationality; and • The right to take on passengers and cargo, and to drop-off passengers and cargo destined for, or coming from the territory of any state signatory to the Chicago Convention.

Because of the inevitable delays in the ratification of the Convention, the Conference had signed an Interim Agreement, which foresaw the creation of a Provisional International Organization of a technical and advisory nature with the purpose of collaboration in the field of International Civil Aviation(PICAO). This Organization was in operation from August 1945 to April 1947, when the permanent ICAO came into being. Its seat was in Montreal, Canada and in 1947 the change from PICAO to ICAO was little more than a formality.

However, it also brought about the end of ICAN because, now that ICAO was firmly established, the ICAN member States agreed to dissolve ICAN by naming ICAO specifically as its successor Organization. ICAO was created as a means to secure international co-operation and the highest possible degree of uniformity in regulations and standards, procedures and organization regarding civil aviation matters’. There are now 189 contracting states.

Foundation of the International Civil Aviation Organisation (ICAO): The Convention on International Civil Aviation set forth the purpose of ICAO: “WHEREAS the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security; and WHEREAS it is desirable to avoid friction and to promote that co-operation between nations and peoples upon which the peace of the world depends; THEREFORE, the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically; Have accordingly concluded this Convention to that end.

The Conference immediately set up, in addition to the normal working committees (Executive, Nominations, Steering, Credentials, and Rules and Regulations Committees), four technical committees with appropriate subcommittees. Objectives of ICAO: ICAO’s aims, and much of what these include, are: Standardisation: The establishment of International Standards, Recommended Practices and Procedures covering licensing of personnel, rules of the air, aircraft operations, airworthiness, aeronautical telecommunications, air traffic services, accident investigation, aircraft noise and emission levels, security and safe transport of dangerous goods. After a standard is formally adopted, each of the ICAO ‘contracting states’ implements it within their territories.

CNS/ATM: The development of a satellite-based system concept to meet future communications, navigation surveillance/air traffic management (CNS/ATM) needs of civil aviation. Regional planning: For the purposes of the ICAO, the globe is divided into 9 geographical regions which are treated individually for ‘planning the provision of air navigation facilities and services required on the ground’. ICAO regional meetings are held periodically. Facilitation: The reduction of procedural formalities which may add extra time to a passenger’s journey and the provision of adequate air terminal buildings. Economics: Air services to be established on the basis of equality and opportunity and operated soundly and economically.

Technical co-operation for development: The promotion of civil aviation in developing countries which includes the provision of assistance to states in order to improve their aviation security facilities and procedures. This has involved the creation or assistance of many large civil aviation training centers. Law: Development of a code of international air law governing certain issues. Organisational Structure of ICAO The organisation comprises of an Assembly, a Council assisted by various subordinate bodies and a Secretariat. The Assembly consists of representatives from the contracting states. It meets every three years to review and mandate policy.

The Council is the governing body which is elected by the Assembly for a three year term and is comprised of delegates from 36 contracting states. The 36 states are selected according to one of three characteristics: • • • key importance in air transport; key contributors to the provision of facilities for air navigation; states whose designation will ensure all major areas of the world are represented. The Council adopts standards and recommended practices; it is assisted by the Air Navigation Commission on technical issues, the Air Transport Committee on economic issues, and the Committee on Joint Support of Air Navigation Services and the Finance Committee.

The Secretariat is composed of staff recruited on a broad geographical basis and is headed by the Secretary-General. There are 5 main sectors: • • • • • The Air Navigation Bureau; The Air Transport Bureau; The Technical Co-operation Bureau; The Legal Bureau; and The Bureau of Administration and Services. Key Articles of Chicago Convention: Article 1: Every state has complete and exclusive sovereignty over airspace above its territory. Article 5: (Non-scheduled flights over State’s Territory): The aircraft of states, other than scheduled international air services, have the right to make flights across state’s territories and to make stops without obtaining prior permission. However, the state may require the aircraft to make a landing.

Article 10: (Landing at customs airports): The state can require that landing to be at a designated customs airport and similarly departure from the territory can be required to be from a designated customs airport. Article 12: Each state shall keep its own rules of the air as uniform as possible with those established under the convention, the duty to ensure compliance with these rules rests with the contracting state. Article 13: (Entry and Clearance Regulations) A state’s laws and regulations regarding the admission and departure of passengers, crew or cargo from aircraft shall be complied with on arrival, upon departure and whilst within the territory of that state. Article 16: The authorities of each state shall have the right to search the aircraft of other states on landing or departure, without unreasonable delay…

Article 24: Aircrafts flying to, from or across, the territory of a state shall be admitted temporarily free of duty. Fuel, Oil, spare parts, regular equipment and aircraft stores retained on board are also exempt custom duty, inspection fees or similar charges. Article 29: Before an international flight, the pilot in command must ensure that the aircraft is airworthy, duly registered and that the relevant certificates are on board the aircraft. The required documents are: • • • Certificate of Registration; Certificate of Airworthiness; Passenger names, place of boarding and destination; • • • • Crew licenses; Journey Logbook; Radio License; Cargo manifest.

Article 30: The aircraft of a state flying in or over the territory of another state shall only carry radios licensed and used in accordance with the regulations of the state in which the aircraft is registered. The radios may only be used by members of the flight crew suitably licensed by the state in which the aircraft is registered. Article 32: the pilot and crew of every aircraft engaged in international aviation must have certificates of competency and licenses issued or validated by the state in which the aircraft is registered. Article 33: (Recognition of Certificates and Licenses) Certificates of Airworthiness, certificates of competency and licenses issued or validated by the state in which the aircraft is registered, shall be recognised as valid by other states.

The requirements for issue of those Certificates or Airworthiness, certificates of competency or licenses must be equal to or above the minimum standards established by the Convention. Article 40: No aircraft or personnel with endorsed licenses or certificate will engage in international navigation except with the permission of the state or states whose territory is entered. Any license holder who does not satisfy international standard relating to that license or certificate shall have attached to or endorsed on that license information regarding the particulars in which he does not satisfy those standards”. The positive gains of the Chicago Conference were outstanding. They included: 1. A permanent International Act of great importance, the Convention on International Civil Aviation, was concluded and opened for signature. Although lacking the controverted economic articles, this instrument provided a complete modernization of the basic Public International Law of the Air. It was intended to replace the Paris Convention on Aerial Navigation of October 13, 1919, and did so when it came into effect on April 4, 1947.

It also provided the constitution for a new permanent international organization, the International Civil Aviation Organization, which has now replaced the previous international organization of more limited scope, the International Commission for Air Navigation. 3. The International Air Services Transit Agreement, commonly known as the Two Freedoms agreement, was concluded and opened for signature. This agreement had been accepted by 36 states as of June 30, 1947. It has done much to strike the shackles previously limiting the development of world-wide air commerce. 4. The International Air Transport Agreement, commonly known as the Five Freedoms agreement, was also concluded and opened for signature. 5. A standard form of bilateral agreement for the exchange of air routes was prepared and recommended by the Conference as part of its final act. This standard form has subsequently been widely used and has done much to bring a measure of consistency into the many new bilateral agreements which have been necessary.

An Interim Agreement on International Civil Aviation was completed and opened for signature. 7. Finally, a world-wide common basis was established for the technical and operational aspects of international civil aviation. The technical contributions of the Conference, as printed in the present volume under the title “Drafts of Technical Annexes”, run to some 188 pages of recommendations on such matters as airworthiness of aircraft, air traffic control, and the like. This comprehensive body of technical material undoubtedly represents the most striking advance ever achieved at a single conference in the field of international technical collaboration. 8.

The technical recommendations prepared at Chicago and the later revisions prepared by the Provisional International Civil Aviation Organization have served as a guide to practice throughout the world and have been of basic importance in the extraordinary expansion of international civil aviation which has occurred since 1945. In the light of this record of achievement, it can safely be said that the International Civil Aviation Conference at Chicago was one of the most successful, productive, and influential international conferences ever held The International Civil Aviation Organization, a UN Specialized Agency, is the global forum for civil aviation.

ICAO works to achieve its vision of safe, secure and sustainable development of civil aviation through cooperation amongst its member States. To implement this vision, the Organization has established the following Strategic Objectives for the period 2005-2010: Safety —Enhance global civil aviation safety Enhance global civil aviation safety through the following measures: 1. Identify and monitor existing types of safety risks to civil aviation and develop and implement an effective and relevant global response to emerging risks. 2. Ensure the timely implementation of ICAO provisions by continuously monitoring the progress toward compliance by States.

Conduct aviation safety oversight audits to identify deficiencies and encourage their resolution by States. 4. Develop global remedial plans that target the root causes of deficiencies. 5. Assist States to resolve deficiencies through regional remedial plans and the establishment of safety oversight organizations at the regional or sub-regional level. 6. Encourage the exchange of information between States to promote mutual confidence in the level of aviation safety between States and accelerate the improvement of safety oversight. 7. Promote the timely resolution of safety-critical items identified by regional Planning and Implementation Groups (PIRGs).

Support the implementation of safety management systems across all safety- related disciplines in all States. 9. Assist States to improve safety through technical cooperation programmes and by making critical needs known to donors and financial organizations. Security —Enhance global civil aviation security Enhance the security of global civil aviation through the following measures: 1. Identify and monitor existing types of security threats to civil aviation and develop and implement an effective global and relevant response to emerging threats. 2. Ensure the timely implementation of ICAO provisions by continuously monitoring the progress toward compliance by States.

Conduct aviation security audits to identify deficiencies and encourage their resolution by States. 4. Develop, adopt and promote new or amended measures to improve security for air travelers worldwide while promoting efficient border crossing procedures. 5. Develop and maintain aviation security training packages and e-learning. 6. Encourage the exchange of information between States to promote mutual confidence in the level of aviation security between States. 7. Assist States in the training of all categories of personnel involved in implementing aviation security measures and strategies and, where appropriate, the certification of such personnel.

Assist States in addressing security related deficiencies through the aviation security mechanism and technical cooperation programmes. Environmental Protection —Minimize the adverse effect of global civil aviation on the environment. Minimize the adverse environmental effects of global civil aviation activity, notably aircraft noise and aircraft engine emissions, through the following measures: 1. Develop, adopt and promote new or amended measures to limit or reduce the number of people affected by significant aircraft noise; limit or reduce the impact of aircraft engine emissions on local air quality; and limit or reduce the impact of aviation greenhouse gas emissions on the global climate.

Cooperate with other international bodies and in particular the UN Framework Convention on Climate Change (UNFCCC) in addressing aviation’s contribution to global climate change. Efficiency —Enhance the efficiency of aviation operations Enhance the efficiency of aviation operations by addressing issues that limit the efficient development of global civil aviation through the following measures: 1. Develop, coordinate and implement air navigation plans that reduce operational unit costs, facilitate increased traffic (including persons and goods), and optimize the use of existing and emerging technologies SUPPORTING IMPLEMENTATION STRATEGIES To implement its Strategic Objectives, the Organization will take the necessary steps to: 1. perate in a transparent manner and communicate effectively both externally and internally; 2. maintain the effectiveness and relevance of all documents and materials; 3. identify risk management and risk mitigation strategies as required; 4. continuously improve the effective use of its resources; 5. enhance the use of information and communication technology integrating it into its work processes at the earliest possible opportunity; 6. take into account the potential impacts on the environment of its practices and operations; 7. improve its use of diverse human resources in line with the best practices in the UN system; and 8. operate effectively with the highest standard of legal propriety

Indian Context: India is a founder member of the ICAO as it signed the Chicago Convention on 07. 12. 1944, the day of its inception. The Convention was ratified by India on 01. 03. 1947 and the same became effective for India w. e. f. 04. 04. 1947. Since then India has been playing a vital role in the formulation and subsequent ratification or accession of international law instruments. Status: India has ratified or acceded to most of the multilateral air law instruments. Out of total 43 international law instruments, India has either signed or acceded to 32. List of International Law Instruments not signed or acceded by India. 1. International Air Transport Agreement, Chicago, 7/12/44 2. Article 3 bis, Montreal, 10/5/84 3.

Convention on the International Recognition of Rights in Aircraft, Geneva, 19/6/48 4. Protocol to Amend the Rome Convention of 1952, Montreal, 23/9/78 5. Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier, Guadalajara, 18/9/61 6. Protocol to Amend the Warsaw Convention of 1929 as Amended by The Hague Protocol of 1955, Guatemala City, 8/3/71 7. Additional Protocol No. 1, Montreal, 25/9/75 8. Additional Protocol No. 2, Montreal, 25/9/75 9. Additional Protocol No. 3, Montreal, 25/9/75 10. Montreal Protocol No. 4, Montreal, 25/9/75 It may be noted that most of the instruments as mentioned above have been replaced with more recent conventions like the Montreal Convention, 1999 and the Cape Town Convention & Cape Town Protocol, 2001, to which India is a party. Thus, India has a very sound record of compliance with international law instruments.

Bibliography

ICAO | International Civil Aviation Organization Promotes understanding and security through cooperative aviation regulation. http://www. icao. int/ International Law Offices Launched in 1998, the International Law Office (ILO) is a nexus where global corporate counsel engage with the world’s pre-eminent law firms, and each other. http://www. internationallawoffice. com/ IATA. org The Air Transport Association (IATA) represents, leads and serves the airline industry. Its members comprise all major passenger and cargo airlines. http://www. iata. rg/ Government of India, Ministry of Civil Aviation Describes the role of the ministry, its subsidiary organisations and the commercial bodies. http://civilaviation. nic. in Director General of Civil Aviation The DGCA is responsible for implementing, controlling, and supervising airworthiness standards, safety operations, crew training in India. http://daca. nic. in CAPA: Centre for Asia Pacific Aviation CAPA is the leading global aviation knowledge practice, delivering market analysis and data to support strategic decision making at hundreds of the most recognised organisations in the industry. http://www. centreforaviation. com/ S. Bhatt , V. S. Mani & V. Balkista Reddy ( Authors) Air Law & Policy in India