Research Paper: International Regulatory mechanism of Aviation Law

Subject:
Aviation Law

Submitted to:
Dr. SHAIK NAZIM AHMED SHAFI

Submitted by:
Abhishek Meena
B.A. LL.B. (Hons.)
5th Year 9th Semester
2012-03

Nalsar

University

of

Law

Table of Contents

INTRODUCTION................................................................................................................................
3
BRIEF BACKGROUND......................................................................................................................
4
PARIS CONVENTION..................................................................................................................... 56

WARSAW CONVENTION..................................................................................................................6
CHICAGO CONVENTION............................................................................................................... 67
FREEDOMS OF AIR.......................................................................................................................79
ICAO.............................................................................................................................................1
0
CONCLUSION.................................................................................................................................
11
BIBLIOGRAPHY......................................................................................................................... 1112

Introduction

Well, to know about law which regulates the airspace of the states and about its framework i.e.
the aviation law, one should first have an understanding of what is airspace.
The concept of airspace deals with the idea of sovereignty of a country. Basically it means that a
country should have a complete and exclusive sovereignty over the airspace which resides above
its territorial sea.
Now, the next question which comes to the mind is what is Aviation Law?
It is nothing but a body of law concerning itself to the civil aviation, and which derives its
authority by mutual international agreement between the states.
In the present world International Civil Aviation Organization (ICAO) is that
body of law and in this project I have not only talked about the functioning of
ICAO but have also focused on various convention which took place in past
and what is their importance in the present day world like Paris Convention
of 1919.

In will begin my paper with brief background and then I will move towards
the framework and regulation concerning civil aviation which exist in present
day world. In this part I have tried to provide a detail look at the present day
civil aviation regulatory framework.

Finally, in the last part I had given my conclusion to end my project.

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Brief Background

The first instance in which the concept of air came into existence in the
modern world was seen during the Franco-German war which took place in
1870-71. In this war the hot air balloons were for the time used for
belligerent missions, following this, first Hague conference took place in
1899, which placed a ban or suspension on the use of such hot air balloons
for the purpose of belligerent mission at the time of war. But, this ban was
not renewed the following second Hague Conference which was held in 1907.

Before the World War 1 commenced, many countries were worried about the
legal status of international flights, whether the flights of an aircraft
belonging to a country, over the territory of a different country should be
prohibited or whether there should be some other special provisions
regarding the same.

And for this reason only various bilateral, multilateral treaties and
conventions took place like the ones of Paris Convention of which took place
in 1919. In this conference, the International Air Transport Association (IATA)
came into existence for the sole purpose of seeking collaboration between
airlines in both commercial and legal sectors. The Ibero-American Convention
which took place several years later of Paris Convention in 19261 and the
Havana Convention which came two year later the Ibero-American
Convention in 19282.
1 The Ibero-American Convention, ICAO History
2 The Havana Convention, ICAO History
5

Even after going through all these treaties and conventions there was no
uniformity in the Air law internationally mostly in the cases of what liability
an international airline will face, and because of the same reason the Warsaw
Convention took place in 1929.

This period from 1919 to 1944 was considered the period of gradual growth
for international air transport.

Then after came the 1944s Chicago Conference which was intended to be
held for the purpose of planning the new air law in accordance to the post
war scenario.

The outcomes of this conference were the Chicago Convention of 1944,

International Air Service transit Agreement (1944) and International Air
Transport Agreement (1944).

Paris Convention 1919

The main aim of the convention was to ease the legal complication which
arose in the process of international aviation. At that time every country has
a different ideology about the civil aviation, so to come to common ground
i.e. common Ariel Navigation Regulation this convention took place which
was signed on October 13, 1919 in city of Paris.3

Basic Principles which were involved in this convention were:

Sovereignty: The very first Article of the Paris convention talks about this principle. This
principle talked about the exclusive sovereignty which a state or country enjoys over
airspace of its territorial seas. Now due to this concept of exclusive sovereignty a country
now has the right and authority of denial of entry of any aircraft into its airspace and can
also regulate the flights of the aircrafts flying in its airspace which can be either domestic
or international in nature.
Non Discrimination: This principle of Non Discrimination against any other nation has
been enshrined in Article 2 of the Paris Convention. According to this principle there
should be no discrimination in the appliance of rules relating to the airspace of a country.
It means there should be no discrimination on the basis of the nationality of the aircraft
i.e. rules will be equally applied irrespective of the fact whether the aircraft is domestic
or foreign.
Registration & Nationality: This principle is enshrined in Article 10 of the Paris
convention. This basically states that an aircraft which is engaged in international
navigation must have a nationality and should also be a registered in the state whose
nationality it posses. It was further said that an aircraft can only be registered in a single
state and there should be no multiple registration.

Warsaw Convention

3 From the website http://www.wipo.int/treaties/en/ip/paris/

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The main aim of this convention was to deal with the liability issues of the
international aircraft which carries passengers, luggage and goods.

It directed the aircraft carriers to issue traveling tickets to the passengers.

It also brought a limitation period of 2 years for a claim to brought against
the aircraft as mentioned.4

Clauses 17 and 18

Clause 17 of the convention says that for any damage caused to the
passengers or their luggage during their journey airline companies will be
held liable, however Clause 18 of the same convention says if the damage
caused to the passengers or their luggage is because of their own fault then
airline companies wont be held liable.

Chicago Convention

The main aims of the Chicago convention were:

a. The first and the most important aim of Chicago convention was
meeting the requirement of the world of regular, efficient and safe air
transport
b. The other aim was of establishing a regulatory framework of aviation
law on international level.
4 From the website http:// www.jus.uio.no/ lm/air.carriage.warsaw.convention.1929/ doc.html
8

c. And, last but not the least i.e. establishing the International Civil
Aviation Organization (ICAO)

Basic Principles of Chicago Convention

Sovereignty: Well, this principle has not been changed since 1919 in
the Paris Convention. The contracting state as mentioned in the Article
1.

The contracting states recognize that every state has the complete
and exclusive sovereignty over the territory of its territory... territory
includes territorial waters5

Nationality: Again, this principle had not undergone any change since
the Paris convention of 1919. However, Article 20 of Chicago
convention goes to the extent of making a mandatory condition for
aircraft for bearing the nationality and registration marks.

Every aircraft shall bear its nationality & registration marks6

5 Chicago Convention 1944, Article 1

6 Chicago Convention 1944, Article 20
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Non Discrimination: Again, here also the whole basic principle remains
the same as it was there in Paris convention in 1919. However, Chicago
convention has provided some specific situation where this
discrimination could be taken place. Like, in the article 9 which talks
about the prohibited areas, article 11 which talks about entry and
departure regulations, and article 15 which talks about airport charges.
Under this convention certain documentations were also required as to prove that the crew which
will board the aircraft is properly certified, these are:7
Flight Crew Licenses

Pilot

Flight Instructor or Assistant Flight Instructor

Flight Navigator

Flight Engineer

Flight Radio Telephone Operator

Machines Licenses

Radio Machine

Medical Licenses

Medical professionals

Freedoms of Air in Chicago Convention

7 From the website http://dgca.nic.in/licencing/lic-ind.htm

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a. First Freedom: Well, the first freedom which this convention talks about
is the freedom of flying over the territory of another foreign country but
without taking any stoppage in that country or without landing in that
country.8As it was observed in the year 2007, there are total of 129
countries which are presently party to this treaty, these countries also
includes big countries like USA, Australia, India etc. However, the fact
cannot be denied that other big countries like Russia and China didnt
ever join the treaty. And, if we talk about the countries that left the
treaty then Canada will come on the top of the list as it stopped being a
member of the treaty in 1988.9

b. Second Freedom: Now, the second freedom of air talks about the right for a technical
stoppage, i.e. in this freedom an aircraft can land in a foreign country or take a stoppage in
a foreign land just for the sole purposes of refueling the aircraft and other maintenance
works. Under this freedom no passengers or cargo can be allowed for neither the purpose
of boarding or for the purpose getting off. Nowadays there are lots of airlines available
because of which this freedom is rarely being used in the present time because of the
inconvenience which may be faced by the passengers although they are still very popular
among the cargo carriers.10 one of the best example which can be seen in this regards is of
Shannon airport situated in the country of Ireland, in 1960s most of the flights of North
Atlantic used to stop at this airport as a stopping point for refueling and maintenance

8 From Vallero, Luigi (August 2004). "The Freedom of Fifth Freedom Flights". Airways. Airways
International Inc.11 (102): 3136. ISSN 1074-4320.
9 From International Air Services Transit Agreement - list of signatory states. The document is not
signed, but includes Kazakhstan, which notified the US Secretary of States of its acceptance of the treaty
in July 2007.
10 From Bijan Vasigh, Tom Tacker, Ken Fleming. Introduction to Air Transport Economics: From
Theory to Applications. Ashgate Publishing, Ltd., 2008. ISBN 0-7546-7081-3. On Google Books. Page
156
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c. Third and Fourth Freedom: The service provided by the third and the
fourth freedom is a very basic freedom of carrying passengers or cargo
from one country to another and both the third and the fourth freedom
are reciprocal of each other. So, to be more clear the third freedom talks
about the right to carry passenger or any cargo from the home country
to a foreign country11 and the fourth freedom talks about the right to
carry passengers or any cargo from a foreign country to the home
country12. Usually both of these freedoms are given with each other
only as a part of a bilateral contract entered in between the parties.

d.

Fifth freedom: This freedom basically gives a right to an aircraft which allows the
passengers of the home country to board the aircraft and provides them the services of air
travel to a second country (foreign Country) and then from there to another country
(second foreign country) and on and on to other countries. The best example of this
situation can be seen in the case of Arab Emirates flight of 2004. This flight started from
Dubai as a home country and continued its journey to Brisbane, Australia then Auckland
and finally to New Zealand, the passengers were allowed to book the tickets for the
journey between any countries as the flight took stoppage in all the country13. The whole
purpose of carrying this traffic in this case is revenue generation. The only minus point
this freedom has is the unfair competition which local airlines have to face because of
this.14

11 Ibid at 8
12 Id
13 Id
14 From Wassenbergh, H.A. (1970). Public International Air Transportation Law in a New Era. The
Hague: Nijhoff. ISBN 9024750032. Retrieved 2016-02-22.
12

e. Sixth freedom: The sixth freedom of air is generally called as an unofficial freedom and
rather it is called a combination of the third and fourth freedom in some places and in
other places it is called a different variant of the fifth freedom of air. The sixth freedom
basically allows an aircraft to take traffic from a foreign country to another foreign
country but with a stoppage into its own home country. [6]:31 Although most of the countries
sees this freedom as a combination of the third and fourth freedom there are some
countries who sees this freedom more of a different variant of the fifth freedom of air and
the best example which can be seen in this regards is of China who seeks to regulate this
sixth freedom of air as fifth freedom.

f. Seventh freedom: Now, the seventh freedom of air is also called an unofficial freedom of
air and is the true variant of the fifth freedom as it provides an aircraft carrier the right to
carry or board passengers or cargo for flight between two foreign countries and have no
obligation to continue the flight towards the home country.15 For this situation the best
suited example will be of the agreement which took place between the United Kingdom
and the country of Singapore in 2007 on October 2nd. According to this agreement
unlimited freedom rights of the seventh freedom were given starting from the date 30th
march of the next year i.e. 2008.

g. Eighth freedom or consecutive cabotage : Again, the eight freedom of the air is also an
unofficial freedom of the air. Although, this freedom is very rare outside European Union
it is still unofficially recognized in the world as this freedom provides an aircraft carrier
the right to embark the passengers and cargo from one point to the other point in a foreign
country, also the aircraft is not limited to only two stoppages in a foreign country it can be
more than two. This right is basically known as the right to consecutive cabotage.16 As
stated above, the best example for this freedom will be of the European Union, as all the
members of European Union has been given these cabotage rights.

15 Ibid at 8
16 Ibid
13

h. Ninth freedom (stand alone cabotage): Now, this freedom is a variation of the cabotage
right stated above, although it is not considered as a true cabotage but it is generally called
by people as a stand alone cabotage17. Under this freedom the aircraft carrier is allowed
to embark the passengers or cargo for a flight between two o more point within a foreign
country only, and there will be no continuance of the flight towards its own home
country18. Now, again here also the best suited example for this situation will be of
European Union only.

17 From the website http://www.icao.int/Pages/freedomsAir.aspx

18 "ICAO FAQ: Freedoms of the Air". International Civil Aviation Organisation. Retrieved 10
June 2011.
14

ICAO
The ICAO stands for International Civil Aviation Organization. It is an agency very special in
nature in terms of aviation law and is created by the United Nations itself. Its headquarters
currently are located in the Quartier International of Montreal, Canada.
The main aims of this agency are to establish and regulate law with regards to the international
aviation, so that the air transport should be more economical, safe, efficient and orderly in
nature19. Its main function is to develop and adopt the air standards and air practices which are
recommended for safe, economic and efficient aviation.
Till the March of 2016 a total of 191 countries have joined ICAO out of which 190 countries are
also the members of United Nations.
The main organs of the ICAO are:
1. General Assembly: It consists of all contracting states
2. Council: The council is elected by the general assembly in every 3 years and there total
33 states are elected to represent three divisions of the council
a. States which are of chief importance in the area of air transport. Examples :
Australia and Brazil
b. The second category states are the state which makes contributes most for
better facilities in comparison to other states. Examples: South Africa and
India
c. The third category states are the states which fulfill the purpose of
geographic representation. Example: United Arab Emirates and Congo
3. Air navigation Commission: This commission is basically considered as a technical
department. There are total of 19 commissioners in the whole commission. The
appointment procedure is done by the ICAO council only, however the nomination is
done by the contracting states themselves. The commissioners are basically an
independent entity irrespective of the fact that they are nominated by their states they
cant be a political or any state representative. It is the Air Navigation Commission under
whose direction the Aviation Standards and Recommended Practices are developed but
still it too has to follow the formal process laid down by the ICAO panels. But as soon as
the standards and practices are given a go and these standards are sent for further
consultation to the Council of ICAO and its member states for the final Adoption.

19 From Hhne, Sebastian. "IT in general Aviation: Pen and Paper vs. Bits and Bytes" (PDF).
hoehne.net. p. 38. Retrieved 5 May 2014.
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Conclusion

Well, by doing this project I have learned a lot about the International Regulatory
framework of the aviation law. According to me the aviation law exist in present day
world is very important both from the commercial and safety perspective and national
security perspective as without any regulation in this sector, this huge hub of airlines
functioning without any considerable losses would not have been possible. There would
have been accident all the time. The international mechanism which is responsible of
smooth working of this sector although not fully developed but still it is the most
important part of the aviation law, as without it there wont be any aviation law and
without aviation law there wont be any aviation at all until and unless one is ready to
face the disastrous consequences.

Bibliography
WEBSITES
Website.....................................................https:// www.scribd.com
Website..................................................... https:// www.easa.europa.eu
Website.....................................................https:// www.icao.int
Website.......... law.depaul.edu/ about/ centers-and-institutes/ international-aviation-law...
Website.................................................... https:// www.iclg.co.uk
Website..............................................http://dgca.nic.in/ licencing/ lic-ind.htm
Website................................. http: // www. wipo.int/ treaties/ en/ip/paris/
Website......... http:// www.jus.uio.no/ lm/air.carriage.warsaw.convention.1929/ doc.html

BOOKS
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Book................................................. Public International Air Transportation Law in a new

Era:Economic Regulation of International Air Carrier Operations Book by Henri Wassenbergh
Book ...................................Introduction to air transport economics a Textbook by Bijan Vasigh

ARTICLES
Article...............................The Freedom of the Fifth Freedom Flights by Lugi Vallero

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