Air Navigation Law by batdelger

Air Navigation Law

Ruwantissa Abeyratne

Air Navigation Law

Ruwantissa Abeyratne International Civil Aviation Organization (ICAO) Quebec Canada

ISBN 978-3-642-25834-3 e-ISBN 978-3-642-25835-0 DOI 10.1007/978-3-642-25835-0 Springer Heidelberg Dordrecht London New York Library of Congress Control Number: 2012933968 # Springer-Verlag Berlin Heidelberg 2012 This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

For Ghislaine and Diane

Preface

From the recorded inception of international civil aviation to dateâ&#x20AC;&#x201D;i.e. the signing of the Convention on International Civil Aviation (Chicago Convention) in 1944 and the start-up of the International Civil Aviation Organization (ICAO) in April 1947, to the adoption of the various Annexes to the Convention over the past 66 years, the law of air navigation has evolved through the principles of these instruments and transformed into domestic law within their jurisdictions by member States of ICAO. Therefore, domestic air navigation law, however founded, has its origins in the Chicago Convention and its 18 Annexes (at the time of writing, the latest Annex (Annex 19 on Safety Management Systems was being developed). These laws, both international and national derive their legitimacy from the fundamental principle found in Article 1 of the Chicago Conventionâ&#x20AC;&#x201D;that ICAO member States recognize that each State has complete and exclusive sovereignty over the air space above its territory. Within this overriding principle of State sovereignty, this book takes the reader on a journey through the principles of air navigation law as enunciated by the Chicago Convention, the Annexes to the Convention and relevant ICAO Assembly resolutions. Naturally, discussions throughout this work will address the principle of State sovereignty as relevant, but more importantly, as any discussion of the law would involve rights and liabilities, this book regularly addresses and discusses the liability of the protagonists in air navigation, be it the State, the airport, the air navigation services provider, the controller of air traffic or the pilot and other crew. The book immediately preceding this written by me entitled Strategic Issues in Air Transport (Springer: ISBN 978-3-642-21959-7), which was released in January 2012, contains discussions on such subjects as safety management systems, the use of airspace, aviation medicine, unmanned aircraft systems, regional safety in air transport, and safety oversight audits. Therefore I will not address these subjects in this book, although the various aspects of law related to those subjects also form an integral part of air navigation law. The subjects which I discuss in this book are flight information and air defence identification zones, rules of the air, personnel licensing, meteorological services, operations of aircraft, air traffic services,

vii

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accident and incident investigation, aerodromes, the efficiency aspects of aviation and environmental protection, aeronautical charts and information, the carriage of dangerous goods and NextGen and SESARâ&#x20AC;&#x201D;the two initiatives of the United States and Europe respectively. All these subjects form the titles of the Annexes to the Chicago Convention that particularly involve the rights and liabilities of the key players involved in air navigation. On a personal note, since I joined ICAO as a professional in April 1990, I have published 19 books and numerous journal articles on air transport and air law. This book is written at a time when I am approaching retirement, which will be after nearly 25 years of service to the Organization. Therefore, I believe it is opportune for me to recognize and thank two special and exceptional ICAO professionals, Ghislaine Giroux and Diane Bertrand of the ICAO library whose continued support, appreciation and approval of my literary pursuits have encouraged me throughout to maintain an academic dimension to my otherwise predictable functions as a legal officer in the Organization. This book is dedicated to Ghislaine and Diane with my deepest appreciation. Ruwantissa Abeyratne

Contents

Territorial Sovereignty and Flight Information . . . . . . . . . . . . . . . . . . . . . . . . 1.1 State Sovereignty Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Civil and Military Aviation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Flight Information Regions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 The Air Defence Identification Zone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.1 Justification for ADIZ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.2 Comment on ADIZ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 6 9 11 13 16 18

The Provision of Air Traffic Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 The CNS/ATM System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Principles of State Liability for Acts of Autonomous Air Traffic Services Providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Provision of Air Navigation Services . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Meteorological Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Air Traffic Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6 Liability of States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6.1 Liability Under Administrative Law . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6.2 Liability Under Public International Law . . . . . . . . . . . . . . . . . . . . . 2.7 The Air Traffic Service Providerâ&#x20AC;&#x2122;s Liability . . . . . . . . . . . . . . . . . . . . . . . . . 2.8 Satellite Imagery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9 Space Law Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.10 Outer Space Treaty Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19 19 21 22 26 28 29 30 37 43 53 55 56 66

Rules of the Air . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Negligence of the Airline Pilot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Applicable Laws and Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

69 73 74 76

Contents

3.4 Cases on Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 3.5 Substance Abuse and Crew Communication . . . . . . . . . . . . . . . . . . . . . . . . . 81 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 4

Search and Rescue Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 4.1 Humanitarian Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 4.2 Operation of Aircraft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Aircraft Accident and Incident Investigation . . . . . . . . . . . . . . . . . . . . . . . . . 105 5.1 Criminalization of the Accident Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

Air Crew Licencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Language Proficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Regulatory Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Legal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Privileges and Misuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Fatigue Risk Management Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Proposed Amendments to Fatigue Management Standards . . . . . . . . 6.7 Intent of Proposed Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8 Appendix 8 to Annex 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9 The Medical Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.10 Aircrew Integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11 Liability Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12 Article 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

113 115 117 122 125 127 130 131 132 133 134 138 143 144

Aerodromes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Airport Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Airport Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Elements of Corporate Foresight Planning . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Link with Air Transport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Corporate Foresight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6 Global Runway Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7 Runway Incursions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8 Runway Excursions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.9 Foreign Object Debris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10 Bird Strikes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11 A Look at the Future . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

145 145 147 152 154 155 160 162 163 165 166 168 172

Contents

Carriage of Dangerous Goods by Air . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 Radioactive Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Dangerous Pathogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Bioterrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 Legal and Regulatory Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5 ICAO Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.6 IATA Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.7 Some Other Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

175 176 180 182 184 187 191 193 194

Aviation and Environmental Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1 Aircraft Noise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Aircraft Engine Emissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Other Regulatory Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

195 196 197 199 209

Aeronautical Charts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 10.1 Liability Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 10.2 NOTAMs and Other Aeronautical Information . . . . . . . . . . . . . . . . . . . 217

NextGen and SESAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 11.1 NextGen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 11.2 SESAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

ICAO and the Exploration and Use of Outer Space . . . . . . . . . . . . . . . . . 229 12.1 The Aerospace Plane and Sub Orbital Flights . . . . . . . . . . . . . . . . . . . . 229

Vulnerabilities of the Air Transportation System to Loss or Degradation of the GPS Signal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.1 Liability of the Signal Provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2 Liability of the State Providing Air Navigation Services Through GPS Signals Obtained from Outer Space . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

235 242 246 251

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

Index

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

Table of Cases

A Aetna Casualty v. Jeppesen, 344 F. Supp. at 1388, 214 Air Services Inc. v. USA, [1983] 18 CCH Avi 17, 556-17564 (D. Miss. 1983), 49 Allnut v. United States, [1980] 498 F. Supp. 832 (W.D. Mo. 1980), 214 Anns v. Merton London Borough Council, [1978] A.C. 728, 35, 250 Armentrout v. FMC-Corp, [1992] 842 P.2d 175 at p. 183–84 (Colo. 1992), 248 Asahi Metal Industry Co. v. Superior Court, [1982] 480 U.S. 102, 216 Australian National Airlines Commission v. The Commonwealth of Australia and Canadian Pacific, Airlines, [1974–75] 132 CLR 582, 77 B Baker v. United States, 50 Barrett v. Enfield LBC, [2001] 2. A.C. 550, 33, 35 Barry v. Arnaud, [1839] 10 Ad. & E. 646, 33 Battes Gas and Oil Co. v. Hammer, [1982] A.C. 888, 38 Best v. Taylor Machine Works, 689 N.E. 2d. 1057, 110 Bolam v. Friern Hospital Management Committee, [1957] 2 All E.R. 118 at 120, 121, 76, 78 Bourhill v. Young, [1943] A.C. 92, 78 Brantley v. Vaughn, 835 F. Supp. 258, 152 Brocklesby v. United States, [1985] 767 F. 2d 1288 (9th Cir 1985), 216 Brownlie v. Campbell, [1880] 5 App. Cas. 925 (per Lord Blackburn), 140

C Caparo Industries Plc v. Dickman, [1990] 2 A.C. 605, 34, 258 Corporation of Stanford v. Pawlett, [1830] 1 C&J 57, at 400, 32 Cox v. Dubois, 16 F. Supp. 2d 861, 152 Curran v. Northern Ireland Co-ownership Housing Association Ltd., [1987] A.C.718, 34 xiii

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Table of Cases

Curtis v. Chemical Cleaning and Dyeing Company, [1951] 1. K.B. 805 (C.A), 140 Cutler v. Wandsworth Stadium Ltd., [1949] A.C. 398, 33

D Dalehite v. United States, [1953] 746 U.S. 15, 36 Daly v. Liverpool Corporation, [1939] 2 All.E.R. 142 at 144, 78 Datskow v. Teledyne Continental Motors, [1993] 826 F. Supp 677 (W.D.N.Y. 1993), 64 Daubert v. Merrell Dow Pharm., Inc 509 U.S. 579 at 590, 62 Delta Airlines v. United States, 561 F. 2d. 381 at 389.l, 50 Department of Water and Power of City of Los Angeles v. Anderson, 95 F. 2d 577, 152 Deway v. R.J. Reynolds Tobacco Company, [1990] 577 A2d. 1239 (N.J. 1990), 248 Dolan v. Florida, [1999] WL 512093 (Fla. App. 4th dist.), 64 Downs v. United States, [1975] CA 6 Tenn, 522 F. 2d 990, 35

E Eastern Airlines v. Union Trust Co., [1955] 221.F.2d.62 (D.C. Cir.) Revised 350 U.S. 907 (1955), modified 350 U.S. 962 (1956), 36, 52, 249 Eastern Greenlandâ&#x20AC;&#x2122;s Case, PCIJ Series A/B, No. 53, at pp.53ff., 230 Entick v. Carrington, [1765] 19 St. Tr. 1029 at p. 1081, 33 Esso Petroleum Co. Ltd. v. Mardon, [1976] Q.B. 801, 140 Ex Parte Pinochet, [2000] A.C. 147, 38

F First of America-Bank Central v. U.S., [1986] 639 F. Supp. 446 (W.D. Mich. 1986) at 455, 52 Fluor Corp. v. Jeppesen & Co, 170 Cal. App. 3d 468, 216 Cal. Rptr at 71-72, 215

G Goris v. Scott, [1875] L.R. 9 ex. 125, 33 Greater Toronto Airport Authority v. Air France et.al. Court File No. 07-CV337545 PD2, 164 Gronau v. Schlamp Investments Ltd., [1974] 52 D.L.R. (3d) 631 (Man.Q.B.), 140 Groves v. Lord Winborne, [1898] 2. Q.B.402, 33

H Hahn v. United States, [1982] 535 F. Supp. 132 (D.S.D. 1982), 214 Hamdi v. Rumsfeld, [2004] 542 US 5047, 16

Table of Cases

Hartz v. United States, 387 F. 2d. 870 at 873, 50 Hedley Byrne & Co. Ltd. v. Heller & Partners [1964] A.C. 465, 140 Heningsen v. Bloomfield Motors, [1960] 161 A2d. 65 (N.J. 1960), 248 Hercules Management Ltd. v. Ernst & Young, [1997] 2.S.C.R. 165, 52 Herrick and Olsen v. Curtiss Flving Service Inc., [I 932] US Av 110 (NY), 80 Holland v. Lampon-Wolfe [2000] 1.W.L.R. 1573, 38 Hood v. Dealers Transport Co., 459 F. Supp. 684, 151 Hovden v. Boyle 254 P 2d 813 (Kan., 1953), 78 Hussain Abdulrahim et.al v. Air France et. al Court File No. 05-CV-294746 CP, 164 I Indian Towing Co. Inc v. United States, [1955] 330 U.S. 61, 36 Ingham v. Eeastern Airlines Inc., [1967] 373 F 2d 227 9 2nd Cir., 36 In Re. Chorzow Factory (Jurisdiction) Case, [1927] PCIJ, Ser. A, no. 9 at 21, 95 Israel v. U.S., [1957] 247 F. 2d. 426 (2nd Circ., 1957), 78, 80

J Johnson v. Cenac Towing Inc., 468 F. Supp, 2d. 815, 141 Johnson v. State of California, [1968] 447 P. 2d. 352, 35 Johnson v. United States, [1960] 187 F. Supp. 489 E.D. Mich, 37 Juan Ysmael v. Republic of Indonesia, [1955] A.C. 72, 38

K Keenan v. Martin, [1975] 13 Avi 18,037 (N.Y. 1975), 80 Kumho Tire Co. v. Carmichael, U.S., [1999] 119 S.ct.1167 at 1170, 63

L Lagden v. O’Connor, [2002] House of Lords Session 2003–2004, case decided on 4 December 2003 on Appeal from [2002] EWCA Cir 510., 249 Laughlin v Rose, [1958] 200 Va. 127, 104 S.E. 2d 782, 151 Le Lievre v. Gould, [1893] 1Q.B. 491, 78 Link v. Schiable, [1961] 27 D.L.R. (2d) 461 (B.C.C.A), 140 Liversidge v. Anderson, [1942] A.C. 206 at 244., 15

M Macgregor v. Lord Advocate, [1921] SC 847, 249 MacLeod case, 247 M’Allister (Donoghue) v. Stevenson, [1932] A.C. 562, 76

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Matthews v. Ministry of Defence, [2002] Opinions of the House of Lords, Thursday 13 February 2003 on appeal from [2002] EWCA Cir 773., 249 McCorpen v. Cental Gulf Steamship Corporation 396 F2d 547, 141 McDaniel v. United States, [1965] 343 F. 2d. 785 (5th Circ. 1965), 62 Medley v. United States, [1982] 543 F. Supp. 1211 (N.D. Cal. 1982), 214 Mercy Docks and Harbour Board Trustees v. Gibbs, [1866] L.R.1. H.L, 34 Miller v. United States, [1975] 522 F. 2d. 386 (6th Cir. 1975), 37 Minors v. Bedfordshire CC, [1995] 2 A.C. 633 at 730, 33 Mogul SS. Co. Ltd. v. McGregor Gow, [1892] A.C. 25, 32

N Nichols v. Jones, [1972] 260 So 2d 748 (La. 1972), 78, 80

O Olsen v. Poirier, [1978] 91 D.L.R. (3d) 123 (Ont. H.C.J), 140 Oâ&#x20AC;&#x2122;Rourke v. Campden LBC, [1998] A.C. 158, 33

P Palsgraf v. Long island R.R. Co., [1928] 284 N.Y. 339, 78 Pan American v. Port Authority, 787 F. Supp. 312 (E.D.N.Y. 1992), 52 Pasinato v. American Airlines, Inc., [1994] No. 93 C 1510, 1994 Westlaw 171522, 85 Peabody Donation Fund v. Sir Lindsay Parkinson and Co. Ltd., [1985] A.C. 210, 34 People v. Crossan, [1927] 87 Cal. App. 5, 253 People v. McHugh, 124 Misc. 2d. 559, at 560 also 476 N.Y.S. 2d. 721, at 722, 62 Phelps v. Hillingdon LBC, [2001] 2 A.C. 619 at 652, 35 Phillips v. Britannia Hygenic Laundry Co. Ltd., [1923] 2 K. B. 832, 33 Phillips v. William Whiteley Ltd., (I 938) 1 K.B. 566 at 569, 570, 76, 78 Pickering v. James, [1873] L.R. 8 C.P. 489, 33 Pino v. Gauthier, [1993] 633. So. 2d. 638 at p. 652 (La. App. 1st Cir. 1993), 64 Proctor v. Seagram, [1925] 2. D.L.R. 1112 at 1114, 254

R Randall v. Tarrant, [1955] 1 W.L.R. 255 at 259, 78 Republic of Mexico v. Hoffman, [1945] 324 US 30, 38 Richards v. United States, [1962] 369 U.S. 17, LED 2d 492, 35 Robart v. Brehmer 207 P 2d 898 (Cal. 19491), 80 Robinson v. Missouri Pacific R.R.Co, [1994] 16 F. 3d. 1083 (10th Circ. 1994), 63 Rodriguez v. United States, [1987] 823 F. 2d. 735 (3rd Cir 1987), 51, 151

Table of Cases

xvii

Rose Stone v. Courtyard Management Corp. [2003] Decided on 22 December 2003, Docket No. 03-7112. U.S. Court of Appeals for the Second Circuit., 249 Rowning v. Goodchild, (1772) 2 W. Black 906, 33 Rudelson v. United States, [1979] 602 F. 2d. 1326 (9th Cir. 1979), 50, 136 R. v. Halliday, [1917] A.C. at 292, 16 R. v. Monopolies and Mergers Commission Exp. Elders 1XL Ltd., [1987], 32 R. v. Secretary of State ex parte Factorframe Ltd., [1990] 2 A.C. 85, 30 R. v. Secretary of State for Trade Industry Ex parte Lonrho plc, [1989], 32

S Saloomey v. Jeppesen & Co. 707 F. 2d. 672–674, 215 Schinotti v. Bumstead, [1796] 6. T.R. 646, 33 Selmouni v. France, [1999] EHCR Reports V 29 EHRR 403, para 87, 247 Socı´ete´ Air France et. al. v. GTAA et. al. Court File No 07-337564 PD3, 164 Sorrell v. Smith, [1925] A.C. 700, 32 Stark v. United States, [1967] F. Supp. (S.D. Cal 1967), 36 State ex. Rel Ohio Academy of Trial Lawyers v. Sheward, [1999] 86 Ohio St.3d. 451, 110 Steinbock v. Scbiewe supra, note 36 in Chap. 1, 80 Steinbock v. Schiewe, [1964] 330 F. 2d. 510 at 512, 79 Sterling v. Turner, [1672] I. Ventris 200, 33 Stovin v. Wise 2, [1996] A.C. 923., 34 Strugarova et. al. v. Air France et. al. Court File No. 07-CV-336943 PD2, 164 Sutherland Shire Council v. Heyman, [1985] 157, C.L.R. 424 at 464, 34, 258

T Taylor v. Alidair Limited, [1976] IRLR 420, 77 The Mayagna (Sumo) Indigenous Community of Awas Tingini v. Nicaragua Inter American Court of Human rights, [2001] Judgment of 31 August 2001 (Ser. C) No. 79, para 163., 39 The Schooner Exchange v. McFaddon, 7 Cranch 116 (1812), 38 Times Mirror Co. v. Sisk, [1978] 593 P.2d 924 (Ct. App. 1978), 122 Ariz. 174, 215 Todd v. United States 384 F. Supp. 1284 at 1292, 50

U Union Trust Co v. Eastern Airlines, 211 F. 2d. 62, 80 United States v. Elkins, 885 F. 2d. 775 (11th Circ. 1989), 63 United States v. Reserve Mining, [1974] 380 F. Supp. 11 (D-Minn. 1974), 62 United States v. Vigderman, 194 F. 2d 977 affirmed in appeal in Vigderman v United States 175. F. Supp. 802 at 807, 79

xviii

Table of Cases

V Vaugban v. Menlove, [1837] 3 Bing. N.C. 468, 78

W Wbiteford v. Hunter, [1950] W. N. 533, 78 Wells v. Cooper, [1958] 2. Q.B. 265., 78 Whitehouse v. Jordan, [1981] 1 All E.R. 267, 141 White v. Edwards Chevrolet Co., [1947] 186 Va. 669, 43 S.E. 2d 870, 151 Winterboltom v. Wright, 10 M & W 109, 152 Eng. Rep. 402 (Exch. 842), 249 Worthington v. United States, [1994] 221 F. 2d. 62 (11th Cir. 1994) at 404, 51

Chapter 1

Territorial Sovereignty and Flight Information

The laws of air navigation are those that relate to the navigation of an aircraft. The area that these laws cover could range from laws, rules and regulations that enable States to determine the approach of an aircraft to their territory by establishing air defence identification zones and determining the regions that are responsible for dispensing flight information, to safety on the runways as affected by unstable approaches of aircraft as well as proper regulation of pilots. The starting point for laws of air navigation, from which individual States derive international principles that influence their own domestic laws and regulations is the Convention on International Civil Aviation signed at Chicago on 7 December 1944.1 In Article 1 of the Chicago Convention contracting States to the Convention recognize that every State has complete and exclusive sovereignty over the airspace above its territory, to be followed by the statement in Article 2 that for purposes of the Convention, the territory of a State is deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection and mandate of the State concerned.

1.1

State Sovereignty Defined

International law is founded on the concept of the State which in turn functions on the foundation of its sovereignty. A State, according to the Montevideo Convention2 of 1933 is defined as having the following characteristics: a permanent population, a defined territory, a government, and a capacity to enter into relations with other States.3 Sovereignty stands for the supremacy of the State as a legal

Convention on International Civil Aviation, signed at Chicago in 1944. See ICAO Doc 7300 Ninth Edition: 2006. Hereinafter referred to as the Chicago Convention. 2 Montevideo Convention on the Rights and Duties of States, signed at Montevideo, 26 December 1933. The Convention entered into force on 26 December 1934. See http://www.taiwandocuments.org/montevideo01.htm. 3 Id. Article 1.

R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_1, # Springer-Verlag Berlin Heidelberg 2012

1 Territorial Sovereignty and Flight Information

person which inter alia has the supreme power to make and administer laws. Sovereignty has two attributes: (a) Internal sovereignty, whereby a State exercises its exclusive right and competence to determine the character of its own institutions and to provide for their function. Internal sovereignty also includes the exclusive power of a State to enact its own internal laws and to ensure their respect; and (b) External sovereignty, whereby a State freely determines its relations with other States or entities without the restraint or control of another State. Justice Huber noted in the Island of Palmas case: Sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular State.4

Ian Brownlie, Professor of International Law at Oxford University cites the principle corollaries of the sovereignty and equality of States as: a jurisdiction, prima facie exclusive, over a territory and the permanent population living there; a duty of nonintervention in the area of exclusive jurisdiction of other States; and the dependence of obligations arising from customary law and treaties on the consent of the obligor.5 The doctrine of sovereignty was introduced to the Western world by the French philosopher Bodin. At a time when political attitudes were in transition from the dominance of the universal church to a universal legal order, Bodin introduced sovereignty as a supreme power over citizens and subjects that was not itself bound by laws. Bodin elaborated that every independent community had to consider that while acknowledging the authority of the law, a State was above the law if it wished to govern successfully. Other jurists who supported the theory of exclusive sovereignty were Hugo Grotius, who maintained that sovereign States were independent of foreign control, and Thomas Hobbes, who said that sovereignty was absolute and its misuse was unthinkable. John Locke attempted to compromise the absolute quality of sovereignty by opining that sovereignty was not absolute and unquestionable in that it was an exchange of social trust between the government and the people. Accordingly, there was an inarticulate premise that a breach of the social trust between the two parties would erode the concept of sovereignty. The important question is how is sovereignty determined? Both juristic and judicial opinion favor the view that sovereignty of airspace should be determined on the role played by the importance of subjacent airspace in its relation to land and sea. In other words, a symbolic possession of the airspace is necessary in order that States can claim sovereignty over their airspace. Therefore, the concept of sovereignty becomes compatible with the concept of ownership of property with possession by the owner, to the exclusion of others. To determine sovereignty in airspace, three elements would have to be resolved: the use of airspace; the nature of its possession; and the nature of its control to the exclusion of others.

2RIAA, at pp. 829, 838 (1928). Brownlie (1990b) at 287.

1.1

State Sovereignty Defined

The use of airspace is inextricably linked to the social needs that the airspace in question would subserve. Roscoe Pound envisaged that one of the fundamental bases for the control and use of property was its sociological importance. There is no difficulty in establishing a nexus between the sociological value of territorial land and sea and the protection offered to them by the subjacent air space of a country. Weber and Erlich both contended that the law is not a formal set of rules but a prime method of establishing order in society and accordingly required a person merely to show incontrovertible reason for the need to possess property. The final element—the nature of control of airspace—can be subsumed in modern juristic thought; that the modern interpretation of the concept of sovereignty is not the ability to make war or to exploit others, but to legislate over a given State or community. Perhaps the most convincing justification for the acceptance of sovereignty in airspace as the fundamental legal norm in air law is seen in Hans Kelsen’s pure theory of the law. Kelsen considered that all international laws derived their basis from a grundnorm or a basic legal postulate derived purely from law and not from morality. This basic norm was international custom. In this context, the philosophy of air law is founded on the concept of sovereignty in airspace and would sustain its credibility through this customary concept. The basic idea of sovereignty is then taken to its final conclusion and ultimate justification by Pound when he states that: “Men must be able to assume in civilized society that they may control, for purposes beneficial to themselves, what they have created by their own labor and what they have acquired under existing social and economic order. This is a final postulate of civilized society”. By the end of the nineteenth century, the private law concept of absolute ownership of airspace over land was antiquated. The beginning of the twentieth century saw the emergence of States’ sovereignty in airspace. The impetus for public international law to take over the issue of rights over airspace was given by the August 1904 aerial incident where Russian guards shot down the German balloon Tschudi when it was flying outside Russian territory and two unrelated but similar incidents that occurred in 1908 and 1910 respectively. The French Government hastened to call a conference of European powers in 1910. For the first time, participating States at this conference recognized airspace as belonging to individual States. Sovereignty in international law is the right to exercise the functions of a State to the exclusion of all other States in regard to a certain area of the world. In international aviation the concept of sovereignty is the fundamental postulate upon which other norms and virtually all air law is based. Post world war II attitudes towards the concept of sovereignty in airspace and the philosophy of air law range between the unlimited public law right of a State to exercise sovereignty over its airspace and the idea of free movement of air traffic. Professor O.J. Lissitzyn analyses the concept of sovereignty in its modern development as having three basic principles: that each State has exclusive sovereignty over its airspace; each State has complete discretion as to the admission of any aircraft into its airspace; and, that airspace over the high seas and other areas not subject to a State’s jurisdiction is res nullius and is free to the aircraft of all States. A more modern view is that which is taken by Brownlie (cited above) who, in his book Principles of Public International Law states that the term sovereignty is

1 Territorial Sovereignty and Flight Information

synonymous with independence. Article 2.4 of the United Nations Charter exhorts all members of the United Nations to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. In keeping with this fundamental premise, the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States emphasized that no state has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State. The Declaration went on to say that consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or its political, economic and cultural elements, are condemned. This principle was reaffirmed in the 1970 Declaration on Principles of International Law contained in United Nations General Assembly Resolution 2625. The principle of non-intervention enunciated in the Declaration can be seen in a much earlier pronouncement, made by the International Court of Justice in the Corfu Channel Case where the Court, referring to a claim by the British Government that it acted in accordance with the right of intervention in mine-sweeping the Channel, said â&#x20AC;&#x153;the alleged right of intervention was the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot. . .find a place in international lawâ&#x20AC;?. The principle of non-intervention is part of international law and is based on the recognition of the territorial sovereignty and integrity of States. Intervention is not permitted at international law if such adversely affects the free choice of States made by virtue of State sovereignty. Intervention becomes unacceptable when it restricts free choice of a State. The above notwithstanding, it is incontrovertible that sovereignty is no longer an absolute concept that would shield States against any internal acts of aggression or irrationality against its citizens. Sovereignty can therefore no longer be accepted in the international for a as seen an absolute protection against interference. It is no longer an absolute right but a charge of responsibility on a State where it e is accountable to both domestic and external constituencies. A Brookings Institute study has recently revealed that in internal conflicts in Africa, sovereign states have often failed to take responsibility for their own citizensâ&#x20AC;&#x2122; welfare and for the humanitarian consequences of conflict, leaving the victims with no assistance. Therefore, what is needed is a delicate balance between respect for State sovereignty and protection of the citizenry against arbitrary and capricious acts of States. From an aviation perspective, the first official instance of sovereignty of airspace under Article 1 of the Chicago Convention being recognized at the International Civil Aviation Organization (ICAO)6 was at its 21st Assembly in held Montreal 6

The International Civil Aviation Organization is the United Nations specialized agency dealing with international civil aviation. ICAO was established by the Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944. Fifty two States signed the Chicago Convention on 7 December 1944. The Convention came into force on 4 April 1947, on the thirtieth day after deposit with the Government of the United States. Article 43 of the

1.1

State Sovereignty Defined

from 24 September to 15 October 1974 where the Assembly adopted Resolution A21-7 (the Airport of Jerusalem) where the Assembly recognized that Jerusalem airport lay in the Arab occupied territories and was registered under the jurisdiction of Jordan in ICAO’s Middle East Air Navigation Plan. The Assembly, in the context of Article 1 of the Chicago Convention, resolved that all Contracting States to the Convention should take all necessary measures to refrain from operating, or giving permission to any airline to operate any air service, whether scheduled or non scheduled, to or from Jerusalem airport, unless prior permission is granted pursuant to the relevant articles7 of the Chicago Convention. At the same session, the Assembly adopted Resolution A21-21 (Consolidated Statement of Continuing Policies and Associated Practices Related Specifically to Air Navigation) Appendix N of which declared that any contracting State which delegated to another State the Responsibility for providing air traffic services over its territory to another State by mutual agreement did so without delegation of its sovereignty.

Convention states that an Organization to be named the International Civil Aviation Organization is formed by the Convention. ICAO is made up of an Assembly, which is the sovereign body of the Organization composed of the entirety of ICAO member (Contracting) States, and a Council which elects its own president. The Assembly, which meets at least once every three years, is convened by the Council. The Council is a permanent organ responsible to the Assembly, composed of 36 Contracting States. These 36 Contracting States are selected for representation in the Council in three categories: States of chief importance to air transport; States not otherwise included which make the largest contribution to the provision of facilities for international air navigation; and States not otherwise included whose designation will insure that all the major geographic areas of the world are represented on the Council. Article 47 of the Chicago Convention provides that ICAO enjoys “such legal capacity as may be necessary for the performance of its functions” and goes on to say that “full juridical personality shall be granted to the Organization wherever compatible with the constitution of the laws of the State concerned.” The Council has two main subordinate governing bodies, the Air Navigation Commission and the Air Transport Committee. The Air Navigation Commission is serviced by The Air Navigation Bureau and is responsible for the examination, coordination and planning of all of ICAO’s work in the air navigation field. This includes the development and modification of SARPS)contained in the ICAO Annexes (all except Annexes 9 and 17), subject to the final adoption by the ICAO Council. At the time of writing, ICAO had 191 member States. 7 Articles 1, 5 and 6. Article 1 has already been discussed. According to Article 5 each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing. Each contracting State nevertheless reserves the right, for reasons of safety of flight, to require aircraft desiring to proceed over regions which are inaccessible or without adequate air navigation facilities to follow prescribed routes, or to obtain special permission for such flights. Article 6 states that no scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.

1.2

1 Territorial Sovereignty and Flight Information

Civil and Military Aviation

It must be noted that the laws of air navigation as embodied in the Chicago Convention and derive their genesis therefrom are applicable only to civil aircraft and not to State aircraft. Article 3 of the Convention simply states that aircraft used in military customs and police services shall be deemed to be State aircraft. There are no clear international rules, generally accepted, whether conventional or customary, as to what constitutes state aircraft and what constitutes civil aircraft. Military aircraft, more than any other kind of aircraft including customs and police aircraft, personifies the public or sovereign power of a State, and several attempts have been made to arrive at an internationally acceptable definition thereof. A simplistic but apt definition of civil aviation is â&#x20AC;&#x153;aviation activities carried out by civil aircraftâ&#x20AC;?. A civil aircraft has been defined as any aircraft, excluding government and military aircraft, used for the carriage of passengers, baggage, cargo and mail. However, civil aviation comprises in general all aviation activities other than government and military air services which can be divided into three main categories: commercial air transport provided to the public by scheduled or non scheduled carriers; private flying for business or pleasure; and a wide range of specialized services commonly called aerial work, such as agriculture, construction, photography, surveying, observation and patrol, search and rescue, aerial advertisement et al. By the same token, military aviation must be aviation activities carried out by military aircraft. Military aircraft have been defined as aircraft that are designed or modified for highly specialized use by the armed services of a nation. Military aviation therefore can be identified as the use of aircraft and other flying machines for the purposes of conducting or enabling warfare, which could include the carriage of military personnel and cargo used in military activities such as the logistical supply to forces stationed along a front. Usually these aircraft include bombers, fighters, fighter bombers and reconnaissance and unmanned attack aircraft such as drones. These varied types of aircraft allow for the completion of a wide variety of objectives. Arguably, the most fundamental difference between the operation of civil and military aircraft lies in the fact that, although they are expected to share the same skies, the procedures by which they do this vary greatly. Civil aircraft depend entirely on predetermined flight paths and code of commercial conduct which vary depending on aircraft type and types of traffic carried, whereas military aircraft operate in line with the exigency of a situation and are not necessarily always guided by predetermined flight paths. This dichotomy led to the adoption, at the 10th Session of the ICAO Assembly (Caracas, 19 June to 16 July 1956) of Resolution A10-19 which, while recognizing that the skies (airspace) as well as many other facilities and services were commonly shared between civil and military aviation, focused on ICAOâ&#x20AC;&#x2122;s mandate to promote the safety of flight. The distinction between civil and military aviation cannot be made without addressing the purpose for which an aircraft is employed. This is particularly significant in instances where civil aircraft are used for military purposes. The fact that

1.2

Civil and Military Aviation

military strategists have come to expect support services from civil aviation is becoming more evident with the increasing need for military operations both in war situations and in instances of human tragedy brought about by civil conflict or natural disasters. There have been many such instances, ranging from the use by British military of chartered commercial cargo aircraft in the Falklands in 1982 to earlier practices of India and Pakistan in 1971 when both countries used civilian passenger aircraft for the transportation of their troops during the Indo-Pakistan war. The use of civil aircraft for military purposes and vice versa intrinsically brings to bear the issue of sharing of airspace between civil and military aircraft. Military aviation and civil aviation are intrinsically different from each other in their nature and functions. However, both operate in the same air traffic management environment and therefore use common airspace which needs to be stringently managed, not only for safety reasons but also for reasons of efficiency. While military aviation is essential for national security and defence and therefore is a legitimate and indispensable activity, civil air transport is not only necessary for global interaction between nations but it also makes a significant contribution to the global economy. These two equally important activities call for uncompromising cooperation between one another in the shared use of airspace and an enduring understanding of each otherâ&#x20AC;&#x2122;s needs. Military aviation not only includes the operation of conventional aircraft for military purposes but also involves the use of unmanned aircraft systems (UAS) and missile testing, all of which call for a close look at the use of airspace in the modern context. ICAO has issued guidelines on the coordination between military authorities and air traffic services (ATS) authorities which recognize in limine that coordination between the responsible military authorities and appropriate ATS authorities is essential to the safety of civil aircraft operations whenever activities potentially hazardous to such operations are planned and conducted by any military units. These guidelines go on to state that in the event that a sudden outbreak of armed hostilities or any other factors preclude this normal coordination process, appropriate State and ATS authorities, civil aircraft operators and pilots-in-command of aircraft must assess the situation based on the information available and plan their actions so as not to jeopardize safety. The Guidelines recommend that, in the event that a military unit observes that a civil aircraft is entering, or is about to enter, a designated prohibited, restricted or danger area or any other area of activity which constitutes potential hazards, a warning to the aircraft should be issued through the responsible ATS unit. The warning should include advice on the change of heading required to leave, or circumvent, the area. If the military unit is unable to contact the responsible ATS unit immediately and the situation is deemed to be a genuine emergency, an appropriate warning to the aircraft may be transmitted on the Very High Frequency (VHF) emergency channel 121.5 MHz. If the identity of the aircraft is not known, it is important that the warning include the Special Service Request (SSR) code, if observed, and describe the position of the aircraft in a form meaningful to the pilot, e.g. by reference to an ATS route and/or the direction and distance from an airport or an aeronautical radio navigation aid, an established waypoint or reporting point. In the case where an unauthorized aircraft is observed visually to be flying in, or

1 Territorial Sovereignty and Flight Information

about to enter a prohibited, restricted or danger area, the following visual signal is prescribed by the International Standards in Annex 2 to the Chicago Conventionâ&#x20AC;&#x201D; Rules of the Air, Appendix 1 to indicate that the aircraft is to take such remedial action as is necessary. The Guidelines caution that the importance of co-ordinating with the responsible ATS unit(s), whenever possible, the issuance of any warnings and advice to civil aircraft regarding changes of flight path should be emphasized in any briefings or instructions given by military authorities to their units, since uncoordinated warnings and associated navigational advice, when followed, may result in a potential risk of collision with other aircraft in the area. The objective of the co-ordination between the military authorities planning activities potentially hazardous to civil aircraft and the responsible ATS authorities is to reach agreement on the best arrangements which will avoid hazards to civil aircraft and minimize interference with the normal operations of civil aircraft. Ideally, this means the selection of locations outside promulgated ATS routes and controlled airspace for the conduct of the potentially hazardous activities. If the selection of such locations is not possible due to the nature and scope of the planned activities, temporary restrictions imposed on civil air traffic should be kept to a minimum through close co-ordination between the military units and the ATS unit. The ICAO Assembly, at its 14th Assembly held in Rome from 21 August to 15 September 1962 adopted Assembly Resolution A14-25 (Coordination of Civil and Military Aircraft) which directed the Council to develop guidance material for the joint civil and military use of airspace, taking into account the various policies, practices and means already employed by States to promote the satisfactory coordination or integration of their civil and military air traffic services. Assembly Resolution A 21â&#x20AC;&#x201C;21 in 1974 in Appendix O, while recognizing that airspace as well as many facilities and services should be used in common by civil aviation and military aviation, resolved that the common use of civil and military aviation of airspace and of certain facilities and services shall be arranged so as to ensure safety, regularity and efficiency of international civil air traffic, particularly in the context of air navigation over the high seas where the internal regulations of States should not compromise or adversely affect the regularity and efficiency of international air traffic. At its 37th Session held in Montreal from 28 September to 8 October 2010, the ICAO Assembly adopted Resolution A37-15 (Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation),8 Appendix O of which requires States to take appropriate action to coordinate with military authorities to implement a flexible and cooperative approach to airspace organization and management. It also reiterated the statement in Resolution A 21â&#x20AC;&#x201C;21 that regulations and procedures established by States to govern the operation of their State aircraft over the high seas shall ensure that these operations did not compromise the safety, regularity and efficiency of international civil air traffic and that to the extent possible such operations should comply with the Rules of the Air contained in Annex 2 to the Chicago Convention.

Assembly Resolutions in Force (as of 8 October 2010), Doc 9958 at II-2.

1.3

Flight Information Regions

Flight information regions (FIRs) are governed by the principles contained in Annex 11 to the Chicago Convention on Air Traffic Services. All aircraft fly in accordance with either instrument flight rules (IFR) or visual flight rules (VFR). Under IFR, the aircraft fly from one radio aid to the next or by reference to self-contained airborne navigation equipment from which the pilot can determine the aircraft’s position at all times. IFR flights are conducted through all but the severest of weather conditions, while aircraft flying under VFR must remain clear of cloud and operate in visibility conditions which will permit the pilot to see and avoid other aircraft. Chapter 3 specifies the types of service to be provided to these flights—for example, IFR flights are provided with air traffic control service when operating in controlled airspace. When operating in uncontrolled airspace, flight information service, which includes known traffic information, is provided and the pilot is responsible for arranging the flight to avoid other traffic. Control service is normally not provided to VFR flights, unless in specific areas, in which case VFR flights are separated from IFR flights but no separation service is provided between VFR flights, unless specifically required by the ATC authority. However, not all aircraft are provided with air traffic services. If an aircraft is operating entirely outside of controlled airspace in an area where a flight plan is not required, the flight may not even be known to air traffic services. Safety is the overriding concern of international civil aviation and air traffic management contributes substantially to safety in aviation.9 Annex 11 contains an important requirement for States to implement systematic and appropriate air traffic services (ATS) safety management programmes to ensure that safety is maintained in the provision of ATS within airspaces and at aerodromes. Safety management systems and programmes will serve as an important contribution toward ensuring safety in international civil aviation. Flight information service is provided to aircraft operating in controlled airspace and to others known to the air traffic services units. The information includes significant meteorological (SIGMET) information, changes in the serviceability of navigation aids and in the condition of aerodromes and associated facilities and any other information likely to affect safety. IFR flights receive, in addition, information on weather conditions at departure, destination and alternate aerodromes, collision hazards to aircraft operating outside of control areas and control zones and, for flight over water, available information on surface vessels. VFR flights also receive information on weather conditions which would make visual flight impractical. Annex 11 also contains specifications for operational flight information service (OFIS) broadcasts, including automated terminal information service (ATIS) broadcasts.

On a historical note, in October 1945, the Rules of the Air and Air Traffic Control (RAC) Division at its first session made recommendations for Standards, Practices and Procedures for Air Traffic Control. These were reviewed by the then Air Navigation Committee and approved by the Council on 25 February 1946. They were published as “Recommendations for Standards, Practices and Procedures — Air Traffic Control” in the second part of Doc 2010, published in February 1946.

1 Territorial Sovereignty and Flight Information

Annex 11 defines a flight information region as an airspace of defined dimensions within which flight information service and alerting service are provided. A flight information service is a service provided for the purpose of giving advice and information useful for the safe and efficient conduct of flights. A fundamental requirement is that Contracting States are to determine, in accordance with the provisions of Annex 11 and for the territories over which they have jurisdiction, those portions of the airspace and those aerodromes where air traffic services will be provided. They are then required to arrange for such services to be established and provided in accordance with the provisions of the Annex, except that, by mutual agreement, a State may delegate to another State the responsibility for establishing and providing air traffic services in flight information regions, control areas or control zones extending over the territories of the former.10 Standard 2.5.2.1 of the Annex stipulates that those portions of the airspace where it is determined that flight information service and alerting service will be provided shall be designated as flight information regions. Where designated within a flight information region, control areas and control zones shall form part of that flight information region.11 The Annex also requires that flight information centres be established to provide flight information service and alerting service within flight information regions, unless the responsibility of providing such services within a flight information region is assigned to an air traffic control unit having adequate facilities for the discharge of such responsibility.12 As soon as an air traffic services unit becomes aware of an unidentified aircraft in its area, it shall endeavour to establish the identity of the aircraft whenever this is necessary for the provision of air traffic services or required by the appropriate military authorities in accordance with locally agreed procedures. To this end, one of the steps an air traffic services unit would take would be to inquire of other air traffic services units within the flight information region about the flight and request their assistance in establishing two-way communication with the aircraft.13 While the Annex recommends that the delineation of airspace, wherein air traffic services are to be provided, should be related to the nature of the route structure and the need for efficient service rather than to national boundaries,14 It goes on to say that Flight information regions shall be delineated to cover the whole of the air route structure to be served by such regions.15 A flight information region includes all airspace within its lateral limits, except as limited by an upper flight information region.16 Where a flight information region is limited by an upper flight information region, the lower limit specified for the upper flight information region will constitute

Annex 11, Standard 2.1.1. Id. Standard 2.5.2.2.2. 12 Id. Standard 2.8.1. 13 Id. Standard 2.23.1.2. 14 Id. Recommendation 2.9.1. 15 Id. Standard 2.9.2.1. 16 Id. Standard 2.9.2.2. 11

1.4

The Air Defence Identification Zone

the upper vertical limit of the flight information region and shall coincide with a VFR cruising level of the tables in Appendix 3 to Annex 2.17 In terms of control of upper airspace there is a Recommendation in the Annex that where it is desirable to limit the number of flight information regions or control areas through which high flying aircraft would otherwise have to operate, a flight information region or control area, as appropriate, should be delineated to include the upper airspace within the lateral limits of a number of lower flight information regions or control areas.18

1.4

The Air Defence Identification Zone

Following the events of 11 September 2001, where civilian commercial aircraft were used as weapons of mass destruction. Air Defence Identification Zones (ADIZ) gained prominence as a tool with which a State could control and be prepared for aircraft approaching their territory. An Air Defence Identification Zone (ADIZ) is an area in airspace over land or water which may not be over the sovereign territory of a State in which ready identification, location and control of all aircraft is required in the interest of national security.19 ADIZ must not be confused with Flight Information Regions (FIRs) which are areas established for the facilitation of airspace and air traffic management. FIRs generally involve a subjacent State which has undertaken responsibility for providing air traffic control services.20 The main purpose of establishing an ADIZ is to properly identify all 17

In cases where an upper flight information region is established the procedures applicable therein need not be identical with those applicable in the underlying flight information region. 18 Recommendation 2.9.4. 19 A similar definition is found in the United States Federal Regulations. See 14 C.F.R. S. 99.3 (2009). The United States has four ADIZs: The Contiguous US ADIZ; Alaska ADIZ; Guam ADIZ; and Hawai ADIZ. In the United States, ADIZ applies only to commercial aircraft intending to enter United States airspace. The United States does not recognize the right of a coastal nation to apply its ADIZ procedures to foreign aircraft not intending to enter national airspace nor does the United States apply its ADIZ procedures to foreign aircraft not intending to enter U.S. airspace. Accordingly, U.S. military aircraft not intending to enter national airspace should not identify themselves or otherwise comply with ADIZ procedures established by other nations, unless the United States has specifically agreed to do so. See U.S. Navy’s Commander’s Handbook on the Law of Naval Operations. Also see Williams (2007) at 95–96. 20 States may delegate such responsibility to another State or States without abdicating their sovereignty. See Annex 11 to the Chicago Convention (Air Traffic Services) which provides that Flight information service is provided to aircraft operating in controlled airspace and to others known to the air traffic services units. The information includes significant meteorological (SIGMET) information, changes in the serviceability of navigation aids and in the condition of aerodromes and associated facilities and any other information likely to affect safety. Flights operated by Instrument Flight Rules (IFR) receive, in addition, information on weather conditions at departure, destination and alternate aerodromes, collision hazards to aircraft operating outside of control areas and control zones and, for flight over water, available information on surface vessels. Flights operated by Visual Flight Rules (VFR) receive information on weather conditions which

1 Territorial Sovereignty and Flight Information

approaching aircraft for security purposes so that they could, prior to entry into national airspace, satisfy certain local entry requirements.21 Although there is no overwhelming evidence, either from a scholastic or legislative perspective that lends legal legitimacy to the establishment of ADIZs, such a concept has never been challenged as being inconsistent with existing law.22 It has been argued that ADIZs came into prominence as a security tool in air navigation as a corollary to the events of 11 September 2001 where aircraft were used as weapons of mass destruction.23 Norway and the United Kingdom, India, Pakistan and Canada (CADIZ) are some countries which maintain ADIZs as well as the United States.24 If an analogy from maritime law and practice were to be applied to ADIZ, one could cite the United Nations Convention on the Law of the Sea (UNCLOS)25 which was signed by the Parties on December 10, 1982 and entered into force on November 16, 1994 after receiving 60 ratifications or accessions. UNCLOS divides the seas into zones over which States have varying degrees of rights and controls. The territorial sea, which is exclusively controlled by the State, is the first zone which extends 12 nautical miles from the coast or coastal baselines. The territorial sea is open to all vessels to enjoy the right of innocent passage. Beyond the territorial zone comes the contiguous zone of another 12 nautical miles followed by the exclusive economic zone of 200 nautical miles from the coastal baseline. In Article 76 titled “Definition of the Continental Shelf” UNCLOS provides that a States Party may extend its continental margin beyond the 200 nautical mile Exclusive Economic Zone (EEZ) if certain criteria are fulfilled. It is an incontrovertible principle of international maritime law that international navigation, however founded and whatever the right of innocent passage may be, often conflicts with a State’s desire to protect itself from activities that infringe its sovereignty, resource rights or more importantly, internal security. In such instances jurisdiction inevitably vests with the coastal State.26 Turning to ADIZs, it must be emphasized that a State can by no means arrogate to itself territorial sovereignty over an ADIZ ipso facto. Neither can a State interfere with a State’s exercise of legitimate rights of navigation over the high seas.27

would make visual flight impractical. Annex 11 also contains specifications for operational flight information service (OFIS) broadcasts, including automated terminal information service (ATIS) broadcasts. See Franklin (2007) 425 at 426. 21 See Petras (2010), pp. 1–78 at 62–63. 22 See McDougal et al. (1963), at 306–311 where the author suggests that if for security reasons States have certain claims on those who enter their sovereign territories, such claims may not be inconsistent with the principles of international law. 23 See Dutton (2009) 691–709 at 691. 24 Ibid. 25 Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea with Indexes and Annex, Final Act of the Third United Nations Conference on the Law of the Sea, United Nations: 1983. 26 See Posner and Sykes (2010) at 577. 27 In the United States context, see Restatement 3d, Foreign Relations Law, American Law Institute, at S. 521. The Restatement is persuasive law in the United States. See Cardozo (1924) at 9.

1.4

The Air Defence Identification Zone

This discussion does not go into the details of principles applicable to the various ADIZs now existing in various jurisdictions as this discussion has occurred elsewhere.28 However, it will examine the justification for the establishment of ADIZs as a means of ensuring an individual Stateâ&#x20AC;&#x2122;s security.

1.4.1

Justification for ADIZ

Generally under legal theory, each State is sovereign and equal29 and the term sovereignty may be used as a synonym for independence.30 However, in modern parlance, with the rapid growth in telecommunications and global competition and rivalries, no State can be entirely sovereign to the exclusion of others.31 In the ADIZ context, one must look at this issue from an aviation perspective. The Chicago Convention32 in Article 1 provides that the contracting States to the Convention recognize that every State has complete and exclusive sovereignty over the airspace above its territory. This provision is clear that the exercise of sovereignty by a State extends only to the airspace over its territory which is deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection and mandate of such State.33 Broadly speaking, ADIZ requirements are those that sovereign States require aircraft to comply with if they are to be permitted to enter sovereign airspace. Therefore ADIZs requirements act as conditions precedent that are calculated to ensure the protection of that State. The justification for ADIZ lies theoretically in the precautionary principle which asserts that the absence of empirical or scientific evidence should not preclude States from taking action to prevent a harm before it occurs.34 The evolution of the principle in international law, particularly in the field of environmental protection, began in the early 1980s35 although there is evidence that it was domestically popular in Europe in the 1930s in the German socio-legal tradition, centering on the concept of good household management. In German the concept is 28

Dutton, supra, note 23. Jennings and Watts (1992) at 52. Also Verzijl et al. (1968) at 90. 30 Brownlie (1990a) at 78. 31 Shaw (2003) at 120. 32 Supra, note 1. 33 Id. Article 2. 34 The precautionary principle (a moral and political concept) states that if an action or policy might cause severe or irreversible harm to the public, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action. The precautionary principle is most often applied in the context of the impact of human actions on the environment and human health where the consequences of actions may be unpredictable. 35 For a discussion of the emergence of the precautionary principle see Scott Lafranchi, Surveying the Precautionary Principleâ&#x20AC;&#x2122; Ongoing Global Development 32 B.C. ENVTL. AFF. L. REV. 2005 at 678. 29

1 Territorial Sovereignty and Flight Information

Vorsorgeprinzip, which translates into English as precaution principle. One commentator has added the thought provoking comment that in today’s political sphere, the precautionary principle enjoys a wide, unprecedented recognition36: The precautionary principle has become of such tremendous importance because in many cases, the scientific establishment of cause and effect is a difficult task sometimes approaching a fruitless investigation of infinite series of events.37

For the precautionary principle to apply, States must take measures according to their capabilities and they must be cost effective. Also, threats that are responded to must be both serious and irreversible. The precautionary principle is usually applied through a structured approach to the analysis of risk, which comprises three elements: risk assessment; risk management; and risk communication. The principle is particularly relevant to the management of risk. It is based on the presupposition that potentially dangerous effects from a particular process or phenomenon have been identified and that scientific evaluation does not guarantee that the risk could be averted. There are instances where a State can be defended for invoking preventive action based on the overarching principle of social contract by which the citizens charge the State with the responsibility of ensuring their security. Social Contract describes a broad class of philosophical theories whose subject is the implied agreements by which people form nations and maintain social order. Social contract theory provides the rationale behind the historically important notion that legitimate state authority must be derived from the consent of the governed, which, in other words means that a democratic State is precluded from enacting draconian laws against the civil liberty of citizens unless with the consent of the people. The first modern philosopher to articulate a detailed contract theory was Thomas Hobbes (1588–1679), who contended that people in a state of nature ceded their individual rights to create sovereignty, retained by the state, in return for their protection and a more functional society, so social contract evolves out of pragmatic self-interest. Hobbes named the state Leviathan, thus pointing to the artifice involved in the social contract. Alan Dershowitz, Professor of Law at Harvard University, asserts that “there is a desperate need in the world for a coherent and widely accepted jurisprudence of preemption and prevention, in the context of both self-defence and defense of others38”. Of course, here Dershowitz is referring to the international scene, but it would not be wrong to ascribe this principle to the national level when there is a dire need to control anarchy and insecurity of a nation. However, the bottom line for any preventive jurisprudence in the domestic context is the social contract theory where State authority must be derived from the people. There must be a preventive jurisprudence in place governing the acts of the executive and law enforcement officers. Preventive acts must never be ad hoc, or decided at the whim of the law enforcer.

Marr (2003) at 3. Id. At 6. 38 Preemption – A Sword that Cuts Both Ways, Norton: New York, 2006, at 11. 37

1.4

The Air Defence Identification Zone

Preemption39 and prevention40 are necessary elements in today’s political and military fabric, where legal legitimacy is ascribed to actions of States which act swiftly to avoid harm and protect its citizenry. This is often accomplished bypassing rigid dogma and entrenched rules based on the precautionary principle and on the maxim necessitat non habet legem (necessity has no law or rules). Another is Inter arma enim silent leges is a maxim attributed to Cicero, which translates as “In times of war, the laws are silent”. In the twenty-first century, this maxim, which was purported to address the growing mob violence and thuggery of Cicero’s time, has taken on a different and a more complex dimension, extending from the idealistic synergy between the executive and the judiciary in instances of civil strife, to the overall power, called “prerogative” or “discretion” of the sovereign, to act for the public good and the role of the judiciary as the guardian of the rule of law. The enduring conflict between executive power and the rule of law is at the heart of this maxim. In modern usage it has become a watchword for the erosion of civil liberties during internal and external strife. The implication of Cicero’s aphorism is that freedoms, such as the right of free passage through a territory of a State, are subservient to a nation’s self-defense from enemies within or without. The “state of exception” or “abnormal times” is considered by some political scientists to call for legal justification for a State to be uncontrolled.41 This theory justifies the sovereign, as guardian of the Constitution, in its extra judicial response to all exceptions to dangers within the political and legal spectrum, on the basis of the sovereign’s exclusive capability of identifying the enemy and the threat it poses to the State. However, in common law States, this extremist view is blended harmoniously with the essential philosophy of the Rule of Law, which is the foundation of civil liberty and order, and the underlying constitutional principle requiring government to be conducted according to law, thus making all public officers answerable for their acts in the ordinary courts. Common law jurisdictions such as the United States, Canada and the United Kingdom take pride in their long tradition of parliamentary democracy which would effectively preclude arbitrary acts of the Executive in curbing civil liberties guaranteed by the law. This principle is embodied in the dissenting judgment of Lord Atkin in Liversidge v. Anderson, to which courts pay frequent lip service, that: amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.42

Another issue is the judicial interpretation of the extent to which a State is justified in suspending an existing legal order to protect its citizens. Against the backdrop of the 39

Preemption is when an act, which is potentially harmful to a State and is imminent, is effectively precluded by military or other action. 40 Prevention is when an act, which is potentially harmful to a State and is inevitable, is effectively precluded by military or other action. 41 Schmitt (1988). 42 Liversidge v. Anderson [1942] A.C. 206 at 244.

1 Territorial Sovereignty and Flight Information

Bush Doctrine43 which followed the events of 11 September 2001 and the justification of the invasion of Afghanistan, in spite of Article 2.4 of the Charter of the United Nations.44 Of special relevance in this regard is the judicial examination by the United States Supreme Court of the imprisonment of an Arab-American immigrant, 3 months after the terrorist attacks of 9/11. Justice Scalia stated: Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.45

This statement, which strongly supports the Cicero maxim, reinforces the legal legitimacy of a statement made earlier by Chief Justice Rehnquist who opined: It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the governmentâ&#x20AC;&#x2122;s claims of necessity as a basis for curtailing civil liberty. . .the laws will thus not be silent in time of war, but they will speak with a somewhat different voice.46

Modern perspectives of the sovereign prerogative and conflicting principles of juridification of war bring to bear the important distinction between the ultimate question as to whether the judiciary is able in every circumstance, to impose the rule of law or whether, under the state of exception and the principles of guardianship, a sovereign can suspend the legal order in order to protect its citizens. This dilemma was well expounded by Lord Shaw in 1917 when His Lordship stated: The basic danger is found in an especial degree whenever the law is not same for all, but the selection of the victim is left to the plenary discretion whether of a tyrant, a committee, a bureaucracy or any other depository of despotic power. . .it is a poison to the commonwealth.47

1.4.2

Comment on ADIZ

The attacks of 11 September 2001 inevitably highlighted the strategic position of civil aviation both as an industry vulnerable to attack and as an integral tool in ensuring 43

The Bush Doctrine is attributed to the modern notion of preventive war and the justification that the United States had the right to secure itself against countries that harbor or give aid to terrorist groups, which was used to justify the 2001 invasion of Afghanistan. 44 Article 2.4 provides: â&#x20AC;&#x153;All members of the United Nations must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.â&#x20AC;? See Charter of the United Nations and Statute of the International Court of Justice, United Nations: New York. 45 Hamdi v. Rumsfeld, 542 US 5047 (2004). 46 Rehnquist (1998) at 5. 47 R. v. Halliday, [1917] A.C. at 292.

1.4

The Air Defence Identification Zone

peace and security in the world. The modernist view of civil aviation, as it prevailed when the Chicago Convention48 was signed at Chicago on 7 December 1944, was centred on State sovereignty and the widely accepted post-war view that the 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 general security.49 This essentially modernist philosophy focussed on the importance of the State as the ultimate sovereign authority which can overrule considerations of international community welfare if they clashed with the domestic interests of the State. It gave way, in the 1960s and 1970s to a post-modernist era of recognition of the individual as a global citizen whose interests at public international law were considered paramount over considerations of individual State interests. The 11 September 2001 events led to a new era that now calls for a neo-post modernist approach which admits of social elements and corporate interests being involved with States in an overall effort at securing world peace and security. The role of civil aviation in this process is critical, since it is an integral element of commercial and social interactivity and a tool that could be used by the world community to forge closer interactivity between the people of the world. The requirements of ADIZ serve well the defence of a sovereign State against attacks and accord with neo post modernist views that aviation should first serve the safety and security of a society and that any damage posed by the misuse of aviation should be effectively precluded. The real significance of the Convention, particularly as a tool for ensuring political will of individual States, lies in the fundamental philosophy contained in its Preamble. In its Preamble, the Convention enunciates a message of peace through aviation. It makes mention of the future development of international civil aviation being able to help preserve friendship and understanding among the nations of the world, while its abuse (i.e. abuse of future development of international civil aviation) can become a threat to “the general security”. By “general security” the Chicago Conference meant the prevention of threats to peace. These words have been interpreted in the widest possible sense by the Assembly of ICAO at its various sessions to cover instances of social injustice such as racial discrimination as well as threats to commercial expediency achieved through civil aviation. The 15th session of the ICAO Assembly adopted Resolution A15-7 (Condemnation of the Policies of Apartheid and Racial Discrimination of South Africa) where the Resolution urged South Africa to comply with the aims and objectives of the Chicago Convention, on the basis that the apartheid policies constitute a permanent source of conflict between the nations and peoples of the world and that the policies of apartheid and racial discrimination are a flagrant violation of the principles enshrined in the Preamble to the Chicago Convention.50 48

Supra, note 1. Preamble to the Chicago Convention, Id. 50 See Repertory Guide to the Convention on International Civil Aviation, Second Edition, 1977, Preamble – 1. This subject was also addressed at a later session of the Assembly when the Assembly, at its 18th Session adopted Resolution A18-4 (Measures to be taken in pursuance of Resolutions 2555 and 2704 of the United Nations General Assembly in Relation to South Africa). 49

1 Territorial Sovereignty and Flight Information

The Preamble was also quoted in Resolution A17-1 (Declaration by the Assembly) which requested concerted action on the part of States towards suppressing all acts which jeopardize safety and orderly development of international civil aviation. In Resolution A20-2 (Acts of Unlawful Interference with Civil Aviation) the Assembly reiterated its confidence that the development of international civil aviation can be an effective tool in bringing about friendship and understanding among the peoples of the world. As was stated at the outset of this discussion, there has been no recorded instance of protest against the establishment of ADIZs. This might well be because the message of aviation resonates peace and security of society at whatever cost. This is as it should be.

References Ian Brownlie, Principles of Public International Law, Fourth Edition, Oxford University Press: 1990, at 78 Ian Brownlie, Principles of Public International Law, Fourth Edition, Clarendon Press, Oxford: 1990 at 287 Benjamin N. Cardozo, The Growth of the Law, New Haven: Yale University Press: 1924 at 9 Peter A. Dutton, Caelium Liberum: Air Defence Identification Zones Outside Sovereign Airspace, American Journal of International Law, Vol. 103, No. 4 October 2009 691–709 at 691 Mark Franklin, Sovereignty and Functional Airspace Blocks, Air and Space Law, Vol. 32, 2007 425 at 426 Oppenheim’s International Law, (R.Y. Jennings and A.D. Watts ed.), 9th edition, Vol. 1 London: 1992, at 52 Simon Marr, The Precautionary Principle in the Law of the Sea, Modern Decision Making in International Law, 2003 at 3 Myers S. McDougal et. al. Law and Public Order in Outer Space, New Haven and London: Yale University Press (1963), at 306–311 Christopher M. Petras, The Law of Air Mobility- The International Legal Principles Behind the U.S. Mobility Air Forces’ Mission, The Air Force Law Review, Volume 66, 2010, pp. 1–78 at 62–63 Eric A. Posner and Alan O. Sykes, Economic Foundation of the Law of the Sea, American Journal of International Law, Vol. 104 October 2010, No. 4, 569 at 577 William H. Rehnquist, All the Laws But One–Civil Liberties in Wartime. New York: Alfred A. Knopf, 1998, at 5 Carl Schmitt, Political Theology: Four Chapters on the Theory of Sovereignty, George Schwab trans. MIT Press: 1988, 5 Malcolm N. Shaw, International Law, Fifth Edition, Cambridge University Press: 2003, at 120 J.W. Verzijl, International Law in Historical Perspective, Vol. 1, Leiden: 1968 at 90 Andrew Williams, The Interception of Civil Aircraft Over the High Seas in the Global War on Terror, The Air Force Law Review, Vol. 73, 2007 73, at 95–96

Chapter 2

The Provision of Air Traffic Services

ICAO Assembly Resolution A37-15,1 which was cited in the previous chapter, in Appendix W2 recognizes that in accordance with Annex 11 to the Chicago Convention, ICAO member States are required to arrange for air traffic services to be provided in airspaces and at aerodromes for which it has been determined that such services would be required. The Resolution also notes that Annex 11 requires member States to ensure that safety management programmes are established and that cooperative efforts between such States could lead to more efficient air traffic management. Accordingly the Resolution resolves that in implementing air traffic services, States ensure that the services being provided meet established requirements for safety, regularity and efficiency of international civil aviation and, taking into account the need for cost effective introduction and operation of CNS/ATM systems, States give consideration to cooperative efforts for introducing more efficient airspace management, in particular, in the upper airspace. The Resolution in Appendix W also calls upon States to ensure that safety management programmes are introduced by the relevant air traffic services provider in all airspaces and at all aerodromes where air traffic services are provided.

2.1

The CNS/ATM System

The number of aircraft movements around the world is increasing consistently, in line with the sustained growth in passenger and cargo traffic, as well as business and general aviation. This is particularly true in densely-populated areas where congestion has become a major safety, operational and environmental concern. The issue was addressed head on at the very successful Eleventh Air Navigation Conference (AN-Conf/11) held at ICAO in 2003. The Conference endorsed the Global Air Traffic Management Operational Concept, the first truly common vision formulated jointly by all stakeholders of the world aviation community for an 1

Supra, note 8 in Chap. 1. Id. II-23.

R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_2, # Springer-Verlag Berlin Heidelberg 2012

2 The Provision of Air Traffic Services

integrated and globally harmonized air traffic management (ATM) system, with a planning horizon up to and beyond the year 2025. In essence, it was thought of as an interoperable global ATM system that would apply to all users during all phases of flight and meet agreed levels of safety. . .provide for optimum economic operations. . .be environmentally sustainable and meet national security requirements. The Operational Concept outlines a total system performance framework to achieve defined requirements. Since then, a number of initiatives and decisions have reaffirmed the role of ICAO as the key driving force in the implementation of harmonized air traffic management systems and performance-based efficiency improvements. For its part, the aviation community must respond accordingly when designing, planning, implementing and operating the global air navigation system in order to respond to expectations linked to safety, efficiency, access and equity, capacity, global interoperability, cost-effectiveness, security and protection of the environment. One of the major innovations was the approval by the ICAO Council in November 2006 of the revised Global Air Navigation Plan. Originally titled Global Air Navigation Plan for CNS/ATM Systems, the revised Plan is based on recommendations of AN/Conf/11 and two related industry roadmaps created subsequent to the Conference. In essence, it is part of an integrated set of tools and guidance material, which includes the Global ATM Operational Concept, ATM Systems Requirements and Performance-Based Transition Guidelines that will guide the implementation of CNS/ATM systems and usher in the global ATM system envisioned in the operational concept. In the migration from a technology-driven to a performance-based air navigation system, the emphasis on results is directly related the growing reality of privatized air navigation services and the ensuing pressure for greater accountability. ICAO has integrated this work into its new Business Plan, which stresses the implementation of harmonized air traffic management systems and performancebased efficiency improvements, as well as increased functional integration between ICAO Headquarters and Regional Offices. Through innovative methods, the Global Plan will facilitate planning and implementation of important operational developments that have taken place in recent years, particularly with regards to aircraft capabilities. It will also ensure that opportunities that have emerged as technologies have matured, as research and trials have been successfully concluded, and as procedures and specifications have been finalized, are fully exploited. Associated guidance and interactive planning tools for States, regional planning groups and air navigation services providers will be used to establish performance objectives and implementation time lines. The Global Plan will thus become the baseline for measurable achievements as the global ATM system continues to evolve from systems-based to performance-based. States and regions will be able to select initiatives tailored to their particular needs in order to meet agreed-upon performance objectives. ICAO is assisting States to enhance their knowledge and comprehension of technical, organizational, economic and safety issues related to the implementation of a performance-based air navigation system. There is recognition of the essential

2.2

Principles of State Liability for Acts of Autonomous Air Traffic Services Providers

role of the Organization in advancing work in the operational, technical, safety and economic areas, as well as securing global interoperability between major air navigation initiatives. Another dimension of the role of ICAO will be to develop and promote minimum performance reporting requirements for ANS providers, develop a methodology for measuring performance expectations, and develop guidance material on facilitating collaborative decision-making. This will also entail accelerating work on performance-based navigation (PBN). PBN provides for more direct and precise flight paths, increased safety, reduced fuel burn, more efficient traffic flows and reduced ATC communications. This includes the implementation of area navigation (RNAV) and required navigation performance (RNP) in accordance with the PBN concept, integration of the ICAO Global Air Navigation Plan in performance-based transition planning, collaboration on establishing performance indicators, use of ICAO-defined key performance areas for performance management, and application of the ICAO Global Aviation Safety Plan (GASP) as a basis for meeting safety performance objectives. Ultimately, the successful implementation of a global air navigation system depends on cooperation among all members of the civil aviation community and involves greater integration of ICAO regional offices and headquarters. ICAO is committed to meeting the operational expectations of all stakeholders. The task ahead is nothing short of ensuring the viability of the future air navigation system and its continued contribution to global economic development in a safe, secure and efficient manner.

2.2

Principles of State Liability for Acts of Autonomous Air Traffic Services Providers

The word â&#x20AC;&#x153;autonomousâ&#x20AC;? is used throughout this chapter to identify air navigation services which, although commercialized, have not moved out of the jurisdiction of government. An autonomous air navigation provider is a self financing body which has greater freedom from governmental control, particularly in the conduct of its financial affairs, infrastructure funding and income streams. It is also subject to business taxes and is usually geared to achieve a return on its investment. However, an autonomous air navigation service provider should remain in the regulatory control of government, based on the fundamental premise that a facility originally provided by the government of a State, such as air traffic management, does not completely detach itself from the purview of responsibility that the government continues to hold over it, even if it were to be privatized. As such, a government cannot completely abdicate its responsibility for the provision of air navigation services, particularly since international treaty requires that governments retain such responsibility.

2 The Provision of Air Traffic Services

The Chicago Convention which came into effect on 7 April 1947, contains certain provisions demarcating the responsibility of Contracting States of ICAO. Article 28 of the Convention obligates contracting States to provide in their territories airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices established from time to time pursuant to the Convention.3 This fundamental concept of State responsibility has to be viewed from the perspective of modern exigencies of the supply and demand curve of air traffic services where such services are currently being provided both regionally and on a flight information region (FIR) basis. The need for a shift of focus of the modern air navigational system is determined by two factors: the growing air traffic demand and the need for enhanced and more efficient air traffic services; and the transition into a seamless air traffic management system calculated to obviate inconsistencies caused by boundaries.4 The goals of a global seamless air traffic management system are: to provide greater flexibility and efficiency by accommodating user-preferred flight profiles; to improve existing levels of safety; to accommodate the full range of aircraft types and airborne capabilities; to improve the provision of information to users, including weather conditions, the traffic situation and the availability of facilities; to organize air space in accordance with air traffic management (ATM) provisions and procedures; to increase user involvement in ATM decision making, including air-ground computer dialogue for flight plan negotiation; to create, to the extent possible, a single continuum of airspace where boundaries are transparent to users; and to increase capacity to meet future traffic demand.5

2.3

The Provision of Air Navigation Services

Article 12 of the Chicago Convention unambiguously states that over the high seas, the rules in force shall be those under the Convention and each Contracting State undertakes to insure the prosecution of all persons violating the regulations applicable. This peremptory principle,6 of adherence by States and aircraft bearing their nationality to any Standards and Recommended Practices (SARPs) adopted in regard to the high seas, effectively precludes any possible reliance by States on Article 38 of the Convention which allows States to deviate from SARPs in general. In other words, Annex 2 on Rules of the Air, which contains provisions relating to the operation of aircraft over the high seas, is sacrosanct and inviolable. The first 3

Chicago Convention, supra, note 1 in Chap. 1, Article 28a). Sudharshan (2003) at 2. 5 Global Air Navigation Plan for CNS/ATM Systems, Second Edition: 2002, ICAO Doc 9750, AN/ 963, p. 1-4-3 at paragraph 4.12. 6 Bin Cheng confirms that over the high seas there is absolutely no option for States to deviate from rules established under the Chicago Convention for the manoeuvre and operations of aircraft. See Cheng (1962) at 148. 4

2.3

The Provision of Air Navigation Services

legal issue that would emerge from this clear principle is the question of applicability of Annexes (other than Annex 2) to the high seas and whether their provisions, if directly related to the principles of manoeuvre and navigation of aircraft over the high seas, would be binding with no flexibility offered by Article 38 of the Convention. Kaiser offers the opinion: Over the high seas, the rules of the air have binding effect under Article 12, of the Chicago Convention. It should be clarified that rules of the air have a broader meaning than Annex 2 and encompass the Standards and Recommended Practices of all other Annexes as far as their application makes sense over the high seas.7

Kaiser is of course referring mainly to Annexes 10 and 11 to the Chicago Convention relating to air traffic services and air traffic management, while at the same time drawing the example of Annex 16 (on environmental) protection being applicable in a future date if extended beyond noise and engine emissions to the high seas under Article 12 of the Chicago Convention.8 This argument, which would ascribe to the ICAO Council wider control over larger spans of the worldâ&#x20AC;&#x2122;s air space, would be acceptable only if provisions of other Annexes (other than those of Annex 2) would directly have a bearing on the manoeuvre and navigation of aircraft over the high seas, as exclusively provided for by Article 12 of the Chicago Convention. The ICAO Council, in adopting Annex 2 in April 1948 and subsequently in November 1951 when Amendment 1 to the Annex was adopted, resolved that the Annex constitutes rules relating to the flight and manoeuvre of aircraft within the meaning of Article 12 of the Convention. Therefore, the Council explicitly recognized that the rules in the Annex applied to the manoeuvre and operation of aircraft without exception. Annex 2, in its Foreword, states that the Standards in the Annex, together with the Standards and Recommended Practices of Annex 11, govern the application of the Procedures for Air Navigation Services Rules of the Air and Air Traffic Services, and the Regional Supplementary Procedures. The Regional Supplementary Procedures are subsidiary procedures of regional applicability. It is clear that by this introduction, there is established a distinct disparity between Annex 2 and Annex 11 where the provisions of the former remain unquestionably mandatory, and the provisions of the latter remain subject to Article 38 of the Chicago Convention and capable of being deviated from. However, it is clear that the purpose of Annex 11 is to ensure that flying on international routes is carried out under uniform conditions designed to improve the safety and efficiency of air operation and, therefore, provisions relating to air traffic control services, flight information services, and alerting services of Annex 11 when linked to the

Kaiser (1995) 447 at 455. Bin Cheng states that contracting States are expected to be able to exercise control over all that takes place within their territories, but outside their respective territories only over aircraft bearing their nationality. Bin Cheng, supra, note 6, at 110 in this chapter. 8 Ibid.

2 The Provision of Air Traffic Services

provisions of Annex 2, have a coercive effect that may in certain circumstances, transcend the parameters set in Article 38 of the Convention. The second issue in determining the legal status of rules of the air over the high seas in relation to sovereignty is the element of control exercised by a State over aircraft operations over the high seas. Article 2.1.2 of Annex 2 provides that a Contracting State may deem to have accepted (unless ICAO is otherwise advised) that it provides air traffic services through an appropriate ATS Authority as designated to be responsible for providing air traffic services over parts of the high seas. An appropriate ATS Authority is defined in the foreword of the Annex as the relevant authority designated by the State responsible for providing air traffic services in the air space concerned. A contracting party accepts an appropriate ATS authority pursuant to a regional air navigation agreement, which is an agreement approved by the Council of ICAO usually based on the outcome of the findings of Regional Air Navigation Meetings. It is somewhat disconcerting that neither the legal status of the regional air navigation plan or agreement, nor its definition is clear. In November 1996, at the 38th meeting of the European Air Navigation Planning Group, it was recorded that an Air Navigation Plan consisted of an authoritative internationally agreed reference document, which corresponded to a contract between States covered by the Plan regarding air navigation facilities to be provided, to be approved by the ICAO Council in accordance with the provisions of the Chicago Convention.9 It was deemed that the Council, in any given instance, would be acting on behalf of all Contracting States, including those not covered by the Plan. There is a marked dichotomy in the terminology used, which refers to the Plan on the one hand as a contract between parties and on the other hand as a reference document. Buergenthal offers a more coherent view, by saying that ICAO Annexes, Plans, SUPPS10 and Regional Air Navigation Plans constitute an integral body of aviation legislation comparable both in structure and content to comprehensive domestic air navigation codes.11 Yet another view is that the Regional Air Navigation Plan, not involving the process of ratification, signature or adoption, is a technical and operational document.12 Confusion is further confounded by the fact that there is no direct consequence for any State which does not perform its obligations under a Regional Air Navigation Plan.

ICAO Doc. EANPG COG/2-WP/6, 12/03/1996 at 3. The ICAO Regional Supplementary Procedures (SUPPS) form the procedural part of the Air Navigation Plan developed by Regional Air Navigation (RAN) Meetings to meet those needs of specific areas which are not covered in the worldwide provisions. They complement the statement of requirements for facilities and services contained in the Air Navigation Plan publications. Procedures of worldwide applicability are included either in the Annexes to the Convention on International Civil Aviation as Standards or Recommended Practices, or in the Procedures for Air Navigation Services (PANS). See ICAO Doc 7030. 11 Buergenthal (1969) at 121. 12 Milde (2002) at 192. 10

2.3

The Provision of Air Navigation Services

The provision of air navigation services are mainly regulated by three Annexes to the Chicago Convention, namely Annex 2 (Rules of the Air), Annex 3 (Meteorological Service for International Air Navigation) and Annex 11 (Air Traffic Services).13 Of these, compliance with Annex 2 is mandatory14 and does not give the States the flexibility provided in Article 38 of the Chicago Convention to register differences from any provisions of the Annex. With regard to navigation over the high seas, the United Nations Convention on the Law of the Sea UNCLOS, Article 39, lays down the duties of ships and aircraft involved in transit navigation to the effect that ships and aircraft, while exercising the right of transit passage, should: proceed without delay through or over the strait; refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress; and comply with the relevant provisions of the Convention. Article 39(3) explicitly states that aircraft in transit passage shall observe the Rules of the Air established by ICAO as they apply to civil aircraft and that state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation. The provision further states that at all times aircraft shall monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio frequency.

Article 54 l) of the Chicago Convention stipulates as a mandatory function of the Council the act of adopting, in accordance with Chapter VI of the Convention, international standards and recommended practices (SARPs) and for convenience designate them as Annexes to the Convention. Article 37 of the Convention reflects the areas in which SARPs should be developed and Annexes formed. Article 38 obliges contracting States to notify ICAO of any differences between their own regulations and practices and those established by international standards or procedures. The notification of differences however, does not absolve States from their continuing obligation under Article 37 to collaborate in securing the highest practicable degree of uniformity in international regulations, standards, and procedures. 14 In October 1945, the Rules of the Air and Air Traffic Control (RAC) Division at its first session made recommendations for Standards, Practices and Procedures for the Rules of the Air. These were reviewed by the then Air Navigation Committee and approved by the Council on 25 February 1946. They were published as Recommendations for Standards, Practices and Procedures—Rules of the Air in the first part of Doc 2010, published in February 1946. The RAC Division, at its second session in December 1946–January 1947, reviewed Doc 2010 and proposed Standards and Recommended Practices for the Rules of the Air. These were adopted by the Council as Standards and Recommended Practices relating to Rules of the Air on 15 April 1948, pursuant to Article 37 of the Chicago Convention and designated as Annex 2 to the Convention with the title International Standards and Recommended Practices—Rules of the Air. They became effective on 15 September 1948. On 27 November 1951, the Council adopted a complete new text of the Annex, which no longer contained Recommended Practices. The Standards of the amended Annex 2 (Amendment 1) became effective on 1 April 1952 and applicable on 1 September 1952.

2 The Provision of Air Traffic Services

Standard 2.1.1 of Annex 2 to the Chicago Convention provides that the rules of the air shall apply to aircraft bearing the nationality and registration marks of a Contracting State, wherever they may be, to the extent that they do not conflict with the rules published by the State having jurisdiction over the territory over-flown.15 The operation of an aircraft either in flight or on the movement area of an aerodrome is required to be in compliance with the general rules and, in addition, when in flight, either with: visual flight rules (VFR); or the instrument flight rules (IFR).16 Standard 2.3.1 further provides that the pilot-in-command of an aircraft shall, whether manipulating the controls or not, be responsible for the operation of the aircraft in accordance with the rules of the air, except that the pilot-in-command may depart from these rules in circumstances that render such departure absolutely necessary in the interests of safety.

2.4

Meteorological Information

Annex 3 to the Chicago Convention provides in Standard 2.1.1. that the objective of meteorological service for international air navigation shall be to contribute towards the safety, regularity and efficiency of international air navigation. This objective has to be achieved by supplying the following users: operators, flight crew members, air traffic services units, search and rescue services units, airport managements and others concerned with the conduct or development of international air navigation, with the meteorological information necessary for the performance of their respective functions.17 The Annex, in Standard 2.1.3 calls for each Contracting State to determine the meteorological service which it will provide to meet the needs of international air navigation. This determination should be made in accordance with the provisions of this Annex and with due regard to regional air navigation agreements; it should include the determination of the meteorological service to be provided for international air navigation over international waters and other areas which lie outside the territory of the State concerned. Furthermore, each contracting State is required to designate the authority, hereinafter referred to as the meteorological authority, to provide or to arrange for the provision of meteorological service for international

The Council of the International Civil Aviation Organization resolved, in adopting Annex 2 in April 1948 and Amendment 1 to the said Annex in November 1951, that the Annex constitutes Rules relating to the flight and manoeuvre of aircraft within the meaning of Article 12 of the Convention. Over the high seas, therefore, these rules apply without exception. 16 Information relevant to the services provided to aircraft operating in accordance with both visual flight rules and instrument flight rules in the seven ATS airspace classes is contained in 2.6.1 and 2.6.3 of Annex 11. A pilot may elect to fly in accordance with instrument flight rules in visual meteorological conditions or may be required to do so by the appropriate ATS authority. 17 Standard 2.1.2.

2.4

Meteorological Information

air navigation on its behalf. Details of the meteorological authority so designated shall be included in the State aeronautical information publication. State responsibility for the provision of meteorological information is provided for in Standard 2.1.4. where each Contracting State is required to ensure that the designated meteorological authority complies with the requirements of the World Meteorological Organization in respect of qualifications and training of meteorological personnel providing service for international air navigation.18 It is also provided in the Annex that close liaison shall be maintained between those concerned with the supply and those concerned with the use of meteorological information on matters which affect the provision of meteorological service for international air navigation.19 Furthermore, States have responsibility establish one or more aerodrome and/or other meteorological offices which shall be adequate for the provision of the meteorological service required to satisfy the needs of international air navigation.20 The Annex provides that an aerodrome meteorological office shall carry out all or some of the functions as necessary to meet the needs of flight operations at the aerodrome in the preparation of: forecasts and other relevant information for flights with which it is concerned; the extent of its responsibilities to prepare forecasts shall be related to the local availability and use of en-route and aerodrome forecast material received from other offices; preparation of e and obtaining forecasts of local meteorological conditions; maintaining a continuous survey of meteorological conditions over the aerodromes for which it is designated to prepare forecasts; providing briefing, consultation and flight documentation to flight crew members and/or other flight operations personnel; supplying other meteorological information to aeronautical users; displaying the available meteorological information; exchanging meteorological information with other meteorological offices; and supplying information received on pre-eruption volcanic activity, a volcanic eruption or volcanic ash cloud, to its associated air traffic services unit, aeronautical information service unit and meteorological watch office as agreed between the meteorological, aeronautical information service and ATS authorities concerned. Chapter 5 of the Annex includes further responsibilities of States. Standard 5.1. provides that each Contracting State is required to arrange, according to the provisions of this chapter, for observations to be made by aircraft of its registry operating on international air routes and for the recording and reporting of these observations. Aircraft observations are required with regard to routine aircraft observations during en-route and climb-out phases of the flight; and special and other non-routine aircraft observations during any phase of the flight.

Requirements concerning qualifications and training of meteorological personnel in aeronautical meteorology are given in WMO Publication No. 49, Technical Regulations, Volume Iâ&#x20AC;&#x201D;General Meteorological Standards and Recommended Practices, Chapter B.4â&#x20AC;&#x201D;Education and Training. 19 Standard 2.2.1. 20 Standard 3.3.1.

2.5

2 The Provision of Air Traffic Services

Air Traffic Services

The provision of air traffic services21 is addressed in Annex 11 to the Chicago Convention which provides in limine that Contracting States shall determine, in accordance with the provisions of this Annex and for the territories over which they have jurisdiction, those portions of the airspace and those aerodromes where air traffic services will be provided. They shall thereafter arrange for such services to be established and provided in accordance with the provisions of this Annex, except that, by mutual agreement, a State may delegate to another State the responsibility for establishing and providing air traffic services in flight information regions, control areas or control zones extending over the territories of the former.22 The Standards and Recommended Practices in Annex 11, together with the Standards in Annex 2, govern the application of the Procedures for Air Navigation Servicesâ&#x20AC;&#x201D;Air Traffic Management23 and the Regional Supplementary Proceduresâ&#x20AC;&#x201D; Rules of the Air and Air Traffic Services, contained in Doc 7030, Annex 11 pertains to the establishment of airspace, units and services necessary to promote a safe, orderly and expeditious flow of air traffic. A clear distinction is made between air traffic control service, flight information service and alerting service. Its purpose, together with Annex 2, is to ensure that flying on international air routes is carried out under uniform conditions designed to improve the safety and efficiency of air operation. The Standards and Recommended Practices in Annex 11 apply in those parts of the airspace under the jurisdiction of a Contracting State wherein air traffic services are provided and also wherever a Contracting State accepts the responsibility of providing air traffic services over the high seas or in airspace of undetermined sovereignty. A Contracting State accepting such responsibility may apply the Standards and Recommended Practices in a manner consistent with that adopted for airspace under its jurisdiction.

According to Paragraph 2.2 of the Annex, the objectives of the air traffic services shall be to: (a) prevent collisions between aircraft; (b) prevent collisions between aircraft on the manoeuvring area and obstructions on that area; (c) expedite and maintain an orderly flow of air traffic; (d) provide advice and information useful for the safe and efficient conduct of flights; (e) notify appropriate organizations regarding aircraft in need of search and rescue aid, and assist such organizations as required. 22 Standard 2.1.1. It is also provided in the Annex that if one State delegates to another State the responsibility for the provision of air traffic services over its territory, it does so without derogation of its national sovereignty. Similarly, the providing Stateâ&#x20AC;&#x2122;s responsibility is limited to technical and operational considerations and does not extend beyond those pertaining to the safety and expedition of aircraft using the concerned airspace. Furthermore, the providing State in providing air traffic services within the territory of the delegating State will do so in accordance with the requirements of the latter which is expected to establish such facilities and services for the use of the providing State as are jointly agreed to be necessary. It is further expected that the delegating State would not withdraw or modify such facilities and services without prior consultation with the providing State. Both the delegating and providing States may terminate the agreement between them at any time. 23 Doc 4444, PANS-ATM.

2.6

Liability of States

Standard 2.1.2 of the Annex stipulates that those portions of the airspace over the high seas or in airspace of undetermined sovereignty where air traffic services will be provided shall be determined on the basis of regional air navigation agreements. A Contracting State having accepted the responsibility to provide air traffic services in such portions of airspace shall thereafter arrange for the services to be established and provided in accordance with the provisions of the Annex.24 The Annex goes on to say that when it has been determined that air traffic services will be provided, the States concerned shall designate the authority25 responsible for providing such services.26 Situations which arise in respect of the establishment and provision of air traffic services to either part or whole of an international flight are as follows: Situation 1: A route, or portion of a route, contained within airspace under the sovereignty of a State establishing and providing its own air traffic services. Situation 2: A route, or portion of a route, contained within airspace under the sovereignty of a State which has, by mutual agreement, delegated to another State, responsibility for the establishment and provision of air traffic services. Situation 3: A portion of a route contained within airspace over the high seas or in airspace of undetermined sovereignty for which a State has accepted the responsibility for the establishment and provision of air traffic services. For the purpose of the Annex, the State which designates the authority responsible for establishing and providing the air traffic services is: in Situation 1: the State having sovereignty over the relevant portion of the airspace; in Situation 2: the State to whom responsibility for the establishment and provision of air traffic services has been delegated; in Situation 3: the State which has accepted the responsibility for the establishment and provision of air traffic services.

2.6

Liability of States

As the overall liability of the State to provide air navigation services has been clearly identified by international treaty and, as already discussed, there are various kinds of air service providers ranging from State instrumentalities to private service providers, the liability regime could be varied and contentious. Clearly, 24

The phrase â&#x20AC;&#x153;regional air navigation agreementsâ&#x20AC;? refers to the agreements approved by the Council of ICAO normally on the advice of Regional Air Navigation Meetings. The Council, when approving the Foreword to this Annex, indicated that a Contracting State accepting the responsibility for providing air traffic services over the high seas or in airspace of undetermined sovereignty may apply the Standards and Recommended Practices in a manner consistent with that adopted for airspace under its jurisdiction. 25 The authority responsible for establishing and providing the services may be a State or a suitable Agency. 26 Standard 2.1.3.

2 The Provision of Air Traffic Services

liability of the State can be bifurcated into two areas under administrative law where liability of the State, its agency or a private body can be detained within the territory of a State, and international law, the latter involving principles of State responsibility and the liability of a State for causing injury to another State or its subjects.

2.6.1

Liability Under Administrative Law

State liability under administrative law can in turn be divided into two limbs: liability for acts of instrumentalities of State; and liability for privatized service providers for whose acts, relating to the provision of air navigation services, the State would still bear responsibility. The traditional model of administrative responsibility and accountability of the administrative State is based on the premise that Parliament controlled the executive but was in turn controlled by the people. Added to this, the fundamental postulate lay in the overarching principle that the judiciary played its role in keeping instrumentalities and agencies of the State intact. Accountability of the State for its agenciesâ&#x20AC;&#x2122; actions was twofold: one stemming from a statutory power given to that agency by the State; and the other arising from delegation of authority by the State to the agency concerned. In the latter instance, however, the legislature could intervene and share some control of the agency. This gave rise to the inexorable principle that administrative law and judgments of courts on such agencies could be involved only in the former instance, when the State had provided a statutory base for a private agency or entity. In the 1983 British case of Oâ&#x20AC;&#x2122;Reilly & Mackman,27 the House of Lords limited the circumstances in which a public law remedy, such as a declaratory judgment or injunction, could be brought outside of Section 31 of the Supreme Court Act of 1918, which prescribed instances of legal actions to be brought against the State for an act of its statutory agent. This is notwithstanding the fact that Section 21 of the Crown Proceedings Act 1949 allows the Court in civil proceedings to issue a declaratory order against the State, although there could be no injunction specific performance orders against a State. Furthermore, a later case established that although the claim for judicial review might be brought against the Crown, the Crownâ&#x20AC;&#x2122;s involvement is merely nominal and the ultimate dispute would be between the claimant and the defendant.28 It is with the 1990 decision in the Factorframe Case29 where Lord Bridge stated that injunctive relief against the Crown or its officers was not possible.

[1983] 2. A.C. 237. R. (on the application of Ben-Abdelaziz and Kugwa) v. London Borough of Hackney and the Secretary of State for the Home Department [2001] 1 W.L.R. 1485, para 29. 29 R. v. Secretary of State ex parte Factorframe Ltd. [1990] 2 A.C. 85. 28

2.6

Liability of States

In the instance of a privatized service provider, the situation calls for a discussion of the reasons for privatization leading to the legal nature of a privatized entity.30 The reasons for privatization could well range from improvement of efficiency to reducing government involvement in industrial decision making. The corollaries to privatization are often the widening of share ownership; encouraging share ownership by employees; providing more flexibility to pay policies; and enhancement of economic freedom. There could be two types of privatized service providers: the first being large companies which were once instrumentalities of state, which, even after privatization, do not possess potential for undue competition in the market. These would easily transit to a position in which large companies had been private in the first place, and would not be subject to principles of public law. The second category of the privatized service provider is one which has market power and consequent potential for untrammelled competition. In such cases, the State may regulate the provider by bringing it under the administrative purview of a State agency. These privatized bodies may be vulnerable under public law through the agencies having administrative control over them. One of the analogies in the United Kingdom of a privatization of a utility can be observed in the legislative initiative of 1984 with the adoption of the Telecommunications Act which brought about the privatization of a major public utility.31 The 1984 legislation privatized the public corporation British Telecom (BT) and abolished BTâ&#x20AC;&#x2122;s monopoly in providing telecom services, thus opening the doors to competition. The Director General of Telecommunications, established by the Act, can grant licenses to operators of telecom systems. The Director General is also empowered to refer a matter to the Monopolies and Mergers Commission, particularly on issues related to public interest such as pricing. If this particular feature were to be applicable to a privatized air navigation service provider appointed under Statute, there would be the interesting consideration under public law whether that provider complied with Article 15 of the Chicago Convention32 on charges for services. The operation of the administrative process in a State becomes somewhat complex when viewed in the context of competition policy where the State takes measures to curb the ill-effects on society of monopolies and cartels. An initial difficulty that arose was the nineteenth Century control of trade, which was aimed at 30

For a detailed discussion of the legal liability of States and of a privatized service provider see Abeyratne (2004) pp. 31â&#x20AC;&#x201C;51. 31 From 1912 until 1981 telecommunications are the responsibility of the Post Office. The 1981 legislation represented telecommunications from KP. Services and established British Telecom as a public corporation. 32 Article 15 provides that every airport in an ICAO contracting State which is open to public use by its national aircraft shall likewise be open under uniform conditions to aircraft of all other Contracting States. The like uniform conditions shall apply to the use, by aircraft of every Contracting State, of all air navigation facilities, including radio and meteorological services, which may be provided for public use for the safety and expedition of air navigation services. Article 15 also provides that charges applicable to a foreign carrier for the provision of the air navigation services shall not be higher than those imposed on a carrier bearing the service provider Stateâ&#x20AC;&#x2122;s nationality.

2 The Provision of Air Traffic Services

promoting competition proved counter productive, resulting in controlling competition. This difficulty was compounded by the early twentieth Century State policy of reluctance to interfere with citizens striking bargains for their benefit.33 However, after World War 1, some British Governmental measures introduced comprehensive control of market power.34 British legislators can be proud of three legislative stages of unfair competition control. The first came in the form of the 1948 Monopolies and Restrictive Practices (Inquiry and Control), Act which devolved regulatory responsibility on an agencyâ&#x20AC;&#x201D;the Monopolies and Restriction Practices Commission (MRPC)â&#x20AC;&#x201D;a body outside the normal departmental framework. The second stage commenced with the 1956 Restrictive Trade Practices Act which addressed the competitive threat of cartels and the Restrictive Practices Court was established to adjudicate an anti competitive and privy issues. The third stage took on with the expansion of the Monopolies Commission which investigates monopolies issues. Merger irregularities were added to the jurisdiction of the Commission with the Monopolies and Mergers Act of 1968. The 1980 Competition Act which followed gave the Commission power to investigate particular anti competitive practices. The final stage of the evaluation demarcates choice of institutions to investigate and adjudicate on anti competitive practices. From an administrative perspective, the citizen has been known to challenge these State instrumentalities,35 the most notable of which has been the challenge offered to the various governmental institutions created under Statute to define their extent of duty to give reasons for competition legislation.36 A Governmentâ&#x20AC;&#x2122;s approach to regulation of a public utility, whether public or privatized, is usually based on the public interest rationale where individual consumer choice will determine the demand and supply for goods and their pricing and quantity.37 In the United Kingdom, these factors are intrinsically related to transparency, accountability, proportionality, consistency and targeting.38 Quite apart from the connotation of Article 15 of the Chicago Convention, setting international obligation, a State in a common law jurisdiction would be questioned in its Courts for its responsibility over iniquitous charges for services provided. An early nineteenth Century decision established the fact that the sovereign could not impose an unfair charge on services provided.39 With regard to tortuous liability of air navigation service providers for acts negligently committed that cause damage to aircraft and passengers, the basic premise is that a public body acting ultra vires is as liable for an act committed

Mogul SS. Co. Ltd. v. McGregor Gow [1892] A.C. 25. See also Sorrell v. Smith [1925] A.C. 700. Committee on Trusts Cmd. 9236 (1918). 35 See R. v. Monopolies and Mergers Commission Exp. Elders 1XL Ltd. [1987] 1. W.L.R. 1121. Also R.V.M. & M. C Exp. Mathew Brown plc [1987] 1 W.L.R. 1235. 36 R. v. Secretary of State for Trade Industry Ex parte Lonrho plc [1989] 1 W.L.R. 325. 37 Ogus (1994). 38 See Better Regulation Guide, UK Cabinet Office (1998). 39 Corporation of Stanford v. Pawlett, (1830) 1 C&J 57, at 400. 34

2.6

Liability of States

beyond tis powers as is a private individual.40 In the 1995 Case of X (Minors) v. Bedfordshire CC,41 Lord Browne Wilkinson envisioned that there would be three possible causes of action where a plaintiff might bring a cause of action against a public entity: a breach of statutory duty without the necessity to prove carelessness; a common law breach of duty of care resulting from a breach of a statutory duty or a performance of a duty; and misfeasance in a public office. His Lordship ruled out any liability for carelessness in the performance of a duty imposed by statute. In terms of compensation for torts of negligence, liability can be imposed on several counts: illegality or actions which are ultra vires per se; actions of ordinary negligence; a serious beach of duty; international wrong doing; and a lawfully caused governmental loss. Compensation for these torts could be either on an ex gratia basis or in the nature of restitutory relief.42 Illegality or an act ultra vires is the label given to fault in many civil law jurisdictions including France. Common law jurisdictions, such as the United Kingdom distinguished between illegality and fault, the latter being identified with negligence and the former being considered an act ultra vires. Where a breach of statutory duty imposed on a State authority was an issue, the remedy in early times was predicated upon the premise that if a person responsible for the act in question had a statutory duty of care which was breached, an action lay at the suit of the aggrieved person.43 In the early twentieth Century, Courts slightly adapted their fundamental approach to look at the intent of the statute on legislation particularly whether the law intended to create a cause of action for its breach. The overall judicial philosophy was that if there was room for awarding compensation under the principles of tort law, there would be no room for action under the statute itself.44 Additionally, for there to be compensation for a breach of statutory duty, the Courts looked for a prescribed penalty within the Statute, together with a link between harm suffered and the risk which the statute intended to prevent.45 A social interest statute enacted for the benefit of society at large would usually not give rise to a breach of duty action, unless negligence can be proved.46 This principle was based on the fact that social legislation affects a class of persons and accommodation of an individual within that legislation was grounded on the discretion of the authority vested with power under the legislature concerned.47 As the Bedfordshire48 case illustrated, no action would lie for mere carelessness in the performance of a statutory duty unless there is a specific common law right of

Entick v. Carrington (1765) 19 St. Tr. 1029 at p. 1081. [1995] 2 A.C. 633 at 730. 42 Craig (2003) at 882. 43 Sterling v. Turner (1672) I. Ventris 200. Rowning v. Goodchild (1772) 2 W. Black 906, Schinotti v. Bumstead (1796) 6. T.R. 646, Barry v. Arnaud, (1839) 10 Ad. & E. 646, Pickering v. James (1873) L.R. 8 C.P. 489. 44 Phillips v. Britannia Hygenic Laundry Co. Ltd. [1923] 2 K. B. 832. 45 Cutler v. Wandsworth Stadium Ltd. [1949] AC 398. See Also Groves v. Lord Winborne [1898] 2. Q.B.402 and Goris v. Scott [1875] L.R. 9 ex. 125. 46 Barrett v. Enfield LBC [2001] 2.A.C. 550. 47 Oâ&#x20AC;&#x2122;Rourke v. Campden LBC [1998] A.C. 158. 48 Supra, note 41 in this chapter. 41

2 The Provision of Air Traffic Services

action and that action is predicated upon a common law duty of care to be established by the plaintiff. Courts cannot impose their judgment on a discretion vested in an authority because suchdiscretion is purely for the authority to exercise and decide upon. The discretion can only be impugned if the plaintiff shows manifest unreasonableness on the part of the authority vested with discretion, making the action fall outside the purview of the discretion.49 In the 1990 case of Caparo Industries plc v. Dickman50 the court set specific standards for determining whether a challenged decision fell outside a common law duty of care. They were: whether injury caused by the defendant was foreseeable; was there sufficient proximity between the parties; and whether the imposition of a duty of care on the authority was just, equitable and fair.51 In the 1996 case of Stovin v. Wise52 the Court established that, on the issue of breach of statutory authority, the consideration of a public duty to act under statute was not the only criterion. There was also the consideration as to whether the action in question breaches a private law duty to act which would ground a claim in damages.53 An omission to exercise statutory power was actionable if the authority was proved to have been irrational in not exercising the power and that there was provision in the statute for the award of compensation if an action prescribed under statute was not taken. The reliance on policy explicit or implicit in a statute under question, that compensation would accrue to a plaintiff in the instance of a breach of statutory duty, was to be based on the fact that the purpose of the statute was to devolve responsibility on an authority whose actions within the statute would accomplish what members of a society could not accomplish by themselves.54 With regard to negligence, in the early case of Mercy Docks and Harbour Board Trustees v. Gibbs, decided in 1866, the court of first instance held that a public body could be held liable in negligence when exercising a statutory power. Blackburn J. rejected the argument of the defendant that a remedy lay only within statutory bounds, a decision which was upheld later by the House of Lords.55 The duty of care lay pursuant to a statutory power but was not prescribed both in terms of content and compensability within it. However, the scope of the statute and the persons it was meant to protect is important.56 Enforcement of regulations and bylaws becomes an important criterion in the determination of negligence. 49

Id 736 Aâ&#x20AC;&#x201D;737 A. [1990] 2.A.C.605. 51 Id. 611. 52 [1996] A.C. 923. 53 Id. 949â&#x20AC;&#x201C;950. 54 This policy was enunciated by Lord Hoffman in Stovin, supra, note 11 in this chapter where His Lordship qualified the Australian Case Sutherland Shire Council v. Heyman (1985) C.L.R. 424 at 464 in which Mason J. established a doctrine of general reliance. 55 (1866) L.R.1. H.L. 56 Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson and Co. Ltd. [1985] A.C. 210. Also, Curran v. Northern Ireland Co-ownership Housing Association Ltd. [1987] A.C.718. 50

2.6

Liability of States

In Anns v. London Borough of Merton,57 decided in 1998, Lord Wilberforce held that negligence of the defendant Borough Council would ensue if he did not take reasonable care in securing compliance with bylaws and regulations. Discretion and negligence are not mutually exclusive.58 The operational criterion is whether, in the exercise of discretion, there was a breach of a duty of care. This liability and consequent consideration that grounds an action based on a break of a duty of care depends entirely on policy considerations whether it would be fair, just and reasonable to impose such a duty. Clearly on the basis of Barret59 and Phelps60 one could conclude that a duty of care is owed by an air navigation service provider (whether he is an agent of the government or a private body)61 to both the operators of the aircraft as well as those who use the operatorâ&#x20AC;&#x2122;s services in the given instance. With regard to applicable law in the United States, the Federal Tort Claims Act of the United States62 although not creating any specific liability regime for the United States government, asserts that the US Government approves of its being treated as a legal person in terms of tortuous liability, with no right to immunity.63 In Downs v. United States64 the Court held that the fundamental purpose of the Act was to relieve Congress of the burden of cases where the plaintiff was seeking redress for an act of an employee of the United States under a customary principle of US governmental liability that had to be invoked in every single instance. In the 1962 case of Richards v. United States,65 the US Supreme Court held that the Act was designed to remove sovereign immunity from the United States from actions grounded in tort and to create specific exceptions where the Government might not be liable. One of such exceptions is that the US Government may not be held liable for the performance, or failure to perform a discretionary function. The rationale for this exception from liability is that in a discretionary function there is an element of 57

[1978]A.C. 728. This is a principle applicable both in the United Kingdom and the United States. See Johnson v. State of California, 447 P. 2d. 352 (1968). 59 In Barrett v. Enfield LBC, [2001] 2. A.C. 550, the claim for breach of statutory duty per se was not pursued before the Court of Appeal or the House of Lords, in the case of a local authority sued for negligence in caring for a child. 60 In Phelps v. Hillingdon LBC [2001] 2 A.C. 619 at 652, the House of Lords held that duties cast on local authorities in the context of specific education needs were for the benefit of all children in a particular geographic location or area and therefore did not come under an action for breach of statutory duty in the case of a specific person. 61 Street (1953) Chap. 2. 62 The Federal Tort Claims Act of 1946 waived government immunity for tortuous liability. 63 The Act provides that the US District Courts shall have exclusive jurisdiction of civil actions or claims against the United States for pecuniary damages, accruing on or after 1 January 1945 for injury or loss of property, or personal injury or death caused by the negligent or wrongful act of the State or its employees if they are acting within the scope of their employment. The United States could also be liable as a private person to a claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. 1345 (b). 64 (1975) CA 6 Tenn, 522 F2d 990. 65 (1962) 369 U.S. 17, LED 2d 492. 58

2 The Provision of Air Traffic Services

choice or selection for which there is logical or ethical basis to hold the Government liable. In Dalehite v. United States66 the Court held that discretion accorded to persons by the Government in laying out a plan of action would legitimately form an exception to the state liability principle. It is arguable that the Dalehite principle could be applied in an instance where the US Government gives the authority to a person to develop, apply and be accountable for a air navigation plan. However, 2 years after the decision, the case of Indian Towing Co. Inc v. United States67 was handed down by the Supreme Court recognizing that the Government was liable for damage caused by the Coast Guard personnel in negligently failing to repair and make a lighthouse operative. In 1985, the case of Eastern Airlines v. Union Trust Co68 involved a mid air collision between two aircraft which were on final approach resulting in personal injury and property damage. The position of the US Government was that the air traffic controllers were exercising a discretionary function which exempted the government from liability under the Act69 The Court, in rejecting the Governmentâ&#x20AC;&#x2122;s position, concluded that the discretion was vested in the Federal Aviation Administration in handing over the tower to the air traffic controllers responsible for the negligent act and that the controllers had no discretion to be negligent in their duties. According to the reasoning of the Court, the controller and tower operator merely handled the operational details which were outside the purview of discretionary functions. Furthermore, the court distinguished between discretion at the operational level and the planning level and attributed to the Government responsibility at the planning level. The interpretation of the Courts in the Eastern Airlines case has exposed the judicial decision making process to criticism on the ground that the air traffic controller does indeed exercise some form of discretion at various points in the exercise of his duties. For example, in an earlier case70 in which the judgment was inconsistent with the Eastern Airlines judgment, it was held that the air traffic controller had a duty to warn the pilot of inclement weather which seriously jeopardized the safety of the aircraft. The rationale for the judgment was that, although the final decision regarding the course of the aircraft was within the pilotâ&#x20AC;&#x2122;s discretion, the failure of the controller to warn was the proximate cause of the accident. The argument of the Government, that there was a discretion on the part of the controller in providing information to the aircraft crew, was rejected by the Court on the same basis as in Dalehite, Indian Towing and the earlier Eastern Airlines cases, in that the discretion was in handing over the operation of the tower to the operator and that neither the operator nor the controller had a discretion to provide services negligently.71 On this basis, the decision by the Government to

746 U.S. 15 (1953). 330 U.S. 61 (1955). 68 221 F.2d 62 (D.C. Cir 1985). 69 Id. 74â&#x20AC;&#x201C;75. 70 Ingham v. Eeastern Airlines Inc., 373 F 2d 227 9 2nd Cir (1967). 71 This reasoning has been questioned in other decisions in the United States. In Stark v. United States F. Supp. (S.D. Cal 1967) , the Court found that the air traffic controller had an obligation to determine 67

2.6

Liability of States

select the equipment for the landing systems is a planning activity and a discretionary one attributable to the Government. If equipment were to be chosen by the Government and the service provider used the equipment negligently in giving crucial instructions to the pilot, it is arguable that the Government may not be able to claim the benefit of the discretionary function exemption in exonerating itself from liability.72 The question arises as to whether a breakdown of equipment would make the government strictly liable. An ICAO study,73 conducted in 1984 stated that a breakdown of equipment should not exonerate the provider of the services (in the case of the United States the FAA which an instrumentality of State) because the provider would have a cause of action against the manufacturer. The Study, which was commissioned by the ICAO Council with a view to developing a Convention on air traffic controllers’ liability, went on to say that: Privileges and immunities whatever their nature and extent, should in no way be granted to air traffic control agencies whatever their status may be (private, public or multinational agencies) since they would defeat the purpose of a convention aiming at compensating victims of damage resulting from the negligence of air traffic control agencies; air traffic control agencies provide a public service and the responsibility involved carries with it obligations which cannot be eliminated by laws or otherwise; Furthermore, privileges and immunities in this field of activities might be considered in many countries to be contrary to the public order.74

The Study recommended that claims against air traffic controllers must be supported by evidence of negligence on the part of the provider of the services or of failure of the equipment whether or not with the fault of the service provider. This is consistent with the United States jurisprudence that the pilot’s negligence, if more serious than that of the controller, should be taken as the main cause of the damage even if the controller was negligent.75

2.6.2

Liability Under Public International Law

The sovereign jurisdiction of a State does not extend beyond its territories. Therefore, a State cannot adjudicate against another State’s acts in Courts of its own whether the weather was good enough to allow a flight to go through. The responsibility of the State both at administrative law and public international law in certain circumstances of the provision of air navigation services, does not presuppose that there is no liability of the air traffic controller individually. There have been instances of the air traffic controller’s individual liability, in common law jurisdictions ( both jointly with the State concerned and severally)for negligence. See Crister S. Dahl, Air traffic Control in Norway, Unpublished LL.M thesis, McGill: Montreal, at 43. 72 Miller v. United States, 522 F.2d. 386 (6th Cir. 1975). 73 C-WP/7781, Study on the Liability of Air traffic Control Agencies, 1984, at 16. 74 Id. 15. 75 Johnson v. United States 187 F Supp. 489 E.D. Mich (1960).

2 The Provision of Air Traffic Services

jurisdiction, since the other State has sovereign immunity. The link between territorial jurisdiction and sovereign immunity is illustrated in a strong cursas curiae, commencing with an early nineteenth Century case where Marshall C.J. held in the United Sates Supreme Court that a Stateâ&#x20AC;&#x2122;s sovereignty does not extend beyond its territories to encompass the jurisdiction of other States.76 The principle of sovereign immunity recognized by Marshall CJ has been upheld through the centuries to follow. In the 2000 case of Ex Parte Pinochet (No. 3),77 Lord Browne Wilkinson held that it is a fundamental principle of international law that one sovereign State does not adjudicate on the conduct of another sovereign State. The immunity extends both to civil and criminal liabilities.78 The same year, Lord Millett held in the case of Holland v. Lampon-Wolfe79 that State immunity is a corollary of customary international law and is based on the equality of sovereign States. It is not a legal principle that the United Kingdom [or any other State] places upon itself but inherits from the community of nations and its equality at international law.80 A corollary to this basic theory is the Act of State which generally relates to the activities of the executive with regard to other States. The non justiciability of an Act of State applies both domestically and internationally to matters of State, such as those concerning security and territorial integrity are concerned.81 Sovereign immunity can be asserted as a justifiable exclusion to adjudication depending on the extent of control a State exercises over the issuant land. Thus, in the case of ships at foreign ports, the principle has veered from an extremity where the Court recognized the mere interest of a State in a ship which was operated privately for commercial purposes82 to rejecting a defective interest in a vessel which did not afford sovereign immunity to the State claiming its exclusion from a jurisdiction of a foreign Court.83 The United States courts have insisted on adequate State control of a vessel.84 In view of the many developments in the modern context where States have commercial interests beyond their boundaries, giving State enterprises an advantage over other national enterprises, many States recognize the practice of restrictive immunity of States in commercial issues.85 The most compelling principle at public international law with regard to the liability of a State and with regard to the act of an air navigation service provider, is

The Schooner Exchange v. McFaddon 7 Cranch 116 (1812). [2000] A.C. 147. 78 Id. 201. 79 [2000] 1.W.L.R. 1573. 80 Id. 1588. 81 Battes Gas and Oil Co. v. Hammer (No. ?) [1982] A.C. 888. 82 Porto Alexander [1920] P. 30. 83 Juan Ysmael v. Republic of Indonesia, [1955] AC 72. 84 The Navemor 303US 68 (1938) and Republic of Mexico v. Hoffman 324US 30 (1945). 85 See Abeyratne (2005) p. 103 at 107. 77

2.6

Liability of States

the principle of State responsibility which is entrenched as a fundamental principle of international law, in particular, since the responsibility of a State in providing air navigation services to foreign as well as its own carriers is recognized by the Chicago Convention. Treaty obligation, as an integral part of State responsibility, was recognized in the 1990 Rainbow Warrior arbitration between France and New Zealand where the Court recognized that the law relating to treaties was relevant in determining one Stateâ&#x20AC;&#x2122;s responsibility to another. The Court also recognized that at international law, there was no distinction between contractual and tortuous liability and consequently State responsibility gave rise to reparation. State responsibility is anchored on certain basic fundamental facts. Firstly, there should be international obligation between two States or more. Secondly, an act or omission by one State must violate that obligation which can be directly attributed or imputed to the State concerned. Thirdly, loss or damage must be incurred by the aggrieved State. These requirements fit well into the provision of air navigation services by one State to another which is recognized in Article 28 of the Chicago Convention. Therefore, the negligent act or omission of a service provider can be imputed to the State establishing or appointing such provider publicly or on a private basis. In the instance of an aircraft, whether national or foreign, carrying foreign nationals who are injured in an accident due to the negligent provision of air navigation would open a State to responsibility to make reparation to the claimants.86 The objective responsibility theory suggests that a Stateâ&#x20AC;&#x2122;s responsibility has to be one of strict liability, where good or bad faith is not a consideration, whereas the subjective responsibility test involves fault liability, involving negligence. In the 1926 Neer claim where an American superintendent of a Mexican mine was shot, the General Claims Commission hearing the claim of the United States applied the objective test and rejected the claim that Mexico was responsible for not pursuing the investigation diligently. Three years later, the French-Mexican Claims Commission, when considering the shooting of a French citizen by Mexican soldiers, applied the objective test and held the Mexican Republic responsible to maker reparation to France.87 The subjective approach involving an enquiry into negligence has been applied in the case of damage caused to one State by the rebels of another State as a result of a tax imposed by a third State where there was found to be no fault on the part of the third State.88 In the famous Corfu Channel case, the International Court of Justice applied the subjective test and applied the fault theory. The Court was of the view that:

Charzow Factory Case PCIJ Series A No. 17, 1928, where the Court held that it is a principle of international law, and even a greater concept of international law, that any breach of an enjoyment involves an obligation to make reparation. See also the Corfu Channel Case, ICJ Reports at pp. 4, 26, The Spanish Zone of Morocco Case, 2 RIAA at p. 615 and The Mayagna (Sumo) Indigenous Community of Awas Tingini v. Nicaragua, Inter American Court of Human rights, Judgment of 31 August 2001 (Ser. C) No. 79, para 163. 87 Caire Claim, 5 RIAA, p.516 (1929). 88 Home Missionary Society Claim, 6 RIAA, p. 42 (1920).

2 The Provision of Air Traffic Services It cannot be concluded from the mere fact of the control exercised by a State over its territory and waters that the State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known the authors. This fact, by itself and apart from other circumstances, neither involves prima facie responsibility nor shifts the burden of proof.89

The Court, however, pointed out that exclusive control of its territory by a State had a bearing upon the methods of proof available to establish the involvement or knowledge of that State as to the events in question. Apart from the direct attribution of responsibility to a State, particularly in instances where a State might be guilty of a breach of treaty provisions, or violate the territorial sovereignty of another State, there are instances where an act could be imputable to a State. Imputability depends upon the link that exists between the State and the legal person or persons actually responsible for the act in question. The legal possibility of imposing liability upon a State wherever an official could be linked to that State encourages a State to be more cautious of its responsibility in controlling those responsible for carrying out tasks for which the State could be ultimately held responsible. In the same context, the responsibility of placing mines was attributed to Albania in the Corfu Channel case since the court attributed to Albania the responsibility, since Albania was known to have knowledge of the placement of mines although it did not know who exactly carried out the act. It is arguable that, in view of the responsibility imposed upon a State by the Chicago Convention on the provision of air navigation services, the principles of immutability in State responsibility could be applied to an instance of an act or omission of a public or private official providing air navigation services. The provisions of the Chicago Convention, which is an international treaty, are binding on contracting States to the Convention and therefore are principles of public international law. The International Court of Justice (ICJ), in the North Sea Continental Shelf Case,90 held that legal principles that are incorporated in Treaties, such as the â&#x20AC;&#x153;common interestâ&#x20AC;? principle, become customary international law by virtue of Article 38 of the 1969 Vienna Convention on the Law of Treaties.91 Article 38 recognizes that a rule set forth in a treaty would become binding upon a third State as a customary rule of international law if it is generally recognized by the States concerned as such, which in turn becomes a principle of customary international law, or jus cogens. Obligations arising from jus cogens are considered applicable erga omnes which would mean that States using space technology owe a duty of care to the world at large in the provision of such technology. The ICJ in the Barcelona Traction Case held: [A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis a vis another State in the field of

The Corfu Channel Case, ICJ Reports, 1949, p. 4. I.C.J. Reports 1970, at 32. 91 Vienna Convention on the Law of Treaties, United Nations General Assembly Document A/CONF.39/27, 23 May 1969. 90

2.6

Liability of States

diplomatic protection. By their very nature, the former are the concerns of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.92

The International Law Commission has observed of the ICJ decision: [I]n the Courts view, there are in fact a number, albeit limited, of international obligations which, by reason of their importance to the international community as a whole, are- unlike others - obligations in respect of which all States have legal interest.93

The views of the ICJ and the International Law Commission, which has supported the approach taken by the ICJ, give rise to two possible conclusions relating to jus cogens and its resultant obligations erga omnes: (a) Obligations erga omnes affect all States and thus cannot be made inapplicable to a State or group of States by an exclusive clause in a treaty or other document reflecting legal obligations without the consent of the international community as a whole; (b) Obligations erga omnes pre-empt other obligations which may be incompatible with them. Some examples of obligations erga omnes cited by the ICJ are prohibition of acts of aggression, genocide, slavery and discrimination.94 It is indeed worthy of note that all these obligations are derivatives of norms which are jus cogens at international law. International responsibility relates both to breaches of treaty provisions and other breaches of legal duty. In the Spanish Zone of Morocco Claims case, Justice Huber observed: [R]esponsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make reparation.95

It is also now recognized as a principle of international law that the breach of a duty involves an obligation to make reparation appropriately and adequately. This reparation is regarded as the indispensable complement of a failure to apply a convention and is applied as an inarticulate premise that need not be stated in the breached convention itself.96 The ICJ affirmed this principle in 1949 in the Corfu Channel Case97 by holding that Albania was responsible under international law to pay compensation to the United Kingdom for not warning that Albania had laid mines in Albanian waters which caused explosions, damaging ships belonging to the United Kingdom. Since the treaty law provisions of liability and the general 92

Barcelona Traction, Light and Power Company Limited, I.C.J. Reports, 1974, 253 at 269â&#x20AC;&#x201C;270. Yearbook of International Law Commission 1976, Vol II, Part One at 29. 94 I.C.J. Reports, 1970 at 32. 95 1925 RIAA ii 615 at 641. 96 In Re. Chorzow Factory (Jurisdiction) Case, (1927) PCIJ, Ser. A, no. 9 at 21. 97 ICJ Reports (1949), 4 at 23. 93

2 The Provision of Air Traffic Services

principles of international law as discussed complement each other in endorsing the liability of States to compensate for damage caused by space objects, there is no contention as to whether in the use of nuclear power sources in outer space, damage caused by the uses of space objects or use thereof would not go uncompensated. Furthermore, under the principles of international law, moral damages based on pain, suffering and humiliation, as well as on other considerations, are considered recoverable.98 The sense of international responsibility that the United Nations ascribed to itself had reached a heady stage at this point, where the role of international law in international human conduct was perceived to be primary and above the authority of States. In its Report to the General Assembly, the International Law Commission recommended a draft provision which required: Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law.99

This principle, which forms a cornerstone of international conduct by States, provides the basis for strengthening international comity and regulating the conduct of States both internally—within their territories—and externally, towards other States. States are effectively precluded by this principle of pursuing their own interests untrammelled and with disregard to principles established by international law. Principles of modern treaty law demand that an ICAO contracting State, which has placed its instrument of ratification to the Chicago Convention has consented to be bound by the provisions of that treaty. The word “contracting State” refers legally to a State which is bound by the treaty concerned, irrespective of whether the treaty is in force or not.100 This goes to the root of international responsibility as already discussed and it is improbable at common law that a court would consider otherwise and disregard a State’s obligation in the provision of air navigation services, particularly in the context of governmental agencies and other instrumentalities of State. This however, does not completely exonerate the privatized service provider, who could be held liable at private law. Legally, as was discussed, neither the State nor the service provider can avoid liability on account of privatization. The State entails liability primarily at public international law and also at public law in general, and the provider incurs liability on a private basis in a private action that may be brought, under tort law principles or under contract law, as the case may be. Paul Stephen Dempsey101 sums it up well, when he says that the issue has two critical considerations, one relating to legal issues and the other impacting public policy. Dempsey states correctly that the skies belong to the public and the 98

Christol (1991) at 231. Report of the International Law Commission to the General Assembly on the Work of the 1st Session, A/CN.4/13, June 9 1949, at 21. 100 Aust (2000) at 75. 101 See Dempsey (2003) 95 at 118–119. 99

2.7

The Air Traffic Service Provider’s Liability

sovereign is but the trustee in this regard. Under any circumstances, whether on fiscal profit making or political motivation, States cannot abdicate or pass on their responsibility and accountability of their traditional function and fiduciary responsibility. Besides, holding governments responsible will ensure proper quality control in the provision of air navigation services.

2.7

The Air Traffic Service Provider’s Liability

States have to be mindful of the fact that their overall responsibility under the Chicago Convention in providing air navigation services extends to the air traffic controller, whose service is of a unique nature. The special feature in the provision of air traffic control is brought to bear by the nature of the service provided, be it in the relaying of information on meteorology or on traffic. Globally, air traffic control services offer information relayed by people by means of radio communication involving extremely short time periods and using a standard set of terminology in the English language, even in regions of the world where English is not the first language.102 ICAO endorses this view when it says: The air traffic controller’s job consists of complex tasks demanding a high degree of skill and active application of unique cognitive abilities such as spatial perception, information processing, reasoning and decision making. The controller must know where all the aircraft under his/her responsibility are, and determine how and when to take action to ensure that they remain separated from each other, while also seeing to their requests and needs for descent, climb, take off, departure etc.103

In view of the arduous task performed by the air traffic controller, ICAO has stretched the responsibility of the State, from a fundamental statement of state responsibility reflected in Article 28 a) of the Chicago Convention, to a more detailed pronouncement in its guidelines, calling on States to make improvements to the air traffic management system through supporting software that could assist the controller with conflict prediction, detection, advisory and resolution.104 ICAO’s focus of concentration is on a unified strategy which establishes a mechanism integrating the efforts to increase transparency and disclosure of safety related information. Although the unified strategy extends to encompass all areas of safety of flight including airworthiness, it is incontrovertible that the overall philosophy of the strategy will apply to the provision of air navigation services as well. One of the most fundamental aims of ICAO, as enshrined in Article 44 a) of the Chicago

102

Miyagi (2005) at 143. Global Air navigation Plan for CNS/ATM Systems, supra, note 10 in Chap. 2, at p. 1-4-7, paragraph 4.39. 104 Id. paragraph 4.40. 103

2 The Provision of Air Traffic Services

Convention, is to ensure the safe and orderly development of international civil aviation. To this end, and as part of its unified strategy, ICAO is suggesting the establishment of regional safety oversight organizations105 along the lines of European Aviation Safety Agency (EASA) of Europe. At the 35th Session of the ICAO Assembly, contracting States adopted Resolution A35-7,106 which urges all contracting States to share with other contracting States critical safety information which may have an impact on the safety of international air navigation and to facilitate access to all relevant safety information. This resolving clause is based on the premise, explicitly recognized in the Resolution, that the improvement of the safety of international civil aviation on a worldwide basis requires the active collaboration of all stakeholders. By adopting Resolution A35-7, the 189 ICAO contracting States at that time arrogated to themselves increased responsibility for the safety of international civil aviation, irrespective of the nature of the provider of services that ensure such safety. This strategic approach of global safety oversight was further endorsed at the ICAO Conference on a Global Strategy for Aviation Safety convened of the Directors General of Civil Aviation from 20 to 22 March 2006 in Montreal, where all States consensually agreed that there should be an effective implementation of Safety Management Systems (SMS) in States, established according to a performance based approach in three steps: Firstly, where oversight authorities and operators and service providers agree on the safety performance to be expected from them while conducting their core business functions; secondly, that oversight authorities and service providers agree on the safety requirements necessary to achieve the safety performance agreed upon in the first step; and thirdly and finally, that oversight authorities verify achievement of the agreed safety performance or its lack thereof, and operators and service providers correct observed deviations.107 All the above goes to demonstrate the heavy responsibility placed by States on themselves in undertaking that they and they alone will be accountable for the safety of aviation within their territories as well as cooperating on a global basis to implement a seamless air navigation system. Of course, any change in the provision of air traffic services, particularly with regard to the commercial nature of the service provider, will remain subservient to the fundamental concept of State sovereignty, which was endorsed by the Eleventh ICAO Air Navigation Conference held in Montreal from 22 September to 3 October 2003.108

105

Dr. Assad Kotaite, President of the International Civil Aviation Organization ICAO’s Unified Strategy, Airport 2005, 118 at 119. 106 Assembly Resolutions in Force (as of 8 October 2004), ICAO Doc 9848, at 1–60. 107 Implementation of Safety Management Systems (SMS) in States, Working paper submitted by the ICAO Secretariat, DGCA/06-WP/6, 9/01/06 at 1–2. 108 See Eleventh Air Navigation Conference report, ICAO Doc 9828, AN-Conf/11, Montreal: 20at para. 1.2.1.2, at p. 1–1, where it is recorded that the Conference agreed that the issue of sovereignty was paramount in the operation of global air traffic management, as interpreted through the Global ATM operational concept of sovereignty.

2.7

The Air Traffic Service Providerâ&#x20AC;&#x2122;s Liability

However, although the overall responsibility of the State to ensure the provision of air navigation services is immutable, there is no legal impediment to a State handing over the physical task of provision of services to a private entity while retaining its oversight role. Accordingly, in the present context, it is common to see a State largely in a supervisory role retaining its ownership of air space, drafting national legislation; determining governance over air navigation service providers; continuing to hold responsibility for certification and designation of service providers a well as setting regulations, while the service provider provides a public function in managing airspace with the broad spectrum of safety and efficiency. Within the overarching umbrella of State responsibility, there are various models of air navigation service providers. The first category is the original one which has not changed, where a State instrumentality continues to provide air navigation services. Examples of these are the Federal Aviation Administration109 of the United States and the national authority of France (DSNA). The second category is the privatized or profit service provider such as NATS and third is the privatised service provider for non profit purposes such as NavCanada. There is a fourth category of a corporatized service provider for profit and those that come into this group are New Zealand Airways and Air Services Australia. A fifth category also exists, corporatized for non profit such as the air navigation service providers of Continental Europe. All these types of service providers, with the exception of the first category are autonomous, but remain undisputedly under the administrative supervision of their respective States. In August 2006, a Swiss court indicted eight employees of the Swiss air traffic control authority, Skyguide, for their involvement in the plane crash which occurred in 2002 in Ueberlingen.. The Skyguide staff were charged with negligent manslaughter for their role in the air crash in which 71 people died when two jets collided over Swiss-controlled airspace in southern Germany. The defendants were accused of organizational shortcomings that led to a single air traffic controller being left in charge of the area where the crash occurred on July 1, 2002, and with providing insufficient information to him about technical work in progress that decisively affected the communications and radar systems. In their May 2004 report, German investigators stated that Skyguideâ&#x20AC;&#x2122;s main control tower radar had been switched off and the main telephone line was down. However, according to the public prosecutor, the trial is unlikely to take place this year. In a parallel development, a German court ruled on July 27 that Germany wrongly subcontracted its airspace control to Skyguide and was partly liable for the

109

The FAA has completed a Safety Management System Standard for aviation product and service providers. It outlines the key attributes of an SMS and establishes SMS requirements, and is calculated to be imposed by the FAAA on organization overseen by the FAA including aircraft operators, aircraft manufacturers and the FAA Air Traffic Organization (ATO) which is air navigation services provider of the United States. See Safety Management System Concept, Working Paper presented by the United States to the ICAO DGCA Conference of March 2006, DGCA/06-WP/12, 4/02/06 at 1.

2 The Provision of Air Traffic Services

air crash. The ruling was in response to a civil lawsuit filed by the Russian airline company that owned the passenger jet. The exponential increase in air traffic movements over airspace has overburdened the air navigation system.110 The logical assumption would be that the need of the hour is to find alternate ways of optimal use of air space. This would require some discretion to be given to the pilot to find shortcuts in manoeuvring his aircraft in order to obviate airspace constraints. However, this flexibility is almost nonexistence as the present air navigation system, particularly in terms of air traffic control, is based on the “positive control” concept which prescribes that pilots have to generally follow the instructions of the air traffic controller even if there is perfect visibility.111 However, as will be discussed later, common law courts, particularly in the United States have not strictly adhered to this overarching concept. In a world of congested airways, the additional problem of faulty communication between the players involved, particularly the air traffic controller and the technical crew of an aircraft in flight, does not help. NASA B 727 study has indicated that specific language variables are moderately to highly co-related with individual performance, individual error rates and individual communication ratings. During the course of their studies, NASA researchers analyzed causes of jet air transport accidents and incidents between 1968 and 1976 and came up with the conclusion that pilot error was more likely to reflect failures in team communication and coordination than deficiencies in technical proficiency. The percentage of accidents which resulted from faulty communications ranged between 70% and 80% of the total rate.112 There is also the considered view that aeronautical language should b considered as a variable of interest in crew factors since language is a coping mechanism in that it casuists individuals to lessen and mage both causes and effects of stress.113 Analogically this should apply as well to the air traffic controller who, if well trained in the language of communication would not be exposed to stress at the work place. There are no international rules governing the liability of the air traffic controller. However, there are various international guidelines that would give individual States both an impetus and direction to enact their own internal laws in this regard.

110

The air navigation system comprises the aggregate of organizations, people, infrastructure, equipment, procedures, rules and information used to provide the airspace users with air navigation services including air traffic services. See Schubert (2001), 197–223 at 198. 111 In the earliest days of aviation, so few aircraft were in the skies that there was little need for ground-based control of aircraft. In Europe, though, aircraft were often flown in different countries, and it soon became apparent that some kind of standard rules were needed. In 1919, the International Commission for Air Navigation (ICAN) was created to develop “General Rules for Air Traffic.” Its rules and procedures were applied in most countries where aircraft operated. 112 Resource Management on the Flight Deck: Proceedings of a NASA/Industry Workshop, G.E. Cooper, M.D. White, J.K. Lauber ed: 1980 (NASA CP-2120), Moffett Field, CA: NASA–Ames Research Center. 113 Sexton and Helmreich (1999) 689–695 at 691.

2.7

The Air Traffic Service Provider’s Liability

The Chicago Convention114 contains certain provisions demarcating the responsibility of Contracting States of the International Civil Aviation Organization. Article 28 of the Convention obligates contracting States to provide in their territories airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices established from time to time pursuant to the Convention115 The “other air navigation facilities” referred to in article 28 of the Chicago Convention include Air Traffic Services, which is a combination of services provided to support the safe and expeditious flow of air traffic.116 ICAO has established Standards and Recommended Practices for licensing of air traffic controllers117 Part of this licensing process recognizes that there are prescribed ICAO language proficiency requirements118 based on a proficiency rating scale identifying Holistic Descriptors. These descriptors in turn require the air traffic controller, as a proficient speaker, to communicate effectively in voice only (telephone/radiotelephone) and in face to face situations; communicate on common, concrete and work related topics with accuracy and clarity; use appropriate communicative strategies to exchange messages and to recognize and resolve misunderstandings in a general and work related context; handle successfully and with relative ease the linguistic challenges presented by a complication or unexpected turn of events that occurs within the context of a routine work situation or communicative task with which the air traffic controller is otherwise familiar; and use a dialect or accent which is intelligible to the aeronautical community.119 “Air traffic service”120 is a generic term meaning variously, flight information service, alerting service, air traffic advisory service, and air traffic control service. Air traffic control services comprise three services: area control service, which provides air traffic control services for controlled flights121; approach control

114

Supra, note 1. Chicago Convention, supra, note 1 in Chap. 1, Article 28 a). 116 ICAO has also put into place CNS/ATM (Communications, Navigation, Surveillance/Air Traffic Management) systems, through which communication between air and surface would achieve a new dimension—that of being relayed by aircraft to satellites in space, which would in turn relay messages to ground-control through a Ground Earth Station (GES). The advantages of this system are multifarious. Satellites would, under CNS/ATM systems permit communication not only by speech, but also by digital data link, which can bring significant advantages to the air traffic control system. See generally, Abeyratne (1994) pp. 156–186. 117 Annex 1 to the Convention on International Civil Aviation (Personnel Licensing), Ninth Edition, July 2001, Chaps. 1, 1.2, Note 2b) 118 Id. Appendix 1. 119 Id. Appendix 1, paragraph 2. 120 For a detailed account of air traffic services, see Abeyratne (2006) 176–192 at 181–183. 121 A controlled flight is any flight which is subject to an air traffic control clearance. 115

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service, which provides air traffic control services for those parts of controlled flights associated with arrival and departure, and aerodrome control service, which relates to the provision of air traffic control services for aerodrome traffic.122 An alerting service is provided for all aircraft provided with air traffic control service and, to the extent practicable, to al other aircraft which file a flight plan or aircraft which are known to be in a particular portion of airspace and need such services.123 This service is also provided to any aircraft known to be the subject of unlawful interference.124 The provision of air traffic services125 is addressed in Annex 11 to the Chicago Convention which provides in limine that Contracting States shall determine, in accordance with the provisions of this Annex and for the territories over which they have jurisdiction, those portions of the airspace and those aerodromes where air traffic services will be provided. They shall thereafter arrange for such services to be established and provided in accordance with the provisions of this Annex, except that, by mutual agreement, a State may delegate to another State the responsibility for establishing and providing air traffic services in flight information regions, control areas or control zones extending over the territories of the former.126 As for the provision of meteorological services, Annex 3 to the Chicago Convention provides in Standard 2.1.1. that the objective of meteorological service for international air navigation shall be to contribute towards the safety, regularity and efficiency of international air navigation. This objective shall be achieved by providing operators, flight crew members, air traffic services units, search and rescue services units, airport managements and others concerned with the conduct or

122

Annex 11 to the Chicago Convention (Air Traffic Services), Thirteenth Edition, July 2001, Standard 2.3.1. The need for the provision of air traffic control services is determined by the types of air traffic involved; the density of air traffic; meteorological conditions; and such other factors as may be relevant. See Annex 11, id. Standard 2.4.1. 123 Annex 11, Standard 5.1.1. 124 Ibid. 125 According to Paragraph 2.2 of the Annex, The objectives of the air traffic services shall be to: (a) prevent collisions between aircraft; (b) prevent collisions between aircraft on the manoeuvring area and obstructions on that area; (c) expedite and maintain an orderly flow of air traffic; (d) provide advice and information useful for the safe and efficient conduct of flights; (e) notify appropriate organizations regarding aircraft in need of search and rescue aid, and assist such organizations as required. 126 Standard 2.1.1. It is also provided in the Annex that if one State delegates to another State the responsibility for the provision of air traffic services over its territory, it does so without derogation of its national sovereignty. Similarly, the providing Stateâ&#x20AC;&#x2122;s responsibility is limited to technical and operational considerations and does not extend beyond those pertaining to the safety and expedition of aircraft using the concerned airspace. Furthermore, the providing State in providing air traffic services within the territory of the delegating State will do so in accordance with the requirements of the latter which is expected to establish such facilities and services for the use of the providing State as are jointly agreed to be necessary. It is further expected that the delegating State would not withdraw or modify such facilities and services without prior consultation with the providing State. Both the delegating and providing States may terminate the agreement between them at any time.

2.7

The Air Traffic Service Provider’s Liability

development of international air navigation, with the meteorological information necessary for the performance of their respective functions.127 Annex 11 to the Chicago Convention requires that air traffic services units shall be provided with up to date information on existing and forecast meteorological conditions as necessary for the performance of their respective functions.128 The information must be provided in such a manner and form so as to require a minimum of interpretation on the part of air traffic services personnel and with a frequency that satisfies the requirements of the air traffic services units concerned.129 It is also recommended that meteorological offices should be so situated as to facilitate personal consultation between meteorological personnel and personnel of units providing air traffic services.130 Technical Standards and Recommended Practices for aeronautical telecommunications are contained in Annex 10 to the Chicago Convention (Aeronautical Telecommunications) which includes inter alia, general provisions for radio navigation aids, Global Navigation Satellite System (GNSS), specifications for Instrument Landing Systems (ILS) and other navigational aids. The basic principle underlying the use of these navigational aids is found in ICAO’s Procedures for Air Navigation Services which requires States to ensure that the level of air traffic services and communications, navigation and surveillance, as well as air traffic procedures applicable to the airspace or aerodrome concerned, are appropriate services.131 Liability issues of an air traffic controller are intrinsically linked to the controller’s relationship with the pilot with whom the former communicates. This relationship, between the controller and the pilot, has been called the “continuum of dependence”.132 It has been generally recognized that the fundamental principle of liability is based on whether the pilot was flying under Visual Flight Rules (VFR) which gives the pilot absolute freedom to manoeuvre his aircraft, or Instrument Flight Rules (IFR) when visibility could be nil. In the former instance, the air traffic controller would not be generally held liable for a mid air collision as the pilot has full visibility. This is based on the pilot’s responsibility to “see and be seen”.133

127

Annex 3, in Standard 2.1.3 calls for each Contracting State to determine the meteorological service which it will provide to meet the needs of international air navigation. For a more detailed account of meteorological services, see Ruwantissa Abeyratne, supra, note 9 in Chap. 1, at 180–181. 128 Annex 11, supra, note 10 in Chap. 1, Standard 7.1.1.1. 129 Ibid. 130 Annex 11 Recommendation 7.1.1.2. 131 Procedures for Air Navigation Services, Air Traffic Management, Doc. 4444 ATM/501, paragraph 2.1.1. These procedures and the Regional Supplementary Procedures—Rules of the Air and Air Traffic Services, contained in Doc 7030, admit of the establishment of airspace, units and services necessary to promote a safe, orderly and expeditious flow of air traffic. A clear distinction is made between air traffic control service, flight information service and alerting service. Its purpose, together with Annex 2, is to ensure that flying on international air routes is carried out under uniform conditions designed to improve the safety and efficiency of air operation. 132 See the Expanding Liability of Air Traffic Controllers, 39 J.Air. L. and Com, (1973) 599 at 622. 133 Air Services Inc. v. USA, 18 CCH Avi 17,556-17564 (D. Miss.1983).

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In the latter case, where the pilot was flying under IFR and had no visibility he would have been dependant on the communications of the air traffic controller. One of the issues that arise in litigation pertaining to the liability of the air traffic controller is the weightage expected to given to the Air Traffic Control Procedures Manual and the extent to which the pilot is required to adhere to instructions therein. In the 1975 US case of Baker v. United States, the Court held that the manual cannot be considered as “the Bible” of air traffic control or a set of regulations having the force of law. Earlier, in a decision handed down by the Fifth Circuit Court, the court held that the air traffic controller’s duties are not hampered or limited within the narrow limits of the Manual.134 This does not mean, however, that the air traffic controller has untrammelled discretion to override his controller’s manual. In the 1974 case of Todd v. United States,135 the court held that the controller was negligent in allocating a cruise clearance height to the pilot which was lower than the altitude recommended in the Manual for mountainous terrain, particularly in an instance of adverse weather. The case of Rudelson v. United States,136 decided in 1979 is quite significant, in that the court held an air traffic controller’s duties should not be circumscribed to tasks described in the FAA Manuals and that the controller has the discretion to go beyond the scope and content of the manual if the safety of passengers and crew was at stake. There is no doubt that liability of the air traffic controller is an expanding concept and the continuum of dependence is no longer an absolute concept. Courts are showing a greater willingness to ascribe to the controller liability for negligent performance of duty, irrespective of whether such duty is incorporated or inscribed in the controller’s manual or not. With the introduction in 1994 of the concept of free flight It became evident that eventually pilots might be able to use onboard instruments and electronics to maintain a safe distance between planes and to reduce their reliance on ground controllers. Full implementation of this concept would involve technology that made use of the Global Positioning System to help track the position of aircraft. In 1998, the Federal Aviation Administration of the US (FAA) and industry began applying some of the early capabilities developed by the Free Flight program. Free flight is essentially a US practice which has spread to many parts of the world as a practical solution for the implementation of the ICAO CNS/ATM concept. It is a safe and efficient flight operating capability under IFR in which

134

Hartz v. United States, 387 F.2d. 870 at 873. A caveat must be added to this finding as it was an obiter dictum, since the controller’s failure to warn the pilot of wake turbulence was in contravention of the applicable aviation regulations of the United States. 135 384 F.Supp. 1284 at 1292. 136 602 F.2d. 1326 (9th Cir. 1979) There is also the more traditional view, enunciated by the First Circuit that the basic premise was that responsibility for ensuring the safety of passengers and crew in flight was defined in the Air Traffic Control Procedures Manual. See Delta Airlines v. United States, 561 F.2d. 381 at 389.l.

2.7

The Air Traffic Service Provider’s Liability

the operators have the freedom to select a path and speed and real time. Air traffic restrictions are only imposed to ensure separation to preclude exceeding airport capacity, to prevent unauthorized flights through special use air space and to ensure safety of flight. Restrictions are limited in extent and duration to correct the identified problem. Any activity which removes restriction represents a move toward the flight.137 There is a “Free Routing system being developed in Europe which is similar to free flight except that the former will be subject to ATC clearance and the latter will not be”. Both systems could plan the routes and altitudes of such flights. In both instances, the air traffic controller can and must intervene if there is a potentially dangerous situation arising as a result of a free flight. Therefore The controller is not always exempt from liability merely because there is interaction between the controller and the pilot. The liability of the air traffic controller in free flight situations where accidents have occurred has been subject to some discussion. One commentator is of the view that the respective responsibilities and liabilities of pilots and controllers for most accidents should not be altered by the free flight system, but that in air crash situations involving free flight where air traffic control is a factor, it is up to the courts to clarify the rules of liability to ensure safety under the new system.138 Another sates that the final authority of the pilot in command will prevail.139 There is also the established principle that the negligence of the pilot would not necessarily exonerate the air traffic controller. In the 1987 case of Rodriguez v. the United States140 the court as of the view that the notion that a pilot’s negligence in performing his duties must, as a matter of law, free the air traffic controller from liability had already been rejected.141 The question arises as to whether both the pilot and the controller are liable if both of them are at fault. This principle of “shared liability” is common at tort law. However, the difficulty would be in apportioning damages between the pilot and the air traffic controller. Here the principle could be that the plaintiff’s recovery is limited to the proportion of damages the defendant’s negligence proximately caused.142 The Court went on to say in the Rodriguez case that although it was recognized that the pilot bears full authority for aircraft operation and is held to the highest degree of care, air traffic controllers could be held liable if negligence on the part of such person has a causal nexus or relationship to the occurrence of the accident.143 The above notwithstanding, the fundamental principle that the aircraft commander has final authority over the flight still holds good. However, this principle is

137

Report of the RTCA Board of Directors’ Select Committee on Free Fight, RTCA Inc: Washington DC, 1995 at 3. 138 Mc Chesney Goodman and Davis (1997) 656 at 670. 139 Francis Schubert, supra, at 218. 140 823 F.2d735 (3rd Cir 1987). 141 Id. 745. 142 Worthington v. United States 221 F.2d. 62 (11th Cir. 1994) at 404. 143 Supra, note 140 in this chapter at 746.

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conditional upon the fact that air traffic control clearances and directives are binding on flight crews, and pilots are required to comply.144 If an air traffic control clearance is not satisfactory for a pilot, he may request and receive an amended clearance. There is a consistent cursus curiae that establishes the principle that air traffic control services do not substitute the pilot’s substantive duties and that once a pilot has been given clearance he remains responsible for the movement of his aircraft.145 In this respect, although the air traffic controller remains responsible and accountable for his instructions to the pilot, the pilot should not blindly follow such instructions, particularly if the pilot is not convinced that the instructions received should be followed without question.146 Air traffic controllers cannot shift liability to the State on the basis of State responsibility to provide air traffic services, which is a responsibility recognized by the Chicago Convention. A case in point, was in Eastern Airlines v. Union Trust Co.147 which established the rule that air traffic controllers had no discretion to be negligent in their work and that they could not shelter themselves behind the fact that they worked for an instrumentality of State in matters pertaining to their individual liability which clearly established liability criteria regarding the provision of air navigation services in the United States. Communication is vital to the modern world. In this sense miscommunication in human interaction is a critical factor. A misrepresentation in the law of torts is actionable at negligence148 and an aeronautical miscommunication, negligently delivered could be construed as gross negligence. The operative criterion would be that the aircrew would place reliance upon communications received from the air traffic control centre. In the 1997 case of Hercules Management Ltd. v. Ernst & Young149 the court de-emphasized the language of special relationship and the importance of an assumption of responsibility and stressed the importance of the concept of foreseeable and reasonable reliance by the plaintiff.

144

ICAO Doc 4444, supra, note 24 in Chap. 1, Section 10.1.4. In Pan American v. Port Authority, the court held that regardless of assistance provided from the ground, flight crew members have a continuing responsibility and duty to be aware of dangers which they can perceive with their own eyes. 787 F.Supp. 312 (E.D.N.Y.1992) at 318. 146 Hartz v. United States 249 F.Supp 119 (D. Ga. 1965) at 125. The controller’s duty to warn does not relieve the pilot’s primary responsibility for the safe operation of the aircraft, and the pilot has a continuing duty to be aware of the dangers discernible from the pilot’s visual and instrument observations. See. First of America-Bank Central v. U.S., 639 F. Supp. 446 (W.D. Mich. 1986) at 455. 147 221.F.2d.62 (D.C. Cir.) Revised 350 U.S. 907 (1955), modified 350 U.S. 962 (1956). 148 Hedley Byrne & Co. v. Heller and Partners, [1964] A.C. 465 (H.L.). 149 [1997] 2.S.C.R. 165. 145

2.8

Satellite Imagery

On 3 February 1998, a U.S. Marine EA-6B Prowler Jet conducting a low-altitude training mission near Cavalese, Italy, hit a cable supporting a gondola transportation system being operated across a wide valley. The impact of the jet on the cable severed it, immediately cutting off support for the gondola which plummeted to the ground nearly 600 feet. The accident killed 20 people. The only manner in which a pre trial presentation could show the jury exactly what occurred during the accident was by recreating the incident. The Italian Government absolutely refused the defence attorneys, who had obtained a jet to recreate a flight path in the same valley, in order to recreate the incident. The only viable alternative available to the defence attorneys was to recreate the flight path with computer-based simulation, which was offered by a firm called Visual Forensics. Although such recreation through digital technology was possible using a helicopter-based global positioning system through a recording of a low speed flight through the valley followed by a digital recalibration of the film simulating the jet’s air speed of 600 mph, by the time Visual Forensics were ready for the digital reconstruction, snow and ground conditions had been rendered significantly different from the photographic record of the accident scene. Another debilitating factor was that no one was able to map out with precision the exact flight path during the critical last phase of the jet’s approach. The jet’s black box was not sophisticated enough to provide spatial coordinates to pinpoint the aircraft’s precise altitude and trajectory. The entire accident, to the most precise detail, could have been captured in earth photos taken from space platforms which now reveal precise and sharp spatial, temporal and spectral information about happenings on earth. This is accomplished by satellites circling the earth from 400 miles in space at 16,000 miles per hour and having the capacity to transmit data to the ground at high speed rates. Assisted by the global positioning system (GPS), these satellites are able to determine their orbital position in a precise and sharp way which permits them to position with high accuracy ground features for mapping and other applications within a few meters. Additionally, high-resolution space cameras which have the capability of multispectral (blue, green, red and near infra-red) imagery, have the capacity and ability to identify objects positioned on the ground which have hitherto been invisible to the human eye. This incredibly sophisticated technology makes detection and identification of objects as small as one meter now possible. The ultimate result could be that satellite imagery could not only be invaluable for agricultural, environmental, land use, hydrocarbon exploration and disaster assessment but it could also be an innovative evidentiary tool for litigators. The Commercial availability and capability of production of higher resolution spaceborne imagery is now establishing space imagery as a compelling tool in litigation. Therefore, a legal community poised to enter the frontiers of space age technology will find in space imagery cogent and clear evidence analogous to DNA

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evidence that is now being used in the forensic determination of bio medical identification. Satellite imagery involves a process which uses cameras or sensor systems usually mounted on an orbiting satellite that capture light reflected from the earthâ&#x20AC;&#x2122;s surface. The fundamental principle of this imagery process is that natural and manmade materials absorb and reflect varying quantities of light in different wavelengths and, through this absorption and reflection process, energy (light) enables satellite sensors to collect data by interacting with objects on the surface of the earth such as plants, soils and buildings in a way that makes possible the extraction of such data and information. Such information is absorbed by the camera/sensor system on the orbiting satellite and transmitted back to earth in a digital format and transformed or converted to images that are capable of being interpreted by sophisticated image processing software. This process makes satellite imagery ideally applicable to the requirement for detail pertaining to large area coverage such as regional cartography, environmental assessment, infrastructure planning and agricultural monitoring.150 A significant development in recent satellite imagery through spatial information is the launching of the highest resolution commercial remote sensing satellite with an on-board digital camera having the capability of producing one-meter or better resolution at nadir to focus on the lowest point in the panchromatic, full spectrum mode and four-meter resolution imagery in the red, green, blue and near infra-red (NIR) bands. Such a one-meter resolution will enable the user to distinguish between objects which are one meter in size on the ground if they have distinguishable physical and visual characteristics. Easily detectable under this spatial recognition system are stripes in parking lots, swimming pools, cars, trucks, boats, tennis courts, landscape features, all within their surroundings and environs. Satellite imagery is not restricted to photography. New sophisticated electronic sensors enable even more powerful imagery that mere photosâ&#x20AC;&#x201D;digital data that can be analysed, processed and interpreted on computersâ&#x20AC;&#x201D;computer analysis in digital format admits of possibilities for data to be used in multifarious ways using differences in spectral responses from ground features. The usefulness of this process is emphasized and highlighted when satellite imagery is used in conjunction with the geographic information system (GIS) and the global positioning system (GPS), which together can construct a complete model of an area. The dynamic applications of a spatial satellite imaging system will be invaluable to attorneys, insurers and risk managers in acquiring data and information on natural and man-made disasters. The Chernobyl Nuclear Plant disaster and the Exxon Valdez oil spill in Alaska are two such incidents which were tracked and recorded for use by television and major newspaper media. The most significant area of contribution is in prediction or preparation where, a satellite just overhead of a disaster area can identify through its imagery an impending disaster or occurrence.

150

See KPMG. Marwick (1998) at p.5.

2.9

Space Law Applications

The essential activity which forms a basis for satellite imagery is remote sensing. Remote sending is the use of satellite technology in obtaining pictures of a territory on earth. This activity is covered by the Outer Space Treaty of 1967151 which came into force on 10 October 1967. This treaty obliges signatory States to inform the United Nations Secretary General, the public and the international scientific community of the â&#x20AC;&#x153;nature, conduct, locations and resultsâ&#x20AC;? of space activities.152 The Space Treaty also imposes international responsibility upon signatory States regarding private sector activities conducted within their territories resulting in activities in space by such private sector entities.153 This, notwithstanding the collection of satellite images through remote sensing or other technology, is not prohibited under international law since no international treaty contains any specific provision precluding the satellite imaging of objects or places on earth. Moreover, there is no known definition of remote sensing which is essentially the science or art of obtaining information about an object, area or phenomenon through the analysis of data acquired by a device that is not in contact with the object, area or phenomenon under investigation.154 At the incipient stage of remote sensing applications, the deployment of remote sensing satellites were for military strategic purposes, remote sensing can now be used to further scientific and discovery objectives. Commercial pursuit of remote sensing for scientific and discovery objectives, called civil remote sensing, is usually conducted by agencies, organizations and individuals who exploit remote sensing systems and data to promote the general welfare and provide for the public good.155 Commercial remote sensing may be impelled by the motive to make profit, either through procurement or sale of data obtained through sensing.156 A legal regime applying a codification of customary legal principles calculated to bind nations and private enterprises through nations was set up in 1987 by the United Nations, when it adopted Resolution 41/65.157 This resolution was a carefully thought out one, which took the United States and other nations involved 13 years to draft, beginning 1974. The remote sensing principles, as established by Resolution A41/65 admit of access and distribution of data and information generated by remote sensing systems. This activity has its genesis in the Outer Space

151

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, the Moon and other Celestial Bodies, 27 January 1967, 610 U.N.T.S. 205, 18 U.S.T. 2410, T.I.A.S. No.6347, 6.I.L.M. 386 (entered into force on 10 October 1967). 152 Id. Article XI. 153 Id. Article VI. 154 See Lillesand and Kiefer (1979) at p. 1. 155 Johnson et al (1993) at p. 2. 156 Id. at p. 2 and 3. 157 United Nations Principles Relating to Remote Sensing of the Earth from Space, G.A. Res 41/65 (XLII), UN GOAR, 29 Sess. 95th Plen. Mtg., UN Doc A/RES/41/65 (1987) ann. at p. 2.

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Treaty of 1967 which stipulates that the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit of and in the interest of all countries, on the basis of equality. Article IX of the Treaty embodies a principle of cooperation between nations and provides that the exploration and use of outer space shall be carried out by States parties in a spirit of cooperation and mutual assistance and with due regard to the corresponding interests of all other parties to the Treaty.

2.10

Outer Space Treaty Law

The legal and philosophical bases of space law form the antithesis of those applicable to air law in that space law is grounded on the principle that outer space is the common heritage of mankind and that no State or individual can therefore claim rights in rem to any portion of outer space. Air law, on the other hand, is firmly entrenched in the principle of sovereignty of States, so that a State may lay claims to rights over the airspace above its territory.158 This essentially means that while the implementation of air law is heavily influenced by municipal law, space law is solely grounded on legal principles binding on the community of nations. Principles of public international law therefore play an exclusive part in the application of space law principles. In terms of jurisprudence, space law represents the Idealist school which supports community interest over national interest, while air law represents the Realist school which advocates that national interests are pre-eminent considerations for all purposes. The Idealist school believes that individual interests should best be served by collective intercourse and is best illustrated by the view of Lauterpacht who was of the view: a community may be said to be the body of a number of individuals more or less bound together through such common interests as to create a manifold intercourse between single individuals.159

Legal principles relating to the international community necessarily emanate collectively from that community as a body of rules which require the consent of the community. An examination of the philosophy of space law therefore essentially requires an examination of the nature of public international law itself. This paper will discuss the philosophical basis of the common heritage principle of space law, through an evaluation of public international law and its relation to each other. Space law is one of the most recent additions to international jurisprudence. That it pertains to one of the most highly technology intensive activities is an incontrovertible fact and was made evident with the successful launch of the Space Shuttle 158

See Abeyratne (1992) at pp. 135â&#x20AC;&#x201C;144. Lauterpacht (1955) at p. 11.

159

2.10

Outer Space Treaty Law

“Columbia” on 12 April 1981, where the world entered a new age of space exploitation, leaving behind the period of space exploration which seemingly started in 1957 with the launch of the Russian “Sputnik”. Understandably, the world was elated in 1981 with the phenomenon of the space shuttle to the extent that a space technologist at NASA predicted I am convinced that by 1990 people will be going on the shuttle routinely - as an aircraft. . .160

Of course, it has not happened quite that way yet. One must concede, however, that the expert’s prophecy was at least partially correct in that by 1990 we were actively involved with the concept of the aerospace plane, of which the space shuttle was a precursor. The emergent philosophical problem posed by space law, in its offer to mankind of a new dimension of transportation law and property law, was succinctly subsumed by Professor Bockstiegel in 1983: (Space law) . . . is the newest main field of international law . . . and it depends more than most other fields on probable and fast technical progress . . .161 It is obvious that the application of space technology will lead to the growing commercialization of space activities, since such service—at least in the long run—can only be maintained and expanded, if it is self financing . . .162

The blending of high technology with a new forensic code of conduct on hitherto uncharted territory has brought to bear the need for the community of nations to formulate a sustainable legal theory that would ensure non-exploitation of space resources by individuals or States, while at the same time incorporating the element of responsibility and liability for individual and State conduct in outer space. As mentioned earlier, the basic principle of space law is the “common interest” (or common heritage) principle which emerged as a result of the first specific Resolution on space law of the United Nations General Assembly in 1958.163 The “common interest” principle has since been incorporated in subsequent multilateral treaties, particularly the Outer Space Treaty of 1967,164 Article 1(1) which provides: [T]he exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

This provision, which binds signatory States, is seemingly a departure from the traditional “national interest” approach of international air law and has represented 160

See National Geographic, March 1981, at p. 317. B€ockstiegel (1983) at p. 305. 162 Id. At p. 314. 163 UNGA Resolution 1348 (XII), 13 December 1958. 164 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for Signature at Moscow, London and Washington on 27 January 1967, 610 UNTS 205. 161

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a moral obligation to some,165 while to others the provision has represented a jus cogens or mandatory legal principle.166 If it can be accepted that a principle of jus cogens creates obligations erga omnes, it becomes an undeniable fact that Article 1(1) of the Outer Space Treaty could be considered a peremptory norm or jus cogens, since it generates obligations towards the international community as a whole. Christol observes: Article 1 Paragraph 1 of the Space Treaty, with its adoption of the common benefits and interests guarantee, can be supported (as an example of peremptory norms) because the provisions conform to moral law in the sense that all humankind is to benefit unconditionally, and because the terms are consistent with the spirit and the purposes identified in Article 1 Pars. 1 through 3 and Article 2 Pars 1 through 4 of the UN Charter, as well as with complimentary international agreements of lesser authority. To the extent that the terms are beneficial to individuals, the larger community, and States, and when the provisions are found on the fundamental moral principles contained in the foregoing paragraphs of Article 1 and 2 of the UN Charter, such basic principles qualify for the status of peremptory norms of general international law.167

The effect of this observation is that the content and nature of Article 1(1) confirms that it is a jus cogens. There is seemingly no reason why the international community should not give such recognition to the â&#x20AC;&#x153;common interestâ&#x20AC;? principle as enshrined in Article 1(1) which is aimed at the protection of the interests of the international community as a whole. A fortiori, on the same basis, Article IX of the Outer Space Treaty which requires that States should avoid harmful contamination and adverse change in the environment of the Earth which may result from the exploration of outer space would incontrovertibly be considered jus cogens. Article VI of the Outer Space Treaty provides in part that State Parties to the Treaty shall bear international responsibility for national activities in outer space, whether such activities are carried out by governmental agencies or non-governmental agencies. This provision clearly introduces the notion of strict liability erga omnes to the application of the jus cogens principle relating to outer space activities of States and could be considered applicable in instances where States hold out to the international community as providers of technology achieved and used by them in outer space, which is used for purposes of air navigation. Article VI further requires that the activities of non-governmental entities in outer space shall require authorization and continuing supervision by the appropriate State Party to the Treaty, thus ensuring that the State whose nationality the entity bears would be vicariously answerable for the activities of that organization, thereby imputing liability to the State concerned. Article VII makes a State Party internationally liable to another State Party for damage caused by a space object launched by that State.

165

Goedhuis (1976) 195 at 198â&#x20AC;&#x201C;199. Also Cheng (1968), 532 at 578. Markoff (1976) at 3. Also, Matte (1980) 1 119 at 147. R.S. Jakhu, Developing Countries and the Fundamental Principles of International Space Law (Girardot et al. ed.), 351. Christol (1983) at 1. 167 Christol, supra, note 98 in this chapter at 6. 166

2.10

Outer Space Treaty Law

The Registration Convention of 1974168 in Article II(1) requires a launching State of a space object that is launched into earth orbit or beyond, to register such space object by means of an entry in an appropriate registry which it shall maintains and inform the Secretary General of the United Nations of the establishment of such a registry. This provision ensures that the international community is kept aware of which State is responsible for which space object and enables the United Nations to observe outer space activities of States. Article VI of the Convention makes it an obligation of all State Parties, including those that possess space monitoring and tracking facilities, to render assistance in identifying a space object which causes damage to other space objects or persons. Justice Manfred Lachs analyses these provisions of the Registration Convention to mean that the State of registry and the location of the space object would govern jurisdictional issues arising out of the legal status of space objects.169 On the issue of joint launching of space objects, Justice Lachs observes: No difficulties arise whenever a State launches its own object from its own territory; the same applies to objects owned or launched by non-governmental agencies registered in that State. However, in cases of joint launching, agreement between the parties is required as to which of them is to be deemed the State of Registry:. A similar agreement is also necessary when a launching is carried out by an international organization.170

The above provision ensures the identification of parties responsible for specific activities in outer space and thereby makes it easier to impose liability for environmental damage caused. The Outer Space Treaty,171 while expostulating the fundamental principle in its Article 1 that the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, explicitly imposes in Article VII international liability and responsibility on each State Party to the Treaty, for damage caused to another State Party or to its populace (whether national or juridical) by the launch or procurement of launch of an object into outer space. In its preceding provisions the Treaty imposes international responsibility on States Parties for national activities conducted in outer space. The Treaty also requires its States Parties to be guided by the principle of co-operation and mutual assistance in the conduct of all their activities in outer space.172 This overall principle is further elucidated in the same provision:

168

Convention on Registration of Objects Launched into Outer Space, Adopted by the General Assembly of the United Nations, New York, 12 November 1974, 1023 UNTS 15. 169 Lachs (1972) at 70. 170 Ibid. 171 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature at Moscow, London and Washington, 27 January 1967. Supra, note 2 in Chap. 1. 172 Id. Article IX.

2 The Provision of Air Traffic Services States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extra terrestrial matter.173

The Moon Agreement174of 1979 provides that in the exploration and use of the moon, States Parties shall take measures inter alia to avoid harmfully affecting the environment of the earth through the introduction of extra terrestrial matter or otherwise.175 The Liability Convention176 contains a provision which lays down the legal remedy in instances of damage caused by Space objects. Article II provides: A launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft in flight.177

thereby imposing a regime of absolute liability on the State that launches space objects such as satellites, which provide technology and communication that is used for air navigational purposes. Although admittedly, both the Outer Space Treaty and the Liability Convention do not explicitly provide for damage caused by technology and communication provided by space objects, culpability arising from the “common interest” principle and liability provisions of the two conventions can be imputed to States under these Conventions. Gorove states that in the field of international space law, two clearly connected terms have been used: liability and responsibility.178 Although “responsibility” has not been cohesively interpreted in any legal treaty relating to outer space, “liability” occurs in the Liability Convention and is sufficiently clear therein. This, however, does not mean that State responsibility is not relevant to the obligations of States law as, in international relations, the invasion of a right or other legal interest of one subject of the law by another inevitably creates legal responsibility. Professor Brownlie observes: [T]oday, one can regard responsibility as a general principle of international law, a concomitant of substantive rules and of the supposition that acts and omissions may be categorized as illegal by reference to the rules establishing rights and duties. Shortly, the law of responsibility is concerned with the incidence and consequence of illegal acts, and particularly the payment of compensation for loss caused.179

173

Ibid. Agreement Governing the Activities of States on the Moon and other Celestial Bodies, signed on 5 December 1979, UN Doc A/RES/34/68 of 5/12/1979. 175 Id. Article 7. 176 Convention on International Liability for Damage Caused by Space Objects, March 29 1972, 24 U.S.T 2389, T.I.A.S No. 7762. 177 Article II(a) defines damage as including loss of life, personal,injury or other impairment of health; or loss or damage to property of States or of persons natural or juridical, or property of international governmental organizations. 178 Gorove (1983) at 373. 179 Brownlie (1990) at 433. 174

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Outer Space Treaty Law

International responsibility relates both to breaches of treaty provisions and other breaches of legal duty. In the Spanish Zone of Morocco Claims case, Justice Huber observed: [R]esponsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make reparation.180

There is also explicit recognition that principles of international law apply to space law. The General Assembly of the United Nations in 1961 adopted the view that international law, including the Charter of the United Nations, applies to outer space and celestial bodies.181 It is also now recognized as a principle of international law that the breach of a duty involves an obligation to make reparation appropriately and adequately. This reparation is regarded as the indispensable complement of a failure to apply a convention and is applied as an inarticulate premise that need not be stated in the breached convention itself.182 The ICJ affirmed this principle in 1949 in the Corfu Channel Case183 by holding that Albania was responsible under international law to pay compensation to the United Kingdom for not warning that Albania had laid mines in Albanian waters which caused explosions, damaging ships belonging to the United Kingdom. Since the treaty law provisions of liability and the general principles of international law as discussed complement each other in endorsing the liability of States to compensate for damage caused by space objects, there is no contention as to whether in the use of nuclear power sources in outer space, damage caused by the uses of space objects or use thereof would not go uncompensated. The rationale for the award of compensation is explicitly included in Article XII of the Liability Convention which requires that the person aggrieved or injured should be restored (by the award of compensation to him) to the condition in which he would have been if the damage had not occurred. Furthermore, under the principles of international law, moral damages based on pain, suffering and humiliation, as well as on other considerations, are considered recoverable.184 As discussed, both treaty law and general principles of international law on the subject of space law make the two elements of liability and responsibility a means to an endâ&#x20AC;&#x201D;that of awarding compensation to an aggrieved State or other subject under the law. Therefore, in view of the many legal issues that may arise, the primary purpose of a regulatory body which sets standards on State involvement in issues concerning the use of space technology would be to carefully consider the subtleties of responsibility and liability and explore their consequences on States

180

1925 RIAA ii 615 at 641. Resolution 1721 (XVI) adopted on 20 December 1961. See also Article 3 of the Outer Space Treaty. 182 In Re. Chorzow Factory (Jurisdiction) Case, (1927) PCIJ, Ser. A, no. 9 at 21. 183 ICJ Reports (1949), 4 at 23. 184 Christol (1991) at 231. 181

2 The Provision of Air Traffic Services

and others involved as they apply to the overall concept of the status of a State as a user of space technology which may cause harm or injury to the latter. The most significant contribution of satellite images as evidence is through their detail and their availability in close proximity to an accident or other litigation causing event. Satellite images have been used in the United States from 1974. In United States v. Reserve Mining185 satellite images were admitted into evidence to illustrate the dispersion of taconite tailings by a mining company. In 1988, the Courts, while rejecting the evidence of an expert witness that flooding had increased in a particular area, accepted satellite imagery on the same point as evidence.186 There are two ways in which jurisdictions in the United States accept satellite images as evidence: as demonstrative evidence; and as scientific evidence. In the first instance, those images are largely recognized as evidence that would sum up or calculate voluminous evidence which cannot conveniently be examined in Court.187 This judicial approach accommodates space imaging’s CARTERRA product which generates maps, reports and three dimensional images from geographic information systems (GIS) and remote sensing tools. The CARTERRA product reduces complex, voluminous data into scientifically accurate and sharply illustrative charts. The principle of accepting illustrative charts as evidence that could be more illustrative and enlightening to a jury was recognized in 1965 in the case of McDaniel v.U.S.188 In the 1984 case of People v. McHugh189 graphic computer presentations were accepted by the Court as being a chart or diagram acceptable in evidence. The McHugh case was the first instance where a graphic computer presentation was admitted as evidence in a criminal trial and the Court recognized in this instance that computers are simply mechanical tools and when the outcome of a computer analysis is useful and clear it should be accepted, while any computer output which was confusing should be rejected. Satellite images are also considered in some instances as scientific evidence when they corroborate or prove an opinion given by an expert or when they provide sufficient data for an expert to reasonably base an opinion or conclusion.190 However, in the 1993 case of Daubert v. Merrell Dow Pharm., Inc.191 the trial

185

380 F. Supp. 11 (D-Minn. 1974). Gasser v. United States 14 CI.Cf.476 (1988). 187 Federal Regulation 1006 provides: “the contents or voluminous writings, recordings or photographs which cannot conveniently be examined by Court may be presented in the form of a chart, summary or calculation.” See also Sharon H. Hodge, Satellite Data and Environmental Law; Technology Ripe for Litigation Application, 14 Pace Env. L.Rev.691 at 718 (1997). 188 343 F. 2d. 785 (5th Circ. 1965). 189 124 Misc. 2d. 559, at 560 also 476 N.Y.S. 2d. 721, at 722. 190 Federal Evidence Rule 702 provides that: “if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise”. 191 509 U.S. 579 at 590. 186

2.10

Outer Space Treaty Law

Court emphasized that such evidence will be admitted with caution, where the Court would act as “gate keeper” and will ensure that evidence so submitted will be not only relevant but also reliable.192 The Court in the Daubert case added that the admissibility of remote sensing information must be examined within the context of the general requirements for admission of scientific evidence and expert opinion. A year later, the Tenth Circuit in Robinson v. Missouri Pacific R.R.Co.193 interpreted the Daubert principle to be flexible, when it decided to admit a computer animation which demonstrated an expert’s opinion relating to the cause of a railroad accident. According to the Appellate Court in Robinson, any scientific evidence should have as its overarching objection the scientific validity of evidence presented and must establish the evidentiary reliability and relevance of the principles that underlie a proposed submission. Opponents of the use of satellite imagery may argue that such imagery is not admissible on the ground and that they constitute hearsay evidence . This can be obviated by conjoining satellite imagery with an expert’s testimony since remote sensing data is transmitted to earth in digital format prior to being converted to an interpretable picture, requiring an individual to enter data to produce a recognizable satellite image. In United States v. Elkins194 it was held that expert testimony may well include hearsay evidence if the basis of the testimony is relied upon to a reasonable degree by members of the expert’s profession. In order to admit satellite imagery at a trial, litigators have to qualify an expert to introduce and explain such imagery; authenticate and prove the contents of data carried in the images; and establish that proper and accepted digital imagery processing techniques were employed. The last two criteria are stringently relied upon by the Courts which recognize that satellite imagery can be manipulated just as photographs, video tapes and computer simulations which generate visual evidence can.195 In addition, the expert must also establish to Court that the computer used in processing the satellite images was functioning properly; the scientific analysis used was sufficiently accurate and comprehensive; and the data were relevant and reliable. The satellite imagery submitted as evidence must also be authenticated, i.e., the person bringing forth the evidence must prove that it is what it purports to be.196 Establishment of this fact is contingent upon the proper handling of data by the satellite data collection company and the transporter of the data and use of an approved scientific method by the expert who interprets the data.197 Also, a litigator

192 See also, Kumho Tire Co. v. Carmichael, U.S., 119 S.ct.1167 at 1170 (1999) and Pittston Co. v. Allianz Ins. Co. 805 F.Supp. 1279, at 1370 (D.N.J. 1995). 193 16 F. 3d. 1083 (10th Circ. 1994). 194 885 F. 2d. 775 (11th Circ. 1989). 195 See, supra, note 187 in this chapter at 717, 727–728. 196 U.S. Fed. R. Evid. 901 (B)(9). 197 Carole E. Powell, Computer Generated Visual Evidence: Does Daubert make a Difference? 12 Ga. St. U.L.Rev. 577 at 585 (1996).

2 The Provision of Air Traffic Services

may use similar evidence, such as aerial photography or maps taken on the ground, to authenticate the accuracy and veracity of satellite images. Although distortion of imagery has to be addressed, generally the Courts have accepted that distortion would be remote if the criteria set, as discussed above, are met. The 1999 case of Dolan v. Florida198 is a good example, where the Court admitted a computer enhanced image of a surveillance video camera which showed the accused battering a store clerk. Although the tape was of poor quality, the image of the accused and his characteristics were found to be sufficiently clear. The final consideration pertains to the relevance of satellite imagery as evidence. Purely because of their unique characteristics, satellite images would be deemed to be relevant as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.199 Nonetheless, a Court will probably carefully examine the evidence to ensure that its probative value is not unduly affected and outweighed by possible unfair prejudice, and confusion of issues. Also important are that there is no undue delay, waste of time, unnecessary presentation of redundant evidence and misleading of the jury. On the last point, Courts have exercised caution in distinguishing between evidence which establishes facts and evidence which merely demonstrate facts. In Datskow v. Teledyne Continental Motors,200 the jury was shown a computer animated video to demonstrate how a fire could start and spread in a plane. The Court expressed confidence that the jury would not give the video undue weightage than it deserved. The judge held that the video did not purport to recreate the accident but that it merely demonstrated an expertâ&#x20AC;&#x2122;s view or theory of what may have caused the accident. The conclusion reached by the Court was that, as long as the distinction was made clear to the jury, there was no cause for concern as to misleading the jury.201 However, a satellite image which would purport to show different ways in which an event may occur may be considered unduly prejudiced. The principle in Pino v. Gauthier,202 where a video animation demonstrating four possible ways in which a car could travel over an expressway was rejected as being prejudicial, would be relevant in this instance as precedent. There is no room for doubt that, in the formulation of space law as a new legal regime, the international community has paid attention to the most significant influence over this discipline of the two superpowers which existed at the time. The two great power blocs, the United States of America and the Union of Soviet Socialist Republics were then the main protagonists (supported by their allies and a few neutral European States and the Third World). This polarization created an environment whereby an ideological balance was required to counter the possibility

198

1999 WL 512093 (Fla. App. 4th dist.). U.S. Fed. R. Evid. 40. 200 826 F.Supp 677 (W.D.N.Y. 1993). 201 Id. at p. 685, see also In re Air Crash Disaster 86 F. 3d. 498 (6th Cir. 1996). 202 633. So. 2d. 638 at p. 652 (La. App. 1st Cir. 1993). 199

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Outer Space Treaty Law

of encroachment by Realist thought which was calculated to establish an outer space legal regime that would have admitted of the creation of real property rights by one power bloc over the other in outer space to the detriment of humankind in general. The detriment envisaged was not only in its physical attributes and apprehension for the physical welfare of humanity, but also in the economic imbalance a Realist approach to space law would have brought to bear. The segmentation of space law into municipal regimes would have resulted in the inexorable endorsement of Realist theory, that States are egotistical utility enhancers and that the freedom of internal legislation would have given States a legal licence to maximise their freedom of outer space activities, thereby obviating any possibility of cooperation with other States. The inevitable corollary to this scenario would have been the avoidance of spreading the benefits of outer space exploration and exploitation among the world. The general delineation of outer space as a common area rather than as an area which could be conquered therefore rested on more traditional ground of international cooperation. However, the reason for the two power blocs to settle on commonality rather than on appropriation as the basis for the philosophy of space law is by no means the result of hard bargaining. It was the preferred choice of both parties. History records that there was no coercion or imposition of one system over another at the time of law making. One commentator says: it resulted from a process of weighing competing proposals based on different analogies and converging on the view that one of the underlying analogies was better than the other.203

Be that as it may, it is not possible to dismiss the pervasive influence exerted by the international legal order in the late 50s when space law was being promulgated. It was this influence which made it possible for the philosophy of space law to be primarily founded upon the concept that, unlike in the formulation of air law in 1944 where States were aware of the economic and technical implications of a tried and tested product, outer space was an unknown quantity, controlled exclusively at that time by two power blocs who had ominous war power, and therefore its philosophy was destined to spread across the globe equally, ensuring commonality and responsibility. Satellite image production commences when digital data are transmitted to the receiving station on the ground from a satellite and are recorded on a magnetic tape. Data so received is adjusted for atmospheric interference and corrected for geometric precision. These processes are necessary and are deemed to be appropriately carried out and if satellite images were to be accepted as evidence. The proliferation of satellite imagery and its prodigious use as an effective source of spatial, temporal and spectral information makes images taken from outer space burgeoning tools for litigators in their quest for success in the trial

203

Peterson (1997), p. 245 at 266.

2 The Provision of Air Traffic Services

process. The most fundamental driver in this process is the acceptance by Courts of satellite imagery as a credible source of information. As explained in this article, there are a few impediments that may preclude this particular kind of evidence as being admitted within the purview of traditional rules of evidence. Questions of authentication, reliability and relevance would be critical issues in this process, along with transparency. However, given the accuracy and safeguards now inherent in sophisticated technology and the advanced expertise of the professionals who analyse and interpret satellite images, this type of evidence may well be widely accepted in the future. The freedom of the use of outer space would be meaningless if one were to reject its many benefits. If the space odyssey has already arrived in the Courts of law, it should not be an unwelcome visitor.

References R.I.R. Abeyratne, The Philosophy of Air Law, 37 Am.J. Jurisprudence (1992), at pp. 135-144 R.I.R. Abeyratne The Evolution from FANS to CNS/ATM and Products Liability of Technology Providers in the United States. Zeitschrift Fur Luft-und Weltraumrecht, Vol.43, No.2; June 1994: p. 156-186 Ruwantissa I.R. Abeyratne, Privatization of Hong Kong International Airport: Some Legal and Economic Issues, Asia Pacific Law Review, Vol.12, No.1; 2004: p. 31–51 Ruwantissa I.R. Abeyratne, Professional Negligence of the International Civil Service and Immunities of International Organizations in National Courts, Journal of Professional Negligence, Vol.21, No.2; 2005: p. 103 at 107 Ruwantissa Abeyratne, State Liability for Negligent Acts of Autonomous Air Navigation Service Providers, The Journal of Professional Negligence, Vol. 22, No. 3, 2006, 176-192 at 181-183 Anthony Aust, Modern Treaty Law and Practice, Cambridge University Press: 2000, at 75 Karl-Heinz B€ockstiegel, Prospects of Future Development in the Law of Outer space, Annals Air and Space Law, Vol VIII, 1983 at p. 305 Ian Brownlie, Principles of Public International Law, Fourth Edition, Clarendon Press, Oxford:1990, at 433 T. Buergenthal, Law Making in the International Civil Aviation Organization, Syracuse University Press: Syracuse, 1969, at 121 Bin Cheng, The Law of International Air Transport, Oceania Publications: London, 1962, at 148 Bin Cheng, The 1967 Space Treaty, 95 Journal du Droit International, 1968, 532 at 578 C.Q. Christol, The Jus Cogens Principle and International Space Law XXVI Colloquium (1983), at 1 Carl Q. Christol, Space Law Past, Present and Future, Kluwer Law and Taxation Publishers, Deventer: 1991 at 231 P.P. Craig, Administrative Law, Fifth Edition, Thomson Sweet & Maxwell: 2003 at 882 Paul Stephen Dempsey, Privatization of the Air: Governmental Liability for Privatized Air Traffic Services, Annals of Air and Space Law, Vol. XXVII, 2003, 95 at 118–119 D. Goedhuis, Some Substantive and Procedural Issues Presently at Stake in Space Legislation, 25 Zeitschrift f€ ur Luft-und Weltraumrecht - German Journal of Air and Space Law 1976 195 at 198-199 Stephen Gorove, Liability in Space Law: An Overview, Annals Air and Space. L. Vol. VIII - 1983 at 373 D.J. Johnson, M. Nelson and R.J. Lampert, U.S. Space-Based Remote Sensing: Challenges and Prospects, Santa Monica, CA: Rand, 1993 at p.2

References

Stefan A. Kaiser, Infrastructure, Airspace and Automation - Air Navigation Issues for the 21st Century, Annals of Air and Space Law, Vol. XX-I, 1995 447 at 455 Manfred Lachs, The Law of Outer Space, An Experience in Contemporary Law Making, Sijthoff Leiden:1972, at 70 H. Lauterpacht, International Law, 8th ed. (1955) at p. 11 T.M. Lillesand and R.W. Kiefer, Remote Sensing and Image Interpretation, New York: John Wiley and Sons, 1979 at p. 1 M.G. Markoff, Disarmament and ‘Peaceful Purposes’ Provisions in the 1967 Outer Space Treaty, 4 Journal of Space Law (1976) at 3 Peat Marwick, The Satellite Remote Sensing Industry – A Global Review, June 1998 at p.5 N.M. Matte, Aerospace Law: Telecommunications Satellites, 166 Recueil des Cours (1980) 1 119 at 147 M. Milde, Legal Aspects of Airports Constructed in the Sea, Public International Air Law, Vol. Two, 2002, ( M. Milde and H. Khadjavi ed.) McGill University Faculty of Law: Montreal at 192 Masako Miyagi, Serious Accidents and Human Factors, American Institute of Aeronautics and Astronautics: Virginia, 2005, at 143 K. Mc Chesney Goodman & S. Davis, Free Flight and the Pilot in Command Concept – A recipe for Disaster? J. Air L. & Com. Vol. 62 No. 3, February –March 1997, 656 at 670 A. Ogus, Regulation, Legal Form and Economic Theory, (Oxford University Press: 1994) Charter M.J. Peterson, The Use of Analogies in Developing Outer Space Law, International Organization 51, 2, Spring 1997, p.245 at 266 Francis Schubert, Pilots and Air Traffic Controllers, Allocating Legal Liabilities in a Free Flight Environment, Annals Air and Sp. L, Vol XXVI, 2001, 197–223 at 198 J.B., Sexton, & R.L Helmreich,.. Analyzing cockpit communication: The links between language, performance, error, and workload. In Proceedings of the Tenth International Symposium on Aviation Psychology: 1999 Columbus, OH: The Ohio State University, 689–695 at 691 H. Street, Governmental Liability, Cambridge University Press: 1953 H.V. Sudharshan, Seamless Sky, Ashgate: Aldershot, 2003 at 2

Chapter 3

Rules of the Air

Article 12 of the Chicago Convention requires each ICAO member State to adopt measures to insure that every aircraft flying over or manoeuvring within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and manoeuvre of aircraft there in force. Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under the Convention. Over the high seas, the rules in force are required to be those established under this Convention. Each contracting State undertakes to insure the prosecution of all persons violating the regulations applicable. Annex 2 to the Convention contains principles of conduct for airborne aircraft.1 This is the only Annex out of the 18 Annexes to the Convention that is considered by ICAO and the international community as inviolable in that its provisions are implicitly mandatory. States should not file differences under Article 38 of the Convention2 although they technically have the 1

In October 1945, the Rules of the Air and Air Traffic Control (RAC) Division at its first session made recommendations for Standards, Practices and Procedures for the Rules of the Air. These were reviewed by the then Air Navigation Committee and approved by the Council on 25 February 1946. They were published as “Recommendations for Standards, Practices and Procedures — Rules of the Air” in the first part of Doc 2010, published in February 1946. The RAC Division, at its second session in December 1946–January 1947, reviewed Doc 2010 and proposed Standards and Recommended Practices for the Rules of the Air. These were adopted by the Council as Standards and Recommended Practices relating to Rules of the Air on 15 April 1948, pursuant to Article 37 of the Convention on International Civil Aviation (Chicago, 1944) and designated as Annex 2 to the Convention with the title “International Standards and Recommended Practices — Rules of the Air”. They became effective on 15 September 1948. On 27 November 1951, the Council adopted a complete new text of the Annex, which no longer contained Recommended Practices. The Standards of the amended Annex 2 (Amendment 1) became effective on 1 April 1952 and applicable on 1 September 1952. 2 Article 38 States: “Any State which finds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the International Civil

R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_3, # Springer-Verlag Berlin Heidelberg 2012

3 Rules of the Air

right to.3 Air travel must be safe and efficient; this requires, among other things, a set of internationally agreed rules of the air. The rules developed by ICAO—which consist of general rules, visual flight rules and instrument flight rules contained in Annex 2, apply without exception over the high seas, and over national territories to the extent that they do not conflict with the rules of the State being overflown. The pilot-in-command of an aircraft is responsible for compliance with the rules of the air. The Annex requires that an aircraft must be flown in accordance with the general rules and either the visual flight rules (VFR) or the instrument flight rules (IFR). Flight in accordance with visual flight rules is permitted if a flight crew is able to remain clear of clouds by a distance of at least 1,500 m horizontally and at least 300 m (1,000 ft) vertically and to maintain a forward visibility of at least 8 km. For flights in some portions of the airspace and at low altitudes, and for helicopters, the requirements are less stringent. An aircraft cannot be flown under VFR at night or above 6,100 m (20,000 ft) except by special permission. Balloons are classified as aircraft, but unmanned free balloons can be flown only under specified conditions detailed in the Annex. Instrument flight rules must be complied with in weather conditions other than those mentioned above. A State may also require that they be applied in designated airspaces regardless of weather conditions, or a pilot may choose to apply them even if the weather is good. Most airliners fly under IFR at all times. Depending upon the type of airspace, these aircraft are provided with air traffic control service, air traffic advisory service or flight information service regardless of weather conditions. To fly under IFR, an aircraft must be equipped with suitable instruments and navigation equipment appropriate to the route to be flown. When operating under air traffic control the aircraft must maintain precisely the route and altitude that have been assigned to it and keep air traffic control informed about its position. A flight plan must be filed with air traffic services units for all flights that will cross Aviation Organization of the differences between its own practice and that established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within sixty days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take. In any such case, the Council shall make immediate notification to all other states of the difference which exists between one or more features of an international standard and the corresponding national practice of that State”. 3 Annex 2 in its Foreword states: “The attention of Contracting States is drawn to the obligation imposed by Article 38 of the Convention by which Contracting States are required to notify the Organization of any differences between their national regulations and practices and the International Standards contained in this Annex and any amendments thereto. Contracting States are invited to keep the Organization currently informed of any differences which may subsequently occur, or of the withdrawal of any differences previously notified. Contracting States are also invited to notify the Organization of any differences between their national regulations and practices and the special recommendations contained in Attachment A to this Annex. A specific request for notification of differences will be sent to Contracting States immediately after the adoption of each amendment to this Annex”. See Annex 2 to the Convention on International Civil Aviation, Rules of the Air, International Standards, Ninth Edition, July 1990.

3 Rules of the Air

international borders, and for most other flights that are engaged in commercial operations. The flight plan provides information on the aircraft’s identity and equipment, the point and time of departure, the route and altitude to be flown, the destination and estimated time of arrival, and the alternate airport to be used should landing at destination be impossible. The flight plan must also specify whether the flight will be carried out under visual or instrument flight rules. Regardless of the type of flight plan, the pilots are responsible for avoiding collisions when in visual flight conditions, in accordance with the principle of seeand-avoid. However, flights operating under IFR are either kept separated by air traffic control units or provided with collision hazard information. Right-of-way rules in the air are similar to those on the surface, but, as aircraft operate in three dimensions, some additional rules are required. When two aircraft are converging at approximately the same level, the aircraft on the right has the right of way except that aeroplanes must give way to airships, gliders and balloons, and to aircraft which are towing objects. An aircraft which is being overtaken has the right of way and the overtaking aircraft must remain clear by altering heading to the right. When two aircraft are approaching each other head on they must both alter heading to the right. As interceptions of civil aircraft are, in all cases, potentially hazardous, the Council of ICAO has formulated special recommendations in Annex 2 which States are urged to implement through appropriate regulatory and administrative action. These special recommendations are contained in Attachment A to the Annex All these rules, when complied with by all concerned, help make for safe and efficient flight. The Standards in Annex 2, together with the Standards and Recommended Practices of Annex 11, govern the application of the “Procedures for Air Navigation Services—Rules of the Air and Air Traffic Services” and the “Regional Supplementary Procedures—Rules of the Air and Air Traffic Services”, in which latter document will be found subsidiary procedures of regional application. It should be noted that the in the context of flights over the high seas, the ICAO Council resolved, in adopting Annex 2 in April 1948 and Amendment 1 to the said Annex in November 1951, that the Annex constitutes Rules relating to the flight and manoeuvre of aircraft within the meaning of Article 12 of the Convention. Over the high seas, therefore, these rules apply without exception. The fundamental postulate of the Annex is that the rules of the air as contained in the Annex apply to aircraft bearing the nationality and registration marks of a Contracting State, wherever they may be, to the extent that they do not conflict with the rules published by the State having jurisdiction over the territory overflown.4 In this context it must be noted that aircraft derive their nationality from the States in which they are registered.5 Also the Chicago Convention provides that an aircraft 4

Standard 2.1.1. of Annex 2. The Council of ICAO resolved, in adopting Annex 2 in April 1948 and Amendment 1 to the d Annex in November 1951, that the Annex constituted Rules relating to the flight and manoeuvre of aircraft within the meaning of Article 12 of the Chicago Convention. Over the high seas, therefore, these rules apply without exception. 5 As per Article 17 of the Chicago Convention.

3 Rules of the Air

cannot be validly registered in more than one State, but its registration may be changed from one State to another.6 The Annex further provides that if, and so long as, an ICAO member State has not notified ICAO to the contrary, it shall be taken, as regards aircraft of its registration, to have agreed that for purposes of flight over those parts of the high seas where a State has accepted, pursuant to a regional air navigation agreement, the responsibility of providing air traffic services, the “appropriate ATS authority” referred to in the Annex would be the relevant authority designated by the State responsible for providing those services.7 One of the compelling provisions in the Annex is contained in Standard 2.3.1 which states: the pilot-in-command of an aircraft shall, whether manipulating the controls or not, be responsible for the operation of the aircraft in accordance with the rules of the air, except that the pilot-in-command may depart from these rules in circumstances that render such departure absolutely necessary in the interests of safety.

The responsibility of the pilot in command under rules of the air is both critical and grave. Standard 2.4 of the Annex states that The pilot-in-command of an aircraft shall have final authority as to the disposition of the aircraft while in command. It is therefore quite obvious that irresponsible conduct that would lead to an accident or incident would bring to bear negligence of the part of the pilot in command. For the purposes of this discussion, a professional pilot is a person who engages in such flying as makes it necessary that he or she holds a valid airline transport pilot’s license (ATPL). This discussion will therefore not involve the professional conduct of persons who are holders of private pilots’ licenses and use such licences for non remunerative flights, or flights which do not involve payment of monies for services rendered in flying aircraft. Also excluded are holders of ATPLs who happen to fly on particular occasions under circumstances where a private pilot’s license would be adequate, for instance, when a person who flies a recreational flight or on personal business although he may hold an ATPL. There are several provisions of law in the United Kingdom which apply to the professional commercial pilot. Firstly, Article 81(1) of the Civil Aviation Act of 1982 provides that where an aircraft is flown in such a manner as to be the cause of unnecessary danger to any person or property on land or on water, the pilot or the person in charge of aircraft, and also the owner thereof, unless he proves to the satisfaction of the court that the aircraft was flown without his actual fault or privity, shall be liable and on summary conviction to fine not exceeding up to a particular scale8 or to imprisonment for a term not exceeding 6 months or to both.

Article 18 of the Chicago Convention. Annex 2, Standard 2.1.2. 8 Consequent to the enactment in the United Kingdom of the Criminal Justice Act of 1982, Section 37 of the Act provides that maximum fines that may be imposed by a magistrate’s court are fixed by and reference to standard scales. The intent of this provision is to accord some flexibility to the Home Secretary to vary the scales in accordance with currency fluctuations. 7

3.1

Negligence of the Airline Pilot

In addition to the above provision, Articles 55 of the Air Navigation Order of 1995 stipulate that a person shall not recklessly or negligently act in a manner likely to endanger an aircraft or any person on board. Article 56 provides that a person shall not recklessly or negligently cause or permit an aircraft to endanger any person or property. Legal requirements notwithstanding, assessments carried out from 1977 up-todate reveal that pilot decision-making is a significant factor in aircraft accidents. In 1977, Jensen and Benel9 reported that 35% of all non-fateful and 52% of all fateful general aviation accidents in the United States during the period from 1970 to 1974 could be attributed to faulty pilot decision-making. In 1991 Diehl10â&#x20AC;&#x201D;another researcherâ&#x20AC;&#x201D;using the methodology of Jensen and Benel, concluded that 56% and 50% of aircraft accidents in commercial aviation and the tree aviation respectively were attributable to pilot era all told decision-making on art of the pilot. Commercial airline pilots operate in a highly complex environment, particularly in single pilot operations. The difficulties faced by pilots in the work environment are compounded by the fact that often inadequate information aggravates the problem. Pilots rely heavily on their visual and auditory senses while flying, and it is of paramount importance that accurate information be available to the pilot at all times. Most importantly, pilots have usually the predilection to complete their given schedule no matter what, such as competing a flight as planned, meeting schedules, impressing their employees and pleasing the people they carry. Therefore negligent issues concerning the professional conduct of a pilot are quintessential elements for a highly esoteric legal debate. This discussion will analyse judicial attitudes with regard to negligence of the airline pilot and make observations as to their relevance to the general area of professional negligence.

3.1

Negligence of the Airline Pilot

The tenets of international aviation law attribute to the pilot (hereafter also referred to as the commander) of an aircraft absolute responsibility for the safe operation of his aircraft. Often, this principle is seen to defeat its purpose in the determination of a single instance of professional conduct of the pilot when such is considered to have endangered the safety of the aircraft, its passengers and property. The main reason for this confusion is the clear dichotomy which exists between statutory provisions and international conventions on the one hand which unequivocally lay down the fact of absolute responsibility of the pilot and the treatment of single instances of negligent professional conduct of the pilot in their isolation, on the other. So far, no attempt has been made either by international law and local statute or by judicial decisions to recognize that the conduct of the pilot in the aircraft should be viewed in its entirety, due regard being given to fundamental principles of 9

Jensen et al. (1977). See also, Murray (1997) at 83â&#x20AC;&#x201C;100, at p. 84. Diehl (1990).

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law, the conduct of the pilot as a professional in whose hands lie the lives of hundreds of passengers and who takes on his job assuring his employer that his special skills and expertise would transport the passengers and their property safely under normal circumstances and any special circumstance which would render the effect of that assurance nugatory. The law as it exists lays down a presumption of absolute responsibility of the pilot. In sharp contrast, the adjudication of instances of professional conduct of the pilot shows a clear demarcation between good airmanship and bad airmanship. Of these, the latter shows clear evidence of having been decided on individual merits and not on a general criterion or principle of recognizing the elements of law, special circumstances and the human factor as a composite whole. Therein lies the problem. The following analysis would examine the question of bad airmanship of the pilot in its entirety thereby seeking to introduce certain general principles based on the presumption of responsibility that the law imposes. Such general principles could then be applied to response special circumstances which would thus give rise to special rules pertaining to the professional conduct of the pilot. To achieve this end, an examination and analysis of legal principles, judicial decisions and special circumstances is necessary.

3.2

Applicable Laws and Consequences

According to accepted principles of law as laid down by international convention, it is incontrovertible that the final responsibility for the safe operation of an aircraft lies with the pilot. The Chicago Convention provides that: The pilot-in-command shall be responsible for the operation and safety of the aeroplane and for the safety of all persons on board, during flight time.11

This presumption of responsibility has influenced most States which have signed or ratified the Convention and is reflected clearly in their air navigation laws.12 These laws have been have been observed to list requirements which any pilot with

See Annex 6 to the Convention on International Civil Aviation signed in Chicago on 7 December 1944, Para 4.5.1. Popularly called the Chicago Convention, this Convention sets out universal principles governing international civil aviation and came into effect on 4 April 1947. 12 See The British Air Navigation Order (1985) Article 32, which states, inter alia: The Commander of an aircraft registered in the United Kingdom shall satisfy himself before the aircraft takes off a) that the flight can safely be made, taking into account the latest information available as to the route and aerodromes to be used, the weather reports and forecasts available and any alternative course of action which can be adopted in case the flight cannot be completed as planned;

3.2

Applicable Laws and Consequences

a sense of good airmanship would naturally comply with. Failure to comply with such regulations has been clearly interpreted to be bad airmanship which renders the pilot liable for prosecution on a criminal charge.13 In any event, the fundamental postulate which imposes prima facie responsibility on the pilot has been accepted as a general principle of liability of the pilot which sets the base for determining his legal status and responsibility.14 The legal responsibility placed on the commander of the aircraft is therefore inextricably linked with the expectation of good airmanship. Airmanship has been regarded as an indefinable quality and has been used to describe the intuitive faculty of the pilot where he concerns himself with what is right or wrong in the operation of an aircraft which is acquired by sustained experience in flying.15 Whilst it is: the proper conduct of the normal flight to avoid creating hazard, it is also the ability to overcome potential hazard where failure has occurred. With procedures laid down, drills to cover eventualities and the installation of duplicated equipment it is not surprising that crew error is seen as an element in so many accidents.16

The above analysis seems to suggest that the pilot should be held absolutely responsible for the safety of his flight not only as he lays claim to special expertise but also as he has been given the benefit of sophisticated duplicate equipment which makes his job easier. Thus, the stringent legal responsibility placed upon the pilot is seen to be further justified. The absolute responsibility cast upon the pilot inevitably carries with it absolute and final authority from take off to landing.17 The status of the pilot therefore entails far reaching consequences making an instance of his negligent act open to be interpreted as a dangerous and unlawful act which could justify a charge of manslaughter in the least.18 Criminality of the act of the pilot lies quite independently of the incontrovertible liability in negligence19 which would follow from such act. Yet another consequence that the pilot would face is loss of employment. The pilot who holds a valid licence is considered to be responsible both to the State and to his employer. The employer of the pilot has been recognized to demand of his employee the right to decide whether to continue the employment of a pilot if he

See Price (1976) at pp. 238–239. See also generally the findings of the New Zealand Royal Commission of Inquiry into the 1979 Aft. Erebus DCIO Disaster. 14 See Matte (1975) at 34. See also Escalada (1979) at 210–211, Speiser and Krause (1978), p. 473. 15 Burridge (1977), p. 206. 16 See Hopkins (1977) at 203. See also generally, Escalada (1979) op.cit. at 210; Wijk (1975–1976) 301 at 302. 17 See N.M. Matte, The International Legal Status of the Aircraft Commander, supra, note 121 in Chap. 2, at 34. 18 N.D. Price. Essential Law for Pilots and their Crew 67, at 72–73. See also generally, Kolczvnski (1985) 1 at 4. 19 See generally Shawcross and Beaumont Air Law (4 ed. reissue) at V/86–V/90. The concept of negligence will be discussed at some length later in this article.

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constitutes a threat to air safety in the course of his employment.20 This principle is obviously followed on the basis that the product that the aircraft operator offers the passenger would lose its value totally if his credibility as a safe operator is lost by the negligent act of his pilot. In this perspective, no reputation, however glamorous, would obviate adverse publicity regarding the safety standards of an airline. Further, the pilot naturally hinges his entire capability and eligibility for employment on his ability to transport his passengers and cargo safely from one point to another. To achieve at least minimum standards of safety the employer should ascertain the competence of the pilot on his record at the point of employment and the pilot should justify his employment by the professional conduct that is expected of him and not regard his employer as one who suspiciously watches the performance of his duties. The ideal relationship between the pilot and his employer has been expressed by Captain A.J. Burridge when he said: If the suspicions of pilots can be allayed, and if an atmosphere of mutual trust between pilots and airline managements can be created, I think that responsible pilots could be persuaded to accept that the standard of flight safety we all want requires that Draconian remedies must be applied to cases of really bad airmanship in order to prevent their recurrence.21

3.3

Negligence

The basis of liability in negligence is founded on the principle that when a person owes a duty of care to another, a breach of such duty grounds an action in negligence against the offender.22 The elements of negligence relevant in the case of a pilot is the duty or standard of care he owes and whether that duty has been breached. While the law imposes an objective test of how the “reasonable man” would execute that duty of care in ordinary circumstances which do not require of him some special skill, in the case of a pilot the standard applicable would be that of the reasonable professional pilot. In the words of Mc Nair J: Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is not the test of the reasonable man because he has not this special skill; a man need not possess the highest of expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.23

See Edwards (1977), 209 at 211. A.J. Burridge, “The Dismissal of a Pilot for Poor Airmanship - The Employer’s Point of View”, supra, note 122 in Chap. 2, at. 208. 22 See M’Allister (Donoghue) v. Stevenson 1932 AC 562. 23 Bolam v. Friern Hospital Alanagement Committee (1957) 2 All. E.R. 118 at 121. See also Phillips v. Whiteley (1938) 1 K.B. 566. at 570. 21

3.3

Negligence

The degree of negligent conduct required of a person in charge of transporting passengers and cargo has been set out in clear terms both in cases concerned with the responsibility of a captain at sea and a pilot in command of an aircraft. Brett L.J. delivering judgment on a captain of a ship said: Captains of ships are bound to shew such skills as persons of their position with ordinary nerve ought to shew under the circumstances.24

Perhaps the most significant case involving the negligence of a pilot is the decision in Taylor v. Alidair Limited25 which related to an unfair dismissal action in which a pilot appealed against his dismissal following a heavy landing leading to an uncorrected bounce and the collapse of the nosewheel assembly of the Viscount aircraft he was flying. The aircraft made a heavy touchdown, bouncing 10 ft into the air and touching down heavily again on all three wheels on the runway. There was considerable damage to the engines and air-frame. Bristow J. held that: there are activities in which the degree of professional skill which must be required is so high and the potential consequences of the smallest departure from that high standard are so serious that one failure to perform in accordance with those standards is enough to justify dismissal. The passenger-carrying airline pilot, the scientist operating the nuclear reactor, the chemist in charge of research into possible effect of, for example, thalidomide, the driver of the Manchester to London express, the driver of an articulated lorry full of sulphuric acid, are all in the situation in which one failure to maintain the proper standard of professional skill can bring about a major disaster.26

This decision, which was upheld in appeal in the Court of Appeal27 stems largely from the approach that fundamental principles of tortious liability relating to the duty of care are extended to expect a greater degree of care from a person who undertakes a profession which not only requires special skill but also involves the fact that resultant damage caused by a breach of duty on the part of the professional would be so great as to reasonably expect him to exercise more care than that exercised by the ordinary employee who performs less responsible functions. This rationale has so far been virtually unanimous that one single instance of irresponsible conduct which could cause serious damage would justify stringent legal measures being imposed on the professional. The position of the pilot in command of an aircraft therefore seems to be governed by the application of three presumptions. They are: (a) The special skill and expertise the pilot is presumed to possess, (b) The enhanced duty of care expected of the pilot in view of such special skill and expertise, and (c) The magnitude of the damage that may be caused in the eventuality of a breach of the duty by the care by the pilot.

The Bywell Castle (1879) 4 P.D. 219 at 226. (1976) IRLR 420. 26 Id. 423. See also generally, Australian National Airlines Commission v. The Commonwealth of Australia and Canadian Pacific, Airlines (1974â&#x20AC;&#x201C;75) 132 CLR 582. 27 See (1978) IRLR 82 CA; Air Law, 1978, p. 49. 25

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These three principles are no doubt inextricably connected to one another in that in a high risk profession such as that of the pilot of an aircraft the risks of flying are significant and require the special skills and expertise that a pilot not only possesses but should also use to preclude any eventuality of danger. Indeed, there is strong opinion that it is arguable that a duty would be cast on the employer to remove the pilot at the first clear sign of inefficiency of the pilot.28

3.4

Cases on Negligence

In interpreting the rudiments of liability for negligence, judicial decisions have maintained that there is no liability for negligence unless in a particular instance a legal duty is owed by the defendant to the plaintiff, such duty to be one which is owed to the plaintiff himself and to no other.29 The standard of conduct of the defendant which is required by the common law is that of the reasonable man.30 However, courts have recognized that in exceptional circumstances a person may hold himself out as possessing a special skill or believing on reasonable grounds that he possesses the required skill to perform his duties.31 If such person, having held himself out to claim such special skills does not possess such or if he exhibits conduct showing lack of such skills he would be subjected to the application of the maxim imperitia culpae adnumeratur. The maxim requires professional conduct of a higher degree than that is expected of the reasonable man. Mc Nair J. states: [T]he test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.32

The â&#x20AC;&#x153;ordinary skillâ&#x20AC;? approach adopted in instances where such professionals as doctors, surgeons, chemists and other similar categories have appeared as defendants has not been accepted in its entirety by the courts in cases concerning negligence of the pilot. While the degree of care required of the pilot has been

See Shawcross & Beaumont Air Law, supra, at v/84. See Palsgraf v. Long island R.R. Co (1928) 284 N.Y. 339. See also, Le Lievre v. Gould (1893) 1 Q.B. 491, Bourhill v. Young (1943) A.C. 92. 30 See Vaugban v. Menlove (1837) 3 Bing. N.C. 468. 31 See Daly v. Liverpool Corporation (1939) 2 All.E.R. 142 at 144, Wbiteford v. Hunter (1950) W. N. 533, Randall v. Tarrant (1955) 1 W.L.R. 255 at 259, Bolam v. Friern Hospital Management Committee (1957) 2 All E.R. 118 at 120, and Wells v. Cooper (1958) 2. Q.B. 265. 32 See Bolam v. Friern Hospital Management Committee (1957) 2 All E.R. 118 at 121. See also generally, Phillips v. William Whiteley Ltd (I 938) 1 K.B. 566 at 569. 29

3.4

Cases on Negligence

interpreted to be more a question of fact to be decided by the jury33 the courts have gone so far as to hold that to establish negligence of the pilot the plaintiff would have to present clear evidence of what exactly happened in the aircraft at the time of the alleged negligence of the pilot.34 However, if facts are clear and need no elucidation, the plaintiff need not further enlighten court on the circumstance of the case35 as it can be judged: What was done by the pilot that he ought not to have done, what was left undone by him that he ought to have done.36

However, if the plaintiff is unable to lead clear evidence in instances of ambiguity, even persuasive circumstantial evidence would suffice.37 Taylor v. Alidair Ltd38 is perhaps the most important decision which sets out the principles of liability for negligence of the pilot. In this case, an employment appeal tribunal which examined the appeal of a company which suspended a pilot from flying who had successfully argued against his suspension at an industrial tribunal held that one failure to maintain the proper standard of professional expertise expected of an aircraft commander could bring about a major disaster. Such risk, it was held, was so great that a pilot had to exercise the highest standards of care and skill to ensure the safety of his aircraft its passengers and property. Taylorâ&#x20AC;&#x2122;s case, which concerned the hard landing of an aircraft by the pilot was one which the appeal tribunal found to contain clear facts which enabled the tribunal to assess the conduct of the pilot. The pilot had, due to unskilled handling, hit the runway in a way that it bounced off and could, at that moment, have landed in the proper manner had the pilot exercised his skill as expected of him. There was indeed no evidence to show that after the bounce the situation was irretrievably hopeless. It would not be incorrect to conclude that the findings of the appeal tribunal in Taylorâ&#x20AC;&#x2122;s case clearly lay down the principles that: a) In the instance of an error of omission or commission by a pilot which results in some damage, negligence can be imputed to the pilot. b) If clear facts unequivocally demonstrate the commission of the error, negligence is presumed and, c) Such negligence would incontrovertibly justify the suspension in limine of the pilot.

There have been many cases where, on objective criteria, negligence of the pilot has been established. Such instances as the omission to check quantities of fuel

Steinbock v. Schiewe 330 F. 2d 510 (1964) at 512. United States v. Vigderman 194 F. 2d 977, affirmed in appeal in Vigderman v United States 175. F. Supp. 802 at 807. 35 Vigderman v. United States id. 807â&#x20AC;&#x201C;808. 36 Id. 810. 37 Ibid. 38 Supra, note 25 in this chapter. 34

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carried,39 failure to comply with established proper procedure in pre-flight checks40 and rules of air in flight,41 improper handling of the controls42 and negligence during take off43 have all been decided on the basis that the professional ability and skill professed by the pilot would pre-suppose the justifiable expectation of the pilot to exercise due standards of care. At the least, negligence would be imputed to the pilot and at the most when facts are clear in limine, negligence would be presumed, which may result in the most drastic measures being taken against the pilot. It is clear that Taylor’s case and others of similar circumstances have taken up where provisions of conventions and local laws have left off. The stringent presumption of responsibility placed upon the pilot by written laws has been extended by the cursus curiae to impose a presumption of liability. So far the uniformity of this trend has been undisturbed. Perhaps the only other factor which competes with this proclivity towards uniformity is the immutable objectivity with which the pilot’s actions are viewed in determining his liability. With regard to Articles 55 and 56 of the Air Navigation Order, one can notice that implicit in these provisions is a need for reasonable care or due diligence on the part of the pilot. In the 1994 case of R.v. Adomako44 Lord McKay seemingly followed the earlier rationale of Lord Diplock in R.v. Caldwell45 where His lordship observed as follows: “Reckless” as used in the new statutory definition of the mens rea of these offences is an ordinary English word. It had not, by 1971 become a term of legal art with some limited esoteric meaning than which it bore in ordinary speech, a meaning which surely includes not only deciding to ignore a risk of harmful consequences resulting from one’s acts that one has recognized as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious if there was.46

Although the interpretation given by Lord Diplock in the Caldwell case has been followed in later cases, to the effect that recklessness would cover both an attendant disregard of the reasonable and probable consequences of one’s act by a person who professes special skill such as a pilot, and a negligent act by a “reasonable man”, the offenses envisioned in Articles 55 and 56 of the Air Navigation Act do not necessarily need “recklessness” as an element for culpability of the pilot. Mere negligence is sufficient, on the ground that the pilot does not always have to be

Steinbock v. Scbiewe supra, note 33 in Chap. 3, also, Keenan v. Martin, 13 Avi 18,037 (N.Y. 1975). 40 Union Trust Co v. Eastern Airlines 211 F. 2d. 62. 41 Herrick and Olsen v. Curtiss Flving Service Inc. (I 932) US Av 110 (NY). 42 See Nichols v. Jones 260 So 2d 748 (La. 1972). See also Israel v. U.S. 247 F 2d 426 (2nd Circ., 1957), Robart v. Brehmer 207 P 2d 898 (Cal. 19491). 43 Hovden v. Boyle 254 P 2d 813 (Kan., 1953). 44 (1994) 3 All E.R. 79. 45 (1981) 1 All. E.R. 961. 46 Ibid. at 966.

3.5

Substance Abuse and Crew Communication

grossly negligent or reckless to be held liable under the Act. To support this premise, there is scholarly opinion47 that both recklessness and negligence involve a common inability or failure on the part of the miscreant to comply with objective conduct. The following definition, which brings negligence on par with recklessness for the purpose of finding a person liable, is relevant to ascertaining possible future judicial attitudes towards the determination of negligence of the airline pilot: Negligence is conduct which departs from the standard to be expected of a reasonable man. This is not to say that a personâ&#x20AC;&#x2122;s state of mind is always irrelevant when negligence is in issue. He may, for example, have special knowledge which an ordinary person would not possess. The question then is, whether a reasonable man, with that knowledge, would have acted as he did.48

It would appear from this emergent trend that the contentious November Oscar case of 1991,49 which was decided on the recklessness of the pilot, may now be viewed within the parameters of negligence as well. The case involved the conduct of a pilot who, while attempting to make a category II landing in diminished visibility at London Heathrow Airport, made a deviation from the center line of landing, necessitating a turn around which took the plane just 5 ft higher than the top of a nearby hotel. The reasoning of the jury involved the decision making of the captain, and whether the decision taken was timely and appropriate and whether the captain had acted in an appropriate manner in taking the plane around for a second landing attempt.

3.5

Substance Abuse and Crew Communication

Annex 2 resonates the view that substance abuse by airline crew, be it pilots or cabin attendants, may also contribute to one of the most critical aspects of flight safetyâ&#x20AC;&#x201D;crew communication. Standard 2.5 of the Annex states that no person whose function is critical to the safety of aviation (safety-sensitive personnel) shall undertake that function while under the influence of any psychoactive substance, by reason of which human performance is impaired. No such person shall engage in any kind of problematic use of substances. Furthermore, Standard 1.2.7.1 of Annex 1 on personnel licensing provides that holders of licences provided for in the Annex shall not exercise the privileges of their licences and related ratings while under the influence of any psychoactive substance which might render them unable to safely and properly exercise such privileges. On 27 March 1998, the United States Food and Drug Administration approved the use of Viagra (Sildenafil Citrate) as an oral medication for the treatment of male impotency. Viagra, the first known medication of its kind, can be obtained only by 47

See Smith and Hogan (1992) at 92. Ibid. 49 For a detailed account of the case, see, Bennun (1995â&#x20AC;&#x201C;1996) 331 at 341. 48

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prescription. It acts by enhancing the ability of nitric oxide to the human body (which is released in response to sexual stimulation) thereby relaxing smooth muscle, which in turn increases blood flow to certain areas of the male genitalia, facilitating enhanced ability of the male to perform sexual intercourse. If abused (or used in excess), Viagra can cause dangerous side effects such as increased sensitivity of the eyes to light and blurred vision, headaches and lowering of the blood pressure—all of which could result in seriously endangering the safety of an aircraft if they affect the pilot. The Federal Aviation Administration (FAA) of the United States permits flight crew members to use Viagra, provided they do not use the medication less than 6 h before they commence flight duty.50 The Agency further requires that airline pilots strictly adhere to the manufacturers’ dosage recommendations, which is 50 mg, to be taken 1–4 h prior to sexual activity, and not more than once per day.51 Viagra is by no means the only medication which comes with conditions attached. The FAA does not approve the use of the antihistamine Zystec (while approving the use of Sudafed, Seldane, Hismanal, Clariton and Allegra) and approves treatment with desensitization injections (allergy shots). Also approved by the FAA are certain antacids/stomach medications, antibiotics, certain antidepressants and psychoactive medications, anti hypertension medications which reduce blood pressure, asthma medication, cholesterol medications, and other medications calculated to reduce cholesterol and chemotherapy. The FAA also approves hypoglaemic and diabetic medications and certain herbal treatments.52 The advent of Viagra once again brings to focus the issue of substance abuse at the workplace in civil aviation, with particular emphasis on emergent issues of negligence of the airline pilot—the aviation professional who admittedly performs the most responsible function in civil aviation. The profession of aeronautics, particularly relating to the piloting of aircraft, remains one of the most responsible, particularly in the context of the many lives that are entrusted to the airline pilot at any given time. The realization that pilots should be fit and well to perform their professional duties has gradually evolved, from the initial requirement of a medical certificate issued according to the standards laid down by the ICAO to a ground breaking concept introduced in 1982 by Cardiologist, Professor Hugh TurnstallPedoe, who, while working at Ninewalls Hospital in Dundee, suggested that the health of pilots should be assessed the same way as engines are assessed by engineers.53 One of the measures suggested was the permanent requirement of having a co-pilot in the cockpit. The hypothesis submitted in support of this requirement was that if an average flight lasted 60 min and the critical take-off and landing phases are taken as the first and last 3 min of a flight, having a second

See Martin (1998) at p. 5. Ibid. 52 For a detailed discussion of FAA approved medication for pilots, see Martin (1997) at pp 14–16. 53 Evans (1995) at p. 8. 51

3.5

Substance Abuse and Crew Communication

pilot reduces the risk of incapacitation of the first pilot causing a fatal accident by 1000-fold.54 Several dramatic accidents have emphasized certain deficiencies which may exist in cockpit-cabin coordination and communication and which may result in a threat to the safety of a flight. The reasons for poor communication between pilots and members of cabin crew are multifarious in that they are historical, organizational, environmental, psycho-social and regulatory. The basic problem between these two categories of airline staff who are thrust together on a flight involves the fact that the two crews represent two distinct and separate cultures which may often inhibit satisfactory teamwork. Although the role of the technical crew in flight safety has been well documented,55 the flight attendant’s role on safety has been treated at best with ambivalence, where the flight attendant is considered as backend crew (as opposed to front-end crew, referring to the pilot), keeping a fairly orderly cabin and serving coffee. Of course, the flight attendant may assist in instances involving terrorism or emergency evacuation, but customarily the role of the flight attendant has been feminised and often, trivialised. Perhaps the main reason for the perceived bifurcation of the two types of crew is their geographic locations, where the cockpit and the cabin remain as two distinct geographic and social environments.56 As there are different areas of responsibility which devolve upon technical crew members and cabin crew members, it is inevitable that two separate cultures would exist in the aircraft. Often, through no fault of their own, and due to their particular responsibilities, the technical crew in the cockpit may isolate itself from the cabin crew, leading to serious lapses of communication between the two. Australian accident investigator David Adams observes: If you look at almost any company (airline), you will usually find that the cabin attendants and the flight crew are very clearly separated. They work for different branches of the company in most cases. The culture is one of almost complete separation. Yet, the fact of the matter is, in a safety situation, these two sections of the company have to work together. And the consequences of not working together quite often means a bunch of people get killed.57

One commentator’s study of crew member’s attitudes in flight reflects significant differences between personality dimensions of U.S. pilots and flight attendants. The study attributes these psycho-social differences to pilots being task-oriented and preferring a cognitive style of problem solving based on logic and systems oriented reasoning. Flight attendants, on the other hand, were identified as preferring an affective cognitive style and orientation to decision making.58 There is no doubt that cabin crew form an integral part of commercial aviation, and they should also come under universal training methods and codes of conduct as do the pilots, mechanics, aeronautical engineers and other professionals who are 54

Id. at 9. See Wiener (1988) at pp. 433–459. 56 Schute (1995), 257 at p. 258. 57 Cited in Moshansky (1992) at p.1087. 58 See Vandermark (1991) at pp. 87–94. See also, Merritt (1993). 55

3 Rules of the Air

involved with the successful operation of a commercial flight. There is a compelling need for the international aviation community to require a serious study relating to the feasibility of introducing a unified system of rules relating to the conduct of cabin crew, which could inter alia, include principles of protection of cabin crew and provide for compensation in case of injury. After all, they are the only ones who deal with the “human factor” of a flight, which could be most unpredictable at the best of times. The lack of attention paid by the aviation community to the importance of the flight attendant’s role in a commercial flight has led to recurring instances of breakdown of communication between cabin crew and technical crew. Inevitably, this anomaly may pose serious problems in the area of air carrier liability. It is heartening to note, however, that there is now a growing awareness of the status of the flight attendant in commercial aviation. For instance, in 1994, the United States officially recognised that flight attendants have demonstrated a critical role in the safety of passengers, by limiting the length of their duty times and introducing mandatory rest periods under federal law. Under Federal Aviation Administration (FAA) regulations, flight attendants must be given at least 9 h rest for duty periods lasting up to 14 h in any 24 h period. For longer periods, the FAA prescribes specific rest periods and larger cabin crews. The rules also give flight attendants a full 24 h of rest for every seven calendar days. Federal law had previously mandated minimum rest periods for air traffic controllers and technical crew.59 There have been innumerable complaints in the past by technical crews (pilots and flight engineers) relating to unacceptable cabin crew conduct that have allegedly jeopardized flight safety. A commentary published in March 1995 reported that during a hectic night approach to a busy airport in the United States, a flight attendant had opened the door to the flight deck to remove dinner trays, flooding the cockpit with light and distracting the flight crew. The flight attendant had refused the captain’s earlier request to bring meals forward early in the flight, and the food was brought in only after the descent had begun.60 In his report, the captain had written that “the approach was unsafe” and described a serious breakdown in communication between the cockpit crew and the cabin crew. Confirming a near miss with a smaller aircraft which was claimed by the captain to have occurred as a result of the commotion caused by the unfortunate entry of the flight attendant to the cockpit, the captain had gone on to record: The captain is helpless to plan the approach any more. The flight attendants ignore requests and directions from the captain. They work for the marketing department and don’t hesitate to tell pilots they don’t have to listen to them. On this flight, the flight attendant’s blatant disregard of the captain’s request resulted in an unsafe approach. If the flight attendant had listened to the captain’s request to bring meals up, she would not have been in the cockpit at low altitude causing a distraction.61

Air Letter, Wednesday, 17 August 1994, No. 13,060, at p. 1. Chute (1995) at p. 20. 61 Ibid. 60

3.5

Substance Abuse and Crew Communication

There have also been instances where cabin crew members have been instrumental in causing involuntary injury to passengers. One such instance was when a passenger on board an American Airlines flight from Italy to Chicago was injured when a heavy tote bag fell on him from the overhead bin in the aircraft. This injury had been caused as a result of the flight attendant opening the overhead bin to retrieve a pillow at the request of the passenger. One of the considerations the court had to decide upon was the plaintiff’s contention that American Airlines had failed to provide adequate instructions to its crew on the operation of aircraft apparatus.62 Clearly, the conduct of cabin crew members during the course of their employment would affect two classes of persons—passengers in the cabin and technical crew in the cockpit. In both instances, any adverse conduct on the part of cabin crew which would in turn result in claims for damages would impact the employer airline adversely, bringing to bear the intrinsic and incontrovertible link between the airline and its cabin crew members. Also, any liability that would arise out of the conduct of cabin crew would involve air carrier liability on principles of vicarious liability at tort. This paper will therefore examine the role of the flight attendant in air carrier liability, with emphasis on general principles of air carrier liability as they revolve round the conduct of the flight attendant. There will also be a discussion of the relationship of the flight attendant with the passenger on the one hand, and the pilot on the other, with a view to eliciting principles of air carrier liability in both instances where the conduct of the flight attendant precipitates a claim by a passenger or the representative of the passenger for injury by the air carrier. Whatever be the relationship between the flight attendant and passenger on the one hand, and flight attendant and pilot on the other, both relationships have a common denominator. With regard to accidents caused as a direct or indirect result of the flight attendant’s conduct—be it an injury to a passenger or aircraft accident precipitated by the conduct of the flight attendant affecting pilot performance—the legal consequences of air carrier liability would revolve round whether the act of the flight attendant or the pilot, as the case may be, was tantamount to wilful misconduct on the part of the carrier. It is clear from the foregoing analysis that both written provisions of aviation law and decided cases have unanimously imposed a presumption of absolute responsibility on the pilot for the safety of his aircraft. This responsibility directly grounds an action in negligence against the pilot in instances of seemingly unprofessional conduct. Unfortunately, this basic premise seems not to have been expanded nor qualified in any way, either by written law or by the courts leaving no general principles of law but the singular presumption of liability.

Pasinato v. American Airlines, Inc., No. 93 C 1510, 1994 Westlaw 171522 (N.D. ILL. May 2, 1994). For a more detailed report and analysis of this case see Lloyd’s Aviation Law, Vol.13, No. 11, June 1 1994, at pp. 4–5.

3 Rules of the Air

There are three questions which inevitably stem from the objective treatment meted out to this question. They are: Is the presumption of prima facie liability of the pilot for his seemingly unprofessional conduct necessary and acceptable as a fundamental postulate? Should this postulate be expanded to cover, on a general basis, exigencies of modern aviation? and, If so, should the general basis applicable to all instances of seemingly unprofessional conduct of the pilot be viewed as applicable to special circumstances giving rise to special rules?

It is the view of the author that the answer to all three questions is in the affirmative. The presumption of responsibility and consequent liability for negligence should indeed remain as the starting point of determining bad airmanship of the pilot. The necessity for the insistence on this presumption is naturally based upon the fact that safety is the paramount consideration in aviation. In addition, the high risk element of the operation of an aircraft by the pilot, the special training, expertise and skill required to perform the functions of a pilot and above all the fact that the pilot undertakes to carry out his functions assuring his employer of his capability to do so are compelling factors which favour the need to retain the presumption. There are certain conditions which apply in exigencies of modern day aviation which should at least be taken into consideration in favour of the pilot provided of course he does not, at any cost, show disregard to the safety of his aircraft and passengers. Such factors as congestion at airports, schedule planning where an aircraft if delayed would not connect through-going passengers and adverse weather conditions which would preclude an aircraft from being utilized in time by an employer who operates with only a few aircraft are some factors which should be taken into account as mitigatory factors. The pilot could, in such instances prove that a decision was necessary to deviate from accepted practice if he did not envisage a risk to his aircraft and passengers. Perhaps the most compelling factor which would apply to mitigate the harshness of treating the pilotâ&#x20AC;&#x2122;s conduct as negligent is the human factor. At least 80% of aircraft accidents have so far been attributed to human error of the pilot and a significant proportion of human error has been attributed to physical and mental ill health.63 Contributory factors to ill health have been identified as limitations of human sensor, functions, single channel of attention, false expectancies, ergonomics (poor designing of aircraft operational machinery) and stress.64 It has been said that there is always some stress in the human body and the only way to be totally stress free is to be dead.65 In determining negligence of the pilot the court should at least not discount the possibility of these medical factors in assessing his liability.

See Berry C.A., â&#x20AC;&#x153;The Human Factor in Aircraft Accidentsâ&#x20AC;?, collected papers of the 19th JALC Air Law Symposium. 64 Id. at H - 9. 65 Ibid.

References

With stronger reason, therefore, airline pilots should be vigilant of the ill effects of drugs and alcohol in the workplace. In applying the presumption of responsibility on the pilot the courts should therefore require of the pilot to prove in mitigation that: He had adhered to accepted norms of regulatory practice pertaining to substance use at the workplace; He had shown absolute dedication to ensuring the safety of his aircraft and the passengers at all cost; It was impossible in a given instance to adhere to accepted professional practice and that his conduct did not in any way prejudice the safety of the aircraft and the passengers; His judgment was that of the reasonable professional man taking into consideration the special knowledge and expertise he possessed; and His conduct in deviating from accepted professional norms was justifiable as there was no risk involved at all and that such deviation would have precluded loss to his employer and inconvenience to passengers or that be was subjected to physical or mental debility at the time of such decision;

These general rules should, in all special circumstances, be applied with regularity. Then, special rules, applicable to special circumstances would naturally emerge through the common law.

References Mervyn E. Bennun, Prosecuting Professional Pilots in the United Kingdom after November Oscar: Reflections in the Law and Policy, Journal of Air Law and Commerce, 1995-1996, 331 at 341 J. Burridge, “The Dismissal of a Pilot for Poor airmanship — The Employer’s Point of View", Aeronautical Journal May 1977, 206 Rebecca D. Chute, On a Collision Course, Air Line Pilot, March 1995 at p. 20 A. Diehl The Effectiveness of Aeronautical Decision Making Training, Proceedings of the 34th Meeting of the Human Factors Society, Santa Monica, :CA: The Human Factors Society (1990) M. Edwards “The Continued Employment of Pilots Involved in Incidents or Accidents: The Operator’s Responsibilities and Liabilities”, Aeronautical Journal, May 1977, 209 at 211 Videla Escalada, Aeronautical Law (1979) at 210-211 Dr. Tony Evans, How Fit is the Pilot, Doctor? Focus on Commercial Aviation Safety, No. 18, Spring 1995 at p. 8 H.A. Hopkins, “The Dismissal of a Pilot for Poor Airmanship”, Aeronautical Journal, May 1977 at 203 R.S. Jensen and R.A. Benel, Judgment Evaluation and Instruction in Civil Pilot Training, (Tech. Rep. No. FAA-RD-78-24), Springfield, VA: National Technical Information Service (1977) P.J. Kolczvnski. “The Criminal Liability of Aviators and Related Issues of Mixed Criminal - Civil Litigation: A venture in the Twilight Zone”, Journal of Air Law & Commerce (Vol. 51 No 1 1985) 1 at 4 Dr. W. Keith Martin, What Can I Take and Still Fly? Airline Pilot, June/July 1997 at pp 14-16 Dr. W. Keith Martin, Impotence, Gallstones, EKGs and Sleep Apnea, Airline Pilot, May 1998, at p. 5 N.M. Matte, The International Legal Status of Aircraft Commander (1975) at 34 A. Merritt, Human Factors on the Flight Deck; the Influence of National Culture, paper presented at the Seventh International Symposium on Aviation Psychology, Columbus, Ohio, April 1993

3 Rules of the Air

V. P. Moshansky, Commission of Inquiry into the Air Ontario Crash at Dryden, Ontario, Toronto, Canada: Minister of Supply and Services, 1992, at p.1087 Stephen R. Murray, Deliberate Decision Making by Aircraft Pilots: A Simple Reminder to Avoid Decision Making Under Panic, The International Journal of Aviation Psychology, Vol. 7(1), 1997, at 83-100, at p. 84 N. Price, Pilot Error (1976) at pp. 238 - 239 Rebecca D. Schute, Cockpit-Cabin Communication: I. A Tale of Two Cultures, The International Journal of Aviation Psychology, Volume 5, Number 3, 1995, 257 at p. 258 J.C. Smith and Brian Hogan, Criminal Law, 7 Edition 1992, at 92 S.M. Speiser. & C.F. Krause, Aviation Tort Law (Vol. 1, 1978) 473 M.J. Vandermark, Should Flight Attendants be Included in CRM Training? A Discussion of Major Air Carrier’s Approach to Total Crew Training, The International Journal of Aviation Psychology, Vol. 1, 1991 at pp. 87-94 E.L. Wiener, Cockpit Automation, in E.L. Wiener and D.C. Nagel, Human Factors in Aviation, San Diego: Academic Press, 1988, at pp. 433-459 A. Van Wijk, “Responsibilities of Airline Pilots”, Air Law, (Vol. 1 1975 - 76) 301 at 302

Chapter 4

Search and Rescue Operations

At the 16th Plenary Session of the General Assembly held in Cairo from 21–26 April 2001, the African Civil Aviation Commission (AFCAC) adopted Resolution S16-71 calling African States to participate in the AFCAC Search and Rescue (SAR) technical cooperation programme. The Commission, through this resolution, also instructed the AFCAC Bureau, inter alia, to work, through appropriate means, toward the improvement of SAR services in Africa, in close cooperation with the International Civil Aviation Organization (ICAO). After the events of 11 September 2001, it is only natural to assume that there is heightened awareness of the possibility of aircraft being used as weapons of destruction in the future. From a social and political perspective, the world has to prepare for eventualities leading up to search and rescue of aircraft that may need to be located without loss of time and the passengers and crew rescued. There are already two international treaties on the subject, although one—the Brussels Convention of 1938,2 has unfortunately not been ratified by the requisite number of States and has therefore not come into effect. The Brussels Convention contemplated only assistance and salvage operations at sea. The other Convention is the Chicago Convention of 1944,3 which requires contracting States of the International Civil Aviation Organization4 to fulfil their obligations under Article 25 of the which provides: Each Contracting State undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable, and to permit, subject to control by its own authorities, the owners of aircraft or authorities of the State in which the aircraft is registered to provide such measures of assistance as may be necessitated by the circumstances. Each Contracting State, when undertaking search for missing aircraft, will collaborate in coordinated measures which may be recommended from time to time pursuant to this Convention.

See AFCAC/16—African Civil Aviation Commission, Sixteenth Plenary Session, Cairo, 21–26 April 2001, Report, Resolution S16-7: Search and Rescue Services in Africa. 2 Convention for the Unification of Certain Rules Relating to Assistance and Salvage of Aircraft at Sea, Brussels, September 29, 1938. 3 Supra, note 1 in Chap. 1. 4 Supra, note 6 in Chap. 1.

R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_4, # Springer-Verlag Berlin Heidelberg 2012

4 Search and Rescue Operations

Annex 12 to the Chicago Convention elaborates on this fundamental requirement by qualifying that Contracting States shall arrange for the establishment and provision of SAR services within their territories on a 24-h basis.5 Contracting States are further requested to delineate the SAR process under the Annex on the basis of regional air navigation agreements6 and provide such services on a regional basis without overlap.7 A search and rescue region has been defined in the Annex as “an area of defined dimensions within which SAR service is provided”. Although, as discussed, the basic principles of SAR have been in place since 1952, since Annex 12 was adopted by ICAO, AFCAC has, with considerable wisdom, recognized in its latest Resolution S16-7 that grave shortcomings exist in the African and Indian Ocean (AFI) region in the SAR field. The Commission was quick to recognize that there was a lack of human and financial resources in many African States, making it difficult for these States to comply with ICAO Standards and Recommendations, especially those of Annex 12. The dilemma facing many States extending both to airports and airlines, relates to the lack of rapid response, adequate equipment and well-trained crews, all of which are critical to passenger survival in the event of an aircraft disaster. Although most States are particularly mindful of these compelling needs, they are by no means confined to the a particular region. An example of this crisis can be cited with the 1980 incident of a Saudi Arabian Airlines L-1011 catching fire shortly after leaving Riyadh Airport. Although the pilot turned back for an emergency landing and made a perfect touchdown, nearly 30 min passed before firemen managed to go in, by which time all passengers and crew had perished. This could have been a survivable accident.8 To the contrary, a hijacking incident involving a Boeing 767 aircraft on the shores of Comoros, in November 1996, when the aircraft crashed due to lack of fuel, showed how spontaneous reaction from even non-trained professionals at rescue efforts could help. In this instance, the quick response of tourists at the scene ensured that 51 of the 175 passengers on board were saved.9 This discussion will outline principles of responsibility of States and political, economic and humanitarian consequences pertaining to search and rescue of aircraft within their territorial boundaries.10

Annex 12 to the Convention on International Civil Aviation, Search and Rescue, Sixth Edition March 1975, Standard 2.1.1. 6 Id. Standard 2.1.1.1. 7 Id. Standard 2.2.1 Boundaries of search and rescue regions should, insofar as practicable, be coincident with the boundaries of corresponding flight information regions. See Recommendation 2.2.1.1 of Annex 12. 8 Morrow (1995) at p. 29. 9 Report in FAZ No. 275/1996 (25 November 1996) at p. 9. 10 It is not the intent of this article to address issues pertaining to rights in recovery of costs incurred in search and rescue of aircraft and passengers. For this aspect of SAR, see Andreas Kadletz, Rescue and Salvage of Aircraft ZLW 46. Jg 2/1997 pp. 209–216.

4 Search and Rescue Operations

Annex 12 to the Chicago Convention requires Contracting States to coordinate their SAR organizations with those of neighbouring Contracting States11 with a recommendation that such States should, whenever necessary, coordinate their SAR operations with those of neighbouring States12 and develop common SAR procedures to facilitate coordination of SAR operations with those of neighbouring States.13 These provisions collectively call upon all Contracting States to bond together in coordinating both their SAR organizations and operations. At the 32nd Session of the Assembly, held in 1998, ICAO adopted Resolution A32-14, Appendix O which addresses the provision of SAR services. This Resolution refers to Article 25 of the Convention in which each Contracting State undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable and to collaborate in coordinated measures which may be recommended from time to time pursuant to the Convention. The Resolution mentions Annex 12 to the Convention which contains specifications relating to the establishment and provision of SAR services within the territories of Contracting States as well as within areas over the high seas. The resolution recognizes that Annex 12 specifies that those portions of the high seas where SAR services will be provided shall be determined on the basis of regional air navigation agreements, which are agreements approved by the Council normally on the advice of regional air navigation meetings. Annex 12 also recommends that boundaries of SAR regions should, insofar as practicable, be coincident with the boundaries of corresponding flight information regions. Article 69 of the Convention, which is also outlined in the Resolution, specifies that, if the Council is of the opinion that the air navigation services of a Contracting State are not reasonably adequate for the safe operation of international air services, present or contemplated, the Council shall consult with the State directly concerned, and other States affected, with a view to finding means by which the situation may be remedied, and may make recommendations for that purpose; and the air navigation services referred to in Article 69 of the Convention include, inter alia, SAR services. In taking into consideration the above facts, the Assembly resolves in A32-14 that the boundaries of SAR regions, whether over Statesâ&#x20AC;&#x2122; territories or over the high seas, shall be determined on the basis of technical and operational considerations, including the desirability of coincident flight information regions and SAR regions, with the aim of ensuring optimum efficiency with the least overall cost. If any SAR regions need to extend over the territories of two or more States, or parts thereof, agreement thereon should be negotiated between the States concerned. The Resolution also calls upon the providing State, in implementing SAR services over the territory of the delegating State, to do so in accordance with the requirements of the delegating State, which shall establish and maintain in operation such facilities and services for the use of the providing State as are

Standard 3.1.1. Recommendation 3.1.2. 13 Recommendation 3.1.2.1. 12

4 Search and Rescue Operations

mutually agreed to be necessary. Any delegation of responsibility by one State to another or any assignment of responsibility over the high seas shall be limited to technical and operational functions pertaining to the provision of SAR services in the area concerned. Remedies to any inadequacies in the provision of efficient SAR services, particularly over the high seas, should be sought through negotiations with States which may be able to give operational or financial assistance in SAR operations, with a view to concluding agreements to that effect. Furthermore, the Resolution declares that any Contracting State which delegates to another State the responsibility for providing SAR services within its territory does so without derogation of its sovereignty; and the approval by Council of regional air navigation agreements relating to the provision by a State of SAR services within areas over the high seas does not imply recognition of sovereignty of that State over the area concerned. It is also stated in the Resolution that Contracting States should, in cooperation with other States and the Organization, seek the most efficient delineation of SAR regions and consider, as necessary, pooling available resources or establishing jointly a single SAR organization to be responsible for the provision of SAR services within areas extending over the territories of two or more States or over the high seas. Finally, the Resolution calls on the Council to encourage States, whose air coverage of the SAR regions for which they are responsible cannot be ensured because of a lack of adequate facilities, to request assistance from other States to remedy the situation and to negotiate agreements with appropriate States regarding the assistance to be provided during SAR operations. The legal validity of Resolution A32-14, as substantive law recognized under public international law, and therefore binding on States, is a relevant issue if the obligations of States in search and rescue are to be determined. All resolutions adopted within the United Nations’ framework embody declarations of principles and rules of international law. They are particularly compelling when adopted without dissent. Article 38 of the Statute of the International Court of Justice cites, as a source of public international law, “general principles of law recognized by civilized nations” into which category resolutions adopted by the United Nations could well fall. Legal experts have consistently argued that resolutions could be authoritative evidence of binding international law on the grounds that such resolutions or declarations could be considered authentic interpretations of the United Nations Charter agreed by all parties. They have also adduced reasons for recognizing resolutions adopted within the United Nations’ system as affirmations of recognized customary law and as expressions of general principles of law recognized by States. Some confirmation of these arguments has been given by the International Court of Justice when the Court, over a period of years, recognized the force of several declarations adopted within the United Nations.14

Advisory Opinions on Western Sahara, 1975 ICJ Rep 12 (October 16); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep 16 (June 21).

4 Search and Rescue Operations

In practical application however, non-observance by States purportedly bound by such resolutions would render such States destitute of the desired legal effect. This would essentially be the case if there are negative votes or reservations attached to an Assembly resolution. In the case of A32-14, however, there is no question of reservation as the Resolution was adopted by consensus. The real utility of an Assembly resolution lies in the fact that primarily it supplements the absence of law in a given area by filling a legal lacuna that has not been filled by a formal legislative process. Treaty law making is often long winded and involves a cumbersome process. A resolution offers a â&#x20AC;&#x153;quick fixâ&#x20AC;? while embodying principles in a declaration that introduces legitimacy and validity to a given principle or group of principles. In this context, it would be correct to assume that the ICAO Standards and Recommended Practices (SARPs) referred to earlier in this paper on the subject of the implementation of Annex 12 are of equal persuasion. Together, the resolution and SARPs have a clear and substantial impact, reflecting the meticulous and thoughtful work that have gone with the development of these instruments and recognized importance of safety and efficiency of civil aviation.15 In the case of the Africa-Indian Ocean Region, the ICAO Regional Air Navigation Plan,16 in Part V addresses issues of Search and Rescue by pointing to the provisions of the ICAO Search and Rescue Manual (Doc 7333), referring in particular to the need for aircraft to carry specified equipment,17 carry out paper and communications exercises18 and, more importantly, for the need for States to pool their resources and provide mutual assistance in the case of SAR operations. The Plan calls for precise agreements between States to implement these measures.19 The ICAO Regional Plan also calls upon States, in order to ensure compatibility between aeronautical and maritime search and rescue regions (SRRs), and aeronautical search and rescue authorities, to maintain close liaison with their maritime counterparts and the International Maritime Organization (IMO). In 1985, ICAO signed a memorandum of understanding (MOU) with the IMO concerning cooperation in respect of safety of aircraft operations to and from ships and other marine vehicles and of aeronautical and maritime SAR activities. Both ICAO and IMO signed this understanding with a view to ensuring the best possible coordination of activities between the Organizations in matters concerned with the safety of aircraft operations to and from ships and other marine vehicles and with aeronautical and maritime search and rescue operations, agreeing to make arrangements for consultations between the Secretariats of the two Organizations in regard to these matters, with a view to ensuring consistency or compatibility between

See the Joyner (ed) (1997) at p. 84. Air Navigation Plan Africa-Indian Ocean Region, Doc 7474. 17 Id. 3.1. 18 Id. 3.3 (a). 19 Id. 4.1. 16

4 Search and Rescue Operations

services and procedures in all cases where joint efforts or close cooperation may be required and in order to avoid any unnecessary duplication of efforts by them. In determining the allocation of responsibilities of the two Organizations to ensure safety of aircraft operations to and from ships and other marine vehicles, the following principles are applied: (a) All matters which are directly connected with the design, construction, equipment and operation of aircraft in general, and of helicopters in particular, should be regarded as falling primarily within the field of responsibility of ICAO. (b) All matters which are directly connected with the design, construction and equipment of ships and other marine vehicles and their operation should be regarded as falling primarily within the field of responsibility of IMO. (c) Matters which do not fall clearly within sub-paragraphs (a) or (b) above should be regarded as the responsibility of both Organizations and dealt with by appropriate collaboration between them. In determining the allocation of responsibilities of the two Organizations in respect of search and rescue in maritime areas, the following principles are applied: (a) All matters which are directly connected with search and rescue by aircraft in general, and with air search and rescue facilities and operating procedures in particular, should be regarded as falling primarily within the field of responsibility of ICAO. (b) All matters which are directly connected with search and rescue by marine craft in general, and with marine search and rescue facilities and operating procedures in particular, should be regarded as falling primarily within the field of responsibility of IMO. (c) Matters which do not fall clearly within sub-paragraphs (a) and (b) above should be regarded as the responsibility of both Organizations and dealt with by appropriate collaboration between them. The MOU also provides that any draft amendment to Annex 12 â&#x20AC;&#x153;Search and Rescueâ&#x20AC;? to the Convention on International Civil Aviation being considered by ICAO or any amendment to the Technical Annex to the International Convention on Maritime Search and Rescue, 1979, being considered by IMO and related to matters covered by this MOU will be communicated by the Organization proposing the amendment to the other Organization. Similarly, draft amendments to the ICAO SAR Manual or to the IMO SAR Manual which are related to matters covered by this MOU will be communicated in due time to the other Organization with a view to keeping both Manuals aligned as closely as possible. The consultations referred to above should also take place in respect of matters falling primarily within the responsibility of one or the other Organization, so that each Organization may, when it deems it necessary, safeguard its responsibilities and interests in these matters and thereby ensure effective cooperative action whether carried out by one or the other or both Organizations.

4 Search and Rescue Operations

In practice, the two Secretariats are required to take all available steps to ensure that the consultations referred to in paragraph 1 are undertaken before either Organization proceeds to take definitive action on matters subject to this MOU. The two Secretariats are also expected to make available to each other relevant information and documentation prepared for meetings at which matters covered by this MOU are to be considered. Both Organizations have also agreed to take appropriate steps to ensure that relevant advice from other Organizations and bodies are made available in matters covered by this MOU, in accordance with the regulations and procedures of the respective signatory Organization. All the above mentioned documents cited bring to bear the compelling need for the critical link between the legislative nature of the documentation and implementationâ&#x20AC;&#x201D;State responsibility. All the law making and guidance material, declarations and resolutions would be destitute of effect if there was no element of State responsibility to give legitimacy to the instrument by complying with and adhering to the instruments. It is also now recognized as a principle of international law that the breach of a duty involves an obligation to make reparation appropriately and adequately. This reparation is regarded as the indispensable complement of a failure to apply a convention and is applied as an inarticulate premise that need not be stated in the breached convention itself.20 The ICJ affirmed this principle in 1949 in the Corfu Channel Case21 by holding that Albania was responsible under international law to pay compensation to the United Kingdom for not warning that Albania had laid mines in Albanian waters which caused explosions, damaging ships belonging to the United Kingdom. Since the treaty law provisions of liability and the general principles of international law as discussed complement each other in endorsing the liability of States to compensate for damage caused by space objects, there is no contention as to whether in the use of nuclear power sources in outer space, damage caused by the uses of space objects or use thereof would not go uncompensated. The rationale for the award of compensation is explicitly included in Article XII of the Liability Convention which requires that the person aggrieved or injured should be restored (by the award of compensation to him) to the condition in which he would have been if the damage had not occurred. Furthermore, under the principles of international law, moral damages based on pain, suffering and humiliation, as well as on other considerations, are considered recoverable.22 The sense of international responsibility that the United Nations ascribed to itself had reached a heady stage at this point, where the role of international law in international human conduct was perceived to be primary and above the authority of States. In its Report to the General Assembly, the International Law Commission recommended a draft provision which required:

In Re. Chorzow Factory (Jurisdiction) Case, (1927) PCIJ, Ser. A, no. 9 at 21. ICJ Reports (1949), 4 at 23. 22 Christol (1991) at 231. 21

4 Search and Rescue Operations Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law.23

This principle, which forms a cornerstone of international conduct by States, provides the basis for strengthening international comity and regulating the conduct of States both internally—within their territories—and externally, towards other States. States are effectively precluded by this principle of pursuing their own interests untrammelled and with disregard to principles established by international law. Economic aspects of SAR operations related to aviation have been on the agenda of ICAO for a considerable time. At ICAO’s Conference on the Economics of Airports and Air Navigation Services (ANSConf 2000) held in Montreal from 19 to 28 June 2000, the Conference considered that, in 1996 a recommendation had been made by an ICAO Air Navigation Services Economics Panel, that existing policy be amended to allow for costs of SAR services performed by establishments other than permanent civil establishments such as military, to be included in the cost basis for air navigation services charges. The ICAO Council had not approved the Panel’s recommendations pending a Secretariat Study of the implications concerned. A subsequent survey carried out by the ICAO Secretariat of Contracting States had resulted in only a limited number of responses, precluding a conclusion as to the wishes of States on this issue. The Conference therefore agreed that there was a need for follow-up of the Secretariat Study, as well as information from many States that had not responded to the survey in the first instance.24 The Secretariat drew attention to the humanitarian aspects of SAR operations where States did not wish to charge for services rendered spontaneously and on an emergency basis. The Conference noted that under the International Convention on Maritime Search and Rescue, States were obligated to render gratuitous assistance to any person in distress and that there was no attendant cost-recovery mechanism in SAR in the maritime field. Based on the above deliberations the Conference recommended that ICAO undertake further study as to the position of States and the implications of amending ICAO policy with regard to recovery of costs for civil aviation related to SAR services presided by other than permanent civil establishments.25As for further work on the subject, the Conference recommended that ICAO develop guidance on the establishment of organizations at the regional level for SAR activities and conduct a study on the establishment of regional or sub-regional SAR mechanisms and how they might be funded as regards civil aviation.26

Report of the International Law Commission to the General Assembly on the Work of the 1st Session, A/CN.4/13, June 9 1949, at 21. 24 See Report of the Conference on the Economics of Airports and Air Navigation Services, Montreal, 19–28 June 2000, Doc 9764 ANSConf 2000 at p. 37. 25 Id. Recommendation 23 at p. 38. 26 Id. Recommendation 24 at p. 38.

4 Search and Rescue Operations

ICAOâ&#x20AC;&#x2122;s policies on charges for airports and air navigation services were revised consequent to ANSConf 2000. These policies were published by ICAO in 2001.27 As a fundamental principle, the Council considers that, where air navigation services are provided for international use, the providers may require the users to pay their share of the related costs; at the same time, international civil aviation should not be asked to meet costs that are not properly allocable to it. The Council therefore encourages States to maintain accounts for the air navigation services they provide in a manner which ensures that air navigation services charges levied on international civil aviation are properly cost-based. The Council also considers that an equitable cost recovery system could proceed from an accounting of total air navigation services costs incurred on behalf of aeronautical users, to an allocation of these costs among categories of users, and finally to the development of a charging or pricing policy system. In determining the total costs to be paid for by charges on international air services, the list in Appendix 2 may serve as a general guide to the facilities and services to be taken into account.28 Moreover, the Council specifically recommends that States consider the application, where appropriate, of internationally accepted accounting standards for providers of air navigation services that maintain separate accounts. It is recommended that, when establishing the cost basis for air navigation services charges, the cost to be shared is the full cost of providing the air navigation services, including appropriate amounts for cost of capital and depreciation of assets, as well as the costs of maintenance, operation, management and administration. The costs to be taken into account should be those assessed in relation to the facilities and services, including satellite services, provided for and implemented under the ICAO Regional Air Navigation Plan(s), supplemented where necessary pursuant to recommendations made by the relevant ICAO Regional Air Navigation Meeting, as approved by the Council. Any other facilities and services, unless provided at the request of operators, should be excluded, as should the cost of facilities or services provided on contract or by the carriers themselves, as well as any excessive construction, operation, or maintenance expenditures. The cost of air navigation services provided during the approach and aerodrome phase of aircraft operations should be identified separately, and so should the costs of providing aeronautical meteorological service, when possible. Air navigation services may produce sufficient revenues to exceed all direct and indirect operating costs and so provide for a return on assets (before tax and cost of capital) to contribute towards necessary capital improvements. In determining the costs to be recovered from users, government may choose to recover less than full costs in recognition of local, regional, or national benefits.

See ICAOâ&#x20AC;&#x2122;s Policies on Charges for Airports and Air Navigation Services, Sixth Edition 2001, Doc 9082/6. 28 Guidance on accounting contained in the Airport Economics Manual (Doc 9562) and the Manual on Air Navigation Services Economics (Doc 9161) may be found useful in this general context.

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It is for each State to decide for itself whether, when, and at what level any air navigation services charges should be imposed, and it is recognized that States in developing regions of the world, where financing the installation and maintenance of air navigation services is difficult, are particularly justified in asking the international air carriers to contribute through user charges towards bearing a fair share of the cost of the services. The approach towards the recovery of full costs should be a gradual progression. The Council recommends that the allocation of the costs of air navigation services among aeronautical users be carried out in a manner equitable to all users. The proportions of cost attributable to international civil aviation and other utilization of the facilities and services (including domestic civil aviation, State or other exempted aircraft, and non-aeronautical users) should be determined in such a way as to ensure that no users are burdened with costs not properly allocable to them according to sound accounting principles. The Council also recommends that States should acquire basic utilization data in respect of air navigation services, including the number of flights by category of user (i.e. air transport, general aviation, and other) in both domestic and international operations, and other data such as the distance flown and aircraft type or weight, where such information is relevant to the allocation of costs and the cost recovery system.29 The Council further recommends that States should ensure that systems used for charging for air navigation services are established so that any charging system should, so far as possible, be simple, equitable and, with regard to route air navigation services charges, suitable for general application at least on a regional basis. The administrative cost of collecting charges should not exceed a reasonable proportion of the charges collected. The charges should not be imposed in such a way as to discourage the use of facilities and services necessary for safety or the introduction of new aids and techniques. The facilities or services provided for in the ICAO Regional Air Navigation Plan(s) or in any recommendations of the relevant ICAO Regional Air Navigation Meeting as are approved by the Council are, however, considered to be necessary for general safety and efficiency. Charges should be determined on the basis of sound accounting principles and may reflect, as required, other economic principles, provided that these are in conformity with Article 15 of the Chicago Convention and other principles in this document. The system of charges must be non-discriminatory both between foreign users and those having the nationality of the State or States responsible for providing the air navigation services and engaged in similar international operations, and between two or more foreign users. Where any preferential charges, special rebates, or other kinds of reduction in charges normally payable in respect of air navigation services are extended to particular categories of users, governments should ensure, so far as practicable, that any resultant under-recovery of costs properly allocable to the

Guidance on cost allocation is contained in the Manual on Air Navigation Services Economics (Doc 9161), and the Airport Economics Manual (Doc 9562), although States use any accounting approach they consider meets their particular requirements.

4.1

Humanitarian Issues

users concerned is not shouldered onto other users. Any charging system should take into account the cost of providing air navigation services and the effectiveness of the services rendered. The charging system should be introduced in such fashion as to take account of the economic and financial situation of the users directly affected, on the one hand, and that of the provider State or States, on the other. Charges should be levied in such a way that no facility or service is charged twice with respect to the same utilization. In cases where certain facilities or services have a dual utilization (e.g. approach and aerodrome control, as well as en-route air traffic control), their cost should be equitably distributed in the charges concerned. The charges levied on international general aviation should be assessed in a reasonable manner, having regard to the cost of the facilities needed and used and the goal of promoting the sound development of international civil aviation as a whole.

4.1

Humanitarian Issues

Search and rescue operations conducted gratuitously and with intent to save human lives and property are what legal commentators call â&#x20AC;&#x153;humanitarian interventionâ&#x20AC;?, which is considered to be a basic moral response of one human being to another, to save the latterâ&#x20AC;&#x2122;s life. One definition identifies: humanitarian intervention as the proportionate transboundary help, including forcible help, provided by governments to individuals in another [S]tate who are being denied basic human rights and who themselves would be rationally willing to revolt against their oppressive government.30

The general principle of intervention for the provision of relief on moral grounds has been subject to a great degree of intellectual polarization. One view is that if human are dying, one has got to help that at all costs.31 The other is that the mere act of treating humanitarian intervention as an extant legal doctrine would be to erode the applicable provision of the United Nations Charter on recourse to force. The latter view, which discourages humanitarian intervention is substantiated by the following arguments: 1. The good Samaritan must fight for the right to perform his act of humanitarian intervention and may end up causing more injury than he averts; 2. The authorization for forceful and unilateral humanitarian assistance may be abused; and,

Teson (1956) at 5. See letter to the Editor by Professor Leff, Yale Law School, New York Times October 4 1968 at 46 Column 3, cited in Lillich (ed) (1973) at 151.

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3. Unilateral recourse to force even for genuinely humanitarian purposes may heighten expectations of violence within the international system and concomitantly erode the psychological constraints on the use of force for other purposes.32 The essence of intervention is compulsion. Compulsion could either take place through the use of force, armed or otherwise. The legal question, with regard to the inviolability of the sovereignty of a State is not whether the intervention concerned was an armed or unarmed one, but whether it was effected unilaterally under compulsion or threat by the intervening State.33 Starke is inclined to stretch the principle of sovereignty to accommodate external involvement by a State in the affairs of another in special circumstances: . . .“Sovereignty” has a much more restricted meaning today than in the eighteenth and nineteenth centuries when, with the emergence of powerful highly nationalised States, few limits on State autonomy were acknowledged. At the present time there is hardly a State which, in the interests of the international community, has not accepted restrictions on its liberty of action. Thus most States are members of the United Nations and the International Labour Organization (ILO), in relation to which they have undertaken obligations limiting their unfettered discretion in matters of international policy. Therefore, it is probably more accurate today to say that the sovereignty of a State means the residuum of power which it possesses within the confines laid down by international law. It is of interest to note that this conception resembles the doctrine of early writers on international, law, who treated the State as subordinate to the law of nations, then identified as part of the wider “law of nature”.34

Oppenheim holds a similar view that the “traditional” law of humanity is incorporated into contemporary international law. He views this attitude as: recognition of the supremacy of the law of humanity over the law of the sovereign State when enacted or applied in violation of human rights in a manner that may justly be held to shock the conscience of mankind.35

Some authorities in international law also believe that intervention should, if absolutely necessary, be effected when there is cogent evidence of a breakdown in the minimum guarantees of humanity.36 Accordingly, it may be argued that any act of intervention aimed at saving the lives of human beings which are in danger, would be legally and morally justifiable. Fernando Teson37 argues that since the 32

The principle of non-intervention has been strongly espoused in order that sovereignty of a State be retained as sacrosanct. See Vattel, le driot des geus, Bk II, Chapter V (Scott ed. 1916) at 135. Also, Hall, International Law (Higgins 8th ed. 1924) at 343. Lawrence, Principles of International Law (Winfield 7th ed. 1923) at 126. 33 de Lima (1971) at 16. 34 Starke (1977) at 106. 35 Lauterpacht (1955) at 312–320. 36 Hall International Law (Higgins 8th ed. 1924) at 343. Lawrence, Principles of International Law (Winfield 7th ed. 1923) at 126/op. cit. at 347. Lawrence, op.cit. at 132. Hyde, International Law, Volume 1. (2nd Review:1945) at 253. Stowell’s Intervention at International Law 1921 at 126 and 350. Also, Wehberg, La Guerre Civil et le Droit International 63 Hague Recueil, 1938 at 115. 37 Supra, note 30 at 15 in this chapter.

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Humanitarian Issues

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ultimate justification for the existence of States is the protection and enforcement of the natural rights of the citizens, a government that engages in substantial violations of human rights betrays the very purpose for which it exists and so forfeits not only its domestic legitimacy, but also its international legitimacy as well. He goes on to say: I suggest that from an ethical standpoint, the rights of States under international law are properly derived from individual rights. I therefore reject the notion that States have any autonomous moral standing—that they hold international rights that are independent from the rights of individuals who populate the State.38

Schwarzenberger analyses the concept somewhat clinically and concludes that in the absence of an international jus cogens which corresponds to municipal jus cogens of advanced communities, where the latter prevents the worst excesses of inequality of power, the supremacy of the rule of force would prevail.39 There is also a contrasting view that humanitarian intervention is generally resorted to by States only in instances of serious abuses of human rights by one State upon its people or others. Dr Michael Akehurst argues that if a State intervenes forcibly on the territory of another in order to protect the local population from serious human violations, such an armed intervention could inevitably constitute a temporary violation de facto of the territorial integrity of the latter State, and to an extent of its political independence, if carried out against its wishes.40 Dr. Akehurst goes on to assert: Any humanitarian intervention, however limited, constitutes a temporary violation of the target State’s political independence and territorial integrity if it is carried out against the State’s wishes.41

The doctrine of humanitarian intervention is thought of by some commentators as an invention of strategy to circumvent the strong jus cogens nature of the principle of sovereignty and inviolability of States which Dr. Akehurst refers to. Professor Brownlie is of the view that States have generally invoked the doctrine to give support to their commercial and strategic considerations.42 The United Kingdom legislature recently considered the view of the British Minister of State who was of the view: When members of the United Nations act in a forcible manner either they should do so within and under the authority of the United Nations or that which they do should be authorised by the principles of international law.43

Id. at 16. Schwarzenberger (1971) at 63. 40 Akehurst (1977) at 16. 41 Akehurst (1984) at 105. 42 Brownlie (1963) at 338–340. 43 Hansard H.C, Vol 219, col.784 (23 Feb 1993) 39

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Clearly, this statement establishes the view that international law in the context of intervention is jus cogens. The British Foreign Office has supported this position in the following language: the best case that can be made in support of humanitarian intervention is that it cannot be said to be unambiguously illegal. . .but the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention.44

Despite this strong alignment towards anti humanitarian intervention, it is believed that there is a school of thought within the British legislature that is prepared to accept unilateral intervention as justifiable under customary international law in cases of â&#x20AC;&#x153;extreme humanitarian need.â&#x20AC;?45 The author supports the view that despite these divergent views, the nonintervention principle remains sacrosanct as a contemporary postulate of international law and deviations from the principle, although recognized as ethical and moral in certain instances by scholars, would be justified only in extreme cases.46 The essence of search and rescue operations in aviation is cooperation, which is embodied as a fundamental principle in the Preamble to the Chicago Convention which states, inter alia, that it is desirable to avoid friction and to promote that cooperation between nations and peoples upon which the peace of the world depends. At the root of international cooperation is the element of assistance, and in this sense the maritime regulations which admit of gratuitous help are both significant and laudable. Although it is not the intention of this paper to recommend that all search and rescue operations be gratuitous, it certainly behoves the community of States to encourage all States who are in a position to give assistance without charge, to do so. Humanitarian assistance is an integral element of diplomatic unity and co-existence.

4.2

Operation of Aircraft

Prudent operation of aircraft is vital in avoiding accidents and incidents. Annex 6 addresses aeronautical aspects of the operations of aircraft. The essence of Annex 6, simply put, is that the operation of aircraft engaged in international air transport must be as standardized as possible to ensure the highest levels of safety and efficiency. In 1948 the Council first adopted Standards and Recommended Practices for the operation of aircraft engaged in international commercial air transport. They were based on recommendations of States attending the first session of the Operations Divisional Meeting held in 1946, and are the basis of Part I of Annex 6. In order to keep pace with a new and vital industry, the original provisions have been and are being constantly reviewed. For instance, a second part to 44

UKMIL (1986) 57 B.Y.I.L. 619. See Lowe and Warbrick (eds) (1993) 938 at 944. 46 See Vincent (1974) at 313. 45

4.2

Operation of Aircraft

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Annex 6, dealing exclusively with international general aviation, became applicable in September 1969. Similarly, a third part to Annex 6, dealing with all international helicopter operations, became applicable in November 1986. Part III originally addressed only helicopter flight recorders, but an amendment completing the coverage of helicopter operations in the same comprehensive manner as aeroplane operations covered in Parts I and II was adopted for applicability in November 1990. It would be impractical to provide one international set of operational rules and regulations for the wide variety of aircraft which exist today. Aircraft range from commercial airliners to the one-seat glider, all of which cross national boundaries into adjacent States. In the course of a single operation, a long-range jet may fly over many international borders. Each aircraft has unique handling characteristics relative to its type and, under varying environmental conditions, may have specific operational limitations. The very international nature of commercial aviation, and of general aviation to a lesser degree, requires pilots and operators to conform to a wide variety of national rules and regulations. The purpose of Annex 6 is to contribute to the safety of international air navigation by providing criteria for safe operating practices, and to contribute to the efficiency and regularity of international air navigation by encouraging ICAOâ&#x20AC;&#x2122;s Contracting States to facilitate the passage over their territories of commercial aircraft belonging to other countries that operate in conformity with these criteria. ICAO Standards do not preclude the development of national standards which may be more stringent than those contained in the Annex. In all phases of aircraft operations, minimum standards are the most acceptable compromise as they make commercial and general aviation viable without prejudicing safety. The Standards accepted by all Contracting States cover such areas as aircraft operations, performance, communications and navigation equipment, maintenance, flight documents, responsibilities of flight personnel and the security of the aircraft. The advent of the turbine engine and associated high performance aircraft designs necessitated a new approach to civil aircraft operation. Aircraft performance criteria, flight instruments, navigation equipment and many other operational aspects required new techniques, and they in turn created the need for international regulations to provide for safety and efficiency. The introduction of high-speed, long- and short-range aircraft, for example, created problems associated with endurance at relatively low altitudes, where fuel consumption becomes a major factor. The fuel policies of many of the international civil aviation carriers are required to take into account the need for possible diversions to an alternate aerodrome when adverse weather is forecast at the intended destination. Clearly defined International Standards and Recommended Practices exist in respect of operating minima based on the aircraft and the environmental factors found at each aerodrome. Subject to the State of the Operatorâ&#x20AC;&#x2122;s approval, the aircraft operator has to take into account the type of aeroplane or helicopter, the degree of sophistication of equipment carried on the aircraft, the characteristics of the approach and runway aids and the operating skill of the crew in carrying out procedures involved in operations in all weather conditions.

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References Michael Akehurst, The Use of Force to Protect Nationals Abroad (1977) 5 Int. Rel. 3, at 16 Michael Akehurst, Humanitarian Intervention, Intervention in World Politics, 1984 H Bull ed., 95 at 105 I. Brownlie, International Law and the Use of Force by States, 1963 at 338â&#x20AC;&#x201C;340 Carl Q. Christol, Space Law Past, Present and Future, Kluwer Law and Taxation Publishers, Deventer:1991 at 231 F.X. de Lima, Intervention in International Law, Vitgeverij Pax Nederland:Den Haag 1971 at 16 United Nations and International Law, (Christopher C. Joyner ed) Cambridge University Press: 1997 at p. 84 Oppenheim, International Law, Volume 1 (Lauterpacht 8th ed.) 1955 at 312â&#x20AC;&#x201C;320 Humanitarian Intervention and the United Nations, Richard B. Lillich ed., University Press of Virginia: Charlottesville, 1973 at 151 Current Developments: International Law, A.V. Lowe and Colin Warbrick ed., I.C.L.Q. Vol 42 October 1993 Part 4, 938 at 944 David Morrow, Preparing for Disaster, Airport Support, April 1995 at p. 29 J.G. Starke, An Introduction to International Law, 7th ed. London: Butterworths 1977 at 106 Georg Schwarzenberger, International Law and Order, London:Stevens and Sons, 1971 at 63 Fernando R. Teson, Humanitarian Intervention: An Inquiry into Law and Morality, Transnational Publishers Inc., Dobbs Ferry: New York 1956 at 5 R.J. Vincent, Non-intervention and International Order, Princeton University Press: New Jersey, 1974, at 313

Chapter 5

Aircraft Accident and Incident Investigation

It is a platitude to say that the causes of an aircraft accident1 or serious incident2 must be identified in order to prevent repeated occurrences. Article 26 of the Chicago Convention provides that, in the event of an accident to an aircraft of a contracting State occurring in the territory of another contracting State, and involving death or serious injury, or indicating serious technical defect in the aircraft or air navigation facilities, the State in which the accident occurs will institute an inquiry into the circumstances of the accident, in accordance, so far as its laws permit, with the procedure which may be recommended by ICAO. Article 26 goes on to say that the State in which the aircraft is registered shall be given the opportunity to appoint observers to be present at the inquiry and the State holding the inquiry shall communicate the report and findings in the matter to that State. The identification of causal factors is best accomplished through a properly conducted investigation.3 To emphasise this point, Annex 13 to the Chicago

The word “accident” is defined in Annex 13 as “an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked, in which: a) a person is fatally or seriously injured as a result of: being in the aircraft, or direct contact with any part of the aircraft, including parts which have become detached from the aircraft, or direct exposure to jet blast, except when the injuries are from natural causes, self-inflicted or inflicted by other persons, or when the injuries are to stowaways hiding outside the areas normally available to the passengers and crew; or b) the aircraft sustains damage or structural failure which: adversely affects the structural strength, performance or flight characteristics of the aircraft, and would normally require major repair or replacement of the affected component, except for engine failure or damage, when the damage is limited to the engine, its cowlings or accessories; or for damage limited to propellers, wing tips, antennas, tires, brakes, fairings, small dents or puncture holes in the aircraft skin; or c) the aircraft is missing or is completely inaccessible”. 2 An “incident” has been defined in Annex 13 as “an occurrence, other than an accident, associated with the operation of an aircraft which affects or could affect the safety of operation”. The types of incidents which are of main interest to the ICAO for accident prevention studies are listed in the Accident/Incident Reporting Manual (Doc 9156). 3 An “investigation” has been defined in Annex 13 as “a process conducted for the purpose of accident prevention which includes the gathering and analysis of information, the drawing of conclusions, including the determination of causes and, when appropriate, the making of safety recommendations”.

R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_5, # Springer-Verlag Berlin Heidelberg 2012

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Convention on accident and incident investigation states that the objective of the investigation of an accident or incident is prevention.4 Annex 13 provides the international requirements for the investigation of aircraft accidents and incidents. It has been written in a way that can be understood by all participants in an investigation. As such, it serves as a reference document for people around the world who may be called on, often without any lead time, to deal with the many aspects involved in the investigation of an aircraft accident or serious incident. As an example, the Annex spells out which States may participate in an investigation, such as the States of Occurrence, Registry, Operator, Design and Manufacture. It also defines the rights and responsibilities of such States. The inter-relationship between Article 26 and Annex 13 is reflected in a resolution of the ICAO Council. The Council, at the 20th meeting of its Twelfth Session on 13 April 1951, adopted the following additional resolution: “Whereas Article 26 of the Convention provides that a State in which an accident to an aircraft occurs within the terms of the Article, ‘will institute an inquiry into the circumstances of the accident in accordance, in so far as its laws permit, with the procedure which may be recommended by the International Civil Aviation Organization’; and “Whereas the Council, at the 18th meeting of its Twelfth Session on 11 April 1951, adopted Annex 13 on Aircraft Accident Inquiry; “The Council recommends the Standards and Recommended Practices for Aircraft Accident Inquiry contained in Annex 13 to the Convention, as the procedure to be followed by Contracting States for inquiries into accidents involving death or serious injury and instituted in accordance with the provisions of Article 26; “It being understood: “1) that States may in accordance with Article 38 of the Convention, deviate from any provision of Annex 13, except that, with respect to accidents covered by terms of Article 26 of the Convention and pursuant to this Article, ‘the State in which the accident occurs will institute an inquiry’, ‘the State in which the aircraft is registered shall be given the opportunity to appoint observers to be present at the inquiry’ and ‘the State holding the inquiry shall communicate the report and findings in the matter to that State’; and “2) that the procedure here recommended is not applicable when an accident to an aircraft not involving death or serious injury ‘indicates serious technical defect in the aircraft or air navigation facilities’, in which cases and until ICAO recommends a procedure to this effect, the inquiry shall be conducted in accordance with the national procedure of the State concerned, subject to the obligations deriving from the provisions of Article 26.”

The accredited representative and the advisers referred to in the Annex together comprise the observers that are given the right to be present at an inquiry under Article 26. The ninth edition of Annex 13 consists of eight chapters, an appendix and four attachments. The first three chapters over definitions, applicability and general

Standards and Recommended Practices for Aircraft Accident Inquiries were first adopted by the Council on 11 April 1951 pursuant to Article 37 of the Convention on International Civil Aviation (Chicago, 1944) and were designated as Annex 13 to the Convention. The Standards and Recommended Practices were based on recommendations of the Accident Investigation Division at its First Session in February 1946 which were further developed at the Second Session of the Division in February 1947.

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information. Chapter 3 includes the protection of evidence and the responsibility of the State of Occurrence for the custody and removal of the aircraft. It also defines how that State must handle requests for participation in the investigation from other States. All States that may be involved in an investigation must be promptly notified of the occurrence. Procedures for this notification process are contained in Chap. 4. The same chapter outlines the responsibilities for conducting an investigation depending on the location of the occurrence, e.g. in the territory of an ICAO Contracting State, in the territory of a non-contracting State, or outside the territory of any ICAO State. Following the formal notification of the investigation to the appropriate authorities, Chap. 5 addresses the investigation process. Responsibility for an investigation belongs to the State in which the accident or incident occurred. That State usually conducts the investigation, but it may delegate all or part of the investigation to another State. If the occurrence takes place outside the territory of any State, the State of Registry has the responsibility to conduct the investigation. States of Registry, Operator, Design and Manufacture who participate in an investigation are entitled to appoint an accredited representative to take part in the investigation. Advisers may also be appointed to assist accredited representatives. The State conducting the investigation may call on the best technical expertise available from any source to assist with the investigation. The investigation process includes the gathering, recording and analysis of all relevant information; the determination of the causes; formulating appropriate safety recommendations and the completion of the final report. Chapter 5 also includes provisions regarding: the investigator-in-charge, flight recorders, autopsy examinations, coordination with judicial authorities, informing aviation security authorities, disclosure of records, and re-opening of an investigation. States whose citizens have suffered fatalities in an accident are also entitled to appoint an expert to participate in the investigation. Chapter 6 contains the Standards and recommended practices dealing with the development and publication of the final report of an investigation. The recommended format for the final report is contained in an Appendix to the Annex. Computerized databases greatly facilitate the storing and analysing of information on accidents and incidents. The sharing of such safety information is regarded as vital to accident prevention. ICAO operates a computerized database known as the Accident/Incident Data Reporting (ADREP) system, which facilitates the exchange of safety information among Contracting States. Chapter 7 of Annex 13 addresses the reporting requirements of the ADREP system which is by means of Preliminary and Accident/Incident Data Reports. Chapter 8 of Annex 13 deals with accident prevention measures. The provisions in this chapter cover incident reporting systems, both mandatory and voluntary, and the necessity for a non-punitive environment for the voluntary reporting of safety hazards. This chapter then addresses database systems and a means to analyse the safety data contained in such databases in order to determine any preventive actions required. Finally, it recommends that States promote the establishment of safety information sharing networks to facilitate the free exchange of information on actual and potential safety deficiencies. The processes outlined in this chapter

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form part of a safety management system aimed at reducing the number of accidents and serious incidents worldwide.

5.1

Criminalization of the Accident Process

A critical provision in Annex 13 is Standard 3.1 which states that the sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents and that it is not the purpose of that activity to apportion blame or liability. Roderick Van Dam, Head of Legal Service, EUROCONTROL states: Recent years have shown a growing concern on the part of aviation professionals and the aviation industry about the interpretation of the general public, as well as the criminal judiciary, of flight safety and aviation accidents. . .the fear of legal proceedings and involvement of judicial authorities can have an impact on the level of reporting of safety incidents. With respect to aviation, failure to gather all available safety data may have potentially serious consequences. The ability to learn from mistakes and prevent new ones is one of the most valuable tools for improvement of aviation safety.5

As Van Dam states, there are two protagonists involved in this equation: one who has the objective of preserving justice by investigating and prosecuting possible perpetrators and the other with the aim of enhancing aviation safety through independent investigation and reporting.6 Corporate entities are apprehensive of developments in common law, particularly in the England, Wales, Northern Ireland and Scotland that would prompt them to be reluctant to divulge information that may be helpful in an accident or incident investigation process. The Corporate Manslaughter and Corporate Homicide Act of 2007,7 provides that an organization8 is guilty of an offence if the way in which its activities are managed or organized causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organization to the deceased.9 The Act applies inter alia to a corporation. The offence is termed “corporate manslaughter”, in so far as it is an offence under the law of England, Wales or Northern Ireland; and “corporate homicide”, in so far as it is an offence under the law of Scotland. An organization that is guilty of corporate manslaughter or corporate homicide is liable on conviction to a fine and the offence of corporate homicide is indictable only in the High Court of Justiciary.10 The Act provides that the concept of “relevant duty of care”, in relation to an organization, means: a duty owed to its employees or to other persons working for 5

Michaelides-Mateou and Mateou (2010), Foreword at xxi. Ibid. 7 http://www.opsi.gov.uk/acts/acts2007/ukpga_20070019_en_1#pb1-l1g1. 8 An organization that is a servant or agent of the Crown is not immune from prosecution. Id. Section 11. 9 Id. Section 1. 10 Id. Section 1.5. 6

5.1

Criminalization of the Accident Process

109

the organization or performing services for it; a duty owed as occupier of premises; a duty owed in connection with the supply by the Organization of goods or services (whether for consideration or not); and the carrying on by the Organization of any construction or maintenance operations, the carrying on by the Organization of any other activity on a commercial basis, or the use or keeping by the Organization of any plant, vehicle or other thing.11 Section 8 of the Act addresses the issue of “gross breach” and provides that where it is established that an Organization owed a relevant duty of care to a person, and it falls to the jury to decide whether there was a gross breach of that duty, the jury must consider whether the evidence shows that the Organization failed to comply with any health and safety legislation that relates to the alleged breach, and if so how serious that failure was; how much of a risk of death it posed. The jury may also consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the Organization that were likely to have encouraged any such failure or to have produced tolerance of it; taking into consideration any health and safety guidance that relates to the alleged breach. The provision does not prevent a jury from having regard to any other matters they consider relevant. For purposes of this provision, “health and safety guidance” means any code, guidance, manual or similar publication that is concerned with health and safety matters and is made or issued (under a statutory provision or otherwise) by an authority responsible for the enforcement of any health and safety legislation. The possible application of this piece of legislation to air transport is a reality, given the nature of the air transport product and the operation of aircraft. The profession of aeronautics, particularly relating to the piloting of aircraft, remains one of the most responsible, particularly in the context of the many lives that are entrusted to the airline pilot at any given time. Commercial airline pilots operate in a highly complex environment, particularly in single pilot operations. The difficulties faced by pilots in the work environment are compounded by the fact that often inadequate information aggravates the problem. Pilots rely heavily on their visual and auditory senses while flying, and it is of paramount importance that accurate information be available to the pilot at all times. Most importantly, pilots have usually the predilection to complete their given schedule no matter what, such as competing a flight as planned, meeting schedules, impressing their employees and pleasing the people they carry. Therefore negligent issues concerning the professional conduct of a pilot form quintessential elements for a highly esoteric legal debate, there being several recorded instances of criminal and civil prosecution of aviation professionals following from aircraft accidents.12 The Act, which introduces a new offence in England, Wales, Northern Ireland and Scotland, may have some relevance to and bearing on the Helios trial which opened on 26 February 2009 in Cyprus. The trial pertains to the island’s worst air tragedy, when 121 people perished on a charter plane that slammed into a Greek

Id. section 2.1. (a) to (c). See Mateou and Mateou, supra, note 5 in this chapter, Chap. 9 pp. 163–184.

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hillside nearly 4 years ago. According to reports13 Helios Airways and four airline officials faced charges of manslaughter and reckless endangerment in one of the most complex and high-profile cases in the eastern Mediterranean island’s legal history. Plaintiffs, who are relatives of the dead, have called for criminal action against those deemed responsible when the Helios Airways Boeing 737–300 ran out of oxygen and crashed outside Athens in August 2005. It has also been reported14 that, although the authorities have not named those to be charged, the accused are known to be officials who held top management positions in the airline at the time of the crash. A look at current tends brings to bear the fact that lessors and lessees as business entities could be heading for toward a time where they could face both tortuous and criminal liability for their negligent acts. In most globalized economies, tort law,15 which is the branch of law that provides compensation for injuries to persons and property caused by the act of another, is a constantly evolving area of the law. This continuous evolution is caused by new and emerging social and economic activities brought about by technological advancement and increasing and varied commercial activity. For example, in the field of environmental law, concerning a $ 333 million class action16 which was successfully argued in court against a California utility for polluting the water supply of a local community, is a good indicator of corporate liability. In the area of hospitality there is the “hot coffee” paradigm of Macdonald’s fame where two States in the United States went on for law reform after learning of the true facts of the case.17 In so far as criminalizing corporate activity is concerned, this could set a dangerous trend against efforts by the air transport industry which are calculated to ensure safety. Negligent entrustment, unless in extreme cases of criminal negligence, in its classical sense is a tort and must be treated as such, with the damage being calculated in terms of monetary compensation. Any extension of the principles under this head of liability to criminal law would cast an undue burden on those involved in providing services that are usually given out by experts such as pilots and surgeons and their employers. They would be forced to concentrate on covering their tracks rather than ensuring the protection of those under their charge. Two significant provisions in Annex 13 are a Standard and Recommended Practice. Standard 5.4 provides that the accident investigation authority shall have independence in the conduct of the investigation and have unrestricted

Kathimerini, Thursday February 2009. http://www.ekathimerini.com/4dcgi/_w_articles_world_ 1_26/02/2009_105057. 14 Ibid. 15 A ‘tort’ is simply the Norman word for ‘wrong’ but ‘torts’ have typically been distinguished from wrongs identified with contractual relations. Tort law is concerned with civil wrongs not arising from contracts. See G.E. White, Tort Law in America (1980) XI. 16 Cohen et al. (2000) at 22. 17 See State ex. Rel Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d. 451 (Ohio 1999) and Best v. Taylor Machine Works 689 N.E. 2d. 1057.

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authority over its conduct, consistent with the provisions of this Annex. The investigation would include: (a) the gathering, recording and analysis of all available information on that accident or incident; (b) if appropriate, the issuance of safety recommendations; (c) if possible, the determination of the causes; and (d) the completion of the final report. When possible, the scene of the accident shall be visited, the wreckage examined and statements taken from witnesses. Recommendation 5.4.1 suggests that any judicial or administrative proceedings to apportion blame or liability should be separate from any investigation conducted under the provisions of this Annex.18

References Adam Cohen et.al, â&#x20AC;&#x153;are Lawyers Running America? Their Lawsuits are Setting Policy on Guns, Tobacco and now HMOs, Who Elected Them?â&#x20AC;? Time, July 17, 2000 at 22 Sofia Michaelides-Mateou and Andrea Mateou, Flying in the Face of Criminalization, Ashgate: Surrey, 2010, Foreword at xxi

Standard 5.12 of Annex 13 provides that the State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations: a) all statements taken from persons by the investigation authorities in the course of their investigation; b) all communications between persons having been involved in the operation of the aircraft; c) medical or private information regarding persons involved in the accident or incident; d) cockpit voice recordings and transcripts from such recordings; and e) opinions expressed in the analysis of information, including flight recorder information.

Chapter 6

Air Crew Licencing

Article 32 of the Chicago Convention provides that the pilot of every aircraft and the other members of the operating crew of every aircraft engaged in international navigation shall be provided with certificates of competency and licenses1 issued or rendered valid by the State in which the aircraft operates. The provision also states that each ICAO member State reserves the right to refuse to recognize, for the purpose of flight above its own territory, certificates of competency and licences granted to any of its nationals by another member State. Member States of ICAO, at the 21st Session of the ICAO Assembly in Resolution A21-21, which has been alluded to earlier, in Appendix A resolves that certificates of airworthiness and certificates of competency and licenses of the crew of an aircraft issuedor rendered valid by the ICAO member State in which the aircraft is registered shall be recognized as valid by the other States for the purpose of flight over their territories, including landings and take offs subject to the provisions of Articles 33 and 32 (b) of the Chicago Convention. Article 33 provides that Certificates of airworthiness and certificates of competency and licenses issued or rendered valid by the contracting State in which the aircraft is registered, shall be recognized as valid by the other contracting States, provided that the requirements under which such certificates or licences were issued or rendered valid are equal to or above the minimum standards which may be established from time to time pursuant to the Convention. Article 32 (b) provides, as mentioned earlier that each ICAO member State reserves the right to refuse to recognize, for the purpose of flight above its own territory, certificates of competency and licences granted to any of its nationals by another member State. Standards and Recommended Practices for Personnel Licensing were first adopted by the Council on 14 April 1948 pursuant to the provisions of Article 37

The expression “licence” used throughout Annex 1 to the Chicago Convention has the same meaning as the expressions “certificate of competency and license”, “license or certificate” and “license” used in the Convention. Similarly the expression “flight crew member” has the same meaning as the expressions “member of the operating crew of an aircraft” and “operating personnel” used in the Convention while the expression “personnel other than flight crew members” includes the expression “mechanical personnel” used in the Convention.

R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_6, # Springer-Verlag Berlin Heidelberg 2012

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of the Convention on International Civil Aviation (Chicago 1944) and designated as Annex 1 to the Convention. They became effective on 15 September 1948. The most recent amendment to Annex 1, was Amendment 168 (Annex 1, Tenth Edition), adopted by the Council on 23 February 2007. The amendment concerns: the replacement of the approach and area radar control ratings by approach and area control surveillance ratings to reflect the fact that surveillance systems are not limited to radar; the harmonization of the Human Factors knowledge requirements for air traffic controllers with those recently adopted as part of Amendment 167 to Annex 1 for flight crew; the applicability of the existing Standards on approved training for flight crew (Annex 1, 1.2.8 and Appendix 2) to the approved training required for the air traffic controller licence and ratings; and new provisions for student air traffic controllers receiving instruction in an operational environment. Annex 1 contains Standards and Recommended Practices adopted by the International Civil Aviation Organization as the minimum standards for personnel licensing. The Annex is applicable to all applicants for and, on renewal, to all holders of the licences and ratings specified herein. The ICAO Council has decided that, in principle, amendments affecting existing licensing specifications are applicable to all applicants for, and holders of, licences but, in considering their application to existing holders of licences, the assessment, if necessary, by reexamination of the knowledge, experience and proficiency of individual licence holders is left to the discretion of Contracting States. As long as air travel cannot do without pilots and other air and ground personnel, their competence, skills and training will remain the essential guarantee for efficient and safe operations. Adequate personnel training and licensing also instil confidence between States, leading to international recognition and acceptance of personnel qualifications and licences and greater trust in aviation on the part of the traveller. Standards and Recommended Practices for the licensing of flight crew members (pilots, flight engineers and flight navigators), air traffic controllers, aeronautical station operators, maintenance technicians and flight dispatchers, are provided by Annex 1 to the Chicago Convention. Related training manuals provide guidance to States for the scope and depth of training curricula which will ensure that the confidence in safe air navigation, as intended by the Convention and Annex 1, is maintained. These training manuals also provide guidance for the training of other aviation personnel such as aerodrome emergency crews, flight operations officers, radio operators and individuals involved in other related disciplines. Todayâ&#x20AC;&#x2122;s aircraft operations are so diverse and complex that protection must be provided against the possibility, however remote, of total system breakdown due to either human error or failure of a system component. The human being is the vital link in the chain of aircraft operations but is also by nature the most flexible and variable. Proper training is necessary so as to minimize human error and provide able, skilful, proficient and competent personnel. Annex 1 and ICAO training manuals describe the skills necessary to build proficiency at various jobs, thereby contributing to occupational competency. The medical standards of the Annex, in requiring periodic health examinations, serve as an early warning for possible

6.1

Language Proficiency

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incapacitating medical conditions and contribute to the general health of flight crews and controllers. The Human Factors programme addresses known human capabilities and limitations, providing States with basic information on this vital subject as well as the material necessary to design proper training programmes. ICAOâ&#x20AC;&#x2122;s objective is to improve safety in aviation by making States more aware of, and responsive to, the importance of human factors in civil aviation operations. Licensing is the act of authorizing defined activities which should otherwise be prohibited due to the potentially serious results of such activities being performed improperly. An applicant for a licence must meet certain stated requirements proportional to the complexities of the task to be performed. The licensing examination serves as a regular test of physical fitness and performance ensuring independent control. As such, training and licensing together are critical for the achievement of overall competency. One of ICAOâ&#x20AC;&#x2122;s main tasks in the field of personnel licensing is to foster the resolution of differences in licensing requirements and to ensure that international licensing standards are kept in line with current practices and probable future developments. This is ever more crucial as the flight crew will be exposed to increasing traffic density and airspace congestion, highly complicated terminal area patterns and more sophisticated equipment. To accomplish this task, Annex I is regularly amended to reflect the rapidly changing environment.

6.1

Language Proficiency

Consequent upon the mid-air collision over India in 1996 which resulted in the death of 349 persons, and particularly since 1998, ICAO has made consistent efforts to standardize language proficiency for pilots and air traffic controllers. The issue has reached critical proportions in recent times due to the exponential growth in air traffic which involves longer flights operated by ultra long range aircraft crossing several territorial boundaries within a given flight. Such conditions could cause fatigue among air crew, leading them to misunderstand instructions, particularly if they are unfamiliar with the language of communication with the tower. Failures in communication bring to bear the compelling need for a standardized aviation language that all those who are involved in the technical operation of a flight could speak and understand. Recent measures by ICAO to strengthen and standardize global regulation in language proficiency include Resolution A 36-11, which, inter alia, recognizes the need for work in introducing language provisions to ensure that air traffic personnel and pilots are proficient in conducting and comprehending radiotelephony communications in the English language. It also acknowledges that the language provisions reinforce the requirement to use ICAO standardized phraseology in all situations for which it has been specified. Based on these observations the Resolution specifies several requirements that ICAO member States should meet.

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The use of standardized phraseology in aeronautical communications has been a critical issue addressed by the international aviation community for several years. The surging growth in aviation involving numerous pilots of various nationalities whose first language would differ from those countries they fly over, brings to bear the need for a common level of English to allow for safe and efficient air traffic management. Global enforcement of language proficiency regulation is an essential pre requisite in this endeavour, since variations in teaching methods around the world could only result in confusion in the skies. Arguably the most dangerous factor in this equation could be the presumption of a pilot who is conversant in the English language as required by international standards, that the personnel in the tower directing him have the same degree of proficiency in language as he does. Miscommunications between the pilot and the tower can have disastrous results. The world’s worst aviation accident happened in Tenerife, in March 1977 when two Boeing 747s collided on a foggy runway killing 583 persons. The accident investigation revealed that there had been a miscommunication between the cockpit crew and the tower.2 Though these instances are not prolific, they are sufficiently numerous to cause concern and the attendant damage is considerable.3 This is borne out by the fact that one study has estimated that 15% of all crashes are attributable to miscommunication.4 Exponential growth in air traffic, involving longer flights operated by ultra long range aircraft crossing several territorial boundaries in a given flight could cause crew fatigue, leading the pilot to misunderstand instructions, particularly if he is unfamiliar with the language of communication with the tower. Such failures in communication bring to bear the compelling need for a standardized aviation language that all those who are involved in the technical operation of a flight could speak and understand. The unique challenges posed by communications in air transport are also due to the fact that the protagonists are in two different places. In this regard, there has been a suggestion from a seasoned air traffic controller that controllers should have “familiarization” privileges of riding in the cockpit up to eight times a year, so that they could learn what goes on in the flight deck during landing and take off.5 Conversely, pilots would have the opportunity to ask questions as to how the tower works. 2

Robinson (2008) at 20. In 1990 an Avianca Boeing 707 crashed just short of JFK Airport in New York, after making several futile attempts at communicating with the tower that it was low on fuel. In 2002, an MD-83 collided with a Shorts 330 at Charles de Gaulle airport, Paris, resulting in the death of the first officer and sever injury to the captain. Here a serious miscommunication occurred that led to the accident. The air traffic controllers had used English to communicate with the Shorts crew and French to talk to the MD-83 crew, and therefore the Shorts pilot did not know that the MD-83 had been given permission to take off. More recently, in 2007, Israeli fighters had to intercept and escort a Kazakstani aircraft simply because the Kazaks pilot’s English was so poor that he could not be understood by the Israelis. 4 Robinson, supra, note 2 in this chapter ibid. 5 This practice was, in fact in place before the events of 11 September 2001 in the United States. See Richards (2007) at 343. 3

6.2

Regulatory Developments

117

Ironically, new developments and the use of electronic communications may be adding to the problem. Prior to the introduction of paperless cockpits and MFD6 and FMS7 displays, which replaced the hard copy paper manuals, the crew could highlight and annotate on the paper documents, which enabled them to familiarize themselves with unfamiliar terminology. These two display systems are essentially visual and, without the appropriate language background, a pilot could find it difficult to decipher the visuals.

6.2

Regulatory Developments

ICAO has, throughout its many years of serving the international aviation community, carried out sustained efforts to harmonize language requirements for aeronautical communications. These efforts to address language proficiency for pilots and air traffic controllers is long standing and was first made by the 32nd Session of the Assembly8 in September 1998. At that session, ICAO member States adopted Resolution A 32-16 on the subject of proficiency in the English language for radio telephony communications which was adopted as a direct response to an accident that cost the lives of 349 persons, as well as previous fatal accidents where the lack of proficiency in English was a causal factor. This resolution acknowledged the fact that recent major accident investigations had indicated lack of proficiency and comprehension of the English language by flight crews and air traffic controllers as a contributing factor and that in order to prevent such accidents, it was essential that ICAO devise ways and means to ensure that all member States take steps to ensure that air traffic control personnel and flight crew involved in flight operations in air space where the use of the English language is required, are proficient in conducting and comprehending radiotelephony communications in the English language.

The MFD (Multi Function Device) is a big, multicolour GPS moving map on the screen of the dashboard. The MFD is a small screen in an aircraft surrounded by multiple buttons that can be used to display information to the pilot in numerous configurable ways. Often an MFD will be used in concert with a PFD (Primary Flight Display). MFDs are part of the digital era of modern planes or helicopter. The first MFD were introduced by air forces. The advantage of an MFD over analog display is that an MFD does not consume much space in the cockpit. 7 A flight management system or FMS is a computerized avionics component installed in most commercial and business aircraft to assist pilots in navigation, flight planning, and aircraft control functions. FMS is composed of three major components: FMC—Flight Management Computer; AFS—Auto Flight System, and Navigation System including IRS—Internal Reference System and the Global Positioning System—GPS. 8 The ICAO Assembly, comprised of the Organization’s 191 Member States, meets once every 3 years. An extraordinary meeting of the Assembly may be convened by the Council at any time. The powers and duties of the Assembly are stated in Article 49 of the Convention on International Civil Aviation.

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Accordingly, Resolution A32-16 urged the ICAO Council9 to direct the Air Navigation Commission—a subordinate body of the Council- to consider the matter with a high level of priority. Subsequently, and in response to action taken by the Council, the Air Navigation Commission initiated the development of language provisions in the following Annexes to the Chicago Convention10: Annex 1— Personnel Licensing, Annex 6—Operation of Aircraft, Annex 10—Aeronautical Telecommunications, and Annex 11—Air Traffic Services. On 5 March 2003, the Council adopted Amendment 164 to Annex 1.11 As of 5 March 2008, the ability to speak and understand the language used for radiotelephony that is currently required for pilots and air traffic controllers will have to be demonstrated based on the ICAO holistic descriptors and language proficiency rating scale (at Level 4 or above). Additionally, since November 2003, Annex 10 to the Convention on International Civil Aviation has required the availability of English language at all stations on the ground serving designated airports and routes used by international air services. Since 2003, several steps have been taken to assist States with the implementation of these requirements. The first edition of the Manual on the Implementation of ICAO Language Proficiency Requirements12 and the training aid entitled ICAO Language Proficiency Requirements—Rated Speech Samples were produced. The second edition of Document 9835 is presently under development. To date, 11 regional seminars have been conducted. Two ICAO Aviation Language Symposia were conducted in September 2004 and in May 2007 respectively. These symposia have been popular and well attended. The Second ICAO Aviation Language Symposium was attended by 221 participants from 62 States and 8 international organizations. While some participants were from State authorities, many of the participants were from air operators, air navigation service providers and language training and testing entities. During the Symposium, concerns were expressed to suggest that some Member States were encountering difficulties in implementing the language proficiency requirements including the

The ICAO Council is a permanent body responsible to the Assembly. It is composed of 36 Member States elected by the Assembly. In electing the members of the Council, the Assembly gives adequate representation to States of chief importance to air transport; States not otherwise included which make the largest contribution to the provision of facilities for international air navigation; and States not otherwise included whose designation will ensure that all the major geographic areas of the world are represented on the Council. The mandatory and permissive functions of the Council are stipulated in Articles 54 and 55 of the Convention on International Civil Aviation respectively. The Council has its genesis in the Interim Council of the Provisional International Civil Aviation Organization (PICAO). PICAO occupied such legal capacity as may have been necessary for the performance of its functions and was recognised as having full juridical personality wherever compatible with the Constitution and the laws of the State concerned. See Interim Agreement on International Civil Aviation, opened for signature at Chicago, December 7 1944, Article 3. Also in Hudson (1942–1945) at 159. 10 Supra, note 1 in Chap. 1. The Chicago Convention has 18 annexes which address technical areas pertaining to air navigation, air transport and environmental protection. 11 See C-DEC 168/9. 12 Doc 9835, AN/453, First Edition 2004.

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establishment of language training and testing capabilities. Some support was expressed for ICAO to establish a system for the endorsement of language testing as a means to identify testing services that meet harmonized ICAO criteria. Several participants also requested clarification on the steps States should take if they did not implement the requirements by 5 March 2008. During its deliberations in June 2007, the Council recognized that a single, universally applicable aviation language proficiency test, although desirable, would be inappropriate. However, the Council supported the development of globally harmonized language testing criteria. The implementation of such criteria could effectively be achieved through the establishment of an ICAO endorsement mechanism for aviation language testing. The Council recognized, however, that budgetary resources would be required to establish an ICAO endorsement mechanism for aviation language testing. ICAO advised its member States at the 36th Session of its Assembly (Montreal: September 18â&#x20AC;&#x201C;28, 2007) that it was widely recognized that implementation of the language provisions is resource intensive. Since the language provisions have become effective, several States have invested considerable resources and efforts to comply with the provisions by 5 March 2008. While some States may not be compliant by March 2008, the applicability date established a milestone that would help to retain the focus required to implement the safety Standards related to language proficiency as soon as practicable. The Assembly was also advised that understanding the consequence of noncompliance was important in order to take appropriate action. A negative impact on safety would be considered the most serious consequence of non-compliance. In addition, the multilateral recognition of pilotsâ&#x20AC;&#x2122; licences provided for under Article 3313 of the Chicago Convention could also be impacted when a State is unable to meet the minimum Standards prescribed in Annex 1 to the Convention. Transparency and regular communications among Member States would be the best means of mitigating the potential impact. It should be noted that the Convention provides for the means to deal with such situations and to ensure the continuity of international civil aviation. In the case of flight crew licences, and in application of Articles 33, 3914

Article 33 is on the subject of Recognition of certificates and licenses. It provides that certificates of airworthiness and certificates of competency and licenses issued or rendered valid by the member State in which the aircraft is registered, shall be recognized as valid by the other member States, provided that the requirements under which such certificates or licences were issued or rendered valid are equal to or above the minimum standards which may be established from time to time pursuant to this Convention. 14 Article 39 is on the subject of endorsement of certificates and licenses. It provides: (a) that any aircraft or part thereof with respect to which there exists an international standard of airworthiness or performance, and which failed in any respect to satisfy that standard at the time of its certification, shall have endorsed on or attached to its airworthiness certificate a complete enumeration of the details in respect of which it so failed; and (b) that any person holding a license who does not satisfy in full the conditions laid down in the international standard relating to the class of license or certificate which he holds shall have endorsed on or attached to his license a complete enumeration of the particulars in which he does not satisfy such conditions.

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and 4015 of the Convention, those pilots that do not meet the operational Level 4 requirements would require permission from other States to operate in the airspace under their jurisdiction. ICAO also recommended that, in all cases, including those of States where air traffic controllers are not yet compliant, States should notify ICAO of the differences in accordance with Article 3816 of the Convention and ensure that these differences are indicated in their Aeronautical Information Publication (AIP). They will also have to endorse the personnel licences in accordance with Article 39 of the Convention. States that may not be in a position to comply with the language proficiency requirement by the applicability date should also provide information on their implementation plans and interim measures taken to mitigate risk. It is important for safety purposes that each State has sufficient information to make a proper risk analysis. This analysis will be required in order to allow an aircraft with pilots who may not meet the language proficiency requirement to fly in the airspace under the jurisdiction of another State. This analysis will also be required for States to authorize their operators to fly in the airspace under the jurisdiction or responsibility of another State that may not be compliant. The purpose of the risk analysis is to ensure that the lack of language proficiency is minimized as a potential causal factor of incidents and accidents. This step will not only help to eliminate or mitigate risk, but to actually strengthen a Standard that could otherwise be ignored by some States. To this end ICAO planned to provide guidance on the development of implementation plans by the end of October 2007 and to conduct seminars in each ICAO Region as soon as practicable. At the time this article was being written, work on the guidance material was being finalized by ICAO.

Article 40 concerns the validity of endorsed certificates and licenses and provides that No aircraft or personnel having certificates or licenses so endorsed shall participate in international navigation, except with the permission of the State or States whose territory is entered. The registration or use of any such aircraft, or of any certificated aircraft part, in any State other than that in which it was originally certificated shall be at the discretion of the State into which the aircraft or part is imported. 16 Article 38 concerns departures from international standards and procedures and provides that any State which finds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within sixty days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take. In any such case, the Council shall make immediate notification to all other states of the difference which exists between one or more features of an international standard and the corresponding national practice of that State.

6.2

Regulatory Developments

121

In response to the recommendations of the ICAO Council, ICAO member States, at the 36th Session of the Assembly convened in September 2007, adopted Assembly Resolution A 36-1117 (Proficiency in the English Language used for radiotelephony) which superseded the earlier resolution A32-16 on the same subject. This resolution, while recognizing ICAOâ&#x20AC;&#x2122;s work in introducing language provisions to ensure that air traffic personnel and pilots are proficient in conducting and comprehending radiotelephony communications in the English language, including requirements that the English language shall be available on request at all stations on the ground serving designated airports and routes used by international air services; acknowledged that the language provisions reinforce the requirement to use ICAO standardized phraseology in all situations for which it has been specified. The Assembly gave due recognition to the fact that ICAO member States had made substantial efforts to comply with the language proficiency requirements by 5 March 2008. However, some States still encounter considerable difficulties in implementing the language proficiency requirements including the establishment of language training and testing capabilities. Furthermore, some member States will require additional time to implement the language proficiency provisions beyond the applicability date. There was also the reality according to Resolution A36-11 that some States were finding it impracticable to comply in all respects with any international standard or procedure but were obliged to give immediate notification to ICAO in accordance with Article 38 of the Convention. The Resolution makes mention of the requirements in Articles 39 and 40 which have been already referred to in this article and urges the member States to use ICAO standardized phraseology in all situations for which it has been specified. It also directs the Council to support Member States in their implementation of the language proficiency requirements by establishing globally harmonized language testing criteria and urges member States that are not in a position to comply with the language proficiency A-2 requirement by the applicability date to post their language proficiency implementation plans including their interim measures to mitigate risk, as required, for pilots, air traffic controllers and aeronautical station operators involved in international operations on the ICAO website as outlined in accordance with the practices recommended by ICAO together with ICAO guidance material. Finally the Resolution directed the Council to provide guidelines to States on the development of implementation plans, including an explanation of the risk mitigation measures so as to enable Member States to post their plans as soon as practicable, but prior to 5 March 2008. The Resolution also calls upon the member States to waive the permission requirement under Article 40 of the Convention, in the airspace under their jurisdiction for pilots who do not yet meet the ICAO language proficiency requirements, for a period not exceeding 3 years after the applicability date of 5 March 2008, provided that the States which issued or rendered valid the licences have made their

This Resolution was been transmitted to all the ICAO member States by the Secretary General of ICAO per State Letter AN 12/44.6-07/68 dated 26 October 2007.

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implementation plans available to all other Member States. States were also requested not to restrict their operators, conducting commercial or general aviation operations, from entering the airspace under the jurisdiction or responsibility of other States where air traffic controllers or radio station operators did not yet meet the language proficiency requirements for a period not exceeding 3 years after the applicability date of 5 March 2008, provided that those States had made their implementation plans available to all other Member States. Member States must, in accordance with Resolution A36-11, provide data concerning their level of implementation of the Language Proficiency Requirements when requested by ICAO. The Assembly reviewed a report to be submitted to it by the ICAO Council at its next ordinary session in 2010.

6.3

Legal Issues

The first issue that has to be addressed from a legal perspective is what legal right has ICAO to impose obligations on its member States to conform to ICAOâ&#x20AC;&#x2122;s requirements stemming from Assembly Resolution A 36-11. This is because there are a number of obligations that flow from the Resolution. For instance, ICAO member States that are not able to meet the language proficiency requirements by 5 March 2008 are required to, as a first measure, develop implementation plans for the language proficiency requirements that include: a timeline for adoption of the language proficiency requirements in their national regulations; a timeline for establishment of language training and assessment capabilities; a description of a risk based prioritization system for the interim measures to be put in place until full compliance with the language proficiency requirements is achieved; and a procedure for endorsing licences to indicate the holdersâ&#x20AC;&#x2122; language proficiency level. They should also designate a national focal point in relation to the English language proficiency implementation plan; make their language proficiency implementation plans available to all other member States by posting their plans on the ICAO website as soon as practicable, but prior to 5 March 2008; notify ICAO of differences to the language proficiency Standards and Recommended Practices; and publish differences to the language proficiency requirements in relation to the provision of air navigation services in their aeronautical information publications. Over its 60 years of service to the international civil aviation community, ICAO has, through its Assembly and Council adopted numerous resolutions. Additionally, the ICAO Council has taken several decisions and issued statements of policy guidance. An organization such as ICAO is tasked primarily to provide a certain predictability about its members by promulgating norms for the conduct of its Member States. Of course not all those norms are binding and not all of them are adopted with the same degree of formality. However, certainly all of them provide guidance to States. This situation has to mesh with the basic inquiry as to whether ICAO, as an international organization, has been given direct authority over

6.3

Legal Issues

123

individuals or States. Another issue is whether ICAO is primarily an instrument for cooperation among States. Firstly, when one considers the background of ICAO and the statements of its founding fathers, as discussed earlier, there is no room for doubt that ICAO is a specialized agency that has procedures to modify, without eliminating, the positivist principle that States are only bound by international rules to which they have consented. This approach admits of a process whereby ICAO adopts or amends rules after having given a designated period of time for its member States to examine such rules and decide whether they would accept them or not. Individual member States may object or mark their differences in practices to the ones ICAO suggests for adoption.18 States objecting to a particular Standard and Recommended Practice (SARP) may choose if they wish to opt out of whole processes recommended by ICAO, even though general consensus is achieved to adopt them. There is no record of a single international Standard adopted through this process being disapproved by a majority of ICAO member States, although not all of ICAO’s 190 member States have found it practicable to comply with all Standards19 in the 18 Annexes to the Chicago Convention.20 The question arises as to whether a member State is formally bound by Standards contained in an Annex to the Chicago Convention, particularly when such a State has no convincing argument that it is impracticable to implement such Standards or when it has not notified the ICAO Council of differences as required. This is a vexed debate, particularly in the face of two blatant facts. The first is that the travaux preparatoires to the Convention contains a statement that “the Annexes are given no compulsory force”.21 The second is that in Article 54 of the Convention, which lays down the mandatory functions of the Council, it is provided that one of the mandatory functions is to “Adopt, in accordance with the provisions of this Convention, international standards and recommended practices; for convenience

Article 37 of the Chicago Convention confirms that each Member State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. Article 38 gives any State the opportunity, if it finds it impracticable to adhere to ICAO’s policy to file differences by giving notice to ICAO of the difference between what is recommended or required by ICAO and the practice prevalent in that State. 19 The ICAO Assembly, at its 35th Session held in Montreal from 28 September to 8 October 2004, defined a Standard “as any specification. . .the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which member States will conform in accordance with the Chicago Convention.; in the event of impossibility of compliance, notification to the Council is compulsory under Article 38 of the Convention. The same resolution describes a Recommended Practice as any specification for physical characteristics. . . which is recognised as desirable and one that member States will endeavour to conform to” See Assembly Resolutions in Force, (As of 8 October 2004) ICAO Doc 9848, II-2 Appendix A. 20 Buergenthal (1969), pp. 98–107. 21 See Whiteman (1968) at p. 404.

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(emphasis added) designate them as Annexes to this Convention; and notify all member States of action taken”.22 One could argue therefore that the Annexes are not an integral part of the Convention by virtue of the statement in Article 54 and therefore do not form binding law. There have been numerous views of legal scholars who have cautioned against this approach and advocated that the words of the Convention should not be taken literarily. One commentator is of the view that: The debate is largely academic. Whether or not ICAO standards are formally binding in the treaty law sense, they are highly authoritative in practice. This reflects their recognized importance for the safety and efficiency of civil air travel and the thorough process by which they are promulgated.23

It is therefore arguable that all Standards contained in the ICAO Annexes are formally binding on member States, except when a State opts out under the procedure set forth in the Convention in Article 38. ICAO’s international Standards are identified by the words “member States shall” and have a mandatory flavour (infused by the word ‘shall’) while Recommended Practices identified by the words ‘member States may’ have only an advisory and recommendatory connotation (infused by the word ‘may’). It is interesting that at least one ICAO document24 requires States under Article 38 of the Convention, to notify ICAO of all significant differences from both Standards and Recommended Practices, thus making all SARPS regulatory in nature. ICAO is an Organization established by the Chicago Convention of 1944 and is composed of an Assembly, a Council and such other bodies as may be necessary.25 The Assembly and the Council are composed of Member States. The Assembly, composed of 190 Member States, has delegated its daily functions to the Council of 36 Member States which largely forms the decision making body of ICAO. Therefore it would not be incorrect to assume that any resolution adopted or decision taken by the ICAO Council, or any provision in the Annexes to the Chicago Convention can be imputed to ICAO’s Member States which have delegated powers on the Council. However, States retain the powers to act unilaterally and they are not bound to comply with obligations flowing from the Organization’s exercise of conferred powers. States which have delegated powers on ICAO have the legal right under public international law to take measures against a particular exercise by ICAO of conferred powers which is considered to be detournement de 22

Chicago Convention, supra, note 1 in Chap. 1, Article 54 (l). Kirgis (1995), p. 109 at 126. There is a similar process in operation under the World Meteorological Organization, whereby a certain amount of decision making authority is given to the WMO Congress. Article 9 (a) of the WMO Convention provides that all members shall do their utmost to implement the decisions of the Congress. Article 9(b) allows any member to opt out by notifying the Secretary General, with reasons if it finds it impracticable to give effect to the technical requirement in question. WMO Convention, reprinted in Kapteyn et al. eds (1981), pt. I.B.1.9 a. Also in WMO Basic Documents, No. 1. WMO Doc. No. 15 at 9 1987. 24 Aeronautical Information Services Manual, ICAO Doc 8126–0 AN/872/3. 25 Chicago convention, supra, note 11 in Chap. 1, article 43. 23

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125

pouvoir, ultra vires or an internationally wrongful act with which the objecting States do not wish to be associated. A State could also distance itself from the State practice of other Member States within the Council if such activity is calculated to form customary international law that could in turn bind the objecting State if it does not persist in its objections.26 A significant issue in the determination of ICAO’s effectiveness as an international organization is the overriding principle of universality and global participation of all its 191 Member States in the implementation of ICAO policy. This principle, which has its genesis in the Chicago Conference of 1944, has flowed on gaining express recognition of legal scholars. This is what makes ICAO unique as a specialized agency of the United Nations and establishes without any doubt that ICAO is not just a tool of cooperation among States. The bottom line therefore is that on a subject such as language proficiency in aeronautical communications, ICAO member States have little authority to reject standards set by the Organization and adopt their own.

6.4

Privileges and Misuse

One of the most compelling provisions of the Annex is Standard 1.2.6.1. which provides that holders of licences provided for in this Annex shall not exercise the privileges of their licences and related ratings at any time when they are aware of any decrease in their medical fitness which might render them unable to safely and properly exercise these privileges.27 In this context it is noteworthy that On March 3rd 2009, the Council of ICAO approved international Standards which stipulate that regulations on flight and duty time limitations must be based on “scientific principles and knowledge”. These Standards became effective on 19 November 2009 and remain applicable. On 13 June 2011 the Council adopted international Standards for Fatigue Risk Management Systems (FRMS) with a view to better addressing crew fatigue which is considered a key contributor to aircraft accidents. The new Standards, which would amend current Standards of ICAO Annex 6 to the Convention on International Civil Aviation—Operation of Aircraft Part I—International Operations— Aeroplanes come into effect on 30 October 2011 and become applicable on 15 December 2011. Global Standards on limitations applicable to crew duty hours have gradually become obsolete and inapplicable in the face of varying operational contexts that require globally harmonized management systems containing Standards and guidance material. In July 2011, ICAO, IATA and IFALPA issued its 26

See Sarooshi (2005) at p. 110. The licence holders should inform the Licensing Authority of confirmed pregnancy or any decrease in medical fitness of a duration of more than 20 days or which requires continued treatment with prescribed medication or which has required hospital treatment. See Annex 1 Recommended Practice 1.2,6,1.1.

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guidance for operators that provides air operators with information for implementing an FRMS that is consistent with applicable Standards and Recommended Practices (SARPs) of ICAO. Also in existence hand in hand with this guidance is the Regulator’s Manual that guides regulators through the FRMS process. Both these documents are accessible through the ICAO website.28 On 30 and 31 August 2011 ICAO held an FRMS Symposium where a unique gathering of more than 500 representatives from government, the air transport industry and the scientific community held important discussions which resulted in several conclusions. Now that an extensive regulatory system has been set in place, a key issue that has to be addressed is the integrity of the aircrew in their role of ensuring that they are not fatigued when they take over an aircraft for flight. This article, written from the perspective of the crew with focus on the technical crew, discusses their role in contributing to the success of FRMS. From 30 to 31 August 2011 ICAO held in Montreal a Fatigue Risk Management (FRMS) symposium which addressed themes related to the oversight and implementation of FRMS. It examined the scientific principles that should form the basis of both prescriptive and non-prescriptive fatigue management regulations and focused on the more controversial issues for States and operators, including the role of biomathematical models in FRMS, and the relationship between FRMS and safety management systems (SMS).29 The Forum that followed provided a vehicle for industry specialists to share knowledge and experiences of creating, implementing and overseeing an FRMS. The meeting further developed themes related to the regulation and implementation of FRMS with a more hands on approach, and included comparisons of various fatigue modelling software that would help share best practices for various operational contexts. The content had high relevance to operators and regulators alike. At the conclusion of the Symposium the participants were unanimous in recommending that regulators, operators and crew members should build trust if the FRMS were to succeed. The central thrust of the theme lay in the 3 “R”s: relationship; respect; and responsibilities. It was recognized that there must be a strong bond of trust between crew members and the operators and that crew members should not be reluctant to get away from prescriptive limitations and apprehensions and report data and facts related to FRMS. The responsibility of the crew member was to report to work alert and consider that the safety of his flight was the prime concern. As such, non disclosure by the crew member to the operator of critical health information including fatigue and fatigue causing illnesses was considered extremely damaging to the overall SMS. It was also stressed that crew members should not use industrial action to jeopardize operations and that operators must not use voluntary information provided by crew members for punitive reasons.

See http://www2.icao.int/en/FatigueManagement/Pages/FatigueManagementTools.aspx. For a detailed discussion on SMS see Abeyratne (2007), pp. 7–13. See also generally, Stolzer et al. (2008). 29

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The Symposium concluded that the theme of “trust” was particularly relevant in the role of crew members in providing information and data pertaining to their activities outside working hours and that therefore the crew member has to be assured by both operators and regulators that the information and data he provides is treated with the utmost confidentiality. Such confidentiality should be ensured through Boards of Review or Ethics Committees which are composed of persons outside the triumvirate of operator, crew member and regulator. The Symposium also concluded that the crew member has to place trust in his designated medical examiner (DME) in disclosing any condition that may jeopardize the safety of aviation. In this context the Symposium emphasized that national legislation must protect the data, and guidelines should be adopted through the auspices of ICAO.

6.5

Fatigue Risk Management Systems

Accident statistics, reports from pilots30 themselves, and operational flight studies all show that fatigue is a growing concern within aviation operations.31 Crew member fatigue is identified as: A physiological state of reduced mental or physical performance capability resulting from sleep loss or extended wakefulness, circadian phase or workload (mental and/or physical activity) that can impair a crew member’s alertness and ability to safely operate an aircraft or perform safety related duties.32

A good example of crew member fatigue is a misjudgement of a barometric altimeter reading by the crew while approaching the runway where the reading is perceived by the crew as reflecting atmospheric pressure lower than what it actually is, such perception being due to fatigue caused by the operation of a long flight that involved jet lag.33 The fatal Colgan air crash of 12 February 2009 which received much publicity in the media, and which was seemingly caused by the pilots’ 30

For purposes of this article, a pilot is a person who engages in such flying as makes it necessary that he or she holds a valid airline transport pilot’s license (ATPL). This paper will therefore not address the professional conduct of persons who are holders of private pilots’ licenses and use such licences for non remunerative flights, or flights which do not involve payment of monies for services rendered in flying aircraft. Also excluded are holders of ATPLs who happen to fly on particular occasions under circumstances where a private pilot’s license would be adequate, for instance, when a person who flies a recreational flight or on personal business although he may hold an ATPL. 31 Caldwell et al. (2009), pp. 29–59 at 32. 32 Fatigue Risk Management Systems, Implementation Guide for Operators 1st Edition: July 2011, IATA, ICAO, IFALPA at 1. Fatigue is a feeling or sensation of tiredness, weariness, exhaustion, weakness or low energy and is a symptom of a wide variety of mild to serious diseases, disorders and conditions including infection, inflammation, trauma, malignancy, chronic diseases, autoimmune diseases, and mental illnesses. http://www.bettermedicine.com/article/fatigue/causes. 33 Miyagi (2005) at 72–73.

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inappropriate response to a low speed condition, prompted the National Transportation Safety Board of the United States to conclude that the accident occurred because the pilots’ performance was caused by fatigue.34 On August 18, 1993, a Connie Kalitta DC-8 crashed on a 1/4-mile base leg to final. The flight crew had been on duty for 18 h and flown nine, thereby experiencing sleep loss and a disruption of their circadian rhythms. Jim Danaher, chief of the NTSB’s Operational Factors Division, in his introductory speech at the November 1995 Fatigue Symposium near Washington, D.C., revealed that the company had intended for the crew to ferry the airplane back to Atlanta after the airplane was offloaded in Guantanamo Bay. This would have resulted in a total duty time of 24 h and 12 h of flight time.35 FRMS has the same objective as Safety Management Systems (SMS)36 which aim to manage safety related risks through a balanced approach to safety, productivity and costs. FRMS and SMS are integrated on common principles of risk management; safety assurance processes; safety promotion; and common safety policies. The one difference between the two systems is that while SMS is mandatory, FRMS is optional. It must also be stressed that FRMS does not replace the need for establishing flight and duty time restrictions.37 FRMS comes within the Universal Safety Oversight Audit Programme (USOAP) of ICAO where in Resolution A37-538 adopted by the ICAO Assembly at its 37th Session (28 September–8 October 2010) the Assembly directed the Secretary General to evolve USOAP— with effect from 1 January 2011—to a continuous monitoring approach (CMA), which will incorporate the analysis of safety risk factors and be applied on a universal basis in order to assess States’ oversight capabilities. Annex 6 to the Chicago Convention39 recommends that where an operator has an FRMS it should be integrated with the operator’s SMS.40 FRMS is broadly based on the critical and vital importance of sleep (not just rest) for restoring and maintaining the waking function and the need to maintain the daily cycle of the circadian function of the biological clock in the brain. FRMS veers from the simplistic and 34

National Transportation Safety Board Report 2010, page 108. Another accident was the June 1999 fatal runway accident of American Airlines Flight 1420 in which a McDonnell Douglas MD82 overran the end of the runway, went down an embankment, and impacted approach light structures after landing at the Adams Field Airport in Little Rock, Arkansas. Thunderstorms and heavy rain were reported in the area at the time of the accident. There were 11 fatalities, including the aircraft captain, and numerous injuries among the 145 passengers and crew aboard the flight. Fatigue was listed as a cause. 35 Duke (1997). 36 Supra, note 29 in this chapter. 37 Standards approved by ICAO on March 3rd 2009, which became effective on 19 November 2009 stipulate that regulations on flight and duty time limitations must be based on “scientific principles and knowledge”. These are still applicable and will remain applicable. 38 A37-5 The Universal Safety Oversight Audit Programme (USOAP) continuous monitoring approach, Assembly Resolutions in Force (as of 8 October 2010) Doc 9958, at 1–94. 39 Supra, note 1 in Chapter 1. 40 Annex 6 Part 1, Recommendation 4.10.7.

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objective test recognized by the earlier prescriptive flight and duty time limits which was that one size fits all and being within the limits was safe while being outside the prescriptive limits was unsafe. Research has shown that flight and duty time limits are not always effective in managing fatigue risk because they are not based on scientific research; nor are they cognisant of the importance of risk management.41 On the other hand, FRMS enhance safety scientifically, taking into account modern day operational realities and experience gathered through the years. The ICAO, IATA, IFALPA Implementation Guide ensures that regulators, operators and crew members adhere to the same guidelines. ICAO defines the FRMS as: A data-driven means of continuously monitoring and managing fatigue-related safety risks, based upon scientific principles and knowledge as well as operational experience that aims to ensure relevant personnel are performing at adequate levels of alertness.42

FRMS is essentially regulatory oversight which is performance-based. It is entirely dependent on an effective safety reporting culture. FRMS looks at operative factors that cause fatigue and assures both industry and crew of fatigue risks. There is, however, a fundamental disconnect between the definition of fatigue and the definition of FRMS in that the former inclusively identifies factors that cause fatigue while FRMS is not concerned with the causes of fatigue as much as it is concerned with managing the risk of fatigue. In this context FRMS would be equally concerned with crew member fatigue caused by disease. The abovementioned distinction brings to bear the need for a discussion along the lines that, although there is no doubt that the primary causes of aircrew fatigue are those identified in the definition, one wonders whether this definition, which addresses only such issues as sleep deprivation, wakefulness and circadian irregularity, is adequately all-encompassing and whether it should not have taken into account certain medical issues that may affect crew that result in fatigue. For instance, a crew member who suffers from cardio vascular disease could suffer from chronic fatigue which is the outcome of low cardiac output and poor function of the oxygen delivery system. Although fatigue is often caused by mental stress, it may be the earliest and only indication that impaired pump failure exists and that a potential for sudden or subtle incapacitation is present.43 In such an instance the integrity of the crew member in disclosing his illness, and conversely his negligence in non-disclosure of his ailment could have adverse implications for FRMS.

Fatigue Risk Management Systems: A Review of the Literature, Department for Transport September 2010 at 44. 42 FRMS Implementation Guide., supra, note 32 in this chapter, ibid. Another definition is that FRMS is “a type of safety management system (SMS) designed to manage the risk of human fatigue within an operation”. According to this definition the aim of an FRMS is: ‘to ensure that crew members [employees] are sufficiently alert so that they can operate to a satisfactory level of performance and safety’ See EASA NPA, GM OR.OPS.025.FTL. FRMS, although an acronym for multiple systems, will be treated in the singular in this article for ease of reading. 43 Manual of Civil Aviation Medicine, ICAO Doc. 8984—AN/895 Second Edition: 1985 at III-I-3.

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Other circumstances have been identified as causing fatigue in aircrew. They are high noise levels on ramps and in flight, non traditional work schedules, unexpected flight delays, extremes of temperature and personal habits such as an unhealthy diet, alcohol intake and tobacco smoking.44

6.6

Proposed Amendments to Fatigue Management Standards

The proposed Standard 4.10.1 of Annex 6 (Part 1) obligates the State of the operator to establish regulations for the purpose of managing fatigue. These regulations are required to be based upon scientific principles and knowledge, with the aim of ensuring that flight and cabin crew members are performing at an adequate level of alertness. Accordingly, the State of the Operator should establish: (a) regulations for flight time, flight duty period, duty period and rest period limitations; and (b) where authorizing an operator to use a Fatigue Risk Management System (FRMS) to manage fatigue, FRMS regulations. The State of the operator is further required to ensure that the operator, in compliance with 4.10.1 and for the purposes of managing its fatigue-related safety risks, establish either: (a) flight time, flight duty period, duty period and rest period limitation that are within the prescriptive fatigue management regulations established by the State of the operator; or (b) a Fatigue Risk Management System (FRMS).45 Where the operator adopts prescriptive fatigue management regulations for part or all of its operations, the State of the Operator has the flexibility to approve, in exceptional circumstances, variations to the regulations on the basis of a risk assessment provided by the operator. Approved variations are required to provide a level of safety equivalent to, or better than that achieved through the prescriptive fatigue management regulations.46 The State of the Operator is required to approve an operatorâ&#x20AC;&#x2122;s FRMS before it may take the place of any or all of the prescriptive fatigue management regulations. An approved FRMS shall provide a level of safety equivalent to, or better than, the prescriptive fatigue management regulations.47 States that approve an operatorâ&#x20AC;&#x2122;s FRMS are required to establish a process to ensure that an FRMS provides a level of safety equivalent to, or better than, the prescriptive fatigue management regulations. As part of this process, the State of the Operator is required to ensure that: the operator establish maximum values for flight times and/or flight duty periods(s) and duty period(s), and minimum values for rest periods. These values should be based upon scientific principles and knowledge, subject to safety assurance processes, and acceptable to the State of the Operator; mandate a decrease in maximum values and an increase in minimum values in the event that the operatorâ&#x20AC;&#x2122;s data indicates these values are too high or too low, respectively; and approve any increase in maximum 44

Caldwell, infra, note 52 in this chapter. Annex 6 Part 1, 4.10.2. 46 Id. 4.10.3. 47 Id. 4.10.5. 45

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Intent of Proposed Amendments

131

values or decrease in minimum values only after evaluating the operator’s justification for such changes, based on accumulated FRMS experience and fatigue related data.48 Standard 4.10.6 of the Annex provides that where an operator implements an FRMS to manage fatigue-related safety risks, the operator should, as a minimum: incorporate scientific principles and knowledge within the FRMS; identify fatiguerelated safety hazards and the resulting risks on an ongoing basis; ensure that remedial actions, necessary to effectively mitigate the risks associated with the hazards, are implemented promptly; provide for continuous monitoring and regular assessment of the mitigation of fatigue risks achieved by such actions; and provide for continuous improvement to the overall performance of the FRMS. Standard 4.10.8 requires an operator to maintain records for all its flight and cabin crew members of flight time, flight duty periods, duty periods, and rest periods for a period of time specified by the State of the Operator.

6.7

Intent of Proposed Amendments

Firstly, it is worthy of note that these SARPs are meant to apply both to technical crew and cabin crew. Although one might not readily accept the fact that cabin crew is an integral part of flight safety, it is worth recognizing that they are the first responders and the “security” between the cabin and the cockpit. Cabin crew are also trained in emergency evacuation, fire fighting and medical support, including cardio pulmonary resuscitation. The primary purpose of cabin crew service is to ensure the safety of the cabin. The SARPs, amended as discussed above, are meant to serve four purposes: improve safety; provide global access to FRMS; identify common minimum standards; and provide an effective performance based oversight system. In addition to the text of the new Standards, there are certain implicit requirements placed on those involved in FRMS. Both FRMS and SMA are required to apply known scientific principles and emphasize that, within an operation, the responsibility for managing fatigue risks is shared between management and crew. Under the SARPs when a state has established FRMS, operators are given the flexibility of choice through three options for risk management: they can do so solely within the parameters of their States’ flight and duty time limitations; they can choose to implement an FRMS for all operations; or they can implement FRMS in part of their operations and apply prescriptive flight and duty timer limitations in other operations. Another flexibility afforded to the operator is that he is allowed to continue to have minor extensions to scheduled operations without having to develop and implement a full FRMS. In such an instance, the regulator must accept a risk assessment from the operator. Such variations are calculated to minimize regulation 48

Id. 4.10.4 and 4.10.5.

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and to avoid the approval of variations that meet operational imperatives in the absence of risk assessment. Approval for the overall FRMS can only be given once all component processes of FRMS are developed and the State has confidence that the operator can adjust flight and duty times appropriately (i.e. both over and under prescriptive limitations), can put mitigations in place in accordance with evidence provided through their FRMS, and the effectiveness of the FRMS has been proven over time using the safety assurance processes. The new SARPs also bring to bear the importance of the link between FRMS AND SMS. Because FRMS has a safety function, it should be complementary to existing safety management processes within an operator’s SMS. Ideally, where multiple systems are utilised to identify hazards and manage risk they should be integrated to maximise their combined effectiveness, to ensure resources are being distributed appropriately across the systems and, where possible, to reduce duplicated processes for greater system efficiency. So, an operator wishing to implement an FRMS and who already has sufficiently mature SMS processes in place should be able to readily adopt and understand the fundamental processes of an FRMS. Examples of such maturity would include the routine use of hazard identification, risk assessment and mitigation tools, and the existence of an effective reporting culture. Where such systems are already in place, it should not be necessary for an operator to develop entirely new processes to implement FRMS. Rather, FRMS can build upon the organisation’s existing risk management and training processes. Irrespective of which method of fatigue management is used (i.e. compliance with prescriptive flight and duty limitations or implementation of an approved FRMS), all operators are required to maintain records of working periods, with or without flight duties, for flight and cabin crew. It is up to each regulator to stipulate the period of time which these records much be kept.

6.8

Appendix 8 to Annex 6

Appendix 8 to Annex 6 Part 1, gives detailed requirements that the operator is expected to comply with. At the outset, the Appendix requires the operator to define its FRMS policy, with all elements of the FRMS clearly identified.49 The next provision—paragraph 1.1.2—provides that the operator’s FRMS policy require that the scope of the FRMS operations be clearly defined in the Operations Manual. Paragraph 1.1.3. prescribes various elements to be included in the policy where the policy should: reflect the shared responsibility of management, flight and cabin crews, and other involved personnel; clearly state the safety objectives of the FRMS; be signed by the accountable executive of the organization; be communicated, with visible endorsement, to all the relevant areas and levels of the organization; declare management commitment to effective safety reporting; declare management commitment to the provision of adequate resources for the 49

Paragraph 1.1.1.

6.9

The Medical Perspective

133

FRMS; declare management commitment to continuous improvement of the FRMS; require that clear lines of accountability for management, flight and cabin crews, and all other involved personnel are identified; and require periodic reviews to ensure it remains relevant and appropriate. The Appendix also requires an operator to develop and keep current FRMS documentation that describes and records: FRMS policy and objectives; FRMS processes and procedures; accountabilities, responsibilities and authorities for these processes and procedures; mechanisms for ongoing involvement of management, flight and cabin crew members, and all other involved personnel; FRMS training programs, training requirements and attendance records; scheduled and actual flight times, duty periods and rest periods with significant deviations and reasons for deviations noted; and FRMS outputs including findings from collected data, recommendations, and actions taken.

6.9

The Medical Perspective

Fatigue is a subjective feeling of tiredness that makes concentration difficult. When a pilot becomes tired, problem solving and motor skills slow down causing severe impairment in attentiveness.50 Chronic fatigue, as brought about by disease, or a condition such as sleep apnoea,51 makes the pilot tend to decrease physical activity, withdraw from social interaction and lose the ability to effectively divide his mental resources among different tasks.52 In the context of fatigue caused by sleep deprivation, one commentator has said: [p]ilots can improve their sleep habits and thus gain more restful and restorative sleep by using self-administered relaxation therapy, establishing consistent and soothing bedtime routines, and avoiding certain activities and substances immediately prior to sleep. When opportunities for adequate sleep are not available because of work-related factors, prophylactic naps can sustain performance until sleep is possible.53

There is no room for doubt that FRMS would greatly alleviate the risk of a threat to safety caused by aircrew fatigue when it comes to work hours and adequate sleep. Additionally, in this context it is relevant to address the issue of fatigue caused by illness. It is a common tendency among some companies to make it financially disadvantageous for crew members to report their illness, which makes crew members shy away from reporting their ailments. The cardinal rule in this context 50

Mohler (1998) at 1. Sleep apnoea is a sleep disorder characterized by abnormal pauses in breathing or instances of abnormally low breathing during sleep. Each pause in breathing, called an apnoea, can last from a few seconds to minutes, and may occur 5â&#x20AC;&#x201C;30 times or more an hour. It is well known that sleep apnea can cause fatigue. 52 Caldwell (1997) at 8. 53 Id. 11. 51

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is “if you are sick, do not fly”.54 Some medical experts on the subject of cardio vascular disease have stated: Fatigue, lethargy or somnolence (daytime sleepiness) are very common symptoms. Fatigue or lethargy can be thought of as an inability to continue functioning at one’s normal levels. Somnolence implies, in addition, that one either craves sleep - or worse, finds oneself suddenly asleep, a condition known as narcolepsy - during the daytime. While fatigue and lethargy can be symptoms of heart disease (particularly, of heart failure), these common and non-specific symptoms can also be due to disorders of virtually any other organ system in the body. Similar to lightheadedness and dizziness, individuals with fatigue and lethargy need a good general medical evaluation in order to begin pinning down a specific cause.55

6.10

Aircrew Integrity

The integrity of aircrew in the FRMS equation is entirely dependent on the question “are you too tired to fly”? It is only the crew member who can answer that question. Thus, it boils down to a matter of trust between the crew member and operator. International regulations adopted under the auspices of ICAO require that a pilot has to have a certificate of competence issued by the State in which the aircraft he flies is registered, if he were to undertake flying an aircraft. Medical certification is an essential component in the licensing process and conditions and guidelines for the issuance of such certificates are provided in detail in ICAO documents. The overall responsibility of the pilot for the safety of his flight and that of persons therein which is legally recognized by international treaty, has necessitated the grounding of pilots for many reasons where their health did not reach the standards required, which in turn has resulted often in the concealment by pilots during their medical examinations of pre-existing medical conditions. The pilot operates in a highly complex environment, particularly in single pilot operations. Contemporary commercial airline practice and the tenets of air law attribute to the pilot of an aircraft absolute responsibility for the safe operation of his aircraft.56 This responsibility can be carried out only if the pilot is not negligent or if he enjoys basic health as required by applicable regulations. The Airline Pilots Association International (ALPA)57 has a code of ethics for airline pilots which

Mark Brandon, The Effects of Fatigue on Performance and Safety, http://www.avweb.com/ news/aeromed/181871-1.html?type¼pf. 55 Fogoros (2009), at http://heartdisease.about.com/od/coronaryarterydisease/a/heartsymptoms.htm. 56 See Abeyratne (1987), pp. 3–10. Also by Abeyratne (1998), pp. 219–231. 57 The Air Line Pilots Association, International (ALPA) is the largest airline pilot union in the world and represents nearly 53,000 pilots at 38 airlines of the United States and Canada. ALPA was founded in 1931, and the Association is chartered by the AFL-CIO and the Canadian Labour Congress. Known internationally as US-ALPA, it is a member of the International Federation of Air Line Pilot Associations (IFALPA).

6.10

Aircrew Integrity

135

stipulates inter alia that a pilot will not knowingly falsify any log or record nor will he condone such action by other crew members. Furthermore, the code requires the pilot to keep uppermost in his mind that the safety, comfort, and well-being of the passengers who entrust their lives to him are his first and greatest responsibility. The pilot also undertakes that he will never permit external pressures or personal desires to influence his judgment, nor will he knowingly do anything that could jeopardize flight safety and that he will remember that an act of omission can be as hazardous as a deliberate act of commission, and he will not neglect any detail that contributes to the safety of his flight, or perform any operation in a negligent or careless manner.58 These ethics impliedly require a pilot to divulge to his employer and insurer any medical condition and medications taken to treat that condition. The typical pilot’s disability insurance coverage is given upon the pilots assurance inter alia that he is not aware of any deterioration in general health, hearing, eyesight or blood pressure, and that in the event of any fraud, misstatement, concealment or failure to disclose information in response to any question, whether intentional or inadvertent, the coverage given will become void and no benefits will be payable.59 There have been several instances where pilots have either falsified or concealed their medical history. One commentator records 46 instances of pilots in Northern California in the United States who did not disclose their debilitating health to the Federal Aviation Administration (FAA) that would have disqualified them from obtaining their pilots licences.60 The pilots in question had claimed to be medically fit to fly, yet at the same time were receiving social security payments for medical disabilities. This discovery was a result of an investigation started by the FAA In July 2003, when, the Department of Transportation Office of Inspector General (DOT-OIG) and Social Security Administration Office of Inspector General (SSA-OIG), citing safety and security concerns, initiated a joint investigation to identify pilots misusing Social Security numbers. During the course of the investigation, social security records identified individuals who also held FAA medical certificates and who were receiving Social Security Administration (SSA) disability benefits. The DOT-OIG and SSA-OIG launched an 18-month probe termed “Operation Safe Pilot” in coordination with the U.S. Attorney’s Office (USAO) to look into possible fraudulent activity. 40,000 pilots were suspected of lying or falsifying their medical history61 and it was

http://www.alpa.org/Home/WhoWeAre/CodeofEthics/tabid/2262/Default.aspx. See pdf brochure at http://www.insubuy.com/piu/pilotsdisabilityinsurance/brochure.jsp. 60 See John Alan Cohan, Aero Legal Analysis: Pilots Accused of Medical Certification Fraud, http://espanol.groups.yahoo.com/group/Seguridad-Aerea/message/1600. 61 It has been recorded that a surprisingly significant number of pilots face denial of medical certification because they are taking antidepressant or serotonin blocker drugs (SSRI’s) such as Prozac, which could imperil a pilot’s functions. Medical certification requires that airmen be able to exercise the duties privileges of a pilot in the class applied for. In addition, numerous medical conditions will disqualify a pilot from obtaining medical certification, including, inter alia: diabetes mellitus, myocardial infarction, cardiac valve replacement, permanent cardiac pacemaker, personality disorders that are severe enough to have repeatedly manifested itself by overt 59

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discovered that 3,220 pilots with current medical certificates were collecting SSA benefits, including disability benefits62 In March 2007, The United States House Transportation and Infrastructure Committee Chairman James L. Oberstar released a Committee Oversight Report which documented “widespread fraud” among pilots who do not disclose and deliberately hide from examining physicians medical conditions that would critically impact their ability to fly an aircraft so that they could retain medical certification for their FAA pilot certificates.63 To counter this dangerous trend, The Aircraft Owners and Pilots Association (AOPA)64 offered the US Congress a plan that would encourage pilots to disclose their infirmities at the medical examination,65 adding that AOPA does not condone false statements on a pilot’s medical application.66

acts, substance dependence or abuse, and epilepsy. Another cause for denial of certification of a pilot is organ transplant, on the basis that there could be a risk of a pilot suffering side effects of rejection during flight from immunosuppressant drugs, or that the organ might be rejected. Medical certification of a pilot and the consequent award of a licence hinge both on the health of the pilot as well as the welfare of the persons carried by him in the aircraft. Cohan, ibid. 62 http://www.aopa.org/whatsnew/regulatory/operation-safe-pilot.html In February of 2009, a commuter plane crashed near the Buffalo Niagara International Airport. Forty-nine passengers and crew were killed as well as one person on the ground. Initially, ice build-up was suspected in the crash, but a report by The New York Times indicates that the National Traffic Safety Board’s (NTSB) analysis shows ice was not a prominent factor in the crash. Instead, it appears pilot error is to blame. The NTSB report concluded that the pilot of Continental Flight 3407 did not react properly to a warning that his plane was slowing down too quickly and entering a stall. The report noted that the pilot’s reaction was “consistent with startle and confusion” as the pilot pulled on the plane’s control mechanism when pushing on it would have kept the plane in flight. See http://www. hg.org/article.asp?id¼20681. 63 http://www.avweb.com/avwebflash/news/House_Committee_Probes_Aviation_Medical_Fraud_ 194776-1.html. also, http://transportation.house.gov/Media/File/Aviation/Safe Pilot Committee Report.pdf. 64 The Aircraft Owners and Pilots Association, a not-for-profit organization dedicated to general aviation, with a membership of more than 412,000 pilots, was incorporated on May 15, 1939. From the start, AOPA has fought to keep general aviation fun, safe, and affordable. AOPA records that growth in the early years was slow, but by mid-1995, membership in AOPA had reached about 335,000. http://www.aopa.org/info/history.html. 65 AOPA suggested that the FAA should add a statement to the medical certification application warning pilots that some medical data would be shared with other agencies. It also recommended a 1-year amnesty program to encourage pilots to report all medical visits and conditions to the FAA. Also suggested was that the FAA should establish a data-sharing program with other public agencies such as the Social Security Administration within the limits permitted by the Privacy Act. With these three suggestions, AOPA offered to work with the Congress subcommittee and the FAA to educate pilots about properly reporting all pertinent medical information, and about the severe penalties and safety consequences of failing to do so. See http://www.aopa.org/whatsnew/ newsitems/2007/070717medical.html. 66 Statement of Phil Boyer, President, Aircraft Owners and Pilots Association Before the Transportation & Infrastructure Subcommittee on Aviation, U/S. House of Representatives concerning Falsified Pilot Medical Certificates, http://www.aopa.org/whatsnew/regulatory/operation-safepilot.html.

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In April 2010, the FAA announced the possibility of a special medical certificate being issued to pilots who are under medication for mild to moderate depression, so that they could be exempt from conditions that prohibit them from all flying duties.67 This measure is consistent with the findings of a 12 year study conducted by a team of aviation medicine specialists in Australia which was released in 2007 which said that taking the drugs does not increase the risk of accidents, while banning them could increase risks by encouraging depressed pilots not to seek treatment.68 Also in April, 2010, both Houses of Congress passed the Airline Safety and Pilot Training Improvement Act, section 206 a. 1. A of which provides inter alia that flight crewmember mentoring programs will be established under which an air carrier will pair highly experienced flight crewmembers who will serve as mentor pilots and be paired with newly employed flight crewmembers. The provision states further that mentor pilots should be provided, at a minimum, specific instruction on techniques for instilling and reinforcing the highest standards of technical performance, airmanship, and professionalism in newly employed flight crewmembers. Section 212 a (1) requires the Administrator of the Federal Aviation Administration to issue regulations, based on the best available scientific information, to specify limitations on the hours of flight and duty time allowed for pilots to address problems relating to pilot fatigue. The FAA relies on pilots to tell the truth about their physical and mental condition during the medical examination process. In December 2010, The European Union (EU) Commission debated a revision to its regulations on medical certification of pilots which provided inter alia that licence holders will not exercise the privileges of their licence and related ratings or certificates at any time when they: are aware of any decrease in their medical fitness which might render them unable to safely exercise those privileges; take or use any prescribed or non-prescribed medication which is likely to interfere with the safe exercise of the privileges of the applicable licence; or receive any medical, surgical or other treatment that is likely to interfere with flight safety.69 The European Aviation

http://www.faa.gov/news/press_releases/news_story.cfm?newsIdÂź11293. On April 2nd CNN covered a story titled â&#x20AC;&#x153;FAA to allow pilots to fly on antidepressantsâ&#x20AC;? The FAA announced that it will be lifting an outdated policy and will now allow pilots with mild depression to fly commercial airplanes. The pilots will have to be able to prove that they have been successfully treated for the past 12 months. The FAA says that this new policy will improve the safety in the air because pilots will be properly medicated and or not hiding the fact that they some are self medicating to avoid being grounded from the sky. The FAA considerably went public with this policy change because it is the public that these medicated pilots are trusting to fly them safely. See http://cspc10.wordpress.com/2010/04/04/faa-goes-public-on-pilot-depression/. 68 See Pilots on Antidepressants Pose No Safety Risk http://www.newscientist.com/article/ dn12981-pilots-on-antidepressants-pose-no-safety-risk.html. Over the 12-year study period, 481 pilots who were prescribed antidepressants had 11 accidents due to pilot error and 22 near misses. The researchers say this was not significantly different to the five accidents and 26 near misses of the similar number of pilots who did not take antidepressants, but who were matched by age, sex, and flying experience. 69 http://easa.europa.eu/agency-measures/opinions.php.

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Safety Agency (EASA) in its opinion70 on the draft revised regulation, drew the attention of the Commission to the diversity of medical practices and regulations in the various member Sates of the EU and exhorted the Commission to consider Regulations of ICAO as the common basis for such a revision. The Chicago Convention in Article 32 requires that the pilot of every aircraft and the other members of the operating crew of every aircraft engaged in international navigation be provided with certificates of competency and licences issued or rendered valid by the State in which the aircraft is registered. ICAO’s global medical standards for the issuance of a pilot’s license are contained in Chap. 6 of Annex 171 to the Chicago Convention. The Annex provides that if the medical standards prescribed in Chap. 6 for a particular license are not met, the appropriate medical assessment shall not be issued or renewed unless there were special circumstances that led to the applicant’s failure to meet such requirements and that the special abilities, skill and experience of the applicant are given due consideration and that the license is appropriately endorsed with any special limitation when the safe performance of the license holder’s duties is dependent upon that limitation.72 The Annex further goes on to provide that license holders shall not exercise the privilege of their licenses and related ratings at any time when they are aware of any decrease in their medical fitness which might render them unable to safely and properly exercise their privileges.73 A recommendation follows, that license holders should inform the licensing authority of confirmed pregnancy or any decrease in medical fitness of a duration of more than 20 days or which requires continued treatment with prescribed medication or which has required hospital treatment.74 Another relevant provision prescribes that license holders shall not exercise the privilege of their licenses and related ratings at any time when they are under the influence of any psychoactive substance which might render them unable to safely and properly exercise their privileges.75 Detailed guidance for the implementation of Annex 1 is contained in the ICAO Manual of Civil Aviation Medicine.76

6.11

Liability Issues

Whatever may be the rules of FRMS, the most critically important issue is that the pilot should not fly if he is aware of a pre existing condition that could result in fatigue or other impairment. The most pertinent fact of concealment of vital 70

Opinion No 07/2010 of the European Safety Agency 13 December 2010. Personnel Licensing, 10th Edition, July 2006. 72 Id. Standard 1.2.4.8. 73 Id. Standard 1.2.6.1. 74 Id. Recommendation 1.2.6.1.1. 75 Id. Standard 1.2.7.1. 76 Doc 8984-AN/895. 71

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medical facts by the pilot is grounded on the principle suggestio falsi77 or suppressio veri78 (making false statements or suppressing the truth). The seriousness of a concealment by a pilot of a pre existing medical condition can be distinguished from such a condition which concerns any other, in that a pilot occupies a special position of responsibility. According to accepted principles of law as laid down by international convention, it is incontrovertible that the final responsibility for the safe operation of an aircraft lies with the pilot. Annex 6 (Operation of Aircraft) to the Chicago Convention provides that: The pilot-in-command shall be responsible for the operation and safety of the aeroplane and for the safety of all persons on board, during flight time.79

This presumption of responsibility has influenced some States which have signed or ratified the Convention and is reflected clearly in their air navigation laws.80 These laws have been have been observed to list requirements which any pilot with a sense of good airmanship would naturally comply with. Failure to comply with such regulations has been clearly interpreted to be bad airmanship which renders the pilot liable for prosecution on a criminal charge.81 In any event, the fundamental postulate which imposes prima facie responsibility on the pilot has been accepted as a general principle of liability of the pilot which sets the base for determining his legal status and responsibility.82 The legal responsibility placed on the commander of the aircraft is therefore inextricably linked with the expectation of good airmanship. Airmanship has been regarded as an indefinable quality and has been used to describe the

A statement of a falsehood. This amounts to a fraud whenever the party making it was bound to disclose the truth or whenever the party making it was bound to disclose the truth. See http://www. law-dictionary.org/SUGGESTIO+FALSI.asp?q¼SUGGESTIO+FALSI. 78 In law, an undue concealment or non-disclosure of facts and circumstances which one party is under a legal or equitable obligation to communicate, and which the other party has a right—not merely in conscience, but juris et de jure—to know. See http://www.wordnik.com/words/suppressio%20veri. 79 See Annex 6 to the Convention on International Civil Aviation signed in Chicago on 7 December 1944, Para 4.5.1. 80 See The British Air Navigation Order (1985) Article 32, which states, inter alia: The Commander of an aircraft registered in the United Kingdom shall satisfy himself before the aircraft takes off—that the flight can safely be made, taking into account the latest information available as to the route and aerodromes to be used, the weather reports and forecasts available and any alternative course of action which can be adopted in case the flight cannot be completed as planned; See also generally, U.S. Federal Aviation Regulations FAR 91.3 (a), Australian Air Navigation Regulations, Regulation 219 and New Zealand Civil Aviation Regulations (1953), Regulation 59. 81 See Price (1976) at pp. 238–239. See also generally the findings of the New Zealand Royal Commission of Inquiry into the 1979 Aft. Erebus DCIO Disaster. 82 Abeyratne (1998), pp. 219–231. See also Matte (1975) at 34 and Escalada (1979) at 210–211, Speiser and Krause (1978), p. 473.

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intuitive faculty of the pilot where he concerns himself with what is right or wrong in the operation of an aircraft which is acquired by sustained experience in flying.83 Needless to say, a pre-existing medical condition such as depression could adversely affect the judgment of a pilot and preclude him from exercising good airmanship. The disturbing factor in aviation accidents involving injury and death to passengers is the distinction between an accident which causes death or injury to passengers through a mechanical defect in the aircraft or other extraneous reason such as adverse weather conditions and an accident of an aircraft which is found to have been mechanically defect-free and travelling in turbulent free weather. This is significant if in the latter instance, the aircraft meets with an accident caused by ill health (which includes fatigue) of the technical crew, where the law could construe the accident as having been caused by the wilful misconduct of the carrier. In this instance, the dependents of passengers killed in the crash could argue that the airline concerned was guilty of wilful misconduct in allowing a crew member whose mental state did not admit of his ability to fly an aircraft to do so. The concealment of a pre-existing medical condition by a pilot or the admission to his employer that he is unable to take on a flight could annul his medical insurance contract and even make his contract with his employer void or voidable. Although a misrepresentation, negligently made or withheld would ground an action in tort for damages when a close relationship exists between the parties,84 a 1976 The Court of Appeals in a British case has held that a negligent misrepresentation inducing any contract gives rise to actions either in tort or contract.85 In this context conduct may be construed or amount to a misrepresentation as was held in the 1974 Canadian case of Gronau v. Schlamp Investments Ltd86 where a vendor, who concealed a crack in the building he sold the buyer, was found to have misrepresented facts. Similarly, an incomplete statement could mislead a party to a contract, in as much as a half truth or a false statement can be considered misrepresentations.87 Silence could amount to a claim that there is nothing of significant to reveal.88

Burridge (1977), p. 206. Hedley Byrne & Co. Ltd. v. Heller & Partners [1964] A.C. 465. 85 Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801. 86 (1974) 52 D.L.R. (3d) 631 (Man.Q.B.). See also, See Rowley v. Isley [1951] 3 D.L.R. 766 (Ct.) and McGrath v. MacLean (1979) 95 D.L.R. (3d) 144. 87 Curtis v. Chemical Cleaning and Dyeing Company [1951] 1. K.B. 805 (C.A). Also, Link v. Schiable (1961) 27 D.L.R. (2d) 461 (B.C.C.A) and Olsen v. Poirier (1978) 91 D.L.R. (3d) 123 (Ont. H.C.J). 88 Brownlie v. Campbell (1880), 5 App. Cas. 925 (per Lord Blackburn). 84

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An analogy can be drawn with admiralty law89 in which claims for injury are brought under the Jones Act.90 In the 1968 decision of McCorpen v. Cental Gulf Steamship Corporation91 it was held that although wilful concealment by a seaman of a pre-existing medical condition would preclude recovery for medical expenses, it would not be a bar to recovery for damages caused to his health as a result of working in the employerâ&#x20AC;&#x2122;s premises. In admiralty law under the Jones Act, it is a fundamental duty of an employer to provide the employee with a safe place to work irrespective of whether the employee disclosed a medical condition or not. In the 2006 case of Johnson v. Cenac Towing Inc.92 the United States District Court for the Eastern District of Louisiana denied a seaman-plaintiff maintenance and cure benefit for wilful concealment of a pre-existing medical condition but awarded damages for injuries and illness suffered as a result of his employerâ&#x20AC;&#x2122;s negligence.93 One recommendation for responding to instances of concealment by pilots of pre existing medical conditions advocates prevention in that it advocates a pilot performance monitoring programme for airlines which is designed to ensure the fitness of crew members to perform their duties.94 Degrading performance levels could be monitored instead of psychiatric screening. In the context of liability of the pilot for concealment, such must be viewed with grave concern as, unlike a seaman or sailor, the pilot has the lives of his passengers in his hands. Any hint of doubt on the part of a pilot in his incapability of ensuring the safety of his flight and that of his passengers should result in his abstaining from taking control of a flight. A mere claim of misjudgement that led to non-disclosure of the medical condition by the pilot should not be considered acceptable. The House of Lords in the 1988 case of Whitehouse v.Jordan95 rejected the idea that mere errors of judgments cannot amount to negligence. Lord Fraser observed:

Admiralty law (also referred to as maritime law) is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans. It deals with matters including marine commerce, marine, navigation, shipping, sailors, and the transportation of passengers and goods by sea. Admiralty law also covers many commercial activities, although land based or occurring wholly on land, that are maritime in character. Admiralty law is distinguished from the Law of the Sea, which is a body of public international law dealing with navigational rights, mining rights, jurisdiction over coastal waters and international law governing relationships between nations. 90 The Jones Act was an important piece of United States legislation passed in 1920. It supported the American merchant Marine, while also providing additional protections for sailors and shipâ&#x20AC;&#x2122;s crew. Several clauses in the Jones Act set a precedent, since they went above and beyond similar protective clauses under admiralty law. 91 396 F2d 547. 92 468 F. Supp, 2d. 815. 93 Id. at 826. 94 Besco (2000) at 3. The author goes on to say that pilots who suffer from depression or such tendencies would eventually find a way of trick the evaluation process. 95 [1981] 1 All E.R. 267.

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Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonable competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent.96

The profession of aeronautics, particularly relating to the piloting of aircraft, remains one of the most responsible, particularly in the context of the many lives that are entrusted to the airline pilot at any given time. The realization that pilots should be fit and well to perform their professional duties has gradually evolved, from the initial requirement of a medical certificate issued according to the standards laid down by ICAO to a ground breaking concept introduced in 1982 by Cardiologist, Professor Hugh Turnstall-Pedoe, who, while working at Ninewalls Hospital in Dundee, suggested that the health of pilots should be assessed the same way as engines are assessed by engineers.97 One of the measures suggested was the permanent requirement of having a co-pilot in the cockpit. The hypothesis submitted in support of this requirement was that if an average flight lasted 60 min and the critical take-off and landing phases are taken as the first and last 3 min of a flight, having a second pilot reduces the risk of incapacitation of the first pilot causing a fatal accident by 1,000-fold.98 The issue of FRMS and the role of the crew member give rise to some questions: Should FRMS be mandatory? Should FRMS have, within the systems, benchmarks that would give regulators and operators more specific guidance? Should the crew member volunteer information about his/her fatigue or illness that would result in fatigue? The fact that FRMS is beneficial for safety is no question. However, for the time being, and until FRMS progresses further in its evolution and proves itself as a highly successful tool it should remain optional with the mandatory requirement that each regulator establish mandatory flight and duty time limitations. The question as to whether there should be global benchmarks within FRMS should be left to the regulators. The critical issue is whether crew members would usually volunteer information regarding their fatigue or impairments that could bring about fatigue. The answer is, as long as the crew member suspects or has reason to believe that such disclosure would result in punitive measures or loss of pay (which could even lead to loss of career) he/she would not usually volunteer information even if such inaction may jeopardize the safety of the flight. Such is human nature. One approach to this question would lie in the triumvirate of regulator, operator and crew member reaching a cohesive relationship of trust that would obviate jeopardising the

Id. at 276. Evans (1995) at pp. 8â&#x20AC;&#x201C;9. 98 Ibid. 97

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interests of career and more importantly the interests of safety. Attitudes should change, resulting in a culture change. The regulator must ensure that there are regulations in place that would protect both the operator and crew member. The following elements are critical to this process: shared responsibility; acknowledgment of the complexity of fatigue and the fact that fatigue, as a risk factor can never be totally eliminated; multiple solutions for multiple problems; scientific progress; and continuous evaluation of FRMS with a view to enhancing guidance. In order to adequately address these elements, the following actions are necessary. Firstly, FRMS must define the responsibilities of all key players and be signed by the Parties. This would add a certain legal legitimacy to the FRMS. Secondly, an in-depth and thorough study must be conducted on crew roster patterns and evaluated by independent scientists. Thirdly, FRMS must be implemented by an FRMS Steering Group established by the operator and consisting of representatives of all key players. Finally the State authority concerned must diligently monitor the implementation of FRMS. It has taken 30 years to come to where we are on FRMS. This is only the beginning. The future will entirely depend on the extent of trust each stakeholder in the triumvirate have in each other.

6.12

Article 33

As mentioned earlier, Article 33 of the Chicago Convention provides that Contracting States will consider as valid certificates of airworthiness and certificates of competency and licenses issued or rendered valid by another contracting State in which the aircraft is registered, provided that the requirements under which such certificates or licences were issued or rendered valid are equal to or above the minimum standards which may be established from time to time pursuant to the Convention. The ICAO Assembly at its Second Session convened in Geneva from 1 to 21 June, 1948 adopted Resolution A2-44 (Recognition of certificates of airworthiness and certificates of competency or licenses of aircrew issued by the State of Registry of the aircraft) resolved that the Council should study Article 33 further to determine whether the Article should include elements conveying the notion that certificates of airworthiness and certificates of competency or licenses of the crew of an aircraft issued or rendered valid by a ICAO member State in which the aircraft is registered shall be considered valid by all other States for the purpose of flight of such aircraft in or across the territory of such other States, provided that after the coming into force of Standards and Recommended Practices (SARPs, i.e. after Annex 1 was adopted and came into effect) such SARPs should apply in the issuance of licenses to airmen. This was recognized subsequently at the Assemblyâ&#x20AC;&#x2122;s 21st Session through Resolution A21-21.

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References R.I.R. Abeyratne Negligence of the Aircraft Commander and Bad Airmanship - New Frontiers.. Air and Space Law, Vol.XII, No.1; 1987: p. 3-10 R.I.R. Abeyratne Negligence of the Airline Pilot. Professional Negligence, Vol.14, No.4; 1998: p. 219-231 Ruwantissa I.R. Abeyratne, State Responsibility for Safety Management Systems, Journal of Aviation Management; 2007: p. 7-13 Dr. Robert E. Besco, The Myths of Mental Health Screening, Air Safety Week, Vol. 14, No. 47, 20 November 2000 at 3 Thomas Buergenthal, Law Making in The International Civil Aviation Organization, Syracuse University Press: Syracuse, 1969, pp. 98-107 A.J. Burridge, The Dismissal of a Pilot for Poor airmanship — The Employer’s Point of View, Aeronautical Journal May 1977, 206 J.A. Caldwell, Fatigue in the Aviation Environment: An Overview of Causes and Effects as Well as Recommended Countermeasures, Aviation Space and Environmental Medicine Vol. 68 October 1997 at 8 John A Caldwell, Melissa M Mallis, J Lynn Caldwell, Michel A Paul, James C Miller, F.N. David, Fatigue countermeasures in aviation, Aviation Space and Environmental Medicine, Volume: 80, Issue: 1, (2009), 29-59 at 32 Tom Duke, Battling Fatigue-The Challenge is to Manage It, Editorial. NATCA Voice February 1997 Videla Escalada, Aeronautical Law (1979) at 210-211 Dr. Tony Evans, How Fit is the Pilot Doctor? Focus on Commercial Aviation Safety, No. 18, Spring 1995, at 8-9 Richard N. Fogoros, M.D., Key Symptoms of Heart Disease, Chest Pain, Dizziness, Shortness of Breath and More (Updated August 24, 2009), at http://heartdisease.about.com/od/coronaryarterydisease/a/heartsymptoms.htm Hudson, International Legislation, Vol 1X, New York: 1942–1945, at 159 International Organization and Integration, (P Kapteyn et al. eds) 2nd Revised Edition, 1981, pt. I. B.1.9 a Frederic L. Kirgis, Jr, Specialized Law Making Processes, United Nations Legal Order, Volume 1 Chapter Two, Oscar Schachter and Christopher Joiner ed., The American Society of International Law: 1995,p. 109 at 126 N.M. Matte, The International Legal Status of Aircraft Commander (1975) at 34 Masako Miyagi, Serious Accidents and Human Factors, AIAA:2005 at 72-73 Stanley R. Mohler, Pilot Fatigue Manageable, but Remains Insidious Threat, Human Factors and Aviation Medicine, Flight Safety Foundation, Vol. 45 No. 1 January-February 1998 at 1 N. Price, Pilot Error (1976) at pp. 238–239 Bob Richards Secrets from the Tower, Ithaca Press: New York, 2007, at 343 Tim Robinson, Careless Talk Costs Lives, Aerospace International, January 2008 at 20 Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers, Oxford University Press: 2005 at p. 110 S.M. Speiser. & C.F. Krause, Aviation Tort Law (Vol. 1, 1978) 473 Alan J. Stolzer; Carl D. Halford; John J. Goglia Safety Management Systems in Aviation.. Ashgate: Aldershot, Hampshire, 2008 M. Whiteman, Digest of International Law, Kluwer: 1968 at p. 404

Chapter 7

Aerodromes

The subject of aerodromes is addressed in Annex 14. A distinction of Annex 14 is the broad range of subjects it contains. It extends from the planning of airports and heliports to such details as switch-over times for secondary power supply; from civil engineering to illumination engineering; from provision of sophisticated rescue and fire fighting equipment to simple requirements for keeping airports clear of birds. The impact of these numerous subjects on the Annex is compounded by the rapidly changing industry which airports must support. New aircraft models, increased aircraft operations, operations in lower visibilities and technological advances in airport equipment combine to make Annex 14 one of the most rapidly changing Annexes.

7.1

Airport Planning

Airport planning and the responsibility of an airport administration becomes an integral part of efficient air navigation as evidenced in the winter crisis at European airports in the winter of 2010. The chaos at European airports in the winter of 2010, particularly London Heathrow, wrought by pummelling snowstorms and ice, not only was caused by cancelled flights and stranded passengers but also resulted in the tremendous cost involved for the airport authorities. Airports operator BAA has released the figure of 24 million pounds sterling ($ 38 million) as the cost incurred by the Spanish owned firm which operates six airports in Britain. These costs included reduction in profit as a result of the decrease in passenger numbers by 11% over a few days. The handling of the crisis by BAA drew large criticism by both legislators and airlines, the former considering the adoption of legislation against airports and the latter threatening to withhold charges due to the airports. It also inquires as to whether airports should be held responsible for service failure brought about by a natural phenomenon; and whether should airports have had, what in modern business parlance is called â&#x20AC;&#x153;corporate foresightâ&#x20AC;? to deal with the natural phenomenon. This leads to a discussion on the kind of foresight an airport should have to deal with such situations as well as the obligations of a State to provide functional airport services in its territory. R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_7, # Springer-Verlag Berlin Heidelberg 2012

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Mr. Siim Kallas, Vice President of the European Commission expressed his views on the winter 2010 crisis at European airports by saying that clearly, contingency planning for snow at airports needs to be improved, and that the European Commission needed to ensure better co-operation between all those involved—in the air and on the ground and also to ensure the proper functioning of the airline hubs. He also stated that there was a need to provide better and more timely information about delays and rerouting. To achieve all this Mr. Kallas suggested that, to achieve all this, minimum service and quality requirements at airports for passengers was needed.1 The chaos at European airports in the winter of 2010, particularly London Heathrow, wrought by pummelling snowstorms and ice, not only was caused by cancelled flights and stranded passengers but also resulted in the tremendous cost involved for the airport authorities. Airports operator BAA has released the figure of 24 million pounds sterling ($ 38 million) as the cost incurred by the Spanish owned firm which operates six airports in Britain. These costs included reduction in profit as a result of the decrease in passenger numbers by 11% over a few days. As this discussion reflects, the handling of the crisis by BAA drew large criticism by both legislators and airlines, the former considering the adoption of legislation against airports and the latter threatening to withhold charges due to the airports. It also inquires as to whether airports should be held responsible for service failure brought about by a natural phenomenon; and whether should airports have had, what in modern business parlance is called “corporate foresight” to deal with the natural phenomenon. This leads to a discussion on the kind of foresight an airport should have to deal with such situations as well as the obligations of a State to provide functional airport services in its territory. In conclusion, the article posits that, as regards corporate foresight, an airport has to start with a culture of corporate foresight and adopt a dynamic and comprehensive emergency management process. More importantly, it recommends that airports work jointly and in partnership with airlines and air navigation service providers in developing their corporate foresight. From 17 December 2010 for a week or so, heavy snow and ice pounded Europe, grounding air travel across the continent and leaving thousands of passengers stranded as airports struggled to clear a backlog of flights cancelled or delayed by snowfalls. London’s Heathrow, the world’s busiest international airport, operated a limited schedule as one of its two runways was open and advised passengers not to travel to the airport unless their flight is confirmed. According to airport operator British Airports Authority (BAA) airlines worked to move aircraft and crew back to their normal positions as severe winter weather continued to cause disruption.2 No doubt, the winter freeze and the attendant cancellation of flights caused acute inconvenience to the travelling public. Millions of people faced a struggle to get 1

http://www.airtransportnews.aero/article.pl?mcateg¼&id¼27750. Icy conditions also curtailed Europe’s train services, left cars skidding through slushy streets and saw major events postponed, including music shows and sporting events. See http://www.ibtimes. com/articles/93795/20101220/travelers-air-passengers-stranded-as-europe-freezes-due-to-heavysnowfall.htm.

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home in time for Christmas as travel plans were thrown into chaos when planes were grounded, trains cancelled and roads made impassable by snow and ice accumulation. Airport authorities blamed the bad weather for the disruption of flight schedules. A senior Emirates official criticized BAA for refusing to allow two of its aircraft to land in the UK, and warned that the airline faced a massive task in coping with the backlog of passengers now stranded in London.3 European Union Transport Commissioner Siim Kallas expressed his increasing concern about problems relating to the infrastructure available to airlines—airports and ground handling—and is reported to have said that he was considering forcing airports to provide airlines with a minimum level of infrastructure support during such severe weather.4 In the aftermath, some airlines have taken strong objection to the manner in which airports—particularly BAA—handled the heavy snow. Virgin Atlantic was reported to withhold airport fees until the inquiry5 into BAA was completed.6 The British Government, on 26 December 2010 considered introducing new laws to allow regulators to fine airports for travel disruption. Transport Minister Philip Hammond, told the Sunday Times that regulators should have tougher powers to punish airports who fail passengers, after thousands were forced to sleep at Heathrow when heavy snow grounded flights. Mr Hammond was of the view that there should be an economic penalty for service failure and that greater weight needs to be given to performance and passenger satisfaction.7

7.2

Airport Responsibility

The fundamental questions that arise are, should airports be held responsible for service failure brought about by a natural phenomenon; and should airports have had, what in modern business parlance is called “corporate foresight”.8 Firstly, in 3

http://www.arabianbusiness.com/emirates-lashes-out-at-uk-airports-body-amid-winter-chaos368334.html?parentID¼368939. 4 http://www.canada.com/news/European+freeze+haunts+Christmas+airlines+shops/4007697/ story.html. 5 BAA’s non-executive Director, Sir David Begg is reported to have launched an inquiry just prior to Christmas to inquire into what went wrong. See infra, note 7 in this chapter. 6 Virgin Atlantic Withholds BAA Fees Over Snow Row, Air Letter, Monday 10 January 2011, No. 17,147 at 2. 7 http://www.flyertalk.com/forum/newsstand/1164326-britain-mulls-new-airports-law-after-heathrowchaos.html. 8 The functions and responsibilities of an airport will vary according to its size, type of traffic and areas of responsibility. For example, some airports are responsible for air traffic control as well as for meteorological services, while at most other airports such services are provided by separate government entities. Many airports are involved in security functions in varying degrees and in providing facilities for customs, immigration and health authorities. Ground-handling services for the airlines, including terminal handling or ramp handling, or both, are provided by some airports, while at others they are provided by the airlines or by specialized agents or companies. Certain

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terms of responsibility, the question could be raised as to whether; irrespective of the business status of the airport (whether it is privatized, autonomous or corporatized) the State in which the airport is situated should bear ultimate responsibility. This responsibility devolves upon the State in limine by virtue of Article 28 of the Chicago Convention9 which stipulates inter alia that each Contracting States to the Convention undertakes, so far as it may find practicable to provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to the Convention. The provision also requires such a State to adopt and put into operation the appropriate standard systems of communications procedure, codes, markings, signals, lighting and other operational practices and rules which may be recommended or established from time to time, pursuant to this Convention. Obviously, the Convention, through an inarticulate premise requires in Article 28 that States provide functional airport services among other services prescribed in the provision. Principally, States bear the ultimate responsibility for aviation safety in their territories. However, airports too owe a duty of care to four categories of users: those in aircraft that are landing and taking off; those in the airport premises; the ground handling staff working on the airside; and other staff employed within the premises of the airport. There is a popular misconception that risks to crew, passengers and staff cease to exist once the aircraft engines are turned off. This is simply not so. One commentator has remarked that it is a common feature at airports that injury and death is caused to ground handling staff during thunderstorms.10 Adverse weather also portends a serious threat to activities such as refuelling, de-icing and baggage handling operations. There is an increasing burden cast on meteorological information providers to give accurate weather information to airports and many airports are known to have established policy that requires the shut-down of ground handling operations when lightning strikes within three miles of the airport.11 The regulatory process governing air navigation services and aerodromes clearly identifies State responsibility. In terms of standard setting at aerodromes, States are required to undertake certification of aerodromes to standards acceptable to the international aviation community through ICAO.12 Accordingly, ICAO prescribes comprehensive Standards and Recommended Practices calculated to airports also perform functions that exceed the scope of conventional airport activities, such as consultancy services, public works, construction, and real estate development. See Abeyratne (2009) at 13. 9 Supra, note 1 in Chap. 1. 10 Puempol (2006) 75 at 76. 11 Ibid. 12 ICAO Assembly Resolution A35-14, Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation, Appendix Q, Resolving Clauses 1 and 3. See Assembly Resolutions in Force,(as of 8 October 2004) ICAO Doc 9848 at II-13.

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ensure acceptable levels of airport and aerodrome services. Notable among these are specifications on visual aids13 and aerodrome maintenance.14 In addition to the obligation of the State to provide certain services as enumerated in Article 28 of the Chicago Convention,15 responsibility of the State would also extend to the provision of accurate air traffic control services at the aerodrome. States have to be mindful of the fact that their overall responsibility under the Chicago Convention in providing air navigation services extends to the air traffic controller, whose service is of a unique nature. The special feature in the provision of air traffic control is brought to bear by the nature of the service provided, be it in the relaying of information on meteorology or on traffic. Globally, air traffic control services offer information relayed by people by means of radio communication involving extremely short time periods and using a standard set of terminology in the English language, even in regions of the world where English is not the first language.16 The provision of meteorological information to airports and aircraft about to land or take off is also part of State responsibility. Annex 3 to the Chicago Convention provides in Standard 2.1.1. that the objective of meteorological service for international air navigation shall be to contribute towards the safety, regularity and efficiency of international air navigation. This objective shall be achieved by supplying the following users: operators, flight crew members, air traffic services units, search and rescue services units, airport managements and others concerned with the conduct or development of international air navigation, with the meteorological information necessary for the performance of their respective functions.17 State responsibility for the provision of meteorological information is provided for in Standard 2.1.4. where each Contracting State is required to ensure that the designated meteorological authority complies with the requirements of the World Meteorological Organization in respect of qualifications and training of meteorological personnel providing service for international air navigation.18 It is also provided in the Annex that close liaison shall be maintained between those concerned with the supply and those concerned with the use of meteorological information on matters which affect the provision of meteorological service for international air navigation.19 Furthermore, States have responsibility establish one 13

See Chaps. 6 and 7 of Annex 14 (Aerodromes) Volume 1 (Aerodrome Design and Operations), Annex 14 to the Convention on international Civil Aviation, Fourth Edition, July 2004, at 6-1 to 83. Also Chapter 5 of Annex 14 Volume II (Heliports), Second Edition—July-1995 at pp. 30–48 which has similar provisions for the operation of helicopters. 14 Id. Annex 14, Chap. 10. 15 Supra, note 1 in Chap. 1. 16 Miyagi (2005) at 143. 17 Standard 2.1.2. 18 Requirements concerning qualifications and training of meteorological personnel in aeronautical meteorology are given in WMO Publication No. 49, Technical Regulations, Volume I—General Meteorological Standards and Recommended Practices, Chapter B.4—Education and Training. 19 Standard 2.2.1.

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or more aerodrome and/or other meteorological offices which shall be adequate for the provision of the meteorological service required to satisfy the needs of international air navigation.20 It is incontrovertible that the responsibility of the State is not extinguished merely because an airport is subject to private ownership or private management control. In international air transport, the mere fact that the State has to provide airport services under Article 28 of the Chicago Convention and indeed designate airports within its territory for landing purposes as per Articles 10 and 68 thereof imposes legal responsibility upon the State to be accountable at public international law for any liability incurred as a result of action on the part of airports within its territory. Irrespective of the responsibility of a State with regard to airports within its territories, which is founded both at customary international law and at private law for liability incurred by airports, a privately run airport may incur tortuous liability on a private basis, as the occupier of the premises. In the instance of a privately managed airport where the entity charged with managing airport services is located within the airport premises, such an entity would be considered as a legal occupier for purposes of liability. It is a known fact that not many industries face the same challenges with regard to combining social responsibility and business as the airport industry. One of the challenges faced by airports is to cope with adverse weather conditions and ensure that the airport industry remains a safe place to work in. The success of an airport depends on a delicate balance between safety and punctuality and always remains a critical operational challenge for airports. Aviation and weather are strange and unwilling bedfellows and the former has never underestimated the latter and has treated it with respect. Other hazards that might seriously affect those working on the airside are windstorms (which have, in certain instances lifted baggage containers off the ground) and ice and snow which pose a serious threat of injury to passengers climbing aircraft steps who could slip on accumulated black ice. Catastrophic events such as tsunamis21 tropical cyclones, snow storms, floods and dust and sand storms are real threats to airports, requiring vigilance and responsibility of both the State concerned and the airport authorities. Early warning systems and emergency and contingency response plans have to be in place, which have to be 20

Standard 3.3.1. It is noteworthy that, in response to a request received from the International Air Transport Association (IATA), the Secretariat of the International Civil Aviation Organization (ICAO) has included â&#x20AC;&#x153;tsunamiâ&#x20AC;? in the draft amendment to Annex 3 to the Convention on International Civil Aviation which addresses meteorological services, as a phenomenon which should prompt the issuance of an aerodrome warning. It may be expected that within the global warning system for tsunami being established under the Intergovernmental Oceanographic Commission of UNESCO (IOC), the meteorological authorities will receive tsunami warnings in a timely manner and that they will be in a position to implement the proposed amendment, as far as aerodrome warnings are concerned, in time for its applicability date. See AN-WP/8086, Preliminary Review of a Proposed Amendment to Annex 3 and Consequential Amendment to the PANS-ABC.

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implemented with precise communications. Aerodrome emergency planning is addressed in detail in Chap. 9 of Annex 14 to the Chicago Convention which provides that every aerodrome must have established an aerodrome emergency plan commensurate with aircraft operations and other activities conducted at an aerodrome.22 One of the most critical functions of airports is de-icing of aircraft, since if aircraft have ice on their wings they must be de-iced and protected with anti-icing fluids. An insignificantly small accumulation of ice on the upper structure of the wing could considerably reduce the lift of that surface and all ice must be removed before takeoff.23 Airports providing ground handling services have to constantly monitor the de-icing process as the fluids applied to de-ice an aircraft are only effective in holding off re-icing for a limited time, after which ice could accumulate again, requiring de-icing. The period between de-icing and re-icing is called the holdover time and would be critical, particularly in the case of a departing aircraft delayed on takeoff. There are also attendant problems for aircraft stemming from extreme cold temperatures. These could include fuel and hydraulic leaks; difficulty starting the Auxiliary Power Unit (APU); difficulty starting the engines; landing gear tire “cold set”; and difficulty in opening doors. To counter these problems, State regulation24 and accurate weather forecasts25 are now provided in many States through computer aided forecasting systems. These modern weather observation systems help the air navigation service provider to improve the quality of weather data and partly replace the human observer in the weather forecasting process.26 With regard to looking after passengers stranded at airports due to the cancellation of flights, the airport, as occupier of the premises (be it a lessee or lessor) could be prima facie liable on two counts: liability for inadequately maintained property which may cause an accident; and liability for an unsafe premises. Liability under negligent entrustment, be it that of the lessor or lessee, should usually be concurrent with an act of negligent on the part of the entrustee.27 The fundamental principle 22

Standard 9.1.1. Annex 14 to the Convention on International Civil Aviation (Aerodromes), Fourth Edition, July 2004, at p. 9-1. 23 Stuart and Isaac (1994) at 5. See also, Rusmussen et al. (1995–1996), 24–26 at 24. See also Wagner (1994–1995), pp. 21–25. Rejected Take-off In Icy Conditions Results in Runway Overrun. Flight Deck, No.18; Winter 1995–1996: pp. 3–11. 24 Carlson (1995), p. 9. The author discusses United States FAA regulations and certain regulations in the CIS States which apply standards for certification of aircraft to ensure they are equipped against extreme cold weather. See also generally, Woolley (1999), pp. 23–26; McKenna (1994), pp. 46–47; and Freedman (1994), pp. 53–78. 25 Arpino (1994), p. 15. 26 Steinhorst and van Dijk (1994), pp. 12–14 at 13. Also, Manningham (1996), pp. 60–62. 27 See Hood v. Dealers Transport Co., 459 F.Supp. 684. It is also noteworthy that one jurisdiction in the United States has followed the approach that the lack of a licence of competence per se does not give rise to liability if the absence of licence was not the proximate cause of the injury. See Laughlin v Rose, 200 Va. 127, 104 S.E. 2d 782 (1958) and White v Edwards Chevrolet Co. 186 Va. 669, 43 S.E. 2d 870 (1947).

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under this head of liability is based on the line of argument that one who entrusts his property to another, knowing that such other is incompetent or having the duty to ascertain whether the entrustee is competent or not, is negligent and liable for injury.28

7.3

Elements of Corporate Foresight Planning

The necessity for corporate foresight stems from the continuing and rapid development of science and technology which are the drivers of social and economic change. Using these two knowledge based and fact intensive fields, airports would be able to obtain a clear picture of challenges and opportunities confronting them. Airports are a complex, big business and their business environment is highly dynamic. Therefore they need proactive measures to respond to the uncertainties of their business as well as a long term orientation to remain stable amidst imponderables. Airports need think tanks to mesh their technology trends and market trends to meet a growing demand for air travel. Foremost in this process is a far reaching and forward looking communications strategy as well as a good team of scientific and economic forecasters. The first step to corporate foresight is to know what the future is going to be like by adopting a foresight-awareness culture. If, as Airport Council International (ACI)29 Director Angela Gittens said at the 20th World Annual General Meeting of ACI in Bermuda in October 2010, airports should transition from the public utility model to the entrepreneurial business model, the key would be customer service excellence. Research and innovation strategies should necessarily be developed through foresight activities. â&#x20AC;&#x153;Foresightâ&#x20AC;? has been defined as: [a] participatory, future intelligence gathering and medium-to-long-term vision-building process that systematically attempts to look into the future of science, the economy and society in order to support present-day decision-making and to mobilise joint forces to realise them.30

Corporate foresight is a process of formulation and should not be confused with a set of techniques. Through a sustained consultative process, corporate foresight involves the examination of a series of future scenarios and ideally prescribes solutions. Foresight shares common ground with risk management and evaluation

Department of Water and Power of City of Los Angeles v Anderson 95 F.2d 577. See also, Cox v Dubois, 16 F.Supp. 2d 861, Brantley v Vaughn, 835 F. Supp. 258. 29 Airports Council International is the only global trade representative of the worldâ&#x20AC;&#x2122;s airports. Established in 1991, ACI represents airports interests with Governments and international organizations such as ICAO, develops standards, policies and recommended practices for airports, and provides information and training opportunities to raise standards around the world. 30 Becker (2002), at 7.

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of risk,31 and addresses the nature of the particular business and the uncertainties of the business environment. For example, in the airport industry, a grave uncertainty is the weather, as in the context of an unexpected winter storm or the eruption of a volcano which spews ash into the atmosphere. Both these events occurred in 2010 in Europe. In every instance of a natural disaster the focus revolves around those who are affected by such events. Therefore, it is difficult not to discuss the merits and demerits of a strategy that would bring about the least damage based on a balance of probability. The process of foresight should commence with airport builders and managers who should look at airports as business enterprises that contribute to efficient air travel. The terminal is used to enable passengers and freight to connect with aircraft for their transportation on departure and to connect with ground transportation on arrival. As such airport business planners must take into account elements that are not only exclusively related to the carrying on of a business, but also those principles that are essential for the safer, secure and efficient running of an airport. In this context airport planning becomes a necessary element to the airport business. An airport administration should take into account when planning for the injection of additional aircraft capacity in an airport the responses of the international community in the form of Standards and Recommended Practices as promulgated by ICAO, in order that international civil aviation retains a certain consistency and uniformity in its global activity. For instance, ICAO has in use an Airport Planning Manual32 in two parts setting out in detail, all aspects of airport planning. ICAO has in this document developed a master planning process which involves plans, programmes and stringent policy that go to make a viable airport. The document serves as a basis for providing for the orderly and timely development of an airport adequate to meet the present and future air transportation needs of an area or State.33 The manual starts from the fact that early aviation history recognized the need for some public control of land in the vicinity of an airport34 and bifurcates this need to reflect airport needs i.e. obstacle limitation areas and future airport development etc. and the need to ensure 60 minimal interference with the environment and the public.35 By this dual approach ICAO has introduced a whole new area of thought into airport development. What was once a concern to merely provide easy facilities for the fluid movement of air traffic has now become in addition an ecological concern. By this process, airport development now falls into three main areas which are: 31

Blaise Pascal, in his book Ars Cogitandi states that fear of harm ought to be proportional not merely to the gravity of the harm but also to the probability of the event. It is also a fact of risk management that, under similar conditions, the occurrence (or non-occurrence) of an event in the future will follow the same pattern as was observed in the past. For a discussion on risk assessment and risk management see Ferguson (2008) at 188 and Bobbitt (2008) at 98â&#x20AC;&#x201C;179. 32 Airport Planning Manual, Doc. 9184-AN/902, Parts 1 and 2. 33 Id. Part 1, 2.9.1 (a). 34 Doc. 9184-AN 902 Part 2, 1.3.1. 35 Id. 1.3.2.

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(a) The development of airport capacity and facilities; (b) The balancing of airport development with necessary security measures; and, (c) The balancing of airport development with ecology i.e. city planning, noise pollution avoidance etc. The ICAO Airport Planning Manual ensures a balance between airport development and ecological considerations. Cooperation in technical and economic areas would have to be further expanded to include safety and ecological factors in the technical field and all economic research in city planning and infrastructural development in the economic field. These studies would have to be done in the form of committed and in depth country studies by individual States taking into consideration futuristic studies of a country’s outlook and the financial outlay that the country would be prepared to make for an airport expansion programme. The outcome of these studies could then form legislation for the planning of airports in a State. Such legislation would present, for the first time, a cohesive and enforceable set of laws in that State that would meet the airport congestion problem. Although the concept of airport planning laws can be summed up easily as above, the three broad areas of ecology, safety and infrastructural planning need a sustained approach of study before such are incorporated into laws. For a start, ICAO’s Airport Planning Manual is geared to provide information and guidance to those responsible for airport planning,36 where information on a comprehensive list of planning subjects such as sizes and types of projects37 task identification,38 preparation of manpower and cost budgets,39 selection of consultants40 and standard contract provisions41 are given. With these guidelines each State can start its planning process.

7.4

Link with Air Transport

The airline and airport business are interlinked and inter-connected and, since air transport is a growth industry, so is the airport industry. According to the global market forecast of Airbus Industrie forecasts that from 2009 to 2028, some 25,000 new passenger and freighter aircraft valued at US$3.1 trillion will be delivered.42 36

Airport Planning Manual, Doc 9184-AN/902, Part 3. Id. 1.3.1–1.3.5. 38 Id. Chapter 2.2.1. 39 Id. 2.4. 40 Id. 3.1. 41 Id. Appendix. 42 http://www.airbus.com/en/gmf2009/appli.htm?onglet¼&page¼ The forecast anticipates that in the next 20 years, passenger traffic RPK’s will remain resilient to the cyclical effects of the sector and increase by 4.7 per cent per year or double in the next 15 years. This will require a demand for almost 24,100 new passenger aircraft valued at US$2.9 trillion. With the replacement of some 37

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This rapidly evolving demand is driven by emerging economies, evolving airline networks, expansion of low cost carriers and the increasing number of mega-cities as well as traffic growth and the replacement of older less efficient aircraft with more eco-efficient airliners. These are factors driving demand for new aircraft. The forecast also attributes the demand for larger aircraft to the compelling need to ease aircraft congestion and to accommodate growth on existing routes and to achieve more with less. Needless to say, this exponential growth in air traffic43 will place a burden on airport capacity and consequent demands upon the airport industry. Therefore, in a manner of speaking, the future of airports is linked with the future of airlines. Naval Taneja, academic and industry strategist is of the view that the airline business model will change in the future and game changing strategies will have to be in place in the air transport industry. Taneja ascribes to unconventional thinking and innovative technology the foremost place and states that these two that will bring about change management. One example he gives is the enhancement by airlines of the customer experience on their websites by offering a virtual assistant to answer questions and direct travellers to the information that they are seeking.44 Another expert is of the view that airports will invariably follow suit by preparing for similar technological innovations such as the maximizing the use of the internet, and the provision and availability of information on passengers’ connecting flights, airport maps, information on their destinations and other phone or PDA applications which will all be built into their eyeglasses.45

7.5

Corporate Foresight

Corporate foresight hinges on the early identification of markets and technologies. However, it takes a long time to restructure a corresponding system along the lines of market forecasts and the development of technology. Building competence to a level that would correspond to effective risk management. One commentator identifies a period of 10 years as preparatory for effective corporative foresight to

10,000 older passenger aircraft, the world’s passenger aircraft fleet of 100 seats or more will double from some 14,000 in 2009. 43 Id. The forecast states that the greatest demand for passenger aircraft will be from airlines in Asia-Pacific and emerging markets. The region that includes the People’s Republic of China and India accounts for 31 per cent of the total, followed by Europe (25 per cent) and North America (23 per cent). In terms of domestic passenger markets, India (10 per cent) and China (7.9 per cent) will have the fastest growth over the next 20 years. The largest by volume of traffic, will remain domestic US. 44 See Naval Taneja, Technology enabled game changing models, http://www.airlineleader.com/ _webapp_1098704/Technology-enabled_game-changing_airline_business_models. 45 Michael Rogers’ Commentary on the 20th ACI World Annual General Assembly at http://www. airtransportnews.aero/analysis.pl?acateg+reports.

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be built.46 A salient feature in foresight is leadership, which is linked inextricably to the quality of not being surprised at any unexpected event or circumstance. Essential to this process is the prompt identification of developments in the areas of science, technology and society that are likely to ensure future benefits both from a business and social perspective. Foresight has been categorized as (a) anticipatory intelligence, i.e. providing background information and an early warning of recent developments; (b) direction-setting, i.e. establishing broad guidelines for the corporate strategy; (c) determining priorities, i.e. identifying the most desirable lines of R&D as a direct input into specific (funding) decisions; (d) strategy formulation, i.e. participating in the formulation and implementation of strategic decisions; and (e) innovation catalysing, i.e. stimulating and supporting innovation processes between the different partners. From an airport perspective, anticipatory intelligence should be extended to the various disaster scenarios that could be: (a) inability to accommodate flights due to frozen runways; (b) straining of infrastructure in accommodating a passenger influx greater than the airport could handle at any given time; (c) a possible security threat that would slow down traffic and clog the system; and (d) adverse weather systems (such as storms) that could halt ground handling systems. In this context, most problems that an airport could face are weather related. In direction setting the airport management should have a corporate strategy that would also be an adequate contingency plan. Such a plan should include adequate staff training for contingencies; providing back-up support staff who have pre-organized schedules for exigencies and adequately compensating staff who have to cope with a stressful situation and irate customers. The most important factor in such situations is an effective method of communicating with everyone and providing extra services. A major factor in determining priorities, is the assurance at all times, whether good or bad, of an effective and efficient safety and security system at the airport. Strategy formulation would include developing a range of alternative routes and timings and alternative means of transport; having adequate and additional accommodation ready to make customers comfortable; having joint plans with airlines for the provision of meals through ground handlers or other caterers at the airport; and ensuring that constant contact be maintained with the Consulates involved, and the local police. Innovation catalyzing is arguably the most creative element of corporate foresight. Here, the starting point is to look at existing planning documentation. ICAOâ&#x20AC;&#x2122;s Airport Planning Manual is geared to provide information and guidance to those responsible for airport planning,47 where information on a comprehensive list of planning subjects such as sizes and types of projects48 task identification,49 preparation of

Patrick Becker, Corporate Foresight in Europe: A First Overview, supra, note 30 in this chapter at 8. 47 Airport Planning Manual, Doc 9184-AN/902, Part 3. 48 Id. 1.3.1â&#x20AC;&#x201C;1.3.5. 49 Id. Chapter 2.2.1.

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manpower and cost budgets,50 selection of consultants51 and standard contract provisions52 are given. With these guidelines each State can start its planning process. Regrettably, a study conducted on corporate foresight reflects that the transportation sector does not consider innovations as important in corporate foresight.53 It is all the more reason that, as further action, corporate foresight in the airport industry needs an un-fragmented process of corporate development and strategic planning. An initiative could be taken by ACI to gather a team of forecasters, technical experts and airport planners to develop guidelines for disaster management. The above discussion focuses on the incontrovertible fact that there are two aspects to the issue of preparedness for natural disasters by airports. The first is airport responsibility and the second is the need for corporate foresight. As for airport responsibility, in addition to the overall responsibility of the State for the provision of airport services in Article 28 of the Chicago Convention, Annex 14 to the Chicago Convention, pertaining to aerodromes and their operations also contains requirements which devolve responsibility on States to provide weather information and take necessary steps. For example, there is an umbrella provision requiring States to provide information on the condition of the movement area and the operational status of related facilities to enable units to provide services to arriving and departing aircraft.54 Recommendation 2.9.9. of the Annex suggests that whenever a runway is affected by snow, slush or ice and it has not been possible to clear the precipitant fully, the runway should be assessed and the friction coefficient measured. The follow up provision appears in Standard 10.2.8 which requires that the surface of a runway shall be maintained in such a condition so as to provide good friction characteristics and low rolling resistance. Snow, slush, ice, standing water, mud, dust, sand, oil, rubber deposits and other contaminants are required to be removed as rapidly and completely as possible to minimize accumulation. There is also a recommendation in the Annex that a taxiway should be kept clear of snow, slush, ice etc. to the extent necessary to enable the aircraft to be taxied to and from an operational runway.55 The order of priority for clearance of products of adverse weather, as prescribed by the Annex is: runways in use; taxiways serving runways in use; aprons; holding bays; and other areas.56 This notwithstanding, airports also have a responsibility to persons adversely affected by cancellation of flights. Irrespective of the responsibility of a State with regard to airports within its territories, which is founded both at customary international law and at private law for liability incurred by airports, a privately run airport

Id. 2.4. Id. 3.1. 52 Id. Appendix. 53 Supra, note 30 in this chapter at p. 22. 54 Standard 2.9.1, Annex 14 to the Convention on International Civil Aviation, Aerodromes, Volume 1 Fourth Edition: July 2004 at 2â&#x20AC;&#x201C;4. 55 Recommendation 10.2.9. 56 Recommendation 10.2.11. 51

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may incur tortuous liability on a private basis, as the occupier of the premises. In the instance of a privately managed airport where the entity charged with managing airport services is located within the airport premises, such an entity would be considered as a legal occupier for purposes of liability.57 However, airports remain entitled to levy charges for services rendered irrespective of any inconvenience caused to airlines as a result of a snowstorm or other natural phenomenon which compels an airport to take measures with regard to flights coming in and going out of that airport. Airport charges are based on cost recovery for services provided and States are responsible for policy pertaining to such charges. The fundamental postulate of ICAO’s policies on airport charges lies in Article 15 of the Chicago Convention which states that every airport in a contracting State which is open to public use by its national aircraft shall likewise, subject to the provisions of Article 68,58 be open under uniform conditions to the aircraft of all the other contracting States. The provision goes on to say that like uniform conditions shall apply to the use, by aircraft of every contracting State, of all air navigation facilities, including radio and meteorological services, which may be provided for public use for the safety and expedition of air navigation. Any charges that may be imposed or permitted to be imposed by a contracting State for the use of such airports and air navigation facilities by the aircraft of any other contracting State shall not be higher: as to aircraft not engaged in scheduled international air services, than those that would be paid by its national aircraft of the same class engaged in similar operations, and; as to aircraft engaged in scheduled international air services, than those that would be paid by its national aircraft engaged in similar international air services. Article 15 sets out the following three basic principles: – Uniform conditions shall apply to the use of airports and air navigation services in a Contracting State by aircraft of all other Contracting States; – The charges imposed by a Contracting State for the use of such airports or air navigation services shall not be higher for aircraft of other Contracting States than those paid by its national aircraft engaged in similar international operations; and – No charge shall be imposed by any Contracting State solely for the right of transit over or entry into or exit from its territory of any aircraft of a Contracting State or persons or property thereon. Specific regulatory provisions applicable to charges levied by airports have their genesis in ICAO and are contained in Doc 9082.59 57

For a discussion on this subject, See Abeyratne, Airport Business Law, Authorhouse: New York, 2009, at pp. 106–108. 58 Article 68 provides that Each contracting State may, subject to the provisions of this Convention, designate the route to be followed within its territory by any international air service and the airports which any such service may use. 59 ICAO’s Policies on Charges for Airports and Air Navigation Services Doc 9082/8 Eighth Edition-2009.

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As regards corporate foresight, an airport has to start with a culture of corporate foresight. Emergency management is a dynamic process. Planning, though critical, is not the only component. Training, conducting drills, testing equipment and coordinating activities with the community are other important functions. More importantly, airports should work jointly, and in partnership with airlines and air navigation service providers in furthering their corporate foresight. ICAO has in use an Airport Planning Manual60 in two parts setting out in detail, all aspects of airport planning. ICAO has in this document developed a master planning process which involves plans, programmes and stringent policy that go to make a viable airport. The document serves as a basis for providing for the orderly and timely development of an airport adequate to meet the present and future air transportation needs of an area or State.61 The manual starts from the fact that early aviation history recognized the need for some public control of land in the vicinity of an airport62 and bifurcates this need to reflect airport needs i.e. obstacle limitation areas and future airport development etc. and the need to ensure 60 minimal interference with the environment and the public.63 By this dual approach ICAO has introduced a whole new area of thought into airport development. What was once a concern to merely provide easy facilities for the fluid movement of air traffic has now become in addition an ecological concern. By this process, airport development now falls into three main areas which are: (a) The development of airport capacity and facilities; (b) The balancing of airport development with necessary security measures; and, (c) The balancing of airport development with ecology i.e. city planning, noise pollution avoidance etc. The ICAO Airport Planning Manual ensures a balance between airport development and ecological considerations. Cooperation in technical and economic areas would have to be further expanded to include safety and ecological factors in the technical field and all economic research in city planning and infrastructural development in the economic field. These studies would have to be done in the form of committed and in depth country studies by individual States taking into consideration futuristic studies of a countryâ&#x20AC;&#x2122;s outlook and the financial outlay that the country would be prepared to make for an airport expansion programme. The outcome of these studies could then form legislation for the planning of airports in a State. Such legislation would present, for the first time, a cohesive and enforceable set of laws in that State that would meet the airport congestion problem. Although the concept of airport planning laws can be summed up easily as above, the three broad areas of ecology, safety and infrastructural planning need a

Doc. 9184-AN/902, Parts 1 and 2. Id. Part 1, 2.9.1 (a). 62 Airport Planning Manual, Doc. 9184-AN 902 Part 2, 1.3.1. 63 Id. 1.3.2. 61

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sustained approach of study before such are incorporated into laws. For a start, ICAO’s Airport Planning Manual is geared to provide information and guidance to those responsible for airport planning,64 where information on a comprehensive list of planning subjects such as sizes and types of projects65 task identification,66 preparation of manpower and cost budgets,67 selection of consultants68 and standard contract provisions69 are given. With these guidelines each State can start its planning process.

7.6

Global Runway Safety

From 24 to 26 May 2011, ICAO hosted a Symposium on Global Runway Safety. The objectives of the Symposium were to: highlight the evolution towards a more integrated safety management approach in ICAO’s runway safety programme; coordinate a global effort for improving runway safety by identifying what a State can do to improve runway safety outcomes; identify a common framework for the enhancement of runway safety; promote and gain commitment from partners to deliver regional runway safety workshops across the globe; and identify content and format for subsequent runway safety workshops. The Symposium was held against the backdrop of ICAO Assembly Resolution A37-15 (Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation)70 which was adopted at the 37th Session of the Assembly held in Montreal from 28 September to 8 October 2010. Appendix P to the Resolution calls upon ICAO to keep under review the technical requirements for aerodromes, and requests States to ensure that safety management systems are introduced at their aerodromes. States are also called upon to place greater emphasis on the management of aerodrome operations, with runway safety given a high priority. There were many compelling arguments made at the Global Runway Safety Symposium convened by ICAO in May 2011. It consensually recognized that there were four threats to runway safety: runway incursions; runway excursions; foreign objects and debris (FOD) and bird strikes. The Symposium noted that runway excursions were more common than incursions. Some speakers argued that runway incursions and excursions could not be totally avoided and therefore airports should

Airport Planning Manual, Doc 9184-AN/902, Part 3. Id. 1.3.1–1.3.5. 66 Id. Chapter 2.2.1. 67 Id. 2.4. 68 Id. 3.1. 69 Id. Appendix. 70 See Assembly Resolutions in Force (as of 8 October 2010), Doc 9958, at II-2. 65

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adopt necessary measures to ensure that when excursions and incursions occur, there are safeguards to protect human lives and property. One of the measures suggested was the establishment of “safety areas” at the ends of runways. The symposium arrived at the following conclusions: (a) Although “one size does not fit all” in the context of aircraft, airports and aerodromes of the world, there is a compelling need for harmonization and standardization in order to ensure interoperability. In this context “harmonization” was recognized as consistency and compatibility and “standardization” was recognized as conformity. It was stringently argued that pilot error always plays some part in breaches of runway safety and that such error could be avoided if the flight crew were to adhere to standardization, i.e. follow the instructions on takeoff, approach and landing; (b) There should be collaboration to ensure runway safety at multiple levels and international organizations must work together in ensuring such collaboration; (c) Runway safety teams71 must be established locally and hosted by airports; (d) Standardization and harmonization must be improved. In this regard guidance must be developed to launch runway safety teams; runway safety definitions must be harmonized along with taxonomies and reporting conditions; and communications procedures must be standardized and improved upon; (e) ICAO must ensure that Standards and guidance material are kept up-to-date and revised; and Standards and Recommended Practices (SARPs) of the relevant Annexes to the Convention on International Civil Aviation (Chicago Convention) must be monitored through the Continuous Monitoring Approach (CMA); and (f) Implementable solutions must be promoted and encouraged through appropriate training; runway and taxiway marking; implementation of a Performance Based Navigation (PBN) approach and runway end safety programmes. One of the questions posed to the concluding panel at the Symposium was whether it would be prudent to set aspirational targets chronologically on a percentage basis for the reduction of runway excursions. It was discussed that the first measure would be to adopt, through ICAO, a suitable definition of a runway excursion as there existed no such definition. It was argued that, at this juncture, it would not be practical to set aspirational goals in this regard.

A local runway safety team is a team comprised of representatives from aerodrome operations, air traffic service providers, airlines or aircraft operators, pilot and air traffic controllers associations and any other group with a direct involvement in runway operations that advise the appropriate management on the potential runway incursion issues and recommend mitigation strategies. See Manual on the Prevention of Runway Incursions, Doc 9870, AN/463, First Edition, 2007, at (vii).

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Runway Incursions

ICAO defines a runway incursion as any occurrence at an aerodrome involving the incorrect presence of an aircraft, vehicle or person on the protected area of a surface designated for the landing and take-off of aircraft.72 The Canadian Aviation Safety Board (now the Transportation Safety Board of Canada (TSB)) issued a report In 1987 entitled Report on a Special Investigation into the Risk of Collisions Involving Aircraft on or Near the Ground at Canadian Civil Airports. The report stated that both the Canadian and U.S. experience would suggest an extremely wide range of cause-related factors for the occurrences which involve actual or potential ground conflicts, and identified unexpected human behavior as by far the most common causative factors in such occurrences. ICAO considers that information pertaining to the proximity of aircraft and/or the vehicle; geometry of the encounter; evasive or corrective action; available reaction time; environmental conditions, weather, visibility and surface condition; and factors that affect system performance are all necessary to properly classify the severity of a runway incursion.73 The official definition of the Federal Aviation Administration of the United States is that a runway incursion is any occurrence at an airport involving an aircraft, vehicle, person or object on the ground that creates a collision hazard or results in a loss of separation with an aircraft taking off, intending to take off, or intending to land.74 The FAA definition envisions various types of occurrences such as a pilot deviation—which is any action on the part of the pilot that results in violation of a Federal Aviation Regulation—an operational error, which is an occurrence attributable to an element of the air traffic control (ATC) system which has two results, the first being two or more aircraft coming within less than the minimum separation minima or between an aircraft and obstacles (vehicles, personnel and equipment on runways) and the second being an aircraft landing or departing on a runway closed to aircraft after receiving air traffic authorization; and a vehicle or pedestrian deviation—an occurrence resulting from a vehicle operator, non-pilot operator of an aircraft or pedestrian deviating onto the movement area including the runway without ATC authorization. The world’s worst airline disaster occurred on a runway when in 1977 582 persons were killed as a KLM Boeing 747 which was taking off slammed into a PAN AM 747 in the Canary Islands. There have been numerous incidents and accidents relating to runway incursions both before and after that fateful event. One of the more significant was the Comair accident which sent flight 5191 onto a wrong runway sending 49 people to their deaths. A similar incident occurred in 1993

Ibid. Transport Canada defines a runway incursion as any occurrence at an aerodrome involving the unauthorized or unplanned presence of an aircraft, vehicle or person on the protected area of a surface designed for aircraft landings and departures. See http://www.tc.gc.ca/eng/civilaviation/ publications/tp185-1-02-292-536.htm. 73 Manual for Prevention of Runway Incursions, supra, note 2 in Chap. 1 at 6-3. 74 Chamberlain (1999), pp. 9–12, continued at 25, at 9.

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where a pilot who was cleared for take of on a particular runway, accidentally chose a shorter one. In March 2006, the Federal Aviation Administration investigated three close calls at Chicago’s O’Hare Airport. The first involved a Lufthansa jet and Delta Airlines plane that came within 100 ft of each other after both were cleared for take of from intersecting runways. The second incursion involved a United Airlines plane 2 days after the Lufthansa—Delta incident, which was instructed to take off from a runway already assigned to another carrier. The third incursion took place in mid March 2006 when a regional jet was cleared for takeoff on a runway moments before an Airbus A320 was cleared for takeoff on a runway that would have connected to the one to be used by the regional jet.

7.8

Runway Excursions

ICAO does not have a definition for a runway excursion. According to Skybrary, a runway excursion occurs when an aircraft departs the runway in use during the takeoff or landing run and that such an excursion may be intentional or unintentional.75 A runway excursion may occur when a departing aircraft fails to become airborne or successfully reject the take off before reaching the end of the designated runway. Another instance would be when a landing aircraft is unable to stop before the end of the designated runway is reached. There are a couple of instances on runway excursions worth noting. On 14 October 2004, an MK Airlines Boeing 747 collided with terrain at Halifax International Airport, Nova Scotia due to reduced power at take off. The Aviation Investigation Report issued by Transport Canada revealed inter alia that at the time of the accident, MK Airlines was using the Boeing Laptop Tool (BLT) for determining performance calculations. The BLT is a Microsoft Windows based software application used to calculate take-off performance data, landing performance data, and weight and balance information. The Report also revealed that the company did not have a formal training and testing program on the BLT, and it was likely that the user of the BLT in this occurrence was not fully conversant with the software.76 On 2 August 2005, an Airbus A 340-313 aircraft (Flight AFR 358) overran Toronto’s Pearson International Airport through heavy rain and caught fire. All passengers were safely evacuated. The Aviation Investigation Report issued by the Transportation Safety Board of Canada discusses four causative factors put forward by the National Aeronautics and Space Administration (NASA) of the United States as likely to contribute to decision errors of the flight crew: ambiguity of information; dynamically changing risks; goal conflicts (organizational or social pressures; 75

http://www.skybrary.aero/index.php/Runway_Excursion. MK Airlines Crash B-747 Halifax Excerpts Final Report, Aviation Investigation Report A04H0004, Halifax International Airport, 14 October 2004 at 6. The Report is available at http://www.wiloo.be/mk_airlines_final_report_crash_halifax.htm.

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and unanticipated circumstances.77 The Accident Investigative Report discusses that low ceiling and poor visibility due to thunderstorms; rapid changes in surface pressure; lightning, hail, both within and outside a cloud, icing, damaging wind gusts and down drafts due to microbursts can all contribute to the unsafe operation of an aircraft while landing or takeoff.78 One of the decisions taken by Transport Canada after the accident was to build safety areas at the ends of runways at Canadian airports.79 The Transportation Safety Board of Canada, in its investigative report suggested that the Department of Transport establish clear standards limiting approaches and landings in convective weather for all air transport operators at Canadian airports; France’s Direction Générale de l.Aviation Civile and other civil aviation authorities establish clear standards limiting approaches and landings in convective weather; and the Department of Transport mandate training for all pilots involved in Canadian air transport operations to better enable them to make landing decisions in deteriorating weather.80 The Board also recommended that France’s Direction Générale de l.Aviation Civile and other civil aviation authorities mandate training for air transport pilots to better enable them to make landing decisions in deteriorating weather. There were four lawsuits as a result of the Air France runway excursion. Air France and its insurers claimed damages over $200 million against NAV Canada, various employees of NAV Canada, the Greater Toronto Airports Authority (GTAA) and the Attorney General of Canada, claiming damages for the loss of the aircraft and indemnity for all claims paid by Air France as a result of the accident.81 The passengers of AFR flight 358 filed a class action suit claiming damages against Air France, NAV Canada, the pilot and first officer, and others for damages sustained by the passengers and their families as a result of the accident.82 Air France cross claimed against NAV Canada. The GTAA claimed against Air France, NAV Canada, the captain and the first officer for damages relating to environmental costs involving the cleanup of the wreckage area and the related fuel and fire extinguisher chemical costs.83 Air France in turn cross claimed against NAV Canada in relation to these damages. A passenger who opted out of the class action instituted a separate action against Air France, NAV Canada, the GTAA, the captain and first officer and others, for damages caused to her and her family as a result of the accident.84

Aviation Investigation Report A05H0002, Runway Overrun and Fire; Air France Airbus A 340313 F-GLZQ, Toronto Lester B. Pearson International Airport, Ontario, 02 August 2005 at 82. 78 Id. 120. 79 Id. 119. 80 Id. 121–123. 81 Socı´ete´ Air France et. al.v. GTAA et.al. Court File No 07-337564 PD3. 82 Hussain Abdulrahim et.al v. Air France et. al Court File No. 05-CV-294746 CP. 83 Greater Toronto Airport Authority v. Air France et.al. Court File No. 07-CV-337545 PD2. 84 Strugarova et.al. v. Air France et. al. Court File No. 07-CV-336943 PD2.

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It is very clear that there are several actors involved in an accident pertaining to a breach of runway safety. They are mainly: the State and its relevant instrumentalities; the flight crew; the air navigation service provider; and the airport. A detailed discussion of each of their legal liabilities has been published elsewhere.85

7.9

Foreign Object Debris

Foreign object debris is any object that does not belong in or near airplanes. Damage occurs when a FOD injures airport or airline personnel and damage airplanes. These debris may include any object found in an inappropriate location that—as a result of being in that location—can damage equipment or injure airplane or airport personnel.86 FOD is known to include a wide range of material, including loose hardware, pavement fragments, catering supplies, building materials, rocks, sand, pieces of luggage, and even wildlife. FOD is found at terminal gates, cargo aprons, taxiways, runways, and run-up pads. It causes damage through direct contact with airplanes, such as by cutting airplane tires or being ingested into engines, or as a result of being thrown by jet blast and damaging airplanes or injuring people. On 25 July 2000 the Concorde (registered F-BTSC) operated by Air France took off from Paris Charles de Gaulle on a charter flight to New York with 9 crew and 100 passengers on board. On takeoff, one of its tires went over a FOD left behind by a departing aircraft that had used the runway on which the Concorde was taking off. This caused the Concorde’s tyre to burst and parts of the tyre to be ingested into one of its engines, causing a fire. The aircraft crashed into a hotel at La Patte d’Oie in Gonesse. All 109 persons in the aircraft perished and 4 others on the ground also died as a result of the collision. The Final Report of the Investigation identified the following causes as probable in the context of the accident: (a) High-speed passage of a tyre over a part lost by an aircraft that had taken off 5 min earlier and the destruction of the tyre; (b) The ripping out of a large piece of tank in a complex process of transmission of the energy produced by the impact of a piece of tyre at another point on the tank, this transmission associating deformation of the tank skin and the movement of the fuel, with perhaps the contributory effect of other more minor shocks and/or a hydrodynamic pressure surge. (c) Ignition of the leaking fuel by an electric arc in the landing gear bay or through contact with the hot parts of the engine with forward propagation of the flame 85

Abeyratne (2008), pp. 231–254. http://www.boeing.com/commercial/aeromagazine/aero_01/textonly/s01txt.html The resulting damage is estimated to cost the aerospace industry $4 billion a year. Airports, airlines, and airport tenants can reduce this cost by taking steps to prevent airport FOD.

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causing a very large fire under the aircraft’s wing and severe loss of thrust on engine 2 then engine 1; and (d) In addition, the impossibility of retracting the landing gear probably contributing to the retention and stabilisation of the flame throughout the flight.87 It is worthy of note that, from a regulatory perspective, Annex 14 to the Chicago Convention requires that surfaces of all movement areas including pavements (runways, taxiways and aprons) and adjacent areas be inspected and their conditions monitored regularly as part of an aerodrome preventive and corrective maintenance programme with the objective of avoiding and eliminating any loose objects/debris that might cause damage to aircraft or impair the operation of aircraft systems.88 Furthermore, the Annex prescribes that the surface of a paved runway shall be maintained in such a condition as to provide good friction characteristics and low rolling resistance. It also calls for the rapid and complete removal of snow, ice, slush, standing water, mud, dust, sand, oil, rubber deposits and other contaminants with a view to minimizing accumulation.89 Part 9 of the ICAO Airport Services Manual,90 which focuses on airport maintenance practices, recommends that, for safety reasons, the surfaces of runways, taxiways and aprons have to be clean of sand, debris, stones or other loose objects91 and reference is made in the Manual to Standard 9.4 of Annex 14 which has been discussed above. The Manual; identifies the types of objects that could be found on runways and taxiways92 and provides, in paragraph 4.6.1 for the cleaning of contaminants such as fuel, lubricants, hydraulic oils, marking paint or rubber. There are also provisions for removal of snow and ice.93

7.10

Bird Strikes

A bird strike is a collision between a bird and an aircraft which is in flight or on a takeoff or landing mode. However, this term is also used for aircraft collisions with other animals such as bats or other animals on ground. On 15 January 2009, US Airways Flight 1549 took off from La Guardia Airport in New York City at 3:03 P. M. Eastern time on its way to Charlotte, N.C., with 150 passengers and five crew members on board. As it gained altitude, it reportedly ran into a flock of geese, 87

Accident on 25 July 2000 at La Patte d’Oie in Gonesse (95) to the Concorde Registered F-BTSC Operated by Air France, Report Translation f-SC000725a. 88 Annex 14 Aerodromes Volume 1, Aerodrome Design and Operations, Fifth Edition, July 2009, Standard 10.2.1. 89 Id. Standard 10.2.8. 90 Airport Services Manual, First Edition, 1984, Part 9. 91 Id., paragraph 4.5.1. 92 Id. Paragraph 4.5.2. 93 Id. Paragraphs 4.7.1–4.7.33.

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necessitating the ditching of the aircraft on the Hudson River.94 On 3 October 2006, a Boeing 767-300, departing from Melbourne Australia on an internal flight, ran into a flock of gulls at rotation with evident ingestion and damage to the left engine. The flight crew considered the ingestion was not sufficiently serious to justify a return to land and the intended internal flight was completed. On March 4, 1999, a DC91 operated by USA Jet Airlines, at night and on final approach to land at Kansas City International Airport encountered a flock of large birds. The crew managed to regain sufficient thrust to continue the approach and land without further incident. On 6 December 1997, a British Airways Boeing 747-100, departing from London Heathrow airport, had an engine bird strike just after takeoff, causing substantial damage and falling debris.95 Like aircraft, migratory birds also follow well-defined flight paths in numbers and their close proximity to an airport could be hazardous to aircraft landing and taking off in the vicinity. In addition, birds are attracted to open areas of grass and water as well as shrubs and trees which provide food for birds.96 The issue of bird strikes takes on an added dimension by affecting social and policy issues which are not strictly linked with air transport. The key area of environmental protectionâ&#x20AC;&#x201D; particularly in the fields of wildlife policy and habitat managementâ&#x20AC;&#x201D;brings to bear issues of State responsibility for national policy as well as a commitment towards maintaining the bio-diversity of the ecosystem. An example of dire consequences of a bird strike can be cited in the instance of a Boeing 747 aircraft departing Los Angeles Airport in late August 2000, which had to dump 83 tons of fuel to land safely after a bird strike.97 Annex 14 on Aerodromes, in Chapter 9, contains three Recommendations pertaining to bird strike reduction. The first Recommendation calls for a bird strike hazard on or in the vicinity of an aerodrome to be assessed through the establishment of a national procedure for recording and reporting bird strikes to aircraft and the collection of information from aircraft operators, airport personnel etc. on the presence of birds on or around an aerodrome.98 The Annex also recommends that, when a bird strike hazard is identified at an aerodrome, the appropriate authority should take action to decrease the number of birds constituting a potential hazard to aircraft operators by adopting measures for discouraging their presence on, or in the vicinity of an aerodrome.99 The final Recommendation of the Annex urges that garbage disposal dumps or any such other source attracting birds on or in the 94

See Brendan Borrell, What is a Bird Strike? How Can We Keep Planes Safe From them in The Future? The Scientific Monitor 15 January 2009, http://www.scientificamerican.com/article.cfm? idÂźwhat-is-a-bird-strike. 95 For more instances of bird strikes see http://www.skybrary.aero/index.php/Accident_and_Serious_Incident_Reports:_BS. 96 For a detailed discussion on bird population trends and their impact on aviation see Maragakis (2009). 97 See http://www.birdstrike.org/commlink/top_ten.htm at p. 3. 98 Annex 14 supra, note 19 in Chap. 1, Recommendation 9.4.1 a). 99 Annex 14, Recommendation 9.4.3.

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vicinity of an aerodrome be eliminated or their establishment prevented, unless studies indicate that such disposal units are unlikely to be conducing to bird activity and a bird hazard problem.100 Recommendation 9.4.5. which calls upon States to give due consideration to aviation safety concerns related to land developments in the vicinity of the aerodrome that might attract wildlife, encourages measures to be taken toward discouraging bird activity within the vicinity of an aerodrome. This is given effect to in guidance material formulated by ICAO in the form of provisions in the Airport Services Manual,101 Part 3 of which is dedicated to bird control and reduction. The Manual gives detailed guidance to States on how to organize a National Committee and lays out the roles and responsibilities of a control programme. Chapter 4 of the Manual is particularly significant, in that it gives a detailed breakdown on how to organize an airport bird strike control programme. This calls for a very integrated approach to be evolved and developed to control bird activity at airports. Communications between field personnel and air traffic controllers, allocation of monies for bird control and assistance of aircraft operators in coordinating a concerted effort are some measures recommended. There is also a separate chapter on environment management and site modification, together with segments on dispersal methods, incompatible land use around airports, evaluation of wildlife control programmes and staffing airport bird control programmes being given special chapter treatment.

7.11

A Look at the Future

From a legislative perspective, the issue of runway safety requires a two pronged approach: the incorporation of regulatory provisions and guidelines promulgated by such Organizations as ICAO and the European Aviation Safety Agency on runway safety into laws and by-laws of local legislatures; and a Continuous Monitoring Approach (CMA) by ICAO. As prescribed by the ICAO Manual on Runway Incursions as well as the European Action Plan for the Prevention of Runway Incursions,102 there must be runway safety teams established, goals established to increase the prevention of both incursions as well as excursions and measures to prevent accidents caused by FOD and bird strikes. This should be done essentially through efficient runway safety data collection, analysis and dissemination; identification of â&#x20AC;&#x153;hot spotsâ&#x20AC;?103; awareness and training programmes for pilots and air traffic controllers and above all the infusion of a safety culture among all players. 100

Recommendation 9.4.4. Airport Services Manual, Doc 9137 AN/598 Part 3, Third Edition, 1991. 102 European Action Plan for the Prevention of Runway Incursions, Edition 2.0. 103 A hot spot is a location on an aerodrome movement area with a history of potential risk of collision or runway incursion, and where heightened attention by pilots/drivers is necessary. See ICAO Manual on the Prevention of Runway Incursions, supra, note 2 in Chap. 1, at paragraph 3.4.1. (p. 3-2). 101

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Another useful tool in this regard is the Runway Excursions Risk Reduction Toolkit (RERR) toolkit which has been developed jointly by the International Air Transport association (IATA) and the Flight Safety Foundation (FSF) with the contribution of experts from airlines, regulators, aircraft manufacturers, airports, and air traffic control and safety organizations around the globe. It contains in-depth studies on: data analysis; recommended actions; a risk assessment tool; pilot briefing notes; presentations; and articles on excursions. The tool kit is designed to reduce the number of runway excursions, which are identified as instances when an aircraft unexpectedly leaves the runway during takeoff or landing. An enduring safety culture can be created through the ICAO Continuous Monitoring Approach and through ICAO safety audits using a multidisciplinary approach. Resolution A 37-5 (The Universal Safety Oversight Audit Programme USOAP), adopted at the 37th Session of the ICAO Assembly, directs the Secretary General of ICAO in Resolving Clause 2 that from 1 January 2011, he evolve the USOAP to a CMA which will incorporate the analysis of safety risk factors and be applied on a universal basis in order to assess States’ oversight capabilities. The Resolution goes on to direct the Secretary General to ensure that the CMA continues to maintain as core elements the key safety provisions contained in Annex 1—Personnel Licensing, Annex 6- Operation of Aircraft, Annex 8—Airworthiness of Aircraft, Annex 11—Air Traffic Services, Annex 13—Aircraft Accident and Incident Investigation and Annex 14—Aerodromes. Resolution A 37-5 should be read in conjunction with Resolution A 37-6 which is on runway safety. The latter recognizes that runway accidents constitute a large portion of all accidents and have resulted in a great number of fatalities, among which runway incursions are the highest single occurrence of all accidents over the last 10 years (2000–2010) for all commercial and general aviation operations of fixed wing aircraft above 5,700 kg certified maximum takeoff mass. The Resolution inter alia urges States to take effective measures to enhance runway safety including the establishment of runway safety programmes using a multidisciplinary approach and resolves that ICAO actively pursue runway safety using a multidisciplinary approach. It also invites States to monitor runway safety events and related precursors as part of the safety data collection and processing system established under their State Safety Programmes. There is no room for doubt that, if there is to be continuous monitoring of runway safety, the operative words of Resolution A 37-6 must indeed be ICAO shall actively pursue runway safety using a multidisciplinary approach. From a legal perspective, ICAO can only accomplish this objective through its safety audits and the underlying legal empowerment granted to ICAO. It must be noted that ICAO member States, at the 36th Session of the ICAO Assembly in September 2007, adopted Resolution A36-2 (Unified strategy to resolve safety-related deficiencies) whereby it is recognized that the establishment of regional and subregional safety oversight systems, including regional safety oversight organizations, has great potential to assist States in complying with their obligations under the Chicago Convention through economies of scale and harmonization on a larger scale. However, the Resolution calls for a unified strategy (thus implicitly rejecting a

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fragmented or regional approach) involving all ICAO member States, ICAO and other concerned parties in civil aviation operations that could render assistance to States experiencing difficulties in correcting safety related deficiencies identified through the ICAO safety oversight audits. The way forward in global runway safety would lie in the empowerment of ICAO to vigorously pursue a multidisciplinary approach and assist States through a continuous monitoring approach. This requires transparency and cooperation among States along with a strong safety reporting culture. Above all, it requires a bold and courageous step by the States to lay themselves open to global review of their safety. Without this step, Resolutions A 37-5 and A 37-6 would be rendered destitute of effect. It will be recalled that the 35th Session of the Assembly, when it addressed the issue of expanding the audits from a limited Annex basis to a comprehensive systems approach, instructed the Secretary General to make the final safety audit reports available to all Contracting States and also to provide access to all relevant information derived from the Audit Findings and Differences Database (AFDD) maintained by ICAO.104 Furthermore, in Resolution A36-2 (Unified Strategy to Resolve Safety Related Deficiencies) the Assembly, in operative Clause 6 of the Resolution, directs the Council to apply and review, as necessary, the procedures to inform Contracting States, within the scope of Article 54j) of the Chicago Convention, in the case of a State having significant shortcomings with respect to ICAO safety related SARPs in order for other Contracting States to take action in an adequate and timely manner. Article 54j) is extremely clear in identifying the ICAO Council’s mandatory function to report to any Contracting State any infraction of the Chicago Convention as well as any failure to carry out recommendations and determinations of the Council. The corollaries to this are varied in dimension in the context of Resolution A 36-2. Firstly, it is quite curious that the Assembly Resolution does not also request the Council to perform its mandatory function in Article 54k), which is to report to the Assembly any infraction of the Convention where a Contracting State fails to take appropriate action within a reasonable time after notice of the infraction. This would have arguably been a more coercive and effective tool than the measure prescribed in Article 54j) in that States would be quite concerned if their shortcomings were to be aired out in front of 190 Contracting States at an ICAO Assembly. The second dimension to the Resolution is that it is the function of the Council in this case, to use the words of operative clause 6 of Resolution A36-2 to “apply and review. . . the procedure to inform Contracting States within the scope of Article 54j) of the Chicago Convention, in the case of a State having significant shortcomings with respect to ICAO safety related SARPs, so that other Contracting States could take action in an adequate and timely manner”. Surprisingly the Council is asked by the Assembly to restrict itself to determining the adherence

104

Resolution A 35-6, Operative Clause 7.

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to SARPs and report its findings thereof, which is already a function handed down in the Convention to the Council in Article 38.105 Again, it is not clear as to why the Assembly refrained from applying the rest of Article 54j) to its Resolution, which makes it incumbent upon the Council to report the failure to carry out recommendations or determinations of the Council. This application would have served the purpose of the Assembly better than the mere restriction to the SARPs in the Annexes. The third dimension is that the Council, under the Convention, has only functions (which are in essence duties) and no powers.106 On the other hand the Assembly has powers and duties accorded to it in the Chicago Convention,107 one of which is to delegate to the Council the powers and authority necessary or desirable for the discharge of the duties of the Organization and revoke or modify the delegations of authority at any time.108 However, in this instance there is no indication that the Assembly exercised its powers to delegate its authority or power to the Council to apply and review the procedure in Article 54j). If this had been the case, the Council would have had the same right and the authority of the Assembly to take appropriate action as deemed necessary in the manner in which the information derived from safety audits would be disseminated and reported to other States. A power is the capacity to direct the decisions and actions of others. A function on the other hand is to perform, execute or administer.109 A power is also defined as an ability on the part of a person to produce a change in a given legal relation by doing or not doing a certain act.110 In this context the Council only has a duty or function to report to States shortcomings of other States detected during the course of safety audits with regard to adherence by the ICAO member States of SARPs. It is therefore incontrovertible that Assembly Resolution A36-2 merely hands over to the Council the function to report an infraction of the Chicago Convention as well as shortcomings with regard to SARPs and recommendations and determinations of the Council in that regard. The Chicago Convention bestows neither the ability nor the power on the Council to investigate and determine on its own initiative whether there has been an infraction of the Convention. There is also no specific provision which entitles

105 Article 38 provides: inter alia that any Contracting State can file a difference to a standard and notify the Council which in turn is required to make immediate notification to all other States of the difference which exists between one or more features of an international standard and the corresponding national practice of that State. 106 Although Jacob Schenkman, in his well documented and logically reasoned treatise on ICAO states that “The Council has been entrusted with duties, powers and functions. . .” he does not give a single example of such a power. See Capt. Jacob Schenkman, International Civil Aviation Organization, Librairie E. Droz: Geneve, 1955 at 158. 107 Article 49 of the Chicago Convention. 108 Article 49 h) of the Chicago Convention. 109 Deluxe Black’s Law Dictionary, Sixth Edition, St. Paul. Minn: 1990, at 673. 110 Id. at 1189.

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the Council to notify the State concerned that an infraction has taken place. However, Article 54n) provides that the Council can consider any matter relating to the Convention which any Contracting State refers to it, giving the Council the capacity to make its own determination and recommendations pertaining to a matter referred to it. It is also noteworthy that both Article 15 of the Convention, which allows the Council to report and make recommendations resulting from a review by the Council of charges imposed for the airports and other facilities, and Article 69, which gives the Council competency to make recommendations to member States for the improvement of air navigation facilities, are two instances of specific provision being made within the Convention where the Council can make recommendations for the consideration of ICAO member States. Clearly, non compliance with SARPs and shortcomings or deficiencies in safety cannot be classified as infractions of the Convention. An infraction is a violation and arguably applicable to the Chicago Convention itself and not to the Annexes which only contain SARPs that are not strictly legally binding so as to constitute a violation if not followed. Therefore, the Assembly, in A36-2 quite clearly meant the reportage of failure to carry out recommendations and determinations of the Council with regard to SARPs. This is clearly an administrative function and not a judicial function, since an administrative act is usually referred to as similar or related activities regarding the handling and processing of information. A significant issue in the determination of ICAOâ&#x20AC;&#x2122;s effectiveness as an international organization is the overriding principle of universality and global participation of all its 190 Contracting States in the implementation of ICAO policy. This principle, which has its genesis in the Chicago Conference of 1944, has flowed on, gaining express recognition of legal scholars. This is what makes ICAO unique as a specialized agency of the United Nations and establishes without any doubt that ICAO is not just a tool of cooperation among States. The ICAO Symposium on Global Runway Safety brought to bear this global leadership role of ICAO, together with the fact that it is time to define roles and have the legislative courage to give effect to a safety reporting culture and the legal legitimacy given to ICAO by the Chicago Convention.

References Ruwantissa I.R. Abeyratne Runway Incursions: General Principles of Liability, Annals of Air and Space Law (Annales de Droit Arien et Spatial), Vol.XXXIII; 2008: p. 231-254 Ruwantissa Abeyratne, Airport Business Law, PublishAmerica: Bloomington, Ind., 2009 at 13 Roberto Arpino, Automated Weather Observation Systems find Increasing Acceptance at Major Airports, ICAO Journal, October 1994, 15 Patrick Becker, Corporate Foresight in Europe: A First Overview, Institute of Science and Technology Studies: Germany, October 2002, at 7 Philip Bobbitt, Terror and Consent: The Wars for the Twenty First Century, Knopf: New York, 2008 at 98-179 E. Frank Carlson, Brrrr!, Airplanes Operating at Extremely Low Ground Temperatures, Airliner, October-December 1995, 9

References

173

H. Dean Chamberlain, Runway Incursion is No Accident, FAA Aviation News, Vol.38, No.7; October 1999: p. 9-12, continued at 25, at 9 Niall Ferguson, The Ascent of Money, The Penguin Press: New York 2008 at 188 Jerome E. Freedman, Applicability of E-scan Technology for Future Airport Aviation Weather Radars, Air Traffic Control Quarterly, Vol.2, No.1; 1994: p. 53-78 Dan Manningham, The Keys to Using Weather Radar, Business & Commercial Aviation; July 1996: p. 60-62 Ilias Maragakis, Bird Population trends and their impact on Aviation Safety 1999-2008, European Aviation Safety Agency, Safety Analysis and Research Department, 09 January 2009 James T. McKenna, Airlines Seek Uniform Winter Safety Rules, Aviation Week & Space Technology; 10 January 1994: p. 46-47 Masako Miyagi, Serious Accidents and Human Factors, American Institute of Aeronautics and Astronautics: Virginia, 2005, at 143 Dr H. Puempol, Airports and Aviation Weather Services: a New Alliance Forming? International Airport Review, Issue 4, 2006, 75 at 76 Roy Rusmussen, Jeff Cole, Kevin Knight, R.K. Moore and Murray Kupperman, How Heavy is that Snowfall, Flight Deck, No. 18, Winter 1995-1996, 24-26 at 24 G. Steinhorst, W.C.M. van Dijk, Modern Weather Observation Systems in Use at Airports Can Improve the Quality of Weather Data. ICAO Journal, Vol.49, No.8; October 1994: p. 12-14, at 13 R.A. Stuart and G.A. Isaac, Archived Weather Data Provides New Information on Ground Based Icing, ICAO Journal, October 1994, at 5 Captain Gary A. Wagner, Take-off and landing on Icy conditions, Flight Deck, No.14; Winter 1994-95: p. 21-25 David Woolley, Winter Operations Evolve in Europe, GSE Today; June-July 1999: p. 23-26

Chapter 8

Carriage of Dangerous Goods by Air

The subject of carriage of dangerous goods by air is addressed in Annex 18 to the Chicago Convention. The material in this Annex was developed by the Air Navigation Commission in response to a need expressed by Contracting States for an internationally agreed set of provisions governing the safe transport of dangerous goods by air. In order to assist in achieving compatibility with the regulations covering the transport of dangerous goods by other modes of transport, the provisions of this Annex are based on the Recommendations of the United Nations Committee of Experts on the Transport of Dangerous Goods and the Regulations for the Safe Transport of Radioactive Materials of the International Atomic Energy Agency. More than half of the cargo carried by all modes of transport in the world is dangerous cargoâ&#x20AC;&#x201D;explosive, corrosive, flammable, toxic and even radioactive. These dangerous goods are essential for a wide variety of global industrial, commercial, medical and research requirements and processes. Because of the advantages of air transport, a great deal of this dangerous cargo is carried by aircraft. ICAO recognizes the importance of this type of cargo and has taken steps to ensure that such cargo can be carried safely. This has been done by adopting Annex 18, together with the associated document Technical Instructions for the Safe Transport of Dangerous Goods by Air. Other codes have existed for regulating the carriage of dangerous goods by air, but these did not apply internationally or were difficult to enforce internationally and, moreover, were not compatible with the corresponding rules of other transport modes. Annex 18 specifies the broad Standards and Recommended Practices to be followed to enable dangerous goods to be carried safely. The Annex contains fairly stable material requiring only infrequent amendment using the normal Annex amendment process. The Annex also makes binding upon Contracting States the provisions of the Technical Instructions, which contain the very detailed and numerous instructions necessary for the correct handling of dangerous cargo. These require frequent updating as developments occur in the chemical, manufacturing and packaging industries, and a special procedure has been established by the Council to allow the Technical Instructions to be revised and reissued regularly to keep up with new products and advances in technology. The ICAO requirements for dangerous goods have been largely developed by a panel of experts which was established in 1976. This panel continues to meet and R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_8, # Springer-Verlag Berlin Heidelberg 2012

175

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recommends the necessary revisions to the Technical Instructions. As far as possible the Technical Instructions are kept aligned with the recommendations of the United Nations Committee of Experts on the Transport of Dangerous Goods and with the regulations of the International Atomic Energy Agency. The use of these common bases by all forms of transport allows cargo to be transferred safely and smoothly between air, sea, rail and road modes. The ICAO requirements for the safe handling of dangerous goods firstly identify a limited list of those substances which are unsafe to carry in any circumstances and then show how other potentially dangerous articles or substances can be transported safely. The nine hazard classes are those determined by the United Nations Committee of Experts and are used for all modes of transport. Class 1 includes explosives of all kinds, such as sporting ammunition, fireworks and signal flares. Class 2 comprises compressed or liquefied gases which may also be toxic or flammable; examples are cylinders of oxygen and refrigerated liquid nitrogen. Class 3 substances are flammable liquids including gasoline, lacquers, paint thinners, etc. Class 4 covers flammable solids, spontaneously combustible materials and materials which, when in contact with water, exit flammable gases (examples are some powdered metals, cellulose type film and charcoal). Class 5 covers oxidizing material, including bromates, chlorates or nitrates; this class also covers organic peroxides which are both oxygen carriers and very combustible. Poisonous or toxic substances, such as pesticides, mercury compounds, etc., comprise Class 6, together with infectious substances which must sometimes be shipped for diagnostic or preventative purposes. Radioactive materials are in Class 7; these are mainly radioactive isotopes needed for medical or research purposes but are sometimes contained in manufactured articles such as heart pacemakers or smoke detectors. Corrosive substances which may be dangerous to human tissue or which pose a hazard to the structure of an aircraft are dealt with in Class 8 (for example, caustic soda, battery fluid, paint remover). Finally, Class 9 is a miscellaneous category for other materials which are potentially hazardous in air transport, such as magnetized materials which could affect the aircraftâ&#x20AC;&#x2122;s navigational systems.

8.1

Radioactive Materials

Doctors and laboratory technologists use radioactive materials for medical diagnosis and therapy. These materials are also used for the sterilization of medical products,1 power production and other industrial purposes. The most critical issue

Radioactive material produce radiation to sterilize health care products including surgical gloves, syringes, catheters and bandagers. It is reported that about 200 radiation sterilization facilities operate in more than 50 countries and around 45% of all medical disposables are sterilized using radiation. See Arumugam Nagarajan Nandakumar, Cargo Controversy . . .

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177

in this regard is that radio isotopes2 which have short life spans need to be transported to patients preferably by air. The problem arises when the air carrier refuses to carry such radioactive medical supplies.3 It is reported that 60% of such denials relate to air transport and 30% to maritime transport.4 Radio active cargo, or class 7 materials5 as they are defined technically, are carried by means of transport (whether by air, sea or rail/road transport) in accordance with national and international regulations. The latter are regulations of the International Atomic Energy Agency (IAEA)6 According to the IAEA, refusal to carry such cargo include the following reasons: l

Apprehension and negative perception on the part of carriers and public authorities about radiation. This is due, in part, to lack of information; Concerns about extent and costs of training. The reason for this apprehension is the belief on the part of carriers that extensive training has to be given to those involved in transportation of goods if they are to handle radioactive cargo. The IAEA confirms that this concern is unjustified as all concerned with handling cargo are expected to be given a training session which lasts only for half a day; Multiplicity of authorities regulating the carriage of radioactive cargo and the numerous regulations promulgated nationally; The absence of awareness of the compelling need to transport radioactive medicines and the adequacy of the safety standards in practice; and Apprehension of the costs of insurance in the event of accidents.7

A radionuclide is an atom with an unstable nucleus. The radionuclide undergoes radioactive decay by emitting a gamma ray(s) and/or subatomic particles. Radionuclides may occur naturally, but can also be artificially produced. Radionuclides are often referred to by chemists and biologists as radioactive isotopes or radioisotopes, and play an important part in the technologies that provide us with food, water and good health. However, they can also constitute real or perceived dangers. 3 IAEA reports that denials are occurring all parts of the world. It is reported that airlines such as British Airways and KLM ban radioactive material while Northwest Airlines bans shipments on al its passenger planes. Several Asian airlines are also reported to opt out of carriage of radioactive material. See Miller (2004) at 5(1). 4 Ibid. 5 The International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air define what are termed as Class 7 material as “any material containing radionuclides where both the activity concentration and the total activity in the consignment exceed the values stipulated in 7.7.2.1 to 7.7.2.6 of Doc 9284, AN/905 (2007–2008 Edition).” 6 TM-3059, Working Paper No. 07 Rev.0, IAEA: Vienna (14–16 November 2006) at 1. 7 Basis for Opening Remarks for the International Steering Committee on Denial of Shipments of Radioactive Material by the Deputy Director, General Nuclear Safety and Security, Mr. Tomihitro Taniguchi, TM 33059, Working Paper 07, Rev. 0 See Also, Report of the International Atomic Energy Agency’s Fact Finding Discussion Forum on Denial and Delays of Shipments, IAEA Headquarters, 14–16 November 2006, TM 33059, Information Paper No 02, Rev.0. 3.which additionally listed generic reasons for denial as requirements imposed on competent authorities both within and between countries; requirements for a carrier or port handlers radiation protection programme; travel through “nuclear free zones” that capture non-nuclear material; port docking prohibitions of vessels containing class 7 material; and some ports not permitting transhipment of Class 7 cargo though permitting entrance of materials for use in their own countries.

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The IAEA also records that, over the past 50 years, there has been no substantial risk from the transport of radioactive material.8 The IAEA General Conference in 2003 convened on 19 September 2003 adopted Resolution which called for discussions to address the problems associated with refusal of shipments.9 The Conference requested IAEA to develop an Action Plan, based on the results of the Conference. The Action Plan for the Safety of Transport of Radioactive Material, approved by the Board of Governors in March 2004, called upon the Secretariat inter alia to establish a fact finding discussion forum addressing the concerns of relevant entities which may include IMO, ICAO, IATA10 and IFALPA and WCO.11 At a meeting held in May 2006 at the IAEA Headquarters on the subject of denial of shipments of radioactive material, it was recognized that a third of marine carriers do not transport class 7 cargo. Those carriers who accepted such cargo would either carry the cargo to their own States or require an indemnity from the State concerned. The meeting also noted that although there was a Resolution of the International Maritime Organization (IMO) requiring ships to carry class 7 cargo, air carriers could not be forced to do so. The International Civil Aviation Organization said for the record that air carriers could only be persuaded to carry class 7 cargo, and not forced to do so.12 The meeting also recognized that although pilots in command were the major protagonists in refusing carriage of radioactive medicines, they were only a small part of responsibility of the pilot and the pilot had to give written reasons as to why the carriage of such goods was refused.13 It must be noted that, at a meeting of the IAEA held in September 2005, the International 8

Id. 3. GC(47)/RES/7.C/. 10 The International Air Transport Association, an association of air carriers, was formed in 1919 as the International Air Traffic Association. Encapsulated in IATAâ&#x20AC;&#x2122;s overall mission are seven core objectives: to promote safe, reliable and secure air services; to achieve recognition of the importance of a healthy air transport industry to worldwide social and economic development; to assist the air transport industry in achieving adequate levels of profitability; to provide high quality, value for money, industry-required products and services that meet the needs of the customer; to develop cost effective, environmentally-friendly standards and procedures to facilitate the operation of international air transport; to identify and articulate common industry positions and support the resolution of key industry issues; and to provide a working environment which attracts, retains and develops committed employees. 11 The World Customs Organization (WCO) is an inter governmental organization that helps Members (currently Customs administrations from 169 countries) communicate and co-operate on customs issues. It was established in 1952 as the Customs Co-operation Council; it adopted its current name in 1994. Headquartered in Brussels, Belgium, it develops agreed rules on customs procedures and provides advice and assistance to customs services. It has established an international standard classification of commodities called the Harmonized Commodity Description and Coding System which is used to classify goods for tariff purposes the application of tariffs. The WCO has 169 members. 12 Denial of Shipment of Radioactive Material TM-28826, IAEA Headquarters, Vienna (8â&#x20AC;&#x201C;12 May 2006), TM 33059, working Paper No.03, Rev 0 paragraph 5.3. 13 Ibid. 9

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179

Federation of Airline Pilots’ Associations (IFALPA) submitted a paper which recognized that there has been an increase in recent years of the number of denials of shipments of radioactive materials by airlines, airports, pilots and States and that such denials are capable of posing problems for hospitals, patients and suppliers of radio pharmaceuticals. The IFALPA Dangerous Goods Committee supported the transport of all classes of dangerous goods, including class 7 material as long as the transport complied with the provisions of Annex 18 to the Chicago Convention on the Carriage of Dangerous Goods by Air and associated Technical Instructions for the Safe Transport of Dangerous Goods. IFALPA emphasized the fact that in consideration of whether a denial is appropriate or not, it was clear that safety is always the overriding factor and that other issues never have priority.14 The May 2006 meeting of IAEA was followed by a second meeting in Vienna from 14 to 16 November 2006 where an international steering committee on denial of shipment was established.15 The meeting recorded IAEA’s concern about the denial and delay involved in the carriage of radioactive material. This concern is personified in a resolution adopted by IAEA during its ninth plenary meeting on 30 September 2005, welcomed inter alia the progress made in conjunction with IFALPA on the problems related to refusals of shipments of radioactive materials (in particular for medical applications) and looked forward to a satisfactory resolution of the issue, while encouraging the IAEA Secretariat to continue addressing the denial of shipping issue.16 The ICAO Dangerous Goods Panel, at its meeting of the Working Group of the Whole convened at Abu Dhabi from 4 to 8 October 2004 recognized that the IAEA believed that the problem of denial of radioactive medicines on board aircraft was linked to public perception and training rather than to a lack of safety17 14

IFALPA, The Global Voice of Pilots, July 2005, reproduced in International Steering Committee on Denials of Shipments of Radioactive Material, TM-33059 (IAEA), Information Paper No. 05., Rev. 0. The Working Group of the ICAO Dangerous Goods Panel has also recognized that medical isotopes were beneficial to the delivery of healthcare and due to the time sensitive nature of the products the air mode is fundamental to ensuring such products can be used upon delivery to a health facility. Consequently, widespread denials of such shipments were not in the public interest. See Report of the Meeting of the Working Group of the Whole WG/04, DGP-WG/05–WP/1 7.2.2 at p. 16. 15 The mandate of the steering committee is to develop an action plan to prevent cases of denials of shipments and to alleviate the hardships to users of radioactive material that have been denied or delayed; determine the milestones in the implementation of the action plan; identify the specific role that could be played by each Member of the Committee and; recommend a mechanism for monitoring progress. See IAEA TM 33059, Working Paper No. 02, Rev.1 at 1. 16 Measures to Strengthen International Cooperation in Nuclear, Radiation and Transport Safety and Waste Management, GC(49)/RES/9, Forty Ninth Regular Session, September 2005, Item 15 of the Agenda, Clause 12. It is noted that the IMO Assembly, at its 24th Session, Adopted Resolution A.984(24) on Facilitation of the Carriage of IMDG Code Class 7 Radioactive Materials Including Those in Packaged Form Used in Medical or Public health Applications, 6 February 2006, which endorsed work done by and between IAEA and IFALPA. 17 Report of the Meeting of the Working Group of the Whole WG/04, DGP-WG/05—WP/1, Clause 7.2.1 at p. 16.

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The Working Group was of the view that since the issue was related to public and political opinion, a start should be made with developing more public outreach and providing more background on the safety of such shipments.18 The Working Group also noted that ICAO has been requested by IAEA to communicate with IFALPA to clarify to its members the correct separation rules for transport of radioactive material, animals, passengers and crews; to support the inter-agency meetings since they are a beneficial forum to discuss issues such as denials of shipments and request that they be promoted; support the shortened training plan of IAEA and make it widely available and support the communication resource to be made available by IAEA and make it widely available.19

8.2

Dangerous Pathogens

A Special Sub Committee of the Legal Committee of ICAO met in Montreal from 3 to 6 July 2007 to discuss the preparation of one or more instruments addressing new and emerging threats. One of the issues addressed at this meeting was the unlawful transport of biological, chemical, nuclear weapons and other dangerous substances on board aircraft. Earlier, the Secretary General of ICAO, Dr. Taieb Cherif, addressing the China Civil Aviation Development Forum on 9 May 2007, stated that although the global air transport system remains as secure as ever, yet events such as the illegal terrorist plot in the United Kingdom in the Summer of 2006, potentially involving liquids used as explosives, reminds us how vulnerable the system is. On another aviation platform, Giovanni Bisignani, Director General and CEO of the International Air Transport Association (IATA) stressed at its Annual General Meeting held in Vancouver from 3 to 5 June 2007 that the industry has changed tremendously in 5 years since 9/11. Six years after the tragic events of 2001, air travel is much more secure but there are unlimited ways to attack the aircraft integrity. He added that there is no perfect security system and terrorists change tactics and weapons. Bisignani rightly pointed out that terrorists are studying what measures the industry is adopting; and that all the air industry can do is make the system strong enough to constitute sufficient deterrent and make aircraft a harder target to hit. The recreation of the Spanish flu virus that killed 50 million people worldwide in 1918 proves that deadly viruses are being revisited and are undergoing genetic modification. This brings to bear the inevitable question as to whether there is enough security to stop them from falling into the wrong hands. There is also the ominous prospectâ&#x20AC;&#x201D;that transportation of these dangerous pathogens by air 18

Id. Clause 7.2.8. Denial of Shipments of Radioactive Materials, paper [presented by IAEA at the Meeting of the Working Group of the Whole of the ICAO Dangerous Goods Panel (Au Dhabi, 4â&#x20AC;&#x201C;8 October 2004), DGP-WP/04-WP/18, Appendix.

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would leave aviation vulnerable. This chapter examines precautionary measures currently being taken and the legal and regulatory significance of such measures. The leakage of dangerous pathogens20 from laboratories presents an ominous analogy to the aviation sector in that the same could well occur in the carriage of such dangerous goods by air. Although past instances of escaping dangerous pathogens are small in number, nonetheless their occurrence and the threat posed to the wellbeing of humanity cannot be underestimated. In 2002 when Anthrax spores escaped from two military laboratories in the United States, the authorities agreed that the leakage was due to a security lapse.21 In 2003 a string of such leakages occurred in Asia, this time of the SARS virus.22 It is now known that the laboratory is not the only place where security lapses could occur. Modern exigencies require samples of deadly pathogens to be transported regularly over vast distances to reach researchers across the world. This calls for a delicate balance between recognizing the compelling need for scientists to exchange and collectively use different strains in order to identify naturally occurring diseases and mutations on the one hand and ensuring that the transport of these infectious substances23 are carried out according to United Nations Model Regulations24 on the other. These model regulations are the base upon which specific provisions for the carriage by air are formulated in the packing of samples of infectious pathogens for transportation by air. The shipment of infectious agents or diagnostic specimens by air must comply with local, national and international regulations. International air transport regulations are contained in various documentation of the International Civil Aviation Organization and Dangerous Goods Regulationsâ&#x20AC;&#x201D;an annual publication of the International Air Transport Association 20

Pathogens are microorganisms (including bacteria, viruses, rickettsia, parasites, fungi) or recombinant microorganisms (hybrid or mutant) that are known or are reasonably expected to cause infectious disease in humans or animals. 21 An year earlier, a covert event occurred in October 2001 when anthrax spores were sent through the mail exposing persons in the eastern USA to contaminated mail resulting in deaths, illnesses and identified exposures to Anthrax. Overt, announced events, in which persons are warned that an exposure has occurred, have taken place in the United States, although most of these were determined to have been hoaxes, that is, there were no true exposures to infectious agents. 22 The leakages occurred in China, Taiwan and Singapore. See Air-Tight Security, Intersec, June 2007 33â&#x20AC;&#x201C;35 at 34. 23 Infectious substances are defined as substances known to contain, or reasonably expected to contain, pathogens. 24 The United Nations has developed recommendations on model regulations for the transport of dangerous goods which recognize that various chemical combinations and mixtures have different requirements in packing for the purpose of transport. See Recommendations on the Transport of Dangerous Goods, Model Regulations, Volume 1, Fourteenth Revised Edition: 2005, Chapter 2.6. p. 113â&#x20AC;&#x201C;114. Furthermore, the United Nations Model regulations contain packing instructions for primary, secondary and outer packaging of hazardous goods. See Model Regulations Id. Volume 11, Instruction P620 at p. 70. Specimens (human, animal, food, environmental, etc.) known or reasonably expected to contain pathogens are now to be classified as infectious substances. When these specimens are transported/shipped for any purpose, including initial or confirmatory testing for the presence of pathogens, they are to be packaged and shipped as infectious substances.

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published in January, and usually revised on an yearly basis. These ICAO and IATA documents will be discussed in some detail later in this article. Dangerous Goods Regulations are implicitly accompanied by the requirement that anyone requesting samples should provide the necessary evidence that they are registered with their government for the receipt of such substances and that they have the appropriate facilities, staff and security measures in place to carry out work on the samples received. There are four diseases recognized as most likely to be associated with bioterrorism potential: anthrax; botulism; plague; and smallpox. Although these agents are considered to be the most likely to be used in bioterrorism they are not usually prioritized in any order of importance. There are other agents which offer potential to bioterrorism such as those causing tularemia, brucellosis, Q fever, viral hemorrhagic fevers, viral encephalitis, and a disease associated with staphylococcal enterotoxin B. There are others which cause security experts concern as emergent threats to security through bio terrorism. These are Severe Acute Respiratory Syndrome (SARS), monkeypox and pandemic influenza. These are naturally occurring diseases,25 which are of concern because they are new and/or epidemic.26 Outbreaks of dangerous pathogens may occur naturally or as covert or overt events. An outbreak is suspected only upon recognition of unusual disease clusters or symptoms.27 For example, SARS was recognized as a naturally occurring event initially from Southeast Asia in February 2003.

8.3

Bioterrorism

A bioterrorism attack is the deliberate release of viruses, bacteria, or other germs (agents) used to cause illness or death in people, animals, or plants. These agents are typically found in nature, but it is possible that they could be changed to increase their ability to cause disease, make them resistant to current medicines, or to 25

It is widely recognized that SARS is not a disease but a syndrome. See generally, Abeyratne (2002), pp. 53â&#x20AC;&#x201C;80. 26 Rapid response to a dangerous pathogen event requires prompt identification of its onset. Because of the rapid progression to illness and potential for dissemination of some of these agents, it may not be practical to await diagnostic laboratory confirmation. Instead, it is necessary to initiate a response based on the recognition of high-risk syndromes, i.e., typical combination of clinical features of the illness at presentation that might alert healthcare practitioners to the possibility of an outbreak. Examples of syndromes potentially resulting from infections with dangerous pathogens include: encephalitis/meningitis, hemorrhagic mediastinitis, severe pneumonia, papulopustular rash, hemorrhagic fever, descending paralysis and nausea/vomiting/diarrhoea. 27 An outbreak is usually identified consequent to a rapidly increasing disease incidence (e.g., within hours or days) in a normally healthy population, such as unexplained death with fever in a non-trauma patient, or a botulism-like syndrome, meningitis or encephalitis in more than one patient.

8.3 Bioterrorism

183

increase their ability to be spread into the environment. Biological agents can be spread through the air, through water, or in food. Terrorists may use biological agents because they can be extremely difficult to detect and do not cause illness for several hours to several days. While some bioterrorism agents, such as the smallpox virus, can be spread from person to person some agents such as anthrax are incapable of doing so. There have been several noteworthy instances of bioterrorism in the past28 as early as 1915,29 which send an ominous message that it is a distinct possibility in the aviation context. Until recently in the United States of America, most biological defense strategies have been geared to protecting soldiers on the battlefield rather than looking after ordinary people in cities. In 1999, the University of Pittsburgh’s Center for Biomedical Informatics deployed the first automated bioterrorism detection system, called RODS (Real-Time Outbreak Disease Surveillance). RODS is designed to draw collect data from many data sources and use them to perform signal detection, that is, to detect a possible bioterrorism event at the earliest possible moment. RODS, and other similar systems, collect data from sources including clinical data, laboratory data, and data from over-the-counter drug sales. In 2000, Michael Wagner, the co director of the RODS laboratory, and Ron Aryel, a subcontractor, conceived of the idea of obtaining live data feeds from “non-traditional” (non-health-care) data sources. The RODS laboratory’s first efforts eventually led to the establishment of the National Retail Data Monitor, a system which collects data from 20,000 retail locations nation-wide. On February 5, 2002, President Bush visited the RODS laboratory and used it as a model for a $300 million spending proposal to equip all 50 states with bio surveillance systems. In a speech delivered at the nearby Masonic temple, Bush compared the RODS system to a modern “DEW” line (referring to the Cold War ballistic missile early warning system). The principles and practices of bio surveillance, a new interdisciplinary science, were defined and described in a handbook published in 2006.30 Data which

In 1984 followers of the Bhagwan Shree Rajneesh attempted to control a local election by incapacitating the local population by infecting salad bars in 11 restaurants, doorknobs, produce in grocery stores and other public domains with Salmonella typhimurium in the city of The Dalles, Oregon. The attack caused about 751 people to get sick (there were no fatalities). This incident was the first known bioterrorist attack in the United States in the twentieth century. In September and October of 2001, several cases of anthrax broke out in the United States which were reportedly caused deliberately. This was a well-publicized act of bioterrorism. It motivated efforts to define biodefense and biosecurity. 29 In 1915 and 1916, Dr. Anton Dilger, a German–American physician used cultures of anthrax and glanders with the intention of committing biological sabotage on behalf of the German government. Other German agents are known to have undertaken similar sabotage efforts during World War I in Norway, Spain, Romania and Argentina. 30 Handbook of Bio surveillance, Michael Wagner, Andrew Moore and Ron Aryel, ed. Elsevier: New York, 2006. Bio surveillance is the science of real-time disease outbreak detection. Its principles apply to both natural and man-made epidemics (bioterrorism). It is worthy of note that in addition to activity in this field in the United States, there is also work being done in Europe,

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potentially could assist in early detection of a bioterrorism event include many categories of information. Health-related data such as those collected from hospital computer systems, clinical laboratories, electronic health record systems, medical examiner record-keeping systems, 911 call center computers, and veterinary medical record systems could be of help in the fight against bioterrorism. Researchers are also considering the utility of data generated by ranching and feedlot operations, food processors, drinking water systems, school attendance recording, and physiologic monitors, among others. Intuitively, one would expect systems which collect more than one type of data to be more useful than systems which collect only one type of information (such as single-purpose laboratory or 911 call-center based systems), and be less prone to false alarms. This indeed appears to be the case. The inherently uncontrollable nature of a dangerous pathogen makes bioterrorism unattractive as a warfare strategy. However, the potential power of genetic engineering cannot be marginalized or underestimated and the compelling need for continuing vigilance cannot be ignored.

8.4

Legal and Regulatory Issues

At its 33rd session held in Montreal from 25 Septemberâ&#x20AC;&#x201C;5 October 2001, the ICAO Assembly adopted Resolution A33-131 which was a direct response to the terrorist acts of 9/11. The Resolution recognized that a new type of threat was posed to civil aviation which required new concerted efforts and policies of cooperation on the part of States. The Resolution also urges all ICAO member States to ensure, in accordance with Article 4 of the Chicago Convention, that civil aviation is not used for any purpose inconsistent with the aims of the Convention, and to hold accountable and punish severely those who misuse civil aircraft as weapons of destruction, including those responsible for planning and organizing such acts or for aiding, supporting or harbouring perpetrators. It also called upon States to cooperate with each other in this endeavour and to ensure that ICAO Standards and Recommended Practices (SARPs) relating to aviation security are adhered to. Finally the Resolution directed the Council of ICAO and the Secretary General to act urgently to address new and emerging threats to civil aviation, in particular to review the adequacy of existing aviation conventions on security. In response to the requirement of A33-1, that ICAO act with some urgency to address new and emerging threats to civil aviation, an ICAO Special Sub Committee meeting of the Legal Committee on the subject of preparation of one or more where disease surveillance is beginning to be organized on a continent-wide scale needed to track a biological emergencies. The system not only monitors infected persons, but also attempts to discern the origin of the outbreak. 31 Resolution A33-1, Declaration on misuse of civil aircraft as weapons of destruction and other terrorist acts involving civil aviation, Assembly Resolutions in Force (as of 8 October 2004) ICAO Doc. 9848. at VII-1.

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185

instruments addressing new and emerging threats was held at ICAO Headquarters from 3 to 6 July 2007.32 At this meeting, Australia submitted a proposal33 to prohibit the intentional and unlawful transport by air of particularly dangerous goods and fugitives. In this paper, Australia quoted the Preamble34 to the Chicago Convention and emphasized that ICAO was created to help ensure the safe and orderly growth of civil aviation and to encourage the operation of civil aircraft for peaceful purposes. It was also the view of Australia that there were gaps in the international legal framework with regard to the unlawful transport of biological, chemical and legal weapons and other dangerous material on board civil aircraft and that the international aviation community had a responsibility to address these lacunae and shortcomings, particularly when an opportunity such as the one presented through the ICAO meeting arose. The Sub Committee meeting had the opportunity, through the Australian paper, to note other international legislation on the transportation of dangerous materials. For example, the 2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation which underscores the extreme danger of use by unlawful activity of maritime transport of nuclear, chemical or biological weapons.35 Additionally, there are other guidance material, such as those issued by the World Health Organization36which provide practical guidance to facilitate compliance with current international regulations for the transport of infectious substances37 and patient specimens by all modes of transport, both nationally and internationally, and include the changes that apply from 1 January

One of the terms of reference of the Sub Committee as agreed by the ICAO Council was: to prepare, in light of A33-1 and the guidance of the Council, one or more draft instruments addressing the new and emerging threats to civil aviation. See Special Sub Committee on the Preparation of One or More Instruments Addressing New and Emerging Threats, Introductory Note, LC/SC-NET-WP/1, 29/05/07 at p. 2. 33 Proposal to Prohibit the International and Unlawful Transport by Air of Particularly Dangerous Goods and Fugitives, LC/SC-NET-WP/3, 5/07/07. 34 The Preamble to the Chicago Convention recognizes that 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, and yet its abuse can become a threat to the general security. It also states that it is desirable to avoid friction and to promote co-operation between nations and peoples upon which the peace of the world depends. In pursuance of these objectives, governments signed the Convention that contains 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. 35 Supra, note 30 in this chapter at p. 1â&#x20AC;&#x201C;2. 36 Guidance on Regulation for the Transport of Infectious Substances, World Health Organization, September 2005, WHO/CDS/CSR/LYO/2005.22. 37 For the purposes of transport, infectious substances are defined as substances which are known or are reasonably expected to contain pathogens. Pathogens are defined as microorganisms (including bacteria, viruses, rickettsiae, parasites, fungi) and other agents such as prions, which can cause disease in humans or animals. The definition is applied to all specimens except those explicitly excluded in the WHO Guidance Material.

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2005.38 The WHO regulations categorically state that The Technical Instructions for the Safe Transport of Dangerous Goods by are the legally binding international regulations.39 IATA Dangerous Goods Regulations (DGR) that incorporate the ICAO provisions and may add further restrictions (where necessary such restrictions are included in these guidelines). The ICAO rules apply on all international flights. For national flights, i.e. flights within one country, national civil aviation authorities apply national legislation. This is normally based on the ICAO provisions, but may incorporate variations. State and operator variations are published in the ICAO Technical Instructions and in the IATA Dangerous Goods Regulations. The WHO guidelines also contain detailed packing instructions regarding infectious substances.40 With regard to legal issues, there appear to be some options available to ICAO and its member States to seek a way forward in tightening security with regard to the carriage by air of infectious substances. One legal option would be to include a Standard in Annex 17 on Aviation Security. pertaining to the spread of communicable diseases through acts of unlawful interference with civil aviation. Such a provision could require that States take all necessary measures both already established at international law and adopted as national measures within States to ensure that there is no room for the possibility of unlawful carriage of infectious pathogens within and out of their territories. A cross reference and Standard could also be made covering the safety aspects of the threat of bioterrorism. The terrorist attacks in the USA on 11 September 2001 and, more specifically, the subsequent “anthrax” scare, brought to the world’s attention the threat of deliberate attacks through the use of biological, chemical or nuclear agents. In the event of a bio-terrorist attack the public health response is critical in identifying the nature of the attack and the appropriate response. Therefore a concomitant Standard would have to be introduced in Annex 9 (Facilitation) that would supplement the security Standard by requiring States to ensure that civil protection measures are in place to deal with 38

The international regulations for the transport of infectious substances by any mode of transport are based upon the Recommendations made by the Committee of Experts on the Transport of Dangerous Goods (UNCETDG), a committee of the United Nations Economic and Social Council. The Recommendations are presented in the form of Model Regulations. The United Nations Model Regulations are reflected in international law through international modal agreements. 39 Supra, note 36 in this chapter at p. 2. 40 The system of packaging is recommended for use all infectious substances. It consists of three layers as follows: Primary receptacle—which is a primary watertight, leak-proof receptacle containing the specimen. The receptacle is packaged with enough absorbent material to absorb all fluid in case of breakage. Secondary packaging—which is a second durable, watertight, leakproof packaging to enclose and protect the primary receptacle(s). Several cushioned primary receptacles may be placed in one secondary packaging, but sufficient additional absorbent material shall be used to absorb all fluid in case of breakage. Outer packaging—which are secondary packagings placed in outer shipping packagings with suitable cushioning material. Outer packagings protect their contents from outside influences, such as physical damage, while in transit. The smallest overall external dimension shall be 10 10 cm. Each completed package is normally required to be marked, labelled and accompanied with appropriate shipping documents (as applicable). Supra, note 19 in Chap. 1 at p. 6.

8.5 ICAO Regulations

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these needs. There must essentially be co-ordination of public health emergency planning and preparedness and the availability of appropriate treatment. In terms of legal practicality, it is questionable whether the mere introduction of a Standard in the two Annexes would cover all tracks and ensure legal protection to humankind against an offence committed on board an aircraft with the use of an infectious substance. Owing to the unknown dimensions, reach or consequences of the release of such infectious agents, it is doubtful whether an offender would use such an agent as anything more than a threat in terms of taking control of an aircraft or committing an offence on board. However, the possibility of a terrorist using such a weapon to destroy a community of persons such along the lines of the events of 9/11 cannot be ruled out. Therefore, as an adjunct to the two new Annex provisions, consideration could be given to recognize the unlawful carriage and/or use of infectious pathogens as a reckonable offence under international convention. This could be considered under a possible Protocol to an existing Convention on unlawful interference with civil aviation.

8.5

ICAO Regulations

The ICAO Assembly, at its 18th Session held in Vienna on 15 Juneâ&#x20AC;&#x201C;7 July 1971 adopted Resolution A18-1041 whereby the Assembly requested the ICAO Council to ensure, with respect to the technical aspects of air transportation security, that the subject of air transportation security continues to be given adequate attention by the Secretary General, with a priority commensurate with the current threat to the security of air transportation. This Resolution exemplifies the continuing threat to aviation posed by potential security lapses which has permeated the air transport industry for several decades. New and emerging threats to aviation security are therefore not relegated to the post 9/11 era alone. The request made by the Assembly at its 18th Session was reiterated at its 35th Session, held in Montreal on 28 September to 8 October 2004, where, by Resolution A35-942 the Assembly, urged the Council to continue to attach the highest priority to the adoption of effective measures for the prevention of acts of unlawful interference commensurate with the current threat to the security of international civil aviation and keep up to date the provisions of Annex 17 to the Chicago Convention. In this regard Annex 17 contains extracts from Annex 18 (The Safe Transport of Dangerous Goods by Air) which require each Contracting State to take necessary measures to achieve compliance with the detailed provisions contained in the Technical Instructions for the Safe Transport of Dangerous Goods by Air 41

A18-10, Additional Technical Measures for the Protection of the Security of International Air Transport. 42 A35-9â&#x20AC;&#x201D;Consolidated statement of continuing ICAO policies related to the safeguarding of international civil aviation against acts of unlawful interference, ICAO Doc 9848 cited supra, note 13 in Chap. 1 at p. VII-5.

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(Doc 9284), which are approved and issued periodically in accordance with procedure established by the ICAO Council. The requirement also covers compliance with any amendment to the Technical Instructions.43 Annex 17 to the Chicago Convention also contains some general provisions that may apply to the illegal carriage by air of infectious pathogens. Standard 5.1.2 devolves responsibility upon Contracting States to ensure that, when reliable information exists that an aircraft may be subject to an act of unlawful interference, that the aircraft is searched for illegal weapons, explosives and other dangerous devices. The main preventive objective contained in Standard 4.1 which ensures that States establish measures to prevent weapons, explosives or any other dangerous devices articles or substances which may be used to commit an act of unlawful interference and which are not authorized, from being carried on board. Annex 18—on the safe transport of dangerous goods by air—applies to all international operations of civil aircraft and forbids, in Standard 4.1, the transport of dangerous goods by air except as established in the Annex and detailed specifications and procedures provided in the Technical Instructions. he Annex was developed by the Air Navigation Commission of the Organization in response to a need expressed by States for an internationally agreed set of provisions governing the safe transport of dangerous goods by air. The Annex draws the attention of the States to the need to adhere to Technical Instructions for the Safe Transport of Dangerous Goods by Air44 developed by ICAO, according to which packaging used for the transportation of dangerous goods by air shall be of good quality and shall be constructed and securely closed so as to prevent leakage45 and labelled with the appropriate labels.46 Annex 18 clearly identifies in Chapter 8 requirements that the carrier has to comply with when accepting dangerous goods for transport. According to these requirements the operator has to ensure that dangerous goods are accompanied by a completed dangerous goods transport document, except when the Technical Instructions indicate that such a document is not required.47 The carrier is also required not to accept dangerous goods until the package, overpack or freight container containing the dangerous goods has been inspected in accordance with acceptance procedures contained in the Technical Instructions.48

See Attachment to Annex 17 to the Chicago Convention, at ATT-11, which reproduces Standard 2.2.1 and Recommendation 2.2.2 of Annex 18. Recommendation 2.2.2 provides that each Contracting State should inform ICAO of difficulties encountered in the application of the Technical Instructions and of any amendments which it would be desirable to make to them. 44. Technical Instructions for the Safe Transport of Dangerous Goods by Air, Doc 9284 AN/905 2007–2008 Edition (hereafter referred to as the Instructions). The Technical Instructions are quite specific and comprehensive. For a detailed discussion of the Instructions see Warner and Rooney (1997), pp. 23–24 and 29 at 23. 45 Annex 18 to the Convention on International Civil Aviation (The Safe Transport of Dangerous Goods by Air), Second Edition—July 1989, Standard 5.2.1. 46 Id. Standard 6.1. 47 Id. Standard 8.1.a). 48 Id. standard 8.1.b).

8.5 ICAO Regulations

189

More specifically, the Annex has specific provisions concerning acceptance of radioactive materials, according to which there is a requirement presumably to be complied with by both the customs authorities and the carrier that packages and overpacks containing dangerous goods and freight containers containing radioactive materials shall not be loaded into a unit load device or an aircraft for carriage before they have been inspected for evidence of leakage or damage49 It goes on to say that a unit load device shall not be loaded aboard an aircraft unless the device has been inspected and found free from any evidence of leakage from, or damage to, any dangerous goods contained therein.50 The Instructions are a critical contribution of ICAO to the subject of dangerous goods and safety in air transport. The provisions contained therein prescribe the detailed requirements applicable to the international civil transport of dangerous goods by air51 The overarching principle of the Instructions is that any substance which, as presented for transport, is liable to explode, dangerously react, produce a flame or dangerous emission of heat or toxic, corrosive or flammable gases or vapours under conditions normally encountered in transport must not be carried in aircraft under any circumstances.52 Infectious substances, which come under Division 6.2 of the Instructions, are defined as substances which are known to contain, or are reasonably expected to contain pathogens.53 Biological products are considered to be those products derived from living organisms which are manufactured and distributed in accordance with the requirements of the appropriate national authorities, which may have special licensing requirements, and are used either for prevention, treatment or diagnosis of disease in humans or animals, or for developmental or experimental or investigative purposes related thereto. They include, but are not limited to finished and unfinished products such as vaccines.54 General packing instructions relating to infectious substances are contained in Part 4 of Chapter 1 of the Instructions as well as in the Supplement to the Instructions55 which, in Chapter 8 provide detailed instructions. The Instructions, which are considered the regulatory baseline for the carriage of dangerous goods, contain comprehensive and clear requirements; which, inter alia provide a structured classification of dangerous goods and list them systematically. The list identifies those goods which are: (a) forbidden under any circumstances; (b) forbidden on both passenger and cargo aircraft in normal circumstances but could be carried in exceptional circumstances subject to exemption by the States

Id. Standard 8.4.1. Id. Standard 8.4.2. 51 Id. 1.1.1. at p. 1-1-1. 52 Id. 2.1 at p. 1-2-1. This excludes items such as aerosols, alcoholic beverages, perfumes, colognes safety matches and liquefied gas lighters carried on board by the operator for use or sale. 53 Id. 6.3.1.1. at p. 2-6-5. 54 Id. 6.3.1.2. at p. 2-6-5. 55 Doc 9824, AN/905 SUPPLEMENT, 2007â&#x20AC;&#x201C;2008 Edition. 50

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concerned; (c) forbidden on passenger aircraft but permitted on cargo aircraft in normal circumstances; and (d) permitted on both passenger and cargo aircraft in normal circumstances. The Instructions require that all dangerous goods be packaged according to specifications provided and, in general, restrict the quantity per package according to the degree of hazard and the type of aircraft (i.e. passenger or cargo) to be used. There is generally no restriction on the number of packages per aircraft. They also identify and set out the packing methods to be used and the packaging permitted, together with the specifications for those packaging and the stringent testing process they must successfully complete before they are able to be used. Requirements for the markings and labels for packages and the documentation for consignments are also set out. There is a requirement in the Instructions that every package of dangerous goods must be inspected externally by the operator before carriage in order to ensure it is in a fit state and appears to comply with all the relevant requirements. Packages are subject to loading restrictions including segregation of those containing incompatible dangerous goods and proper securement to prevent movement in flight. There is a further requirement that the captain of an aircraft must be informed of the nature of the dangerous goods that are on board and where they are located since in the event of an emergency on board (not necessarily involving dangerous goods) he/she, if the situation permits, must inform the appropriate air traffic services unit as to what is on the aircraft so as to assist the emergency services in their response. This provision allows the captain to exercise discretion in regard to conveying the information about dangerous goods since he/she must judge the risks involved in diverting his/her attention (or the co-pilotâ&#x20AC;&#x2122;s attention) away from controlling the aircraft in emergency situations. Operators are deemed aware of the nature and quantity of the dangerous goods that have been loaded on their aircraft; and in the event of an accident the Instructions require that they must, as soon as possible, inform the State in which the accident occurred of what was on board and where it was located. However, it is understood that, depending on the circumstances and place of an accident, this information may not be readily available. The Instructions also require that operators must report to the relevant authority accidents and incidents involving dangerous goods. For their part, States are required to have procedures in place to investigate such occurrences. The Instructions also contain training requirements which apply to everyone involved in consigning, handling and carrying dangerous goods, cargo and passenger baggage. These include the need for refresher training at 2-year intervals and the keeping of training records. There are specific responsibilities for shippers and operators. Shippers must ensure that staff preparing consignments of dangerous goods receive training or that another organization with trained staff is used. Operators must ensure their own staff and those of their handling agents are trained. Training programmes for operators are subject to approval by the State of the operator. Under the ICAO regime, there are also preventive and reactive provisions that States authorities have to follow. Measures to be taken are clearly defined and

8.6 IATA Regulations

191

prescribed in order to contain the spread of infectious disease. The pre-eminent legal provision which governs this issue is contained in the Chicago Convention56; Article 14 of which states: Each contracting State agrees to take effective measures to prevent the spread by means of air navigation of cholera, typhus (epidemic), smallpox, yellow fever, plague, and such other communicable diseases as the contracting States shall from time to time decide to designate, and to that end contracting States will keep in close consultation with the agencies concerned with international regulations relating to sanitary measures applicable to aircraft. Such consultation shall be without prejudice to the application of any existing international convention on this subject to which the contracting States may be parties.

This provision explicitly devolves primary responsibility on States to take effective measures to prevent airborne diseases in aircraft and implicitly requires States to issue guidelines for airlines, by liaising with the international agencies concerned. At the 12th Session of the ICAO Facilitation Division (Cairo, 22 Marchâ&#x20AC;&#x201C;1 April 2004), Contracting States invited ICAO to play the lead role in formulating regulatory policy with regard to curbing the spread of contagious diseases in airports and aircraft. There was general support by the Division that ICAO should also take the lead in developing guidance material in close cooperation with relevant bodies such as Airports Council International (ACI), The International Air Transport Association (IATA) and WHO.57 Work on the continuity of air operations concentrated on an ICAO contingency plan in preparation for a potential avian influenza pandemic, in cooperation with the World Health Organization and industry partners is already under way. The ultimate goal is the development of a globally harmonized pandemic disease risk management programme.

8.6

IATA Regulations

In consultation with ICAO, IATA publishes annually its Dangerous Goods Regulations58 which provide procedures for the shipper and the air carrier under which dangerous goods can be carried by air. The IATA Regulations define dangerous 56

Supra, note 1 in Chap. 1. FAL/12-WP/118 (22/4/04), Report of the Twelfth Session of the Facilitation Division, Cairo, Egypt, 22 March-1 April 2004 Paragraphs 6.1.6 and 6.1.7. It must also be noted that WHO has adopted various provisions with regard to quarantine measures. These measures have a long history, having been introduced during the tenth Century. WHO adopted International Health Regulations in 1951. The purpose of International Health Regulations is to prevent international spread of disease, and in the context of international travel, to do so with the minimum of inconvenience to the passenger. This requires international collaboration in the detection, reduction or elimination of the sources from which infection spreads rather than attempts to prevent the introduction of disease by legalistic barriers that over the years have proved to be ineffective. For an in-depth study of the spread of infectious diseases by air see generally, Abeyratne (2002), pp. 53â&#x20AC;&#x201C;80. 58 Dangerous Goods Regulations Effective 1 January to 31 December 2007 (produced in consultation with ICAO) 48th Edition. 57

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goods as articles or substances which are capable of posing a risk to health, safety, property or the environment and which are shown in the list of dangerous goods in the IATA Regulations.59 The genesis of the IATA Regulations are the United Nations Model Regulations60 and the IATA Regulations are applicable to all airlines which are members or associate members of IATA; those who are party to the IATA Multilateral Interline Traffic Agreementâ&#x20AC;&#x201D;Cargo and all shippers and agents that offer consignments of dangerous gods to IATA member and associate member carriers and others to which the IATA Regulations apply. The IATA Regulations have stringent security provisions which link to Annex 17 to the Chicago Convention and the ICAO Security Manual for Safeguarding Civil Aviation against Acts of Unlawful Interference.61 Regulation 1.6.2 makes provision for security training, including security awareness training and recognition of security risks, methods to address and reduce such risks and action to be taken in the event of a security breach. Infectious substances are classified in Section 3 of the IATA Regulations under Class 6 (Division 6.2) and The IATA Regulations call for additional hazards posed by these substances to be identified.62 Infectious substances are classified in categories A and B.63 Category A lists infectious substances which are transported in a form that, when exposure to it occurs is capable of causing permanent disability,64 life threatening or fatal disease in otherwise healthy humans or animals. The IATA Regulations carry indicative examples of these substances in Table 3.6.D.65 In Category B are substances which are infectious but do not meet the criteria for inclusion in Category A. Exceptions to Category B are those which do not contain infectious substances or substances which are unlikely to cause disease in humans or animals. Packing instructions for Class 6 (Toxic and Infectious Substances) call for inner packagings comprised of a watertight primary receptacle; a watertight secondary package and absorbent cotton wool (for non solid infectious substances) sufficient to absorb leakage between the primary and secondary packaging; an itemized list of substances; and a rigid outer package of adequate strength and capacity, weight and intended use. The smallest external dimension must not be less than 4 inches.66 The IATA Regulations also specify numerous specific and additional requirements.67

59 Id. paragraph 1.0 (Definitions of Dangerous Goods). Regulation 3.0.1.1. also defines dangerous goods as those gods which meet the criteria of one or more of nine UN packing groups according to the provisions of Section 3 of the Regulations. 60 See paragraph 1.1. (Basis of these Regulations). 61 ICAO Doc 8973 (Restricted). 62 Id. 3.10.5 (Infectious Substances). 63 Id. 3.6.2.2. 64 Id. 3.6.2.2.1. 65 Id. p. 105. 66 Id. 5.6 (Packaging Instructions Class 6) Packaging Instructions 602 at p. 433â&#x20AC;&#x201C;434. 67 Id. p. 434.

8.7 Some Other Regulations

8.7

193

Some Other Regulations

In both a regional and national context, it would appear that States and groups of States have recognized the centrifugal significance of the international regulations contained in the ICAO and IATA Regulations as having primacy. Consistent with this philosophy, the United States Department of Transportation (DoT) published its Final Rule for harmonization of infectious substances shipping rules with international regulation which became effective on 1 October 2006. Under this harmonization the Categories A and B defining infectious substances are similar to those identified in the listings in both the ICAO and IATA Regulations. In Category A, the Packing, marking and labelling is required to be as per IATA Packing Instruction 602 and UN Instruction 2900. As for specifications on packaging, marking and labelling in Category B, they are brought in harmony with IATA Packaging Instruction 650 and UN instruction 3373.68 Interest in the transport of dangerous in the European Union was sparked by a debate in the European Parliament in 1984.69 The outcome of the debate is well reflected in the view of the European Commission which followed, that while accidents involving vehicles carrying dangerous gods can have potentially disastrous consequences, it would be counterproductive to duplicate the vastly complex work already being carried out by international organizations.70 A Study, released in April 2005 suggested that there should be better coordination within the European Commission concerning dangerous goods regulations. This Study makes mention of ICAO and IATA Dangerous Goods Regulations and implicitly recognizes their primacy and applicability in the EU context.71 This notwithstanding, The European Commission has, since 11 September 2001, launched a comprehensive anti bio-terrorism programme. the Commission has promoted discussions on preparedness for bioterrorist threats. Health ministers have met several times to discuss EU-wide co-ordination of efforts. Each Member State has appointed a senior representative to discuss these measures. The EU already has a communicable disease network, including a rapid alert system for any outbreak of infectious diseases. Canada recognizes that the transportation of infectious substances internationally is regulated by ICAO and that as the majority of carriers, both in respect to passengers and cargo, are linked by nationality to States which are members of ICAO, anyone shipping infectious substances by air internationally are subject to the ICAO Regulations.72 The Human Pathogens Importation Regulations 68

Http://hazmat.dot.gov/regs/rules/final/71fr/docs/71fr-32243.pdf. See Evaluation of EU Policy on the Transport of Dangerous Goods since 1994, TREN/E3/432003, Final Report, Section 1 Policy Overview (30 April 2005), at p. 12. 70 Ibid. 71 Id. p. 77. 72 Public Health Agency of Canada, Laboratory Bio-safety Guidelines, Chapter 10, Regulatory Aspects for Handling Infectious Substances, Paragraph 10.3. 69

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(SOR/94-558) (HPIR) are the regulatory authority for facilities wishing to import human pathogens into and transfer specimens within Canada. These regulations were developed to ensure that facilities have appropriate containment for the pathogens they wish to handle. Any facility wishing to import a human pathogen requiring containment levels 2, 3 or 4 must have a valid Health Canada permit before importation. Pathogens requiring containment level 1 facilities are not regulated by the HPIR, and therefore a permit is not required for their importation. Whatever be the ultimate recommendation of the Legal Committee of ICAO on this subject, there are a few incontrovertible truths that drive the issue of the illegal carriage of infectious pathogens by air. The first is that, as recognized by WHO and demonstrated by IATA (which publishes its highly effective and widely accepted Regulations in consultation with ICAO), the lead role in legislative and regulatory control of the issue lies well within ICAO. The second is that, one has to go back to the basics of the rule book and start with the Preamble to the Chicago Convention. The Preamble unequivocally links the future development of aviation to “general security” which essentially means that aviation should not only be concerned with persons and property directly involved with air transport but also with the rest of the world that might be adversely affected by the release of infectious pathogens through aviation. The third home truth is that it is a pre-eminent responsibility of States to ensure security at laboratories in their territories as the illegal carriage of infectious substances by air is liked to the initial leakage from a laboratory. Therefore it is extremely important for States to strictly enforce their dangerous goods legislation. It is also important to treat this subject holistically in terms of the world at large and not restrictively by singling out only those involved in the flight concerned. Finally, States have to adopt a security culture that admits of an overall approach to the threat as a potential harm to the health of humanity. This should inevitably include strict adherence by States to the provisions of Annexes 17 and 18 and inclusion of new Standards in the Annexes as necessary, together with an abiding understanding that the illegal carriage of infectious pathogens by air portends a threat both to safety and security of aviation.

References Ruwantissa I.R. Abeyratne International Responsibility in Preventing the Spread of Communicable Diseases through Air Carriage - The SARS Crisis. Transportation Law Journal, Vol.30, No.1; Fall 2002: p. 53–80 John Dudley Miller, Getting Isotopes a challenge, News from the Scientist 2004 at 5(1) Kaye Warner and Katherine Rooney, ICAO Technical Instructions Provide a Complete System for he Transport of Dangerous Goods by Air, ICAO Journal, March 1997, Vol. 52 No. 2, pp. 23–24 and 29 at 23

Chapter 9

Aviation and Environmental Protection

From an air navigation perspective, Annex 16 (Volumes I and II) deals with the protection of the environment from the effect of aircraft noise and aircraft engine emissionsâ&#x20AC;&#x201D;two topics hardly thought about when the Chicago Convention was signed. Aircraft noise was already of concern during the formative years of ICAO, but it was then limited to the noise caused by propellers whose tips rotated at speeds approaching that of sound. This concern increased with the introduction of the first generation jet aeroplanes in the early 1960s and accelerated with the growth in the number of jet aircraft in international operations. Aircraft noise is a function, among other things, of the power of the engines that propel aeroplanes through the atmosphere. Reduce the power and you reduce noise, but at the same time you may affect the safety characteristics of the jet aircraft. In 1968, the ICAO Assembly adopted a resolution which conceded the seriousness of noise in the vicinity of airports, and instructed the ICAO Council to establish international specifications and associated guidance material to control aircraft noise. In 1971, the Assembly adopted another resolution recognizing the adverse environmental impact that may be related to aircraft activity. This resolution placed on ICAO the responsibility to guide the development of international civil aviation in such a manner as to benefit the people of the world and to achieve maximum compatibility between the safe and orderly development of civil aviation and the quality of the human environment. Annex 16 dealing with various aspects of aircraft noise problems was adopted in 1971 on the basis of recommendations of the 1969 Special Meeting on Aircraft Noise in the Vicinity of Aerodromes. These aspects included: procedures for describing and measuring aircraft noise; human tolerance to aircraft noise; aircraft noise certification; criteria for establishment of aircraft noise abatement procedures; land use control; and ground run-up noise abatement procedures. Shortly after this meeting, the Committee on Aircraft Noise (CAN) was established to assist ICAO in the development of noise certification requirements for different classes of aircraft. The first meeting of this committee developed the first amendment to Annex 16, which became applicable in 1973 and included noise certification of future production and derived versions of subsonic jet aeroplanes. During subsequent meetings, the Committee on Aircraft Noise developed noise certification standards for future subsonic jet aeroplanes and propeller-driven aeroplanes, and for future production R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_9, # Springer-Verlag Berlin Heidelberg 2012

195

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9 Aviation and Environmental Protection

of existing supersonic transport aeroplane types and helicopters. It also developed guidelines for noise certification of future supersonic and propeller driven STOL (short take-off and landing) aeroplanes as well as installed APUs (auxiliary powerunits) and associated aircraft systems when operating on the ground. A resolution adopted by the ICAO Assembly in 1971 led to specific action on the question of engine emissions and detailed proposals for ICAO Standards for the control of engine emissions from certain types of aircraft engines. The Committee on Aircraft Engine Emissions (CAEE) was subsequently established with a view to develop specific Standards for aircraft engine emissions. These Standards, adopted in 1981, set limits for the emission of smoke and certain gaseous pollutants for large turbo-jet and turbofan engines to be produced in the future; they also prohibit the venting of raw fuels. The scope of the existing Annex 16 was widened to include engine emission provisions and the document was retitled Environmental Protection. Volume I of the reorganized Annex 16 contains provisions related to aircraft noise while Volume II contains provisions related to aircraft engine emissions.

9.1

Aircraft Noise

Standards and Recommended Practices for aircraft noise were first adopted by ICAO on 2 April 1971 and designated as Annex 16 to the Convention. The development of the Annex originated in September 1968 at the 16th Session of the ICAO Assembly which adopted Resolution A 16-3 which recognized that the problem of aircraft noise was so serious in the vicinity of many of the worldâ&#x20AC;&#x2122;s airports that public reaction was mounting to a degree that gave cause for great concern and required urgent solution. The Assembly also noted that noise concerned the public and civil aviation and was becoming a matter for concern with the increase in air traffic and that the introduction of future aircraft types could increase and aggravate the problem further unless action was taken to alleviate the problem. Accordingly, the Assembly resolved to instruct the ICAO Council to call an international conference within the machinery of ICAO as soon as possible; establish international specifications and associated guidance material relating to aircraft noise; and, to include, in the appropriate Annexes and other relevant ICAO documents and possibly in a separate Annex on noise, such material as the description and methods of measurement of aircraft noise and suitable limitations on the noise caused by aircraft that was of concern to communities in the vicinity of airports. In response to the Assembly Resolution, a Special Meeting on Aircraft Noise in the Vicinity of Aerodromes was convened in Montreal in Novemberâ&#x20AC;&#x201C;December 1969 to examine the following aspects related to the problems of aircraft noise: (a) Procedures for describing and measuring aircraft noise; (b) Human tolerance to aircraft noise; (c) Aircraft noise certification;

9.2 Aircraft Engine Emissions

197

(d) Criteria for establishment of aircraft noise abatement operating procedures; (e) Land use control; and, (f) Ground run-up noise abatement procedures. Based on the recommendations of the Special Meeting on Aircraft Noise in the Vicinity of Aerodromes, draft International Standards and Recommended Practices for Aircraft Noise were developed, and, after amendment following the usual consultation with the Contracting States of the Organization, were adopted by the Council to form the text of Annex 16. With the development of Standards and Recommended Practices dealing with the control of aircraft engine emissions, it was felt that all provisions relating to environmental aspects of aviation should be included in a single document. Accordingly, Annex 16 was retitled as “Environmental Protection”. Volume I of the Annex contains the existing provisions relating to aircraft noise and Volume 11 contains the provisions related to aircraft engine emissions.1

9.2

Aircraft Engine Emissions

ICAO’s regulatory role in aircraft engine emissions is enshrined in Volume II of Annex 16 and is historically linked to the 1972 United Nations Conference on the Human Environment which was held in Stockholm. The position of ICAO at this Conference was developed in Assembly Resolution A18-11 which contained the following clause among others: in fulfilling this role ICAO is conscious of the adverse environmental impact that may be related to aircraft activity and its responsibility and that of its member States to achieve maximum compatibility between the safe and orderly development of civil aviation and the quality of the human environment;

The 18th Assembly also adopted Resolution A18-12 relating to the environment which states: THE ASSEMBLY: REQUESTS the Council, with the assistance and co-operation of other bodies of the Organization and other international organizations to continue with vigour the work related to the development of Standards, Recommended Practices and Procedures and/or guidance material dealing with the quality of the human environment;

This resolution was followed up by the establishment of an ICAO Action Programme Regarding the Environment. As part of this Action Programme a Study Group was established to assist the Secretariat in certain tasks related to aircraft engine emissions. As a result of the work of this Study Group, an ICAO 1

See Annex 16 to the Convention on International Civil Aviation, Second Ed. 1988 Vol 1 Foreword.

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Circular entitled Control of Aircraft Engine Emissions (Circular 134-AN/94) was published in 1977. This Circular contained guidance material in the form of a certification procedure for the control of vented fuel, smoke and certain gaseous emissions for new turbojet and turbofan engines intended for propulsion at subsonic speeds. It was agreed by the Council that the subject of aircraft engine emissions was not one that was solely confined to objective technical issues but was one that needed consideration by experts in many fields and included the direct views of Member States. A Council committee, known as the Committee on Aircraft Engine Emissions (CAEE) was therefore established in 1977 to pursue a number of aspects of the subject. At the second meeting of the Committee on Aircraft Engine Emissions, held in May 1980, proposals were made for material to be included in an ICAO Annex. After amendment following the usual consultation with Member States of the Organization, the proposed material was adopted by the Council to form the text of this document. The Council agreed that it was desirable to include all provisions relating to environmental aspects of aviation in one Annex. It therefore retained the title of Annex 16 as “Environmental Protection”, making the existing text of the Annex into “Volume I—Aircraft Noise”, and “Volume 2—Aircraft Engine Emissions”. Part I of Volume 2 of Annex 16 contains definitions and symbols and Part II contains Standards relating to vented fuel. Part III contains Standards relating to emissions certification applicable to the classes of aircraft engines specified in the individual chapters of the Part, where such engines are fitted to aircraft engaged in international civil aviation. The balancing of airport development and ecological considerations i.e. city planning, noise pollution avoidance, is also very much a part of ICAO’s regulatory role in issues related to the effects of international civil aviation on the environment. The ICAO Airport Planning Manual2 ensures a balance between airport development and ecological considerations and includes findings of ICAO on aviation and the environment. In its findings, ICAO records that studies of air quality at certain large airports and nearby areas reflect the fact that automobiles, airport ground vehicles and other urban pollution sources account for most of the atmospheric pollution3 and that airports may destroy the natural habitat and feeding grounds of wild life and may eradicate or deplete certain flora important to the ecological balance of the area.4 The Manual also considers the necessity to avoid contamination of rivers and streams by airport waste disposal and drainage systems,5 the avoidance of noise

See Airport Planning Manual Doc 9184—AN 902 Part 2, 13.2. Id. 2.1.3. 4 Id. 2.2.1. 5 Id. 2.4.1. 3

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caused by aircraft to human habitation6 and highway planning.7 Finally, the document calls for a detailed study of the impact of airport development on the environment in the form of an environmental impact statement.8

9.3

Other Regulatory Measures

The ICAO Assembly has, in addition, adopted several Resolutions concerning aviation and the environment. At its 22nd Assembly held in September/October 1977 the ICAO Assembly adopted Resolution A 22-12 which recognized inter alia the following: 1. Advancing technology has caused aviation to become a significant influence in the environment; 2. Many of the adverse environmental effects of civil aviation activity can be reduced by, the application of integrated measures embracing technological improvements, appropriate noise abatement operating procedures, proper organization of air traffic and the appropriate use of airport planning and land use control mechanisms; 3. Other international organizations are becoming involved in activities relating to noise abatement policies; 4. In fulfilling its role, ICAO strives to achieve a balance between the benefit of accruing to the world community through civil aviation and the harm caused to the human environment in certain areas through the progressive advancement of civil aviation; The Assembly therefore declared: 1. That ICAO is conscious of the adverse environmental impacts that may be related to aircraft activity and of its responsibility and that of its Contracting States to achieve maximum compatibility between the safe and orderly development of civil aviation and the quality of the human environment; 2. That the Council Should maintain its vigilance in the pursuit of aviation interests related to the human environment and also maintain the initiative in developing policy guidance on all aviation matters related to the human environment, and not leave such initiatives to other organizations; The Assembly also invited States to continue their active support for ICAOâ&#x20AC;&#x2122;s Action Programme Regarding the Environment on all appropriate occasions as their participation in civil aviationâ&#x20AC;&#x2122;s contribution to the United Nations Environment Programme (UNEP) and authorised the ICAO Council, if and when it deems this 6

Id. 2.5.2. Id. 4.3.1. 8 Id. 2.6.1. 7

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desirable, to enter into cooperative arrangements with the United Nations Environment Programme for the execution of environmental projects financed by the United Nations Environment Fund. The Assembly urged States to refrain from unilateral measures that would be harmful to the development of international civil aviation. At the same Session, the Assembly adopted Resolution a 22-13 on airports and the environment, observing inter alia: 1. The compatibility between the airport and its environment was one of the elements to be taken into account in long-term systems planning; 2. The problem of aircraft noise in the vicinity of many of the worldâ&#x20AC;&#x2122;s airports continued to arouse public concern and required appropriate action; 3. The introduction of future aircraft types could increase and aggravate this noise unless action was taken to alleviate the situation. The Assembly therefore requested the council to continue its work on establishing Standards and Recommended Practices relating to the alleviation of the problem and urged contracting States to adopt, where appropriate, the ICAO measures and procedures applicable. In the following Session (September/October 1980), the Assembly adopted Resolution A 23-10 on aircraft noise and engine emissions from subsonic aircraft and requested contracting States not to allow the operation of foreign registered subsonic jet planes that did not conform to ICAOâ&#x20AC;&#x2122;s specifications on noise certification standards as specified in Annex 16 until 1 January 1988.9 At the 28th Assembly Sessions held in October 1990, the ICAO Assembly observed that while certification standards for subsonic jet aircraft noise levels are specified in Volume 1, Chapter 2 and Chapter 3 of Annex 16 and that environmental problems due to aircraft noise continued to exist in the neighbourhood of many international airports, some States were consequently considering restrictions on the operations of aircraft which exceed the noise levels in Volume I, Chapter 3 of Annex 16. The Assembly also recognized that the noise standards in Annex 16 were not intended to introduce operating restrictions on aircraft and that operating restrictions on existing aircraft would increase the costs of airlines and would impose a heavy economic burden, particularly on those airlines which do not have the financial resources to re-equip their fleets. Therefore, considering that resolution of problems due to aircraft noise must be based on the mutual recognition of the difficulties encountered by States and a balance among their different concerns, the Assembly, by Resolution A 28-3, urged States not to introduce any new operating restrictions on aircraft which exceed the noise levels in Volume I, Chapter 3 of Annex 16 before considering:

See Assembly Resolutions in Force (as of 6 October 1989), ICAO Doc 9558 at II-18.

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(a) Whether the normal attrition of existing fleets of such aircraft will provide the necessary protection of noise climates around their airports; (b) Whether the necessary protection can be achieved by regulations preventing their operators from adding such aircraft to their fleets through either purchase, or lease/charter/interchange, or alternatively by incentives to accelerate fleet modernization; (c) Whether the necessary protection can be achieved through restrictions limited to airports and runways the use of which has been identified and declared by them as generating noise problems and limited to time periods when greater noise disturbance is caused; and, (d) The implications of any restrictions for other States concerned, consulting these States and giving them reasonable notice of intention. The Assembly further urged States: (a) To frame any restrictions so that Chapter 2 compliant aircraft of an individual operator which are presently operating to their territories may be withdrawn from these operations gradually over a period of not less than 7 years; (b) Not to begin the above phase-in period for any restrictions before 1 April 1995; (c) Not to restrict before the end of the phase-in period the operations of any aircraft less than 25 years after the date of issue of its first individual certificate of airworthiness; (d) Not to restrict before the end of the phase-in period the operations of any presently existing wide-body aircraft or of any fitted with high by-pass ratio engines; (e) To apply any restrictions consistently with the non-discrimination principle in Article 15 of the Chicago Convention so as to give foreign operators at least as favourable treatment as their own operators at the same airports; and, (f) To inform ICAO, as well as the other States concerned, of all restrictions imposed. The Assembly also strongly encouraged States to continue to cooperate bilaterally, regionally and inter-regionally with a view to: (a) Alleviating the noise burden on communities around airports without imposing severe economic hardship on aircraft operators; and (b) Taking into account the problems of operators of developing countries with regard to Chapter 2 aircraft presently on their register, where they cannot be replaced before the end of the phase-in period, provided that there is proof of a purchase order or leasing contract placed for a replacement Chapter 3 compliant aircraft and the first date of delivery of the aircraft has been accepted; The Assembly, while urging States, if and when any new noise certification standards are introduced which are more stringent than those in Volume I, Chapter 3 of Annex 16, not to impose any operating restrictions on Chapter 3 compliant aircraft, urged the Council to promote and States to develop an integrated approach to the problem of aircraft noise, including land-use planning procedures around

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international airports, so that any residential, industrial or other land-use that might be adversely affected by aircraft noise is minimal. The Assembly further urged States to assist aircraft operators in their efforts to accelerate fleet modernization and thereby prevent obstacles and permit all States to have access to lease or purchase aircraft compliant with Chapter 3, including the provision of multilateral technical assistance where appropriate. This Resolution superseded Resolution A23-10, which was discussed above. Resolution A 28-3 represents a cautious balance between the concerns of the aircraft manufacturers, the airline industry and developing States who do not wish to lose in the near future, the services of Chapter 2 aircraft which are already in use and service. Although aircraft manufactured prior to October 1977 that are included in Chapter 2 of Annex 16 and called “Chapter 2 aircraft” are required to be phased out, the compromise in Resolution A 28-3 allows States that have noise problems at airports to start phasing out operations by Chapter 2 aircraft from the year 1995 and to have all of them withdrawn by the year 2002, with some exceptions. The Resolution envisages that by the year 2002 only aircraft manufactured after October 1977 and described in Chapter 3 of Annex 16 (called “Chapter 3 aircraft”) would be in operation. Following this resolution, a number of developed States have already started to phase out Chapter 2 aircraft, while giving due recognition to the compromise reached in Resolution A28-3. In order to carry out its policies in environmental issues related to civil aviation, ICAO established the Committee on Environmental Protection (CAEP) in 1983.10 The CAEP is a technical committee reporting to the ICAO Council and consisting of 14 members nominated by their States. The members are experts in the field of aviation and the environment. One of the CAEPs positive contributions to ICAO’s environmental programme has been the development of a new chapter for Volume 1 of Annex 16, which contains a noise certification scheme for light helicopters as well as a number of modifications to the technical specifications of the Annex. The CAEP believes that although ICAO initiatives on Chapter 2 aircraft withdrawal will ameliorate the problem of noise near airports, it will be short lived, as the rapidly increasing proportions of international air travel in the next few years will render the benefits brought about by the initiative, nugatory. ICAO’s active involvement in aviation related environmental issues is not without good reason, as 9 of the 27 principles contained in the Declaration of the United Nations Conference on Environment and Development (UNCED)—also known as the “Earth Summit”—held in Rio de Janeiro in June 1992. They are: 1. “States have . . . the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” (Principle 2). 2. “The special situation and needs of developing countries, particularly the least developed. . . shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries.” (Principle 6).

For more details on CAEP see Mortimer (1992) at 6.

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3. “. . . In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.” (Principle 7). 4. “To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption . . .” (Principle 8). 5. “States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries.” (Principle 11). 6. “Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus.” (Principle 12). 7. “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.” (Principle 15). 8. “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, . . .” (Principle 16). 9. “Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.” (Principle 17).

An analysis from the ICAO’s Committee on Aviation and Environmental Protection (CAEP) shows that global aviation fuel burn is expected to grow from 190 Mt in 2006 to a level in 2050 in the range of 280–1,430 Mt (likely in the range of 730–880 Mt). Not accounting for the impact of alternative fuels, CO2 is predicted to grow from 600 Mt in 2006 to a level in 2050 in the range of 890–4,520 Mt (likely in the range of 2,300–2,800 Mt). On a per-flight basis, fuel efficiency is expected to continue to improve through 2050. However, even under the most aggressive technology forecast scenarios, this anticipated gain in efficiency from technological and operational measures does not offset the expected growth in demand. The ICAO Secretariat and CAEP have already devoted significant resources in developing aircraft fuel efficiency parameters and continue work in related areas. A fuel efficiency metric has been agreed upon which uses the product of payload and distance as the denominator with fuel mass used as the numerator (Commercial Aircraft System Fuel Efficiency Metric ¼ Fuel Mass Consumed/Payload Distance). A methodology is also being developed to account for the complete life cycle analyses of any alternative fuels. The following paragraphs address efforts in the areas of technology. ICAO has a central role to play in planning for the implementation of operational improvements. In addition to developing the necessary Standards and guidance material, ICAO has developed a global ATM Operational Concept that was widely endorsed and used as the basis for regional planning. Every ICAO region has identified performance objectives and has developed work programmes to bring near and medium term benefits, while integrating those programmes with the

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extensive work already accomplished. For example, ICAO is supporting a major technical cooperation project to implement an advanced air navigation system in the Caribbean region that is expected to substantially reduce aviation emissions in this region. ICAO supported the development of RVSM, which was first implemented in 1997. This major operational improvement has brought significant benefits in terms of reduced fuel burn, availability of optimal flight levels, and increase in capacity. RVSM has also led to significant environmental benefits and will soon be available in all airspace around the world. Studies undertaken in the European airspace have concluded that RVSM can lead to an average saving of 80 kg of fuel per flight in addition to significant reductions in NOx and sulphur oxide emissions. ICAO is spearheading efforts to share best operational practices in close-in procedures such as CDA (Continuous Descent Arrival) that reduces holding patterns and thus emissions. Similarly, ICAO fosters PBN (Performance Based Navigation) which results in more direct routing thereby saving fuel and reducing aviation emissions. Efficiency of air transport is inextricably linked to environmental protection by the supply and demand curve pertaining to air transport services. Public expectations and demand coupled with the traffic growth are increasing pressures on the air navigation system to, inter alia, put more aircraft in the skies, reduce delay, be environmentally sustainable, and minimize operational costs, and to do so safely. In order to assist States and regions, ICAO developed the global air traffic management (ATM) operational concept which reflects a global vision of an integrated, harmonized and interoperable PBANS up to and beyond 2025. This vision is supported by the Global Air Navigation Plan (GANP), which recognizes that near-term performance gains could be achieved through more effective planning and implementation of existing technologies, procedures and capabilities It is contingent on ICAO and other stakeholders to ensure the consistent delivery of the GANP and its set of common and harmonized initiatives to States and regional planners. ICAO must continue to strive for global consensus and provide guidance on solutions that will, inter alia, address the introduction of new types of aircraft, and the expanded use of aircraft capabilities, thereby continuing the transition towards the global ATM. One particular issue relevant to the aviation industry and ICAO is that significant near-term efficiency and environmental gains may be achieved by the deployment of new technologies such as: replacement of expensive infrastructure through the use of new technologies while maintaining or exceeding the existing level of performance; development of new procedures that take advantage of aircraft capabilities; shift from a static paper-based information system to a real-time and paperless information environment; development and implementation of more accurate weather forecasts. Some States and stakeholders, however, are reluctant to implement existing infrastructure options for which global provisions are lacking. Other impediments to implementation include: legal and institutional issues concerning intellectual property; and clear guidance on how to match requirements with cost-effective solutions.

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New technologies and systems that are expected to be developed and deployed within the next 10 years should be addressed at the global level to ensure interoperability and seamlessness. The radio frequency spectrum is a finite resource that is continually being encroached upon by non-aeronautical services. Therefore, an aeronautical spectrum usage and allocation plan need to be validated and sustained. In another combined Cambridge University/MIT effort engineers have come up with what they believe is the future for commercial airliners—a radical “flying wing” designed to be so quiet that no one outside an airport will be able to hear it. Called the SAX-40, the flying wing would be 25% more fuel-efficient than modern planes and carry 215 passengers up to 5,000 nautical miles (5,750 miles) at a maximum speed of 600 mph.11 The engineers involved in the project have calculated that the SAX-40 would achieve 149 passenger miles per gallon compared with 121 for a Boeing 777. By comparison a Toyota Prius hybrid car gets 144 passenger miles per gallon. This blended wing design concept, which could come into commercial service by 2030,12 is a result of the £2.3m Silent Aircraft Initiative (SAI), a 3-year collaboration between Cambridge University and the Massachusetts Institute of Technology. The most disturbing fact regarding achieving lower fuel consumption is that, unlike other transportation sectors, aviation currently has no viable alternative to burning fossil fuels. It is reported that aviation currently consumes 2–3% of all fuels burnt, whereas the entire transportation sector consumes 20–25% of all fuel consumed by industry and domestic home environments. Of this, road transportation uses 75% while aviation consumes 12%.13 It is a constant endeavour of airframe and engine manufacturers to strive to develop innovative technology, particularly through regular upgrades of aircraft types and modernization of fleets. Among these innovations are achievements in weight reduction of the frame and fuselage of aircraft; development of cleaner, quieter, and more reliable engines; and thermal efficiency to improve combustion. ICAO14 has led the field in standardization in this respect, and its endeavours go back to 1981 when the Organization developed a certification standard to control the amount of oxides of nitrogen (NOX) in civil turbo-jet and turbo fan aircraft engines. ICAO’s Committee on Aviation Environmental Protection (CAEP) had led a review of technologies for the control of NOX and recommended goals for

Jha (2006) at 4. It must be borne in mind that this is a conceptual design and there are many technological barriers that need to be overcome to introduce these technologies into commercial use. Experts at Cambridge University have outlined challenges such as developing the strong composite materials needed to produce the oval-shaped hull and improving modern jet engines to work with the SAX40 design. However, These challenges can be overcome and work is progressing within the Silent Aircraft Initiative. 13 Air Travel, Greener by Design, the Challenge, see http://www.foresight.gov.uk/Previous_Rounds/ Foresight_1999__2002/Defence_Aerospace_and_Systems/Reports/Air%20Travel%20Challenge/ The_Challenge.pdf. 14 Supra, note 6 in Chap. 1. 12

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NOX reduction from aircraft engine technologies over 10 and 20 year horizons. CAEP produced its first report in this field at its 7th meeting in 2006 and recommendations therein were adopted by the ICAO Council in the following year. In view of the fact that mutable developments in the global scene continue to affect climate change, numerous multinational development banks have established Climate Investment Funds (CIFs) in 2008 on a large scale. A significant contribution was made by the African Development Bank (AfDB) which developed a Clean Energy Investment Funds (CEIF) which aims at promoting investment in clean energy projects and guides the Bank’s investments in expanding energy across Africa. The Bank has also developed a Green Growth Strategy which supports and promotes low carbon climate change resilient investments in the States of the African continent.15 The Inter-American Development Bank (IDB)—the oldest bank in the Latin American region—is working with more than half of its member States in investing in bio fuel programmes, the most renowned of which is the ethanol programme of Brazil. IDB is also vigorously promoting the development of next generation bio fuel initiatives.16 In this context, and with aviation bio fuels now approved for use in commercial jets, Boeing and Embraer are in partnership in the joint funding of a sustainability analysis with a view to producing renewable jet fuel from Brazilian sugarcane.17 In addition to the abovementioned financial initiatives there are several others. The Global Environment Facility (GEF) was established by UNFCCC to operate the financial mechanism under the Convention on an on-going basis, subject to review every 4 years to provide funds to developing countries. The Special Climate Change Fund (SCCF) was created in 2001 to complement other funding mechanisms to finance. Least Developed Countries Fund (LDCF) is intended to support a special work programme to assist the LDCs. The Clean Development Mechanism (CDM) allows a developed country with an emissionreduction or emission-limitation commitment under the Kyoto Protocol to implement an emission-reduction project in developing countries. Such projects can earn saleable certified emission reduction (CER) credits, each equivalent to 1 t of CO2, which can be counted towards meeting Kyoto targets. The Adaptation Fund became operational with the first commitment period of the Kyoto Protocol in 2008 to finance practical adaptation projects and programmes in developing countries and support capacity-building activities. It is funded from an adaptation levy of 2% on CDM projects. The Climate Investment Fund (CIF) was established in 2008 by several multilateral development banks. The CIF has balanced and equitable governance with

Nogoye Thiam and Balgis Osman-Elsha, The African Development Bank and Climate Change Mitigation in Africa, Aviation and Climate Change—ICAO Environmental Report, at 213–215. 16 Arnaldo Vieira de Carvalho, Financing Bio fuels in Latin America and the Caribbean, Aviation and Climate Change—ICAO Environment Report 2010, 210–212 at 210. 17 Boeing (2011), 283 at 6.

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equal representation from developed and developing countries. The objective is to influence climate investments in the following areas: Clean Technology Fund: finances demonstration, deployment, and transfer of low carbon technologies; Strategic Climate Fund: Targeted programs to pilot new approaches and improvements; Community Development Carbon Fund provides carbon reduction financing to small scale projects in the poorer rural areas of the developing world. The Fund, a public/private initiative designed in cooperation with the International Emissions Trading Association and the UNFCCC, became operational in March 2003. The World Bank and the International Finance Corporation have also developed carbon funds with (co-)funding by States. Similar carbon-financing initiatives are currently being developed by various other international financial institutions. The World Bank and regional development banks provide financing for investment in mitigation and adaptation measures to developing countries. This includes loans to support projects and initiatives in the transport sector. A number of nationally-based financing instruments also exist, including: the Carbon Trust in the United Kingdom, the Green Financing in the Netherlands, and the Energy for Rural Transformation in Uganda. It is notable that the World Bank Group has developed various instruments to trade greenhouse gas (GHG)18 emission rights among States. These financing models and financing instruments have been specifically designed for climate change projects. Other funds are also available or currently under development. For instance, the United Nations Environment Programme (UNEP) is working to create a policy and economic framework in which sustainable energy can increasingly meet the global energy challenge. Recently, the Secretary General of the United Nations established the High-Level Advisory Group on Climate Change Financing (AGF) to study potential sources of revenue for financing mitigation and adaptation activities in developing countries. This funding is expected to tap into a wide variety of sources. In relation to international aviation, the AGF will also consider options relating to fiscal instruments that could apply to this sector. International aviation currently has no dedicated financial mechanism related to climate change. Because international aviation is not covered by the Kyoto Protocol,19 it has no access to any of the Kyoto flexible financing instruments such as CIF 18

Greenhouse gases are components of the atmosphere and contribute to the Greenhouse Effect. Some greenhouse gases occur naturally in the atmosphere, while others result from human activities. Naturally occurring greenhouse gases include water vapor, carbon dioxide, methane, nitrous oxide, and ozone. Certain human activities add to the levels of most of these naturally occurring gases. 19 The Third Conference of the Parties to the United Nations Framework Convention on Climate Change (Climate Change Convention) was held from 1 to 11 December 1997 at Kyoto, Japan. Significantly the States parties to the Convention adopted a protocol (Kyoto Protocol) on 11 December 1997 under which industrialized countries have agreed to reduce their collective emissions of six greenhouse gases by at least 5% by 2008â&#x20AC;&#x201C;2012. The Kyoto Protocol to the United Nations Framework Convention on Climate Change is an amendment to the international treaty on climate change, assigning mandatory emission limitations for the reduction of greenhouse gas emissions to the signatory nations. Article 1 (a) (v) of the Protocol calls each State Party to achieve

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or CDM. The absence of a structured mechanism does not mean that there are no initiatives or specific examples of financial contributions to support aviation climate change actions. It is incontrovertible that the aviation sector needs funding, particularly against the backdrop of ICAO Assembly Resolution A 37-19 adopted at the 37th Session of Assembly of ICAO held in Montreal from 28 September to 8 October 2010. The Resolution suggests, inter alia, that States and relevant organizations work through ICAO to achieve a global annual average fuel efficiency improvement of 2% until 2020 and an aspired global fuel efficiency improvement rate of 2% per annum from 2021 to 2050, calculated on the basis of volume of fuel used per revenue tonne kilometre performed. ICAO and its Member States, with relevant organizations, are encouraged to work together to strive to achieve a collective medium term global aspired goal of keeping the global net carbon emissions from international aviation from 2020 at the same level, taking into account the special circumstances and respective capabilities of developing States, the maturity of aviation markets and the sustainable growth of the international aviation industry. In this regard, the proposed resolution suggests that the Council consider a de minimis exception for States that do not have substantial international aviation activity levels, in the submission of action plans and regular reports on aviation CO2 emissions to ICAO. The Resolution also invites the Assembly to recognize that in the short term, voluntary carbon offsetting schemes constitute a practical way to offset CO2 emissions, and invites States to encourage those operators wishing to take early action to use carbon offsetting, particularly through the use of credits generated from internationally recognized schemes such as the Clean Development Mechanism.20 In addition to the 2% annual improvement in fuel efficiency discussed above, the 37th Session of the Assembly also considered a proposal to further explore the feasibility of more ambitious medium and long term goals, including carbon neutral growth and emissions reductions. Three States proposed that a more ambitious goal be set, of carbon neutral growth by 2020 compared to 2005 levels. In response, a developing State took the position that ICAO should be guided by the principle of common but differentiated responsibilities under the UNFCCC, and that the next task for ICAO is to assist States to achieve the goal of 2% annual fuel efficiency improvement, while the goal of carbon neutral growth is not realistic and not fair for developing States and that no State should be allowed to take unilateral actions on

progressive or phasing out of market imperfections, fiscal incentives, tax and duty exemptions and subsidies in all greenhouse gas emitting sectors that run counter to the objective of the Convention and application of market instruments. See Kyoto Protocol to the United Nations Framework Convention on Climate change, UN Doc. FCCC/CP/1997/L.7/Add.1. See also, Kyoto Protocol to the Framework Convention on Climate Change, (1998) 37 ILM 22. 20 The Clean Development Mechanism allows a developed State with an emission-reduction or emission-limitation commitment under the Kyoto Protocol to implement an emission-reduction project in developing countries. Such projects can earn saleable certified emission reduction credits, each equivalent to 1 t of CO2, which can be counted towards meeting Kyoto targets. See http://www.icao.int/icao/fr/env2010/ClimateChange/Finance_f.htm.

References

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market-based measures. The latter suggestion was given some support from other developing States. Climate change is a complex subject. In this context, the numbers in terms of investment in climate change are staggering, as the above discussion reflects. The value of low carbon energy markets in 2050 is set at US$ 500 billion whereas the demand for projects generating credits related to greenhouse gas emissions by 2030 are envisioned at 100 billion.21 The global response to climate change is bifurcated into mitigation and adaptation. Mitigation (also called abatement) is human intervention to reduce the sources of greenhouse gases. Adaptation is adjustments in practices, processes or structure that takes into consideration the vicissitudes of climate change. Against this backdrop, the investor has certain choices: accept the scientific evidence and invest in industries that help mitigate climate change; take no action and consider scientific evidence as irrelevant and unnecessary; or look for investment opportunities, taking into account government initiatives. The last option is vigorously espoused by international organizations with the active involvement of governments. These international organizations will most likely continue to demand initiatives that mitigate climate change through such organizations as UNFCCC and the Inter Governmental Panel on Climate Change (IPCC).22 Such government initiatives are already visible in the form of cap and trade regulatory systems, taxes in various forms, incentives and subsidies and standardization for energy efficiency.

References Boeing, Embraer to fund sugarcane biofuel study, The Air Letter, Tuesday, 26 July, 2011, No. 17,283, at 6 Alok Jha, On a Wing and a Whisper: The Airliner to End Runway Noise, The Guardian, Tuesday November 7 2006 at 4 L.F. Mortimer, Ambitious Programme of Future Work to be Undertaken by CAEP, ICAO Journal, August 1992 at 6

Investing in Climate Change â&#x20AC;&#x201C; An Asset Management Perspective, Deutsche Asset Management, October 2000 at 2 and 11. 22 The IPCC is a scientific intergovernmental body set up by the World Meteorological Organization (WMO) and by the United Nations Environment Programme (UNEP). The IPCC was established to provide the decision-makers and others interested in climate change with an objective source of information about climate change. The IPCC does not conduct any research nor does it monitor climate related data or parameters. Its role is to assess on a comprehensive, objective, open and transparent basis the latest scientific, technical and socio-economic literature produced worldwide relevant to the understanding of the risk of human-induced climate change, its observed and projected impacts and options for adaptation and mitigation. IPCC reports should be neutral with respect to policy, although they need to deal objectively with policy relevant scientific, technical and socio economic factors. They should be of high scientific and technical standards, and aim to reflect a range of views, expertise and wide geographical coverage.

Chapter 10

Aeronautical Charts

Article 28 of the Chicago Convention requires inter alia that Contracting States collaborate in international measures to secure the publication of aeronautical maps and charts in accordance with standards which may be recommended or established from time to time, pursuant to the Convention. Pilots engaged in air navigation depend on aeronautical charts to follow their flight plans. ICAO has prescribed standards and Recommended practices for States to follow in developing and issuing such charts to the technical crew. These SARPs are contained in Annex 4. The world of aviation, which by its very nature knows no geographical or political boundaries, requires maps that are unlike those used in ground transportation. For the safe performance of air operations it is essential that a current, comprehensive and authoritative source of navigation information be made available at all times, and aeronautical charts provide a convenient medium for supplying this information in a manageable, condensed and coordinated manner. It is often said that a picture is worth a thousand words, However, todayâ&#x20AC;&#x2122;s often complex aeronautical charts may be worth much more. Aeronautical charts not only provide the two dimensional information common in most maps, but also often portray three dimensional air traffic service systems. Almost all ICAO States produce aeronautical charts and most segments of aviation make reference to them for planning, air traffic control and navigation purposes. Without the global standardization of aeronautical charts it would be difficult for pilots and other chart users to effectively find and interpret important navigation information. The safe and efficient flow of air traffic is facilitated by aeronautical charts drawn to accepted ICAO Standards. The Standards, Recommended Practices and explanatory notes contained in Annex 4 define the obligations of States to make available certain ICAO aeronautical chart types, and specify chart coverage, format, identification and content including standardized symbology and colour use. The goal is to satisfy the need for uniformity and consistency in the provision of aeronautical charts that contain appropriate information of a defined quality. When a published aeronautical chart contains â&#x20AC;&#x153;ICAOâ&#x20AC;? in its title, this indicates that the chart producer has conformed to both general Annex 4 Standards and those pertaining to a particular ICAO chart type.

R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_10, # Springer-Verlag Berlin Heidelberg 2012

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The ICAO Council first adopted the original Standards and Recommended Practices in 1948. Annex 4 has its origins in “Annex J—Aeronautical Maps and Charts” of the Draft Technical Annexes adopted by the International Civil Aviation Conference in Chicago in 1944. Since the adoption of the first edition which provided specifications for seven ICAO chart types, there have been 53 amendments to update the Annex to accommodate the rapid advances in air navigation and cartographic technology. The ICAO series of aeronautical charts now consists of 21 types, each intended to serve specialized purposes. They range from detailed charts for individual aerodromes/heliports to small-scale charts for flight planning purposes and include electronic aeronautical charts for cockpit display. There are three series of charts available for planning and visual navigation, each with a different scale. The Aeronautical Navigation Chart—ICAO Small Scale charts cover the largest area for a given amount of paper; they provide a general purpose chart series suitable for long-range flight planning. The World Aeronautical Chart—ICAO 1:1,000,000 charts provide complete world coverage with uniform presentation of data at a constant scale, and are used in the production of other charts. The Aeronautical Chart—ICAO 1:500,000 series supplies more detail and provides a suitable medium for pilot and navigation training. This series is most suitable for use by low-speed, short- or medium range aircraft operating at low and intermediate altitudes. The Area Chart—ICAO provides pilots with information to facilitate the transition from en-route phase to final approach phase, as well as from take-off to en-route phases of the flight. The charts are designed to enable pilots to comply with departure and arrival procedures and holding pattern procedures, all of which are coordinated with the information on the instrument approach charts. Frequently, air traffic services routes or position reporting requirements are different for arrivals and for departures and these cannot be shown with sufficient clarity on the area chart. Under these conditions a separate Standard Departure Chart— Instrument (SID)—ICAO and Standard Arrival Chart—Instrument (STAR)—ICAO are produced. The area chart may also be supplemented by a Radar Minimum Altitude Chart—ICAO which is designed to provide the information to enable flight crews to monitor and cross-check altitudes assigned while under radar control. The Instrument Approach Chart—ICAO provides the pilot with a graphic presentation of instrument approach procedures, and missed approach procedures to be followed should the crew be unable to carry out a landing. This chart type contains a plan and profile view of the approach with full details of associated radio navigation aids and necessary aerodrome and topographical information. When a visual-type approach is flown, the pilot may refer to a Visual Approach Chart—ICAO which illustrates the basic aerodrome layout and surrounding features easily recognizable from the air. As well as providing orientation, these charts are designed to highlight potential dangers such as obstacles, high terrain and areas of hazardous airspace. The Aerodrome/Heliport Chart—ICAO provides an illustration of the aerodrome or heliport which allows the pilot to recognize significant features, rapidly clear the runway or heliport touchdown area after landing and follow taxiing instructions. The charts show aerodrome/heliport movement areas, visual indicator locations,

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taxiing guidance aids, aerodrome/heliport lighting, hangars, terminal buildings and aircraft/heliport stands, various reference points required for the setting and checking of navigation systems and operational information such as pavement strengths and radio communication facility frequencies. At large aerodromes where all the aircraft taxiing and parking information cannot be clearly shown on the Aerodrome/ Heliport Chart—ICAO, details are provided by the supplementary Aerodrome Ground Movement Chart—ICAO and the Aircraft Parking/Docking Chart—ICAO. The heights of obstacles around airports are of critical importance to aircraft operations. Information about these are given in detail on the Aerodrome Obstacle Charts—ICAO, Types A, B, and C. These charts are intended to assist aircraft operators in making the complex take-off mass, distance and performance calculations required, including those covering emergency situations such as engine failure during takeoff. Aerodrome obstacle charts show the runways in plan and profile, take-off flight path areas and the distances available for take-off run and acceleratestop, taking obstacles into account; this data is provided for each runway which has significant obstacles in the take-off area. The detailed topographical information provided by some aerodrome obstacle charts includes coverage of areas as far as 45 km away from the aerodrome itself. Recent developments associated with “glass cockpit technologies”, the availability and exchange of electronic aeronautical information, and the increased implementation of navigation systems with high positional accuracies and continuous position fixing, have created an environment well suited to the rapid development of viable electronic charts for display in the cockpit. A fully developed electronic aeronautical chart display has the potential for functionality that extends well beyond paper charts and could offer significant benefits such as continuous plotting of the aircraft’s position and customization of the chart display depending on the phase of flight and other operational considerations. Annex 4, Chapter 20 Electronic Aeronautical Chart Display—ICAO provides basic requirements aimed at standardizing electronic aeronautical chart displays while not unduly limiting the development of this new cartographic technology. Annex 4 provisions have evolved considerably from the seven original ICAO chart types adopted in 1948. To ensure that aeronautical charts meet the technological and other requirements of modern aviation operations, ICAO is constantly monitoring, improving and updating aeronautical chart specifications. The vast majority of scheduled flights take place along routes defined by radio and electronic navigation systems that make visual reference to the ground unnecessary. This type of navigation is conducted under instrument flight rules and the flight is required to comply with air traffic control services procedures. The Enroute Chart—ICAO portrays the air traffic service system, radio navigation aids and other aeronautical information essential to en-route navigation under instrument flight rules. It is designed for easy handling in the crowded space of an aircraft flight deck, and the presentation of information is such that it can easily be read in varying conditions of natural and artificial light. Where flights cross extensive oceanic and sparsely settled areas, the Plotting Chart—ICAO provides a means of maintaining a continuous flight record of aircraft position and is sometimes produced to

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complement the more complex enroute charts. As a flight approaches its destination, more detail is required about the area around the aerodrome of intended landing.

10.1

Liability Issues

Since both the Chicago Convention and the provisions of Annex 4 places the responsibility of providing aeronautical charts on States, it is interesting to inquire into the liability of a State for producing an inaccurate aeronautical chart that could cause an accident. In the United States, the Federal Government is a potential defendant in this context and could be liable in negligence. In the 1982 case of Medley v. United States1 it was alleged on behalf of the plaintiff that the Federal Government had not only created an unsafe flight route but had also perpetuated that destructive error in an aeronautical chart that did not indicate the error. The surviving victims of the crash and the carrier’s insurers sued the Federal Government for death, personal injury and property damage.2 It was argued for the Federal Government that the acts of the government in this instance came under the “discretionary function exception” under the Feral Tort Claims Act. District Judge Aguilar held: The alleged acts of the government are clearly of an operational character and so not within the discretionary function exception to liability. . .the government has a duty to perform acts with and functions with due care. When this duty is discharged in a negligent manner, the government is guilty of negligence and it cannot escape liability by invoking the discretionary function exception. . .for there is not discretion to conduct discretionary operations negligently.3

However, a pilot error cannot be exonerated on the mere grounds that a government installation stood between the aircraft and its safety.4 There are private individuals and companies producing aeronautical charts for air navigation and an incorrectly produced aeronautical chart could be a serious safety impediment. An accident caused as a result of the technical crew being misled by an aeronautical chart could ground an action for products liability and civil damages. An early case in this regard is Aetna Casualty v. Jeppesen5 where an aircraft operated by Bonanza Airlines crashed in 1964 while landing in Las Vegas, Nevada. The survivers of the crew, alleging that the crash was caused by a defective approach chart, sued Jeppesen—the manufacturer of the chart. Jeppesen was found 1

543 F. Supp. 1211 (N.D. Cal. 1982). Id. 1213–1215. 3 Id. 1221–1222. 4 See Allnut v. United States, 498 F. Supp. 832 (W.D. Mo. 1980). Also, Hahn v. United States, 535 F. Supp. 132 (D.S.D. 1982). 5 344 F.Supp. at 1388. 2

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to be liable as there was evidence of a flaw in the chart. The flaw was that the graphic depiction of the profile in question which covered a distance of 3 miles from the airport was the same depiction of the plan which covered a distance of 15 miles. The trial judge found this discrepancy one which radically departed from Jeppesen’s usual standards of graphic depiction which would have misled the pilot in his approach to the airport. In the 1978 case of Times Mirror Co. v. Sisk 6 where the case concerned the crash of a Pan American Boeing 707 cargo freighter into a mountain located on the approach path to Manila International Airport in the Philippines. The court was faced with the fact that, while the approach path had been approved by the Government of Philippines and the chart used for the approach by the pilot was a standard Jeppesen chart, it had not shown the presence of the mountain. The court had no difficulty in concluding in favour of Jeppesen, on the ground that the pilot had been so off track that the chart could not be considered the proximate cause of the crash. Aeronautical charts are products that could impugn the manufacturer if they are defective.7 However, it has to be proved that the manufacturer of the chart had misled the pilot with the information provided in the chart. The 1985 case of Fluor Corp. v. Jeppesen & Co,8 which was similar in circumstances to the Sisk case, concerned the crash of a Lockheed L-1329 Jet Star on approach near Lake Saranac, New York. The lane hit a mountain which 2,140 ft while attempting to land on a night when it was snowing and the weather was inclement. The mountain was not shown in the Jeppesen chart. The crash took the lives of all passengers. The plaintiffs sues Jeppesen on breach of warranty, negligence and strict products liability. Jeppesen claimed that the crew were responsible for the accident as they were flying too low in adverse weather conditions. While the trial judge did not instruct the jury on strict products liability, he exonerated the chart-maker on the counts of breach of warranty and negligence. There was an interesting issue in the Fluor Corp case where, while the trail judge accepted that an aeronautical chart was a “product” he opined that it did not come under the heading of strict liability as only items whose physical properties rendered them innately dangerous, such as machines and mechanical devices, explosives could be susceptible to actions grounded on strict products liability, The Appeal court judge—Justice Gates—disagreed, saying: Although a sheet of paper might not be dangerous per se, it would be difficult indeed to conceive of a saleable commodity with more inherent lethal potential than an aid to air navigation that, contrary to its on design standards, fails to list the highest land mass immediately surrounding a landing site.9

593 P.2d 924 (Ct. App. 1978), 122 Ariz. 174. See Saloomey v. Jeppesen & Co. 707 F.2d. 672–674. 8 170 Cal. App. 3d 468, 216 Cal. Rptr at 70. 9 216 Cal. Rptr. At 71–72. 7

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The judge addressed the issue as to whether an aeronautical chart could be a defective product and was of the view that a product could be considered defectively designed if either it failed to meet ordinary consumer expectations when used in an intended or reasonably foreseeable manner or the benefits of the suspect design did not outweigh the risk of danger inherent in such a design. Justice Gates found that Jeppesen could not justify as to how and why such an important detail for an approach chart which could have been included at negligible cost could not have been included by the chart maker.10 The question would arise as to whether a manufacturer of a defective product— in this case an aeronautical chart—whose product is used in a jurisdiction other than the one in which the product is manufactured, can escape liability on the grounds of personal jurisdiction. For instance, if an aeronautical chart that turns out to be defective is used in any country other than its country of manufacture and proves to be the cause of an aircraft accident, could the manufacturer claim the lack of jurisdiction if an action is brought against it in the first country? The United States The 1987 case of Asahi Metal Industry Co. v. Superior Court11 involved a Japanese company, Asahi, which manufactured valves that were inserted into tires manufactures by a Taiwanese company, which were later sold in the United States. When a motorist in California allegedly suffered an injury caused by a tire manufactured by Asahi, the manufacturer was taken to court in the United States where it contested the jurisdiction of the court. There were two different views in the Supreme Court: Justice Brennan authored an opinion in which his Honour stated that if the defendant manufacturer placed a defective product into the stream of commerce and is aware that the final product was being marketed in the forum State, the possibility of a lawsuit should not be a surprise in that State. Justice O’Connor, was of a different view which was to the effect that placing a product in the stream of commerce per se is not enough; the defendant must engage in some additional conduct that demonstrates an intent or purpose to serve the market in the forum State. The case of Goodyear Dunlop Tires Operations, S.A. v. Brown heard by the United States Supreme Court on 27 June 2011 concerned two American Children visiting France who were killed in a bus accident. The parents claimed that the accident was caused by a defective tire and sued Goodyear USA which was a company based in Ohio, along with three of its foreign subsidiaries. The action was brought in a court in North Carolina. The Supreme court drew the distinction between specific and general bases of jurisdiction where the former depends on affiliation between the forum and the underlying controversy and the latter which allowed a court to hear claims against a foreign entity only when that entity maintains affiliations with the state where such affiliations were so “continuous and systematic as to render them essentially at home”.

170 Cal. App. 3d at 478. See also Brocklesby v. United States, 767 F. 2d 1288 (9th Cir 1985). 480 U.S. 102 (1982).

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There was no nexus between the State of North Carolina and the subsidiary companies which had no employees, place of business or bank accounts in that State. The Supreme Court therefore held that North Carolina had no jurisdiction as there was simply no justification to apply the “continuous and systematic affiliation” principle. Also on 27 June 2011 the Supreme Court heard J/McIntyre Machinery Ltd v. Nicastro which involved an injury caused to a person working at a New Jersey scrap yard by a metal shearing machine designed and built by an English corporation but sold to the scrap yard by an independent contractor. The New Jersey Court at first instance applied Justice Brennan’s dictum in the Asahi case and held that the court had jurisdiction. This decision was overturned by a majority decision written by Justice Kennedy which held with Justice O’Connor on the principle that the defendant must engage in some additional conduct that demonstrates an intent or purpose to serve the market in the Forum State.

10.2

NOTAMs and Other Aeronautical Information

One of the least known and most vital roles in support of international civil aviation is filled by the aeronautical information service (AIS). The object of the aeronautical information service is to ensure the flow of information necessary for the safety, regularity and efficiency of international air navigation. Annex 15 defines how an aeronautical information service shall receive and/or originate, collate or assemble, edit, format, publish/store and distribute specified aeronautical information/data. The goal is to satisfy the need for uniformity and consistency in the provision of aeronautical information/data that is required for the operational use by international civil aviation. The ICAO Council first adopted the original Standards and Recommended Practices in 1953. Annex 15 has its origins in Article 37 of the Chicago Convention. The first requirements for the Annex were developed by the ICAO Air Navigation Committee (now the Air Navigation Commission), following recommendations from regional air navigation meetings, and were published by the authority of the Council as Procedures for International Notices to Airmen back in 1947. “International notices to airmen” is a phrase which led to the birth of an early aeronautical acronym: NOTAM.12 In 1949, a special NOTAM meeting reviewed and proposed amendments to these procedures, which were later issued as Procedures for Air Navigation Services that became applicable in 1951. A total of 33 amendments updated Annex 15 over the years to meet the rapid changes brought about by air travel and associated information technology. In recent years, Annex 15 amendments have reflected the increased need for the timely provision of quality aeronautical information/data and terrain data as they have become critical 12

Specifications of a NOTAM are prescribed in Annex 15 to the Chicago Convention, See infra, note 14 in this chapter, at Standard 5.1.1.

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components of data-dependant on-board navigation systems. The Annex now contains many provisions aimed at preventing corrupt or erroneous aeronautical information/data which can potentially affect the safety of air navigation. The operator of any type of aircraft, be it small private aircraft or large transport aircraft, must have available a variety of information concerning the air navigation facilities and services that may be expected to be used. For example, the operator must know the regulations concerning entry into and transit of the airspace of each State in which operations will be carried out, as well as what aerodromes, heliports, navigation aids, meteorological services, communication services and air traffic services are available and the procedures and regulations associated with them. The operator must also be informed, often on very short notice, of any change affecting the operation of these facilities and services and must know of any airspace restrictions or hazards likely to affect flights. While this information can nearly always be provided before take-off, it must, in some instances, be provided during flight. The philosophy underlying Annex 15, which stems from Article 28 of the Chicago Convention, is that each State is responsible for making available to civil aviation interests any and all information which is pertinent to and required for the operation of aircraft engaged in international civil aviation within its territory, as well as in areas outside its territory in which the State has air traffic control or other responsibilities. The information handled by an AIS may vary widely in terms of the duration of its applicability. For example, information related to airports and its facilities may remain valid for many years while changes in the availability of those facilities (for instance, due to construction or repair) will only be valid for a relatively short period of time. Information may be valid for as short a time as days or hours. The urgency attached to information may also vary, as well as the extent of its applicability in terms of the number of operators or types of operations affected. Information may be lengthy or concise or include graphics. Therefore, aeronautical information is handled differently depending on its urgency, operational significance, scope, volume and the length of time it will remain valid and relevant to users. Annex 15 specifies that aeronautical information be published as an integrated aeronautical information package. It is composed of the following elements: the Aeronautical Information Publication (AIP), including amendment service, AIP supplements, NOTAM, pre-flight information bulletins (PIB), aeronautical information circulars (AIC), checklists and lists of valid NOTAM. Each element is used to distribute specific types of aeronautical information. Information concerning changes in facilities, services or procedures, in most cases, requires amendments to be made to airline operations manuals or other documents and databases produced by various aviation agencies. The organizations responsible for maintaining these publications usually work to a pre-arranged production programme. If aeronautical information were published indiscriminately with a variety of effective dates, it would be impossible to keep the manuals and other documents and databases up to date. Since many of the changes to facilities, services and procedures can be anticipated, Annex 15 provides for the

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use of a regulated system, termed AIRAC (aeronautical information regulation and control), which requires significant changes to become effective and information to be distributed in accordance with a predetermined schedule of effective dates, unless operational considerations make it impracticable. Annex 15 also specifies that pre-flight information must be made available at each aerodrome/heliport normally used for international operations and sets the content of aeronautical information provided for pre-flight planning purposes as well as requirements for the provision of that information through automated aeronautical information systems. Additionally, there are requirements to ensure that important post-flight information provided by aircrews (for example, the presence of a bird hazard) are relayed to the AIS for distribution as the circumstances necessitate. The need, role and importance of aeronautical information/data have changed significantly with the evolution of the Communications, Navigation and Surveillance/Air Traffic Management (CNS/ATM) systems. The implementation of area navigation (RNAV), required navigation performance (RNP) and airborne computer-based navigation systems has brought about exacting requirements for the quality (accuracy, resolution and integrity) of aeronautical information/data and terrain data. The usersâ&#x20AC;&#x2122; dependence on the quality of certain aeronautical information/data is evident from Annex 15, paragraph 3.2.8 a) which, when describing critical data, states: â&#x20AC;&#x153;There is a high probability when using corrupted critical data that the continued safe flight and landing of an aircraft would be severely at risk with the potential for catastropheâ&#x20AC;?. Since corrupt or erroneous aeronautical information/data can potentially affect the safety of air navigation because of the direct dependence upon it by both airborne and ground-based systems, it is imperative that each State ensure that users (aviation industry, air traffic services, etc.) receive timely and quality aeronautical information/data for the period of its intended use. To achieve this, and to demonstrate to users the required information/data quality, Annex 15 provides that States must establish a quality system and put in place quality management procedures at all stages (receiving and/or originating, collating or assembling, editing, formatting, publishing, storing and distributing) of the aeronautical information/data process. The quality system must be documented and demonstrable for each function stage, ensuring that the organizational structure, procedures, processes and resources are in place in order to detect and remedy any information/data anomalies during the phases of production, maintenance and operational use. Explicit in such a quality management regime is the ability to trace all information/data from any point, back through the proceeding processes, to its origin. Of all the activities in international civil aviation, the provision and sustaining of aeronautical information services may not rank among the most glamorous and indeed the complexity of AIS information supplying data-dependant on-board navigation systems may be transparent to the user, but without this service a pilot would be flying into the unknown. Annex 15 provides that each ICAO member State, as a basic service, must provide an aeronautical information service for the collection and distribution of

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aeronautical information for use by all types of aircraft operations.13 An aeronautical information service is a service established within the defined area of coverage responsible for the provision of aeronautical information/data necessary for the safety, regularity and efficiency of air navigation.14 Standard 3.1.1 requires each ICAO member State o provide an aeronautical information service or agree with one or more other State(s) for the provision of a joint service or delegate the authority for the provision of the service to a non-governmental agency, provided the Standards and Recommended Practices of the Annex are adequately met.15

See Aeronautical Information Services Manual, ICAO Doc 8126 AN/872 Sixth Edition 2003 at 1.1.3. 14 See Annex 15 to the Convention on International Civil Aviation, Thirteenth Edition, July 2010 Definitions. 15 Id. Standard 3.1.1.

Chapter 11

NextGen and SESAR

The two basic facts about air transport and air navigation is that safety and security are the critical factors. The air navigation system, whether considered globally or nationally, should cater to growing demands of air travel in an efficient, safe and secure manner. In this context, there is one fact which stands out in any discussion on air navigation: that safety, efficiency and performance based navigation1 are the key words. Two initiatives that serve as catalysts to these objectives are NextGen and SESAR.

11.1

NextGen

NextGen, a United States initiative which conveys the basic message that mere lip service to existing principles of air navigation is not sufficient if the air navigation system currently in operation is to deliver a system that will transform values, technology and approaches that would ensure a healthy, environmentally friendly, globally interoperable air transportation system for the next 15 years. The US Congress established in 2003 the Joint Planning and Development Office (JPDO) that was designed to define a national strategy for developing the Next Generation Air Transportation System (NextGen). The NextGen vision for 2025, which harmoniously blend the areas of efficiency in air transport that enables the safe, efficient and reliable movement of large numbers of people and goods throughout the air transportation system with national security objectives. The US NextGen vision is: founded upon an underlying set of principles and enabled by a series of key capabilities that will free the U.S of many current system constraints, support a wider range of operations, 1

Performance-Based Navigation (PBN) is a framework for defining navigation performance specifications for an aircraft along a route, during a procedure, or in airspace. These navigation performance specifications have been defined and have specific operational performance requirements. PBN provides a simple basis for the design and implementation of automated flight paths, as well as for airspace design, aircraft separation, and obstacle clearance. PBN comprises both Area Navigation (RNAV) and Required Navigation Performance (RNP).

R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_11, # Springer-Verlag Berlin Heidelberg 2012

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and deliver an overall system capacity up to three times greater than that of current operating levels2

The JPDO is a publicâ&#x20AC;&#x201C;private partnership developed initially for a 15 year time span with a view to modernizing and transforming the US national air transportation system by the year 2025, while providing near-term benefits throughout the process. The planners of NextGen aim at the programme addressing critical safety and economic needs while fully integrating national defense and homeland security improvements into this future system.3 The instrumentalities involved in developing NextGen are the Federal Aviation Administration (FAA), the National Aeronautics and Space Administration (NASA), the Departments of Commerce, Defense, Homeland Security, Transportation, and the White House Office of Science and Technology Policy which are working together with the private sector to design and build NextGen. A Senior Policy Committee chaired by the Secretary of Transportation and comprised of senior representatives from each partner agency, including the FAA Administrator oversees the work of the JPDO. The customer, or user of air transportation is the central focus of NextGen. The fundamental purpose of NextGen is to serve as a system that veers from the traditional focus of air transportation from being a system that is unable due to its physical/technical infrastructure constraints and the limitations of the service providers, to graduating to a system that would serve the user more efficiently. NextGen is holistic in that it meshes the technological advances with management, governance and corporate foresight. Risk management is a key area of importance to NextGen. Under this system, risk assessments will commence prior to each flight, with a view to appropriately and precisely screening people and goods as they move from the terminal building to the aircraft, or as they work to support airport and aircraft operations in time. With the continued advancement of technology, screening will be unobtrusive and increasingly transparent to the individual. Security changes will be assessed in terms of impacts to, and effects from, other aspects of the system, such as safety, to ensure they are implemented in a complementary, synergistic way This overall application of risk assessment will particularly apply its prediction and risk evaluation approach that would enable integrated management of environmental performance to foster continued growth of aircraft operations in a defined time span in the future with increasing scrutinization and evaluation of the environmental impacts of aviation. NextGen introduces a harmonization that would address the demands of both US carriers and non US carriers operating air services to the United States. Some of the NextGen capabilities

U.S. NEXT GENERATION AIR TRANSPORTATION SYSTEM (NextGenAPANPIRG/21-IP/ 13), submitted to the ICAO Twenty First Meeting of the Asia/Pacific Air Navigation Planning and Implementation Regional Group (APANPIRTG/21) Bangkok, Thailand, 6â&#x20AC;&#x201C;10 September 2010, at 1. 3 Ibid.

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offered are network-enabled information access4; performance-based services; layered, adaptive security5; weather assimilated into decision-making6; broadarea precision navigation7; aircraft trajectory-based operations8; equivalent visual operations9; and super-density operations.10 The subject of data and data exchange in NextGen is all encompassing in that it involves flight plan information; pilot, passenger and cargo data; aircraft telemetry; surveillance information; weather data; etc. Information might be in the form of records, databases (i.e., pilot licenses or aircraft maintenance records), voice communications, images, etc. Information will be both “pushed” to known users and available to be “pulled” by other users including clients not previously identified as needing that data. Providers of the data

Through network enabled information access, information will be used to distribute decisionmaking appropriately during normal operations, abnormal events, and system-wide crises improving the speed, efficiency, and quality of decisions. Aircraft will become mobile nodes integral to this information network, not only using and providing information, but also routing messages or information being sent from another aircraft or a ground source. 5 Layered, Adaptive Security will integrate security functions into NextGen in a manner that increases security while moving more people/goods and requiring proportionally fewer resources to do it. Building on Network-Enabled Information Access and Performance-Based Services, security will exist in layers of defence designed to detect threats early. 6 Leveraging the benefits of Network-Enabled Information Access, NextGen will provide a “common” weather “picture” to support decision-making. Thousands of global weather observations— from ground, airborne, and space-based sources—will be used to determine real-time weather status and to feed multiple weather forecast models. Information will be fused into a single, constantly updated, national (eventually global) weather database. 7 Broad-Area Precision Navigation will provide navigation services where and when needed to enable reliable aircraft operations in nearly all conditions1. Today’s US navigation infrastructure includes over 5,000 FAA operated ground-based navigation aids to support both enroute navigation and precision approaches to airports. 8 To accommodate the projected doubling or tripling of system demand by 2025, today’s flight planning and air traffic paradigms must be transformed to a system that manages operations based on aircraft trajectories, regularly adjusts the airspace structure to best meet user and security/ defense needs, and relies on automation for trajectory analysis and separation assurance. This capability builds on the network-enabled information access, performance-based services, weather assimilated into decision making, and broad-area precision navigation capabilities. 9 Network-Enabled Information Access, certain aspects of Performance-Based Services, and Broad-Area Precision Navigation will provide aircraft with the critical information needed to navigate without visual references and maintain safe distances from other aircraft during nonvisual conditions. 10 Super density operations would match land and airside throughputs of an airport in order to meet future demand. The realization of the previously described capabilities will enable peak throughput performance at the busiest airports while protecting the environment of the surrounding communities. Airport taxiway and runway configuration requirements will be specified to enable high capacity traffic operations on the airport surface. Arrival and departure spacing will be reduced, as a result of enhanced surveillance and navigation performance and the development and integration of tools to detect and avoid wake vortices. Capacity will be increased with closely spaced and converging approaches at distances closer than currently allowed, and through simultaneous operations on a single runway. The airport “landside” (including security systems) will be sized to match the passenger and cargo flow to the airside throughput.

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will ensure appropriate information protection as necessary to address national defence, security, and privacy concerns. Performance based services is an important feature of NextGen. Today’s system is rigid and constrained by an “all or nothing” binary access system where if the user does not meet all criteria and requirements for access he is denied admission. The current system has one level of service (first come, first served), and a regulatory structure largely built around specific equipment types. NextGen’s performance-based services create a definition of service tiers and allow the government to move from equipment-based regulations to performance-based regulations. Multiple service levels allow service to a wider range of users and more efficiently developed services to respond to individual needs. NextGen will ensure that: the busiest airspace will have the highest air traffic service level – thus requiring the highest level of user avionics performance. Implementation of Performance-Based Services will enable a more cost-effective service provider maintenance framework and will encourage private sector innovation. Clearly defined service tiers will allow the service provider to create service guarantees for given performance levels so that users can determine appropriate investments to meet their needs.11

In the area of air navigation, NextGen will have, as a main feature, Collaborative Air Traffic Management (CATM) which would enable flight planners and the FAA traffic managers to coordinate flight and flow decision making, thereby ensuring the improvement of overall efficiency, and the provision of greater flexibility to flight planners. CATM will make the best use of available airspace and airport capacity and reach its end objective—that of accommodating user preferences to the maximum extent possible. Under NextGen, traffic managers could impose Traffic Management Initiatives (TMIs) to effectively respond to congestion, weather, special activity airspace, or other constraints. TMIs are the tools that enable traffic managers to apply constraints on an otherwise uncontrolled or inadequately controlled process. These initiatives, which would have the flexibility of altering users’ flight plans as necessary, can also reduce the impact of TMIs by tailoring flow management actions to specific flights through a combination of increased information on the users’ preferred alternative routes; enhanced tools for assessing the impact of rerouting decisions; and improved communications and display of instructions to the controllers who must implement the initiatives. NextGen is based on the overall strategy that the future system should be defined and described although its designers are aware that the elements of the system discussed above might not be an precisely attainable at 2025. NextGen therefore remains an aim and a target that has the technological scope to be advanced as air transport progresses over the next 10 or 15 years. The fundamental philosophy of NextGen remains that it is based on global partnerships and attainable as a global

U.S. NEXT GENERATION AIR TRANSPORTATION SYSTEM, supra, note 2 in this Chapter at 3.

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system only if all the key stakeholders consistently work with each other for NextGen to attain fruition as a harmonized system.

11.2

SESAR

As its title denotes, the Single European Sky ATM Research Programme (SESAR) is a European initiative designed to modernize the European air traffic system. The objectives of SESAR (which came into being with a European Council statement of 9 June 2006 on the proposal for a Council Regulation on the establishment of a Joint Undertaking to develop the new-generation European air traffic management system) are to eliminate the fragmented approach to air traffic management (ATM) in Europe, bearing in mind that the traffic growth would double in 2030 which would necessitate that this growth is achieved through significant performance enhancement. SESAR aims at transforming the European ATM system, through the synchronization of the plans and actions of the different partners and federate resources. The concept that would use SESAR as its tool is the single European Sky. The European air traffic management system currently handles around 26,000 flights daily. Forecasts indicate air traffic levels are likely to double by 2020. Europe was faced with the initial question of how will the European airspace accommodate the increasing air traffic flows, whilst cutting costs and improving its performance? In response the European Union took the initiative of organizing airspace into functional blocks, according to traffic flows rather than to national borders. Such a project was not possible without common rules and procedures at European level. The Single European Sky (SES) was born to meet this need. The European Organization for the Safety of Air Navigation (EUROCONTROL)12 and its partners are contributing extensively to the development of new technologies and procedures that will deliver the air traffic management performance required for the twenty-first century and beyond. EUROCONTROL believes that SESAR is the answer to this issue. For the first time in European ATM history, an ATM improvement programme is involving the Aviation Players (civil and military, legislators, industry, operators, users, ground and airborne) for defining, committing to and 12

EUROCONTROL is the European Organization for the Safety of Air Navigation. Founded in 1963, it is an international organization working for seamless, pan-European air traffic management system. EUROCONTROL is a civil organization and currently has 39 member states; its headquarters are in Brussels EUROCONTROL coordinates and plans air traffic control for all of Europe. This involves working with national authorities, air navigation service providers, civil and military airspace users, airports, and other organizations. Its activities involve all gate-to-gate air navigation service operations: strategic and tactical flow management, controller training, regional control of airspace, safety-proofed technologies and procedures, and collection of air navigation charges. EUROCONTROLâ&#x20AC;&#x2122;s contribution to SESAR, through direct involvement in 200 projects and our investment of up to EUR 700 million, represents one third of SESARâ&#x20AC;&#x2122;s total effort and budget.

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implementing a pan-European programme, and to support the Single European Sky legislation. The Single European Sky came into being with Regulation (EC) No 549/200413 of the European Parliament and of the Council of 10 March 2004 which lay down the framework for the creation of the single European. The Regulation stipulates that the objective of the single European sky initiative is to enhance current safety standards and overall efficiency for general air traffic in Europe; to optimise capacity meeting the requirements of all airspace users and to minimise delays. In pursuit of this objective. The aim of the Regulation was to establish a harmonised regulatory framework for the creation of the single European sky by 31 December 2004. The application of this Regulation does not prejudice Member States’ sovereignty over their airspace and the requirements of the Member States relating to public order, public security and defence matters. It does not cover military operations and training. Article 8 of the Regulation stipulates that the development of implementing rules of the Regulation fall within the remit of EUROCONTROL, and that the European Commission shall issue mandates to EUROCONTROL setting out the tasks to be performed and the timetable therefore. SESAR has three phases. The first phase, called the definition phase, ended in 2008 (2006–2008), and delivered an ATM master plan defining the content, the development and deployment plans of the next generation of ATM systems. This definition phase was led by EUROCONTROL, and co-funded by the European Commission under the Trans-European Network Transport Programme. Work was executed by a consortium comprising representatives of all air transport stakeholders. Whilst most of the consortium members were European Organizations, the consortium was also opened to non European actors. The development phase (2008–2016) will produce the required new generation of technological systems and components as defined in the definition phase. For this phase the European Commission proposed the creation of a joint undertaking, based on the GALILEO14 model, which will federate public and private funds (Community, EUROCONTROL, industry and third countries) and guarantee a single management structure for the project, as well as a governance model associating all actors involved (public and private). The third phase—the deployment phase (2013–2025) will seek to build the new infrastructure at a wide scale both in Europe and in partner countries. This will be carried out under the responsibility of the industry without further public funding.

See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri¼CELEX:32004R0549:EN:NOT. Galileo is a global navigation satellite system (GNSS) currently being built by the European Union (EU) and the European Space Agency (ESA). The €20 billion project is named after the famous Italian astronomer Galileo Galilei. One of the political aims with Galileo is to provide a high-accuracy positioning system upon which European nations can rely independent from the Russian GLONASS\nd US Global Positioning System (GPS) systems, which can be disabled for commercial users in times of war or conflict.

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SESAR has also a noteworthy environmental dimension. Its performance-driven approach aims at enabling a threefold increase in capacity, improving safety by a factor of 10%, reducing environmental impact by 10% per flight and cutting ATM costs by 50%. As an integral part of the European Unionâ&#x20AC;&#x2122;s Single European Sky programme, SESAR aims at actively contributing to sustainable air transport within, into, out and over Europe. The programme involves all aviation key players by bringing them together and secures an effective deployment of the green technological and operational improvements. The aim of the SESAR Joint Undertaking is to become the most environmentally conscious ATM development programme in the world. To this end, the SESAR programme will implement an advanced validation methodology that will ensure end-to-end consideration of environmental aspects in all R&D activities. At the same time, SESAR is in close cooperation with other European and international initiatives regarding the integration of new, environmentally friendly solutions for the aviation sector. One such project is the European Unionâ&#x20AC;&#x2122;s Clean Sky Joint Technology Initiative that will develop breakthrough technologies to significantly improve the impact of the air transport on the environment. SESAR has long term objectives in reducing the carbon footprint of aviation over European skies. These are to: achieve emission improvements through the optimisation of air traffic management services. The SESAR target for 2020 is to enable 10% fuel savings per flight as a result of ATM improvements alone, leading to a 10% reduction of CO2 emissions per flight; improve the management of noise emissions and their impacts through better flight paths, or optimised climb and descent solutions; improve the role of ATM in enforcing local environmental rules by ensuring that flight operations fully comply with aircraft type restrictions, night movement bans, noise routes, noise quotas, etc.; improve the role of ATM in developing environmental rules by assessing the ecological impact of ATM constraints, and, following this assessment, adopting the best alternative solutions from a European sustainability perspective.

Chapter 12

ICAO and the Exploration and Use of Outer Space

The ICAO Assembly, at its 16th Session held in Buenos Aires from 3 to 26 September 1968, adopted Resolution A 16-11 (Participation by ICAO in Programmes for the Exploration and Use of Outer Space). The Assembly, recognizing that the events of the past years were of great interest to ICAO, since many of the activities affect matters falling within ICAO’s competence under the provisions of the Chicago Convention, and that the United Nations had recognized the competence of certain specialized agencies that could perform various useful functions and such interest had to be welcomed and encouraged, the Assembly resolved that ICAO be responsible for stating the position of international civil aviation on all related outer space matters and for stating international civil aviation’s particular requirements in respect of application of space technology.

12.1

The Aerospace Plane and Sub Orbital Flights

At an open forum discussion held on 6 April 1989 during the Annual Meeting of the American Society of International law in Chicago the legal and policy issues of the aerospace plane were brought to focus, and on the subject of delimitation of applicable laws, a view was expressed by academics of McGill University’s Institute of Air and Space Law that the activities of the aerospace plane as a space traversing device used for point to point earth transportation could be governed by air law. It was the view of these academics that should the principle of air law apply, it was necessary for bilateral agreements to be signed between States prior to an international flight by the aerospace plane. It is logical to assume that, speaking from a purely commercial point of view, it follows logically that the aerospace plane which transports persons and goods between States should be considered an aircraft, even if it traverses through space at a given time. Recently, the official launch of space tourism, where paying customers travelled beyond Earth’s atmosphere, gave rise to an entirely different dimension, where the different issue of sub-orbital flights has emerged as requiring some consideration, particularly on the question as to whether such flights travel to outer space or whether they are deemed to be considered as not leaving the Earth’s atmosphere. R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_12, # Springer-Verlag Berlin Heidelberg 2012

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Unlike the aerospace plane which would leave the territory of one State as an aircraft, enter outer space and travel in outer space until it descends to a destination State, sub-orbital flights would not usually travel between two States but would ascend to an altitude sufficient for the persons on board to view the Earth as a whole globe, a phenomenon not available to aircraft passengers. The vehicle would descent to the State from which it took off. This activity is called “sub-orbital flying” and is gaining increasing popularity in the realm of space tourism. One of the issues that sub orbital flights raise is whether, at the height the flights are conducted, the vehicle is deemed to be in air space or outer space. Therefore, sub orbital flights inevitably call for a determination as to what might be air space, as against outer space. The Permanent Court of International Justice, when requested for a definition of “air space” in the 1933 Eastern Greenland’s Case,1 was of the view that the natural meaning of the term was its geographical meaning. The most fundamental assumption that one could reach from this conclusion is that air space is essentially geophysical, meaning that it is space where air is found. Simplistically put, “air space” has been considered as going upwards into space from the territorial boundaries of a State and downwards to the centre of the Earth, in the shape of an inverted cone. This theory, advanced mathematically, in terms of space where air is found, would encompass the atmosphere, which has is layered into components starting from the troposphere (from sea level to about 10 km); the stratosphere (from about 10–40 km up); the ionosphere (from about 40–375 km); and the exosphere (from 375 to 20,000 km). Based on this methodology, a sub-orbital flight, which goes up to about 62.5 miles (100 km) above the landmass of the Earth, would hover somewhere in the lower level of the ionosphere, prompting the conclusion that it is a space flight traversing outer space, while others would maintain that the vehicle does not leave the Earth’s atmosphere and therefore is airborne. The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), which is the UN forum where technical and legal aspects of space activities with global impact are considered, has discussed the issue of the definition and delimitation of outer space from 1962 and no definite conclusion has been reached so far in this regard. In this connection, it is of interest to note that the Legal Subcommittee of UNCOPUOS, through its Working Group on Matters Relating to the Definition and Delimitation of Outer Space, has been considering possible legal issues with regard to aerospace objects. A questionnaire thereon has been circulated to all U.N. Member States. A compilation of the replies received so far and an analytical summary of such replies, as well as a historical summary on the consideration of the question on the definition and delimitation of outer space, may be found on the OOSA website.2 As debated for decades in the framework of UNCOPUOS, it may be questioned whether the vertical limit of airspace would be critical to determine the scope of

PCIJ Series A/B, No. 53, at pp.53ff. www.oosa.unvienna.org/index.html.

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applicability of air law as opposed to international space law conventions (spatialist approach), or whether the type of activities at issue would determine which law should apply (functionalist approach) to sub orbital flights. The latter school of thought submits that flights which would be passing merely in transit through (sub) orbital space in the course of an earth-to-earth transportation would be in air space and therefore remain subject to principles of air law. A sub-orbital flight is a flight up to a very high altitude which does not involve sending the vehicle into orbit. Sub-orbital trajectory, which a sub orbital flight would follow, is defined in the legislation of the United States as “The intentional flight path of a launch vehicle, re-entry vehicle, or any portion thereof, whose vacuum instantaneous impact point does not leave the surface of the Earth.” In 2004, SpaceShipOne was the first private vehicle to complete two sub-orbital flights within 2 weeks carrying weight equivalent to three human adults up to about 62.5 miles (100 km) to win the Ansari X Prize. It was carried during 1 h by an aeroplane up to nearly 50,000 ft (9.5 miles) from where it was released into a glide and then propelled vertically for 80 s by a rocket motor to an altitude of more than 62 miles at apogee, reaching a speed over Mach 3. Then falling back to return to earth, it re-entered the atmosphere and glided during 15–20 min before landing back on the runway of departure. SpaceShipOne, strictly speaking, does not operate as an aeroplane or even as an aircraft during the ballistic portion of the flight while it is not supported by the reactions of the air, even though some degree of aerodynamic control exists throughout the trajectory from launch altitude until the craft enters the upper reaches of the atmosphere where the air density is no longer sufficient for aerodynamic flight. After apogee, during re-entry into the atmosphere the vehicle transitions to unpowered aerodynamic (gliding) flight for the return to earth. Consequently, depending upon some design and operational aspects, it could be considered operating as an aircraft in flight during this latter portion of the journey. Therefore, such vehicles could fulfil the principal elements in the definition of aircraft and be used as such during a portion of their flights, but they offer some characteristics of a rocket as well. It is likely that other vehicles engaged in the future in such sub-orbital flights would similarly be of an hybrid nature, taking into account that developments to come may lead to a range of designs, some of which could be more clearly classified as aircraft. Should sub-orbital vehicles be considered (primarily) as aircraft, when engaged in international air navigation, consequences would follow under the Chicago Convention, mainly in terms of registration, airworthiness certification, pilot licensing and operational requirements (unless they are otherwise classified as State aircraft under Article 3 of the Convention). Plans have been announced by Virgin Galactic for the development of a fleet of five sub-orbital vehicles to carry paying passengers, six per vehicle; it plans that the first of these will be ready for commercial operations in 2008 at the earliest. There are indications that at least one other company is planning to offer rival sub-orbital flights.

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Manned and unmanned sub-orbital flights have been undertaken to test spacecraft and launch vehicles intended for later orbital flight, but some vehicles have been designed exclusively to reach space sub-orbitally: manned vehicles such as the X-15 and SpaceShipOne, and unmanned ones such as ICBMs and sounding rockets. Sub-orbital tourist flights will initially focus on attaining the altitude required to qualify as reaching space. The flight path will probably be either vertical or very steep, with the spacecraft landing back at its take-off site. The spacecraft will probably shut off its engines well before reaching maximum altitude, and then coast up to its highest point. During a few minutes, from the point when the engines are shut off to the point where the craft begins to slow its descent for landing, the passengers will experience. A suborbital flight is known to be the next generation of commercial passenger travel. At the present time flight testing of commercial reusable launch vehicles (RLVs) is underway, making the availability of frequent suborbital flight closer than ever. As earlier mentioned sub orbital flights are a considered missions that fly out of the atmosphere but does not reach speeds needed to sustain continuous orbiting of the earth. They allow passengers to look down at the brilliant curvature of the earth as they would from orbit. One must not confuse a sub orbital flight with a space flight which is a flight into or through space. The craft which undertakes a spaceflight is called a spacecraft. It is often thought that orbital spaceflights are spaceflights and sub-orbital spaceflights are less than actual spaceflights. This is not entirely accurate as both orbital and suborbital spaceflights are true spaceflights. The term orbit can be used in two ways: it can mean a trajectory in general, or it can mean a closed trajectory. The terms sub-orbital and orbital spaceflights refer to the latter: an orbital spaceflight is one which completes an orbit fully around the central body. From the above discussion the conclusions that could be drawn are that for a flight from Earth to be a spaceflight, the spacecraft has to ascend from Earth and at the very least go past the edge of space. The edge of space is, for the purpose of space flight, often accepted to lie at a height of 100 km (62 miles) above mean sea level. Any flight that goes higher than that is by definition a spaceflight. Although space begins where the Earthâ&#x20AC;&#x2122;s atmosphere ends, the atmosphere fades out gradually so the precise boundary is difficult to ascertain. Therefore one could argue that there is a need to accept the fact that vehicles which would effect earth-to-earth connections through sub-orbital space could incorporate the constitutive elements of aircraft and fly as such at least during descending phase while gliding. However, rocket-propelled vehicles could be considered as not falling under the classification of aircraft. From a spatialist viewpoint, there is no clear indication in international law on the delimitation between airspace and outer space which would permit to conclude on the applicability of either air law or space law to sub-orbital flights. On the other hand, it might be argued from a functionalist viewpoint that air law would prevail

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since airspace would be the main centre of activities of sub-orbital vehicles in the course of an earth-to-earth transportation, any crossing of outer space being brief and only incidental to the flight. The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), and more particularly its Legal Subcommittee, is considering the question of possible legal issues with regard to aerospace objects but no final conclusion has been reached yet.

Chapter 13

Vulnerabilities of the Air Transportation System to Loss or Degradation of the GPS Signal

With the introduction of NextGen and SESAR comes the significance of the role played by satellite communication. The Global Positioning System (GPS) is founded on a constellation of 21 satellites orbiting the Earth at extremely high altitude. These satellites have been called “man made stars” that replace stars traditionally used for navigation through centuries in time.1 The satellites in the GPS are known to use technology sufficiently accurate to pinpoint positions anywhere in the world around the clock.2 This is achieved by using satellites and computers to triangulate positions anywhere on Earth. From an aviation perspective, GPS is considered to be the most expeditious and cost effective way that a fool-proof air collision avoidance system could be designed. GPS uses a technique called “satellite ranging”, which is based on measuring the distance of a target from a group of satellites in space, which become a precise reference point in the process of tracking. The distance to a satellite is determined by measuring the time taken by a radio signal to reach the tracking position on Earth from the satellite contacted. Essentially a satellite navigation system, the GPS was developed by the United States military in order to provide accurate navigation signals to almost any place in the world. The worldwide use of GPS was made formal in 1983 when the United States announced that the Standard Positioning Service (another term for the civilian signal of GPS) would be made available to users on a continuous, worldwide basis, free of charge for an indefinite period of time. In December 1993, the GPS satellite constellation was declared operational for civilian use, consequent to a memorandum being signed in January 1993 between the Department of Transportation and the Department of Defence. A second civilian frequency was added in 1997 followed by a third frequency for civilian use in January 1999. Although at present, GPS is not used as the sole navigation system in US national airspace or in any other jurisdiction, it is expected that GPS will play a key role in providing substantial navigational aid to air transportation in the near

Hurn (1989) p. 7. Id. 8. These satellites assist delivery vehicles and emergency vehicles in getting to their destinations under accurate and prompt guidance. 2

R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_13, # Springer-Verlag Berlin Heidelberg 2012

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future.3 Due to the accuracy and advantage offered with its high velocity signals, GPS and its augmentations will be a critical player in supporting the Communications, Navigation, Surveillance and Air Traffic Management (CNS/ATM) initiatives of air navigation. As was stated earlier, the principle of State sovereignty in airspace is embodied in Article 1 of the Chicago Convention which recognizes that every State has sovereignty over the air space above its territory, the latter being defined in Article 2 as land situated within and water adjacent to the State concerned. As for rights over airspace over the high seas, Article 87 of the United Nations Convention on the Law of the Sea of 19824 awards freedom for the aircraft of all States to fly over the high seas. An important consideration in delineating territorial sovereignty lies in the expansion of Flight Information Regions (FIR) and the provision of air traffic management services by States particularly when such measures are influenced by the revenue generating capabilities that are inherent in such an expansion of scope. The Chicago Convention, in its vision and wisdom, incorporates various provisions regarding a provision of air navigation services by States to aircraft flying over their territories. Firstly, the Convention guarantees, through provisions included in Chapter XV, that States, which are unable to provide air navigation services to aircraft will be assisted. Secondly, Article 15 of the Convention assures airlines that every airport in a Contracting State that is open to public use by its national aircraft shall also be open under uniform conditions to the aircraft of all the other Contracting States. The conditions are deemed to apply to the use, by aircraft, of every Contracting State of all air navigation facilities, including radio and meteorological services, which may be provided for public use for the safety and expedition of air navigation. Charges levied for such services are deemed by Article 15 to be antidiscriminatory whereby aircraft are not to be charged for airports and air navigation services provided to them at a rate higher than those levied on the national carrier of the State which provides the service. To this end, Article 28 of the Convention obligates Contracting States to provide, as far as practicable in their territories, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation according to Standards established pursuant to the Convention. The tightly-set legal parameters of the Chicago Convention, particularly the assurance of air navigation services on an equal and non-discriminatory basis, are relevant in the twenty-first Century, where service providers and airline operators have to collaborate in ensuring a seamless global air navigation system. Modern technology offers sophisticated air-ground data communications by VHF (very high frequency) and satellite, assisted by precise navigation by inertial/GNSS and computing in air traffic services. These will be used in the negotiation of â&#x20AC;&#x153;dynamic user preferred routesâ&#x20AC;? offering various alternatives to airline operators which

Id. 6. The Law of the Sea, Original Text of the United Nations Convention on the Law of the Sea, all Annexes and Index, United Nations: New York, 1983.

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provide fuel and time savings. However, such preferences for flight profiles and uses thereof will be subject to meteorological exigencies which have to be cautiously assessed. This imposes an added burden on both the service provider and airline operator. Judgment and interpretation will be critical factors in this process, an inevitable corollary of which will be the need to examine legal aspects of the modern seamless air traffic management system. As stated earlier, responsibility of States for the provision of air navigation services in their territories is founded in principles contained in Article 28 of the Chicago Convention of 1944.5 It must be noted that this is not an absolute obligation as the State is called upon to provide such services only in so far as it finds practicable to do so. In order to cover an eventuality of a State not being able to provide adequate air navigation services, the Convention imposes an overall obligation on the Council of ICAO in Article 69 to the effect that the Council shall consult with a State which is not in a position to provide reasonably adequate air navigation services for the safe, regular, efficient and economical operations of aircraft. Such consultations will be with a view to finding means by which the situation may be remedied. Article 70 of the Chicago Convention even allows for a State to conclude an arrangement with the Council regarding the financing of air navigation facilities and the Council is given the option in Article 71 of agreeing to provide, man, maintain and administer such services at the request of a State. The 31st Session of the ICAO Assembly, in December 1995, adopted Resolution A31-7 pursuant to which the Council established a Panel of Experts on the Establishment of a Legal Framework with Regard to Global Navigation Satellite Systems (LTEP). The Panel was charged, inter alia, to develop a legal framework of conduct regarding the use of the GNSS. The framework developed by the LTEP took the form of a Charter containing various principles for the implementation and operation of GNSS, such as recognition of the paramount nature of safety in international civil aviation; non-discrimination and universal applicability and accessibility of GNSS; inviolability of Statesâ&#x20AC;&#x2122; sovereign rights; continuity, integrity, availability and reliability of services; and international cooperation. The Charter was recognized by the ICAO Council, at its 153rd Session in March 1998, as being worthy of submission to the 32nd Session of the Assembly, which in turn adopted the text of the Charter in a Resolution. The ICAO Assembly, at its 32nd Session in 1998, adopted Resolution A32-19 (Charter on the Rights and Obligations of States Relating to GNSS Services) containing fundamental principles of a Charter of Rights and Obligations of States in relation to GNSS Services.6 In the Resolution, States, whilst recognizing that the primary use of GNSS services is to maintain safety in international civil aviation, reaffirm the principle that every State and aircraft of all States shall have access, on a non-discriminatory basis, and under uniform conditions to the use of GNSS services. The Resolution also grants every

Id. Article 28 a). Res A32-19, Charter on the Rights and Obligations of States Relating to GNSS Services. Assembly Resolutions in Force (as of 5 October 2001) Doc. 9790, at V-3.

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State authority and control over aircraft operations over their territory, and, inter alia imposes obligations on provider States to ensure continuity, availability, integrity, accuracy and reliability of such services. It is at this point that the problem arises, and legal discourse begins. The mere fact that the Charter is now an ICAO Assembly Resolution has prompted the comment: Adopted in the form of an Assembly Resolution, the Charter cannot be accorded any legal force and therefore must be regarded as legally not binding. Some commentators, having expressed serious doubts as to the usefulness of the instrument, seem to be somewhat displeased with the nomenclature employed which would be indicative of a legal instrument of fundamental importance7

This is seemingly consistent with another view on the ICAO Assembly which states that: [ICAO] Assembly recommendations . . . are more than hortatory. They are designed to set global norms in a field where there is widespread acknowledgment of the need for ordered conduct. They are adopted by a plenary body, with the shared expectation that States will follow them to the extent that they are able to. They clearly are not binding, but they have a sufficient channelling effect to place them well above the low point on a continuum of normative instruments ranging from non law to true law.8

However, unlike the former view, this statement attributes more coercive force to ICAO Assembly Resolutions, thus making the Charter on States’ rights and obligations relating to GNSS an instrument which sets out norms and demands States to follow them if possible and is therefore in between “non law” and “true law”. What this means is that the Charter would not be totally destitute of effect in establishing certain obligations for States to perform. Therefore, the Charter becomes a reckonable force in international relations if not at international law, particularly since ICAO resolutions are highly persuasive and carry much political leverage. Above all, such an instrument could, while reaffirming existing legal principles, pave the way for an international convention that is binding on States’ Parties. The significance of the legal status regarding the current principles on the conduct of States in using space based applications in air traffic management lies in the compelling need to inquire as to whether rigid fragmentation of law and policy is really necessary, particularly in such an important area as aviation safety. Does one dismiss policy in this critical area purely on the inflexible notion that it is not enforceable? On the other hand, do States need to abandon rigid demarcations in instances such as these and agree to global adherence? The 32nd Session of the ICAO Assembly also adopted Resolution A32-20 (Development and Elaboration of an Appropriate Long Term Legal Framework to Govern the Implementation of GNSS). This resolution, which recognizes that GNSS is an important element of the ICAO CNS/ATM System, is aimed at 7

Andrade (2001) at 89. Kirgis (1995), p. 825 at 840.

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providing a framework governing safety-critical services for aircraft navigation with worldwide coverage. It also recognized, inter alia, the need for an appropriate long term legal framework to govern the implementation of GNSS and endorsed the Council decision taken earlier to authorize the ICAO Secretary General to establish a Study Group on Legal Aspects of CNS/ATM systems. The Assembly instructed the Council and the Secretary General to consider the elaboration of an appropriate long term legal framework to govern the operation of GNSS including consideration of an international convention. Resolution A32-20 was a signal development in global recognition of the need to inquire into a liability regime regarding damage caused by the GPS process through signals transmitted to air navigation facilities. The Resolution resulted in an ICAO Secretariat Study Group being established to elaborate proposals for a liability framework. The Study Group reported to the 33rd Session of the Assembly (held in Septemberâ&#x20AC;&#x201C;October 2001) in a somewhat divided way, some members recommending that the applicable regime under domestic law was adequate and appropriate to cope with the global navigation satellite system and others being of the view that a global international law instrument, such as a Convention, might be required to address issues of liability in the long term. A compromise between these two views, representing a model contractual framework, was also suggested to the Assembly as an alternative. The Assembly further remanded the matter to the Study Group to finalize the concept of a contractual framework as a first step, with a view to later considering the development of an international convention as a long term measure. At the ICAO Eleventh Air Navigation Conference, held in Montreal from 22 September to 3 October 2003, the European Organization for the Safety of Air Navigation (EUROCONTROL), on behalf of its members and those of the European Civil Aviation Conference (ECAC), presented such a contractual framework to the Conference.9 The framework contained main elements developed while taking into consideration regional requirements. The Conference was advised that, in the face of increased advancement and development of GNSS, there was a compelling need for an adequate legal and institutional framework to cover liability issues, inter alia, concerning GNSS. The main reason for this need, as was identified in support of the proposal, was that, as most States would not have direct involvement in the operation of the GNSS System or sub systems, air navigation services provided within their sovereign airspace will be compelled to rely on facilities which were beyond their control. It was also contended by EUROCONTROL and others presenting the contractual framework that States needed to be satisfied, inter alia, that there was an appropriate and adequate performance level of the GNSS signals and services offered within their airspace,

GNSS Legal Frameworkâ&#x20AC;&#x201D;Contractual Framework for the Implementation, Provision, Operation and Use of the Global Navigation Satellite System for Air Navigation Purposes, AN-Conf/11-WP/ 153, 18/9/03.

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ensuring their integrity, reliability, accuracy and continuity and that such services should come within a clearly defined liability framework. Taking into consideration the above, and with a view to filling a gap which hitherto existed, a framework agreement was proposed containing common provisions for implementation that could be used in private law contracts between parties. These provisions were calculated to address safety, certification, liability and jurisdictional issues. The framework agreementâ&#x20AC;&#x2122;s main purpose was to ensure the existence of general principles that would ensure the ultimate responsibility of a State under Article 28 of the Chicago Convention for GNSS implementation in their territory. Certain mandatory common elements, such as: the need to comply with applicable Standards and Recommended Practices (SARPs) of the applicable Annexes to the Chicago Convention and ICAO Resolutions; fault based liability; compulsory risk coverage; recourse to arbitration; waiver of the right to invoke sovereign immunity; and ICAOâ&#x20AC;&#x2122;s central role as global coordinator, formed the roots of the framework. The African States who presented an alternate proposal to the Conference of an international convention to cover liability issues of GNSS,10 reiterated the European concern that there was a large constituent of user States who by themselves could not provide GNSS services (as required by Article 28 of the Chicago Convention) but were nonetheless responsible for the provision of those services under international treaty. As such, it was the view of the African States that an international convention was needed in order to establish and adopt principles regarding provider and user responsibility and rights in the event of damage. Such a Convention, according to the African States, would also serve to provide for an international institutionalized safety and security oversight process. The African States further suggested that the Convention should be based on ICAOâ&#x20AC;&#x2122;s central responsibility to develop principles and techniques and foster planning and development of international air transportation, with safety as a paramount concern. The suggested Convention would involve mandatory submission to arbitration by parties concerned with an accident or damage and oblige providers to assure continuity, availability, accuracy and transparency while being liable for damage caused by GNSS services provided by them. The United States, on the other hand, recommended11 to the Eleventh ICAO Air Navigation Conference that there was no need for either a new contractual framework or international convention. The United States was of the view that ICAO has flexible legal tools (such as SARPs) together with a sustained and long term institutional framework and experience that would enable the Organization to continue to serve without major problems, as it had, through such major aviation landmarks as the advent of the jet engine, radar and many other scientific advancements without legal or institutional problems. As such, the United States invited the Conference to agree that work on GNSS has progressed steadily over the past

Legal Aspects of GNSS, AN-Conf/11-WP/143, 18/9/03. Legal and Institutional Issues and the Status of CNS/ATM, AN-Conf/11-WP/160, 18/9/03.

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several years and no deficiencies had been found to impede technical implementation of CNS/ATM and that such work should not be impeded or delayed by work on legal and institutional issues. A fourth school of thought, represented by the LTEP, was inclined to tie in the responsibility of States under Article 28 of the Chicago Convention to adherence to SARPs. The LTEP suggested that States providing signals in space or under whose jurisdiction such signals are provided should certify the signals in space by attesting that such provision is in conformity with SARPs. The LTEP went on to recommend that the States having jurisdiction under the Chicago Convention should ensure that avionics, ground facilities and training and licences requirements comply with ICAO SARPs.12 These recommendations were based on the LTEP’s considered view that, irrespective of whether or not a State handed over the provision of air navigation services to a privatized entity, ultimate responsibility continued to devolve upon the State for the provision of such services under Article 28 of the Convention.13 The LTEP favoured an international convention on liability as an ultimate and long term measure, taking into consideration that a GNSS induced incident may, in certain circumstances, involve multiple and complex actions in several jurisdictions, thus requiring an internationally harmonized legal regime containing a simple, clear and speedy procedure.14 One of the material issues that the LTEP had to address involved seeking some commonality in the different legal regimes applying in the various jurisdictions. For example, the law applicable in the United Kingdom was based on a fault liability system whereas the law in France was based on the principles of administrative law.15 On the other hand, the law in Canada regarding GNSS was governed by a hybrid system of common law and civil law whereas issues of liability in the United States were dealt with under the common law system in accordance with the principles of tort law.16 The laws of Italy and Australia were essentially founded on delictual (or tortuous) principles of liability. The LTEP presented its findings to the ICAO Council at the 170th Session of the Council in November 2003. In its Report,17 the LTEP advised the Council that the Panel had finalized the draft text of a Contractual Framework Relating to the Provision of GNSS Services containing obligations of the GNSS signal provider as well as those of the air traffic service provider which makes use of the signal for the provision of its services. Essentially, the draft contractual framework foresees a series of contracts between the various stakeholders while stipulating that the signal 12

Recommendation 3 of LTEP. See Report of the Secretariat Study Group on Legal Aspects of CNS/ATM Systems, First Meeting, SSG-CNS/1-Report 9, April 1999 at p. 4. 13 Id. p. 3. 14 Id. p. 5. 15 See Report of the Secretariat Study Group on Legal Aspects of CNS/ATM Systems, Second Meeting SSG-CNS/2—Report, 9 November 1999, p. 2. 16 Id. p. 3–4. 17 Progress Report on the Work of the Secretarial Study Group on the Legal Aspects of CNS/ATM Systems, C-WP/12080, 7/11/03.

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provider is obligated to provide the signals with regularity, continuity, integrity, accuracy and uninterrupted availability.18 With regard to the perceived need for an international convention as a long term measure, the LTEP advised the Council that, should a Convention be adopted, its framework should not constitute a non-tariff barrier for market access and more importantly, should not impede future technical innovations. Furthermore, it was contended that any proposed framework for a Convention must not restrict the freedom of parties of entering or terminating services. The overall submission of the LTEP to the Council was that, in view of the paucity of experience with regard to the implementation of CNS/ATM and GNSS in particular, it was premature to embark on drafting an international convention. The LTEP suggested that the Panel continue its work with a view to finalizing its remaining work.

13.1

Liability of the Signal Provider

There are two fundamental considerations to be addressed in terms of liability for faulty GPS signals that cause damage on the surface of the Earth. The first, whether liability exists for damage caused by the provision of signals emanating from outer space or whether such liability could be traced to an activity which originates in outer space, is grounded on an examination of the nature of the law pertaining to outer space activities. In other words, the first consideration relates to the liability of the signal provider. The legal and philosophical bases of space law are grounded on the principle that outer space is the common heritage of mankind and that no State or individual can therefore claim rights in rem to any portion of outer space. This essentially means that space law is solely grounded on legal principles binding on the community of nations. Principles of public international law therefore play an exclusive part in the application of space law principles. In terms of jurisprudence, space law represents the Idealist school which supports community interest over national interest. The Idealist school believes that individual interests should best be served by collective intercourse and is best illustrated by the view of Lauterpacht who was of the view: a community may be said to be the body of a number of individuals more or less bound together through such common interests as to create a manifold intercourse between single individuals.19

Id. p. 3. Lauterpacht (1955) at p. 11.

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Space law is one of the most recent additions to international jurisprudence. The emergent philosophical problem posed by space law, in its offer to mankind of a new dimension of transportation law and property law, was succinctly subsumed by Professor Bockstiegel in 1983: (Space law) . . . is the newest main field of international law . . . and it depends more than most other fields on probable and fast technical progress . . .20 It is obvious that the application of space technology will lead to the growing commercialization of space activities, since such service - at least in the long run - can only be maintained and expanded, if it is self financing . . .21

The blending of high technology with a new forensic code of conduct on hitherto unchartered territory has brought to bear the need for the community of nations to formulate a sustainable legal theory that would ensure non-exploitation of space resources by individuals or States, while at the same time incorporating the element of responsibility and liability for individual and State conduct in outer space. As mentioned earlier, the basic principle of space law is the “common interest” (or common heritage) principle which emerged as a result of the first specific Resolution on space law of the United Nations General Assembly in 1958.22 The “common interest” principle has since been incorporated in subsequent multilateral treaties, particularly the Outer Space Treaty of 1967,23 Article 1(1) which provides: [T]he exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

This provision, which binds signatory States, is seemingly a departure from the traditional “national interest” approach of international air law and has represented a moral obligation to some,24 while to others the provision has represented a jus cogens or mandatory legal principle.25 The International Court of Justice (ICJ), in the North Sea Continental Shelf Case,26 held that legal principles that are incorporated in Treaties, such as the “common interest” principle, become customary international law by virtue of Article 38 of the 1969 Vienna Convention on the Law of Treaties.27 Article 38 recognizes that a rule set forth in a treaty would become binding upon a third State as a customary rule of international law if it is generally recognized by the States concerned as such. Article 1(1) of the Outer Space

B€ockstiegel (1983) at p. 305. Id. At p. 314. 22 UNGA Resolution 1348 (XII), 13 December 1958. 23 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for Signature at Moscow, London and Washington on 27 January 1967, 610 UNTS 205. 24 Goedhuis (1976) 195 at 198–199. Also Cheng (1968), p. 532 at 578. 25 Markoff (1976) at 3. Also, Matte (1980) 1 119 at 147. Jakhu, Developing Countries and the Fundamental Principles of International Space Law (Girardot et al. ed.), 351, Christol (1983) at 1. 26 I.C.J. Reports 1970, at 32. 27 The Vienna Convention on the Law of Treaties will be discussed later in this paper. 21

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Treaty, which designates that the use of space technology is achieved under the â&#x20AC;&#x153;common interestâ&#x20AC;? principle for the common good of humanity, therefore becomes a principle of customary international law, or jus cogens. Obligations arising from jus cogens are considered applicable erga omnes which would mean that States using space technology owe a duty of care to the world at large in the provision of such technology.

Article VI of the Outer Space Treaty provides in part that State Parties to the Treaty shall bear international responsibility for national activities in outer space, whether such activities are carried out by governmental agencies or nongovernmental agencies. This provision clearly introduces the notion of strict liability erga omnes to the application of the jus cogens principle relating to outer space activities of States and could be considered applicable in instances where States hold out to the international community as providers of technology achieved and used by them in outer space, which is used for purposes of air navigation. Article VI further requires that the activities of non-governmental entities in outer space shall require authorization and continuing supervision by the appropriate State Party to the Treaty, thus ensuring that the State whose nationality the entity bears would be vicariously answerable for the activities of that organization, thereby imputing liability to the State concerned. Article VII makes a State Party internationally liable to another State Party for damage caused by a space object launched by that State. The Registration Convention of 197429 in Article II(1) requires a launching State of a space object that is launched into earth orbit or beyond, to register such space object by means of an entry in an appropriate registry which it shall maintains and inform the Secretary General of the United Nations of the establishment of such a registry. This provision ensures that the international community is kept aware of which State is responsible for which space object and enables the United Nations to observe outer space activities of States. Article VI of the Convention makes it an obligation of all State Parties, including those that possess space monitoring and tracking facilities, to render assistance in identifying a space object which causes damage to other space objects or persons. Justice Manfred Lachs analyses these provisions of the Registration Convention to mean that the State of registry and the location of the space object would govern jurisdictional issues arising out of the legal status of space objects.30 On the issue of joint launching of space objects, Justice Lachs observes:

Yearbook of International Law Commission 1976, Vol II, Part One at 29. Convention on Registration of Objects Launched into Outer Space, Adopted by the General Assembly of the United Nations, New York, 12 November 1974, 1023 UNTS 15. 30 Lachs (1972) at 70. 29

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No difficulties arise whenever a State launches its own object from its own territory; the same applies to objects owned or launched by non-governmental agencies registered in that State. However, in cases of joint launching, agreement between the parties is required as to which of them is to be deemed the State of Registry:. A similar agreement is also necessary when a launching is carried out by an international organization.31

The above provision ensures the identification of parties responsible for specific activities in outer space and thereby makes it easier to impose liability for environmental damage caused. The Outer Space Treaty,32 while expostulating the fundamental principle in its Article 1 that the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, explicitly imposes in Article VII international liability and responsibility on each State Party to the Treaty, for damage caused to another State Party or to its populace (whether national or juridical) by the launch or procurement of launch of an object into outer space. In its preceding provisions the Treaty imposes international responsibility on States Parties for national activities conducted in outer space. The Treaty also requires its States Parties to be guided by the principle of co-operation and mutual assistance in the conduct of all their activities in outer space.33 This overall principle is further elucidated in the same provision: States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extra terrestrial matter.34

The Moon Agreement35of 1979 provides that in the exploration and use of the moon, States Parties shall take measures inter alia to avoid harmfully affecting the environment of the earth through the introduction of extra terrestrial matter or otherwise.36 The Liability Convention37 contains a provision which lays down the legal remedy in instances of damage caused by Space objects. Article II provides:

Ibid. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature at Moscow, London and Washington, 27 January 1967, 610 UNTS 205. 33 Id. Article IX. 34 Ibid. 35 Agreement Governing the Activities of States on the Moon and other Celestial Bodies, signed on 5 December 1979, UN Doc A/RES/34/68 of 5/12/1979. 36 Id. Article 7. 37 Convention on International Liability for Damage Caused by Space Objects, March 29 1972, 24 U.S.T 2389, T.I.A.S No. 7762. 32

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A launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft in flight38

Thereby imposing a regime of absolute liability on the State that launches space objects such as satellites, which provide technology and communication that is used for air navigational purposes. Although admittedly, both the Outer Space Treaty and the Liability Convention do not explicitly provide for damage caused by technology and communication provided by space objects, culpability arising from the “common interest” principle and liability provisions of the two conventions can be imputed to States under these Conventions. However, it must be noted that such culpability would arise, particularly under a common law structure, only under compelling circumstances where liability of the provider can be clearly established through principles of fault liability which are discussed below, since State responsibility, both in terms of the actual provider of the services from outer space and the State which provides such services within its territory are grounded on the same principles.

13.2

Liability of the State Providing Air Navigation Services Through GPS Signals Obtained from Outer Space

The second consideration pertains to the extent to which a State can be held liable for the provision of air navigation services to aircraft flying within its territorial airspace. The fundamental issue in this regard is the extent to which a State is obligated to provide air navigation services within its territory. As discussed earlier, the Chicago Convention is somewhat ambivalent in Article 28, specifying only that Contracting States undertake to provide such services “as far as practicable” to “facilitate” air services. There is no mandatory element in this provision which finds a State legally reprehensible for not providing air navigation at any cost as an obligation under international treaty. Furthermore, the provisions in Chapter XV of the Convention (in particular Articles 69–71) casts further doubt on the existence of any peremptory obligation on the part of a State by placing an obligation on the Council to step in and provide air navigation services if the Council feels that a particular Contracting State needs assistance. This places a certain obligation on the Council to be aware of deficiencies in the provision of air navigation services globally and seemingly absolves States of an absolute obligation. Notwithstanding the above, it cannot be deduced that a State has no responsibility whatsoever under Article 28 of the Chicago Convention for services provided within its territorial boundaries. Inasmuch as a service provider will be considered at fault if he negligently provides faulty signals from outer space, a State, which 38

Article II(a) defines damage as including loss of life, personal injury or other impairment of health; or loss or damage to property of States or of persons natural or juridical, or property of international governmental organizations.

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247

obtains such signals in its territory would be responsible to the user, under basic common law principles of fault liability. State responsibility is accepted in modern parlance as an established principle of public international law. This principle is based on both substantive rules of law and the imputability to a State of acts and omissions of that State that may be categorized as legally reprehensible or illegal by reference to established norms and rules identifying rights and duties.39 The notion of culpa is often used to denote blameworthiness predicated upon reasonable foreseeability or foresight without consequences. Culpa is generally not a condition of liability per se, but in certain contexts it may be imputed to a State whose officials are negligent in not foreseeing the consequences of their acts or omissions. In such instances a causal nexus has of necessity to be established between the act or omission and the result. In the Lighthouse arbitration, which was undertaken in 1956 by the Permanent Court of International Justice, the Court held that damage should be a foreseeable and normal consequence of an act or omission.40 In instances where a State engages in lawful practices, responsibility may be attributed to a State for lack of diligence.41 This principle is borne out by the fundamental judicial acceptance that the State bears an international responsibility for all acts committed by its officials or its organs which are delictual or tortuous according to principles of public international law.42 In order that this objective criterion of responsibility be applied it is important to determine that official act as authorized officials or instrumentalities of State, or that in so acting or omitting to act they use powers or measures appropriate to their official character. It has been the tradition at international law that responsibility for the acts of individuals who act on behalf of States are attributed to the State itself. In fact, the State is presumed to act through the individuals who serve it.43 Therefore, in terms of State responsibility the role played by the individual as an agent of the State becomes irrelevant, as was laid down in the early MacLeod case44 where it was accepted that the destruction of a vessel by a national of a State cannot be the subject of liability of the individual concerned who was responsible for the act he performed while carrying out duties for his national government. Rather, it was a matter for the two governments concerned. In the more recent case of Selmouni v. France45 heard in 1999, the European Court of Human Rights, following the Macleod principle, held that an act of torture carried out by a police officer of the

See Brownlie (1992). RIAA xii 217â&#x20AC;&#x201C;18; ILR 23 (1956), pp. 352â&#x20AC;&#x201C;353. 41 In re Rizzo, ILR 22 (1955), pp. 317 at 322. 42 The Caire claim, (1929) RIAAV, p. 516 at p. 530. 43 Case of Certain Questions relating to Settlers of German Origin in the Territory Ceded by Germany to Poland, Advisory Opinion PCIJ Series B No. 6, 22. 44 Reported in Moore, II A Digest of International Law, 409 et seq; reproduced in McNair, 2 International Law Opinions, Cambridge University Press, 1956, 224. 45 EHCR Reports V (1999) 29 EHRR 403, para 87. 40

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French Government should be attributed to France under international treaty and not to the individual concerned. The court noted that responsibility of the individual is largely a matter to be adjudicated under the local laws of a State and not under international law.46 Liability for negligence at common law in the United States with regard to defective products was rooted in concepts of strict liability, as enunciated in the 1960 decision of Heningsen v. Bloomfield Motors.47 The Heningsen case resulted in a decision which established the principle that a plaintiff may recover for injuries caused by a defective product notwithstanding the plaintiff’s inability to prove negligence or lack of duty or care on the part of the defendant in manufacturing the product. The Heningsen decision involved identifying liability of a car manufacturer and dealer, both of whom were found liable to a customer who had purchased a defective car which had veered off the road and crashed, injuring the plaintiff. The rationale for the decision is backed by academic authority which heavily supported the view that the law should provide maximum protection to consumers when it came to using products which might affect human life, health and safety.48 The statutory basis for the imposition of strict liability was grounded in Section 402A of the Restatement (Second) of Torts which held a manufacturer of products and a retailer strictly liable to consumers who are injured by defective products even though the manufacturer and retailer (seller) might have exercised all possible care in producing the article concerned. Of the various criteria and tests applied within the strict liability umbrella, the risk-benefit test, adopted by several jurisdictions, is relevant to the instance of satellite signals and damage caused by their relay. The test, which determines whether a product is unreasonably dangerous, is based on balancing the danger a product poses against the benefits accrued to a society in using that product.49 In the 1992 case of Armentrout v. FMC-Corp,50 the court used criteria such as the usefulness of the product; attendant safety aspects of the product; the manufacturer’s ability to eliminate defects in the manufacturing process; the user’s ability to avoid potential danger in the use of the product; the user’s knowledge of the product and his awareness of the proper manner in which to use the product; and the ability of the manufacturer to spread the risk posed by the product by obtaining insurance and lowering the price of the product. The Restatement (Third) of Torts, proposed in 1992, eliminates the need to consider strict liability as the sole criterion for awarding damages for injuries 46

It must be noted, however, that this principle which can be perceived as being generally applicable to the issue of liability for faulty communications signals generated from outer space is not all pervasive and does not exclusively apply in all instances. Offences such as genocide, crimes against humanity terrorism, torture and involvement in wars of aggression can involve both the individual and the State concerned. See Nollkaemper (2003), 615 at 618–619. 47 161 A2d. 65 (N.J. 1960). 48 Prosser (1960). 49 Deway v. R.J. Reynolds Tobacco Company 577 A2d. 1239 (N.J. 1990). 50 842 P.2d 175 at p. 183–84 (Colo. 1992).

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249

caused by a defective product. The new Restatement applies both to sellers of a product and also those who otherwise distribute a product. With regard to design defects, the new Restatement adopts a “reasonable standards” test which takes into account the foreseeable risks of harm posed by the product that might have been reduced or avoided by the adoption of a reasonable alternate design. A case in point, which clearly established liability criteria regarding the provision of air navigation services in the United States was in Eastern Airlines v. Union Trust Co.51 which established the rule that air traffic controllers had no discretion to be negligent in their work and that they could not shelter themselves behind the fact that they worked for an instrumentality of State in matters pertaining to their individual liability. The more recent case of Rose Stone v. Courtyard Management Corp. et al,52 which involved injury caused to the plaintiff by a defective revolving door in a hotel, the court held that the defendant hotel could not absolve itself from liability on the ground that the manufacturer was solely liable. The Court was of the view that the situation (of the defective door) was peculiarly in the defendant’s hands and it was fair to call upon the defendant to explain, if he wished to avoid any adverse inference being made against his own responsibility.53 The Rose Stone principle could be applied to the liability of a State providing air navigation services with signals obtained through the original provider’s satellites. It could also apply to state officials and grass-roots services provided such as air traffic controllers. The law applicable in the United Kingdom is reflected in the case of Lagden v. O’Connor54 which extended the principle of negligence at common law to liability for consequential damages actually incurred. Early English common law was grounded in the case of Winterboltom v. Wright55 which insulated a manufacturer and supplier of defective products from liability. With regard to State liability, the Crown Proceedings Act 1947 broke new ground in obviating the existing rules— that the Crown was protected from liability on the basic principle that the king can do no wrong and that, procedurally, the king could not be sued in courts. Prior to 1947, a member of the public could not sue the Crown for damage sustained.56 However, notwithstanding the fact that the Crown is liable for its acts and that of its officials, certain exceptions still apply, as in the case of members of the armed forces who are precluded from suing the British Crown for injuries suffered while serving the Country.57

221.F.2d.62 (D.C. Cir.) Revised 350 U.S. 907 (1955), modified 350 U.S. 962 (1956). Decided on 22 December 2003, Docket No. 03-7112. U.S. Court of Appeals for the Second Circuit. 53 Id. p. 9. 54 House of Lords Session 2003–2004, case decided on 4 December 2003 on Appeal from [2002] EWCA Cir 510. 55 10 M & W 109, 152 Eng. Rep. 402 (Exch. 842). 56 Macgregor v. Lord Advocate, 1921 SC 847. 57 Matthews v. Ministry of Defence, Opinions of the House of Lords, Thursday 13 February 2003 on appeal from [2002] EWCA Cir 773. 52

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In the realm of ordinary expectation and according to existing law, liability and responsibility of a State in providing faulty signals in the process of air navigation causing damage to aircraft in flight should involve only the State concerned and not officials whose actions result in such damage. Where the original service provider transmitting signals from outer space is concerned, there are clear liability provisions regarding outer space activity, such as Article VII of the Outer Space Treaty which establishes liability of a State in pecuniary terms for damage caused by that Stateâ&#x20AC;&#x2122;s activities in outer space.58 It must also be noted that Article VI of the Treaty makes it absolutely clear that there is a distinction in terms of liability between a State and its subjects. This is somewhat different from the usual practice at international law where, in instances which individuals in authority negligently misuse such authority the international community may proceed with attaching reprehensibility both to the individual as well as the State concerned, since traditionally, at public international law, the law relating to international responsibility need not necessarily be bifurcated into individual and State responsibility in all circumstances. However, within national parameters, although a State which provides air navigation services under Article 28 of the Chicago Convention will be ultimately responsible, the international community might not be precluded from attaching responsibility to an agent of a State providing such services if deliberate intent or gross negligence can be attributed or imputed to such person. Notwithstanding established principles of space law the delicate issue of signals generated in outer space where activity is carried out for the benefit of all mankind, and used terrestrially within the airspace of countries, makes it particularly susceptible to consideration in an entirely different perspective from the usual principles of State responsibility. While satellite signal providers are deemed to provide the service gratuitously, thus making their intent seemingly impeccable, most States which use such services within their territories to assist aircraft navigation are doing so â&#x20AC;&#x153;as far as practicableâ&#x20AC;? and only insofar as their knowledge and expertise permit them to comprehend the sophisticated and esoteric technology behind satellite communications. Therefore, within such a spectrum of activity the notion of State responsibility might inevitably be perceived in a different light, where both providers and users are moving toward a common goal of ensuring aviation safety. From a common law point of view, the particular area under discussion in this article raises a clarion call to go back to the innovative approach adumbrated by Lord Wilberforce in the 1976 case of Anns v. Merton London Borough Council.59 His Lordship observed that in order to establish that a duty of care arises in particular situation, it is not necessary to apply the facts of that situation to previous situations in which a duty of care has been perceived to exist. Rather, the proper 58

This provision takes after a 1962 United Nations Resolution (G.A. Res. 1962 (XVIII) (December 13, 1963) which provided that each State which launches or procures the launching of an object into outer space, and each State from whose territory or facility an object is launched, is internationally liable for damage to a foreign State or to its natural or juridical persons by such objet or its component parts on the Earth, in air space or in outer space. 59 1978 AC 728.

References

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approach would be to establish proximity of relationship between the parties and the element of reasonable contemplation where, analogically, the provider of satellite signals may be considered as having foreseen injury to the defendant. Secondly, and more importantly, Lord Wilberforce stressed that it was necessary to determine the extent to which the defendant could have mitigated the damage. There could be no better criteria than these two to determine liability in situations where the air transportation system has been made vulnerable to defective signals from outer space.

References Alessandra A.L. Andrade, The Global Navigation Satellite System, Ashgate, Aldershot: London, 2001 at 89 Karl-Heinz B€ockstiegel, Prospects of Future Development in the Law of Outer space, Annals Air and Space Law, Vol VIII, 1983 at p. 305 Brownlie, Principles of Public International Law, Fourth Edition, Clarendon Press: Oxford, 1992 Bin Cheng, The 1967 Space Treaty, 95 Journal du Droit International, 1968, 532 at 578 C.Q. Christol, The Jus Cogens Principle and International Space Law XXVI Colloquium (1983), at 1 D. Goedhuis, Some Substantive and Procedural Issues Presently at Stake in Space Legislation, 25 Zeitschrift f€ ur Luft-und Weltraumrecht - German Journal of Air and Space Law 1976 195 at 198-199. Jeff Hurn, GPS – A Guide to the Next Utility, Trimble Navigation: CA 1989 p. 7 Frederick L. Kirgis Jr., Aviation, United Nations Legal Order, Vol. 2 (Oscar Schachter and Christopher C. Joyner ed), Cambridge University Press: 1995, Chapter 18, p. 825 at 840 Manfred Lachs, The Law of Outer Space, An Experience in Contemporary Law Making, Sijthoff Leiden:1972, at 70 H Lauterpacht, International Law, 8th ed. (1955) at p. 11 M.G. Markoff, Disarmament and ‘Peaceful Purposes’ Provisions in the 1967 Outer Space Treaty, 4 Journal of Space Law (1976) at 3 N.M. Matte, Aerospace Law: Telecommunications Satellites, 166 Recueil des Cours (1980) 1 119 at 147 Andre Nollkaemper, Concurrence Between Individual Responsibility and State Responsibility in International Law, 52 ICLQ, Part 3 July 2003, 615 at 618-619 William L. Prosser, The Assault Upon the Citadel (Strict liability to the Consumer) 69 Yale L.J. 1099 at 1123 (1960)

Chapter 14

Conclusion

Air navigation law hinges itself on the heading of liability. The issue is bifurcated into criminal liability and civil liability. These two areas in turn affect three categories of respondents: the State: the corporate entity and the private individual. With privatization rapidly becoming a prolific tool of the aviation industry, the corporate entities who are responsible for the various industries within the aviation spectrum will be liable under legislation such as the Corporate Manslaughter and Corporate Homicide Act in common law jurisdictions. Private individuals, such as pilots, cabin crew and air traffic controllers would also face legal liability in case of their perceived criminal negligence. The 1927 case of People v. Crossan1 is the first reported case of criminal prosecution in the field of aviation where a pilot was prosecuted and convicted for involuntary manslaughter for the death of two young females struck by the aircraft he was flying. At the present time, the situation is becoming much more ominous. In terms of corporate manslaughter the law is steadily evolving, bringing to bear a disturbing trend that criminalizes companies for being accountable for causing death. The inquiry into the capsizing of the MS Herald of Free Enterprise on 6 March 19872 resulted in five company managers being charged with gross negligence resulting in manslaughter. Seven individuals involved at the company were charged with gross negligence manslaughter, and the operating company, P&O European Ferries (Dover) Ltd, was charged with corporate manslaughter, but the case collapsed after Justice Turner directed the jury to acquit the company and the five most senior individual defendants. The judge’s decision and the words he used to articulate his decision are worthy of note: Where a corporation, through the controlling mind of one of its agents, does an act which fulfils the pre requisites of the crime of manslaughter, it is properly indictable for the crime of manslaughter.3

(1927) 87 Cal.App. 5. In 1987 the ferry “Herald of Free Enterprise” owned by P&O turned over shortly after leaving Zeebrugge harbour in Belgium on it’s way to England, due to open bow doors. The subsequent flooding of the ship by seawater led to the death 138 people. 3 http://statutelaw.blogspot.com/2011/03/r-v-p-o-ferries-dover-ltd-1990-93-cr.html. 2

R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0_14, # Springer-Verlag Berlin Heidelberg 2012

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254

Conclusion

One of the means by which corporate management could reflect reasonable and prudent conduct is through good business ethics. The private sector in any society drives the economy by bringing new opportunities for employment, technology and capital, and paving the way for development and improvement of work conditions and standards of living. At the same time, there could be companies that violate human rights by employing underage workers (and even children) and allowing for discrimination against identified groups of employees such as women and unionized workers. There may even be instances of suppression of independent trade unions and the failure to provide acceptable safe and healthy working conditions. Some enterprises could also be adversely affecting society at large and human rights by dumping toxic waste and generally creating unsanitary conditions in the environment surrounding them. One commentator has put forward the view that courts must make directors and senior officers of companies liable for intentional torts that affect others in the course of their duties.4 A natural corollary to this approach would be to consider the employer as the insurer of the employee whereby the latter would be compensated for a tort by holding the directors and officers of a company jointly and severally liable.5 Private companies are powerful anywhere. Gabel and Bruner, in their book Global Inc,: An Atlas of Multinational Corporations,6 say that the 300 largest corporations account for more than one-quarter of the worlds productive assets. Ninety million people are employed by trans national corporations (20 million of whom live in developing countries). These companies produce 25% of the worldâ&#x20AC;&#x2122;s gross product and the top 1,000 of these companies account for 80% of the worldâ&#x20AC;&#x2122;s industrial output. Voluntary codes of conduct have been adopted by several industry associations. However, these codes tend to be highly conceptual and do not lend themselves to easy application. A recent study conducted in this area suggests that only 85 corporations have even mentioned human rights in their company codes. A good starting point for any business entity that is interested in ensuring human rights in the workplace are the Norms on the Responsibilities of Trans National Corporations and Other Business Enterprises with Regard to Human Rights approved by the UN Sub Commission on the Protection of Human Rights in August 2003. The Norms have five significant attributes that are relevant, the first being that nothing in the Norms would diminish the primary role of the State in ensuring human rights of its citizens and the pre-eminent obligation of the government in that regard. Perhaps the most important contribution of the Norms is to clearly establish that they apply not only to transnational corporations such as ENRON, Union Carbide and Worldcom, but also to national companies and local businesses. By this measure, the Norms ensure that they are applied without discrimination, whilst obviating the

See Feasby, Corporate Agents Liability in Tort, 199 32 C.B.L.J. 291 at 298. See Proctor v. Seagram, [1925] 2. D.L.R. 1112 at 1114. 6 The New Press: New York 2003 at 34. 5

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possibility of business entities skilfully seeking exemptions brought to bear by the type of organization as defined or made open to interpretation. Furthermore, this approach creates a harmonious balance between all businesses however large or small, while not being too onerous on small businesses. The Norms are far reaching and generally encompass the spectrum of human rights spread out over 23 paragraphs. They include the right to equality of opportunity and treatment; the right to security of persons; the rights of workers; the right to collective bargaining; respect for the rule of law and international and local laws; the right to a healthy work environment; the right to political and social and cultural rights; and other civil rights. The Norms are by no means laws in the nature of treaties or other international legal instruments, but remain as guidelines in the nature of other UN declarations, principles and standards. The most effective feature of the Norms is its implementation process which detail five basic implementation procedures. Firstly, the Norms allow companies to adopt their own internal procedures as best befitting them in terms of application and implementation; secondly, the Norms require businesses to evaluate their own major activities in the light of the provisions; third, the Norms require transparency and input from the various stakeholders; fourth, the Norms call for compensation, reparation or restoration in case of violations; and finally, the Norms call on the governments to draw up a framework for the application of the Norms. The Norms not only involve both governments and companies alike, but they also encourage legislatures to adopt them as part of domestic law. However, they have been questioned, particularly by the International Chamber of Commerce (ICC) and the International Organization of Employers (IOE) on the basis that it is questionable as to whether companies, as non-State actors, can be brought under human rights standards. This query goes counter to the work done by the United Nations as well as the fundamental principle the Universal Declaration of Human Rights cited at the commencement of this article of. As a compromise, the ICC and IOE have indicated that the Norms will be acceptable only as voluntary guidelines. In essence the entire process of ensuring human rights, whatever be the environment in which they are applied lies in governance. The concept of “governance” is as old as human civilization. The most simplistic definition of “governance” would be that it is the process of decision-making and the process by which decisions are implemented (or not implemented as the case may be). Governance can be categorized into several institutional bases and used in several contexts such as corporate governance, international governance, national governance and local governance. Good governance must be rewarded. Recognition should be given through “satisfaction surveys” where a direct causal nexus could be drawn between the manner in which the worker was enabled to reach a level of satisfaction with governance provided. Positive changes in expectation and results obtained should be weighed against perceived adequacies of the business entity in the provision of services. Trust in the employer, through increased levels of health and well being (which must necessarily include a sense of security of life, habitation and movement) both from cultural and religious perspectives should be a primary indicator. The elimination of corruption is a key to good governance, and civil society, which

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has been overwhelmingly proactive in building awareness on human rights issues, has succeeded in persuading the international community of the value for transparency and honesty in public transactions. Arguably, the most important key to good governance is benevolence and understanding. A good employer must assure its workforce that it has their well being at heart and pro actively move towards achieving that goal. Another disturbing aspect, as discussed earlier is in accident investigations where persons with knowledge of the circumstances that lead to an accident are reluctant to come forward to give evidence in fear of criminal prosecutions against them. This could make it more difficult for investigators to obtain valuable information, particularly when judicial proceedings are launched at the same time as the safety investigation. EUROCONTROL suggests a â&#x20AC;&#x153;just cultureâ&#x20AC;? which has been defined as a culture in which front line operators or others are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but where gross negligence, wilful violations and destructive acts are not tolerated. This is important in aviation, because we know we can learn a lot from the so-called honest mistakes7

The just culture as suggested by EUROCONTROL draws a delicate balance between protection of the public from errors of such persons as pilots and air traffic controllers and the protection of such professionals from being arbitrarily prosecuted for mistakes that are not grounded by negligence or gross negligence. The idea is for a Just Cultures to protect people against being blamed for honest mistakes, but also to lay them open for prosecution for their reprehensible conduct. The idea is neither to create a list of offences nor is it to label certain conduct as culpable. The idea is to determine the extent of accountability, responsibility exhibited by the person concerned and to draw the line in each case. The role of the judiciary in determining these factors becomes vital. Judicial action as a driver of this determination has a dichotomy of a balance between two fundamental societal interests that go to the importance of serving the interest of the public through the maximising of safety (through incident and accident investigation and reporting) and the maximising of justice (through the application of laws). The two can well conflict with each other and the prudent approach would be to establish a reasonable balance between the two while not prejudicing the interest of the professional who acts within the parameters of good employment. The next issue is civil liability. The negligent conduct of a professional in air navigation could be the cause for an action in tort. Negligent conduct could be in the form of positive action or in the form of concealment of information as in the case of a pilot who withholds critical medical information about himself.

Just Culture Guidance Material for Interfacing with the Judicial System, Edition date: 11.02.2008. Reference nr: 08/02/06-07.

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In most globalized economies, tort law,8 which is the branch of law that provides compensation for injuries to persons and property caused by the act of another, is a constantly evolving area of the law. This continuous evolution is caused by new and emerging social and economic activities brought about by technological advancement and increasing and varied commercial activity. For example, in the aviation industry, the concept of negligent entrustment of aircraft by a lessor is rapidly becoming entrenched as a separate head of liability under principles of aviation law. The issue of night curfews in European airports precluding aircraft from landing before Six in the morning stems from the tort of nuisance.9 Another case in the field of environmental law, concerning a $ 333 million class action10 which was successfully argued in court against a California utility for polluting the water supply of a local community, also comes to mind. In the area of hospitality there is the “hot coffee” paradigm of Macdonald’s fame where two States in the United States went on for law reform after learning of the true facts of the case.11 Of particular note is a new trend, in the United States, where classic tort principles are applied to emergent civil wrongs, particularly in the area of communications. A good example is the arraignment of “spammers” or unwanted email stalkers. Identity theft over the internet is also dealt with by existing principles of tort law pertaining to fraud.12 One of the inherent difficulties in dealing with tort law is that it has defied definition.13 However it has two determinants: actual or legal damages caused to the plaintiff by the act or acts of the defendant14 and the fact that the act of the defendant could be determined on the basis of fault liability15 or strict liability.16 English law has accepted the concept of incrementalism,17 which rejects generalization in relation to the duty of care, in favor of a cautious development of law 8

A ‘tort’ is simply the Norman word for ‘wrong’ but ‘torts’ have typically been distinguished from wrongs identified with contractual relations. Tort law is concerned with civil wrongs not arising from contracts. See G.E. White, Tort Law in America (1980) XI. 9 The tort of nuisance is caused by an unprivileged interference by a person of another’s enjoyment of his or her private property, causing discomfort to the latter, and invariably causing the property to diminish in value. P. B. Stein, The Price of Success: Mitigation and Litigation in Airport Growth, Journal of Air Law and Commerce, Vol. 57, Winter 1991, at p. 555. See also Abeyratne (1994), pp. 238–250. 10 Cohen et al. (2000) at 22. 11 See State ex. Rel Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d. 451 (Ohio 1999) and Best v. Taylor Machine Works 689 N.E. 2d. 1057. 12 Wilson (1998) at 7D. 13 Prosser (1964) at 1. 14 Dudley and Baylies (1876) at 11. 15 Fault liability is based on the defendant’s conduct, where the plaintiff proves that the defendant was guilty of wrongful conduct which is either intentional or negligent. See Osborne (2003) at 24. 16 The distinguishing feature of strict liability is that the plaintiff does not have to prove the guilt of the defendant of any wrongful or negligent conduct. Mere proof that the defendant caused the plaintiff’s loss in the manner prescribed is sufficient to impose liability. See Rylands v. Fletcher, (1868), L.R. 3 H.L. 330. 17 See Stanton (1997).

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founded on analogies to similar fact situations, but espousing and applying fairness and justice to each case. This approach has its genesis in the judgment of Justice Brennan in the 1985 case of Sutherland Shire Council v. Heyman18 handed down by the High Court of Australia where His Honour said: It is preferable. . .that the law should develop novel categories of negligence incrementally and by analogy with existing categories, rather than by massive extension of a prima facie duty of care restrained only by the indefinable. . .considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.19

The House of Lords found it fit to import this approach to the United Kingdom in the leading 1990 case of Caparo Industries Plc v. Dickman20 where Lord Bridge stated: Whilst recognizing, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorization of distinct and recognizable situation, as guides to the existence, the scope and the limits of the varied duties of care which the law imposes.21

Therefore, there is no simple formula or touchstone to which recourse can be had in order to provide in every case a ready answer to questions as to whether the law will or will not grant recourse based on traditional rules of negligence. In this context, one wonders whether the use of such catch phrases as “reasonably skilled professional”, without any attendant criteria to define the phrase is practical anymore. It would certainly be interesting if the “incrementalism” approach were to be applied along with established rules of law to instances of adjudication on negligence of an aviation professional in this context. Finally, a disconcerting fact is that it is claimed that the main obstacle to tort reform is that although it is desirable to keep an ongoing process of tort reform, those involved in such reform are largely duplicitous in claiming to be grass roots citizens alleging to speak for the average American, while their tax filings show that they are among the top level of tax payers and occupy high corporate positions having largely successful industrial profiles. Often the industries they represent are the defenders in cases ranging from defective products to securities scams and medical malpractice. As regards negligent entrustment, and in so far as criminalizing corporate activity is concerned, this could set a dangerous trend against efforts by the air transport industry which are calculated to ensure safety. Negligent entrustment, unless in extreme cases of criminal negligence, in its classical sense is a tort and must be treated as such, with the damage being calculated in terms of monetary compensation. Any extension of the principles under this head of liability to

(1985) 157 CLR 424. Id. 481. 20 [1990] 2 AC 605. 21 Id. at 618. 19

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criminal law would cast an undue burden on those involved in providing services that are usually given out by experts such as pilots and surgeons and their employers. They would be forced to concentrate on covering their tracks rather than ensuring the protection of those under their charge. This is a pity.

References R.I.R. Abeyratne, Aircraft Engine Emissions and Noise, Environmental Policy and Law, Vol.24, No.5; September 1994, p. 238-250 Adam Cohen et.al, â&#x20AC;&#x153;are Lawyers Running America? Their Lawsuits are Setting Policy on Guns, Tobacco and now HMOs, Who Elected Them? Time, July 17, 2000 at 22 James Dudley and Edwin Baylies, Addison on Torts, American Ed, Boston: .C, Soule, 1876, at 11 Philip H. Osborne, The Law of Torts, Second Edition, Irwin Law: Ontario, 2003 at 24 William L. Prosser, Handbook of the Law of Torts, 3d. ed. (St. Paul. Minn: West Publishing Company, 1964) at 1 See Stanton, Incremental Approaches to the Duty of Care, Chapter 2 of Mullany, Torts in the Nineties, Law Book Company:1997 David L. Wilson, Your Passport Please: Helping to Ferret Out Flakes and Frauds on the Web, Buffalo News, January 13, 1998 at 7D

Index

A ACI. See Airport council international (ACI) ADIZ. See Air defence identification zone (ADIZ) Aerodromes airport planning and administration, 145 BAA, 145–146 infrastructure, 147 winter 2010 crisis, 146 airport responsibility aviation safety, 148 Chicago Convention, Art. 28, 149 description, 147–148 liability, 151–152 meteorological information, 150–151 provision, 148 weather forecasts, 151 air transport, 154–155 bird strike Annex 14, 167 description, 166–167 land developments, 168 migratory birds, 167 corporate foresight airport charges, 158 airport development, 159 airport planning laws, 159–160 anticipatory intelligence, 156 categories, 155–156 ICAO, 159 incontrovertible fact, 157 innovation catalyzing, 156–157 corporate foresight planning ACI, 152 ICAO, 153–154

natural disaster, 153 technical and economic areas, 154 foreign object debris, 165–166 global runway safety, 160–161 RERR, 169 Resolution A 37-6, 169–170 runway excursions accident, 165 MK airlines, 163 NAV Canada, 164 transportation safety board, 164 runway incursions, 162–163 runway safety, 168 SARPs, 172 Aeronautical charts Aerodrome/Heliport Chart—ICAO, 212–213 Annex J, 212 Chicago Convention, 211 classification, 212 glass cockpit technologies, 213 ICAO States, 211 liability issues Aetna Casualty v. Jeppesen, 214–215 Asahi Metal Industry Co. v. Superior Court, 216 Dunlop Tires Operations, S.A. v. Brown, 216 Flour Corp. v. Jeppesen & Co, 215 Fluor Corp case, 215 J/McIntyre Machinery Ltd v. Nicastro, 217 Medley v. United States, 214 Times Mirror Co. v. Sisk, 215 NOTAMs, 217–220 pilots, 211

R. Abeyratne, Air Navigation Law, DOI 10.1007/978-3-642-25835-0, # Springer-Verlag Berlin Heidelberg 2012

261

262 Aeronautical charts (cont.) Plotting Chart—ICAO, 213–214 Aeronautical information publication (AIP), 218, 219 Aeronautical information service (AIS), 217–219 AIP. See Aeronautical information publication (AIP) Aircraft accident and incident investigation accident process criminalization aeronautics profession, 110 criminalizing corporate activity, 110–111 protagonists, 108 relevant duty of care, 108–109 Art. 26 and Annex 13, ICAO Council resolution, 106 causal factors, 105–106 responsibility, 107 Aircraft engine emission Council committee, 198 effects, international civil aviation, 198 ICAO’s regulation, 197 records, ICAO, 198–199 subsonic speed, 198 Aircraft noise assembly, ICAO, 196 environmental protection, 197 recommendations, 197 vicinity, aerodromes, 196–197 Air crew licencing aircraft operations, 114–115 aircrew integrity AOPA, 136 Chicago Convention, Art. 32, 138 FAA, 137 FRMS equation, 134 medical insurer, 135 pilots, 134–135 Annex 1 standards and recommended practices, 114 Appendix 8 to Annex 6, 132–133 Art. 33, 143 fatigue risk management systems, 127–130 human factors programme, 115 ICAO’s main tasks, 115 language proficiency electronic communications, 117 failures, communication, 115 miscommunications, 116 phraseology, 116 legal issues Art. 38, 122–123

Index ICAO member states, 122–123 legal scholars, 124 liability issues aeronautics, 142 disturbing factor, 140 FRMS, 142–143 medical condition, 138–139 performance monitoring programme, 141 responsibility, 139 medical perspective, 133–134 personnel licensing, 113–114 privileges and misuse FRMS, 125–126 symposium, 126–127 proposed amendments, 130–132 regulatory developments aeronautical communications, 117 council recognization, 119 ICAO, 120–121 member states, 121–122 Resolution A32-16, 118 symposia, 118–119 Air defence identification zone (ADIZ) comment general security, 17 Resolution A20-2, 18 September 11 attacks, 16–17 description, 11 justification Bush Doctrine, 16 The Chicago Convention, 13 Cicero’s aphorism, 15 precautionary principle, 13–14 preemption and prevention, 15 preventive jurisprudence, 14 social contract, 14 UNCLOS, 12 Airport council international (ACI), 152 Air Traffic Control Procedures Manual, 50 Air traffic management (ATM), 20, 22, 203–204, 225 Air traffic services (ATS) CNS/ATM system AN-Conf/11, ICAO, 19–20 ICAO, 20–21 minimum performance reporting requirements, 21 revised Global Air Navigation Plan, 20 RNAV and RNP, 21 liability, states administrative law, 30–37 public international law, 37–43

Index meteorological information aerodrome meteorological office, 27 contracting State, 26 safety, regularity and efficiency, 26 navigation services Chicago Convention, Art. 12, 23 control element, sovereignty, 24 over high seas, 22–23 Regional Air Navigation Plan, 24 rules of air, 26 SARPs, 22 UNCLOS, Art. 39, 25 outer space treaty law, 56–66 provider’s liability aeronautical telecommunications, 49 air traffic controller, 43 Air Traffic Control Procedures Manual, 50 Chicago Convention, 47 continuum of dependence, 49 control services, 47–48 Eastern Airlines v. Union Trust Co., 52 Free flight, 50–51 GNSS, 49 Hercules Management Ltd. v. Ernst & Young, 52 ICAO, 43–44, 47 NASA B 727 study, 46 onboard instruments and electronics, 50 positive control, 46 Resolution A35-7, 44 responsibility, State, 45 Rodriguez case, 51 Skyguide, 45–46 satellite imagery ( see Satellite imagery, air traffic services) situations, international flight, 29 space law applications, 55–56 Standards and Recommended Practices, 28 state liability principles autonomous air navigation service provider, 21 global seamless ATM system goals, 22 Air transportation system, GPS signal African States, 240 cases, 248, 249 Chicago Convention, 236 CNS/ATM system, 238–239 description, 235 dynamic user preferred routes, 236–237 EUROCONTROL, 239–240 fundamental issues, 246 GNSS, 237

263 ICAO Assembly and LTEP, 237–238, 241 inter alia and liability issues, 239 international convention, 242 liability, signal provider common interest, 243 fundamentals, 242 International Law Commission, 244 jurisprudence, 242 legal and philosophical base, 242 legal principles, 242 Liability Convention, 244–245 Moon Agreement, 244 national interest, 243–244 Outer Space Treaty, 244 Registration Convention, 244 space law, 243 parties vs. reasonable contemplation, 250–251 Resolution A32-20, 239 SARPs, 240, 241 satellite navigation system, 235–236 satellite ranging, 235 service providers, 250 state responsibility, 247 United States, 240–241 AIS. See Aeronautical information service (AIS) ATM. See Air traffic management (ATM) ATS. See Air traffic services (ATS) Automated terminal information service (ATIS) broadcasts, 9 Aviation and environmental protection aircraft noise, 196–197 Annex 16, 195 CAEE, 196 description, 195 engine emission, aircraft, 197–199 guidelines, noise certification, 196 regulatory measure Adaptation Fund, 206–207 AGF, 207 airframe and engine manufacturers, 205 CAEP, 202, 203 carbon-financing initiatives, 207 climate change, 209 CO2 emissions, 208 declarations, 199 defined, SAX-40, 205 Earth Summit, 202–203 fuel efficiency metric, 203 GANP, 204 global ATM operational concept, 203–204

264 IDB and GEF, 206 international aviation, 207–208 mitigation, 209 multinational development banks, 206 near-term efficiency and gain, 204 NOX, 205–206 radio frequency spectrum, 205 Resolution A 22-12, 199 Resolution A 28-3, 200–201 Resolution A 23-10 and 22-13, 200 RVSM, 204 states and stakeholders, 204 UNEP, 199–200, 207 subsonic jet aeroplanes, 195 B Bioterrorism attack, 182 health-related data, 184 RODS, 183

C CAEE. See Committee on aircraft engine emissions (CAEE) CAEP. See Committee on environmental protection (CAEP) CATM. See Collaborative air traffic management (CATM) Chernobyl nuclear plant disaster, 54 Civil aircraft, defined, 6 Collaborative air traffic management (CATM), 224 Committee on aircraft engine emissions (CAEE), 196, 198 Committee on environmental protection (CAEP), 202, 203, 205, 206

D Dangerous goods carriage bioterrorism ( see Bioterrorism) legal and regulatory issues A33-1, 184 IATA Dangerous Goods Regulations (DGR), 186 infectious agents, 187 international legislation, transportation, 185 WHO regulations, 185–186 pathogens China Civil Aviation Development Forum, 180

Index Dangerous Goods Regulations, 182 diseases, 182 leakage, 181 SARS, 182 radioactive materials General Conference, IAEA, 178 IFALPA, 179 radio isotopes, 176–177 refusal, IAEA, 177 resolution, IMO, 178 safety, shipments, 180 regulations IATA, 191–192 ICAO, 187–191

E EASA. See European Aviation Safety Agency (EASA) EEZ. See Exclusive economic zone (EEZ) ENRON, 254 EUROCONTROL, 256 European Aviation Safety Agency (EASA), 44 Exclusive economic zone (EEZ), 12

F FAA. See Federal Aviation Administration (FAA) Fatigue Risk Management System (FRMS) accident statistics, 125 crew member, 125–126 ICAO, 128–129 proposed amendments, 130–131 and SMS, 126 Federal Aviation Administration (FAA), 82 FIRs. See Flight information regions (FIRs) Flight information regions (FIRs) alerting services, 10 defined, 10 IFR flights, 9 safety, 9 upper flight information region, 10–11 FRMS. See Fatigue Risk Management System (FRMS) G Global Air Navigation Plan (GANP), 204 Global Air Navigation Plan, CNS/ATM systems, 20 Global Aviation Safety Plan (GASP), 21 Global environment facility (GEF), 206 Global Navigation Satellite System (GNSS), 49

Index H Hans Kelsen’s pure theory, 3 I ICAO. See International Civil Aviation Organization (ICAO) ICAO and exploration, outer space aerospace plane and sub orbital flight description, 230 Eastern Greenland’s case, 230 manned and unmanned, 232 RLVs, 232 SpaceShipOne, 231 space tourism, 229 space traversing device, 229 trajectory, 231 UNCOPUOS, 230–231, 233 Virgin Galactic, 231 provisions, Chicago Convention and United Nations, 229 ICC. See International Chamber of Commerce (ICC) IDB. See Inter-American Development Bank (IDB) Instrument flight rules (IFR), 9 Inter-American Development Bank (IDB), 206 International Chamber of Commerce (ICC), 255 International Civil Aviation Organization (ICAO) airport planning, 152 dangerous goods transportation The Instructions, 189–190 Resolution A18-10, 187 Resolution A35-9, 187 safe transport, 188 transport document, 188 WHO, 191 policies, 158 sovereignty, airspace, 4–5 International Federation of Airline Pilots’ Associations (IFALPA), 179 International Organization of Employers (IOEs), 255 J Joint Planning and Development Office (JPDO), 221, 222 “Just culture”, 256 M Memorandum of understanding (MOU), 93 Military aircraft, defined, 6

265 N NASA B 727 study, 46 NextGen binary access system, 224 capabilities, 222–223 CATM, 224 customer/user, air transportation, 222 data exchange, 223 data providers, 223–224 description, 221 JPDO, 222 partnerships and system, global, 224–225 PBN, 221–222 “pushed” and “pulled”, 223 technological scopes, 224 TMIs, 224 NOTAMs aeronautical information/data, 219 AIRAC, 218–219 AIS, 218 Annex 15, 217 ICAO member State, 219–220 information package, elements, 218 operators, 218 quality system, 219 NOX. See Oxides of nitrogen (NOX) O Operational flight information service (OFIS) broadcasts, 9 Outer space treaty law Air law, 56 Art. VI, 58 “common interest” principle, 57, 58 Corfu Channel case, 61 Datskow v. Teledyne Continental Motors, 64 Daubert v. Merrell Dow Pharm., Inc., 62–63 Dolan v. Florida, 64 jus cogens, 58 Liability Convention, 60 McHugh case, 62 Moon Agreement, 60 philosophical problem, 57 Pino v. Gauthier, 64 Realist theory, 65 Registration Convention, 1974, 59 reliability and relevance, 66 satellite images, 62 Spanish Zone of Morocco Claims case, 61 United States v. Elkins, 63 United States v. Reserve Mining, 62 Oxides of nitrogen (NOX), 205–206

266 P Performance-based navigation (PBN), 21, 221–222 P&O European Ferries (Dover) Ltd, 253 Pre-flight information bulletins (PIBs), 218 R Required navigation performance (RNP), 21 RERR. See Runway Excursions Risk Reduction Toolkit (RERR) Reusable launch vehicles (RLVs), 232 RNP. See Required navigation performance (RNP) Rules, air applicable law and consequences air navigation laws, 74–75 pilot, 75–76 cases, negligence skills, 78–79 Taylor’s case, 79–80 Chicago Convention, Art. 12, 69 civil aircraft, 71 commercial airline, 73 Convention, Annex 2, 69–70 flight plan, 71 ICAO member state, 72 instrument flight rules, 70 negligence liability, 76 pilots position, 77–78 Taylor v. Alidair Limited, 77 negligence, airline pilot, 73–74 pilot responsibility, 72 provision law, 72–73 substance abuse and crew communication aeronautical engineers, 83–84 airline staff, 83 attendant and passenger, 85 cabin crew members, 85 FAA, 84 factors, 86–87 mitigation, 87 presumption, 86 standard 2.5, annex, 81–82 Viagra, 82–83 Runway Excursions Risk Reduction Toolkit (RERR), 169 S Safety management systems (SMS), 44, 126 SARPs. See Standards And Recommended Practices (SARPs) Satellite imagery, air traffic services, 53–54

Index Satisfaction surveys, 255 Search and rescue (SAR) operations AFCAC Bureau, 89 aircraft operation, 102–103 Annex 12 resolution, 91 cost, 98 council recommendations, 98 humanitarian issues arguments, 99–100 compulsion, 100 doctrine, 101–102 jus cogens, 101 ICAO regional plan, 93 ICAO’s policies, 97 international law commission, 95–96 legal experts, 92 marine vehicle, 94 MOU, 94 organizations, 90–91 Secretariats, 95 service, 90 SESAR. See Single European Sky ATM Research Programme (SESAR) Significant meteorological (SIGMET) information, 9 Single European Sky ATM Research Programme (SESAR) carbon footprint European skies, 227 definition phase, 226 deployment phase, 226 description, 225 EUROCONTROL, 225 regulation, 226 SMS. See Safety management systems (SMS) Standards and Recommended Practices (SARPs), 22, 240, 241 States liability administrative law Anns v. London Borough of Merton, 35 Caparo Industries plc v. Dickman, 34 Competition Act, 1980, 32 Dalehite v. United State, 36 discretion and negligence, 35 divisions, 30 Downs v. United State, 35 Eastern Airlines judgment, 36 Factorframe case, 30 Federal Tort Claims Act, 35 ICAO study, 37 Monopolies and Restrictive Practices Act, 32 privatized service provider, 31 Stovin v. Wise, 34 Supreme Court Act, 1918, 30 Telecommunications Act, 31

Index ultra vires, 33 public international law contracting State, 42 Corfu Channel case, 39–41 fiscal profit making, 43 ICJ and International Law Commission, 41 North Sea Continental Shelf case, 40 principle of State responsibility, 39 sovereign immunity, 38 Spanish Zone of Morocco Claims case, 41 State enterprises, 38

T Territorial sovereignty ADIZ ( see Air defence identification zone (ADIZ)) civil and military aviation aircraft, defined, 6 Assembly Resolution A14-25, 8 co-ordination, 8 difference, operation, 6–7 global economy, 7 FIRs ( see Flight information regions (FIRs)) state airspace, use, 3

267 Corfu Channel case, 4 defined, 1–2 doctrine of sovereignty, 2 ICAO, 4–5 internal and external sovereignty, 2 Island of Palmas case, 2 non-intervention principle, 4 TMIs. See Traffic management initiatives (TMIs) Traffic management initiatives (TMIs), 224

U United Nations Committee on the peaceful uses of outer space (UNCOPUOS), 230–231, 233 United Nations Convention on the Law of the Sea (UNCLOS), 12 United Nations Environment Programme (UNEP), 199, 207

V Visual flight rules (VFR), 9, 11, 49

W Worldcom, 254