Abstract
The world has been debating the issue of damage caused to third parties on the ground by falling aircraft ever since the major catastrophes of 11 September 2001. Many States have found their own solutions, with home grown domestic formulae that offer compensation to victims of such damage, whether the damage is the result of an accident or a violent crime. The international community has also been active in this regard, and the latest initiative of the International Civil Aviation Organization (ICAO) in the nature of two international treaties adopted in May 2009 are good examples of such initiatives.
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Notes
- 1.
The International Civil Aviation Organization, a specialized agency of the United Nations, was established by Article 44 of the Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944 (ICAO Doc 7300/9, Ninth Edition, 2006). The main objectives of ICAO are to develop the principles and techniques of international air navigation and to foster the planning and development of air transport. ICAO has 190 Contracting States. ICAO’s Mission and Vision Statement is “to achieve its mission of safe, secure and sustainable development of civil aviation through cooperation amongst its member States.” In December 2004, following a decision by the 35th Session of the ICAO Assembly, the Council of ICAO approved six Strategic Objectives for 2005–2010: They are: safety; security; environmental protection; efficiency; continuity; and rule of law. The Strategic Objective applicable to this article is rule of law.
- 2.
DCCD Doc No. 42, ICAO, Montreal, 1 May 2009.
- 3.
DCCD Doc No. 43, 1/5/09. This Convention will be discussed in greater detail later in this article.
- 4.
The Rome Convention of 1952 entered into force in February 1958 and was ratified by only 46 States Parties, a fact which largely brings to bear its irrelevance to modern day exigencies of liability in air transport. During the 31st Session of the ICAO Legal Committee in September 2000, a formal proposal made by Sweden calling for the modernization of the 1952 Rome Convention under the aegis of ICAO received the endorsement of the Committee. Inspiration for initiating the modernization process was drawn from the adoption of the Montreal Convention of 1999, which the 30th Session of the Legal Committee in 1997 had initiated and which entered into force on 4 November 2003. The Legal Committee, at its 31st Session had recognized that the Montreal Convention enhanced the rights of claimants in respect of death or bodily injury of passengers, and that such rights should also be given formal recognition through treaty with regard to damage to third parties on the surface. Subsequently, in 2002, the Council considered a Secretariat study on the subject and agreed to establish a study group to assist the Secretariat in future work. The Secretariat developed a draft Convention with the assistance of this Study Group.
- 5.
The Rome Convention of 1952 entered into force in February 1958 and was ratified by only 46 States Parties, a fact which largely brings to bear its irrelevance to modern day exigencies of liability in air transport. During the 31st Session of the ICAO Legal Committee in September 2000, a formal proposal made by Sweden calling for the modernization of the 1952 Rome Convention under the aegis of ICAO received the endorsement of the Committee. Inspiration for initiating the modernization process was drawn from the adoption of the Montreal Convention of 1999, which the 30th Session of the Legal Committee in 1997 had initiated and which entered into force on 4 November 2003. The Legal Committee, at its 31st Session had recognized that the Montreal Convention enhanced the rights of claimants in respect of death or bodily injury of passengers, and that such rights should also be given formal recognition through treaty with regard to damage to third parties on the surface. Subsequently, in 2002, the Council considered a Secretariat study on the subject and agreed to establish a study group to assist the Secretariat in future work. The Secretariat developed a draft Convention with the assistance of this Study Group.
- 6.
See generally Abeyratne (2006, pp. 185–212).
- 7.
It is worthy of note that the Chicago Conference of 1944 did not make any reference to the Rome Convention of 1933 although the Conference encouraged States to give consideration to the early calling of an international conference on private air law for the purpose of adopting a convention dealing with transfer of title to aircraft and to ratify or adhere to a Convention for the Unification of Certain Rules Relating to the Precautionary Attachment of Aircraft, also done in Rome in 1933. Following the Chicago Conference, the Interim Assembly of PICAO in 1946 also made no mention of the Rome Convention of 1933 relating to damage caused by aircraft to third parties on the surface.
- 8.
Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface, signed at Rome on 29 May 1933, Weishaupt (1979, p. 223).
- 9.
Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface, signed at Rome on 29 May 1933, Article 2.
- 10.
The meaning imputed to the words “beginning of the operations of departure until the end of the operations of arrival” is debatable. It is interesting that an earlier treaty, the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention) signed at Warsaw on 12 October 1929 applies liability for accidents taking place on board the aircraft or any of the operations of embarking or disembarking. The word “on board” has been interpreted judicially in different circumstances. See Abeyratne (2001a, pp. 197–198).
- 11.
It is worthy of note that the Chicago Conference of 1944 did not make any reference to the Rome Convention of 1933 although the Conference encouraged States to give consideration to the early calling of an international conference on private air law for the purpose of adopting a convention dealing with transfer of title to aircraft and to ratify or adhere to a Convention for the Unification of Certain Rules Relating to the Precautionary Attachment of Aircraft, also done in Rome in 1933. Following the Chicago Conference, the Interim Assembly of PICAO in 1946 also made no mention of the Rome Convention of 1933 relating to damage caused by aircraft to third parties on the surface.
- 12.
Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface, signed at Rome on 29 May 1933, Weishaupt (1979, p. 223).
- 13.
Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface, signed at Rome on 29 May 1933, Article 2.
- 14.
The meaning imputed to the words “beginning of the operations of departure until the end of the operations of arrival” is debatable. It is interesting that an earlier treaty, the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention) signed at Warsaw on 12 October 1929 applies liability for accidents taking place on board the aircraft or any of the operations of embarking or disembarking. The word “on board” has been interpreted judicially in different circumstances. See Abeyratne (2001a, pp. 197–198).
- 15.
See generally Abeyratne (2006, pp. 185–212).
- 16.
Convention on International Civil Aviation, ICAO Doc 7300, 9th edn, 2006, See supra note 5.
- 17.
General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 2.1.
- 18.
- 19.
General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 2, paragraph 1.
- 20.
General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 2.2.
- 21.
General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 3, paragraph 1.
- 22.
General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 13.
- 23.
DCCD Doc No. 17, 17 April 2009.
- 24.
DCCD Doc No. 5, 27 February 2009.
- 25.
DCCD Doc No. 43, 1/5/09.
- 26.
According to the Convention, “Operator” means the person who makes use of the aircraft, provided that if control of the navigation of the aircraft is retained by the person from whom the right to make use of the aircraft is derived, whether directly or indirectly, that person shall be considered the operator. A person shall be considered to be making use of an aircraft when he or she is using it personally or when his or her servants or agents are using the aircraft in the course of their employment, whether or not within the scope of their authority. The operator shall not lose its status as operator by virtue of the fact that another person commits an act of unlawful interference. General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 1(f).
- 27.
Under Article 4, the operator’s liability is limited or capped, based on the weight of the aircraft, ranging from 750,000 Special Drawing Rights (SDRs) for the smallest aircraft to 700,000,000 SDRs for the largest aircraft. The liability cap may be broken in exceptional circumstances. Under Article 23, where the total amount of damages exceeds the limits of liability of the operator under Article 4, plus the amounts payable by the International Fund under Article 18, paragraph 2 (i.e., the amount of damages exceeds the first and second layers), a person who has suffered damage may claim additional compensation from the operator. To succeed, the person must prove that the operator or its employees have contributed to the occurrence of the event by an act or omission done with intent to cause damage or recklessly and with knowledge that damage would probably result. Where an employee has contributed to the damage, the operator shall not be liable for such additional compensation if it proves that an appropriate system for the selection and monitoring of its employees has been established and implemented. Paragraph 4 of Article 23 sets out the circumstances where the operator or its senior management shall be presumed not to have been reckless.
- 28.
The Convention’s scope covers acts of unlawful interference. As defined in the Convention, an “act of unlawful interference” means an act which is defined as an offence in the Convention for the Suppression of Unlawful Seizure of Aircraft, Signed at The Hague on 16 December 1970, or the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Signed at Montréal on 23 September 1971, and any amendment in force at the time of the event. The Hague Convention of 1971 defines an act of unlawful interference in Article 1 as an act committed by “any person who on board an aircraft in flight unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of that aircraft, or attempts to perform any such act, or is an accomplice of a person who performs or attempts to perform any such act.” The Montreal Convention of 1971 defines the offence in Article 1 as an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft; or destruction of an aircraft in service or damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or the placement or cause for placement on an aircraft in service, by any means whatsoever, a device or substance which is likely o destroy that aircraft, or to cause damage to it which renders it incapable of flight, or damage which is likely to endanger its safety in flight; or destruction or damage to air navigation facilities or interference with their operation, if any such act is likely to endanger the safety of aircraft in flight; or communication of information which the perpetrator knows to be false, thereby endangering the safety of such aircraft in flight. These categories of action are extended to persons who attempt to commit such acts or act as accomplices in the performance of such acts.
- 29.
An aircraft is considered to be “in flight” at any time from the moment when all its external doors are closed following embarkation or loading until the moment when any such door is opened for disembarkation or unloading. General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 1(c).
- 30.
Supra, note 5.
- 31.
- 32.
An organization that is a servant or agent of the Crown is not immune from prosecution. The Corporate Manslaughter and Corporate Homicide Act of 2007, Section 11.
- 33.
The Corporate Manslaughter and Corporate Homicide Act of 2007, Section 1.
- 34.
The Corporate Manslaughter and Corporate Homicide Act of 2007, Section 1.5.
- 35.
The Corporate Manslaughter and Corporate Homicide Act of 2007, Section 2.1(a)–(c).
- 36.
Unlawful Interference Compensation Convention, DCCD Doc No. 43, 1/5/09, Article 3.3.
- 37.
- 38.
Unlawful Interference Compensation Convention, DCCD Doc No. 43, 1/5/09, Article 2, paragraph 1.
- 39.
Unlawful Interference Compensation Convention, DCCD Doc No. 43, 1/5/09, Article 28.
- 40.
Unlawful Interference Compensation Convention, DCCD Doc No. 43, 1/5/09, Article 2.2.
- 41.
Unlawful Interference Compensation Convention, DCCD Doc No. 43, 1/5/09, Article 3.1.
- 42.
Unlawful Interference Compensation Convention, DCCD Doc No. 43, 1/5/09, Article 4.
- 43.
Unlawful Interference Compensation Convention, DCCD Doc No. 43, 1/5/09, Article 23. Also, Article 18.2.
- 44.
Article 23.4.
- 45.
Article 18.1.
- 46.
Article 18.3.
- 47.
Article 18.2.
- 48.
A full list of the powers and duties of the COP is provided in Article 9.
- 49.
Article 12.
- 50.
Article 14.3.
- 51.
Article 14.
- 52.
Article 15.2.
- 53.
Article 16.
- 54.
Article 20.
- 55.
Article 24.
- 56.
Article 25. Article 26 sets out certain restrictions on the rights of recourse.
- 57.
Article 27.
- 58.
Article 29. However, the exclusive remedy provision does not apply to an action against a person who has committed, organized or financed the act. There are other procedural provisions found in Chapter Chapter VII. Actions for compensation may be brought in a single forum only, namely, before the courts of the State Party where the damage occurred (Article 32, paragraph 1). Also, judgments entered by a court shall, when they are enforceable in the State Party of that court, be enforceable in any other State Party, although recognition and enforcement of a judgment may be refused under certain specified circumstances (Article 34).
- 59.
Article 40.
- 60.
Joint Industry Paper, DCCD Doc No. 10, 26/3/2009. This paper was presented by the International Air Transport Association (IATA), the International Union of Aerospace Insurers (IUAI), the London & International Insurance Brokers’ Association (LIIBA), the Civil Air Navigation Services Organisation (CANSO), the Airports Council International (ACI), the Aviation Security Services Association International (ASSA-I) and the Aviation Working Group (AWG).
- 61.
Joint Industry Paper, DCCD Doc No. 10, 26/3/2009 at 3.
- 62.
Tompkins Jr (2009, p. 2).
- 63.
Tompkins Jr (2009, p. 3).
- 64.
OJ L251/15 6.8.2004.
- 65.
Article 12.2.
- 66.
Petras (2007).
- 67.
Smith v. Socialist Peoples Libyan Arab Jamahiriya, 866 F. Supp 306 (1995).
- 68.
Letter dated 20 December 2001 from the Permanent Representative of France, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations, addressed to the Secretary General.
- 69.
A four pronged approach to set in place a causal model has been suggested. These four steps are: a factual test as to whether an act or omission can be regarded as State conduct, by the operation of attribution principles; a legal test as to whether the attributed act or omission constitutes a violation of an international legal obligation of that State; a causal test to determine the scope of responsibility that potentially arises from a wrongful act or omission of that State; and a policy test to determine whether non-causal considerations justify enhancing or diminishing the responsibility of the State. See Becker (2006, p. 332).
- 70.
UK v. Albania, [1949] ICJ Rep. 4 (9 April) at 22.
- 71.
See AVSECP/20 Report Appendix C to the Report on Agenda item 1 at 1–10.
- 72.
See Naziranbai v. the State, 1957 Madhya Bharat Law Reporter, at 1, where the court recognized the passport as essentially being a document of identity and nationality issued to citizens or subjects of a state who intend to travel overseas. See also Turack (1972, pp. 20–21). Also, Abeyratne, infra, note 294, at 10.
- 73.
ICAO has been working on the development of passports since 1968. The Seventh Session of the ICAO Facilitation Division in 1968 recommended that a small panel of qualified experts including representatives of the passports and/or other border control authorities, be established: to determine the establishment of an appropriate document such as a passport card, a normal passport or an identity document with electronically or mechanically readable inscriptions that meet the requirements of document control; the best type of procedures, systems (electronic or mechanical) and equipment for use with the above documents that are within the resources and ability of Member States; the feasibility of standardizing the requisite control information and methods of providing this information through automated processes, provided that these processes would meet the requirements of security, speed of handling and economy of operation. See Facilitation Division, Report of the Seventh Session, 14–30 May 1968, ICAO Doc 8750-FAL/564, Agenda Item 2.3, at 2.3-4. See also AT-WP/1079, 1/12/70, Attachment A, which sets out the Terms of Reference of the Panel.
- 74.
The International Civil Aviation Organization, a specialized agency of the United Nations, was established by Article 44 of the Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944 (ICAO Doc 7300/8, Eighth Edition, 2000). The main objectives of ICAO are to develop the principles and techniques of international air navigation and to foster the planning and development of air transport. ICAO has 190 Contracting States.
- 75.
A passport asserts that the person holding the passport is a citizen of the issuing State while a visa confirms that the State issuing the visa has granted the visa holder the non-citizen privilege of entering and remaining in the territory of the issuing State for a specified time and purpose. The machine readable passport (MRP) is a passport that has both a machine readable zone and a visual zone in the page that has descriptive details of the owner. The machine readable zone enables rapid machine clearance, quick verification and instantaneous recording of personal data. Besides these advantages, the MRP also has decided security benefits, such as the possibility of matching very quickly the identity of the MRP owner against the identities of undesirable persons, whilst at the same time offering strong safeguards against alteration, counterfeit or forgery. Abeyratne (1992, pp. 1–31).
- 76.
To “verify” means to perform a one-to-one match between proffered biometric data obtained from the holder of the travel document at the time of inquiry with the details of a biometric template created when the holder enrolled in the system.
- 77.
“Global interoperability” means the capability of inspection systems (either manual or automated) in different States throughout the world to exchange data, to process data received from systems in other States, and to utilize that data in inspection operations in their respective states. Global interoperability is a major objective of the standardized specifications for placement of both eye-readable and machine-readable data in all MRTDs.
- 78.
The Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944 (ICAO Doc 7300/9, Ninth Edition, 2006), defines, in Article 2, “territory of a State” as the land areas and territorial waters adjacent to the State under the sovereignty, suzerainty, protection and mandate of such State.
- 79.
API involves exchange of data information between airlines and customs authorities, where an incoming passenger’s essential details are notified electronically by the airline carrying that passenger prior to his arrival. The data for API would be stored in the passenger’s machine readable passport, in its machine readable zone. This process enables customs authorities to process passengers quickly, thus ensuring a smoother and faster clearance at the customs barriers at airports. One of the drawbacks of this system, which generally works well and has proven to be effective, is that it is quite demanding in terms of the high level of accuracy required. One of the major advantages, on the other hand, is the potential carried by the API process in enhancing aviation security at airports and during flight. See Abeyratne (2002b, pp. 631–650).
- 80.
Issuing States must ensure the accuracy of the biometric matching technology used and functions of the systems employed if the integrity of the conducted checks are to be maintained. They must also have realistic and efficient criteria regarding the number of travel documents checked per minute in a border control situation and follow a regular biometric identification approach such as facial recognition, fingerprint examination or iris identification system.
- 81.
- 82.
ICAO’s terms of reference in the development of specifications for machine readable passports stem from the Chicago Convention which provides for ICAO’s adoption of international Standards and Recommended Practices dealing, inter alia, with customs and immigration procedures. Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944 (ICAO Doc 7300/9, Ninth Edition, 2006), Article 37(j). It is interesting that, although passports apply to other modes of international travel as well, ICAO has been singly recognized as the appropriate body to adopt specifications for MRTDs. This alone speaks for the uniqueness of ICAO’s facilitation programme. See Machine Readable Travel Documents, ICAO Doc 9303/3 Third Edition 2005, 1–1 to 1–3.
- 83.
See Establishment of A Public Key Directory (PKD), C-WP/12384, 19/11/04 Revised, 2/2/05, presented to the Council by the Secretary General.
- 84.
Article 54(d) of the Chicago Convention provides that it shall be a mandatory function of the ICAO Council to appoint and define the duties of an Air Transport Committee, which shall be chosen from among the representatives of the members of the Council and which shall be responsible to it. The Committee is therefore a subordinate body of the Council which largely considers work conducted by the Secretariat in the field of air transport prior to forwarding such work to the Council for final consideration.
- 85.
Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944 (ICAO Doc 7300/9, Ninth Edition, 2006), Articles 13, 23 and 37(j). Although Article 37(j) is directly in point, it is somewhat questionable as to whether Articles 13 and 33 bestow upon ICAO any special mandate to address the need to develop machine readable travel documents and technology related thereto. Article 13 merely states that the laws of States with regard to various aspects of entry and departure should be complied with. Article 23 provides that each Contracting State undertakes, inter alia, to establish customs and immigration procedures.
- 86.
Article 44(d).
- 87.
Headquarters Agreement Between the International Civil Aviation Organization and the Government of Canada, ICAO Doc 9591.
- 88.
“Assets” include funds administered by ICAO in furtherance of its constitutional functions.
- 89.
By virtue of Article 57 of the United Nations Charter, which provides that the various specialized agencies shall be brought into relationship with the United Nations, the acknowledged status of the United Nations as per Article 104 can be applied to ICAO.
- 90.
ICJ Reports 1988, 12; 82 ILR 225.
- 91.
Id. 33–34.
- 92.
Shaw (2003, p. 692).
- 93.
For the military analogy, see Lazareff (1971). Also Brownlie (1990, p. 372). These authors refer to the NATO Status of Forces Agreement of 1951, the provisions of which exclusively governed the relations between the State sending troops and the state receiving them. The courts held that the state sending troops to another State has overall jurisdiction of the troops in terms of offences committed in the receiving State, although the latter may prosecute foreign troops in its own soil if an offence were to be committed which was illegal in that State’s jurisdiction. However, the overall principle recognized by the courts was that the sending State has primary jurisdiction over its subjects (or troops) sent on mission if the offence committed related to the performance of duty. See also Woodliffe (1992, p. 298).
- 94.
See Ex parte Pinochet (No. 3) [2000] 1 A C 147 at 201 (per Lord Browne-Wilkinson) and 268-9 (per Lord Millett).
- 95.
The Victory Transport Case, ILR 35 at 110.
- 96.
New York County, 25 January 1988, 524 NYS 2d. 971 (1988); (1989) 80 ILR 31–38.
- 97.
Lutcher SA Cellulose e Papel v. Inter-American Development Bank, 382 F.2d. 454 (DC Cir. 1967).
- 98.
[1986] 2 All ER 257; [1987] 1 WLR 641(1988) 77 ILR 16.
- 99.
See Arab Banking Corporation v. International Tin council and Algemene Bank Nederland and Others (Interveners) and Holo Trading Company Ltd. (Interveners) (1988) 77 ILR 1–8.
- 100.
Consequent upon the events of 2001, President George Bush signed a new American Transportation & Security Act on 25 November 2002 making mandatory API transmission and the provision of PNR data pertaining to all passengers arriving in the United States. Such information, required prior to departure and arrival in the United States should include in the passenger and crew manifest for each flight, in accordance with Section 115 of the Transportation & Security Act, is:
-
The full name of each passenger and crew member.
-
The date of birth and citizenship of each passenger and crew member.
-
The sex of each passenger and crew member.
-
The passport number and country of issuance of each passenger and crew member if required for travel.
-
The United States visa number or resident alien card number of each passenger and crew member, as applicable.
-
Such other information as the under Secretary, in consultation with the Commissioner of Customs, determines is reasonably necessary to ensure aviation safety.
-
- 101.
Crossing the Line, Airline Business, August 2005, at 9.
- 102.
The International Civil Aviation Organization (ICAO) is the specialized agency of the United Nations on the subject of international Civil Aviation. ICAO derives its existence through Articles 43 and 44 of the Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944. See ICAO Doc. 7300/8 (Eighth Edition: 2000). Article 44 lists, inter alia as ICAO’s objectives, insuring the safe and orderly growth of international civil aviation throughout the world and meeting the needs of the peoples of the world for safe, regular, efficient and economical air transport. Chicago Convention, Article 44(a) and Article 44(d). ICAO has 189 Contracting States, all of whom have ratified the Chicago Convention and gained ICAO membership ipso facto.
- 103.
Attachment to State Letter EC 6/2-05/70, Passenger Name Record (PNR) data, 9 June 2005.
- 104.
The advantage of collection by States of PNR Data was first discussed by the global aviation community at the 12th Session of the ICAO Facilitation Division that was held in Cairo, Egypt from 22 March to 1 April 2004. Consequently, the Division adopted Recommendation B/5, that reads as follows:
It is recommended that ICAO develop guidance material for those States that may require access to Passenger Name Record (PNR) data to supplement identification data received through an API system, including guidelines for distribution, use and storage of data and a composite list of data elements [that] may be transferred between the operator and the receiving State.
Pursuant to this recommendation, in June 2004, the Air Transport Committee of the ICAO Council requested the Secretary General to establish a Secretariat Study Group to develop Guidelines on PNR data transfer. The Council, in endorsing Recommendation B/5, directed that these Guidelines were to be submitted early in 2005.
- 105.
- 106.
See Abeyratne (2001b, pp. 153–162).
- 107.
There is an abiding symbiosis between security and facilitation in the field of air transport. While security is of paramount interest to the global aviation community, it must not unduly disrupt or in any adversely affect the expediency of air transport. To this end, Recommended Practice 2.2 of Annex 9 – Facilitation – to the Chicago Convention suggests that Each Contracting State should whenever possible arrange for security controls and procedures to cause a minimum of interference with, or delay to the activities of civil aviation provided the effectiveness of these controls and procedures is not compromised. See McMunn (1996, p. 7).
- 108.
It must be noted that Annex 9 specifies that the provisions of the Annex shall not preclude the application of national legislation with regard to aviation security measures or other necessary controls.
- 109.
The Industry Standards related to PNR creation are detailed in IATA’s Passenger Services Conference Resolutions and in the ATA/IATA Reservations Interline Message Procedures (AIRIMP) Manual.
- 110.
Passenger Name Record Information Required for Passengers on Flight in Foreign Air Transportation to or from the United States of 2001, 66 Fed. Reg. 67482 (2002).
- 111.
There are two possible methods of PNR data transfer currently available: (a) the “pull” method, under which the public authorities from the State requiring the data can reach into the aircraft operator’s system and extract (“pull”) a copy of the required data into their database; and (b) the “push” method, under which aircraft operators transmit (“push”) the required PNR data elements into the database of the authority requesting them.
- 112.
Shaw (2003, pp. 611–612).
- 113.
Holmes v. Bangladesh Biman Corporation, [1989] 1 AC 1112 at 1126. Also, Air India v. Wiggins [1980] 1 WLR 815 at 819. In the 1991 case of EEOC v. Arabian American Oil Company and ARAMCO Services 113 L E 2d 274, the US Supreme Court held that the practice of extra territoriality by one State against the other cannot in any way be justified under the principles of public international law.
- 114.
595 F.2d 1287; 66 ILR at 487. See also Timberlane Lumber Company v. Bank of America, 549 F. 2d 597 (1976); 66 ILR at 270.
- 115.
Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944 (ICAO Doc 7300/9, Ninth Edition, 2006), Article 2.
- 116.
Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944 (ICAO Doc 7300/9, Ninth Edition, 2006), Article 9(b).
- 117.
International Law Association, 28th Report, Madrid, 1913, 533–545 at 540.
- 118.
International Law Association, 28th Report, Madrid, 1913, 533–545 at 538.
- 119.
Honig (1956, p. 29).
- 120.
Supra, note 5.
- 121.
Ibid.
- 122.
Quoted in Morganthau and Thompson (1950, p. 24).
- 123.
Convention on international Civil Aviation, 7 December 1944, ICAO Doc. 7300/8 (entered into force 4 April 1947) (hereinafter: Chicago Convention).
- 124.
Chicago Convention, Art. 44.
- 125.
Chicago Convention, Art. 22.
- 126.
Enhanced Border And Visa Entry Reform Act of 2002; 107 established by the Congress of the United States of America at the second session, 22 January 2002.
- 127.
US Patriot Act….
- 128.
Heitmeyer (2000, pp. 18–20).
- 129.
Abeyratne (2002a, p. 86).
- 130.
Refer to the SPT Brochure 2002. The Simplifying Travel Group is a joint venture with IATA in order to develop new technologies in biometrics for the screening of passengers: “The SPT Program is a joint initiative amongst a number of organizations, representing passengers, airlines, airports, control authorities, travel agents and broad government interests, to measurably improve the passenger experience and enable security enhancement by: – Implementing biometrics and other new technologies;
– Sharing information amongst service providers;
– Enabling controls and services to be effected more efficiently.”
- 131.
“6.5.1 The principal costs for carriers are associated with system development/integration and capture of passenger details for transmission to the destination country of a flight. Costs will likely be incurred in other areas as well; e.g., additional check-in staff to cope with the extended period of time required to complete check-in formalities, additional check-in desks, hardware acquisitions, etc. Various techniques can be used to offset these costs to some degree; e.g., agreements with governments, as is the case in Australia, machine-readable passports, ‘up-stream’ capture of passenger data at the time of booking, etc. […]” World Customs Organization, “Advance Passenger Information: Guidelines for Customs and Air Carriers” (2003) WCO Annex I to Doc PW0072E1 11.
- 132.
McMunn (1996, p. 7).
- 133.
“The Facilitation programme has taken a proactive stance against law enforcement problems, particularly narcotics trafficking and travel by inadmissible passengers. […] At its first meeting in 1997, the ICAO Facilitation Panel will review all of the Annex 9 provisions related to inadmissible passengers and will attempt to devise some means to implement them more effectively”. McMunn (1996, p. 9).
- 134.
ICAO Secretariat, “Facilitation Panel Fourth Meeting Information Paper” (Montreal, 2–5 April 2002), ICAO Doc FAL/4-IP/3. This paper was first introduced to the High-Level Ministerial Conference of February 2002 (1P/1).
- 135.
Abeyratne (1998, p. 78).
- 136.
Chicago Convention, Article 13: “The laws and regulations of a contracting State as to the admission to or departure of its territory of passengers, crew or cargo of aircraft, such as regulations relating to entry, clearance, immigration, passports, customs, and quarantine shall be complied with by or on behalf of such passengers, crew or cargo upon entrance into or departure from, or while within the territory of that State”.
- 137.
“One of the issues as important in the API process is that the data required must be collectable by machine or already contained in the airline’s system. Manual collection and data entry at the check-in desk for a scheduled flight is time-consuming and prone to errors, and or life. The foundations of ‘information privacy,’ whereby the individuals would determine when, how, and to what extent information about themselves would be communicated to others, inextricably drawing the right of control of information about oneself, is a cornerstone of privacy.” Abeyratne (2001b, p. 153).
- 138.
McMunn M.K. for ICAO Secretariat, “Facilitation and Security – Not a Zero-Sum Game” (March 1999) ICAO Doc AFCAC/ATC/4-IP at point 9.
- 139.
Unofficial statement given by Mary K. McMunn, Chief of the Facilitation Section at ICAO.
- 140.
“[…] This technique is beginning to be used by Border Control Agencies and it has the potential to reduce considerably the inconvenience and delay experienced by some travellers due to border controls”. Facilitation Division-11th Session, (1995) ICAO Doc FAL/11-IP/2.
- 141.
Refer to Recommendation Practice 3.34 of Annex 9: “Where appropriate Contracting States should introduce a system of advanced passenger information which involves the capture of certain passport or visa details prior to departure, the transmission of the details by electronic means to public authorities, and the analysis of such data for risk management purposes prior to arrival in order to expedite clearance. To minimize handling time during check-in, document reading devices should be used to capture the information in machine readable travel documents. When specifying the identifying information on passengers to be transmitted, Contracting States should only require information that is found in the machine readable zones of passports and visas that comply with the specifications contained in Doc 9303 (series), Machine Readable Travel Documents. All information required should conform to specifications for UN/EDIFACT PAXLST message formats”.
- 142.
“8.1 (RP) In order to facilitate the unilateral and bilateral elimination of entrance visas for non-immigrants, but at the same time to provide a simplified form of control with respect to the movement of non-immigrants where such control is deemed necessary, the following uniform system should be adopted […] 8.4 (RP) Each State should abolish exit visas, and reduce any other emergency exit formalities to an absolute minimum”. Facilitation Division, “Final Report Of The Second Session” (Geneva, June 1948) ICAO Doc 5464-FAL/535.
- 143.
“3.1(ST) Governmental regulations and procedures applied to persons travelling by air shall be no less favorable than those applied to persons travelling by other means of transport.
3.2(ST) Contracting States shall make provisions whereby the procedures for clearance of persons travelling by air will be applied and carried out in such a manner to retain advantage of speed inherent in air transport.
3.3(ST) No documents other than those provided for in this Chapter shall be required by Contracting States for the entry into and departure from their territories of tourists. And other temporary visitors”. Facilitation Division, “Report of The Fifth Session” (Rome, December 1959) ICAO Doc 8043-FAL/562 Recommendation A-17.
- 144.
Facilitation Division, “Report Of The Sixth Session” (Mexico, March–April 1963), ICAO Doc 8324-FAL/563.
- 145.
“Recommendation B-6: WHEREAS the UN Conference on International Travel and Tourism, to be held later in the year 1963, will consider the question of formalities to be complied with by tourists on entry and departure; WHEREAS the provisions of Annex 9 relating to the movement of persons have been carefully developed throughout the years and have been thoroughly reviewed at the Sixth Session of the Facilitation Division, the conclusions of which will be communicated to the Secretary General of the UN Conference; and WHEREAS it is essential that any action taken by the UN Conference should not be inconsistent with the pertinent International Standards and Recommended Practices contained in Annex 9 to the Convention on International Civil Aviation and should actually encourage States to implement that Annex; THE DIVISION RECOMMENDS that the Council request the UN Conference to preface any recommendations it will ultimately adopt by a reference, in a preamble or otherwise, to the continuing obligations of the Contracting States of the International Civil Aviation Organization to implement the provisions of Annex 9.” Facilitation Division, “Report Of The Sixth Session” (Mexico, March–April 1963), ICAO Doc 8324-FAL/563 at 32.
- 146.
UN Conference on International Travel and Tourism, online: http://www.oas.org/TOURISM/docnet/Iatc2en.htm (date accessed: 15 January 2003).
- 147.
“3.25 (ST) Upon refusal of admission and transfer back of any person, the operator shall be responsible for promptly returning him to the point where he commenced the use of the operator’s aircraft or to any other place where the person is admissible.” Facilitation Division, “Report Of The Sixth Session” (Mexico, March–April 1963), ICAO Doc 8324-FAL/563 at 40.
- 148.
Refer to Article 3.58 of Annex 9: “The public authorities shall without delay inform the operator when a person is found inadmissible and consult the operator regarding the possibilities for removal. Note 1. – A person found inadmissible shall be transferred back into the custody of the operator who transported that person directly to the final destination or, where appropriate, into the custody of one of the operators who carried the person to one of the transit destinations. […].”
- 149.
Facilitation Division, “Report Of The Tenth Session” (Montreal, September 1988) ICAO Doc 9527, FAL/10 at 54: Recommendation B-11: “IT IS RECOMMENDED THAT:
-
(a)
Contracting States, where possible, undertake projects to examine the effects of various advance passenger information programmes (including as appropriate various manual and electronic collection and transmission methods) in facilitating the clearance of arriving passengers through the inspection processes at major international airports;
-
(b)
Where data are transmitted by Electronic Data Interchange, procedures should conform to international message standards and formats;
-
(c)
ICAO would undertake a study of Contracting States’ experiences from the projects undertaken under (a) above in the advance passenger information privacy issues and the facilitation and other benefits and costs, by types of programmes, for passengers, air carriers and Contracting States; ICAO should liaise with the Customs Co-operation Council and other appropriate international bodies to ensure proper co-ordination in this area, and to safeguard the interests of immigration authorities;
-
(d)
ICAO would keep Contracting States fully informed of developments; and
-
(e)
ICAO would, no later than 1992, report on the study to the Council, which would decide whether the findings and recommendations should be recommended to Contracting States.”
-
(a)
- 150.
ICAO Secretariat, “Informal Facilitation Area Meeting in Consultation with ACI on Advance Passenger Information” ICAO Doc INF/FAL/DJE WP/11 (2 July 1997):
2.1 Article 29 of the Chicago Convention requires every aircraft engaged in international navigation to carry certain documents, including, for passengers, “a list of their names and places of embarkation and destination.” Annex 9 specifies, in Standard 2.7, the presentation of a passenger manifest document shall not normally be required, and notes that if the information is required it should be limited to the data elements included in the prescribed format, i.e., names, places of embarkation and destination, and flight details.
2.2 It should be noted that the opinion of this Standard contemplated the passenger manifest as a paper document which would have to be typed or written and delivered by hand. […] It is widely recognized that in any system involving the exchange of information (automated or not), it is the collection of data which is the major expense. Increases in data collection requirements should result in benefits which exceed the additional costs. This principle was a central issue during the debate over API in the Tenth Session of the Facilitation Division (FAL/10) and the eventual adoption by FAL/11 of API systems as a Recommended Practice.
(Refer to Article 3.14.2 of the 10th Edition of Annex 9.)
- 151.
“There was, however, considerable support for both B-type Recommendations although several delegates pointed out that there would be a need for the programmes concerned to take into account the importance of the privacy of the individuals reflected in the data protection laws already adopted in many States”. ICAO Secretariat, “Informal Facilitation Area Meeting in Consultation with ACI on Advance Passenger Information” ICAO Doc INF/FAL/DJE WP/11 (2 July 1997) at 53.
- 152.
Convention On the Simplification And Harmonization Of Customs Procedures (here in after referred to as Kyoto Convention), online: http://www.unece.org/trade/kyoto/ky-01-e1.htm#Historica (date accessed: 3 January 2003).
- 153.
Refer to the Kyoto Convention, at Annex J at Article 5.5: “Recommended Practice 8: The Customs, in co-operation with other agencies and the trade, should seek to use internationally standardized advance passenger information, where available, in order to facilitate the Customs control of travellers and the clearance of goods carried by them”.
- 154.
Kyoto Convention, at Annex J at Article 5.5.
- 155.
Facilitation Division, “Eleventh Session Information Paper on Advance Passenger Information (API) Guidelines adopted by the WCO” (Montreal, April 1995) ICAO Doc FAL/11-IP/2 at point 3.
- 156.
Facilitation Division, “Eleventh Session Information Paper on Advanced Passenger Information (API) Guidelines adopted by the WCO” (Montreal, April 1995) ICAO Doc FAL/11-IP/2 at point 1.3.
- 157.
Facilitation Division, “Eleventh Session Information Paper on Advanced Passenger Information (API) Guidelines adopted by the WCO” (Montreal, April 1995) ICAO Doc FAL/11-IP/2 at point 4.1.4.
- 158.
Facilitation panel presented by the Secretariat, “Advance Passenger Information Further Development of ICAO Doctrine” ICAO Working Paper FALP/4-WP/2 (Montreal, 2–5 April 2002).
- 159.
“4.2.4 Furthermore, given the practical and cost constraints of data capture and transmission, limiting the required information to that which can be captured by machine reading passports and visas, augmented by basic flight details, is a prerequisite. To this end, IATA sees particular benefit in co-operating with the CCC to define the data and message sets for API within the UN/EDIFACT PAXLST development, and in establishing jointly agreed principles which can expand the benefits of automating and integrating all elements of the passenger process from origin to destination”. See infra, note 412 at point 4.2.4.
- 160.
Ibid at clause no. 4: The Customs Co-operation Council recommended a standardization for API interoperability and an objective to control costs to airlines. It also: “[…] requests Members of the United Nations Organization or its specialized agencies, and Customs or Economic Union which accept this Recommendation to notify the Secretary General of the Council of the date from which they will apply the Recommendation and of the conditions of its application. The Secretary General will transmit this information to the Customs administrations of all Members of the United Nations Organization or its specialized agencies and to Customs or Economic Unions which have accepted this Recommendation”.
- 161.
Ibid. at attachment clause no. 5: “IATA has constantly sought to eliminate unnecessary forms and procedures min international air transport and the abolition of the passenger manifest has been an important policy objective for the Association. Recent opportunities to automate government control processes have, however, let to a close look at the concept of API and its potential for facilitation improvements.
Collection of passenger details at departure presents a problem of additional workload for airlines at point in the system where staff and facilities are frequently already stretched to maximum capacity and beyond. Consequently, carrier support of API depends heavily on there being truly realizable benefits for airline passengers on arrival at destination.
Furthermore, given the practical cost constraints of data capture and transmission, limiting the required information to that which can be captured by machine reading passports and visas, augmented by basic flight details, is a prerequisite. To this end, IATA sees particular benefit in co-operating with the CCC to define the data and message sets for API within UN/EDIFACT PAXLST development, and in establishing jointly agreed principles which can expand the benefits of automating and integrating all elements of the passenger process from origin to destination”.
- 162.
Ibid. at attachment clause 9.
- 163.
Ibid. at attachment clause 8.1.5: “It should be noted that API transmissions will contain data for passengers carried into a country (initial place/port of arrival) from the last place/port of call of that aircraft abroad. API transmissions will not provide information of passengers’ previous flights or ports of call before joining the flight at the last foreign port of call. Neither will API transmissions provide information on onward flights to other countries. Put simply, the API transmission contains only details of passengers carried from last port of call to the first port of call in the country of arrival without regards for the passengers’ initial point of departure or their ultimate destination”.
- 164.
Refer to the “US–Mexico Border Partnership Action Plan,” online: http://www.whitehouse.gov/infocus/usmxborder/22points.html (date accessed: 17 December 2002).
- 165.
Refer to the “US–Canada Smart Border/30 Point Action Plan,” online: http://wwww.whitehouse.gov/news/2002/12/20021206-1.html (date accessed: 17 December 2002): The United States and Canada have agreed to share Advanced Passenger Information.
- 166.
One Hundred Seventh Congress of the United States, Aviation and Transportation Security Act, HR 5005 EAS, Chapter Chapter 1 of title 49 S. 1447 at section 115 sub-section 2.
- 167.
Unofficial letter by American Airlines dated 28 February 2002 and unofficial letter by Continental Airlines dated 28 February 2002.
- 168.
Immigration And Refugee Protection Act, L.c. 2001, c.27 (hereinafter referred to as IRPA).
- 169.
Citizenship and Immigration Canada (hereinafter referred to as CIC).
- 170.
IRPA, Part 17 Transportation, supra note 51 at section 269.
- 171.
“Privacy Commissioner of Canada: News Release,” online: http://www.privcom.gc.ca/media/nr-c/02_05_b_020926_2_e.as (date accessed: 8 November 2002).
- 172.
Unofficial letter dated 24 January 2003 (not published).
- 173.
Ibid. at page 4.
- 174.
Weber L, “Inter-office memorandum on United States customs directive on advanced passenger information,” 7 June 2002 (not published).
- 175.
House of Commons Standing Committee on Delegated Legislation, Draft Immigration (Leave to Enter and Remain) Order 2000, online: http://www.hmso.gov.uk (date accessed: 4 March 2003).
- 176.
House of Commons Standing Committee on Delegated Legislation, Draft Immigration (Leave to Enter and Remain) Order 2000, p. 3: “The power to grant or refuse leave to enter before a person arrives in the UK has two benefits. Advance passenger information could pre-clear certain low-risk school groups and recognized reputable tour groups, thereby speeding their progress through immigration control and removing the need for detailed, individual examination on arrivals. Alternatively, we might send immigration officers overseas, with the agreement of the Government concerned, to address particular pressure points. It also allows us to take advantage of future technological developments such as biometrics. Such measures will benefit the travelling public, carriers and the immigration service”.
- 177.
House of Commons Standing Committee on Delegated Legislation, Draft Immigration (Leave to Enter and Remain) Order 2000, p. 3: “As I said, the role of the immigration officer is not diminished, as he or she can still examine a person with continuing leave”.
- 178.
Regulatory Impact Assessment: Introduction to Extended Powers of Information Collection On Passenger and Goods, Schedule 7 to the Terrorism Act 2000 (Information) Order 2002, online:
http://www.homeoffice.gov.uk/atoz/pax_and_goods.pdf (date accessed: 8 November 2002) at point 12: “The measure will enable the police to build an intelligence picture which will allow them to target and track terrorists in a way that has become essential in the aftermath of September 11 and the subsequent ongoing campaign against the threat of global terrorism”.
- 179.
Regulatory Impact Assessment: Introduction to Extended Powers of Information Collection On Passenger and Goods, Schedule 7 to the Terrorism Act 2000 (Information) Order 2002, at point 39: “We are confident that the enforcement agencies would apply the legislation fairly, proportionately and appropriately requesting the information and the police utilizing it. This approach has been confirmed by representatives of the police at meetings with the carriers”.
- 180.
British Airways letter dated 1 March 2002 (not published).
- 181.
UK Data Protection Act, online: http://www.legislation.hmso.gov.uk/acts1998/19980029.htm (date accessed: 10 January 2003).
- 182.
Refer to supra note 9 at clause 6.5.1 and 6.5.2.
- 183.
Ibid. at clause 8.2.1.
- 184.
Ibid. at clause 6.9.3. and 6.3.
- 185.
Refer to supra note 59 at attachment A:
(3) A general request to oblige the carrier to give access only to passenger name record information relating to passengers whose itineraries include at least one flight operated to or from or within the United States. In the event that carrier’s systems are not designed or configured so as to allow such access without also giving access to information about other passengers, the Customs Service shall adopt procedures or take other appropriate measures to ensure that its officers do not access information relating to such other passengers. In addition, prior to implementing any online processes, the Customs Service will agree to appropriate security protocols with the carrier.
(4) No carrier shall be obliged to change or modify its computer systems (hardware or software) in order to comply with a general or specific request, unless the changes or modifications and the allocation of the cost of making them are agreed in advance between the carrier and the Customs Service.
- 186.
British Airways letter date 26 August 2002 (not published): “There appears to be nothing in the Interim Rule to protect the security and integrity of the carrier’s systems. This is essential for British Airways to have confidence that cooperation will protect the integrity of its departure control systems and the legitimate rights and interests of its passengers. The Rule should provide such protection and British Airways respectfully requests the Customs Service agree to a security protocol prior to any direct systems access […] British Airways requests that the agreements be finalized before access is activated”.
- 187.
Unofficial letter by Virgin Atlantic Airways Ltd. dated 30 August 2002.
- 188.
Frashfields Bruckhaus Deringer. “Data Protection,” online: http://www/freshfields.com/practice/ipit/publications/22367.pdf (date accessed: 6 February 2003).
- 189.
Frashfields Bruckhaus Deringer. “Data Protection,” at page 1.
- 190.
Unofficial letter by Air 2000 Limited (26 August 2002).
- 191.
Manning, J. (Australian Delegate), “Facilitation Panel Fourth Meeting Information Paper,” (Montreal, 2–5 April 2002) ICAO Doc FAL/4-IP/8.
- 192.
Ibid. at clause 3.2.5 and 3.2.6: “At check-in, the airline prints the passenger’s bio data and flight number on a special Australian Incoming Passenger Card with the word ‘EXPRESS’ indicated. The card also has a magnetic strip that is coded with an identifier to retrieve that data on arrival in Australia.
On arrival in Australia, the passenger will be directed to the appropriate processing lanes by use of dynamic signage and Customs marshals who are on-hand. APP passengers using the Express lanes are expected to be cleared in about half the time of other passengers who are not APP”.
- 193.
Permanent Technical Committee, “Review of the WCO/IATA Guidelines on Advance Passenger Information” WCO Doc PW0045E1 (Brussels, 20 August 2001).
- 194.
Permanent Technical Committee, “Review of the WCO/IATA Guidelines on Advance Passenger Information” WCO Doc PW0045E1 (Brussels, 20 August 2001) at clause 4.2.
- 195.
Qantas Airways letter dated 22 August 2002 (not published): “Prima facie, Qantas has not identified any incompatibility between USCS Passenger Name Record (PNR) requirements and Australia’s national protection laws. However the statement in the CFR that ‘PNR information that is made available to Customs electronically may, upon request, be shared with other Federal Agencies,’ requires further clarification. Specifically, whether or not carriers will be notified when and with whom this information is being shared and how the integrity of the data will be maintained during this process”.
- 196.
Bundesdatenschutz, online: http://www.datenschutz-berlin.de/recht/de/bdsg/bdsg1.htm#absch1 (date accessed: 17 January 2003).
- 197.
Unofficial letter dated 30 August 2002 by the Deutsche Lufthansa Aktiengesellschaft: “Implementation by Lufthansa in the first quarter of 2003 appears feasible, provided that the present legal issues can be resolved”.
- 198.
Ibid. at page 2: “Administrative offences are applicable and punishable by fines up to Euros 250,000.00 to anyone who, whether intentionally or through negligence, collects or processes personal data which are not generally accessible without authorization (Section 43 BDSG); additionally, certain violations of this law can also carry criminal penalties of up to 2-years imprisonment and/or fines up to Euros 250,000.00 per offense (Section 44 BDSG)”.
- 199.
Swiss Federal law On Data Protection, online: http://www.datenschutz-berlin.de/recht/de/bdsg/bdsg1.htm#absch1 (date accessed: 5 March 2003).
- 200.
Unofficial letter by Swiss International Air Lines dated 26 August 2002 (not published).
- 201.
Unofficial interview with Dr. Edgar Friedrich, Bundeskriminalamt, Wiesbaden Germany in February of 2003.
- 202.
Unknown sheet of paper?
- 203.
Refer to supra note 53.
- 204.
Secretaria De Gobernacion, Instituto Nacional De Migracion, “Technical Specifications INM Fast-Track” Confidential INM Presentation (not published).
- 205.
Passenger Name Record Information Required For Passengers On Flights In Foreign Air Transportation To Or From The United States, 67 Fed. Reg. 42710 (25 June 2002).
- 206.
Unofficial letter by Varig’s legal counsel, Mrs. Constance O’Keefe dated 18 September 2002 (not published): “Due to Constitutional provision, information contained in air travel reservations, which is of a confidential nature, can only be disclosed upon written request by competent public authorities, by public administrative agencies, by an individual passenger – with proper identification – or by a legal representative duly authorized by the passenger”.
- 207.
EC Data Protection Directive (95/46EC), Protection of the individuals in relation to the processing of personal data, online http://wwwdb.europarl.eu.int/oeil/oeil4.Res213 (date accessed: 5 march 2003).
- 208.
Unofficial letter by IATA dated 26 August 2002 (not published).
- 209.
Chicago Convention, Art.13: “The laws and regulations of a contracting State as to the admission to or departure from its territory of passengers, crew or cargo of aircraft, such as the regulations relating to entry, clearance, immigration, passports, customs, and quarantine shall be complied with by or on behalf of such passengers, crew or cargo upon entrance into or departure from, or while within the territory of that State”.
- 210.
Chicago Convention, Art.1: “The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory”.
- 211.
Identifying current border security and identity management capacity gaps and vulnerabilities in ICAO Contracting States through questionnaires, consultations, assessment missions, etc.
- 212.
Formulating capacity-building interventions through technical cooperation projects or programmes based on international best practices and time-proven responses in other Contracting States, in partnership with other international agencies where needed.
- 213.
Securing donor funding for specific technical cooperation projects and launching project implementation, in partnership with other international agencies where needed.
- 214.
ICAO (Doc 9303).
- 215.
A table of coordinated assistance activities may be found in Volume 4, Number 1 of the MRTD Report, available at http://www2.icao.int/en/MRTD/Pages/ICAOMRTDReport.aspx.
- 216.
While a laser-engraved passport photo is not part of the ICAO MRTD standards yet, it is a recommended good practice as photo substitution of glued-in passport photos remains perhaps the most common modus operandi in travel document fraud.
- 217.
For more details of UAV operations and their nature visit http://www.uvs-info.com.
- 218.
An aircraft is defined as “any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface.” This definition appears in Annexes 1, 2, 3, 7, 8, 11, 13, 16 and 17 to the Convention on International Civil Aviation, signed at Chicago on 7 December 1944. See ICAO Doc 7300/9 Ninth Edition, 2006.
- 219.
Unmanned Aerial Vehicles: Background and Issues for Congress, Report for Congress written by Elizabeth Bone and Christopher Bolkcom, Congressional Research Service: The Library of Congress, 25 April 2003 CRS 1.
- 220.
Unmanned Aerial Vehicles: Background and Issues for Congress, Report for Congress written by Elizabeth Bone and Christopher Bolkcom, Congressional Research Service: The Library of Congress, 25 April 2003 CRS 1.
- 221.
Since 1964 the US Defense Department has developed 11 different UAVs, though due to acquisition and development problems only 3 entered production. The US Navy has studied the feasibility of operating Vertical Take off and Landing (VTOL) UAVs since the early 1960s, the QH-50 Gyrodyne torpedo-delivery drone being an early example. However, high cost and technological immaturity have precluded acquiring and fielding operational VTOL UAV systems.
- 222.
The main concern of the International Civil Aviation Organization in its role as regulator in this context is with international civil UAV operations and those standards that affect such operations. ICAO should therefore, not be expected to take on a leading role in the development of aircraft performance specifications.
- 223.
An ICAO Exploratory Meeting on Unmanned Aerial Vehicles (UAVs) was held at ICAO Headquarters in Montreal from 23 to 24 May 2006. The primary objective of the meeting was to explore the current state of affairs with respect to development of regulatory material related to UAVs and to discuss the possible role of ICAO in the regulatory process. The meeting was informed that the ICAO Secretariat would use the results of the meeting as the basis for developing a report to the ICAO Air Navigation Commission (ANC) along with recommendations on an ICAO work programme.
- 224.
At least four States: Australia; France; South Africa; and the United States are known to have commenced a programme developing standards for UAV operations. See Alexander ter Kuille, UASD and the ATM Community: The CANSO Policy of Engagement, UAV Systems, The Global Perspective, 2006/2007 Blyenburgh & Co.: France, p. 24 at 25.
- 225.
Convention on International Civil Aviation, Supra note 3. Air traffic Services: Annex 11 to the Convention on International Civil Aviation, 13th Edition, July 2001.
- 226.
Annex 15 contains Standards and Recommended Practices relating to Aeronautical Information Services.
- 227.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944. ICAO Doc 7300/9, Ninth Edition, 2006.
- 228.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944. ICAO Doc 7300/9, Ninth Edition, 2006, Article 3.
- 229.
Annex 2 to the Convention on International Civil Aviation (note 385), “Safety – Safeguarding International Civil Aviation Against Acts of Unlawful Interference,” 8th edition, April 2006.
- 230.
Annex 8 to the Convention on International Civil Aviation (note 385), “Airworthiness of Aircraft,” 10th edition, April 2005.
- 231.
“A power-driven heavier-than-air aircraft, deriving its lift in flight chiefly from aerodynamic reactions on surfaces which remain fixed under given conditions of flight,” see definitions in note 388.
- 232.
“A heavier-than-air aircraft supported in flight chiefly by the reactions of the air on one or more power driven rotors on substantially vertical axes,” see definitions in note 388.
- 233.
Supra note 15, part IV, Article 1.1.2 (wording identical to 9th edition).
- 234.
Annex 1 to the Convention on International Civil Aviation (note 385), “Personnel Licensing,” 10th edition, July 2006.
- 235.
Supra note 15, Article 1.2.1.
- 236.
Supra note 3925, Chapter Chapter 3.
- 237.
Supra note, Article 2.1.1.
- 238.
Supra note, Article 2.2.
- 239.
Supra, note 14, Appendix 4, Article 1(c).
- 240.
Id, Article 3.2.
- 241.
Id, Article 3.4.
- 242.
Id, Article 3.6.
- 243.
The International Court of Justice 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 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. See Barcelona Traction, Light and Power Company Limited, I.C.J. Reports, 1974, 253 at 269–270.
- 244.
1925 RIAA ii 615 at 641.
- 245.
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.
- 246.
Articles 69 and 70.
- 247.
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, p. 148).
- 248.
- 249.
Ibid.
- 250.
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.
- 251.
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.
- 252.
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.
- 253.
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.
- 254.
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.
- 255.
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 State’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.
- 256.
Doc 4444, PANS-ATM.
- 257.
The phrase “regional air navigation agreements” 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.
- 258.
The authority responsible for establishing and providing the services may be a State or a suitable Agency.
- 259.
Standard 2.1.3.
- 260.
Assembly Resolutions in Force (as of 8 October 2004), ICAO Doc 9848, ICAO Montreal, at II-2.
- 261.
Assembly Resolutions in Force (as of 8 October 2004), ICAO Doc 9848, ICAO Montreal, at II-12.
- 262.
Assembly 36th Session, A 36-TE, Report of the Technical Commission (Report Folder), Resolution A 36-13, Appendix O at 36-19.
- 263.
The Convention entered into force on 17 September 1953. See http://www.mcgill.ca/files/iasl/geneva1948.pdf.
- 264.
Signed at Tokyo on 14 September 1963. See ICAO Doc. 8364.
- 265.
Signed at The Hague on 16 December 1970. See ICAO Doc. 8920.
- 266.
Signed at Montreal on 23 September 1971. See ICAO Doc. 8966.
- 267.
Signed at Rome on 7 October 1952. See ICAO Doc. 7364.
- 268.
Signed at Warsaw on 12 October 1929. The authentic French text of this Convention can be referred to in II Conférence Internationale de Droit Privé Aérien (4–12 Octobre 1929). The English translation is at the Schedule to the United Kingdom Carriage by Air Act, 1932; 22 & 23 Geo.5, Chap. 36.
- 269.
Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal on 28 May 1999. ICAO Doc 9740.
- 270.
See Crawford (2002, p. 77).
- 271.
See Dempsey (2003, pp. 118–119).
- 272.
In Re. Chorzow Factory (Jurisdiction) Case, (1927) PCIJ, Ser. A, no. 9 at 21.
- 273.
ICJ Reports (1949), 4 at 23.
- 274.
Christol (1991, p. 231).
- 275.
Report of the International Law Commission to the General Assembly on the Work of the 1st Session, A/CN.4/13, 9 June 1949, at 21.
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Abeyratne, R. (2010). Initiatives of the Early Twenty-first Century. In: Aviation Security Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-11703-9_3
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