Abstract
Safety management systems encapsulate a macrocosm of intrinsic safety issues that require strategic intervention and response. These issues are discussed in some detail later in this chapter. Many of ICAO’s 190 member States are already facing problems with respect to safety oversight. A glaring fact emerging from safety audits conducted by ICAO on States is that the findings of the initial safety oversight audit conducted by ICAO relating to the three Annexes to the Chicago Convention – Annex 1 – Personnel Licensing, Annex 6 – Operation of Aircraft and Annex 8 – Airworthiness of Aircraft, indicated that of the 181 Contracting States that were audited between March 1999 and July 2004, considerable numbers of States had deficiencies in respect of a number of requirements under these Annexes. Furthermore, audit follow-up missions have revealed that in many cases, significant deficiencies identified during the initial audits remain.
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Notes
- 1.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944. Ibid.
- 2.
Management of Aviation Safety, Presented by Canada, DGCA/06-WP/15, 4/2/06, at 2.
- 3.
Implementation of Safety Management Systems (SMS in States), Presented by the ICAO Secretariat, DGCA/06-WP/6, 9/01/06, at 1 and 2.
- 4.
Safety Management System Concept, DGCA/06-WP/12, 4/2/06, at 2.
- 5.
The International Civil Aviation Organization (ICAO) is the specialized agency of the United Nations on the subject of international civil aviation and was established by Article 43 of the Chicago Convention. ICAO has 190 Contracting States who have become member States of ICAO by placing their instruments of ratification of the Chicago Convention. Supra. n. 1.
- 6.
Chicago Convention, supra, note 3, Article 28 a).
- 7.
Sudharshan (2003), at p. 2.
- 8.
Global Air Navigation Plan for CNS/ATM Systems, Second Edition: 2002, ICAO Doc 9750, AN/963, p. 1-4-3 at paragraph 4.12.
- 9.
Miyagi (2005), at p. 143.
- 10.
Global Air navigation Plan for CNS/ATM Systems, supra, note 6, at p. 1-4-7, paragraph 4.39.
- 11.
Id. paragraph 4.40.
- 12.
Dr. Assad Kotaite, President of the International Civil Aviation Organization ICAO’s Unified Strategy, Airport 2005, 118 at 119.
- 13.
Assembly Resolutions in Force (as of 8 October 2004), ICAO Doc 9848, at 1–60.
- 14.
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.
- 15.
See Eleventh Air Navigation Conference report, ICAO Doc 9828, AN-Conf/11, Montreal: 20 at 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.
- 16.
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.
- 17.
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 p. 148.
- 18.
Kaiser (1995) at p. 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 9, at 110.
- 19.
Ibid.
- 20.
ICAO Doc. EANPG COG/2-WP/6, 12/03/1996 at 3.
- 21.
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.
- 22.
Buergenthal (1969), at p. 121.
- 23.
Milde (2002).
- 24.
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.
- 25.
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.
- 26.
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.
- 27.
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.
- 28.
Standard 2.1.2.
- 29.
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.
- 30.
Standard 2.2.1.
- 31.
Standard 3.3.1.
- 32.
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.
- 33.
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.
- 34.
Doc 4444, PANS-ATM.
- 35.
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.
- 36.
The authority responsible for establishing and providing the services may be a State or a suitable Agency.
- 37.
Standard 2.1.3.
- 38.
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.
- 39.
Caire Claim, 5 RIAA, p.516 (1929).
- 40.
Home Missionary Society Claim, 6 RIAA, p. 42 (1920).
- 41.
Article 12 stipulates that each contracting State is required to insure that every aircraft flying over or manoeuvring within its territory and that every aircraft carrying its nationality mark, wherever that aircraft might be, shall comply with the rules and regulations relating to flight and manoeuvre applicable there. It also provides that each Contracting States should keep its regulations consistent with the principles of the Chicago Convention. Over the high seas the rules will be as established under the Convention and States undertake, under Article 12, to prosecute any offender who does not adhere to these principles. Articles 30 and 31 refer to the need for aircraft to carry radio equipment as required and be issued with certificates of airworthiness by the State of Registry, respectively. Article 32 a) requires the pilot and other members of the crew to be provided with certificates of competency and licenses issued by the State of Registry.
- 42.
Aust (2000), at p. 75.
- 43.
See Dempsey (2003), at 118–119.
- 44.
The ISSG worked with ICAO, the primary customer for their work, to produce the Global Aviation Safety Roadmap Part 1 – A Strategic Action Plan for Future Aviation Safety, which was handed over to ICAO in December 2005 and presented to the Directors General Civil Aviation (DGCA) Conference on a Global Strategy for Aviation Safety (DGCA/06) in March 2006. The conference welcomed the Global Aviation Safety Roadmap and recommended that:
ICAO, in collaboration with all States & other stakeholders, continue development of an integrated approach to safety initiatives based on the Global Aviation Safety Roadmap - a global framework for the coordination of safety policies and initiatives.
- 45.
For a discussion on SMS see, Abeyratne (2007a).
- 46.
Management of Aviation Safety, Presented by Canada, DGCA/06-WP/15, 4/2/06, at 2.
- 47.
The stakeholders are identified as States, ICAO, airlines/operators, airports, air navigation sevice providers, aircraft and equipment manufacturers, maintenance and repair organizations and industry representatives.
- 48.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944, Supra. n. 3.
- 49.
It must be noted that ICAO’s Business Plan is driven by six Strategic Objectives: Safety – Enhance global civil aviation safety; Security – Enhance global civil aviation security; Environmental Protection – Minimize the adverse effect of global civil aviation on the environment; Efficiency – Enhance the efficiency of aviation operations; Continuity – Maintain the continuity of aviation operations; and Rule of Law – Strengthen law governing international civil aviation.
- 50.
Convention on International Civil Aviation, supra, note 3.
- 51.
In the new world order, judges of a particular jurisdiction keep in close contact with their counterparts in other jurisdictions across the seas, which enables them to infuse global trends into their judgements; ministers keep in touch with their counterparts overseas, making them aware of the single thread of statecraft that comes with globalization; and police investigators collaborate closely with other police officers across the world to make inroads into the solving of crime. See Slaughter (2004), Introduction at 1.
- 52.
ICAO’s Mission and Vision Statement calls for ICAO to work to achieve its vision of safe, secure and sustainable development of civil aviation through cooperation amongst its Contracting States.
- 53.
- 54.
R.I.R. Abeyratne, Legal and Regulatory Issues of Computer Reservation Systems and Code Sharing Agreements in Air Transport, Editions Frontieres, 195, at 119–176.
- 55.
ICAO Circular 269, Implications of Airline Code-sharing.
- 56.
Article 12 stipulates that each contracting State is required to insure that every aircraft flying over or manoeuvring within its territory and that every aircraft carrying its nationality mark, wherever that aircraft might be, shall comply with the rules and regulations relating to flight and manoeuvre applicable there. It also provides that each Contracting States should keep its regulations consistent with the principles of the Chicago Convention. Over the high seas the rules will be as established under the Convention and States undertake, under Article 12, to prosecute any offender who does not adhere to these principles. Articles 30 and 31 refer to the need for aircraft to carry radio equipment as required and be issued with certificates of airworthiness by the State of Registry, respectively. Article 32 a) requires the pilot and other members of the crew to be provided with certificates of competency and licenses issued by the State of Registry.
- 57.
The Conference had the theme “Challenges and Opportunities of Liberalization” and examined the key issues of liberalization such as air carrier ownership and control; market access; faior competition and safeguards; consumer interests; product distribution; dispute resolution; and transparency. See Report of the Worldwide Air Transport Conference, Doc 9819, ATConf/5 2003 at p. 1 and 2.
- 58.
The Protocol relating to amending the Chicago Convention to introduce Article 83 bis, signed at Montreal on 6 October 1980, entered into force on 20 June 1997. As at 5 May 2005, when this article was written, 144 States parties had deposited their instruments of ratification.
- 59.
Convention on International Civil Aviation, Supra n. 3. The Chicago Convention is an international treaty which lays down principles of State conduct on matters of international civil aviation; establishes the International Civil Aviation Organization and identifies ICAO’s functions. The Chicago Convention has been ratified by 190 States which, ipso facto, become members of ICAO. Hererafter, any reference to an Annex would be to one of the 18 Annexes to the Chicago Convention.
- 60.
The Conference noted that operators continued to increasingly built economic ties to non-homeland carriers in the creation of code-sharing, alliances and other business relationships. They have increasingly engaged in a variety of domestic and international leasing arrangements-wet (with crew and operational management), dry (without crew), and so-called “damp” leases (various intermediate forms). See Safeguarding Safety and Security Oversight Through the Course of Economic Liberalization, ATConf/5-WP/96, 11/3/03, paper presented to the Conference by the United States.
- 61.
Safety Aspects of Liberalization, ATConf/5-WP/68, 28/2/03, paper presented by the European Community, at 2.
- 62.
“Flags of convenience” is a term derived from the maritime industry which denotes a situation in which commercial vessels owned by nationals of a State, but registered in another State, are allowed to operate freely between and among other States.
- 63.
This problem is currently being addressed separately by the ICAO Air Navigation Commission and the Council in association with the Unified Strategy to resolve safety-related deficiencies within the scope of Article 54 j) of the Chicago Convention, which requires the Council to report to States any infraction of the Convention, as well as any failure to carry out recommendations or determinations of the Council. See ICAO Air Navigation Commission working paper AN-WP/8015.
- 64.
See ICAO Circular 269, Implications of Airline Codesharing.
- 65.
Doc 9819 note.78 at paragraph 1.2.3.1 c).
- 66.
Manual of Procedures for Operations Inspection, Certification and Continued Surveillance (Doc 8335), the Airworthiness Manual (Doc 9760) and Guidance on the Implementation of Article 83 bis of the Convention on International Civil Aviation, Cir 295, LE/2, February 2003.
- 67.
Safest Year for Air Transport: IATA, Air Letter, Thursday, 10 March 2005, No. 15,695, at 1. IATA records that data shows the chances of dying in an airline accident in 2004 were one in every 10 million people flying against three in 2002 and over seven in 1996. For a description of IATA see infra note 107.
- 68.
Supra. note 58.
- 69.
Article 12 stipulates that each contracting State is required to insure that every aircraft flying over or maneuvering within its territory and that every aircraft carrying its nationality mark, wherever that aircraft might be, shall comply with the rules and regulations relating to flight and maneuver applicable there. It also provides that each Contracting States should keep its regulations consistent with the principles of the Chicago Convention. Over the high seas the rules will be as established under the Convention and States undertake, under Article 12, to prosecute any offender who does not adhere to these principles. Articles 30 and 31 refer to the need for aircraft to carry radio equipment as required and be issued with certificates of airworthiness by the State of Registry, respectively. Article 32 a) requires the pilot and other members of the crew to be provided with certificates of competency and licenses issued by the State of Registry.
- 70.
Annex 6, Part I paragraph 9.3.1.
- 71.
Annex 6, Note 1 to paragraph 1.2.5.1.1.
- 72.
Annex 6, Part 1 paragraph 4.2.1.3.
- 73.
Annex 6, Part1, paragraph. 8.3.1.
- 74.
Annex 6, Part 1, paragraph 8.2.1.
- 75.
Annex 6, Part 1, paragraph 8.2.4.
- 76.
Annex 6, Part 1, paragraph 5.1.1.
- 77.
Annex 6, Part 1, paragraph 6.1.2.
- 78.
Annex 6, Part 1, Chapter 2 and paragraph 4.2.1.
- 79.
Abeyratne (2007b), at pp. 25–47.
- 80.
The potential explosion of unmanned aircraft Systems (commonly called UASs) in airspace also brings to bear the need to have a closer look at the civil-military aviation airspace demarcation. UASs are commonly associated with military operations in many parts of the world. The question that would arise in this context is how would a State feel about sharing airspace over contiguous States with a swarm of UASs operated by a mix of military/law enforcement and commercial enterprises? For more information see Abeyratne (2009a).
- 81.
http://au.china-embassy.org/eng/xw/t261698.htm See infra text pertaining to notes 49 and 50.
- 82.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944 Supra. n. 3.
- 83.
In October 1949, on the occasion of the adherence of Israel to the Chicago Convention, the Government of Egypt advised ICAO that, in view of considerations of fact and law which at that time affected Egypt’s special position with regard to Israel and in pursuance of Article 89, Israeli aircraft may not claim the privilege of flying over Egyptian territory. See letter dated 16 October 1949 reproduced in Annex A to Doc 6922-C/803 at p. 125. It was Egypt’s claim, as was later clarified by Egypt upon a query of the Secretary General of ICAO, that a state of war existed between the two countries. The Government of Iraq also advised ICAO along similar lines, that a state of emergency had been declared on 14 May 1848 and therefore Article 89 was applicable and all Israeli aircraft were denied the privilege of flying over the territory of Iraq. On 28 November 1962 the Government of India informed ICAO that as a result of external aggression into Indian Territory by the People’s Republic of China a state of grave emergency existed and the Government of India may not find it possible to comply with any or all of the provisions of the Chicago Convention. On 6 September 1965 the Government of Pakistan notified ICAO of the state of emergency under Article 89. In all instances, ICAO relayed the communications received to all its member States.
- 84.
The theme of the Forum was “Time to take it global: Meeting each other's needs without compromising the Mission”. The event was held as a follow up to recommendations of the Eleventh Air Navigation Conference (Doc 9828, Rec. 1/2) concerning coordination with military authorities with a view to achieving enhanced airspace organization and management and as an integral supporting mechanism of the successful series of civil/military air traffic management summits instituted by the Air Traffic Control Association (ATCA). It was also a follow up to ICAO Assembly Resolution A36-13, Appendix O, Coordination of civil and military air traffic wherein States are asked to take appropriate action to coordinate with military authorities to implement a flexible and cooperative approach to airspace organization and management. The Forum was intended to create awareness among civil and military policy makers and regulators, civil and military air navigation service providers (ANSPs) and civil and military airspace users, on the need to improve civil/military cooperation and coordination in support of an optimum use of airspace by all users.
- 85.
The International Air Transport Association, an association of air carriers, was formed in 1919 as the International Air Traffic Association. Encapsulated in IATA’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.
- 86.
CANSO is the global voice of the air traffic management profession. Its members comprise over 50 air navigation service providers who control more than 85% of global air traffic movements. CANSO seeks to promote best practices within the industry.
- 87.
EUROCONTROL, the European Organisation for the Safety of Air Navigation, is an intergovernmental organisation made up of 38 Member States and the European Community. Its primary objective is the development of a seamless, pan-European air traffic management (ATM) system. EUROCONTROL contributes to making European aviation safer, performance-driven and environmentally sustainable. It was originally founded in 1960 as a civil-military organisation to deal with air traffic control for civil and military users in the upper airspace of its six founding European Member States. EUROCONTROL has developed into a vital European repository of ATM excellence, both leading and supporting ATM improvements across Europe.
- 88.
See Civil-Military Cooperation – The CANSO Perspective, October 2009.
- 89.
Groenewege (1999), at p. 437. It must also be noted that an aircraft has been defined in Annexes 6, 7 and 8 to the Chicago Convention as any machine which can derive support in the atmosphere from the reactions of air other than the reactions of air on the Earth’s surface.
- 90.
Ibid.
- 91.
- 92.
In a report released on 21 December 2009, Venezuelan President Hugo Chavez is reported to have announced that, on Sunday 20 December, military drones had penetrated Venezuelan airspace along the North-western border with Colombia He had warned that Venezuela was prepared to defend itself if any State were to violate its sovereignty. See http://www.venezuelanalysis.com/news/5022. On 4 January 2010, it was reported that a US drone had fired two missiles in Pakistan, flattening an extremist hideout in Pakistan's lawless tribal belt on Sunday 3 January 2010, killing five militants in a recent spike in drone attacks. See http://www.channelnewsasia.com/stories/afp_asiapacific/view/1028351/1/.html.
- 93.
As per Article 44 of the Chicago Convention.
- 94.
- 95.
FIRs were devised by ICAO in the 1950s to provide facilities and services to the civilian aircraft in the international airspace. FIR arrangements solely entail technical responsibility. It does not change the free status of the airspace over the high seas under international law.
- 96.
Article 3 of the Chicago Convention states that the Convention applies only to civil aircraft and not to State aircraft, and goes on to explain that aircraft used in military, customs and police services shall be deemed to be State aircraft. Article 3 c) prohibits State aircraft of one State from flying over the territory of another State or landing thereon without special agreement or otherwise.
- 97.
Supra.
- 98.
Supra.
- 99.
Global Air Traffic Management Operational Concept, ICAO Doc 9854, AN/458, First Edition-2005, Chapter 1, Para 1.1.
- 100.
Supra.
- 101.
Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation, Assembly Resolutions in Force (as of 28 September 2007), Doc 9902, II-2.
- 102.
Supra.
- 103.
In its briefing, ICAO emphasized that cooperation between civil and military authorities should be aimed at achieving optimal use of the airspace resulting in increased airspace capacity, operational flexibility, and savings in flying time, fuel and CO2 emissions. The Forum noted that safety, economical impact, efficiency and interoperability are objectives shared by both civil and military aviation communities.
- 104.
An operational concept is a statement of what is envisioned.
- 105.
Air traffic management is the dynamic, integrated management of air traffic and airspace – safely, economically and efficiently – through the provision of facilities in collaboration with all parties. See ICAO Doc 9854, supra at 1. 1.
- 106.
Ibid.
- 107.
Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations, ICAO Doc 9554-AN/932 First Edition, 1990, paragraph 3.1.
- 108.
Id. Paragraph 3.1.1. Examples of military activities which may pose a threat to civil aircraft and which should be coordinated with ATS authorities include practice firings or testing of any weapons air-to air, air to surface, surface to air in an area or in a manner that could affect civil air traffic; certain military aircraft operations such as air displays, training exercises and the intentional dropping of objects and paratroopers; launch and recovery of space vehicles; and operations in areas of conflict, when such operations include a potential threat to civil air traffic. See Paragraph 3.2. of Doc 9554.
- 109.
Id. Paragraph 8.1.
- 110.
Id. Paragraph 8.2.
- 111.
Id. Paragraph 8.3.
- 112.
Id. Paragraph 8.4.
- 113.
Id. Paragraphs 9.1 and 9.2.
- 114.
Supra.
- 115.
Doc 9554, Paragraph 10.2.
- 116.
Id. Paragraph 10.3.
- 117.
Id. Paragraph 10.4
- 118.
See Manual Concerning Interception of Civil Aircraft, ICAO Doc 9433-AN/926 Second Edition − 1990.
- 119.
Id. Paragraph 3.2.4.1.
- 120.
Id. Paragraph 3.2.6.1.
- 121.
Id. Paragraph 3.1.7.1.
- 122.
Id. Paragraph 3.1.9.1.
- 123.
Supra.
- 124.
See supra.
- 125.
- 126.
- 127.
Shaw (2003), at p. 120.
- 128.
Infra, note 164.
- 129.
The ventilation system plays a critical part in this regard and therefore, it is crucial to an airline’s conduct to determine the manner in which that carrier decides on ventilation systems in its aircraft. For instance, early jet aircraft until the last decade offered 100% fresh air in the cabin. However, in the 90s, ironically with more evolved technology, ventilation systems in aircraft were built in such a way as to recycle stale air, thus increasing the chances of survival of bacteria and deleterious particles in the aircraft cabin. Even if such a practice were ineluctable, in that recycling is a universal practice which is calculated to conserve fuel, a prudent airline would take other measures, such as change of air filters through which ventilation is provided.
- 130.
Crawford (1989).
- 131.
Holcomb (1988).
- 132.
- 133.
Aviation Contaminated Air References Manual, Captain Susan Michaelis ed. Published by Captain Susan Michaelis and printed by CPI Antony Rowe, Eastbourne, England, 2007 at iii.
- 134.
Tristan Lorraine, Toxic Airlines, DFT Enterprises: London, 2007 at 19–20.
- 135.
Captain John Hoyte, Aerotoxic Syndrome – Aviation’s Best Kept Secret, http://www.aerotoxic.org/download/docs/news_and_articles/NEXUS-Aerotoxic-Syndrome.pdf.
- 136.
The term “aerotoxic syndrome”was first suggested in 1999. See Winder et al. (2002).
- 137.
Hale and Al-Seffar (2008), at 107.
- 138.
S. Myhill, Aerotoxic Syndrome, www.aerotoxic.org/articles/20071118.
- 139.
The symptoms are said to vary from fatigue, sleep deprivation, blackouts, seizures, neuro-muscular pain and weakness. See Winder and Balouet (2001).
- 140.
J. Hoyte, Captain Hoyte’s Account, www.aerotoxic.org/articles 20071114. Also, Toxic Free Airlines,(TFA) Poisoned Pilots Launch Campaign at Parliamentary Meeting: The Aerotoxic Association and Toxic Free Airlines to Expose Massive Public Health Scandal and Support Victims, www.toxicfreeairlines.com.
- 141.
Montgomery et al (1977).
- 142.
Technical Report on Air Safety and Cabin Air Quality in the BAe146 Aircraft, Parliament of the Commonwealth of Australia, Senate Rural and Regional Affairs and Transport Legislation Committee, Senate Printing Unit: Canberra, Australia, 2000 at pp. 115–128.
- 143.
CAA (2008) ‘Flight Operations Department Communications (FODCOM) 17/2008’ UK Civil Aviation Authority, Safety Regulation Group, Aviation House, Gatwick, West Sussex, England; CAA (2002) ‘Flight Operations Department Communications (FODCOM) 21/2002’ UK Civil Aviation Authority, Safety Regulation Group, Aviation House, Gatwick, West Sussex, England; CAA (2001) ‘Flight Operations Department Communication (FODCOM) 14/2001’ UK Civil Aviation Authority, Safety Regulation Group, Aviation House, Gatwick, West Sussex, England. CAA (2000) ‘Flight Operations Department Communication (FODCOM) 17/2000’ UK Civil Aviation Authority, Safety Regulation Group, Aviation House, Gatwick, West Sussex, England.
- 144.
Cabin air quality’ CAA Paper 2004/04, Research Management Department, Safety Regulation Group, UK Civil Aviation Authority, Aviation House, Gatwick Airport South, West Sussex, UK.
6. Cabin air quality’ CAA Paper 2004/04, Research Management Department, Safety Regulation Group, UK Civil Aviation Authority, Aviation House, Gatwick Airport South, West Sussex, UK.
- 145.
‘Report RL 2001:41e ‘Accident investigation into incident onboard aircraft SE-DRE during flight between Stockholm and Malmo M County, Sweden,’ Statens Haverikommission Board of Accident Investigation, Stockholm, Sweden.
- 146.
Airworthiness Directive 2004-12-05: BAE Systems (Operations) Limited Model BAe 146 Series Airplanes’ Docket No. 2003-NR-94-AD, Federal Aviation Administration, Washington, DC.
- 147.
Submission by Susan Michaelis (Capt): To accompany all sections of A-NPA comments made by EASA CRT, 8/1/10, RE: A-NPA No. 2009-10 ‘Cabin air quality onboard large aeroplanes’ at p. 9.
- 148.
See Sinnett (2007).
- 149.
Convention on International Civil Aviation, supra, note 3.
- 150.
Id. Article 37.
- 151.
Id Article 44(a).
- 152.
Id Article 44(d).
- 153.
Id Article 44(h).
- 154.
Annex 8 to the Convention on International Civil Aviation – Airworthiness of Aircraft – Tenth Edition, April 2005.
- 155.
Id. Standard 3.2.1.
- 156.
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.
- 157.
Id. Standard 3.2.2.
- 158.
Id. Standard 5.1.
- 159.
Id. Part III B, Sub Part J, J-4 (Operating Environmental Factors).
- 160.
Resolution A35-12 Protection of the Health of Passengers and Crews and Prevention of the Spread of Communicable Disease through International Travel, Assembly Resolutions in Force (as of 28 September 2007), ICAO Doc 9902, at 1–77.
- 161.
Id. 1–79.
- 162.
- 163.
Case No. CV-09-HGD-2193-s in the District Court of Northern District of Alabama, 28 October 2009. 46 N. W. 677.
- 164.
[2009] NSW DDT 10, 5 May 2009. Also,New South Wales Dust Diseases Tribunal 10 (5 May 2009) Matter Number 428 of 2001, discussed in ZLW, 58 Jg 4/2009, at pp. 705–717.
- 165.
See, Flight attendant wins toxic cabin air damages, Air Letter, No. 17,074 Thursday 16 September 2010 at p.3. This article states that A University of New South Wales survey has found that about 25% of pilots who flew the BAe 146 aircraft suffered long term health degradation that deprived them of their pilot licences and that an Australian Senate inquiry had found East-West and Ansett Airlines had been paid more than $2 million by BAe Systems (British Aerospace’s successor) to drop complaints about the aircraft.
- 166.
Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal on 28 May 1999, ICAO Doc 9740.
- 167.
Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929.
- 168.
Westlaw 7724 (January 12 1999).
- 169.
Conly v. Gibson, 355 U.S. 41 (1957).
- 170.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
- 171.
Id at 11. Justice Souter quoted Daves v. Hawaiian Dredging Co. 114 F. Supp. 643 at 645.
- 172.
S.Ct. 1937.
- 173.
Justice Ginsburg, a dissenting voice in the case, later criticized the majority decision as “messing up the federal rules” and Justice Souter himself (who delivered the majority Twombly judgment) was observed stating that the Iqbal decision had misapplied the pleading standard set in the Twombly decision. For a good discussion on this subject, see the Summer 2009 Aviation Round up of Condon & Forsyth LLP, at p. 3.
- 174.
See Abeyratne (1998).
- 175.
Koenig and Rustad (2005).
- 176.
See Stanton. Incremental Approaches to the Duty of Care, Chapter 2 of Mullany, Torts in the Nineties, Law Book Company:1997.
- 177.
(1985) 157 CLR 424.
- 178.
Id. 481.
- 179.
[1990] 2 AC 605.
- 180.
Id. at 618.
- 181.
Thibeault (1997).
- 182.
Prosser (1964).
- 183.
Lawrence (2000).
- 184.
Rookes v. Bernard (H.L. 1964) 1 All Eng. Rep. 367.
- 185.
For the purposes of this paper, 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.
- 186.
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).
- 187.
- 188.
See pdf brochure at http://www.insubuy.com/piu/pilotsdisabilityinsurance/brochure.jsp.
- 189.
See John Alan Cohan, Aero Legal Analysis: Pilots Accused of Medical Certification Fraud, http://espanol.groups.yahoo.com/group/Seguridad-Aerea/message/1600.
- 190.
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 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. Id.
- 191.
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. Seehttp://www.hg.org/article.asp?id=20681.
- 192.
- 193.
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.
- 194.
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 one-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.
- 195.
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-safe-pilot.html.
- 196.
http://www.faa.gov/news/press_releases/news_story.cfm?newsId=11293. On April 2nd CNN covered a story titled “FAA to allow pilots to fly on antidepressants” 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/.
- 197.
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.
- 198.
- 199.
Opinion No 07/2010 of the European Safety Agency 13 December 2010.
- 200.
Supra. n. 3.
- 201.
Personnel Licensing, 10th Edition, July 2006.
- 202.
Id, Standard 1.2.4.8.
- 203.
Id. Standard 1.2.6.1.
- 204.
Id. Recommendation 1.2.6.1.1.
- 205.
Id. Standard 1.2.7.1.
- 206.
Doc 8984-AN/895, Second Edition, 1985.
- 207.
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?q=SUGGESTIO+FALSI.
- 208.
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.
- 209.
See Annex 6 to the Convention on International Civil Aviation signed in Chicago on 7 December 1944, Para 4.5.1.
- 210.
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.
- 211.
See N. Price, Pilot Error (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.
- 212.
- 213.
Burridge (1977).
- 214.
Evans (1995).
- 215.
Steenblick (1995), at 31.
- 216.
In December 1997, a Silk Air B737-300 operating a flight from Jakarta to Singapore crashed in Indonesia, killing 104 passengers and crew on board. Two theories regarding the accident were propounded: that some catastrophic malfunction of the aircraft led to the crash; or that the crew committed suicide. The aircraft plunged vertically from its cruising altitude directly into the Musi River in Southern Sumatra without any distress signal being emitted or any indication from the cockpit to air traffic control that the aircraft was experiencing problems. Unfortunately, much of the debris had been washed away by the fast flowing waters of the river when accident investigation commenced, leaving little, if any, information for deduction as to the cause of the accident. A significant factor, however, was that both the cockpit voice recorder and flight data recorder had stopped functioning immediately prior to the commencement of descent. It is reported that the Captain had been demoted from his position of flight instructor shortly before the crash and had allegedly been heavily in debt. The Singapore police investigating the crash had reportedly classified the case as involving suicide-cum murder by the pilot. See Abeyratne (2000).
- 217.
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. Ibid.
- 218.
Many types of mental disorders have been cited. Broad categories include anxiety disorders, mood disorders, personality disorders, schizophrenia, substance abuse and dependence and several others. See Snyder (1988), at 17.
- 219.
Phillips (1999), at 43.
- 220.
Hedley Byrne & Co. Ltd. v. Heller & Partners [1964] A.C. 465.
- 221.
Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801.
- 222.
(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.
- 223.
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).
- 224.
Brownlie v. Campbell (1880), 5 App. Cas. 925 (per Lord Blackburn).
- 225.
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.
- 226.
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 ship’s crew. Several clauses in the Jones Act set a precedent, since they went above and beyond similar protective clauses under admiralty law.
- 227.
F2d 547.
- 228.
F. Supp, 2d. 815.
- 229.
Id, at 826.
- 230.
Besco, supra, note 217. ibid.
- 231.
[1981] 1 All E.R. 267.
- 232.
Id. at 276.
- 233.
Supra. n. 1.
- 234.
Evans, How Fit is the Pilot, Doctor? Supra note 235 at p. 9.
- 235.
Ibid.
- 236.
See Stanton, Incremental Approaches to the Duty of Care, Chapter 2 of Mullany, Torts in the Nineties, Law Book Company:1997.
- 237.
(1985) 157 CLR 424.
- 238.
Id. 481.
- 239.
[1990] 2 AC 605.
- 240.
Id. at 618.
- 241.
The group was convened to establish a coordinated region-wide operational approach by aviation to volcanic ash emergencies.
- 242.
- 243.
The eruption was followed by a large “explosivity” on 14 April 2010, which spewed ash 30,000 feet into the air. The unique damaging effect of this eruption was that the volcano was covered with a large mass of ice which melted spontaneously, transforming the lava and ice into aerosol form, which stayed airborne for days and travelled long distances. Although volcanic eruptions are classified in numerous ways according to the individual context in which it is referred to, the word commonly used in aviation parlance is “explosivity” which provides an evaluation of the volume of volcanic ash released and the likely height of the column. See Manual on Volcanic Ash, Radioactive Material and Toxic Chemical Clouds, ICAO Doc 9691, AN/954 Second Edition, 2007 at I-1-1.
- 244.
All civilian air traffic was grounded across the United Kingdom on 15 April 2010. See Volcanic ash cloud grounds flights over UK, The Air Letter, No. 16,967, Thursday, 15 April 2010 at 2. The problem was unprecedented as, unlike in earlier volcanic eruptions elsewhere, this eruption affected airspace over some European States which is usually congested. In Britain alone, there are approximately 5,000 daily inbound and outbound flights, with 1,300 flights and 180,000 passengers going through London Heathrow. See Airlines set to lose more than 100 million Pounds in ash chaos, The Air Letter, No. 16, 968, Friday, 16 April 2010 at 1.
- 245.
Some have attributed the opening of airspace to intense lobbying from the airlines which complained that they had lost $1 billion over the week of closure and cancelled 80,000 flights. See Airlines argue case, Airspace opens, The Air Letter, No. 16,970, Tuesday 20 April 2010 at 1.
- 246.
Meteorological Service for International Air Navigation.
- 247.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944. See Doc 7300/9 Ninth Edition, 2006.
- 248.
The IAVW Operations Group (IAVWOPSG) was established in 2002 by the ICAO MET Divisional Meeting. The IAVWOPSG assists ICAO in the coordination and development of the IAVW. The IAVWOPSG is composed of experts from nine regional Volcanic Ash Advisory Centres (VAACs), other user States, the International Atomic Energy Agency (IAEA), the International Air Transport Association (IATA), the International Federation of Air Line Pilots’ Associations (IFALPA), the International Union of Geodesy and Geophysics (IUGG) (covering the World Organization of Volcano Observatories) and the World Meteorological Organization (WMO).
- 249.
A nearly identical incident occurred on 15 December 1989 when KLM Flight 867, a B747-400 plying from Amsterdam to Anchorage, Alaska, flew into the plume of the erupting Mount Redoubt, causing all four engines to fail due to compressor stall. Once the flight cleared the ash cloud, the crew was able to restart each engine and then make a safe landing at Anchorage.
- 250.
SIGMET, or Significant Meteorological Information, is a weather advisory that contains meteorological information concerning the safety of all aircraft. There are two types of SIGMETs, convective and non-convective. The criteria for a non-convective SIGMET to be issued are severe or greater turbulence over a 3,000-square-mile (7,800 km2) area, or severe or greater icing over a 3,000-square-mile (7,800 km2) area or IMC conditions over a 3,000-square-mile (7,800 km2) area due to dust, sand or volcanic ash.
- 251.
Annex 3, Meteorological Service for International Air Navigation Sixteenth Edition, July 2007. The object of the meteorological service outlined in Annex 3 is to contribute to the safety, efficiency and regularity of air navigation. This is achieved by providing necessary meteorological information to operators, flight crew members, air traffic services units, search and rescue units, airport management and others concerned with aviation. Close liaison is essential between those supplying meteorological information and those using it.
- 252.
Annex 3, id, at Standard 3.5. During the past few years a number of incidents have occurred due to aircraft encounters with volcanic ash clouds following volcanic eruptions. In order to provide for the observation and reporting of volcanic ash clouds and the issuance of warnings to pilots and airlines, ICAO, with the assistance of other international organizations, has established an international airways volcano watch (IAVW). The cornerstones of the IAVW are nine volcanic ash advisory centres which issue advisory information on volcanic ash globally, both to aviation users and meteorological offices concerned.
- 253.
Id. Standard 3.6.
- 254.
Id Standard 4.6.5.
- 255.
Id. Recommended Practice 4.8. The report should be made in the form of a volcanic activity report comprising the following information in the order indicated: (a) message type, Volcanic Activity Report; (b) station identifier, location indicator or name of station; (c) date/time of message; (d) location of volcano and name if known; and (e) concise description of event including, as appropriate, level of intensity of volcanic activity, occurrence of an eruption and its date and time, and the existence of a volcanic ash cloud in the area together with direction of ash cloud movement and height.
- 256.
Id. Standard 5.5.
- 257.
Id. Standard 8.4. Furthermore, the meteorological authority is required to designate a meteorological office to be associated with each air traffic services unit. The associated meteorological office shall, after coordination with the air traffic services unit, supply, or arrange for the supply of, up-to-date meteorological information to the unit as necessary for the conduct of its functions.
- 258.
See Standard 11.1.1.
- 259.
Chicago Convention, supra note 3, Article 9a).
- 260.
Id. Article 9b).
- 261.
NATSPG Derogation to Volcanic Ash Contingency Plans, EUR/NAT VATF/1 – WP/03, 11/05/2010, at 2.
- 262.
Ibid.
- 263.
Chicago Convention, supra note 3, Article 9a).
- 264.
Id. Article 9b).
- 265.
Doc 9691 AN/954, Second Edition 2007.
- 266.
Article 28 a) provides that Each Contracting State undertakes, as far as it may find practicable, to provide in its territory inter alia, airports, radio services, meteorological services and other air navigation facilities.
- 267.
Standard 2.1.2.
- 268.
http://www.icao.int/icao/en/nr/1963/pio196317_e.pdf. The network consisted of nne floating ocean stations manned through an agreement coordinated by ICAO and participated in by 19 stations whose aircraft flew across the North Atlantic Ocean.
- 269.
The task force will comprise representatives from Argentina, Australia, Canada, France, Japan, New Zealand, the U.K. and the U.S., where the world’s nine Volcanic Ash Advisory Centers are located, as well as Brazil, for its role in commercial aircraft production, and Spain, which currently holds the European Union presidency.
- 270.
- 271.
See de Witte (1998), at pp. 277–304.
- 272.
Klabbers (2002), at p. 60.
- 273.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, 1996, p. 64.
- 274.
Id. p. 79.
- 275.
Chicago Convention, supra, note 3, Article 44 a).
- 276.
Although volcanic eruptions are classified in numerous ways according to the individual context in which it is referred to, the word commonly used in aviation parlance is “explosivity” which provides an evaluation of the volume of volcanic ash released and the likely height of the column. See Manual on Volcanic Ash, Radioactive Material and Toxic Chemical Clouds, ICAO Doc 9691, AN/954 Second Edition, 2007 at I-1-1.
- 277.
All civilian air traffic was grounded across the United Kingdom on 15 April 2010. See Volcanic ash cloud grounds flights over UK, The Air Letter, No. 16,967, Thursday, 15 April 2010 at 2. The problem was unprecedented as, unlike in earlier volcanic eruptions elsewhere, this eruption affected airspace over some European States which is usually congested. In Britain alone, there are approximately 5,000 daily inbound and outbound flights, with 1,300 flights and 180,000 passengers going through London Heathrow. See Airlines set to lose more than 100 million Pounds in ash chaos, The Air Letter, No. 16, 968, Friday, 16 April 2010 at 1.
- 278.
Airlines argue case, Airspace opens, The Air Letter, No. 16,970, Tuesday 20 April 2010 at 1.
- 279.
- 280.
- 281.
The phenomenon is scientifically known as a corona or point discharge. It occurs on objects, especially pointed ones, when the electrical field potential strength reaches about one thousand volts per centimetre.
- 282.
British Airways Flight 9, sometimes referred to as the Speedbird 9 or Jakarta incident, was a scheduled British Airways flight from London Heathrow to Auckland, with stops in Bombay, Madras, Kuala Lumpur, Perth, and Melbourne. On 24 June 1982, the route was flown by the City of Edinburgh, a 747-236B. The aircraft flew into a cloud of volcanic ash thrown up by the eruption of Mount Galunggung (circa 180 kilometres (110 mi) south-east of Jakarta, Indonesia), resulting in the failure of all four engines. The reason for the failure was not immediately apparent to the crew or ground control. The aircraft was diverted to Jakarta in the hope that enough engines could be restarted to allow it to land there. The aircraft was able to glide far enough to exit the ash cloud, and all engines were restarted (although one failed again soon after), allowing the aircraft to land safely.
- 283.
A radome is a structural, weatherproof enclosure that protects a microwave or radar antenna.
- 284.
Supra, note 1.
- 285.
Id. Article 9b).
- 286.
Annex 3, Meteorological Service for International Air Navigation Sixteenth Edition, July 2007. The object of the meteorological service outlined in Annex 3 is to contribute to the safety, efficiency and regularity of air navigation. This is achieved by providing necessary meteorological information to operators, flight crew members, air traffic services units, search and rescue units, airport management and others concerned with aviation. Close liaison is essential between those supplying meteorological information and those using it.
- 287.
Annex 3, id. at Standard 3.5. During the past few years a number of incidents have occurred due to aircraft encounters with volcanic ash clouds following volcanic eruptions. In order to provide for the observation and reporting of volcanic ash clouds and the issuance of warnings to pilots and airlines, ICAO, with the assistance of other international organizations, has established an international airways volcano watch (IAVW). The cornerstones of the IAVW are nine volcanic ash advisory centres which issue advisory information on volcanic ash globally, both to aviation users and meteorological offices concerned.
- 288.
Id. Standard 3.6.
- 289.
Id Standard 4.6.5.
- 290.
Id. Recommended Practice 4.8. The report should be made in the form of a volcanic activity report comprising the following information in the order indicated: (a) message type, Volcanic Activity Report; (b) station identifier, location indicator or name of station; (c) date/time of message; (d) location of volcano and name if known; and (e) concise description of event including, as appropriate, level of intensity of volcanic activity, occurrence of an eruption and its date and time, and the existence of a volcanic ash cloud in the area together with direction of ash cloud movement and height.
- 291.
Id. Standard 5.5.
- 292.
Id. Standard 8.4. Furthermore, the meteorological authority is required to designate a meteorological office to be associated with each air traffic services unit. The associated meteorological office shall, after coordination with the air traffic services unit, supply, or arrange for the supply of, up-to-date meteorological information to the unit as necessary for the conduct of its functions.
- 293.
See Standard 10.1.1.
- 294.
For a description of IATA see supra note 85. The mission of IATA is to promote safe, reliable and secure air services for the benefit of the peoples of the world; provide means of collaboration among airlines engaged directly or indirectly in air transport; and cooperate with the International Civil Aviation Organization and other relevant organizations. See Manual on the Regulation of International Air Transport, ICAO Doc 9626, Second Edition −2004, at 3.8-1.
- 295.
- 296.
BA seeks compensation for ash chaos, The Air Letter, Monday 19 April 2010, No. 16,969 at 2. British Airways claimed that it cost $23-30 million a day as a result of the closure of airspace.
- 297.
Ibid.
- 298.
Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation or long delay of flights repealed Regulation (EEC) No 295/91 Whereas clause No. 1.
- 299.
Chicago Convention, supra, note 3, Article 28 a).
- 300.
Standard 2.1.2.
- 301.
Entick v. Carrington (1765) 19 St. Tr. 1029 at p. 1081.
- 302.
[1995] 2 A.C. 633 at 730.
- 303.
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.
- 304.
Phillips v. Britannia Hygenic Laundry Co. Ltd. [1923] 2 K. B. 832.
- 305.
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.
- 306.
Barrett v. Enfield LBC [2001] 2.A.C. 550.
- 307.
O’Rourke v. Campden LBC [1998] A.C. 158.
- 308.
Supra, note 302.
- 309.
Id 736 A – 737 A.
- 310.
[1990] 2.A.C.605.
- 311.
Id. 611.
- 312.
[1996] A.C. 923.
- 313.
Id. 949–950.
- 314.
This policy was enunciated by Lord Hoffman in Stovin, supra, note 41 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.
- 315.
(1866) L.R.1. H.L.
- 316.
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.
- 317.
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).
- 318.
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.
- 319.
. 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.
- 320.
Street (1953).
- 321.
Supra, note 27.
- 322.
Id. Article 3.1.a). The Regulation also applies to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they have received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier. See Article 3 1. b).
- 323.
Id, 14th Whereas clause.
- 324.
Ibid.
- 325.
Regulation 261/2004 supra note 298, see 15th Whereas clause.
- 326.
Id. Article 2 (j).
- 327.
Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal on 28 May 1999. See ICAO Doc 9740. The European Community acceded to this Convention on 29 April 2004 and the Convention entered into force on 28 June 2004.
- 328.
Case C-344/04 [2006]ECR. This was a case where Mrs. Wallentin-Hermann booked three seats on a flight with Alitalia from Vienna to Brindisi (Italy) via Rome for herself, her husband and her daughter. The flight was scheduled to depart from Vienna on 28 June 2005 at 6.45 a.m. and to arrive at Brindisi on the same day at 10.35 a.m. After checking in, the three passengers were informed, 5 min before the scheduled departure time, that their flight had been cancelled. They were subsequently transferred to an Austrian Airlines flight to Rome, where they arrived at 9.40 a.m., that is 20 min after the time of departure of their connecting flight to Brindisi, which they therefore missed. Mrs. Wallentin-Hermann and her family arrived at Brindisi at 14.15 p.m. The cancellation of the Alitalia flight from Vienna resulted from a complex engine defect in the turbine which had been discovered the day before during a check. Alitalia had been informed of the defect during the night preceding that flight. The repair of the aircraft, which necessitated the dispatch of spare parts and engineers, was completed on 8 July 2005. Following Alitalia’s refusal to pay her compensation of EUR 250 and EUR 10 for telephone charges, Mrs. Wallentin-Hermann brought legal proceedings.
- 329.
Regulation 261/2004 supra note 298 at Article 8.
- 330.
Id. Article 9.
- 331.
Ibid.
- 332.
Arnold and de Leon (2010).
- 333.
Id. 110.
- 334.
John Balfour, The “Extraordinary Circumstances” Defence in EC Regulation 261/2004 after Wallentin-Hermann v. Alitalia, ZLW 58.Jg. 2/2009 224-231 at 224.
- 335.
Supra, note 6.
- 336.
- 337.
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.
- 338.
For more details of UAS operations and their nature visit www.uvs-info.com.
- 339.
In January 2007, the Air Navigation Commission (ANC) of the International Civil Aviation Organization (ICAO) consulted with States and appropriate international organizations on convening an Accident Investigation and Prevention Group (AIG) meeting in 2008 to discuss subjects in the field of accident investigation. One of the proposed subjects for discussion is the amendment of the definition of accident in Chapter 1 of Annex 13 to include events involving unmanned aerial vehicles (UAV). See Addressing Unmanned Aircraft System Accident Investigation and Prevention (Paper presented by the United States at the 36th ICAO Assembly) A36-WP/217 TE/70 18/09/07.
- 340.
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, April 25 2003 CRS 1.
- 341.
Ibid.
- 342.
Unmanned Aircraft System Regulation Review, September 2009, Final Report, DOT/FAA/AR-09/7, 14.
- 343.
See FAA Fact Sheet – Unmanned Aircraft Systems (UAS), December 1, 2010 at http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=6287.
- 344.
Since 1964 the US Defense Department has developed 11 different UAS, 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) UAS 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 UAS systems.
- 345.
The main concern of the International Civil Aviation Organization in its role as regulator in this context is with international civil UAS operations and those standards that affect such operations.
- 346.
An ICAO Exploratory Meeting on Unmanned Aerial Vehicles (UAS) 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 UAS 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.
- 347.
At least four States: Australia; France; South Africa; and the United States are known to have commenced a programme developing standards for UAS operations. See Alexander ter Kuille, UAV and the ATM Community: The CANSO Policy of Engagement, UAS Systems, The Global Perspective, 2006/2007 Blyenburgh & Co.: France, p. 24 at 25.
- 348.
Convention on International Civil Aviation, supra, note 3. Air traffic Services: Annex 11 to the Convention on International Civil Aviation, Thirteenth Edition, July 2001.
- 349.
Annex 15 contains Standards and Recommended Practices relating to Aeronautical Information Services.
- 350.
Supra n 3.
- 351.
Id Article 3.
- 352.
Annex 2 to the Convention on International Civil Aviation (note 15), “Safety – Safeguarding International Civil Aviation Against Acts of Unlawful Interference”, 8th edition, April 2006.
- 353.
Annex 8 to the Convention on International Civil Aviation (note 15), “Airworthiness of Aircraft”, 10th edition, April 2005.
- 354.
“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 18.
- 355.
“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 18.
- 356.
Supra note 15, part IV, article 1.1.2 (wording identical to 9th edition).
- 357.
Annex 1 to the Convention on International Civil Aviation (note 15), “Personnel Licensing”, 10th edition, July 2006.
- 358.
Supra note 206, Article 1.2.1.
- 359.
Supra note 394, Chapter 3.
- 360.
Supra, note 14, Appendix 4, article 1 c).
- 361.
Id, article 3.2.
- 362.
Id, article 3.4.
- 363.
Id, article 3.6.
- 364.
In November 2007 the Air Navigation Commission of ICAO established the unmanned Aircraft Systems Study Group comprising Australia, Austria, Brazil, China, Czech Republic, France, Germany, Italy, Netherlands, New Zealand, Russian Federation, Singapore, South Africa, Sweden, U.K., U.S., CANSO, EASA, EUROCAE, EUROCONTROL, IAOPA, ICCAIA, IFALPA, IFATCA, UVS Intl.
- 365.
Supra n. 1. 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 were: safety; security; environmental protection; efficiency; continuity; and rule of law. From 2011, ICAO’s Strategic Objectives will be based on safety; security; environmental protection and the sustainable development of air transport. However, during the 37th Session of the Assembly, the Strategic Objectives were reduced to three: safety; security; environmental protection and sustainable development of air transport.
- 366.
Unmanned Aircraft Systems (UAS) Cir 328- AN/190.
- 367.
Id. Paragraph 1.6.
- 368.
Id. Paragraph 1.7. Model aircraft, which are outside the purview of the Chicago Convention are not included in within this principle. Id. 2.4. It must be noted that a number of Civil Aviation Administrations (CAAs) have adopted the policy that UAS must meet the equivalent levels of safety as manned aircraft. UAS operations must be as safe as manned aircraft insofar as they must not present a hazard to persons or property on the ground or in the air that is any greater than that attributable to the operation of manned aircraft of equivalent class or category. In general, UAS should be operated in accordance with the rules governing the flight of manned aircraft and meet equipment requirements applicable to the class of airspace within which they intend to operate. UAS must be able to comply with ATC instructions.
- 369.
Safety is defined as: “The state in which the possibility of harm to persons or of property is reduced to, and maintained at or below, an acceptable level through a continuing process of hazard identification and safety risk management”. See Cir 328- AN/190 supra, note 33 at p. 5.
- 370.
The Global Air Traffic Management Concept, Doc 9854 referred to in Cir 328-AN/190 in 2.2. It must be noted that ICAO recognizes many categories of aircraft, including but not limited to balloons, gliders, aeroplanes and rotorcraft whether they operate from land or water.
- 371.
The term “safety management” includes two key concepts. First is the concept of a State safety programme (SSP), which is an integrated set of regulations and activities aimed at improving safety. Second is the concept of a safety management system (SMS) which is a systematic approach to managing safety, including the necessary organizational structures, accountabilities, policies and procedures.
- 372.
- 373.
The principles so applicable in the context of the Chicago Convention are: Article 12 pertaining to rules of the air; Article 15 in the context of airport and air navigation services charges; Article 29 on documents carried on board aircraft; Article 31 which stipulates that every aircraft engaged in international navigation shall be provided with a certificate of airworthiness issued or rendered valid by the State in which it is registered; Article 32 which 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 licenses issued or rendered valid by the State in which the aircraft is registered; and Article 33 which requires 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.
- 374.
Supra, note 391 paragraphs 6.48–6.51.
- 375.
RPA may have the same phases of flight – taxi, departure, en-route and arrival – as manned aircraft or they may be launched/recovered and/or conduct aerial work. The aircraft performance characteristics may be significantly different from traditional manned aircraft. Regardless, the remote pilot will operate the aircraft in accordance with the rules of the air for the State and airspace in which the RPA is operating. This will include complying with directions and instructions provided by the air traffic services (ATS) unit.
- 376.
ICAO Circular 328-AN/190, at paragraph 5.10.
- 377.
Id. Paragraph 5.14.
- 378.
Id. Paragraph 6.33.
- 379.
Id. Paragraph 6.34.
- 380.
Id. Paragraph 5.23.
- 381.
Id. Paragraph 5.27.
- 382.
Id. Paragraph 5.28.
- 383.
Id. Paragraph 5.29.
- 384.
Id. Paragraph 5.30.
- 385.
Id. Paragraph 5.32.
- 386.
Id. at paragraph 3.19.
- 387.
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.
- 388.
Kaiser (1995), 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 408, at 110.
- 389.
Ibid.
- 390.
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.
- 391.
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.
- 392.
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.
- 393.
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.
- 394.
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.
- 395.
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.
- 396.
Doc 4444, PANS-ATM.
- 397.
Assembly Resolutions in Force (as of 8 October 2004), ICAO Doc 9848, ICAO Montreal, at II-2.
- 398.
Id. II-12.
- 399.
Assembly Resolutions in Force (as of 28 September 2007), ICAO Doc 9902, Appendix O at II-17.
- 400.
The theme of the Forum was “Time to take it global: Meeting each other's needs without compromising the Mission”. The event was held as a follow up to recommendations of the Eleventh Air Navigation Conference (Doc 9828, Rec. 1/2) concerning coordination with military authorities with a view to achieving enhanced airspace organization and management and as an integral supporting mechanism of the successful series of civil/military air traffic management summits instituted by the Air Traffic Control Association (ATCA). It was also a follow up to ICAO Assembly ResolutionA36-13, Appendix O, Coordination of civil and military air traffic wherein States are asked to take appropriate action to coordinate with military authorities to implement a flexible and cooperative approach to airspace organization and management. The Forum was intended to create awareness among civil and military policy makers and regulators, civil and military air navigation service providers (ANSPs) and civil and military airspace users, on the need to improve civil/military cooperation and coordination in support of an optimum use of airspace by all users.
- 401.
The Convention entered into force on 17 September 1953. See http://www.mcgill.ca/files/iasl/geneva1948.pdf.
- 402.
Signed at Tokyo on 14 September 1963. See ICAO Doc. 8364.
- 403.
Signed at the Hague on 16 December 1970. See ICAO Doc. 8920.
- 404.
Signed at Montreal on 23 September 1971. See ICAO Doc. 8966.
- 405.
Signed at Rome on 7 October 1952. See ICAO Doc. 7364.
- 406.
Signed at Warsaw on 12 October 1929. The authentic French text of this Convention can be referred to in II Conference Internationale de Droit Prive Aerian (4-12 Octobre 1929). The English translation is as the Schedule to the United Kingdom Carriage by Air Act, 1932; 22 & 23 Geo.5, ch.36.
- 407.
Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal on 28 May 1999. ICAO Doc 9740.
- 408.
See Crawford (2002), p.77
- 409.
See Dempsey (2003), at 118–119.
- 410.
In Re. Chorzow Factory (Jurisdiction) Case, (1927) PCIJ, Ser. A, no. 9 at 21.
- 411.
ICJ Reports (1949), 4 at 23.
- 412.
Christol (1991), at 231.
- 413.
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.
- 414.
Sometimes referred to as Regional Safety Oversight Agencies (RASAs).
- 415.
Supra n. 1.
- 416.
. 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 recognized 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, International Legislation, Vol 1X, New York: 1942-1945, at 159. For a detailed discussion on the functions of the Council See Abeyratne (1992).
- 417.
C-WP/13339, 12/05/09.
- 418.
Supra, note 3.
- 419.
Id.
- 420.
An agency is a consensual relationship created by contract or law where the Principal grants authority to agents to act on behalf of or under the control of the Principal to deal with a third party.
- 421.
ICAO Doc 9734 AN/959 Part B (The Establishment and Management of a Regional Safety Oversight System).
- 422.
For a detailed discussion on safety management systems see Abeyratne (2007).
- 423.
Id. Para 2.2.4 at pp. 2–3.
- 424.
Id. Para. 2.2.5 at pp. 2–4.
- 425.
Including meteorological information, aeronautical telecommunications, search and rescue services, charts and the distribution of information.
- 426.
Id. Para. 2.4.5 at pp. 2–6.
- 427.
Id. Para 3.5 at pp. 3–5.
- 428.
The Comprehensive Regional Implementation Plan for Aviation Safety in Africa (AFI Plan) was developed by ICAO with a view to addressing the various concerns expressed by the ICAO Council on the status of safety of aircraft operating in the African and Indian Ocean Region.
- 429.
The IATA Operational Safety Audit (IOSA) programme is an internationally recognised and accepted evaluation system designed to assess the operational management and control systems of an airline. IOSA’s quality audit principles are designed to conduct audits in a standardised manner. With the implementation and international acceptance of IOSA, airlines and regulators achieve the following benefits: a reduction of costs and audit resource requirements for airlines and regulators; continuous updating of standards to reflect regulatory revisions and the evolution of best practices within the industry; a quality audit programme under the continuing stewardship of IATA; accredited audit organisations with formally trained and qualified auditors; accredited training organisations with structured auditor training courses; a structured audit methodology, including standardised checklists; elimination of audit redundancy through mutual acceptance of audit reports; and development of auditor training courses for the airline industry.
- 430.
For a discussion on the Roadmap, see Abeyratne (2009b).
- 431.
As per European Regulation 3911/11.
- 432.
EASA was created by Regulation EC No 1592/2002 by the European Parliament and the Council of the EU.
- 433.
Regulation EC No 2111/2005 requires that certificates and licences issued in the EC member States have to conform to international safety standards contained in the Chicago Convention and its Annexes.
- 434.
For a more in depth discussion on the powers of the ICAO Council in the field of Safety, See Abeyratne ( 2009c ), at 196–206.
- 435.
Regulation 2111/2005 of 14 December 2005 of the European Parliament and Council required that a list be established within the European Community of air carriers that would be subject to an operating ban within the territory of the Community. This Regulation also provided for informing passengers of the identity of the carriers concerned. On 22 March 2006, by Regulation 473/2006 the European Commission laid down rules of implementation for the Community list of carriers which would be subject to an operating ban within the territory of the Community.
- 436.
It must be noted that in March 2006, ICAO and IATA agreed to share information from their respective audit programmes.
- 437.
F.3d.1153 (D.C. Cir.1981).
- 438.
Convention on International Civil Aviation, supra, note 3.
- 439.
Management of Aviation Safety, Presented by Canada, DGCA/06-WP/15, 4/2/06, at 2.
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Abeyratne, R. (2012). Safety Issues. In: Strategic Issues in Air Transport. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-21960-3_2
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