Abstract
The laws of air navigation are those that relate to the navigation of an aircraft. The area that these laws cover could range from laws, rules and regulations that enable States to determine the approach of an aircraft to their territory by establishing air defence identification zones and determining the regions that are responsible for dispensing flight information, to safety on the runways as affected by unstable approaches of aircraft as well as proper regulation of pilots.
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Notes
- 1.
Convention on International Civil Aviation, signed at Chicago in 1944. See ICAO Doc 7300 Ninth Edition: 2006. Hereinafter referred to as the Chicago Convention.
- 2.
Montevideo Convention on the Rights and Duties of States, signed at Montevideo, 26 December 1933. The Convention entered into force on 26 December 1934. See http://www.taiwandocuments.org/montevideo01.htm.
- 3.
Id. Article 1.
- 4.
2RIAA, at pp. 829, 838 (1928).
- 5.
Brownlie (1990b) at 287.
- 6.
The International Civil Aviation Organization is the United Nations specialized agency dealing with international civil aviation. ICAO was established by the Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944. Fifty two States signed the Chicago Convention on 7 December 1944. The Convention came into force on 4 April 1947, on the thirtieth day after deposit with the Government of the United States. Article 43 of the Convention states that an Organization to be named the International Civil Aviation Organization is formed by the Convention. ICAO is made up of an Assembly, which is the sovereign body of the Organization composed of the entirety of ICAO member (Contracting) States, and a Council which elects its own president. The Assembly, which meets at least once every three years, is convened by the Council. The Council is a permanent organ responsible to the Assembly, composed of 36 Contracting States. These 36 Contracting States are selected for representation in the Council in three categories: States of chief importance to air transport; States not otherwise included which make the largest contribution to the provision of facilities for international air navigation; and States not otherwise included whose designation will insure that all the major geographic areas of the world are represented on the Council. Article 47 of the Chicago Convention provides that ICAO enjoys “such legal capacity as may be necessary for the performance of its functions” and goes on to say that “full juridical personality shall be granted to the Organization wherever compatible with the constitution of the laws of the State concerned.” The Council has two main subordinate governing bodies, the Air Navigation Commission and the Air Transport Committee. The Air Navigation Commission is serviced by The Air Navigation Bureau and is responsible for the examination, coordination and planning of all of ICAO’s work in the air navigation field. This includes the development and modification of SARPS)contained in the ICAO Annexes (all except Annexes 9 and 17), subject to the final adoption by the ICAO Council. At the time of writing, ICAO had 191 member States.
- 7.
Articles 1, 5 and 6. Article 1 has already been discussed. According to Article 5 each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing. Each contracting State nevertheless reserves the right, for reasons of safety of flight, to require aircraft desiring to proceed over regions which are inaccessible or without adequate air navigation facilities to follow prescribed routes, or to obtain special permission for such flights. Article 6 states that no scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.
- 8.
Assembly Resolutions in Force (as of 8 October 2010), Doc 9958 at II-2.
- 9.
On a historical note, in October 1945, the Rules of the Air and Air Traffic Control (RAC) Division at its first session made recommendations for Standards, Practices and Procedures for Air Traffic Control. These were reviewed by the then Air Navigation Committee and approved by the Council on 25 February 1946. They were published as “Recommendations for Standards, Practices and Procedures — Air Traffic Control” in the second part of Doc 2010, published in February 1946.
- 10.
Annex 11, Standard 2.1.1.
- 11.
Id. Standard 2.5.2.2.2.
- 12.
Id. Standard 2.8.1.
- 13.
Id. Standard 2.23.1.2.
- 14.
Id. Recommendation 2.9.1.
- 15.
Id. Standard 2.9.2.1.
- 16.
Id. Standard 2.9.2.2.
- 17.
In cases where an upper flight information region is established the procedures applicable therein need not be identical with those applicable in the underlying flight information region.
- 18.
Recommendation 2.9.4.
- 19.
A similar definition is found in the United States Federal Regulations. See 14 C.F.R. S. 99.3 (2009). The United States has four ADIZs: The Contiguous US ADIZ; Alaska ADIZ; Guam ADIZ; and Hawai ADIZ. In the United States, ADIZ applies only to commercial aircraft intending to enter United States airspace. The United States does not recognize the right of a coastal nation to apply its ADIZ procedures to foreign aircraft not intending to enter national airspace nor does the United States apply its ADIZ procedures to foreign aircraft not intending to enter U.S. airspace. Accordingly, U.S. military aircraft not intending to enter national airspace should not identify themselves or otherwise comply with ADIZ procedures established by other nations, unless the United States has specifically agreed to do so. See U.S. Navy’s Commander’s Handbook on the Law of Naval Operations. Also see Williams (2007) at 95–96.
- 20.
States may delegate such responsibility to another State or States without abdicating their sovereignty. See Annex 11 to the Chicago Convention (Air Traffic Services) which provides that Flight information service is provided to aircraft operating in controlled airspace and to others known to the air traffic services units. The information includes significant meteorological (SIGMET) information, changes in the serviceability of navigation aids and in the condition of aerodromes and associated facilities and any other information likely to affect safety. Flights operated by Instrument Flight Rules (IFR) receive, in addition, information on weather conditions at departure, destination and alternate aerodromes, collision hazards to aircraft operating outside of control areas and control zones and, for flight over water, available information on surface vessels. Flights operated by Visual Flight Rules (VFR) receive information on weather conditions which would make visual flight impractical. Annex 11 also contains specifications for operational flight information service (OFIS) broadcasts, including automated terminal information service (ATIS) broadcasts. See Franklin (2007) 425 at 426.
- 21.
See Petras (2010), pp. 1–78 at 62–63.
- 22.
See McDougal et al. (1963), at 306–311 where the author suggests that if for security reasons States have certain claims on those who enter their sovereign territories, such claims may not be inconsistent with the principles of international law.
- 23.
See Dutton (2009) 691–709 at 691.
- 24.
Ibid.
- 25.
Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea with Indexes and Annex, Final Act of the Third United Nations Conference on the Law of the Sea, United Nations: 1983.
- 26.
See Posner and Sykes (2010) at 577.
- 27.
In the United States context, see Restatement 3d, Foreign Relations Law, American Law Institute, at S. 521. The Restatement is persuasive law in the United States. See Cardozo (1924) at 9.
- 28.
Dutton, supra, note 23.
- 29.
- 30.
Brownlie (1990a) at 78.
- 31.
Shaw (2003) at 120.
- 32.
Supra, note 1.
- 33.
Id. Article 2.
- 34.
The precautionary principle (a moral and political concept) states that if an action or policy might cause severe or irreversible harm to the public, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action. The precautionary principle is most often applied in the context of the impact of human actions on the environment and human health where the consequences of actions may be unpredictable.
- 35.
For a discussion of the emergence of the precautionary principle see Scott Lafranchi, Surveying the Precautionary Principle’ Ongoing Global Development 32 B.C. ENVTL. AFF. L. REV. 2005 at 678.
- 36.
Marr (2003) at 3.
- 37.
Id. At 6.
- 38.
Preemption – A Sword that Cuts Both Ways, Norton: New York, 2006, at 11.
- 39.
Preemption is when an act, which is potentially harmful to a State and is imminent, is effectively precluded by military or other action.
- 40.
Prevention is when an act, which is potentially harmful to a State and is inevitable, is effectively precluded by military or other action.
- 41.
Schmitt (1988).
- 42.
Liversidge v. Anderson [1942] A.C. 206 at 244.
- 43.
The Bush Doctrine is attributed to the modern notion of preventive war and the justification that the United States had the right to secure itself against countries that harbor or give aid to terrorist groups, which was used to justify the 2001 invasion of Afghanistan.
- 44.
Article 2.4 provides: “All members of the United Nations must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.” See Charter of the United Nations and Statute of the International Court of Justice, United Nations: New York.
- 45.
Hamdi v. Rumsfeld, 542 US 5047 (2004).
- 46.
Rehnquist (1998) at 5.
- 47.
R. v. Halliday, [1917] A.C. at 292.
- 48.
Supra, note 1.
- 49.
Preamble to the Chicago Convention, Id.
- 50.
See Repertory Guide to the Convention on International Civil Aviation, Second Edition, 1977, Preamble – 1. This subject was also addressed at a later session of the Assembly when the Assembly, at its 18th Session adopted Resolution A18-4 (Measures to be taken in pursuance of Resolutions 2555 and 2704 of the United Nations General Assembly in Relation to South Africa).
References
Ian Brownlie, Principles of Public International Law, Fourth Edition, Oxford University Press: 1990, at 78
Ian Brownlie, Principles of Public International Law, Fourth Edition, Clarendon Press, Oxford: 1990 at 287
Benjamin N. Cardozo, The Growth of the Law, New Haven: Yale University Press: 1924 at 9
Peter A. Dutton, Caelium Liberum: Air Defence Identification Zones Outside Sovereign Airspace, American Journal of International Law, Vol. 103, No. 4 October 2009 691–709 at 691
Mark Franklin, Sovereignty and Functional Airspace Blocks, Air and Space Law, Vol. 32, 2007 425 at 426
Oppenheim’s International Law, (R.Y. Jennings and A.D. Watts ed.), 9th edition, Vol. 1 London: 1992, at 52
Simon Marr, The Precautionary Principle in the Law of the Sea, Modern Decision Making in International Law, 2003 at 3
Myers S. McDougal et. al. Law and Public Order in Outer Space, New Haven and London: Yale University Press (1963), at 306–311
Christopher M. Petras, The Law of Air Mobility- The International Legal Principles Behind the U.S. Mobility Air Forces’ Mission, The Air Force Law Review, Volume 66, 2010, pp. 1–78 at 62–63
Eric A. Posner and Alan O. Sykes, Economic Foundation of the Law of the Sea, American Journal of International Law, Vol. 104 October 2010, No. 4, 569 at 577
William H. Rehnquist, All the Laws But One--Civil Liberties in Wartime. New York: Alfred A. Knopf, 1998, at 5
Carl Schmitt, Political Theology: Four Chapters on the Theory of Sovereignty, George Schwab trans. MIT Press: 1988, 5
Malcolm N. Shaw, International Law, Fifth Edition, Cambridge University Press: 2003, at 120
J.W. Verzijl, International Law in Historical Perspective, Vol. 1, Leiden: 1968 at 90
Andrew Williams, The Interception of Civil Aircraft Over the High Seas in the Global War on Terror, The Air Force Law Review, Vol. 73, 2007 73, at 95–96
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Abeyratne, R. (2012). Territorial Sovereignty and Flight Information. In: Air Navigation Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-25835-0_1
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