International Aviation Law - Impact and Effectiveness of Chicago Convention - Coursework Example

Impact and Effectiveness of Chicago Convention Term Paper 3102 words School Table of Contents Table of Contents . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Overview on Chicago Convention and ICAO . . . . . . . . . . . . . . . . . . 4 Impact and Effect of Chicago Convention . . . . . . . . . . . . . . . . . . . . . 6 Chicago Convention Provisions and Regulations . . . . . . . . . . . . . . . . 6 ICAO Initiatives and Program Thrusts . . . . . . . . . . . . . . . . . . . . . . . . . 10 Conclusion and Recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Introduction The first flight occurred on December 17, 1903 when Wright brothers Orville and Wilbur Wright successfully flew their fixed-wing airplane into the air at Kitty Hawk, North Carolina. Aviation grew slowly over the next decade until the First World War when the demand for military aircraft had sudden increase. The first air routes were used to service postal services between New York City and Washington D.C. in 1918. The Air Commerce Act of 1926 was enacted to promote and develop commercial flights, as well as draw investors into the industry. The Civil Aeronautics Act enacted in June 1938 created the Civil Aeronautics Authority (with mandate over the economic and passenger matters), the Air Safety Board (has power to investigate accidents) and the Administrator of Civil Aviation (concerned with the infrastructure construction and airway system maintenance. 1 The Civil Aeronautics Authority was reorganized and renamed Civil Aeronautics Board (CAB), and absorbed the functions of the Air Safety Board which was abolished. CAB enforced a rigid system that restricts growth and mergers. Thus, the Airline Deregulation Act was enacted in 1978 that would allow “maximum reliance on competitive market forces”. 2 The Act stripped the CAB regulatory powers in 1984 but government regulation of the industry is still performed through the Federal Aviation Administration. The precursor to the Chicago Convention is the 1919 Paris Convention, otherwise known as the Convention Relating to the Regulation of Aerial Navigation. 3 This Convention, signed by the United States, Great Britain, France, Italy, Brazil, Czechoslovakia, Poland and other countries, allowed innocent passage of aircraft in other territories during peace time, required the registration of aircrafts in a state and grants aircrafts a nationality, and prohibited explosives and firearms inside the aircraft. 4 The Convention established the International Commission for Air Navigation to settle international disputes. 5 The signatories and other countries (which were not signatories) revised their local laws according to the provisions of the 1919 Convention. 6 The first to enact a law was England with the passage of the Air Navigation Act 1920 that declares “full and absolute sovereignty and rightful jurisdiction of his Majesty … over the air.” 7 The United States adopted the same notion of sovereignty to the air above its territory in the Federal Aviation Act of 1958. 8 Under the Federal Aviation Act of 1958, all rule-making power was vested upon the Federal Aviation Administration, with the CAB retaining economic regulation and accident investigative powers. 9 CAB was also given autonomy from the Commerce Department. 10 The act regulated “interstate rates, routes, or services of any air carrier” through the federal agency but many states regulated interstate air carriers through local aviation boards until the Deregulation Act of 1978. 11 It granted the FAA “exclusive control over American navigable airspace”. 12 However, states still exercise proprietary control as “airport owners or operators.” 13 Many provisions in the 1919 Paris Convention were adopted by the Chicago Convention, especially on the sovereignty of a country over its airspace. 14 Overview on Chicago Convention and ICAO The Convention on International Civil Aviation came about as a result of the International Civil Aviation Conference held in Chicago, Illinois from November 1 to December 7, 1944. 15 The conference, attended by 54 countries, was initiated by the United States with the aim of establishing “provisional world air routes and services” and an interim office that would compile and study international aviation data and make necessary recommendations. 16 Through the Conference, the participants sought the establishment of a legal structure that would guide the civil aviation worldwide. 17 The Convention was signed by 52 states on December 7, 1944. 18 From that Convention, the International Civil Aviation Organization (ICAO) was created on April 4, 1947. 19 The Chicago Convention serves as the constitution of ICAO and a multilateral agreement of the nation members and signatories in order to “to promote the orderly, safe, and efficient development of international aviation.” 20 The Convention also defines the rights and obligations of the party-members to further develop international civil aviation. 21 At present, there are 190 members of ICAO. 22 ICAO aims to foster safety and order in international aviation, and later embarked on environmental concerns. 23 But prior to ratification of the Convention by 26 states, the Provisional International Civil Aviation Organization (PICAO) was formed to perform interim functions. 24 During the pendency of the ratification, PICAO issued rules and regulations from June 6, 1945 to April 4, 1947. 25 After the ratification 26 of the Convention, ICAO formally came into existence in April of 1947. 27 A few months later or in October 1947, the organization was attached to the Economic and Social Council (ECOSOC) of the United Nations as a specialized agency. 28 ICAO executes its duties and obligations through the Assembly, Council and other subsidiary bodies. 29 The Assembly is composed of all the members with each having one vote. 30 Meeting at least once every three years, 31 the Assembly elects the Council, approves the budget and expenses, 32 reviews the program activities and policy measures, 33 and tackles all matters within the power of ICAO but not granted to the Council. 34 The Council membership, comprised of 27 member states, 35 works for a term of three years. 36 Election follows a three-stage process 37 that would ensure proper representation. 38 It is headed by a President (serving as the chief executive officer) who is elected for a term of three years. 39 The President has no vote in the Council but plays a very influential role in molding ICAO. 40 The five subsidiary organs that provide assistance to the Assembly and Council are: Air Navigation Commission, Air Transport Committee, ICAO Legal Committee, Committee on Joint Support of Air Navigation Services, and Finance Committee. The first two bodies 41 are explicitly mentioned in the Convention while the last three were created by the Assembly. 42 Impact and Effect of Chicago Convention Chicago Convention Provisions and Regulations The Convention on International Civil Aviation (Chicago Convention) (Doc 7300) was signed on December 7, 1944 (with text in three languages – English, French and Spanish). 43 It underwent some amendments on December 12, 1956. 44 This is referred to as the First Edition of the Convention. 45 At present, the Convention is already on its Ninth Edition (Doc 7300/9) which is in English, French, Spanish and Russian text, with Corrigenda dated November 26, 2007 and December 3, 2010. 46 The Second to Eight Editions were made from 1959 to 2000. 47 The Chicago Convention is a powerful instrument with regard to the regulation of international flights among the signatory states. While it provides for the rights the members have, it also provides a mode for resolution of disputes. Without the Convention and the international body that it created, the International Civil Aviation Organization, resolution of disputes may pose difficulty with each country implementing its own flight regulations. The uniformity of flight and safety regulations facilitates easier resolution of conflicts. With all the provisions and regulations issued under the Chicago Convention, they can only have usefulness when implemented. Thus, the role of ICAO cannot be ignored in making the provisions and regulations of the Convention effective. Moreover, ICAO has continually issued and revised the provisions and regulations in order to address the changing international environment. At the time that there was an increase in flight piracy and crimes, ICAO initiated moves to ensure safety of the plane and the passengers. Thus, the members met in February 1989 to discuss the formulation of methods that can be used to detect newer types of plastic explosives which the detection equipment at that time cannot identify. 48 The Convention also provides, under Article 5, that a civilian aircraft registered with the member nation can “fly over or to land for non-traffic purposes” in the territorial jurisdiction of a member nation without requesting for prior authority provided that the aircraft flies with no scheduled international service. 49 Aircrafts flying with scheduled international service are not granted the same rights. 50 Such disparity resulted because the members were not able to reach a general formula that can be acceptable for everyone. 51 A compromise agreement formulated to cover commercial flights and rights for scheduled international air services were contained in other documents, the International Air Services Transit Agreement and the International Air Transport Agreement. 52 Technical Legislations that embody the standards and recommended practices are issued as Annexes. 53 There are other technical regulations which are deemed not proper to be included in the Annexes (considered as inferior) due to their susceptibility to amendments but likewise have international applicability – they are the Procedures for Air Navigation Services (PANS) and the Regional Supplementary Procedures (SUPPS). 54 The PANS are operating procedures that should be enforced internationally but have not “attained a sufficient degree of maturity for adaptation as International Standards and Recommended Practices.” 55 Moreover, since PANS might be changed as the need arises, they are not appropriate for inclusion in the permanent instrument such as the Chicago Convention. 56 The enforceable PANS at present are: a) Aircraft Operations, b) Rules of the Air and Air Traffic Services, c) Meteorology and d) ICAO Abbreviations and Codes. 57 The SUPPS were created specifically as procedural standards at the regional level since the PANS cannot address such concerns and which were drafted for international application. 58 SUPPS supplement the procedures laid down by PANS. 59 The PANS and SUPPS were not mentioned in the Convention but were developed by the PICAO Air Navigation Committee as it saw their necessity but cannot be attached to the Convention as Annexes. 60 ICAO adopted the PANS and SUPPS when it was formally organized later. 61 The power to promulgate them is implied from ICAOs general power to issue SARPS (Standards and Recommended Practices) and authority of the Council to perform all types of research pertaining to air navigation with worldwide relevance, disseminate the results thereof, and promote exchange of information among member states. 62 The Chicago Convention is only enforceable during peacetime but not when there are military hostilities. Article 89 specifically states that the Convention does not affect the “freedom of action” of the member states, whether involved in the war or as a neutral state, during war, or even when a “state declares a state of national emergency” provided the Council is duly notified. 63 Article 3(a) also stated that the Convention does not apply to military and state aircrafts. ICAO is also not authorized to issue rules, regulations and procedures that would govern military aircrafts. 64 Corollary to that provision, the states that do not take into account the Convention provisions during war or national emergency cannot avail of the rights and remedies provided in the treaty. 65 Article 89 66 67 was taken en toto from the 1919 Paris Convention. 68 ICAO Initiatives and Program Thrusts ICAO also has established links with regional organizations (e.g. African Union, European Union) and regional aviation bodies (e.g. Arab Civil Aviation Commission, African Civil Aviation Commission, European Civil Aviation Conference, Latin American Civil Aviation Commission). 69 During the 37th Session of the Assembly of the International Civil Aviation Organization on October 8, 2010, ICAO concluded with the aforementioned regional bodies the Memoranda of Cooperation to foster accident reduction among aircrafts, security improvement at the airport and during flights, and continued development of the industry. 70 On the environmental and climate change issues, ICAO tackled carbon dioxide emission concerns two months ahead of the United Nations Framework Convention on Climate Change (UNFCCC) 16th Conference. 71 During the 2007 ICAO Assembly in 2007, the body was proud to announce that the parties agreed to attain a two percent fuel efficiency every year until the year 2050, utilization of alternative aviation fuels, and establishment of a standard for carbon dioxide on airplane engines by 2013. 72 ICAO is also promoting the formulation of the structure of market-based measures (MBMs) that would guide the creation of the design as well as implementation of MBMs internationally. 73 74 In order to achieve the overall objectives of the organization, ICAO required the member states to submit their specific action plans on how to attain the goals set by the body. 75 Also concurred in during the Assembly 76 are the following: formulation of measures on transfer of technology to developing countries, providing assistance to members for them to comply with their own targeted goals, and exclusion of states with very minimal emissions (since they have a low flight traffic) from MBMs. 77 Recognizing that accident occurrences and injuries happen mostly during take-off and landing of aircrafts, ICAO pushes for an inter-disciplinary strategy to curb runway danger. 78 79 Corollary to this, various players in the industry (e.g. airlines, airports and operators, air navigation service providers, regulatory agencies) hosted the Global Runway Safety Symposium in Montréal in May 2012, with ensuing regional forum workshops to “identify and further resolve runway safety issues.” 80 The Assembly strongly supported “sharing of critical safety information among governments and industry stakeholders” and transparency so that analysis of incidents and prediction of safety risks can be implemented, thereby reducing international accidents. 81 A Memorandum of Understanding was signed by ICAO with the US Department of Transportation, the EU, and the International Air Transport Association for the establishment of the Global Safety Information Exchange. 82 ICAO is responsible for data collection and analysis, as well as information dissemination. 83 The October 2010 Assembly also upheld the consensus reached during the ICAO diplomatic conference in Beijing 84 in September 2010 through a Declaration that affirms the enhancement of “screening technologies to detect prohibited articles, strengthening international standards, improving security information-sharing and providing capacity-building assistance to States in need.” 85 The latest ICAO strategy focuses on preventing an attack through identification of new kinds of attack so that such can be suppressed before occurrence, and enhancement of security check measures. 86 Conclusion and Recommendation The Chicago Convention remains an effective instrument up to the present. And the ICAO, the resulting organization from that Convention is a fully functional unit that oversees international air travel and safety. ICAO is working steadfastly in the promotion of the provisions set out in the Chicago Convention. The international aviation arena is dynamic and newer rules and regulations must be formulated and implemented so that safety in travel will be upheld and that changes in conditions can be adequately met. The increasing volume of passengers and traffic of aircrafts, the emergence of huge airplanes, or the continued flight of older airplanes are some changes and concerns that must be addressed. At present, there are 190 member states of ICAO 87 and the United Nations has 192 member states as of June 2006. 88 It can only be surmised that the states which are not members of ICAO have no need for membership at the moment, they do not qualify for membership, or they do not want to subscribe to the provisions of the Chicago Convention. However, the Chicago Convention was established and the ICAO formed for the benefit of the member states and international aviation in general. Therefore, all nations should become members of ICAO and adopt into their local laws the Chicago Convention whether their airports cater to international travelers or not. Being part of the international community, such countries must adopt the provisions of the Convention although they are not directly concerned with international aviation in the meantime. The Chicago Convention was created to govern international civil aviation during peacetime. But some commentators point out that it applies to both wartime and peacetime. Horace B. Robertson mentioned in his 1997 article that despite an armed conflict, trade and commercial flights might continue between a belligerent state and a neutral one. 89 Moreover, the conflict might be confined only within a limited territory, he added. 90 Robertson said that a conflict in the application of laws during peace and wartime is inevitable. 91 However, the Convention, has been cited a number of times in cases involving an international conflict (e.g. firing at civilian aircrafts allegedly trespassing airspace of another state as in the case of Korean Airlines by Soviet Union in 1983 and Libyan Arab Airlines by Israel in February 1973; shooting an scheduled civil aircraft by a warship as in the case of Iran Airbus A300 by U.S.S. Vincennes in July 1988 during the Iran-Iraq War. 92 Thus, it has to be left to ICAO the resolution of these types of incidents when the provisions of the Convention are invoked during an international conflict or war. Along with technological and environmental changes, the Convention has to be regularly revised to address the changing aviation scenario. From the time of its first signing (considered as the first edition), the Convention underwent several editions that culminated to the latest ninth edition. This is inevitable and should be done in order for the Convention to remain a valid and effective aviation instrument. In the same manner, ICAO has to consistently devise, issue and implement new rules, regulations and procedures to address or counter new issues that might imperil international travel. For instance, with the emergence of new types of plastic explosives, ICAO has to devise measures that would facilitate their identification, as well as implementation of new security screening methods to hinder such types of explosives to pass unnoticed. The relevance of ICAO is also reflected in its initiatives that address climate change issues. It does this by setting a standard for carbon dioxide emission for aircrafts that should be attained at a specified date. ICAO also pursues the policy of using alternative fuels in lieu of the traditional fossil fuels. In fact, the contribution of ICAO to the development of civil aviation is described as “spectacular” while the standards promulgated as “impressive.” 93 Although the system implemented by ICAO has served the needs of the member states during the last five decades, it poses as a hindrance to the recent trend on liberalization. 94 The organization is confined to the provisions laid down in the bilateral and multilateral agreements as well as “national ownership and control that one associates with state-run airlines.” 95 ICAO is able to identify deficiencies in safety measures in a number of states through its audit, but it is “helpless” to address them properly. Instead, it has to implement “drastic measures.” 96 The EU also criticized ICAO for not reaching a consensus (considered as inaction by EU) on climate change issues that can result to referring back the matter to UNFCCC (which granted to ICAO the mandate to resolve such concerns). 97 The conditions at the time that the Convention was ratified were different from the present. 98 It can be said that the framers of the Convention might not have foreseen the changing conditions that the world is facing now. In fact, its primary focus at its inception is to uphold the sovereignty of states over their airspace. With such changes, ICAO must also consider the economic aspect of international traffic. While ICAOS procedures and rules implemented before focus more on the technical aspect of aviation, it is now considering a multidisciplinary approach in addressing concerns with various stakeholders enjoined to participate. Bibliography A critical perspective on ICAO. Contribution of the European Commission to the Airneth Seminar on “The future of ICAO” . The Hague, 24 October 2007, viewed on 17 February 2011, . Buergenthal, T ‘Law-making in the International Civil Aviation Organization’. Syracuse University Press, 1969. Burkhardt, R ‘CAB: The Civil Aeronautics Board’. Dulles International Airport. Green Hills Publishing, Virginia, 1974. Chicago Convention on International Civil Aviation: Chicago 1944. viewed on 28 January 2011, . Convention on International Civil Aviation. Doc 7300, viewed on 21 February 2011, . Duhaime, L ‘Convention on International Civil Aviation, the Chicago Convention 1944’. Duhaime.org. 28 September 2009. viewed on 25 January 2011 . Gestri, M ‘The Chicago Convention and civilian aircraft in time of war’, in The law of air warfare: Contemporary issues, N Ronzitti & G Venturini (eds), Eleven International Publishing, Netherlands, 2006, Google Books, viewed on 23 January 2011, . Hardaway, RM ‘Airport Regulation, Law, and Public Policy: The management and growth of infrastructure’. Quorum Books. New York. Library of Congress, 1991. ‘International Civil Aviation Conference Chicago, Illinois, 1 November to 7 December 1944’. International Civil Aviation Organization Chicago Conference, 2006, viewed on 28 January 2011, . International Civil Aviation Organization. ‘ICAO member states agree to historic agreement on aviation and climate change’. ICAO News Release. 8 October 2010, viewed on 28 January 2011, . United Nations Member States. United Nations. Press Release ORG/1469. 3 July 2006, viewed on 21 February 2011, . Read More