International Air Law

8/8/2019 International Air Law

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AIR LAW

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HISTORY

In 1880, the Institut de Droit International , a private association of

eminent jurists from many countries, included aviation on the

agenda of its convention held in Oxford, England.

The first successful flight of a powered controlled and sustained

flying machine by Orville and Wilbur Wright on 17 December 1903

was the beginning of the evolution of flight and civil aviation.

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HISTORY

the first important conference on an international air

law code was convened in Paris in 1910.

This conference was attended by 18 European States

and a number of basic principles governing aviation

were laid down.

T

he first world war made a tremendous change intechnical advancements.

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HISTORY

Paris Peace Conference of 1919 - Aviation was

an important subject and it was entrusted to a

special Aeronautical Commission, which hat itsorigin in the Inter-Allied Aviation Committee

created in 1917.

in 1919, two British airmen, Alcock and Brown,

made the first West-East crossing of the NorthAtlantic from Newfoundland to Ireland and the

"R-34", a British dirigible made a round trip flight

from Scotland to New York and back.

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HISTORY

Paris Peace Conference and was ultimately ratified by 38 States. ThisConvention consisted of 43 articles that dealt with all technical,operational and organizational aspects of civil aviation and also foresawthe creation of an International Commission for Air Navigation (ICAN)

to monitor developments in civil aviation and to propose measures toStates to keep abreast of developments.

In 1919, six European airlines founded in The Hague, Netherlands, theInternational Air Traffic Association (IATA) to help airlines standardizetheir paperwork and passenger tickets and also help airlines compare

technical procedures. The modern IATA (International Air Transport Association), founded in

1945 in Havana, Cuba, is the successor to the International Air TrafficAssociation.

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1944 CHICAGO CONVENTION

Preamble: development of international civil aviation can greatly

help to create and preserve friendship and understanding among

the nations and peoples of the world.

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THEORIES

Airspace above territories and territorial waters.

Right of innocent passage over the territory forforeign civil aircraft.

Airspace above high seas is free and open to all.

State sovereignty into upwards

State practice an defence point of view

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RIGHT OVER AIR SPACE

1919 Paris Convention for the Regulation of Aerial Navigation.

Recognised the sovereignty over land and territorial sea.

Nicaragua case - the principle of respect for territorial sovereigntyis also directly infringed by the unauthorized over flight of a statesterritory by aircraft belonging to or under the control of thegovernment of another state. ICJ Reports 1986.

1944 Chicago Conference Chicago Convention on International

Civil Aviation.

No right of scheduled international passage over state airspaceswithout prior consent.

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EARLY DEVELOPMENTS

Nationality of the flight were it is registered.

Chicago International Air Services Transit Agreement, 1944

Picking up passengers, mail and cargo

US withdraw from it in 1946

UK US Bermuda Agreement of 1946

The formation of ICAO UN specialised agency for co-operation

between states upon technical and administrative co-operation.

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ICAO

Objective is to develop the principles and techniques of international airnavigation and to foster the planning and development of international airtransport.

Chicago Conference which formed the ICAO reaffirmed the 1919convention with regard to sovereignty of the state over its airspace andneed for permission to operate scheduled international flights.

ICAO 190 contracting parties

UK denounced the Bermuda Agreement in 1976.

1977 a new Agreement Bermuda II was signed with USA.

ICAO IATA International Air Transport Association.

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ICAO

Planning and development of international air navigation.

International standards and recommended practices.

Only concerned with civil aircraft. State, military, customs and

police aircrafts are excluded.

Encourage the safe and orderly growth of international civil

aviation throughout the world.

Encourage the development of airways, airports, air navigation

facilities for international civil aviation.

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ICAO

Promote safety of flight in international air navigation and

Promote the development of all aspects of international civilaeronautics.

A.68 Report to ICAO about the designation of all air routes and

airports in order to streamline flow of air traffic.

A transit agreement was entered, Air Services Transit Agreement,1945. - 129 parties.

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AIR FREEDOMS

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AIR FREEDOMS

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1. The freedom to overfly a foreign country (A) from a home

country en-route to another (B) without landing. Also called the

transit freedom.

2. The freedom to stop in a foreign country for non traffic purposes

(technical/refueling purpose only).

A flight from a home country can land in another country (A) for

purposes other than carrying passengers, such as refueling,

maintenance or emergencies.

The final destination is country B.



NEGOTIATED FREEDOMS

Third Freedom. The freedom to carry traffic from a home country to

another country (A) for purpose of commercial services.

Fourth Freedom. The freedom to pick up traffic from another

country (A) to a home country for purpose of commercial services.

Third and Fourth Freedoms are the basis for direct commercial

services, providing the rights to load and unload passengers, mail

and freight in another country.

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AIR FREEDOMS

Fifth Freedom. The freedom to carry traffic between two foreign countrieson a flight that either originated in or is destined for the carriers homecountry.

It enables airlines to carry passengers from a home country to anotherintermediate country (A),

and then fly on to third country (B) with the right to pick passengers in theintermediate country.

Also referred to as "beyond right".

This freedom is divided into two categories: Intermediate Fifth FreedomType is the right to carry from the third country to second country. BeyondFifth Freedom Type is the right to carries from second country to the thirdcountry.

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FREEDOMS

Sixth Freedom. The "unofficial" freedom to carry traffic between

two foreign countries via the carriers home country by combining

third and fourth freedoms.

Not formally part of the original 1944 convention, it refers to the

right to carry passengers between two countries (A and B) through

an airport in the home country.

With the hubbing function of most air transport networks, this

freedom has become more common, notably in Europe (London,

Amsterdam).

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FREEDOMS

Seventh Freedom. The freedom to base aircraft in a foreign country for

use on international services, establishing a de facto foreign hub.

Covers the right to operate a passenger services between two countries

(A and B) outside the home country.

Eighth Freedom. The freedom to carry traffic between two domestic

points in a foreign country on a flight that either originated in or is

destined for the carriers home country.

Also referred to as "cabotage" privileges. It involves the right to move

passengers on a route from a home country to a destination country (A)

that uses more than one stop along which passengers may be loaded and

unloaded.

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FREEDOMS

Ninth Freedom. The freedom to carry traffic between two

domestic points in a foreign country.

Also referred to as "full cabotage" or "open-skies" privileges.

It involves the right of a home country to move passengers within

another country (A).

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THE WARSAW CONVENTION,

1929

Warsaw Convention for the Unification of Certain Rules Relating toInternational Carriage by Air.

Fixed upper limit for liability

Responsibility

Insurance

Modified by Amendment in 1955 and later on by Agreement in Montrealin 1975.

Raised the liability as regards airlines flying in or to the US.

The Montreal Convention, signed in 1999, will replace the WarsawConvention system, once Montreal has been ratified by all states.

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WARSAW

mandates carriers to issue passenger tickets;

requires carriers to issue baggage checks for checked luggage;

creates a limitation period of 2 years within which a claim must be

brought (Article 29); and

limits a carrier's liability to at most:

250,000 Francs or 16,600 Special Drawing Rights (SDR) for personal injury;

17 SDR per kilogram for checked luggage and cargo,

On April 1, 2007, the exchange rate was 1.00 SDR = 1.135 EUR or 1.00 SDR

= 1.51 USD.

5,000 Francs or 332 SDR for the hand luggage of a traveller.

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WARSAW

A.3 Ticket places of departure and destination

The carrier shall deliver to the passenger a baggage identification tag for

each piece of checked baggage.

The passenger shall be given written notice to the effect that where this

Convention is applicable it governs and may limit the liability of carriers

in respect of death or injury and for destruction or loss of, or damage to,

baggage, and for delay.

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BAGGAGE

deliver to the consignor a cargo receipt permitting identification of

the consignment and access to the information contained in the

record preserved by such other means.

A. 4(2) - Baggage check shall constitute prima facie evidence of the

registration of baggage.

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LIABILITY OF CARRIER

A.17 - The carrier is liable for damage sustained in case of death or bodily injury

of a passenger upon condition only that the accident which caused the death

or injury took place on board the aircraft or in the course of any of the

operations of embarking or disembarking.

The carrier liable for damage sustained in case of destruction or loss of, or of

damage to, checked baggage upon condition only that the event which caused

the destruction, loss or damage took place on board the aircraft or during any

period within which the checked baggage was in the charge of the carrier.

If the carrier admits the loss of the checked baggage, or if the checked baggagehas not arrived at the expiration of twenty-one days after the date on which it

ought to have arrived, the passenger is entitled to enforce against the carrier

the rights which flow from the contract of carriage.

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COMPENSATION

A.21 - For damages arising under paragraph 1 of Article 17 not

exceeding 100,000 Special Drawing Rights for each passenger, the

carrier shall not be able to exclude or limit its liability.

Not liable if:

(a) such damage was not due to the negligence or other wrongful act

or omission of the carrier or its servants or agents; or

(b) such damage was solely due to the negligence or other wrongful

act or omission of a third party.

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BAGGAGE AND CARGO

In the case of damage caused by delay as specified in Article 19 inthe carriage of persons, the liability of the carrier for each passengeris limited to 4,150 Special Drawing Rights.

If he declared the validity more than 1000 SDR at the time of checkin the carrier will be liable to pay a sum not exceeding the declaredsum.

In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 Special

Drawing Rights per kilogram, unless the consignor has made, at thetime when the package was handed over to the carrier, a specialdeclaration of interest in delivery at destination and has paid asupplementary sum if the case so requires.

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CONTRACTUAL PROVISIONS

Any provision tending to relieve the carrier of liability or to fix a

lower limit than that which is laid down in this Convention shall be

null and void , but the nullity of any such provision does not involvethe nullity of the whole contract, which shall remain subject to the

provisions of this Convention.

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JURISDICTION

The Convention's provision on jurisdiction, Article 33, reflects the U.S.

success in achieving a key U.S. objective with regard to the Convention--the

creation of a ``fifth jurisdiction'' to supplement the four bases of jurisdictionprovided under the Warsaw Convention. Article 33(1), like the Warsaw

Convention, allows a suit to be brought against a carrier in the country:

(1) of its incorporation,

(2) of its principal place of business;

(3) where the ticket was purchased, and

(4) of destination of the passenger.

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SAFETY CONVENTION

Montreal Convention for the Suppression of Unlawful Acts against

the Safety of Civil Aviation, 1971.

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DOWNING OF AIRLINES

1955 - Shot down of Israel Airline in 1955 by Bulgarian warplanes.

ICJ held lack of jurisdiction.

1973 Israel shot down Libyan airliner intrude into Israel occupied

Sinai.

But an ICAO investigation concluded that such action constitute a

serious danger against the safety of international civil aviation andcriticized for flagrant violation of the principles of Chicago

Convention.

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SHOOTING

1983 Soviet jets shot down Korean Airlines.

In 1984 ICAO suggested amendment to Article 3 of the Conventiondealing with general safety of navigation of civil aircraft.

rules are formed in cases of interception.

Annexure II of the rules provides that intercepting aircraft should

refrain from the use of weapons in all cases of interception of civilaircraft.

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FLIGHT AT DISTRESS

A.25 of Chicago Convention necessary assistance should be given to the

aircraft at distress.

Such situations use of force will be illegal.

If an aircraft involved in an act of aggression or terrorism right of self

defence.

The force used must be proportionate.

1988 shooting of an Iranian civil airliner by US Warship Vincennes.

Case came before the ICJ in 1989 finally withdrawn and settled mutually.

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SHOT

1996 Cuban military aircraft shot down two civil aircrafts.

ICAO reiterated the principles:

1. non use of force against civil aircraft

2. lives of persons and safety of the must not be endangered.

State must prevent the use of civil aircraft inconsistent with the aims

of Convention.

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INDIA

The Indian aviation industry is one of the fastest growing aviationindustries in the world.

India has 454 airports and airstrips; of these, 16 are designated

international airports.

Private airlines account for around 75 per cent share of the domesticaviation market.

In 2007-08 India has jumped to 9th position in world's aviation

market from 12th in 2006.

Between May 2007 and May 2008, airlines have carried 25.5 milliondomestic and 22.4 million international passengers.

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HISTORY

Post war period INA, Tata Airways, Bharat Airways, Kalinga Airways

1953 nationalization

1972 creation if International Airport Authority

1986 National Airport Authority

1994 Airports Authority of India

Liberalization of the sector

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INDIAN CIVIL AVIATION

POLICY (DRAFT) 2000

Mission: To maintain a competitive civil aviation environment which

ensures safety and security in accordance with international

standards, promotes efficient, cost-effective and orderly growth of air transport and contributes to social and economic development

of the country.

Aircraft Act, 1934

Aircraft Rules, 1937

Carriage of Dangerous Goods, 2003

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