Civil Aviation Laws in Pakistan: A Critical Analysis
SupervisorProf. Dr. Muhammad Munir
Professor of Law
Submitted by
Saadia Zahoor
09-SF/PHDLAW/S11
Department of Law
Faculty of Shariah & Law
INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD
Civil Aviation Laws in Pakistan: A Critical Analysis
Saadia Zahoor
09-SF/PHDLAW/S11
Submitted in partial fulfillment of the requirements for the Ph.D. degree in Law with specialization in International Aviation Law at the faculty of Shariah & Law,
International Islamic University, Islamabad
Supervisor: Prof. Dr. Muhammad Munir 2016
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IN THE NAME OF ALLAH, THE MOST MERCIFUL AND BENEFICIENT
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(Acceptance by the Viva Voce Committee)
Title of Thesis _________________________________________
Name of Student: Saadia Zahoor
Registration No. 09-SF/PHDLAW/S11
Accepted by the Faculty of Shariah & Law-Department of Law
INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD,
in partial fulfillment of the requirements for the
Doctor of Philosophy Degree in Law.
Viva Voce Committee
____________________
Dean
____________________
Chairman/Director/Head
____________________
External Examiner
____________________
Supervisor
____________________
Member
Date:
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ABSTRACT
Aviation is an important and vital means of transportation and trade. It is a growing
industry and for sustainable growth it is important that air transportation be safe, and
environmental-friendly. If the safety of aviation is compromised it will hamper the development
of the industry and will have adverse effects on the lives of millions of people who are directly or
indirectly employed by the industry. Moreover, transportation of passengers, cargo, and baggage
will also be affected. Therefore, to ensure development, it is important to critically evaluate
current aviation laws to find whether these are in accordance with contemporary realities and
global needs.
Similarly, the aviation industry in Pakistan is at the novice stage, but it is developing. It is
thus imperative to ensure that aviation laws in Pakistan are in accordance with international
aviation law, regulations, and policy for its safety and sustainable growth. In recent times,
aviation in Pakistan faced many setbacks in the form of major aviation accidents that resulted in
the loss of precious lives. Therefore, the main aim of this study is to review the domestic aviation
laws in light of international obligations, and to identify loop-holes in the legal regime that pose
threat to the safety of people and aircrafts.
The existing aviation law, policy guidelines, and rules in Pakistan are analyzed in
accordance with parameters laid down by the international aviation legal regime. To this end, not
only different laws are examined, but also the investigation report of aviation accidents, and
court cases are analyzed. Similarly, the structure and organization of the Civil Aviation
Authority is studied to determine its independence that is necessary to ensure the full
implementation of law. The main reason for carrying out this study is the lack of literature on
Pakistani aviation laws.
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Environmental issues related to aviation are at the center of vigorous debates at many
international aviation bodies. Different solutions are proposed that have been argued over the
years to control and offset the emissions from aviation. In this study, the impact of aviation on
environment and proposed solutions are analyzed to identify the best possible solutions that can
ensure environmental protection and sustainable growth of the industry without causing extra
burden on passengers or airlines.
This study concludes that international aviation legal frameworks give enough liberty to
states to make their own rules within the broader limits fixed by international law. However,
there are some minimum safeguards and standards that are fixed by international law that are to
be incorporated in domestic law and certain level of uniformity is necessary for the efficiency
and coordination of aviation. Pakistan has incorporated most laws and rules in accordance with
international obligations. However, the Civil Aviation Authority of Pakistan is not an
independent body as recorded by international law, and extensive powers are entrusted to the
Director General and the Federal Government that can hinder issues related to investigation and
safety of aviation.
Similarly, the international community is struggling to find the best solution to offset
emission from aviation. Pakistan lags in this regard and has not enacted any law to curb such
emissions nor to offset them. Furthermore, the amount of damages and compensation in case of
injury, or death in aviation accidents is much lower than international standards. There are many
shortcomings in the investigation process that hinder in achieving the very essence of aviation
investigation.
This study recommends that all lacunas be removed and laws be strictly implemented to
ensure safety and sustainability of aviation. Aviation laws in Pakistan should be in accordance
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with international legal framework to ensure uniformity and thereby to guarantee the safety of
aviation sector.
ACKNOWLEDGEMENTS
(To be added later in final copy)
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TABLE OF CONTENTS
ABSTRACT..................................................................................................................................................v
ACKNOWLEDGEMENTS........................................................................................................................v
TABLE OF CONTENTS.........................................................................................................................viii
LIST OF CASES.........................................................................................................................................xi
LIST OF ABBREVIATIONS..................................................................................................................xiii
INTRODUCTION........................................................................................................................................1
International Aviation Law.....................................................................................................................1
Background of the Problem....................................................................................................................4
Major Issues That Are Discussed in This Thesis..................................................................................7
Significance of Research........................................................................................................................13
Objective of the Study...........................................................................................................................15
Literature Review..................................................................................................................................18
Framing of Issues...................................................................................................................................23
Research Frame-Work..........................................................................................................................24
Outline of the Thesis..............................................................................................................................25
CHAPTER ONE........................................................................................................................................28
HISTORICAL BACKGROUND..............................................................................................................28
1.1. Types of Aviation Law..................................................................................................................28
1.2. Principle of Airspace Sovereignty.................................................................................................30
1.2.1. Air Defense Identification Zone................................................................................................33
1.3. Vertical Limit of Air Space............................................................................................................35
1.4. Legal Regime Governing International Aviation.........................................................................36
1.5. Historical Development of Aviation Law......................................................................................38
CHAPTER TWO.......................................................................................................................................47
THE INTERNATIONAL CIVIL AVIATION ORGANIZATION AND CIVIL AVIATION AUTHORITY OF PAKISTAN.................................................................................................................47
PART-I........................................................................................................................................................48
2.1. Establishment of the International Civil Aviation Organization...............................................48
2.1.1. Composition and Functions of The ICAO.................................................................................51
2.1.2. Aims and Objectives of ICAO...................................................................................................52
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2.1.3. Jurisdiction of the International Civil Aviation Organization............................................54
PART-II......................................................................................................................................................62
2.2. Establishment and Structure of the Civil Aviation Authority in Pakistan...............................62
2.2.2. A. Safety Investigation Board...........................................................................................65
2.2.2. B. Functions and Powers of the Civil Aviation Authority of Pakistan...............................68
CHAPTER THREE...................................................................................................................................73
IMPACT OF AVIATION EMISSION ON ENVIRONMENT.............................................................73
3.1. Introduction.....................................................................................................................................73
3. 2. Impact of Civil Aviation on Environment...................................................................................74
3.2.1. Calculating Carbon Footprint of Aircrafts...........................................................................75
3.2.2. Goals to Cut Carbon Emission from International Civil Aviation.....................................76
3.3. Treaty Regime to Control Carbon Emission from Aviation.......................................................77
3.3.1. Resolution A38-18....................................................................................................................78
3.3.2. United Nations Framework Conference on Climate Change (2015)...................................79
3.3.3. 10th Meeting of the Committee on Aviation Environmental Protection (CAEP/10)..........80
3.4. Controlling Carbon Emission........................................................................................................81
3.4.1. European Union Emissions Trading Scheme........................................................................82
3. 4.2. Market Based Mechanism......................................................................................................85
4.4.3. Offsetting Program..................................................................................................................87
3.4.4. ICAO’s Strategy to Adopt the Best Market Based Mechanism..........................................89
3.5. Alternate Solutions to Combat Carbon Emission from Aviation.............................................101
3.5.1. Alternate Aviation Fuels........................................................................................................101
3.6. Noise Pollution: Contribution of Aviation Sector......................................................................105
3.6.1. Development of International Aviation Law to Counter Noise Pollution........................106
3.6.2. Balanced Approach................................................................................................................108
3.6.3. Technological Development to Counter Noise Pollution....................................................109
3.7. Laws in Pakistan to Curb Pollution Emitted by Aviation Sector.............................................110
CHAPTER FOUR....................................................................................................................................118
LEGAL REGIME FOR ENSURING SAFETY OF AIRCRAFT AND PASSENGERS..................118
4. 1. Introduction..................................................................................................................................118
4.1.1. The Warsaw Convention 1929, 1955, 1961..........................................................................119
A. Amendments of 1955 and 1961 to the Warsaw Convention...............................................120
B. Important Provisions of the Warsaw Convention................................................................120
4.1.2. Montreal Convention.............................................................................................................124
4.1.3. Aircraft Registration.............................................................................................................126
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A. Aircraft Registration in Pakistan.........................................................................................127
4.1.4. International Register............................................................................................................129
4.1.5. International Registry in Accordance with Cape Town Convention................................130
4.2. Rules of Airworthiness.................................................................................................................132
4.2.1. Rules of Airworthiness in Pakistan......................................................................................134
4.3. Compensation of Passengers........................................................................................................136
4.3.1. Liability Laws in Pakistan....................................................................................................140
4.4. Offences Committed on Aircraft by Individuals.......................................................................143
4.4.1. Tokyo Convention..................................................................................................................145
4.4.2. Post 9/11: Amendments in International Civil Aviation Laws..........................................148
4.4.3. Airline Liability and Rights with regard to Disruptive behavior of Passenger...............149
A. State Jurisdiction under the Tokyo Convention..................................................................152
B. Cost of Unruly Behavior.........................................................................................................155
4.4.4. Liability in Pakistani Law for Unruly and Disruptive Behavior...................................155
4.5. International Law Related to Hijacking of Aircrafts............................................................158
4.5.1. Laws in Pakistan Regarding Hijacking of Aircraft........................................................162
CHAPTER FIVE.....................................................................................................................................166
JURISDICTION TO CONDUCT AIRCRAFT ACCIDENT OR SERIOUS INCIDENT INVESTIGATION: COMPARISON OF INTERNATIONAL AVIATION LAW AND CIVIL AVIATION LAW OF PAKISTAN........................................................................................................166
5.1. Introduction...................................................................................................................................166
A. Investigation.............................................................................................................................167
B. Difference between ‘Accident’ and ‘Incident’.......................................................................169
5.2. Authority to Conduct Air Crash Investigation Under International Aviation Law..............172
5.2.1. Notification of Aircraft Accident or Serious Incident........................................................173
5.2.2. International Standards and Recommended Practices for Aircraft Accident and Incident Investigation.....................................................................................................................................174
5.2. 3. Objectives of Aircraft Crash or Accident Investigation................................................175
5.3. Investigation Report.....................................................................................................................176
i. Preliminary Report..................................................................................................................176
ii. Draft Final Report...................................................................................................................177
iii. Final Report..........................................................................................................................177
iv. Format of the Final Report.................................................................................................178
5.4. Jurisdiction of the State to Investigate Air Crash.....................................................................179
5.5. Investigation in Pakistani Laws: Formation of Investigation Board or Special Inquiry Commission..........................................................................................................................................180
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5.5.1. Composition of the Board and Objective of Investigation.................................................181
5.5.2. Rules of Investigation and Powers of Board.......................................................................182
5.6. Independence of Investigating Board.........................................................................................185
5.7. Review of Air Crash Investigation Reports in Pakistan...........................................................188
5.7.1. Air Blue Air Crash (2010).....................................................................................................190
5.7.2. Investigation Report of Bhoja Accident (2012)...................................................................196
5.8. Investigation Procedure of Armed Forces’ Aircrafts Accidents..............................................199
CONCLUSIONS AND RECOMMNEDATIONS.................................................................................202
SUGGESTIONS FOR FILLING IN THE GAPS IN LEGISLATION IN PAKISTAN AND IMPROVING INTERNATIONAL AVIATION LAW........................................................................202
BIBLIOGRAPHY....................................................................................................................................217
Annex I......................................................................................................................................................230
Annex II................................................................................................................................................231
Annex III...............................................................................................................................................232
LIST OF CASES
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[1972] ICJ Rep 46 Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan).
[1998] ICJ Rep 115 Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United States of America).
Benjamins v. British European Airways (Docket No. 77-7201, decided March 6, 1977)
Bernstein of Leigh (Baron) v. Skyviews & General Ltd [1978] 1 QB 479.
Case C-366/10 Air Transport Association of America, American Airlines Inc.,
Continental Airlines Inc., United Airlines Inc. v. Secretary of State for Energy and
Climate Change (2011) OJ (2010) C260/9.
Chisholm v. Georgia 2 U.S. 419 (1793)
Civil Aviation Authority Islamabad and others v. Union of Civil Aviation Employees and
another (1997 PLC 653)
Cuba v. United States (1996) ICAO C-DEC 154/16
Daoud Shami v. Messrs. Emirates Airlines and another (PLD 2011 SC 282)
India v. Pakistan (Report of the Council 1952) ICAO Doc. 7376
Komlos v. Compagnie Nationale Air France1 (209 F.2d 436 (2d Cir. 1953).
Lacroix v. The Queen (1954) 4 DLR 470
Mian Muhammad Nawaz Sharif v. The State (P L D 2009 SC 814)
Mrs. Anisa Rehman v. PIAC. (1994 SCMR 2232).
Muhammad Iqbal Chaudhary, etc. v. Civil Aviation Authority etc. (1995 PLC (CS) 421).
Noel v. Linea Aeropostal Venezolana (No. 368, Docket 24491).
Sidhu v. British Airways Plc Abnett ((1997) 1 All ER 193)
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United Kingdom v. Spain (1967) ICAO Doc. 8724 (1968).
United States v. Fifteen European States (2003) ICAO C-DEC 169/11, C-DCE 166/12,
and ICAO C-DEC 161/16.
LIST OF ABBREVIATIONS
AAF-------------------------------------------------------------------------------Alternative Aviation Fuels
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AAIB-------------------------------------------------------------------Air Accidents Investigation Branch
ADIZ------------------------------------------------------------------------Air Defense Identification
Zone
AIB---------------------------------------------------------------------------Accident Investigation Branch
ANS----------------------------------------------------------------------------------Air Navigation Services
Assembly-----------------------------------------------------------------------------Assembly of the ICAO
ATC----------------------------------------------------------------------------------------Air Traffic Control
BoI--------------------------------------------------------------------------------------------Board of Inquiry
CAEP--------------------------------------------------Committee on Aviation Environmental
Protection
CAR------------------------------------------------------------------------------Civil Aviation Rules, 1994
CNG----------------------------------------------------------------------------------Carbon Neutral Growth
COSIA---------------------------------------------Carbon Offsetting Scheme for International
Aviation
Council----------------------------------------------------------------------------------Council of the ICAO
CPC------------------------------------------------------------------------------Civil Procedure Code,
1908
CrPC------------------------------------------------------------------------Criminal Procedure Code, 1898
CVR----------------------------------------------------------------------------------Cockpit Voice
Recorder
DDG---------------------------------------------------------------------------------Deputy Director
General
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DG---------------------------------------------Director General of Civil Aviation Authority of
Pakistan
DoT----------------------------------------------------------------------------------Department of
Transport
EAG---------------------------------------------------------------------------Environment Advisory
Group
ENAC---------------------------------------------------------------Ente Nazionale Per L'aviazione
Civile
ETS--------------------------------------------------------------------------------European Trading System
EU---------------------------------------------------------------------------------------------European Union
FAA------------------------------------------------------------------------------Federal Aviation Authority
FDR--------------------------------------------------------------------------------------Flight Data
Recorder
FO------------------------------------------------------------------------------------------------Flight Officer
GH-----------------------------------------------------------------------------------------Green House Gases
GLADs----------------------------------------------------------------------------Global Aviation Dialogue
IATA---------------------------------------------------------------International Air Transport
Association
ICAN--------------------------------------------------------International Commission for Air
Navigation
ICAO------------------------------------------------------------International Civil Aviation
Organization
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ICJ------------------------------------------------------------------------------International Court of
Justice
IDR---------------------------------------------------------------------------------------Incident Data
Report
IPPC---------------------------------------------------------Intergovernmental Panel on Climate Change
IRCA----------------------------------------------------------------International Register of Civil
Aircraft
LoN-----------------------------------------------------------------------------------------League of Nations
MBM---------------------------------------------------------------------------------Market Based
Measures
MRV-------------------------------------------------------------- Monitoring, Reporting and
Verification
NFZ--------------------------------------------------------------------------------------------No Flying Zone
NTSB----------------------------------------------------------------National Transportation Safety Board
PCAA---------------------------------------------------------------------Pakistan Civil Aviation
Authority
PHC-------------------------------------------------------------------------------------Peshawar High Court
PICAO--------------------------------------------Provisional International Civil Aviation
Organization
PPC--------------------------------------------------------------------------------Pakistan Penal Code,
1860
SARPs-------------------------------------------------------------Standards and Recommended Practices
SDR----------------------------------------------------------------------------------Special Drawing Rights
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SIB------------------------------------------------------------------------------Security Investigation
Board
TAWS----------------------------------------------------------------------------Terrain Awareness Warning
System
UK--------------------------------------------------------------------------------------------United Kingdom
UN------------------------------------------------------------------------------United Nations Organization
UNFCCC----------------------------------United Nations Framework Convention on Climate
Change
UNGA--------------------------------------------------------------------United Nation General Assembly
UNSC-----------------------------------------------------------------------United Nation Security
Council
US-----------------------------------------------------------------------------------United States of
America
USOAP --------------------------------------------------------Universal Safety Oversight Audit
Program
WW I------------------------------------------------------------------------------------------World War One
WW II-----------------------------------------------------------------------------------------World War
Two
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FORWARDING SHEET
The thesis entitled Civil Aviation Laws in Pakistan: A Critical Analysis
Submitted by Saadia Zahoor in partial fulfillment of Ph.D. degree in Law with
specialization in ______________________ has been completed under my
guidance and supervision. I am satisfied with the quality of student’s research work
and allow him to submit this thesis for further process of as per IIU rules &
regulations.
Date: _______________________ Signature: _________________
Name: _____________________
xviii
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INTRODUCTION
Movement of people and goods from one point to another point is vital for the survival
and wellbeing of human race. Means of transportation are not only important for carrying people
but also critical for trading commodities. In this regards, the invention of wheel was a major
event in the history of mankind that changed the way humans lived, thereby connecting them
instead of existing in isolated societies. However, air transport not only introduced the fastest
way of transportation, but also changed our world view.
Even though aviation is a relatively new field, today it is an essential component of life,
in that it is the fastest way of transportation, along with increasingly becoming an integral part of
global economic activity. In 2015 alone, international aviation industry grew by 6.4% in terms of
passengers, by carrying 3.57 billion passengers.1 Approximately 35% of world trade is conducted
through air transport that is worth over $6.8 trillion and weighs approximately 51.3 million
metric tons.2 Moreover, this industry supports 62.7 million jobs around the world that include 8.9
million direct jobs, resulting in $2.7 trillion of global economic activity.3 It is forecasted that by
2030 aviation industry will support 82 million jobs and will be responsible for $6.9 trillion
worth of economic activity.4 While, by 2034, it is expected that global population of aviation
passengers will increase to 7 billion.5
Similarly, in Pakistan, the aviation industry is also developing and has the potential to
grow even further. This is evidenced by the fact that there are 26 domestic and international
1 Aviation Benefit Beyond Boarders Global Summary, Air Transport Action Group, May, 2016. http://aviationbenefits.org/media/149649/ABBB2016_WEB.pdf (accessed Jun. 10, 2016).
2 Ibid. 3 Ibid.4 International Air Transport Association, Annual Review 2012, 68th Annual General Meeting Beijing, June,
2012.5 International Air Transport Association, IATA Air Passenger Forecast Shows Dip in Long-Term Demand,
Nov. 26, 2015.
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airports in Pakistan,6 with an activity of 6,723,749 domestic passengers in 2013 (7% increase in 4
years or 1.8% average growth per annum); while the traffic in international passengers increased
to 9,566,210 (20% in 4 years or about 5% average growth per annum). In total, both domestic
and international traffic grew by about 15% in four years giving an average growth of 3.6% per
year.7
In the light of above mentioned figures, it is easy to conclude that the aviation industry is
growing both domestically and internationally. Therefore, it is important to have effective legal
regime to ensure the safety of aircrafts, passengers, baggage, luggage, and cargo. It is also
necessary to have uniform laws, rules, and procedures globally to ensure substantial growth,
safety, and smooth operation of the aviation industry.
On the one hand, globally aviation sector is facing different issues especially with regard
to safety and carbon, raising a dire need to have effective legal regime to ensure sustainable
growth. On other hand, aviation in Pakistan is at its initial stages, for which it is important to
have effective laws and their strict implementation in conformity with international law and to its
ensure safety This justifies the need to review the legal regime governing civil aviation8 in
Pakistan and to compare and analyze it in light of International Aviation Law.
6 “Airport Locations,’ Pakistan Civil Aviation Authority, http://www.caapakistan.com.pk/map/map.aspx (accessed Jan. 10, 2016).
7 Aviation Division of Government of Pakistan, National Aviation Policy: A catalyst for nation’s socio-economic well-being, 2015, 11.
8 The primary focus of this work will be Civil Aviation Laws, but will try to explain the difference between Civil and military aviation law in my dissertation.
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International Aviation Law
International Aviation Law can be defined as the body of legal principles and rules that is
included within the scope of both international law and Aviation law.9 It governs and regulates
three different yet inter-related categories of law:
1. Related to air space: those that include flight-space, relationship of airspace to land
and water areas on the surface of the earth, and the extent and character of the rights
of individuals and states to use or control such space for flight or other purposes;
2. Related to flight: "flight" includes any movement, through space, of man-operated or
man-controlled devices or instrumentalities. It includes issues related to flight,
instrumentalities with which flight is affected, including their nationality, ownership,
use or control, and surface facilities used in connection with flight, such as airports
and airways.
3. Related to relationships: of every kind effecting or between individuals,
communities or states arising from the existence or use of the area of flight (flight-
space), or the instrumentalities or facilities used in connection therewith or to make
flight effective.10
9 John Cobb Cooper, "Roman Law and the Maxim Cujus Est Solum in International Air,"McGILL Law Journal, no. 1(1952): 23.
10 In this definition (first stated in the John Cobb Cooper, "Air Law - A Field for International Thinking," Transport and Communications Review, no. 4 (1951), 1-7), the term flight includes any movement through space of man-operated or man-controlled devices or instrumentalities. Flight-space means so much of universal space above and beyond the surface of the earth as is now used or may hereafter be used as the area in which flight takes place. (See: John Cobb Cooper, "Roman Law and the Maxim Cujus Est Solum in International Air," McGILL Law Journal, no. 1(1952): 23.).
3
In simple words, ‘Aviation Law’11 is the branch of law that concerns aircrafts, their
passengers and cargo flights, their transit above states, airspace, other governed territory, air
travel, and associated legal and business concerns. It is also defined as the “body of rules
governing the use of airspace and its benefits of aviation, the public and the nations of the
world.”12
Here, it is important to discuss the meaning of term “aircrafts”. The Chicago Convention
defines the term in Annex 7 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." The definition
excludes space crafts as they are launched by rockets.
Aviation Law is divided into two parts; Public Aviation Law and Private Aviation Law.
The former category encompasses operation of aircrafts, licenses for personnel or planning
permits for airports. The latter governs relationship and contracts between natural or legal person
regarding transport of persons and goods.13
Aviation, itself, can be further divided into two types: military aviation and civil aviation.
Military aviation is the use of military aircrafts and other flying machines for the purposes of
conducting or enabling aerial warfare, or for aiding armed forces. However, military aviation is
not limited to fighter aircrafts, but also includes training, transport, liaison, patrolling, search and
rescue, and cargo aircraft. On the other hand, civil aviation includes all non-military aviation,
both private and commercial.
11 “Aviation Law”, “Air Law” or “droit aerien” is a term coined in its French form by French Professor Ernest Nys of the University of Brussels in 1902 in his report to Institut de Droit International. From the beginning the use of term was confined to legal regulation of social relation generated by the aeronautical use of air space. (Michael Milde, International Air Law and ICAO (Netherlands: Eleven International Publishing, 2008), 1-2.
12 I.H.P. Diederiks-Verschoor and M. A. Butler, An Introduction to Air Law (Alphen aan den Rijn: Kluwer Law International, 2006), 1.
13 See for details, 1.1. Types of Aviation Law for further discussion.
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Background of the Problem
The dream of flying was always embedded in the human mind since time immemorial
becoming a reality when Montgolfier Brothers took the first balloon flight14 in June, 1783.
However, the modern era of the aviation started on December 17, 1903 when Wright Brothers15
launched the first powered flight in a heavier-than-air machine.16 Within five years Leon
Delagrange became the first passenger, who rode with French pilot Henri Farman from a
meadow outside of Paris in 1908.17 The world changed forever on January 1, 1914, when the first
scheduled air service began in Florida. It was the beginning of modern aviation, and the world
was forever changed.
The history of laws regarding aviation is as old as aviation itself. The first aviation law
was promulgated in Paris, 1748, prohibiting balloon flights without police permission, a year
after Montgolfier Brothers took their first flight. Later, with arrival of heavier-than-air machine
many local laws marked the beginning of new era in academics as jurists anticipated problems
with emergence of aviation, thus proposing solutions in advance through academic writings.18
14 There are counter claims that claim that Montgolfier Brothers were not the first ones to create hot balloons, for example, it is claimed that Brazilian born Bartolomeu de Gusmao (1685-1724) was the first one to invent the hot balloon and he conducted several experiment in the presence of King John V of Portugal and his invention was recognized by a royal decree in April 1907. However, these claims are not widely accepted and Montgolfier brothers’ claim is recognized widely. See for details of Gusmao’s claim: “Bartolomeu de Gusmao (1685-1724).” Ciencia Em Portugal (Personagens E Episodios), http://cvc.instituto-camoes.pt/ciencia/p2.html (accessed Dec. 15, 2015).
15 Orville Wright and Wilbur Wright found the magic formula-on December 17, 1903, they succeeded in flying the first free, controlled flight of a power-driven, heavier than air plane. Their plane flew for fifty-nine seconds, at eight hundred and fifty-two feet. See for details: “A Brief History of the FAA,” Federal Aviation Administration, https://www.faa.gov/about/history/brief_history/ (accessed Dec. 15, 2015).
16 “A Brief History of the FAA,” Federal Aviation Administration, https://www.faa.gov/about/history/brief_history/ (accessed Dec. 15, 2015).
17 Sand, Peter H., Jorge de Sousa Freitas, and Geoffrey N. Pratt, “An historical survey of international air law before the second world war.” McGILL Law Journal no.7 (1) (1961): 28.
18 Peter H. Sand along with his co-authors recorded details of early scholarship on the topic in chronicle order. See: Sand, Peter H., Jorge de Sousa Freitas, and Geoffrey N. Pratt, “An historical survey of international air law before the second world war.” McGILL Law Journal no.7 (1) (1961): 24-48.
5
International character of aviation was evident leading to the early realization that most
legal problems related to aviation would also be international in nature and that it was only
possible to counter them with cooperation of global community. Interestingly, the first global
discussion on aviation law was held a year before the first flight of Wright Brothers. This
discussion was conducted under the auspices of the Institut de Droit International.19 Initially,
aviation was viewed in the context of warfare, and attempts were made to control or limit the use
of air balloons and aircrafts during hostilities. Hence, the first International Peace Conference
resulted in the declaration that prohibited the use of balloons for launching projectiles and
explosives.20
However, attention soon shifted to peaceful yet more persistent issues that needed
international cooperation and to shape international aviation law. Provoked by the increasing
events of foreign ballooners landing into France without permission of authorities, the French
Government called a nineteen-state conference on the issue of regulation of air navigation.21 The
conference was held in 1909, at Paris, and resulted in the draft convention that agreed on issues
including aircraft nationality, registration, rules of the road and photographic and radio
equipment in aircraft.22 It was, a diplomatic failure in that there were no concrete conclusions,
but it did lay down the foundation for both the Paris Convention, 1919 and the Chicago
Convention, 1944.
19 The first international discussion on aviation law was held in Brussels in 1902. The discussion was organized by Institut de Droit International among its member hold the first discussion on aviation law in 1902 among its members. It is during this session that famous Jurists Fauchille and Nys introduced theory of ‘freedom of the air’. (See: Sand, Peter H., Jorge de Sousa Freitas, and Geoffrey N. Pratt, “An historical survey of international air law before the second world war.” McGILL Law Journal no.7 (1) (1961): 28.)
20 “To prohibit the launching of projectiles and explosives from balloons or by other similar new methods.” ‘Prohibiting Launching of Projectiles and Explosives from Balloons’. (Hague IV, 1). Declaration of July 29, 1899.
21 Sand, Peter H., Jorge de Sousa Freitas, and Geoffrey N. Pratt, “An historical survey of international air law before the second world war.” McGILL Law Journal no.7 (1) (1961): 30.
22 Ibid.
6
These developments led to the conclusion of many international conventions that will be
discussed in the course of the thesis. These treaties attempted to ensure consistency,
predictability, and uniformity in international aviation. Efforts were made to conclude
international treaties, and to that end international standards were formulated to make the aircraft
journey safe. Rules were formulated to ensure safety of passengers, their luggage, baggage,
cargo, and aircraft itself. As law is a reflection of ground the realities of an ever-changing world
it can never be static and undergoes evolution in accordance with global events; thus,, the
aviation law underwent major changes with the emergence of Palestinian Fedayeen, Cuban
revolutionaries, and events related to the cold war that posed threat to the safety of air carriers.23
However, international scenario changes more frequently than laws, for example, fresh concerns
surfaced after 9/11 attacks on twin towers, the mysterious disappearance of MH370, and the
shooting down of MH17. Similarly, carbon emission from aircrafts is also an important issue.
The need to critically evaluate and ultimately evolve aviation laws is important for safety and
stability of aviation industry, and to address global concerns.
Moreover, the need to analyze these laws increased manifold in cases of developing
countries, for example, Pakistan faced major aviation accidents and incidents in the last decade.24
On each occasion, loops-holes were identified in domestic laws and practices. However, there is
no single comprehensive critique of the existing regime. Therefore, it is crucial to undertake an
evaluation of the civil aviation laws of Pakistan, and to identify gaps and lacunas with
suggestions to plug them.
23 See for details, 4.4. Offences Committed on Aircraft by Individuals.24 See for details, 5.7. Review of Air Crash Investigation Reports in Pakistan.
7
Major Issues Discussed in this Thesis
For the purpose of this thesis only six major areas related to aviation are discussed:
First, Jurisdiction of International Civil Aviation Authority and Civil Aviation Authority of
Pakistan; secondly, independent investigation of major aviation incidents and accidents; thirdly,
limits of liability of air carriers; fourthly, adverse environmental impact of aviation; fifthly, the
airworthiness of aircrafts; and finally, the lacunas in aviation law of Pakistan.
Before divulging into details of these issues, it is important to mention that there are
some essential primary issues that will be dealt in the second chapter of the thesis. These issues
include the question of airspace sovereignty, Air Defense Identification Zone (hereinafter
referred to as ‘ADIZ’), vertical limit of airspace, and lastly, different types of aviation laws.
Provided hereinunder is a brief description of the issues that are dealt with in the forthcoming
chapters:
i. Jurisdiction of International Civil Aviation Authority and Civil Aviation Authority
of Pakistan
In the early days of aviation, the world community realized that international
collaboration is vital for the smooth working and sustainable growth of aviation. The idea of an
international institution to control and overlook evolved and International Civil Aviation
Organization (hereinafter referred as ‘ICAO’) was established in accordance with the Chicago
Convention.25 The ICAO is a UN specialized agency that was established to achieve minimum
standards for operations of aviation to achieve predictability and harmony. However, the
important issue of jurisdiction of the ICAO is important to clarify and understand other issues
25 Article 43 of the Chicago Convention, 1944.
8
related to aviation today. Therefore, in this thesis historical background, power, structure, organ,
and jurisdiction of the ICAO is discussed.
Similarly, the Civil Aviation Authority of Pakistan (hereinafter referred to as ‘PCAA’)
was established to overlook aviation activities in Pakistan. It is important to have an independent
authority to ensure the smooth working of the institution and to ensure the safety of aviation. In
this thesis the structure and power of the PCAA will be critically evaluated in the light of
international law and standards.
ii. Independent Investigation of Major Aviation Incidents and Accidents
The only objective of the investigation of an air accident or incident is the prevention of
such events in the future and not to apportion blame or liability. In Pakistan the Safety
Investigation Board (hereinafter referred as ‘SIB’) of the PCAA is responsible for the
investigation of all civil aircraft accidents and incidents.26 According to Annex 1327 of ‘Aircraft
Accident and Incident Investigation’ to the Chicago Convention on International Civil Aviation
(hereinafter referred as ‘Annex 13’), "the accident investigation authority shall have
independence in the conduct of the investigation and have unrestricted authority over its conduct,
consistent with the provisions of this Annex."28 It is for this reason that it is important to analyze
whether SIB is an independent investigating body or not.29 Furthermore, it is important to
analyze the importance of having an independent investigating authority and the historical
development and context of international legislation30 for this purpose. It is required to determine
26 Rule 282, Civil Aviation Rules, 1994.27 Annex 13 states that investigation can take place when: (a). A person is seriously injured; (b). the aircraft
sustains damage or structural failure; (c). the aircraft is missing or completely inaccessible.28 Article 5.4, Annex 13 of Chicago Convention, 1944.29 According to Rule 273 of the CAR, 1994 for conducting an inquiry of any accident or incident occurring in
Pakistan, the DG CAA shall appoint one or more investigators, and in case of any "serious injury or death" the investigator will be appointed with "approval of the Federal Government".
30 According to the Article 5.4, Annex 13 to Chicago Convention, the investigation shall include:
9
independence of the SIB in light of the facts that PCAA and the Federal Government have
powers with regard to appointments and initiation of investigation. The comparison with other
aviation investigating bodies is necessitated, for example, the “National Transportation Safety
Board” (hereinafter referred as ‘NTSB’) of the US, where a five-member autonomous body
nominated by the President and cleared by the US Senate, investigates all such accidents, and
with the UK’s Air Accidents Investigation Board headed by a chief inspector (a qualified
commercial pilot) of air accidents who conducts such inquires.
Owing to the numerous unfortunate incidents of air crashes in Pakistan it is thus crucial
to study these issues. Such incidents have resulted in enormous loss of life and property, in both
civilian and military terms, but their investigation reports are inadequate and in certain cases,
kept secret.31 This issue is, therefore, discussed in relation to recent air crash investigations in
Pakistan including Air Blue and Bhoja crashes.
iii. Air Carrier liability and payment of compensation
It is important to provide security to the luggage and baggage of passengers, and to cargo.
The law related to the compensation of victims and their luggage is also an important topic of
discussion, as it is in clash with International provisions. According to Rule 179 (2) (c) of Civil
Aviation Rules, 1994 (hereinafter referred as ‘CAR’) every airline seeking permission to operate
flights from or to and within Pakistan shall maintain a ‘comprehensive insurance’ policy
covering aircraft, passengers, cargo, and third party risks, and the Carriage by Air Act fixed the
minimum compensation in case of accident. The Parliament of Pakistan, on February 8, 2012
(a) the gathering, recording and analysis of all available information on that accident or incident; (b) if appropriate, the issuance of safety recommendations; (c) if possible, the determination of the causes; and (d) The completion of the final report.31 See infra, 16.
10
amended “the Carriage by Air Act, 2012” and reduced the compensation of victim by 50% to
125,000 francs (Rs. 12 Million) from 250,000 francs (Rs. 25 million). The compensation of
125,000 francs can be claimed only when the airline company has international operation and the
accident took place during a domestic flight. However, if the company has only domestic
operation then compensation of Rs. 50 million will be paid. The Act fixed the compensation of
registered luggage at 25 francs per kilogram or as declared on time of delivery. Similarly, the
losses of pecuniary nature caused by the negligence of the carrier will be assessed under the Fatal
Accident Act, 1995 and the losses of non-pecuniary nature will be evaluated by Common Law of
Torts. The limit of airline liability is worth probing and will be discussed along with the
Pakistani law’s failure to adhere to international standards. The analysis of those reasons that led
to a situation where in the history of Pakistan full compensation was never paid to victims will
also be included.
iv. Environmental Impact of Aviation
International Community regularly huddles together to deal with the issue of climate
change and formulate policy to cap carbon emissions. A recent example is the Paris Agreement
in November, 2015. However, aviation is excluded from climate policy as it is an international
industry run by consensus. Total Green House Gases (hereinafter referred as ‘GHG’) emitted32
by transport sector is 23% (almost ¼th of total world emission) and air travel contributes largest
proportion, i.e. 9% of GHG Emission in the transport sector and 2% of total world emissions of
GHG.33 Moreover, there is 3% yearly growth in global use of aviation fuel, and the EU countries 32 Greenhouse emission is defined as a gas that contributes to the greenhouse effect by absorbing infrared
radiation.33 Dudley Curtis & Bill Hemmings, eds., “A new flight plan: Getting global aviation climate measures off the
ground” Background report for the Conference held in Brussels, 7 February 2012. Transport & Environment, Environmental Defense Fund, The International Council on Clean Transportation and the Aviation Environment Federation, 5.
11
observed 4.3% growth in the industry from 1990-2003.34 The UNEP warns that unless any global
action is taken to curb aviation and shipping emission the net emission from these sectors will
reach 5.7% and 32.5% of total emission in 2020 and 2050 respectively.35 This is alarming as the
global community has undertaken to cap carbon emission and also plug the increase of global
temperature below 2°C (3.6°F) by 2100. Similarly, the EU is committed to drastically reducing
its emission of GHG by 2020. The EU included aviation and maritime carbon taxes in the
European Union Emission Trading System from January 1, 2012. The EU announces that
aviation will be part of the European Trading System (hereinafter referred as ‘ETS’) for carbon
di oxide.36 It imposed unilateral carbon tax on all flights entering and leaving its territory under
the cap-and-trade system. The move is controversial and is opposed by many non-EU members
who term it unfair and illegal.37 The EU was happy with the development they made as 99% of
https://www.edf.org/sites/default/files/A_New_Flightplan_report_Feb2012.pdf (accessed 8 June, 2014).34 Stefan Gossling, John Broderick, Paul Upham, Jean-Paul Ceron, Ghislain Dubois, Paul Peeters, and
Wolfgang Strasdas, "Voluntary Carbon Offsetting Schemes for Aviation: Efficiency, Credibility and Sustainable Tourism," Journal of Sustainable Tourism, no. 15(3) (2007): 238.
35 Dudley Curtis & Bill Hemmings, eds., “A new flight plan: Getting Global Aviation Climate Measures Off the Ground” Background report for the Conference held in Brussels, 7 February 2012. Transport & Environment, Environmental Defense Fund, The International Council on Clean Transportation and the Aviation Environment Federation, 5. https://www.edf.org/sites/default/files/A_New_Flightplan_report_Feb2012.pdf (accessed 8 June, 2014).
36 “Climate Action,” European Convention, http://ec.europa.eu/environment/climat/aviation_en.htm (accessed Jun. 10, 2012).
37 Argentina, Brazil, Canada, China, Chile, Colombia, Cuba, Egypt, Japan, Republic of Korea, Malaysia, Mexico, Nigeria, Paraguay, Peru, Philippines, Qatar, Russian Federation, Saudi Arabia, Singapore, South Africa, Thailand, Turkey, the United Arab Emirates and the United States opposed EU Emission taxes on Aviation in Conference in New Delhi on 29-30 September, 2011calling the taxes as violation of Chicago convention and discriminatory. (See: “International meeting of ICAO Council and Non-EU Member States on Inclusion of Aviation in EU-ETS,” Press Information Bureau, Government of India, http://pib.nic.in/newsite/erelease.aspx?relid=76388 (accessed July 6, 2012). A second meeting on 21-22 February 2012 at Moscow with participation from Armenia, Argentina, Republic of Belarus, Brazil, Cameroon, Chile, China, Cuba, Guatemala, India, Japan, Republic of Korea, Mexico, Nigeria, Paraguay, Russian Federation, Saudi Arabia, Seychelles, Singapore, South Africa, Thailand, Uganda and the US. The meeting was concluded with a "Joint declaration of the Moscow meeting on inclusion of international civil aviation in the EU-ETS" endorsed by 29 countries (including some who were not at the Moscow meeting) and called that EU taxes as serious market distortions and unfair competition. They declared it violation of WTO and pledged to take appropriate action. (See: “Joint declaration of the Moscow meeting on inclusion of international civil aviation in the EU-ETS,” Russian Aviation, http://www.ruaviation.com/docs/7/2012/2/22/50/?h (accessed Jul. 6, 2012).
12
all major airlines complied, only two Indian and eight Chinese airlines did not comply. 38 On
November 12, 2012 the EU unexpectedly suspended the carbon emission law for a year, in a
hope to have international regulation on emission by the ICAO.39 The ICAO reviewed the matter,
but still took no decision as consultations are underway to adopt market based mechanism that
will be applicable globally. However, the ICAO took important decisions on this issue in Fall
2016 that will be discussed later. It is therefore an important area of study to analyze the
unilateral decision of the EU, i.e., whether this was the best possible method to curb global
aviation emission. Also, the three options considered by the ICAO to curb aviation emission and
their effectiveness,40 the worthiness of opinion of non-EU states against ETS and the judgment of
European Court of Justice of December 21, 201141 on the application filed by the American
aviation industry challenging the ETS are relevant in this regard and should be critically
analyzed.
In this work, an attempt will be made to find the best method to levy charge on aviation
emission, and ensuring sustainable growth of the aviation industry. Also, laws in Pakistan with
regards to carbon emission will be reviewed. It is important to identify gap areas regarding
environmental laws and aviation in Pakistan as it is necessary for all countries to prepare their air
carriers for expected international regime for emission. Similarly, other environmental issues
related to noise pollution, alternate fuels, and aircraft structures will be discussed.38 Erin Hale and Damian Carrington, “EU hails airline emissions tax success,” Guardian.co.uk, Tuesday May
15, 2012. http://www.guardian.co.uk/environment/2012/may/15/eu-airline-emissions-tax-success (accessed Nov. 13, 2012).
39 Fiona Harvey, “EU freezes airlines carbon emissions law,” Guardian.co.uk, Monday Nov. 12, 2012, http://www.guardian.co.uk/environment/2012/nov/12/eu-airline-emissions-law (accessed Nov. 13, 2012).
40 The three options were considered by ICAO; mandatory offsetting of emissions, mandatory offsetting with some revenue-generating mechanism, and two cap and trade systems. (i) Where all aviation emissions could be traded and (ii) where only increases or decreases from an initial emissions baseline could be traded. The EU ETS works on the "cap and trade" principle, the cap means limit on the total amount of certain greenhouse gases that can be emitted by the installations in the system. Within this cap, companies receive emission allowances which they can sell to or buy from one another as needed.
41 Case C-366/10 Air Transport Association of America, American Airlines Inc., Continental Airlines Inc., United Airlines Inc. V Secretary of State for Energy and Climate Change (2011) OJ (2010) C260/9.
13
v. Air Safety Measures
The passengers’ safety and health should be of prime focus in view of their growing
concerns, for which it is necessary to develop improved aircraft designs. The Chicago
Convention calls for the fulfillment of minimum standards to ensure the safety of civil aviation.
It may be noted that these provisions are for civil aviation and aircrafts used for military,
customs and police services and persons are excluded. There is an international regulation that
specifies what sort of planes can fly. The development and maintenance of Standards,
Recommended Practices and Procedures applicable to international civil aviation activities are
mentioned in 16 Annexes. It is important to discuss this issue in light of the situation in Pakistan,
especially with regard to the issuance of certificate of Airworthiness. The airworthiness of an
aircraft ranges from the initial approval of a new aircraft design to ensuring an aircraft’s on-
going safety standards. In this regard, the EU Safety Agency is necessary to discuss as it is an
independent legal entity which looks after the air worthiness of aircrafts operating in EU member
states and to ensure air safety.
vi. Important Lacunas in Civil Aviation Laws of Pakistan
The important issues regarding the domestic aviation law of Pakistan will be discussed
with regard to matters highlighted earlier. It is imperative to study legislation related to
environment concerning aviation sector to ensure that aviation in Pakistan is in accordance with
international regime. Similarly, in the last few years aviation sector in Pakistan faced major crisis
and accidents. It is important to understand the reasons, precautions, and investigations of these
major accidents. Also, it is significant to assess whether there is comprehensive mechanism to
14
ensure full payment of compensation to victims of aviation accidents and incidents. It is
important to ensure that there are no inconsistencies in amount of compensation in domestic and
international standards. Lastly, it is necessary to analyze the rules with regards to safety,
investigation, and airworthiness of aircrafts to be consistent with international treaties.
Significance of Research
As discussed above, International Aviation Industry is growing gradually, both
internationally and in Pakistan. New Airlines are tapping new customers and new routes, and
increasing the number of passengers, and the amount of cargo, luggage, and baggage. However,
the growth of aviation is facing many challenges, and many problems are hampering the safety
and development of the sector. The problems demand urgent attention, to ensure the growth of
sector that is directly and indirectly feeding millions of people across the world.
Therefore, it is the right time to review the laws, pinpoint the legal shortcomings and
lacunas, and suggest solutions for the legislations and amendments to make laws more coherent
and effective. There is need to amend treaties and existing legal structure to ensure that aviation
is on the right path. Similarly, there is need to negotiate new treaties. 2016 was an interesting
year, as the world came together for the 39th Session of the ICAO Assembly42 to discuss the
market-based global mechanism to control carbon emissions from aviation and to achieve the
goal of neutral carbon growth. Hence, it is the right moment to discuss the issues related to
environment, and present an idea that is both sustainable and effective.
42 39th Session of the ICAO Assembly was held from 27 September - 7 October 2016 at ICAO headquarters in Montreal, Quebec, Canada. See for details: “Meetings & Events at ICAO Headquarters,” ICAO, http://www.icao.int/Meetings/Pages/cos.aspx (accessed Jan. 1, 2016).
15
As discussed earlier, aviation in Pakistan faced major setbacks in the form of successive
air crashes that resulted in the loss of thousands of lives. Since 1947, there are 1443 major air
crashes in Pakistan.44 The incidents resulted in heavy human loss, but there is no satisfactory
investigation of any crash. Therefore, it is important to review and compare not only the crash
43 It is reported that in total there are 36 aircraft accidents in Pakistan since 1947, in which 1,193 people lost their lives. There are 14 major air crashes in Pakistan and brief chronology is as follows:
i. On May 20, 1965, a Pakistan International Airlines (PIA) Boeing 707 crashes on its inaugural flight while attempting to land at Cairo airport, killing 124 people.
ii. On August 6, 1970, a PIA Fokker F27 turboprop aircraft crashes while attempting to take off from Islamabad in a thunderstorm, killing all 30 people on board.
iii. On December 8, 1972, a PIA Fokker F27 crashes in Rawalpindi, near Islamabad. All 26 people on board are killed.
iv. On November 26, 1979, another PIA Boeing 707 bringing home Pakistani Hajj pilgrims from Saudi Arabia crashes shortly after take-off from Jeddah airport, killing 156 people.
v. On October 23, 1986, a PIA Fokker F27 crashes while coming in to land in Peshawar, killing 13 of the 54 people on board.
vi. On August 17, 1988, a US-made Hercules C-130 military aircraft crashes near Bahawalpur, killing high profile military ruler General Mohammad Zia ul Haq and 30 others including Pakistani generals and the US ambassador.
vii. August 25, 1989: A PIA Fokker carrying 54 people disappears after leaving Gilgit in northern Pakistan. The wreckage is never found.
viii. On September 28, 1992, a PIA Airbus A300 crashes into a cloud-covered hillside on approach to the Nepalese capital Kathmandu after the plane descended too early, killing 167 people.
ix. On February 19, 2003, another high-profile airplane crashed. An air force Fokker F27 crashes in fog-shrouded mountains near Kohat, killing air force chief Air Chief Marshal Mushaf Ali, his wife and 15 others.
x. On February 24, 2003, a chartered Cessna 402-B carrying Afghan Mines and Industries Minister Juma Mohammad Mohammadi, four Afghan officials, a Chinese mining executive and two Pakistani crew crashes into the Arabian Sea near the southern city of Karachi.
xi. July 10, 2006: A PIA Fokker F27 bound for Lahore crashes into a field and bursts into flames shortly after takeoff from Multan, killing 41 passengers and four crew members.
xii. Three major crashes happen in 2010 including Air Blue air crash on July 28, 2010. An Air Blue Airbus 321 flying from Karachi crashes into hills outside Islamabad while preparing to land, killing all 152 people on board.
xiii. On November 5, 2010, a twin-engine plane operated by Pakistani charter JS Air carrying staff from an Italian oil company crashes shortly after take-off in Karachi, killing all 21 people on board.
xiv. November 28, 2010: At least 12 people are killed when a Russian-made Ilyushin IL-76 cargo plane operated by Georgian airline Sunway crashes in a fireball seconds after taking off from Karachi.
xv. On April 20, 2012, a Bhoja Air Airbus 737 from Karachi comes down in bad weather near Islamabad killing all 130 on board.
Important Militray aircraft crashes In Pakistan. Pakistan Air Force (PAF): In the last 30 years PAF lost 70 aircrafts and lost more than 3000 Million US Dollars due to military aircraft crashes. PAF lost nine F-16 figter, eight Mirge aircrafts, six Cheengdu F7 Skybolt combat aircraft and thirty-five C-130 Hercules aircraft. In November 2011, a JF-17 Thunder fighter jet, Cessna T-37 Tweet aircraft, crashed. (See: “Memory of Flight Crew, Cabin Crew and Passengers,” History
16
investigation mechanism but also safety mechanism regarding aircraft, passenger and cargo
liability laws.
However, there are also some important developments that present the robust face of the
industry, as in 2015, first national aviation policy was introduced. It is important to analyze the
policy in comparison with international obligations and growth of the industry. Beside other
issues, the most important fact remains that there is serious lack of legal literature on Pakistani
Aviation Laws45. There is not only a dire need of collecting and compiling all the relevant
material on Pakistani aviation, but to critically evaluate these laws and rules in the light of
international aviation law.
In addition, aviation operates on different levels and comes in contact with other laws
like, criminal law, constitution, environment law, and international law, so it is significant to
study these laws and establish their interdependence and shortcomings.
Objective of the Study
As discussed above, there is serious lack of literature related to aviation law of Pakistan.
Hence, without hesitation the primary aim of this research will be to fill this vacuum. It will be
the first serious effort to discuss in detail all major issues related to aviation in Pakistan. The
study attempts to point out legal gaps in aviation laws in Pakistan, which if filled, might provide
a comprehensive guide.
of PIA: Lost Airline, http://www.historyofpia.com/lostairliner.htm (accessed 30 August, 2014) & “Timeline: Air crashes in Pakistan,” Dawn Online, April 2012, http://dawn.com/2012/04/20/major-air-crashes-in-pakistans-history/ (accessed 30 Sep. 2014).
44 Main Dawood, “Actual Compensation never paid in Pakistan,’ The Nation April 22, 2012. http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/national/22-Apr-2012/actual-compensation-never-paid-in-pakistan-history (accessed June 10, 2012).
45 See Literature Review.
17
The second major aim of the study is to critically evaluate and compare aviation laws of
Pakistan in light of international aviation laws, and suggest how to fill the lacunas and rectify the
inconsistencies. The study attempts to point out how much law is in accordance with
international law and regulations.
Lastly, the study is an attempt to comprehensively present legal issues regarding aviation
laws and regulations in Pakistan, and to inspire and attract people towards writing on this all-
important issue.
Literature Review
Air law maybe a recent development, but its early roots are traced back to the Roman
times. The initial concept about the basic issue related to sovereignty over airspace is rooted in
the Latin Maxim ‘axim Cujus est solum, ejus est usque ad coelum’46 that recognized the owners
right over the space and the surface below the land he owns or occupies. 47 However, the belief
was challenged and debate started about the nature of rights in space, whether rights in space are
unlimited or are limited to the extent that assist in enjoying the surface property below.48 The
original Roman sources were re-examined by European scholars, and it was concluded by these
authorities that the Roman state enjoyed sovereign control over land and limited rights of
landowners over airspace were also protected.49
The idea of flying is not new, as thinkers like Archimedes (287-212 BC) and Leonardo da
Vinci (1485-1510) speculated about man flying. This idea was translated into reality in 18 th
46 ‘Whoever's is the soil, it is theirs all the way to Heaven and all the way to hell.’47 John Cobb Cooper, "Roman Law and the Maxim Cujus Est Solum in International Air," McGILL Law
Journal, no. 1(1952): 25. 48 Ibid., 26.49 Ibid., 28.
18
Century when Bartolomeo de Gusomo showcased his ‘lighter than air’ Balloon model in 1769.50
Soon experiment started with hot balloons, and Jean-Francois Pilatre de Rozier made the first
manned flight in 1783, and became victim of first aviation disaster in 1785 when his hot balloon
caught fire and crashed.51 Research was conducted to make ‘heavier than air flights’, and the
Wright Brothers were the first people to enjoy success in 1903. The First World War saw the
first use of aircrafts in war, and the US ordered the development of many aircrafts that were
delivered late and hence surplus aircrafts were available after the War. These Surplus aircrafts
were employed to start air mail services throughout America.52 In 1927, passenger service started
between Miami and Havana.53 Soon, the need was felt to provide assistance to flying services
and initiatives like installing light beacons facilitating night flying (1924). By 1926, the US
imposed regulations to support, register, and regulate the industry.
Even international borders were blurred by the air carriers, and soon the need was felt to
have international treaties to control air traffic. Many writers recorded the early legal
developments with regard to aviation in their work, for example, the prolific writer and Director
of Institute of Air and Space Law at McGill University and former Director Legal Bureau of the
ICAO, Dr. Michael Milde, wrote a very comprehensive book on the issue titled, ‘International
Air Law and ICAO’54. The book recorded the early legal development in aviation law, which he
traces back to the creation and flying of first hot air balloon. He gave an anecdote of coining of
term ‘aviation law’ and the meaning that was attributed to it. He also touches the debate that
what axiom forms the bases of aviation law but fell short as he overlooks or out of ignorance
50 Paul B. Larsen, John Gillick and Joseph Sweeney, eds., Aviation Law: Cases, Laws and Related Sources (Boston: Martinus Nijhoff Publishers, 2012).
51 Ibid.52 Ibid., 8.53 Ibid., 11.54 Michael Milde, International Air Law and ICAO (Netherlands: Eleven International Publishing, 2008).
19
didn’t mention the contemporary judicial discussion on the issue. The book carries a detailed
account of events that led to the creation of the ICAO.
A lot of writers reviewed the events that led to the early convention regarding aviation.
One such effort was made by Richard Kermit Waldo in his article ‘Sequels to the Chicago
Aviation’.55 The article was written in 1946, just two years after the conclusion of the Chicago
Convention, and it focuses on the events and progress that was made based on the Chicago
Conference. Naturally, the article does not account for the development that happened
afterwards. Nevertheless, it discusses the six documents i.e., the Convention, Interim Agreement,
Technical Annexes, Transit Agreement, Transport Agreement and the Standard Form of Route
Agreement, that were produced as the result of the Chicago Convention. The article discussed
the “two freedoms” and “five freedoms” agreements signed on December 7, 1944. As a result of
the agreement, a large portion of the world's air is now open on a multilateral basis for civil
airlines for the purpose of transit and technical stop. This led to growth in the industry and
represents a real step forward. The writer assessed that the organization of the International Air
Transport Association (IATA) and inter-Governmental body ICAO was created after the
influence of the Chicago Convention. The writer then explained the structure of these
organizations. Later, he discussed the first general meeting of International Commission for Air
Navigation (ICAN) held from August 21 to 25, 1945. Ten months after the Chicago Convention
two important developments happened, one was the release of severely criticized British white
paper, released at March 13, 1945 where they outlined the plan that aviation activities will be
carried by three companies without any competition between the three and the US decided that
they would adopt policy of “regulated competition”.
55 Richard Kermit Waldo, “Sequels to the Chicago Aviation Conference,” Law and Contemporary Problems, no.11:3, Aviation Transport (Winter - Spring, 1946), 609-628.
20
Alona E. Evans, “Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan). ICJ Reports, 1972,”56 discusses case of India v. Pakistan57 that is important with regard
to jurisdiction of ICAO. The case discusses and declared the limits of ICAO’s jurisdiction.
However, it is important to mention that the article is mostly of descriptive nature and is mere
reproduction of the Court judgments. The case is the result of the appeal against the decision of
the ICAO’s Council. India argued that flights between both countries were not governed by the
Chicago Convention but by the special regime of 1966 and hence decision by ICAO on
Pakistan’s application was beyond its jurisdiction, while Pakistan objected that appeal cannot lie
to the ICJ from the decision of ICAO’s council. The Court rejected the claims of both India and
Pakistan and declared that ICAO’s Council has jurisdiction to hear the cases between two States
and that the appeal can lie before the ICJ against such decisions.
The primary focus of Stefan Gossling and others in their article ‘Voluntary carbon
offsetting Schemes for Aviation: Efficiency, Credibility and Sustainable Tourism’58 was to study
the effect of aviation tax on European tourism industry and it later discusses and explains the
voluntary carbon offsetting market for aviation. Though, the article provides some very
important facts and figures regarding carbon emission and its impacts but it only focuses on
voluntary carbon offsetting, its methods, effects and drawbacks, but ignores the compulsory
offsetting under the Command & Control System of Government. Moreover, the paper mentions
various measures to counter carbon emission but the focus is on voluntary carbon offsetting,
which might be important but lacks any concrete effectiveness.
56 Alona E. Evans, “Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan). ICJ Reports, 1972,” The American Journal of International Law, no. 67(1) (Jan., 1973): 127-145.
57 Appeal Relating to the Jurisdiction of the ICAO Council [1972] ICJ Rep 46 Appeal Relating to the Jurisdiction of the ICAO Council (India V Pak).
58 Stefan G¨ossling, John Broderick, Paul Upham, Jean-Paul Ceron, Ghislain Dubois, Paul Peeters and Wolfgang Strasdas, "Voluntary Carbon Offsetting Schemes for Aviation: Efficiency, Credibility and Sustainable Tourism," Journal of Sustainable Tourism, no. 15(3) (2007): 223-48.
21
As mentioned earlier, there is very little literature available on the Aviation laws of
Pakistan. I came across only a couple of related work. The first is Mumtaz Ahmad’s work and
the second is a very mediocre short article by Hafeez ud Deen and Saleem Arshad.59
Mumtaz Ahmad’s thesis60 titled, ‘The Law of Civil Aviation in Pakistan: A Study in
International Air Law Dealing with the Statutes and Rules Governing Civil Aviation in
Pakistan’, McGill University, 1957 was later published in a form of a book61 by McGill
University. The thesis consists of ten chapters and covers all aspect of prevailing aviation laws in
Pakistan and developments taking place at that specific time. His work also includes the details
of the first promulgation of aviation law in 1783 and the first tort case in aviation. It is a great
source of earlier development in the aviation legislation in the sub-continent and later in Pakistan
after partition in 1947. The writer mentioned Hague, Geneva, Montreal and Warsaw
Conventions and the developments led to the conclusion of these Conventions. He, in great
detail, mentioned the department of civil aviation in Pakistan, its functions, structure and
regulations. He described some of the terms like “willful misconduct” and mentioned relevant
cases on the interpretation of the term in different countries. It is important to mention that his
work carries a mere reproduction of many articles of different Conventions, for example the
articles of Aircraft Act, 1934 are mentioned without much analysis. Probably the biggest
drawback of his work is that it is quite old, thus, does not carry the developments that occurred in
the last fifty years; for example, the conclusion of Montreal Convention, 1999, the amendment of
59 It is important to mention here that in the “achievement” section of “Anjum Jawaid Khan law firm” website that Anjum Jawaid Khan, an aviation expert, and D E Helmore, an ICAO consultant, reviewed aviation laws of Pakistan but there is no link or reference to any document, nor is it available on any databases. See: http://ajkhan-law.com/acheive.html (accessed Aug. 13, 2015). After failure to find any such document, book or article an email query was sent to Mr. Anjum Jawaid Khan for his help to locate the document but the query remained unanswered.
60 Mumtaz Ahmad, “The Law of Civil Aviation in Pakistan” unpublished (LL.M Thesis submitted to the Faculty of Law, McGill University, 1957).
61 Mumtaz Ahmad, The Law of civil Aviation in Pakistan (Montreal: McGill University, 1957).
22
Warsaw Convention in 1971 and creation of the regulatory authority in Pakistan, i.e., CAA in
1982.
“Challenges for the Commercial Airline Industry in Pakistan” an article by Hafeez ud
Deen and Saleem Arshad62 does little besides reproducing certain facts, discuss global trends,
shortfall in local aviation laws and make certain suggestions. The article carries the table of
growth of international scheduled air traffic and figures of growth in air passengers from 1945 to
2004. There is lack of analysis, framing of legal issues and legal arguments.
Framing of Issues
In the light of the above discussion, we can conclude that there are some important issues
related to international aviation that are well settled, but there are still concerns that need
attention of the ICAO and the PCAA. There are some issues that need further clarification, and
in some cases there is an urgent need to frame rules.
The primary issue is to determine the basis of international aviation law. The question is
whether state sovereignty forms the basis of international aviation law or is it a hurdle in its
effective implementation. Another important question is related to the extent of airspace itself.
The issue is to determine the extent of air space on the basis of the maxim of Cuius est solum,
eius est usque ad coelum et ad inferos63.
Another important issue is related to determination of jurisdiction of the ICAO and the
PCAA. It is important to clearly lay down rules that define their jurisdiction to avoid
overlapping and conflict of jurisdiction. Similarly, it is important to determine whether the
PCAA is an independent body as required by international law? If the PCAA is not an
62 Hafeez ud Deen and Saleem Arshad, “Challenges for the commercial airline industry in Pakistan,” Market Forces, no. 2(4) (January 2007): 1-9.
63 Latin for ‘the owner of the land owns everything up to the sky and down to the center of the earth’.
23
independent body and is controlled by the Government or other institution, then how will that
affect the safety and smooth functioning of aviation in Pakistan? What is the best way to
minimize the effects of carbon emission from aviation industry?
International community is striving to cap carbon emissions. It is important to understand
the contribution of aviation in global carbon emission. It is an important issue to study the best
possible way to control aviation related carbon emission. Is market based initiative the best
possible solution for capping carbon emission? What is the best possible method to ensure
sustainable growth of aviation without causing environmental damage?
Air carriers are responsible for the safety of passengers and their luggage. It is important
to determine the extent of air carrier liability for the damage, delay and loss of luggage and
baggage. It is also important to study reasons of reduction in passenger compensation by an
amendment in the Carriage by Air Act, 2012 in breach to Carriage by Air International
Convention Act, 1966.
In the last ten years major aviation accidents have occurred in Pakistan. It is important to
determine that whether aircraft crash investigation in Pakistan is in accordance with international
law or not. If not, then how to ensure compliance.
As discussed above security of passengers and their luggage is of prime importance. To
ensure the safety of passengers, crew, baggage, and luggage it is important that the aircraft is
airworthy. It is important to determine the limit of state responsibility to ensure the air
worthiness of aircraft.
Lastly, it is important to determine whether there is a need to improve international law
regime for aviation law? Is there a need of a multilateral aviation treaty to improve the
24
international aviation regime? Moreover, it is important to determine whether aviation law in
Pakistan is in accordance with international aviation law.
Research Framework
This thesis is designed in the light of normative framework. In each chapter the brief
historical context is discussed because the historical events help in understanding different facts
and systems that emerge as a result of these. This will be followed by legal analysis of the
normative sources, for example, international treaties, general principles of law, customary law,
binding precedents etc. Once the established norms are ascertained, then, legal analysis of these
norms are carried out, and in certain cases analysis of two conflicting norms is also carried out. It
is important to establish the relevance and binding nature of these sources.
After the norms are established, the next step is to study local sources. The domestic
laws, rules, and case laws regarding aviation are legally analyzed in light of the established
norms. It is important to establish the “proper standard to determine what ought to be done is
what maximizes the long-term happiness of all sentient beings”64 The problem that emerged due
to the deviation from established norms are discussed, followed by the solutions or methods that
can help to achieve compliance with set standards. The emphasis of this thesis is to ensure that
local laws are in accordance with established norms that can ensure the safety of aircrafts,
passengers, cargo, baggage, and environment. The safety and security of the aviation will ensure
the sustainable growth of the aviation sector, and for that international normative structure
should be followed.
64 Jaap Hage, “The Method of a Truly Normative Legal Science,” in Methodologies of Legal Research-Which Kind of Method for What Kind of Discipline?, ed. Mark Van Hoecke. (Oxford: Hart Publishing, 2011), 19.
25
Outline of the Thesis
Attempt is made to structure the thesis in a way that reflects the issues that are framed in
this chapter. Furthermore, chapters are divided in such a way that assists in achieving the aims
and objectives of the study as mentioned earlier. The thesis is divided into six parts, besides the
ongoing chapter.
Chapter One deals with some introductory issues that divulge into the issues that form the
basis of aviation law. The first discussion will be about the type of aviation, followed by the
discussion on the principle of air sovereignty and limits of airspace. The discussion also focuses
on the contemporary issue of ADIZ. Lastly, the chapter carries a brief overview of the historical
development and evolution of aviation law.
Chapter Two is divided into two Parts. The first part deals with historical background,
structure, power, jurisdiction of the ICAO. Part-two of the second chapter deals power, structure,
jurisdiction, and functions of the PCAA.
Chapter Three deals with the impact of aviation on the environment. It analyzes carbon
emissions from aviation, and the ICAO’s initiatives to cap carbon emission. The ICAO’s four
tier strategy is discussed on the issue. Analysis of sustainable method to cap carbon emission will
be carried out. Issues of noise pollution are also dealt with in this chapter. Lastly, Pakistani laws
regarding environmental impact of aviation are reviewed in light of international law.
Chapter Four of this work deals with the legal regime regarding safety of aircraft,
passenger, luggage, and baggage. The initial part of the thesis traces back development in
international law regarding the safety of air transport. Issues related to safety that includes
registration of aircrafts and airworthiness are subsequently discussed. Later, extent of air carrier
26
liability is examined. The chapter simultaneously discusses Pakistani law regarding safety and
related issues, and highlights the gap in the law.
Chapter Five deals with investigation of aircraft’s accident and incident. Law regarding
air crashes is discussed, and safeguards for ensuring independent and fair investigation. Civil
Aviation Rules of Pakistan regarding aircraft investigation are discussed in comparison to
international guidelines. Similarly, structure, functions, and independence of Safety Investigation
Board in Pakistan is analyzed in light of international legal regime. Finally, investigation report
of Air Blue and Bhoja Air crashes are analyzed in light of international law.
Conclusions and Recommendations make the last chapter of the thesis and it sums up the
main issues discussed throughout this work. It attempts to answer all legal questions that are
raised in the beginning of the thesis. The study has led to certain recommendations to cover up
the gaps in aviation law and rules in Pakistan.
27
CHAPTER ONE
HISTORICAL BACKGROUND
Before deviling into details regarding the historical development that led to the conclusion of
different international treaties, it is important to explain and discuss some important terms that
laid down the foundation of the international aviation law.
1.1. Types of Aviation Law
International law is broadly divided into two legal disciplines: Public International Law
and Private International Law. These two different legal systems mostly work independently.
Public international law primarily regulates relationship between states1 and other entities
recognized as subject of international law. Private international law, more appropriately referred
as conflict of laws regulates relationship between individuals. Private international law is a set of
a complicated rules in every country, “directing the courts when to exercise jurisdiction in cases
involving a foreign element, when to apply foreign law in cases involving a foreign element, and
when to recognize or enforce the judgments of foreign courts”.2
Similarly, international aviation law is also divided into these two parts; public aviation
law and private aviation law. Pubic international aviation law is the body of legal rules relating
to the states and international organizations in respect of operation and use of aircrafts3. It deals
with laws relating to liability in international air transport, relationship between air carriers and
passengers, and cargo shippers. It is generally represented by the Chicago Convention.
1 Peter Malanczuk, Akehurst's Modern Introduction to International Law (London: Routledge, 2002), 72.2 Ibid.3 Verschoor and Butler, Introduction, 5.
28
On the other hand, private international aviation law is “the body of rules pertaining to
the relations between private persons involved in the operation and use of aircrafts”.4 Private
international aviation law is mostly governed by the Montreal Convention. It deals with issues
like liability of airlines (air carrier or operators) towards three different classes i.e. passengers,
shippers, and third parties on the ground. The liability towards first two classes is contractual in
nature, and is dealt by the Warsaw Convention for the Unification of Certain Rules Relating to
International Carriage by Air, 1929 and its Protocols (Montreal Convention). It is concern with
liability of air carrier during international flight, and it regulates the relationship between an air
carrier and its customers, passengers, and cargo shippers. The Montreal Convention aimed at
replacing the Warsaw Convention of 1929 that sets compensation levels for victim of air
accident, as well as liability for damages, delay or loss of cargo or luggage.
The liability towards the third parties on the ground is non-contractual, and is dealt by the
Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on Surface, 1952 and
the Protocol to Amend the Convention on Damage Caused by Foreign Aircraft to Third Parties
on the Surface, 1978. Both Conventions attempt to unify substantive rules of private liability
laws, but did not wide acceptance as the limit of liability is considered as an inadequate.
Due to lack of general acceptability, it was difficult to effectively implement laws to
protect the rights of third parties. Though, the modernization of these laws was on the agenda of
31st Session of the Legal Committee (Montreal, 2000), but after the event of 9/11 there was sense
of urgency to replace old laws with more effective law as the aircrafts were now used as a tool of
terrorism to cause damage to the third party on-ground. The two new Conventions ‘Convention
on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference
Involving Aircraft’ and ‘Convention on Compensation for Damage Caused by Aircraft to Third
4 Ibid., 4.
29
Parties’ were adopted at Montreal in 2009. These Conventions were adopted to replace the Rome
Convention, 1952 and the Protocol, 1978, but both Conventions are not in force primarily5 due to
lack required ratifications.
Similarly, the Geneva Convention on International Recognition of Rights in Aircraft,
1948 unifies rules related to conflict of laws rather than substantive rules. However, the law is
mostly replaced and superseded by the Protocol to the Convention on International Interests in
Mobile Equipment on Matters Specific to Aircraft Equipment (also known as ‘Cape Town
Convention’), 2001.
However, most of the rules of private aviation law are not codified by international
Conventions, and in cases of vacuum national law will be applicable. Principles of private
international law will determine which national law will be applicable in pattern with
international elements in case of conflict.
1.2. Principle of Airspace Sovereignty
Legal regime of aviation laws is built on the concept of airspace sovereignty. Before any
discussion on the issue of airspace sovereignty, it is important to dissect its concept to understand
the whole structure of aviation laws. Sovereignty is more aptly the concept of political science; it
is an important aspect for the existence of state in the modern world. Sovereignty means the
authority of a state to govern itself or another state,6 Sovereignty ensures the independence of a
state and right of self-governance without foreign influence.7 The modern concept of sovereignty
is derived from the Treaty of Westphalia. Treaty of Westphalia (1684) is widely considered as
5 However, according to Article 40 of the Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft, 2009 an additional requirement of 750 million departures from the member States should be achieved before the Convention came into force.
6 New Oxford American Dictionary. ed. Erin McKean. (New York: Oxford University Press, 2005). 7 Chisholm v. Georgia 2 U.S. 419 (1793).
30
the starting point of sovereign nation states and recognizes right of political self-determination,
equality of states and non-intervention or independence of a state with regard to its internal
affairs. However, the status of the treaty as the foundation of sovereignty has been challenged.8
Though, it is beyond the scope of our work to evaluate the significance of the treaty of
Westphalia9 but it is not out of context to comment that sovereignty is not the creation of a single
historic event but the creation of ideological historical struggle. Furthermore, it is not a static
concept as it is an ever-changing concept affected by changes in the global political landscape.10
Coming to the issue of airspace sovereignty, the principle of state sovereignty over
airspace is enshrined in the ICAO’s Convention. International aviation law is based on the
principle of state sovereignty. All states enjoy the "complete and exclusive sovereignty over the
air space above its territory" is the primary rule of international law, as first recognized and laid
down by Article 1 of the Convention relating to the Regulation of Aerial Navigation, signed at
Paris, 1919. The same rule was re-affirmed in Article 1 of the Chicago Convention, 1944.
It is an important academic question that whether the basis of “Aviation law” is the
maxim Cuius est solum, eius est usque ad coelum et ad inferos ([for] whoever owns [the] soil,
[it] is theirs all the way [up] to Heaven and [down] to Hell) or the maxim res omnium communis
(space as the common heritage of mankind). It is commonly believed that the former forms the
basis of aviation law and it was even invoked at judicial forums, but it was rejected by courts.
8 See: Stephen D. Krasner, “Compromising Westphalia,” International Security, no. 20 (3) (Winter, 1995-1996): 115-151. Also See: Stephen D. Krasner, “Westphalia and All that,” in Foreign Policy: Beliefs, Institutions, and Political Change, ed. Judith Goldetein & Robert Owen Keohane. (New York: Cornell University, 1993), 235-264.
9 Jonathan Havercroft, Senior Lecturer in Politics and International Relations at the University of Southampton discussed the recent critique on the significance of the Treaties of Westphalia in 1648. He discussed the claim of critics that the concept of sovereignty historically attached to the Westphalia was actually developed much later. He discussed the historical impact that helped in development of concept of sovereignty for detail discussion and analysis See: Jonathan Havercroft, “Was Westphalia ‘all that’? Hobbes, Bellarmine, and the norm of non-intervention,” Global Constitutionalism, no. 1 (01) (2012): 120 - 140.
10 Ibid.
31
The analysis will include the decision of Courts11 and the historical developments and academic
discussions on this issue. The structure, powers, functions and jurisdiction of ICAO will form a
part of this work.
The initial concept of control over airspace was based on the Latin maxim Cuius est
solum, eius est usque ad caelum et ad inferos (for whoever owns the soil, it is theirs up to
Heaven and down to Hell). Roman scholar Accursius first used this Latin proverb in the 13 th
century that was later introduced in English Law by William Blackstone in his Commentaries on
the Law of England. According to this principle, the owner of the land was the owner of the
whole airspace above it without any limits. The spirit of this principle is inherently against the
working of aviation. If the law considers an owner of a property also an owner of airspace above,
it then the permission of the owner was vital for the flights over his/her property. This was
nothing if not impossible. This concept was prevalent till the dawn of modern day aviation.
However, it is now obsolete, as it is incompatible with the working of modern day civil aviation.
Modern day aviation firmly stands on the concept of state sovereignty over airspace. As
discussed, Article 1 of the Chicago Convention recognizes that every state has complete and
exclusive sovereignty over its airspace. In the very next Article Chicago Convention states that
the territory of a state includes ‘land areas and territorial waters adjacent thereto under the
sovereignty, suzerainty, protection or mandate of such State’.12 This provision is clear that the
exercise of sovereignty by a state extends only to the airspace over its territory. The territory of
the state clearly includes which is deemed to be the land areas and territorial waters adjacent
11 For example; Lacroix V The Queen [1954] 4 DLR 470 & Bernstein of Leigh (Baron) V Skyviews & General Ltd [1978] 1 QB 479.
12 Article 2 of the Chicago Convention, 1944.
32
thereto under sovereignty. UNCLOS13 extends state sovereignty “to the air space over the
territorial sea as well as to its bed and subsoil”.14
However, Article 2 of the Chicago Convention is structured in light of the realities of old
times as protection and mandate no longer exist, and suzerainty15 too is an old concept and
practically no state applies it. An academic question does arise over the legitimacy of claim of
sovereignty over the protection or mandate or suzerainty. The question first came under
discussion in 1940’s, and many states agreed that every state had complete and exclusive
sovereignty over the airspace above its territory including all land, territorial waters, colonies,
dependencies, and suzerainty/mandates.16 However, the question is of less practical importance
in today’s international realties.
1.2.1. Air Defense Identification Zone
The ADIZ is a more recent phenomenon that challenges airspace sovereignty. The
concept of ADIZ reemerged17 after the debacle of twin towers attack in New York on September
11, 2001, where two18 civilian aircrafts were used as a tool for destruction. An ADIZ is an area in
airspace over land or water which may not be over the sovereign territory of a State in which
13 United Nations Convention on Law of the Sea, 1982.14 Article 2(2) of the United Nations Convention on Law of the Sea, 1982.15 ‘Suzerainty is term originally used for the relation between the feudal lord and his vassal; the lord was said
to be suzerain of the vassal’. However, ‘in modern concept of suzerainty involves only a few rights of the suzerain state over the vassal state which can be called constitutional rights’. Suzerainty is described as intenrtaional guardianship as vassal is represented by suzerain state. (See for more details: (Edited by Ronald F. Roxburgh) Lassa Oppenheim, International Law: A Treatise , (3 rd ed.) (The Lawbook Exchange :New Jersey., 2005 162)
16 Lucy C.S. Budd, “Airports: From Flying fields to twenty-first centuries aerocities,” in International Handbook of Globalization and world cities, ed. Ben Derudder (Cheltenham: Edward Elgar Publishing Limited, 2012) 155.
17 After the outbreak of WW II, the US took control of airspace over its costal area; this sense was intensified after attack at Pearl Harbor. The threat came to an end with an end of WWII. However, the fear reemerged during the Korean War. The US created an air defense command and control structure in 1950. This control and command system created five Air Defense Identification Zone around North America. The role of the ADIZ reached to peak during the Cold War and diminished with the end of cold war.
18 In total four aircrafts were hijacked to attack different targets (See infra: 145).
33
ready identification, location and control of all aircraft is required in the interest of national
security.19 The purpose of ADIZ is to identify all approaching aircrafts before entering into the
national airspace of a particular country as per the requirements of such country. This exercise is
undertaken to ensure that no unwanted, unidentified or hostile airplane enters into national
airspace of the said state. Almost twenty countries including US, UK, India, China, Pakistan,
Norway, Canada and South Korea created ADIZ. The problem with ADIZ is that they are often
created beyond the territory of the state and according to Article 1 of the Chicago Convention
“every State has complete and exclusive sovereignty over the airspace above its territory” and
territory includes both land areas and territorial waters.20 Usually, the state creating ADIZ does
not ask aircrafts passing by the ADIZ to verify themselves if they are not intending to enter into
the sovereign airspace of the said state. However, there are exceptions for example China
required all aircrafts passing through ADIZ to give notice, even if they don’t intend to enter
sovereign airspace of China. This is different from the traditional concept of both ADIZ and
sovereignty.
ADIZ empowers states to inquire and verify the approaching aircrafts for the main
purpose of peace and security and ultimately avoiding any act of terrorism. However, more
recently China used ADIZ to overlap with already existing ADIZ of Japan and Korea, and
challenge the administration of Senkaku Islands by Japan. So, in light of these developments
states are actually exercising extra territorial airspace sovereignty for preventing the act of
terrorism. These developments are against the provisions of the Chicago Convention, however,
the concept of sovereignty is ever-changing and is adaptable in accordance with the
contemporary realities of world.
19 Ruwantissa Abeyratne, “In Search of Theoretical Justification for Air Defence Identification Zones,” Journal of Transportation Security, no. 5(1) (2012): 87.
20 Article 2 of the Chicago Convention, 1944.
34
1.3. Vertical Limit of Air Space
It is interesting that determination of vertical limit of airspace is not considered as an
important and urgent21 issue. However, it is important to determine the vertical limits of airspace
to define the upper limit to establish sovereignty of state. However, as early as in 1902, Paul
Fauchille of France, Rapporteur for the Institute of International Law on the subject of the legal
status of the airships, proposed that States should only have exclusive rights in the airspace
immediately over their territory up to an altitude of 1,500 meters (4,920 feet). However, others
were not keen to discuss this issue; for example, Professor John Westlake was a strong advocate
of fixing limit of airspace.22 So, at that time no state defined the vertical limit of their
sovereignty.
It is important to demarcate airspace and define what constitutes space. The importance
lies in the fact that states have more freedoms in space than they have in airspace. However, it is
important to remember that it does not mean that states have license to act arbitrarily in space, as
space can only be used for peaceful purposes.23 However, space is more independent, as states
would not be able to object to over-flight except in cases of genuine safety concern.24
Early attempts to demarcate airspace failed, for example in the Paris Conference, 1901,
and European states declared concept of absolute sovereignty over vertical airspace.25 There is
still no consensus on the limit of airspace, however, for practical purposes, outer space is defined
21 Dean N. Reinhardt, “The Vertical Limit of State Sovereignty,” (LL.M thesis, Institute of Air and Space Law, McGill University, 2005), 1.
22 John Cobb Cooper, “A Study on the Legal Status of Aircraft,” in Explorations in Aerospace Law: Selected essays by John Cobb Cooper 1946-1966, ed. Ivan A Vlasic. (Montreal: McGill University Press, 1968), 218.
23 Article 3 of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967.
24 Dean N. Reinhardt, “The Vertical Limit of State Sovereignty,” (LL.M thesis, Institute of Air and Space Law, McGill University, 2005), 3.
25 Ibid.
35
by the lowest limit for vehicles to orbit the earth without entering the earth's atmosphere that is
approximately 100 km26 (62 miles), and below that altitude air law is applicable and it is
considered as airspace. The reason for fixing it at 100 Km is because it corresponded to the
lowest perigee of satellites. Interestingly, in 1978 the USSR presented a proposal to limit vertical
sovereignty to 100 Km.27 There is also confusion that whether there exists a customary law that
allows the right of innocent passage for the access to space, for example Russian demands of
prior notice of any such usage shows that right of innocent passage does not exist. Also, some
scholars dismiss the right of innocent passage on the basis of the argument that it is dangerous to
give right of innocent passage for states.28 Similarly, not all jurists agree on fixing the limit of
vertical sovereignty at 100 km. Some jurists suggest that vertical sovereignty should be
determined by following the territorial sea formula that is 12 nm (22 km),29 beyond that area
territorial sovereignty will seize and other states would be free to use that area for space
activities. It is considered that 22 km is above the altitude of current aviation, and initially it may
cause fear among states about their security, but this would give all states more freedom in space.
The issue needs to be resolved for more coherent aviation and space laws.
1.4. Legal Regime Governing International Aviation
The aviation law regime is governed by three tiers of laws, i.e., international law,
continental law (for example, EU laws) and National laws. This nascent industry should be
26 Jack A Smith, “The militarization of outer space,” Asian Times Online, Mar. 10, 2007. http://www.atimes.com/atimes/Front_Page/IC10Aa01.html (accessed Nov. 30, 2012).
27 UN Doc. A/AC.105/PV.183 (1978)28 For example, Professor Carl Chistol was against the absolute and unrestricted right of innocent passage for
access to space though he believe the right of innocent passage is important for the optimal use of space. (See for details: Carl Q. Christol, “Innocent Passage” in the International Law of Outer Space,” JAG Law Review, no. 5(VII) (1965): 22-29.)
29 Myres S McDougal, Harold D Lasswell, and Ivan A Vlasic, Law And Public Order In Space (New Haven: Yale University Press, 1963), 590.
36
governed by effective laws as due to globalization, human interaction and interdependence is
increasing. Hence, aviation is fundamental to minimize physical distance. A simple flight
between two countries may require using the airspace30 of maybe a dozen or more countries, so it
is therefore necessary to conclude a bilateral, transnational, regional or international agreement
for mutual use of airspace for peaceful purposes. Hence, for the peaceful use of airspace and to
regulate aviation activities 55 states concluded the Chicago Convention31 in 1944 that resulted in
the creation of ICAO. ICAO is the controlling and legislative body of international civil aviation.
The rules of International Civil Aviation are derived from generally recognized concept of
universal justice that serves collective good and peace.
In Pakistan the PCAA is the governing body, while the Federal Government legislates
and formulates aviation policy. As the signatory of several international aviation treaties,
Pakistan is bound to fulfill international commitments. The legislation should be at par with
international provisions to ensure safety and progress of the industry.
In this work, we will attempt to discuss and analyze some of the important concepts
forming the basis of aviation law and the way these rules are incorporated in aviation law of
Pakistan i.e. laws regarding safety, liability, air crash investigation, carbon emission charges.
Beside these core issues, we will attempt to discuss other secondary yet related issues including
sovereignty over airspace, jurisdiction of the ICAO and independence of the PCAA.
30 Airspace means the portion of the atmosphere controlled by a country above its territory, including its territorial waters or, more generally, any specific three-dimensional portion of the atmosphere.
31 Also known as, Convention on International Civil Aviation, 1944. See: Doc 7300/9. Available at: http://www.icao.int/publications/Documents/7300_9ed.pdf (accessed 13th March, 2013).
37
1.5. Historical Development of Aviation Law
Though, earlier aviation law was considered as the ‘last born of juridical notions’,32 but
its roots are traced back to Roman law that formed the basis of basic principles of aviation laws.
The first piece of modern legislation was enacted in 1748 by French Authorities,33 the law that
made it mandatory for all balloon flights to have police permits.34 Similarly, France became the
first country to impose custom duty on imported balloons in 1909, and then series of laws were
enacted in the US to control air traffic35 and air mail36. As mentioned earlier, international
character of aviation was recognized in the early stages of development of aviation. Before
aviation became the regular agenda on international of diplomatic conferences, jurists took it
seriously, as in 1880, the Institut de Droit International, an international association of eminent
jurists, put aviation part of the agenda of its convention that was held in Oxford, England.37
French Government has played a proactive role not only in domestically regulating
aviation activities, but also in fostering international cooperation for regulating aviation
activities. In 1889, the French Government in collaboration with an international organization
called the first International Aeronautic Congress in Paris.38 This meeting resulted into the
creation of Permanent International Aeronautics Commission, and four more meetings were held
32 Sand, Peter H., Jorge de Sousa Freitas, and Geoffrey N. Pratt, “An historical survey of international air law before the second world war.” McGILL Law Journal no.7 (1) (1961): 24. (However, it is important to mention that claim does not hold water anymore as in last century there is emergence of outer space laws, cyberwarfare laws, cybercrimes law etc.).
33 Ibid., 25.34 Ibid. 35 In 1908, the Council of Kissimee City (Florida) enacted the first air traffic regulation that fixed the upward
limit of the space up to twenty miles.36 On June 4th, 1910, the bill was introduced in the US Congress related to carriage of air mail that called for
an investigation to determine the practicability and cost of an aero plane mail route.37 Albert Pelsser, ‘The Postal History of ICAO,’ International Civil Aviation Organization, April 5, 2016. http://www.icao.int/secretariat/postalhistory/1910_the_paris_convention.htm (accessed May 5, 2016).38 Ibid.
38
in the continuation of 1889 congress.39 It was the beginning of international cooperation in the
field of aviation.
Keeping in view need of international cooperation, and development in the field of
military aviation, the issue of aerial warfare was discussed in the first International Peace
Conference at the Hague, in 1899 that resulted in the temporary ban of five years on the use of
balloons or other similar objects to fire explosives against enemy states.40 However, initial global
concern was to regulate the use of air carriers in war, but soon the need was felt to regulate
peaceful yet unregulated air flights by balloons.41 The concern led to the conference of nineteen
European states in 1910 on the regulation of air navigation in France.42 The aim of the
conference was to formulate international law regarding aviation. Though, the conference was a
diplomatic failure, but formulated a draft43 that served as the guiding document for Paris
Convention of 1919 and Chicago Convention of 1944. The conference showed a genuine
concern for private property rights in airspace, as France and Germany argued that states should
amend their domestic law that restrict the right of land owner to interfere in right of foreign
aircrafts to fly over the airspace.44 The issue regarding the treatment of aircrafts led to
disagreement between states and caused deadlock.
After WWI, regular aviation services started, and the number of aircrafts increased.
These developments made it inevitable to make regulations related to aviation. France took up
39 The four meeting were held in Paris (1900), Milan (1906), Brussels (1907), and Nancy (1909). 40 Sand, Peter H., Jorge de Sousa Freitas, and Geoffrey N. Pratt, “An historical survey of international air law
before the second world war.” McGILL Law Journal no.7 (1) (1961): 29.41 Ibid. 42 The Conférence internationale de navigation aérienne (International Air Navigation Conference) was
convened on the initiative of French government and was held from 18 May to 29 June, 1910 in Paris.43 This draft was prepared regarding aerial navigation and it has seven chapters (Nationality of Aircraft and
Registration Requirements; Approval and Airworthiness Certificates; Authorization for Air Traffic within the Borders and above a National Territory; Regulations on Take-off, Landing and Flight Customs and Freight; Public Aircraft; and Final Provisions), fifty-five articles and three annexes (Marks of nationality and registration; characteristics of the aircraft; and rules of the air traffic).
44 Ibid., 30.
39
the idea of international corporation, and Allied powers showed considerable interest, thus
aviation was a discussed at the Paris Peace Conference45 of 1919. As a result of the Peace
Conference, a special Aeronautical Commission46 of the Peace Conference was formed on March
6, 1919. The commission drove upon the groundwork done in the 1910 Paris Diplomatic
Conference, and in seven months drew up the Convention Relating to the Regulation of Aerial
Navigation.47 The Convention was signed on October 13, 1919 by twenty-seven states. The
Convention, now redundant, was not only the first legal instrument to regulate air navigation, but
also a first important step that motivated states to develop their own domestic laws.48
The Paris Convention of 1919 is an important document in more than one way, as it not
only recognized the basic principle regarding aviation law concerned with airspace sovereignty.
The Convention also recognized the principle of exclusive sovereignty of a state over its airspace
above its territory and territorial water.49 It recognized the concept of airspace sovereignty as part
of customary international law, that would be applicable on all states regardless of whether they
are party to the Convention or not.50 Similarly, the important concept of innocent passage
without any discrimination on the basis of nationality was also laid down by the Convention.51
However, there is an exception the rule that is also mentioned in the Convention that empowers
states to declare any particular area prohibited for all types of aircrafts of other states for military
purposes.52 The concept is still practiced by states, but the Convention made it mandatory to
45 Congrès de la Paix, 1919.46 Aeronautical Commission was also assigned the work to consider the limits on commercial aviation to be
allowed to the defeated Geremany. (Michael Milde, International Air Law and ICAO (Netherlands: Eleven International Publishing, 2008),10)
47 Ibid.48 Ibid. 49 Article 1, Paris Convention, 1919. 50 Milde, International Air Law, 11. 51 Article 2 of the Paris Convention, 1919. 52 Article 3 of the Paris Convention, 1919.
40
notify such zones beforehand53 to avoid the misuse of state discretion and to avoid confusion and
violations.
The Convention established the ICAN and placed it under the League of Nations
(hereinafter referred as ‘LoN’) that was executive, legislative, judicial, and advisory body, and
was especially assigned the task of amending the Annex. The ICAN was the first formal
organization to regulate and promote aviation. Though, 1919 is considered to be an important
year in aviation, but with the failure of the LoN there was simultaneous downfall of the Paris
Convention of 1919.54
Before the Chicago Convention of 1944, two unsuccessful attempts were made to enact
international regulations by initiating Madrid Convention, 1926, and Havana Convention (Pan
American Convention) 1928. The Madrid Convention was never implemented and Havana
Convention only attracted sixteen members including the US. Though, today they do not have
practical implications, but the liberal regime of handling aviation issues laid down by the Havana
Convention still inspire some to argue for ‘free sky’ policy and free competition air carriers in
open skies.55
The Chicago Convention was conceived in the background of WW II, as by this time
aviation technology was quite advance. In the context of war and in response to British initiative,
the US President, Theodor Roosevelt, invited fifty-four nations including allied powers and some
neutral states for Conference on Civil Aviation in Chicago from November 1 to 7, 1944.56 It is
interesting to note that the USSR, one of the largest countries territory-wise and one of the major
military powers didn’t turn up for the Chicago Conference,57 and in its absence the proposal by
53 Ibid.54 Milde, International Air Law, 12.55 Ibid., 13.56 Verschoor and Butler, Introduction, 13.57 Milde, International Air Law, 15.
41
English-speaking countries took prominence, that included proposal by the UK, the US, Canada,
and Australia & New Zealand.58 However, the major proposals were by the US and the UK; the
US proposal called for liberal framework on the lines of Havana Convention, and the UK wanted
to keep its vast airspace including airspace of its colonies safe.59 It is believed that the economic
condition of both countries post WW II of reflective in their approach.60 Nevertheless,
compromise was achieved as the main Convention did not grant traffic rights in international
schedule carriage by air, but states could give ‘freedoms of the air’ on reciprocal basis through
two distinctive documents, in addition to main Convention.
On December 7, 1944, fifty states signed the Chicago Convention together with two
agreements annexed to it; the International Air Service Transit Agreement (Two Freedom
Agreement) and the International Air Transport Agreement (Five Freedoms Agreement).
Nineteen annexures were added to the Chicago Convention that provide technical assistance,
standards and recommended practice in accordance with the Articles of the Convention.61
After seventy years, the Chicago Convention is still the main source of public
international aviation law, and is the constituent document of ICAO. Chicago Convention unified
international law regarding aviation and replaced all previous Conventions. The Chicago
Convention and its annexures are discussed in the later part of this thesis. However, it is
important to mention here that besides establishing the ICAO, the Convention also reaffirms the
58 Verschoor and Butler, Introduction, 13.59 Milde, International Air Law, 15.60 Ibid. 61 Nineteen Annexures to the Chicago Convention are about: Personnel Licensing, Rules of the Air,
Meteorological Service for International Air Navigation, Aeronautical Charts, Units of Measurement to be used in Air and Ground Operations, Operation of Aircraft, Aircraft Nationality and Registration Marks, Airworthiness of Aircraft, Facilitation, Aeronautical Telecommunications, Air Traffic Services , Search and Rescue, Aircraft Accident and Incident Investigation, Aerodromes, Aeronautical Information Services, Environmental Protection, Security: Safeguarding International Civil Aviation Against Acts of Unlawful Interference, The Safe Transport of Dangerous Goods by Air, and Safety Management.
42
exclusive sovereignty of a state over its airspace as mentioned in Paris Convention, 1919,62
however, all states have right of flight above high seas63. The right of innocent passage of
unscheduled flights,64 but right of schedule flight is limited and is subject to authorization of a
state65. Similarly, it laid down the rule that nationality of aircraft will of the state where it is
registered,66 and the difference between state and civil aircrafts as Chicago Convention is only
applicable on civil aircrafts.67 The Chicago Convention also prohibits use of force against
civilian aircrafts.68 However, it does not change rights and duties of states in accordance with the
UN Charter. In fact it is just a reinforcement of customary international law.
On one hand, important developments were made in the area pf public aviation law. And
on the other hand, parallel need was felt to unify private aviation law, as there was lack of
uniformity in legal frame work governing international private international aviation law. As was
the case of public aviation law, France again took initiative to call an international organization
after realizing that issues of private international aviation law can be best solved with
international cooperation only.69 Hence, the first International Conference on Private Air Law
was convened in Paris from October 27 to November 6, 1925. The conference successfully
prepared a draft Convention and setup a committee70 to study important questions. In
continuation of work of the Conference, the committee met regularly and studied and further
62 Article 1 of the Chicago Convention, 1944. 63 Ibid., Article 12.64 Ibid., Article 5.65 Ibid., Article 6.66 Ibid., Article 17.67 Ibid., Article 3.68 Ibid., Article 3 bis.69 Sand, Peter H., Jorge de Sousa Freitas, and Geoffrey N. Pratt, “An historical survey of international air law
before the second world war,” McGILL Law Journal no.7 (1961): 36.70 The Conference established the the Comité International Technique d'Experts Juridiques Aériens
(CITEJA), which is an organization of legal experts that were entrusted to develop the work that is done by the Conference.
43
developed the proposed draft Convention.71 The Convention prepared by Committee was
presented in the Second International Conference on Private Air Law that was held at Warsaw
from 4 -12 October, 1929. The Convention is formally named as Convention for the Unification
of Certain Rules Relating to International Carriage by Air, and ordinarily known as the Warsaw
Convention. The Convention was the starting point of series of legislation that include several
protocols, supplementary instruments, rules, and regulations are added over the years and are
collectively known as Warsaw System.
The Warsaw Convention regulates air carrier liability, in the event of accident, for loss
or damage that is caused to luggage or goods carried by aircraft. The Convention laid down
principles that formulated the basis of modern aviation law. It laid down certain duties of air
carrier towards its passenger, their baggage, and cargo. The Convention provided certain
procedures like issuance of tickets, baggage checking, limit of liability of air carrier, and fixed a
limitation period for bringing a claim against air carrier.
After the Warsaw Convention, Third and Fourth International Conference on Private Air
Law was held in Rome (1933) and Brussels (1938) respectively. Though, the fourth Conference
did not add anything substantial, but in the Third Conference Two Conventions were presented
and adopted. The first Convention related to ‘Precautionary Attachment of Aircraft’ and the
second Convention was the ‘Unification of Certain Rules Relating to Damages Caused by
Aircraft to Third Parties on the Surface.’ It is interesting to note that even these two Conventions
do not contribute much as the both of them were ratified by only thirteen and six states
respectively. Hence, the two conferences did not add much to the development of the aviation
law. 71 Albert Pelsser, ‘The Warsaw System on air carriers liability,’ The Postal History of ICAO (International
Civil Aviation Organization), http://www.icao.int/secretariat/postalhistory/the_warsaw_system_on_air_carriers_liability.htm (accessed Mar. 14, 2016).
44
The Warsaw Convention was amended by the Protocol to Amend the Convention for the
Unification of Certain Rules Relating to International Carriage by Air, commonly known as
Hague Protocol in 1955. The Hague Protocol was necessary to adapt the Warsaw Convention in
the light of rapidly changing aviation technology. The Convention doubled the amount of limit
of liability for a person to 250,000 francs and some other minor amendments were made in the
Convention.
In 1961, the ‘Convention Supplementary to the Warsaw Convention for the Unification
of Certain Rules Relating to International Carriage by Air Performed by a Person other than the
Contracting Carrier’ was adopted at the Diplomatic Conference at Guadalajara, Mexico. The
supplementary Convention is commonly known as Guadalajara Convention that provided that
the Warsaw Convention applied to both the actual and the contracting carrier. As a consequence,
the circle of liable persons under the Convention has expanded.
The US was withdrawing from Warsaw Convention because of low level of liability of
air carrier for the death or injury of passenger,72 the US demanded to increase the amount of
liability from US $ 75,000 to $ 100,000 per passenger. To review the issue, a special meeting
was convened by the ICAO at Montreal in February 1966. The meeting resulted in the Montreal
Agreement, formally known as Agreement Related to Liability Limitation of the Warsaw
Convention and the Hague Protocol; the US gave its consent to this agreement. The agreement is
voluntary and does not formally amend the Warsaw Convention. In accordance with the
agreement airline set out that the liability limit in case of death or injury to passenger at US$
58,000 exclusive of legal costs and US$ 75,000 including legal costs.
72 Milde, International Air Law, 274.
45
Montreal Agreement was considered as an interim solution and the ICAO worked for a
permanent solution, thus consensus was achieved to modernize the Warsaw Convention73 at the
Diplomatic Conference held at Guatemala City in 1971. The conference resulted in the adoption
of the Guatemala Protocol that never came into force. The Protocol increased the liability limit
for passenger claims, introduced fixed limits and added the fifth jurisdiction (where the
passenger resides).
Another Diplomatic Conference was convened by ICAO on International Air Law in
Montreal from September 3 to5, 1975. The conference was to deal with the issue of cargo, and
resulted into four Protocols (the Montreal Protocols of 1975), amending the Warsaw Convention,
the Hague, and Guatemala Protocols. The Protocols increased the liability limit, altered the
monetary measurement from gold to SDR, and eliminated outdated documentary requirements
for cargo.
The developments in the field of aviation and increase in use of aviation as means of
transport and trade, made it difficult to work with the complex Warsaw System. The ICAO
decided to replace Warsaw Convention with a new legal regime. In May 1997, the ICAO Legal
Committee in its 30th Session held at Montreal approved the text of a draft Convention for
modernizing the Warsaw System of air carrier liability, to be adopted later by a Diplomatic
Conference. Two years later, on May 28, 1999, at the International Conference on Air Law held
in Montréal, the new Convention for the Unification of Certain Rules for International Carriage
by Air, commonly known as Montreal Convention was signed. However, the Convention came
into force on November 4, 2003, and this single instrument replaced the complex Warsaw
System. 73 Albert Pelsser, ‘The Warsaw System on air Carriers liability,’ The Postal History of ICAO (International
Civil Aviation Organization), http://www.icao.int/secretariat/postalhistory/the_warsaw_system_on_air_carriers_liability.htm (accessed Mar. 14, 2016).
46
The law is an ever-growing organism; it cannot be static. The growth of aviation is not
limited to the implementation of Montreal or Chicago Convention. It has to evolve in
accordance with the changing needs of the time. The evolution of aviation directly influences the
development and growth of international aviation law. In the course of this work, certain other
historical aspects will be discussed in the relevant portion.
47
CHAPTER TWO
THE INTERNATIONAL CIVIL AVIATION ORGANIZATION
AND CIVIL AVIATION AUTHORITY OF PAKISTAN
The development in international aviation services led to codification of international
aviation law. Amidst of all these developments, need was felt to establish an international body
to control ensure compliance with international law and to play a leading role in the development
of international aviation law. As discussed earlier, aviation is an important sector and it cannot
be regulated without the presence of powerful and independent international regulatory body. So,
before divulging into other issues related to international aviation law, it is important to discuss
and explain the issues of international organization.
This chapter is divided into two parts. In the first part, reasons for the establishment of an
international body to regulate aviation will be discussed in the light of historical developments.
Issues related to structure, functions, powers, organs, committees, and jurisdiction of the
international civil aviation authority will be discussed. In the later part of the chapter, structure,
power, functions, and jurisdiction of the civil aviation authority of Pakistan will be discussed. In
this context the international obligations and importance of the creation of an independent
regulatory body at the domestic level will also be discussed.
48
PART-I
2.1. Establishment of the International Civil Aviation Organization
The end of WW I marked the beginning of the era of aviation. This era was full of hopes
and fears. On one hand, there was hope to exploit the full potential of aviation to ensure safe and
fast transport of goods and passengers over long distances. On the other hand, war had also
shown the ugly potential of aviation. Consequently, by 1919, regular international air transport
service started and the number of aircrafts, airlines, and air-mail services increased. 0 All these
facts made it necessary to have an international regulation to swiftly deal with growing aviation
related activities.
The idea of international collaboration on aviation was discussed in Paris Peace
Conference of 1919. At the Conference, French under-Secretary of State for Aeronautics, Albert
Roper presented a formal idea of international collaboration in aviation matters that was
appreciated by other allied states.
As a result, a special Aeronautical Commission of the Peace Conference was formed on
March 6, 1919 that worked under the Peace Conference. The thirteen member countries, 0 in their
first meeting agreed to produce a set of basic principles in preparing the Convention and its
Annexes. Three Sub-Commissions that included legal, technical, and military were established.
The Sub-Commissions worked on the draft convention0 for aerial navigation laws for
seven months and using the groundwork laid down at the 1910 Paris Diplomatic Conference. As
a result, on October 13, 1919, a Convention Relating to the Regulation of Aerial Navigation was
0 See for details: “Airline History,” The World's Airlines Past, Present & Future, http://www.airlinehistory.co.uk/Airline%20History/History1903.asp (accessed 11 Oct. 11, 2015).
0 Thirteen countries that were represented at the Commission were: Belgium, Brazil, the British Empire, Cuba, France, Greece, Italy, Japan, Portugal, Romania, the Kingdom of the Serbs, Croats and Slovenes, and the US.
0 The draft conventions were submitted by France, Great Britain, and the USAs. Also, Italy submitted a separate draft proposal.
49
signed by twenty-seven states. The Convention, beside other things, expected the creation of the
International Commission for Air Navigation (ICAN),0 under the direction of the LoN to monitor
developments in civil aviation and to propose measures to inform states about developments. The
ICAN was the first international organization that was established for the development of
aviation. The ICAN along with its Sub-Commissions played a pivotal role in drafting of
technical annexes of the Chicago Convention, 1944.0
In December 1944, fifty-two states signed the Chicago Convention while twenty-six
ratifications were required for establishment of the ICAO. It took almost three years to receive
the required ratifications, with the 26th ratifications received by March 5, 1947. During the
interim period (June 6, 1945-April 4, 1947) the Provisional International Civil Aviation
Organization (PICAO) was established. The ICAO came into being on April 4, 1947 after
receiving the required ratifications. Few months later, on November 6, 1947 Pakistan became
party to the Convention.0
Article 64 of the Chicago Convention authorized the ICAO Assembly to enter into
agreement with any world organization for achieving global peace and security. In the exercise
of this power, the ICAO Assembly in its very first session approved the unanimous resolution to
enter into an agreement with the UN. On October 3, 1947 the Protocol was signed between the
UN and ICAO, and ICAO became part of the UN family. It is one the fifteen specialized
agencies of the UN, and works closely with the UN, especially with the Economic and Social
Council.
0 The French version is Commission internationale de Navigation Aérienne (CINA). 0 Z. Ciolkosz, “The ICAN Conference-Reveival Of Activities: Progress Of Preliminary Work,” Flight, May
31, 1945.0 “Convention on International Civil Aviation Signed at Chicago On 7 December 1944,”
http://www.icao.int/secretariat/legal/list%20of%20parties/chicago_en.pdf (accessed Sep. 17, 2015).
50
Main aim of the ICAO is to develop principles and techniques of international air
navigation and to ensure the development of aviation. The ICAO works to ensure the safety of
aviation, development and use of aircrafts for peaceful purposes, development of facilities
related to aviation, ensure that aviation facilities are economical and prevent waste of economic
resources due to unhealthy competition.0 It is also included in its duties to protect the rights of
state parties, and ensure that all states are treated equally without any discrimination in any
opportunity.0 In short, the ICAO tries to bring the member states to work together for the safety,
security, and sustainable development of civil aviation.
There are 191 members of the ICAO that are working to develop international Standards
and Recommended Practices (SARPs).0 These practices are used as a reference by member states
while developing their legally-enforceable national civil aviation regulations.
The Chicago Convention established a governing body, the ICAO, as an arm of the UN
to oversee and regulate the development of international aviation.0 It has succeeded in
superseding all the existing multilateral treaties on civil aviation.0 It has also given ICAO a
general jurisdiction to encourage safe and systematic growth of international civil aviation.
Furthermore, it includes a responsibility to promote development, design and operation of
appropriate aircrafts, airports and air navigation facilities.
0 Article 44 of the Chicago Convention, 1944.0 Ibid.0 There are currently over 10,000 SARPs reflected in the 19 Annexes to the Chicago Convention which
ICAO oversees, and it is through these provisions as well as ICAO’s complementary policy, auditing and capacity-building efforts, that today’s global air transport network is able to operate close to 100,000 daily flights, safely, efficiently and securely in every region of the world. Throughout this thesis different standards will be discussed.
0 Paul Stephen Dempsey, “The Role of International Civil Aviation Organization on Deregulation, Discrimination and Dispute Resolution,” Journal of Air Law and Commerce, no. 52:3 (1987): 529-32.
0 The Chicago Convention has superseded Paris Convention of 1919 and Havana Convention of 1928.
51
The headquarters of the ICAO are located in Montreal, Canada,0 and has seven regional
offices0 and one regional sub-office0 that are situated in different regions of the world.
2.1.1. Composition and Functions of The ICAO
According to the Chicago Convention, ICAO consists of two main organs; the Assembly,
and the Council.0 However, Article 43 also made space for the creation of such bodies that are
necessary for the working of the ICAO. Hence, the third organ of ICAO i.e. the Secretariat was
established.
The Assembly of ICAO is a sovereign body that comprises of representatives from all
150 contracting states. The Assembly is required to at least meet once every three years to
review the overall work of the Organization and to set the policy for future implementation.
The Council is the governing body and elected by the Assembly for a term of three years.
The Council consists of thirty-six member states. The Assembly chooses the Council member
states under three headings;0 states having dominant position in air transport; states that makes
the largest contribution in providing facilities for air navigation; and states whose designation
ensures that all major areas of the world are represented.
The Council also gives directions with regard to the work of the ICAO. It is a semi
legislative (with regard to SARPs that are adopted by the Council0), and judicial organ (with
regard to settlement of the disputes between states on implementation and interpretation of the
0 Article 45 of the Chicago Convention authorized Interim Assembly of the Provisional International Civil Aviation to decide the permanent seat of the ICAO.
0 Seven regional offices are located in Bangkok (Asia & Pacific Office), Cairo (Middle East Office), Dakar (Western & Central African Office), Lima (South American Office), Mexico (North American, Central American & Caribbean Office), Nairobi (Eastern & Southern African Office), and Paris (European & North Atlantic Office).
0 The only regional sub-office is that of Asian & Pacific region is located in Beijing.0 Article 43 of the Chicago Convention, 1944.0 Dempsey, “The Role of ICAO,” JALC, no. 52:3 (1987): 533.0 Article 37 of the Chicago Convention.
52
Chicago Convention). The Council is assisted by the Air Navigation Commission and Air
Transport Committee for dealing with technical and transport methods respectively.0
The Secretariat is headed by a Secretary General. The Sectary General is head of the
Secretariat and chief executive officer of the Organization, and is appointed by the Council for a
period of three years.0 The Secretary General provides leadership to the staff of the ICAO,
performs tasks assigned by the Council, and ensures that policies are implemented. The
Secretariat is divided into five main divisions; Air Navigation Bureau, Air Transport Bureau,
Technical Co-operation Bureau, Legal Bureau, and Bureau of Administration and Services.
2.1.2. Aims and Objectives of ICAO
The aims and objectives of ICAO are laid down in Article 44 of the Chicago Convention.
The primary function of ICAO is ‘to develop the principles and techniques of international air
navigation’, and to ensure ‘the planning and development of international air transport’. It is
important to develop these principles, techniques, and planning to ensure the safety and growth
of international civil aviation.0 ICAO encourages the creations of aircraft design and operation
for peaceful purposes and also reassures the development of aircrafts, airports and air navigation
facilities.0 It meets the needs of the people of the world for safe, regular, efficient and economical
air transportation. Further it also ensures that the contracting states have a fair opportunity to
operate international airlines and avoid discrimination. It also promotes safety and development
of international air navigation and international civil aeronautics.0
0 Dempsey, “The Role of ICAO,” JALC, no.52:3 (1987): 533.0 Currently Dr. Fang Liu (China) is serving as the Secretary General of the Organization. He is elected for
the term of three years (1 August 2015 to 31 July 2018).0 Article 44 of the Chicago Convention, 1944.0 Ibid.0 Ibid.
53
The significant role of ICAO is to formulate the norms for international civil air transport
system in accordance with Article 370 of the Chicago Convention. Moreover, it works in close
cooperation with other members of the UN, including the World Meteorological Organization,
the International Telecommunications Union, the Universal Postal Union, the World Health
Organization, and the International Maritime Organization. Non-governmental organizations also
participate with ICAO and including the IATA, the Airports Council International, the
International Federation of Airline Pilots’ Associations, and the International Council of Aircraft
Owner and Pilot Associations.0
Some non-governmental organizations also participate in ICAO's work. These
organizations include the Airports Council International (ACI), the Civil Air Navigation Services
Organization (CANSO), the International Air Transport Association (IATA), the International
Business Aviation Council (IBAC), the International Coordinating Council of Aerospace
Industries Associations (ICCAIA), the International Council of Aircraft Owner and Pilot
Associations (IAOPA), the International Federation of Air Line Pilots' Associations (IFALPA)
and the International Federation of Air Traffic Controllers' Associations (IFATCA).0
0 Article 37 of Chicago Convention states that “each contracting State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. To this end the International Civil Aviation Organization shall adopt and amend from time to time, as may be necessary, international. standards and recommended practices and procedures dealing with: (a) Communications systems and air navigation aids, including ground marking; (b) Characteristics of airports and landing areas; (c) Rules of the air and air traffic control practices; (d) Licensing of operating and mechanical personnel; (e) Airworthiness of aircraft; ( f) Registration and identification of aircraft ; (g) Collection and exchange of meteorological Information; (h) Log books; (i) Aeronautical maps and charts; (j) Customs and immigration procedures; (k) Aircraft in distress and investigation of accidents; and each other matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate”.
0 “The International Civil Aviation Organization—Headquarters Montreal Improves Air Navigation Planning Workflow and Data Management,” ESRI, https://www.esri.com/library/casestudies/icao.pdf (accessed Aug. 10, 2015).
0 “How It Works,” International Civil Aviation Organization, http://www.icao.int/about-icao/pages/how-it-works.aspx (accessed Sep. 13, 2015).
54
It employs diverse rulemaking techniques including treaty sponsorship, standards and
recommended practices (SARPs), and through the creation of other non-binding and regional
instruments. Perhaps the most notable trend in ICAO rulemaking is the decline in importance of
treaty sponsorship relative to SARPs.0
2.1.3. Jurisdiction of the International Civil Aviation Organization
The Chicago Convention does not give overriding jurisdiction to ICAO over disputes
arising from issues related to aviation. States have primary jurisdiction to deal with issues with
regard to accident and incidents regarding aviation.0 Similarly, in cases of conflicts between
states on matters relating to aviation, ICAO cannot automatically assume jurisdiction. In case of
disagreement related to interpretation and application of the Chicago Convention states should
try to settle issues by negotiations. The question is what would happen if the states failed to settle
disputes through negotiations and the problem persisted.
According to Chapter XVIII0 of the Chicago Convention the cases where states fail to
settle any disagreement among two or more contracting states relating to the application of the
Convention and its annexes by negotiation, then those shall be decided by the Council.0 To bring
the proceedings of the Convention in accordance to the principle of Nemo judex in causa sua0
prohibits the members of the Council to participate in the decision making on an issue that
involves the said member state.0 The clause not only ensures fair decisions, but also gives
0 Simon Winston Brinsmead, “Rulemaking in ICAO, the ILO and the IMF: The Rise of Standards,” SSRN, (2007):12, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1002758 .
0 See Chapter V for detailed discussion. 0 Chapter XVIII of Chicago Convention,1944 ‘Disputes and Default’. It consists of five Articles (Article 84
to 88). It provides the detail mechanism for the settlement of disputes between states by the Council of ICAO.
0 Article 84, Chicago Convention, 1944.0 Also known as ‘Nemo Judex In Parte Sua’ translated as ‘no person can judge a case in which he or she is
party or in which he/she has an interest’.0 Article 84, Chicago Convention, 1944.
55
transparency to the Council’s decisions. However, jurists like Brian and Gabriel0 criticized the
exclusion of a state from voting in their own case. It is termed as strange that a state is left
exposed to the negative finding of the Council and she does not have a meaningful say in the
decision making process.0 Critics base their argument on the Article 31(1) of the ICJ statute that
allows a judge, native of the state party to case, to retain their seat. So, if the judge of ICJ can sit
in a case involving their country, which is also one of the appeal forums from the decision of the
Council, then for critics it is hard to comprehend the reason behind such reason at the Council.0
However, the supporters point out that ICJ judges are bound by their oath to act independently,
and Council members will always follow instructions of their states.0
To ensure fair resolution of disputes between them, states have the right of appeal against
the decision of the Council. The appeal lies to the non-ICAO bodies that includes any agreed
upon ad hoc arbitral tribunal or to the ICJ0. Any such appeal shall be notified to the Council
within sixty days of receipt of notification of the decision of the Council. 0 The Convention tried
to cover all eventualities and also provide alternate mechanism in case parties failed to agree on
arbitration tribunal or the parties are not parties to the Charter of the Court; then in such cases
each state will name one the arbitrator and the arbitrators will nominate an umpire. If the states
fail to complete the process in three months from the appeal then President of the Council will
nominate the arbitrator from the list of qualified people maintained by the Council.0
0 Brian F. Havel and Gabriel S. Sanchez, The Principles and Practice of International Aviation Law, (Cambridge University Press, 2014), 64-66.
0 Ibid., 65.0 Ibid. 0 Mathieu Vaugeois, ‘Settlement of Disputes at ICAO and Sustainable Development,’ McGill Occasional
Paper Series IV, (2016): 8. 0 According to Article 84 of the Convention the reference to the PCIJ is made. However, the PCIJ
discontinued and is inherited by the ICJ.0 Ibid., Article 8.0 Ibid.
56
The decision of the Council is effective until it is challenged before the ICJ or a tribunal.
In case of appeal, the decision of the ad hoc tribunal or ICJ is final and binding.0 It is interesting
to note that as the appeal against the decision of the Council lies to non-ICAO bodies that are not
under an obligation to respect or follow the findings of the ICAO; this makes the status of the
Council extremely feeble, and states treat the Council with less seriousness.0 To make the
Council’s right of dispute settlement more effective there should be some hierarchical and legal
link between the Council and appeal bodies.
Chapter XVIII also includes relatively rigid sanctions for non-compliance with the
decision given under its provisions. In case of non-compliance by an airline, member states shall
not allow the carrier to pass through airspace.0 However, in case of non-compliance by a state
then her voting power may be suspended.0 The sanction in case of non-compliance by states is of
little consequences. The State, if will not be part of the decision making process especially in
cases of amendment of Chicago Convention, then she has the option not to ratify such
amendments. As in accordance with Article 94, amendments come into force only in respect of
the countries, which have ratified such amendments. The non-compliant state will not fear the
implementation of new legal obligation without her consent. However, the situation will be
different in case of adoption of SARP and annexure by majority of states, as both of these will be
implemented even without the consent of such state.
The two additional multilateral agreements of the Chicago Convention on the exchange
of traffic rights i.e. International Air Transit Agreement and International Air Transport
0 Article 86 of Chicago Convention, 1944.0 Brian F. Havel and Gabriel S. Sanchez, The Principles and Practice of International Aviation Law,
(Cambridge University Press, 2014), 64-66.0 Ibid., Article 87.0 Ibid., Article 88.
57
Agreement,0 provide identical solution regarding the settlement of disputes. According to both
agreements, in case of any disagreement between two or more contracting states pertaining to the
interpretation of the International Air Transit Agreement, settlement should be made through
negotiation, but if the negations fail then provisions of Chapter XVIII of the Convention may be
employed.0
The ICAO can adopt the WTO like mechanism to settle disputes, where only aggrieved
party takes action against the state that fails to comply with decision of the Council or appeal
forums.0 In this case, the decision will be implemented more effectively as the aggrieved state
has a vested interest in the decision.
Many of bilateral transport agreements have nominated the ICAO as the dispute
resolution arbitral or adjudicatory forum.0 However, the newer agreements have abandoned
reference to ICAO in this capacity although some of them gave authority to the President of
ICAO to assist in designating arbitrators.0
In 1957, the Council promulgated Rules for the Settlement of Differences that laid down
the forms of adjudicatory procedures for disputes submitted to it under Chapter XVIII of the
Chicago Convention.0 According to Article 14, the Council can engage in direct negotiations at
any time.0 During such negotiations, the formal complaint mechanism as mentioned in Article 84
0 Transit Agreement was signed at Chicago on December 7, 1944. Transit Agreement grants following freedoms of the air in respect of scheduled international air services: (1). the privilege to fly across its territory without landing; (2). the privilege to land for non-traffic purposes. The privileges of this section shall not be applicable with respect to airports utilized for military purposes to the exclusion of any scheduled international air services. In areas of active hostilities or of military occupation, and in time of war along the supply routes leading to such areas, the exercise of such privileges shall be subject to the approval of the competent military authorities.
0 Article II, Section 2, Transit Agreement, 1944.0 Brian F. Havel and Gabriel S. Sanchez, The Principles and Practice of International Aviation Law,
(Cambridge University Press, 2014), 66.0 Dempsey, “The Role of ICAO,” JALC, no. 52:3 (1987): 560.0 Ibid.0 Ibid.0 Ibid.
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of the Chicago Convention is suspended, although the Council may impose specific limits on
negotiations.0 The Council may render any assistance for the success of negotiations. Article 14
departs from adjudicatory settlement of dispute and emphasizes on mediation, conciliation or
good offices as methods of peaceful settlement of disputes.0
International aviation has witnessed few disputes that have resulted in ad hoc arbitration,
ICAO or ICJ adjudication.0 Some of them have been submitted to arbitration and some of them
been submitted to the Council.0 Twelve disputes have been filed before ICJ.0 Most of the aviation
disputes were resolved through negotiation
Five aviation disputes have been brought before the Council for adjudication.0 The first
dispute submitted before the Council was between Pakistan and India0 on April, 1952 upon
complaint filed by India. India alleged breach of the Chicago Convention and the International
Air Transit Agreement by Pakistan after refusing to permit an Indian Aircraft to fly over its
territory to and from Afghanistan.
0 Ibid.0 Ibid.0 Paul Stephen Dempsey, “Flights of Fancy and Fights of Fury: Arbitration and Adjudication of Commercial
and Political disputes in International Aviation,” Georgia Journal of International and Comparative Law, no. 32: 2 (2004): 234.
0 Ibid.0 ICJ has made important contributions to dispute resolution. However, states often show their reluctance in
approaching ICJ. Though ICAO has universal jurisdiction, relatively small number of States accept the compulsory jurisdiction of ICJ. In ten of the twelve aviation disputes brought before the ICJ, the Court concluded it had no jurisdiction over the parties, and dismissed the cases. In only one of the twelve cases (i.e., Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), •[1998] ICJ Rep 115 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya V United States of America), ICJ reach the merits of the complaint).
0 India V Pakistan (1952) involves Pakistan's refusal to allow Indian commercial aircraft to fly over Pakistan; UK V Spain (1967) involving Spain's restriction of air space at Gibraltar; Pakistan V India (1971) involving India's refusal to allow Pakistani commercial aircraft to fly over India, later appealed to the ICJ; Cuba v. US in 1998 involving the U.S. refusal to allow Cuba's commercial aircraft to fly over the United States; and " US V Fifteen European States (2003) involving EU noise emission regulations.
0 Report of the Council, ICAO Doc. 7367 (A7-P/1) 74-76 (1953).
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The Transit Agreement grants freedom of air to each contracting state in respect of
scheduled international air service. It gives its signatories a privilege to fly across its territory
without landing, and the privilege to land for non-traffic purposes.0 The dispute was settled
through direct negotiations induced by the Council and by June, 1953 both parties had reached
an amicable solution and thus informed the Council.
The second complaint was filed by the UK against Spain in 1967,0 alleging violations of
Article 9 (a) of the Chicago Convention.0 UK alleged that Spain had established a prohibited
zone near Gibraltar. The dispute was deferred sine die0 and was settled by direct negotiations.0
The third complaint was filed by Pakistan against India in February 1971.0 Pakistan had
brought a complaint against India, who has violated provisions of the Chicago Convention 0 and
the Transit Agreement.0 The complaint was based on India’s act of unilaterally suspending
flights made by Pakistani aircrafts over Indian Territory. The suspension was made after
hijacking of Indian aircraft by Indian nationals. The hijackers had taken the aircraft to Pakistani
territory and blew it up, allegedly with the collaboration of Pakistani government.0 India filed
0 Article 1, Section 1, International Transit Agreement, 1944.0 Annual Report of the Council, 1967, ICAO Doc, 8724 (1968).0 Article 9 (a) states that “Each contracting State may, for reasons of areas military necessity or public
safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services, and the aircraft of the other contracting States likewise engaged. Such prohibited areas shall be of reasonable extent and location so as not to interfere unnecessarily with air navigation. Descriptions of such prohibited areas in the territory of a contracting State, as well as any subsequent alterations therein, shall be communicated as soon as possible to the other contracting States and to the International Civil Aviation Organization”.
0 A legislative body adjourns sine die when it adjourns without appointing a day on which to appear or assemble again.
0 Elmar Giemulla and Ludwig Weber, International and EU-Aviation Laws: Selected Issues, (Netherlands: Kluwer law International BV, 2011), 100.
0 [1972] ICJ Rep 46.0 Article 5, Chicago Convention, 1944.0 Article 1, Section 1, International Transit Agreement, 1944.0 Paul Stephen Dempsey, “Flights of Fancy and Fights of Fury: Arbitration and Adjudication of Commercial
and Political disputes in International Aviation,” Georgia Journal of International and Comparative Law, no. 32: 2 (2004):272-273.
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preliminary objections against the jurisdiction of the Council on May 28, 1971.0 India argued that
under the Chicago Convention and the Transit Agreement, the Council was given jurisdiction on
the disagreements relating to the interpretation or application of Convention.0 Further there was
no disagreement between the states and Council had no jurisdiction to entertain a dispute
concerning Tashkent Declaration.0
Pakistan responded that any dispute related to the suspension of the Chicago Convention
or the Transit Agreement should be regarded as a disagreement on the language of the
Convention or Agreement, therefore, it was within the jurisdiction of the Council.0 The Council
affirmed its jurisdiction over Pakistani complaint as a result of which India made an appeal to the
ICJ. The ICJ then confirmed the decision of Council. After ICJ’s decision, both Parties
suspended the proceedings before the Council and settled the dispute through direct negotiation.0
The fourth complaint submitted before the Council was between Cuba and the US in
1996. The complaint was registered by Cuba regarding denial by the US of rights of over-flight
of their aircrafts over US territory, for schedule flights between Cuba and Canada, in violation of
the Chicago Convention and the Transit Agreement.0 Under the Transit Agreement, signatory
nations have the right to have their commercial aircrafts fly over the territory of other signatories.
0 Ibid., 273.0 Article 84-88, Chicago Convention 1944 and Article II section 2, International Transit Agreement, 1944.0 Chicago Convention and the Transit Agreement were suspended in 1965 between the two states and that
air traffic between them was instead governed by the special agreement under the Tashkent Declaration.0 Paul Stephen Dempsey, “Flights of Fancy and Fights of Fury: Arbitration and Adjudication of Commercial
and Political disputes in International Aviation,” Georgia Journal of International and Comparative Law, no. 32: 2 (2004): 274.
0 Ibid., 276.0 Relations between the United States and Cuba disintegrated once Fidel Castro came to power and
nationalized U.S. commercial interests in Cuba. He aligned Cuba with the Soviet Union, invited Soviet missiles in, and used Cuba's armed forces to support emerging Marxist revolutionary movements in Latin America and Africa. In the 1960s, the United States banned Cuban aircraft from U.S. airspace, ostensibly for national security reasons. In 1988, the no-fly prohibition was amended to allow Air Cubana to fly over New York State and to enter US airspace during inclement weather.
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The Council heard both the parties and appointed its President as the Conciliator.0 As a result of
conciliation, both the parties reached a settlement which provided for over-flight rights for
Cuban aircrafts over the US territory subject to some restrictions.0
The final dispute submitted to the Council pertains to the legality of Hushkit regulation of
EU.0 In April 1999, the EU adopted a regulation relating to aircraft noise that imposes design-
based restrictions on aircrafts operating within Europe.0 Aircraft noise standards have been
established on a uniform basis by ICAO.0 The EU member states later said that they wanted to
adopt their own measures due to the slow progress of ICAO. The Regulation has raised various
questions concerning its compatibility with ICAO and international noise standards. It does not
rely on performance standards rather it affected only specified aircraft and engine technology
without referring to noise levels.0
The US initiated a proceeding against fifteen EU member states before the Council on
March 14, 2000. The EU member states responded on July 18, 2000, by submitting preliminary
objections to the jurisdiction of the Council, which were rejected by the Council.0 After the
decision of the Council, EU member states did not exercise their right to appeal before ICJ as
provided in the Chicago Convention. The parties proceed to solve the dispute through
negotiations with the facilitation of the Council.
0 Elmar Giemulla and Ludwig Weber, International and EU-Aviation Laws: Selected Issues, (Netherlands: Kluwer law International BV, 2011), 100.
0 Ibid.0 Ibid.0 Regulation (EC) No. 925/1999.0 Aircraft noise standards are discussed in Annex 16 to the Chicago Convention, 1944.0 The regulation imposes restrictions on a category of aircraft defined as those modified to meet ICAO noise
standards. Expressly included in that category are aircraft fitted with “hushkits”, which are devices fitted to aircraft engines to make them quieter. The category also includes aircraft on which original engines are removed and replaced with new engines, but only if those new engines have a bypass ratio (a particular design standard) of less than 3:0.
0 Preliminary objections were related to the absence of adequate negotiation between the parties, non-exhaustion of local remedies and the scope of requested relief.
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Although, ICAO has been given comprehensive adjudicatory powers by virtue of the
Chicago Convention, yet it has not shown any enthusiasm for exercising them, preferring instead
to use its good offices to bring the parties to a resolution of disputes. Moreover, it may be
pointed out that in none of the abovementioned disputes the Council has given its formal
decision. All of the above disputes were resolved through negotiations and conciliation rather
through adjudication.
PART-II
2.2. Establishment and Structure of the Civil Aviation Authority in Pakistan
Civil Aviation Authorities are responsible for the oversight and regulation of Civil
Aviation in their respective states. Aviation authorities also focus on air safety, security, airspace
policy, efficiency, and sustainability. Keeping in view the need to overview aviation, in Pakistan,
the Civil Aviation Department (CAD) of the Ministry of Defense used to manage civil aviation
activities. On December 7, 1982, the Civil Aviation Authority of Pakistan (PCAA) was
established. The PCAA was not an independent organization, but it was working under the
control of Ministry of Defense. In June, 2013 responsibility of PCAA was assigned to Cabinet
Secretariat (Aviation Division).0
The PCAA was established with the aim to promote regulations of Civil Aviation
Activities and to develop safe and efficient Civil Air Transport Service in Pakistan. The PCAA
underwent the process of restructuring from 2006-10. The restructuring was done to make it
more complaint with standards fixed by the ICAO. The restructuring resulted in better evaluation
0 The Aviation Division has been created vide Government of Pakistan Cabinet Secretariat Letter No.4-8/2013 dated 7th June 2013. This division deals with all matters related to Civil Aviation in the Country. It is headed by Secretary, Aviation Division, assisted by two Joint Secretaries, 4 Deputy Secretaries and 10 Section Officers along with the relevant supporting staff.
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by the Universal Safety Oversight Audit Program (USOAP) of ICAO. The USOAP in June 2011
rated Pakistan above 83% in compliance0, but Pakistan’s average with regard to Organization is
below the global average.0 However, the interesting thing is that Major aviation accidents of Air
Blue (2010) and Bhoja (2012) are not accounted in this evaluation, especially with regard to
reports of these accidents (that will be discussed later). Considering the developments of last five
years, Pakistan’s safety average will have decreased in next evaluation.
The affairs, general direction, and administration of PCAA vest in the CAA Board. The
Board exercises all the powers.0 The Chairman of the Board is the Secretary of the Division, to
whom the affairs of the authority are allocated. The Executive Committee of CAA is the highest
decision-making body and exercises those powers, which are delegated to it by the Authority.
Director General PCAA (DG) is the Chairman of this Executive Committee. The DG is
appointed by the Federal Government who is also executive head of the PCAA. He exercises
such powers that are delegated to him under the PCAA Ordinance or by the Board.
The PCAA Board is assisted by HR and Audit Committee. PCAA Quality Control is
headed by DG and it includes Deputy DG, all Principal Directors. Directors set the macro level
objectives and administer the organizational drive in light of its vision and mission. Adherence to
the core values and principles will help in achieving International Management System
Standards.
2.2.1. Independent Working of the Civil Aviation Authority of Pakistan
0 The world average is 65%. See: ‘Safety Audit Information,’ International Civil Aviation Organization, http://www.icao.int/safety/Pages/default.aspx (accessed Oct. 27, 2015).
0 Ibid., Pakistan’s average was 60% in 2011 in comparison to global average of 65%.0 Section 7, Civil Aviation Authority Ordinance, 1982.
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PCAA not only performs a function of aviation regulator but also the service-provider
function of Air Navigation Services (ANS) and Airport Services. Three of its important functions
are regulatory, air navigation, and airport services.
ANS division is composed of three directorates, i.e., operations directorate, CNS
engineering, and flight calibration directorate. The prime responsibility of these directorates is
the provision of ANS. This division is responsible for air traffic management, provision of
‘search and rescue services’, aeronautical communication, navigation and surveillance services,
aeronautical information service and flight procedure design services within Pakistan airspace
whereas the responsibility for the provision of meteorological services for air navigation rests
with Pakistan meteorological department under an MoU.0
The desirability of autonomy and separation of ANS provision from the regulatory
oversight function is recognized in various ICAO guiding material.0 The service provider and
regulatory functions of PCAA were previously under its own domain, which resulted in
inefficiencies and irregularities.0 In order to ensure the success of aviation safety and security,
functions of regulatory and service provider are now made independent of each other. To resolve
the conflict between the regulator and service provider, the CAA shall split under its DG, into
three entities having autonomous authority. The aviation safety regulator shall be headed by
Deputy Director General (DDG), CAA, the airport services shall be headed by DDG, CAA
0 “About ANS,” Pakistan Civil Aviation Authority, http://www.caapakistan.com.pk/ANS/Ops/ANS-About.aspx (accessed Oct 29, 2015).
0 ICAO Working Paper, Separation of Air Navigation Services (ANS) provision from Regulatory oversight, Conference on the Economics of Airports and Air Navigation services, Montreal (September 15-20, 2008), 2.
0 Wali Mughni, Pakistan’s National Aviation Policy (2015): An unprecedented opportunity for global and regional Aviation Business Entrepreneurs, (July 2-5, 2015) Paper read at 19th Air Transport Research Society World Conference 2015, University Town, Singapore, (2110-14). USA: Air Transport Research Society.
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airport services, and the air navigation services shall be headed by the DDG CAA air navigation
services.
2.2.2. A. Safety Investigation Board
Many countries have separate aviation investigation bodies to ensure free, fair, and
unbiased investigation. The UK has an ‘Air Accidents Investigation Branch’ (AAIB) that
specifically deals with aviation accidents. The UK has a long history of aviation investigation
that dates back to 1912,0 when a report was made about a fatal aviation accident at Brooklands
Aerodrome, Surrey. Soon after, in 1915, the Accident Investigation Branch (AIB) was
established as part of the Royal Flying Corps. Later, at the end of WW I, it was placed under the
Ministry of Air after the department of civil aviation was setup. From the beginning, AAIB was
empowered to investigate both military and civilian accidents and still continue to do so. After
WW II, in 1946, the ministry of civil aviation was established, and AIB was transferred to the
newly created ministry. Later, in 1983 it was transferred to transport department and in 1987
AIB was renamed as AAIB. The forty-nine-member board, is an independent body headed by the
chief inspector of air accidents that investigates ‘accidents’0 and ‘serious incidents related to
aviation.’0 The members of the AAIB are divided three heads; chief inspector of air accidents,
Deputy Chief Inspector of air accidents, and six teams of Inspectors. The inspectors fall into
further three categories: operations, engineering, and flight recorder.
Similarly, the US has a five-member NTSB that investigates civil transport accidents. It
was established in 1967, but was initially placed under the Department of Transport (herein after
0 As in 1921 ‘Royal Aero Club’ published a report about fatal accident at Brooklands Aerodrome, Surrey, UK
0 Accidents that results into fatal injuries. 0 Events that does not result into major or fatal injuries, but are important.
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referred as ‘DoT’). It reported to the DoT for administrative issues, and the Federal Aviation
Authority (hereinafter referred as ‘FAA’) for investigation purposes. However, to avoid conflict,
in 1975 the NTSB was made an independent federal agency. It is an autonomous body, but its
members are nominated by President, and confirmed by the Senate for five years. Though, this is
not great process to continue a fair and free investigation board, but safeguards are provided to
keep it balanced, for example, not more than three members can be from the same party, and at
least three members shall be appointed on technical and professional basis.0
However, in Pakistan SIB is under DG. In National Aviation Policy, 20150 it is proposed
that SIB should be made independent and it be responsible to the ministry of aviation to ensure
unbiased investigations. Under this regime, the SIB would carry out accident investigations
pertaining to accidents, near misses, safety violations and any crash outside Pakistan involving a
Pakistan registered aircraft outside Pakistan. Adequate financial resources shall be provided to
SIB through ministry of aviation as a separate head from the budget. It is recognized that trained
and qualified personnel are required for SIB’s efficient and effective working.0 Normally,
aviation authority performs three important functions that include regulation, air navigation
services, and airport services. Therefore, PCAA should also ensure separation of all three
functions and strengthen those in order to achieve the standards set by ICAO.
There was an attempt from opposition benches in the National Assembly to introduce a
National Air Transportation Safety Board Act, 2014, but it was not taken up. A Bill was 0 49 US Code 1111.0 Prime Minister Nawaz Sharif launched the National Aviation Policy in March, 2015. The policy has been
announced after a gap of 15 years keeping in view the deteriorating growth of the aviation sector that stood at 0.01 comparing India at 1.5 per cent, Thailand at 9.0 per cent, Malaysia 3.6 per cent and Philippines 2.4 per cent. The policy aims at providing level playing field for national airlines and liberalize aviation sector in Pakistan by allowing market forces to determine the price, quality, frequency and range of air services options. The policy marks an important milestone in Pakistan’s aviation history, where the government along with all stakeholders, representing various segments of the aviation industry, collectively developed a comprehensive and forward looking document.
0 Government of Pakistan, National Aviation Policy, 2015-A Catalyst for Nation’s Socio-Economic Wellbeing, Islamabad: Aviation Division, 2015, 21-22.
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presented in the National Assembly of Pakistan about the constitution of independent NTSB.
Section 4 of the proposed Bill empowers the Prime Minister to constitute NTSB in consultation
with parliamentary committee.0 The Bill suggested that the NTSB should consist of five
members, including three technical members, one nominee of CAA, and the Chairman selected
on basis of his expertise in aviation investigation. The Bill proposed to give power to NTSB to
formulate guidelines for safety of air transport, to decide standard of compensation of aircraft
accidents, to carry out investigation, to formulate rules regarding fitness of pilots, and to ensure
overall aviation safety. The Bill attempts to empower the NTSB with fund that will be supported
by the grants from the Federal Government, Provincial Government and Local Government,
loans, and foreign aid. Section 15 of the proposed Bill calls for the audit of the account books of
the NTSB.
According to the proposed Bill, the NTSB will not have exclusive jurisdiction to
investigate air accidents, but will have priority over other investigations.0 The Chairman of the
NTSB will be Judge of the Courts of Sessions with regard to investigation, trial, summoning of
witness, and recording of statement. The NTSB will have powers to inspect any document,
control any facility, enter any property, determine the method of testing, and use available
services, equipment, and employees of any Ministry, division, department and organization of
Federal or Provincial Government.
Though proposed that the NTSB is under an obligation to provide information to public,
but it can withhold any information in accordance with provision of the Bill, for example, trade
secrets.0 It was proposed in the Bill that the NTSB will submit an annual report in the National
0 According to Section 2 of the proposed Bill, the parliamentary committee will have four members each from Senate and National Assembly that will be nominated by Chairman Senate and Speaker National Assembly respectively. The Members will equally represent treasury and opposition benches.
0 Ibid., Section 8.0 Ibid., Section 11.
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Assembly carrying all important information regarding aircraft incident and accidents in Pakistan
in a given year, safety recommendations, and review of air accident prevention by Federal and
Provincial Governments.
The proposed Bill, in its present shape, will not help in achieving the goal of free, fair,
and transparent investigation free from political influence. It may not be approved by the
Parliament, but there sure is need to formulate law for the establishment of an SIB.
2.2.2. B. Functions and Powers of the Civil Aviation Authority of Pakistan
The PCAA is responsible for regulation of civil aviation activities in the country and it
monitors all flying activities in accordance with the provisions of ICAO.0
Civil Aviation Authority Ordinance (hereinafter referred as ‘Ordinance’), 1982, stipulates
the responsibilities of PCAA to promote air transport system in accordance with ICAO
Annexures and other ICAO documents. Under the Ordinance, the Authority prepares a five-years
plan for the development of infrastructure in order to promote safe and secure civil air transport
system.0 PCAA is also authorized to prepare schemes relating to the provision of civil airports
and aerodromes0 in the country.0 It has the authority to frame schemes for the provision of air
traffic and navigational services to aircrafts.0 Moreover, the framework regarding the provision
of communication services is under the framework of PCAA.0
The PCAA has a power to frame outlines in respect of flight inspection and aeronautical
services to all registered aircrafts.0 Provision of search and rescue services at all airports is the 0 Annex 6, Part I & II, Chicago Convention, 1944.0 Section 5, 2, Civil Aviation Authority Ordinance, 1982. 0 Aerodromes mean that area of land or water, which is commonly used for affording facilities for landing
and departure of aircraft. It includes all buildings, sheds and vessels.0 Section 5 (3) (i) Civil Aviation Authority Ordinance, 1982.0 Ibid., Section 5 (3) (ii), and (iii). 0 Ibid., Section 5 (3) (iv).0 Section 5 (3) (v), Civil Aviation Authority Ordinance, 1982.
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responsibility of the PCAA.0 The Ordinance empowers the PCAA to conduct surveys, studies,
experiments and research.0 It is authorized to approve schemes for developmental work.0 PCAA
and DG, CAA may exercises abovementioned powers under Civil Aviation Rules, 1978 and
Schedule to Aircraft Rules 1937. All civil airports, routes, aerodromes are controlled and
managed by the PCAA.0
It has the power of holding negotiations with foreign countries to settle technical matters
arising out of bilateral air transport agreements.0 Under the Civil Aviation Rules (CAR), 1994,
the PCAA is authorized to investigate air accidents.0 In serious cases the Government can
constitute a Board of Inquiry (BoI).0 The BoI is headed by a chairman and its other members are
appointed by Federal Government.0 The CAR also requires the pilot to take into account the
prevailing weather conditions and other alternatives in case the flight cannot be completed as
planned.0
The DG-PCAA is empowered to issue a certificate of airworthiness after assuring that the
engine and airframe meet the required standards.0 Under Rule 187 of CAR, DG-PCAA has
authority to issue Air Operations Certificate.0
0 Ibid., Section 5 (3) (vi), (vii).0 Ibid., Section 5 (4).0 Ibid.0 Ibid., Section 6.0 Ibid., Section 6 (2).0 Section 4, Rule 273, CAR, 1994.0 Ibid., Section 6, Rule 282.0 Ibid.0 Ibid., Part XIV, Section 2, Rule 257.0 Ibid., Part IV, Section 1, Rule 18.0 Section 3, Rule 187 states that “(1)The Director-General shall issue or renew air operator certificates under
this Part, when he is satisfied that an applicant has demonstrated that his equipment, organization, staffing, maintenance And other arrangements are adequate to secure the safe operation of the types of aircraft to be included in the certificate, on such flights as are to be authorized, and that the applicant can establish and maintain a satisfactory method of supervision of these flight operations. For this purpose, an applicant shall supply such information as the Director-General may require. (2) An air operator certificate issued under this Part shall be subject to such conditions as the Director-General may include in the certificate in the interests of flight safety.”
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In UK, the Civil Aviation Act 1982 is the source of discharging
her ICAO responsibilities. This legislation required the creation of the CAA. The Air Navigation
Order (ANO) is the law that empowers to carry out its duties. The CAA in UK is also divided
into three main categories i.e. Safety and Airspace Regulation Group (SARG),0 Regulatory
Policy Group (RPG),0 and Consumer Protection Group.0
In the US, FAA is the national aviation authority, which is authorized to regulate and
oversee all aspects of American Civil Aviation.0 Major functions of the FAA are to regulate
commercial space transportation, regulation of air navigation facilities, encouragement for
developing new aviation technology, regulation of civil aviation, development of air traffic
control and national airspace system, and conduction of programs for the control of air craft
noise.
In view of the above, it may be pointed out that the civil aviation authority is basically a
regulatory body that regulates all aspects of civil aviation of a country. Civil aviation authority is
created by legislation of the respective countries in accordance with the provisions of ICAO and
its Annexure.
0 The role of SARG is to ensure that UK, civil aviation is set in more cooperative manner. CAA must satisfy that its air crafts are properly designed and manufactured. Its flights crew is fit and competent and air traffic services should meet required safety standards. SARG also employs a team of specialists to monitor the activities of this complex. The said team has large range of skills. This group is also responsible for planning and regulation of UK Airspace. Staff includes Military and Civilian experts having the experience of military aviation.
0 Regulatory Policy Group (RPG), which is a new unit and used to provide policy advice to the colleagues across CAA. This group has four core functions. First, it maintains the economic regulation of three designated airports. Secondly it helps to protect consumers in the cases of cancellation of flights. Thirdly it provides experts policy and economic advice and lastly, it collect and analyze aviation statics.
0 Consumer Protection Group, which regulate the finances and fitness travel of organizers and manages the UK’s largest system of consumer protection. It enforces European Council requirements in relation to their finances, nationality and liability. It also helps in enforcement of other legal requirements and code of practices for protection of customers.
0 The Federal Aviation Act of 1958 created the organization under the name Federal Aviation Agency. The agency adopted its current name in 1966 when it became a part of the US Department of Transportation.
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The role of PCAA is similar to that of FAA in the US and the UK CAA, i.e., to promote
air navigation and airport services and further to ensure safe and secure air transport service.
Both the UK’s CAA and the US’s FAA have independent investigation system unlike Pakistan,
but after the announcement of National Aviation Policy, 2015 a framework has been given for
the formation of SIB that will report to the Ministry of Aviation in order to ensure free and fair
investigations.
Similarly, it is important to mention that though the Section 27 of the Ordinance
empowers the PCAA to make regulations that are necessary to expediently carry out the
purposes of the Ordinance, but these regulations will not have statutory power. The courts in
Pakistan have time and again asserted and affirmed the view that PCAA may make regulations in
accordance with Section 27 of the Ordinance with regard to the smooth implementation of
Ordinance, but that would be a toothless regulation.0 Thus, it is important to empower PCAA to
make effective and binding regulations to ensure effective implementation of the Ordinance.
0 Muhammad Iqbal Chaudhary, etc. v. Civil Aviation Authority etc. (1995 PLC (CS) 421); Mrs. Anisa Rehman v. PIAC (1994 SCMR 2232) and Civil Aviation Authority Islamabad and others v. Union of Civil Aviation Employees and another (1997 PLC 653).
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CHAPTER THREE
IMPACT OF AVIATION EMISSION ON ENVIRONMENT
3.1. Introduction
Global warming, climatic changes, and environmental pollution are major issues that are
considered as threats to the very existence of human race. It is a well-known and an
acknowledged fact that man-made emissions of greenhouse gases (GHG) are causing this
climatic change. It is the price that human race is paying for industrial growth and development.
As it was discussed earlier, aviation industry is progressing by leaps and bounds and is
expected to grow even further. The growth comes with a price, as growth inevitably leads to
more fuel consumption that causes increase in carbon and GHG emission. In 2015, out of thirty-
six billion tons of CO2 emission produced by all human activity, 770 million tons were produced
by aviation industry.0 Hence, aviation industry is responsible for producing two percent of all
human-induced carbon emission. However, its contribution is far less than that of road transport
i.e. emission from road transport amounts to 74% of all carbon emissions by transport sector
(transport industry is responsible for 23% of worlds’ energy related carbon emissions) in
comparison to only 12% produced by air transport.0
As aviation industry is expected to grow even further in coming years, it is also expected
that aviation fuel consumption will double by 2030, and as a result its adverse effect on
environment will also increase considerably. The Intergovernmental Panel on Climate Change
0 “Fact and Figures,” Air Transport Action Group, http://www.atag.org/facts-and-figures.html (accessed May 10, 2016).
0 Ibid.
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(IPPC) expects that aviation industry’s share in CO2 emission will increase 5% by 2050,0 and
according to ICAO aviation emission will grow around 300-700%,0 if due actions are not taken
to curb the emission.
3. 2. Impact of Civil Aviation on Environment
It is important to determine how aviation industry contributes in environmental
degradation. Aircrafts emit GHG, CO2 and water vapors. They also emit nitric oxide, nitrogen
dioxide, sulfur oxides, and soot. As it is mentioned above, carbon emission from aviation sector
is less than that of road transport, but it is far more damaging. This is because most commercial
airliners fly at altitudes of 9–12 km/30,000–39,000 feet (i.e. stratosphere), and emit gases
directly into the upper troposphere and lower stratosphere, where they have an immense impact
on atmospheric composition. These emissions alter the concentration of atmospheric GHG,
including CO2, ozone, and methane that may increase cirrus cloudiness which contribute to
climate change. Scientists suggest carbon emission from aviation should be multiplied by 1.9
times to take account of the added impact it has at such high altitude, which would then be at a
far greater level.
Similarly, aviation led emissions are causing damage to ozone layer. Ozone is a shield on
the surface of the earth that saves it from harmful ultraviolet radiation. Aircrafts emit NOx
(mono-nitrogen oxides NO and NO2) in the upper troposphere and the lower stratosphere. At
this level Ozone is expected to increase in response to NOx and methane is expected to decrease.
0 The IPPC claims that in worst case scenario it may increase to 15%. See: “Aviation and Climate Change,” Aviation Benefit, http://aviationbenefits.org/environmental-efficiency/aviation-and-climate-change/ (accessed Jan. 10, 2016).
0 “Reducing Emissions from Aviation,” European Commission-Climate Action, http://ec.europa.eu/clima/policies/transport/aviation/index_en.htm (accessed Mar. 10, 2016).
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However, at higher altitude, increase in NOx leads to decrease in the stratospheric ozone layer.
Also, NOx remains for longer period at higher altitudes.0
3.2.1. Calculating Carbon Footprint of Aircrafts
Interestingly, it is comparatively easier to calculate the carbon footprint of aircrafts.
Carbon emissions are easy to calculate, if data about fuel consumption during the flight is
known. The ICAO has developed a distance based methodology to calculate CO2 emissions
from airplanes.0 The methodology was formulated for carbon offsetting program. The
methodology uses simple data to calculate CO2 emission. It includes factors such as aircraft
types, route specific data, passenger load factors and cargo carried. This methodology uses the
industry averages to calculate the emissions footprints, but it is to be kept in mind that these
variables continually change with each flight and it is not possible to calculate it on flight
specific basis.
The ICAO states that their methodology uses these factors to produce more accurate
flight emissions.0 The ICAO calculator requires passenger to enter the name city of origin and
destination.0 The user then has to enter the number of passenger, type of ticket, whether it is
0 M. Gauss and et al, “Impact of aircraft NOx emissions on the atmosphere – tradeoffs to reduce the impact,” Atmospheric Chemistry and Physics, no. 6 (2006):1529 http://www.atmos-chem-phys.org/6/1529/2006/acp-6-1529-2006.pdf (accessed May 10, 2015)
0 ICAO Document, Carbon Emissions Calculator Methodology (Version 7), June 2014. Retrieved from: http://www.icao.int/environmental-protection/CarbonOffset/Documents/Methodology%20ICAO%20Carbon%20Calculator_v7-2014.pdf (accessed Aug. 1, 2014).
0 Ibid.0 When the user will enter the city of origin and destination, the ICAO database will search for all flights,
direct or non-direct, serving that city-pair. The methodology will not calculate the connecting flight. The calculator calculates the trip distance by using Location Indicators database which contains the longitude and latitude coordinates for the airports. From these coordinates the Great Circle Distance is then calculated and corrected by a factor depending on the distance between the two airports concerned. See: ICAO Document, Carbon Emissions Calculator Methodology (Version 7), 2014. Retrieved from: http://www.icao.int/environmental-protection/CarbonOffset/Documents/Methodology%20ICAO%20Carbon%20Calculator_v7-2014.pdf (accessed Aug. 1, 2014).
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economy, business or first class. The last information required is whether the trip is one way or a
round trip. The information will produce the amount of carbon emission produced. For example,
if a person makes a round trip from Lahore (city of origin) to Islamabad (city of destination) in
an economy class, then according to ICAO calculator, a person generates 69.88 kilograms of
CO2.
This information is important for offsetting carbon emission and mitigating
environmental damages. However, for offsetting instead of individual carbon emission, the total
emission by an aircraft is calculated that will be discussed later in this chapter.
3.2.2. Goals to Cut Carbon Emission from International Civil Aviation
It is important to note that the Kyoto Protocol,0 that came into force in 2005, laid
responsibility on the developed countries to reduce emissions from the aviation fuels. Similarly,
ICAO took notice of the fact that scientific research calls for keeping the global temperature
under 2 degrees Celsius.0
In 2010, the ICAO Resolution0 on climate change laid down three ambitious short term,
medium term and long term goals. The short term goal was to achieve annual average 1.5 %
improvement in fuel between 2010 and 2020. The Midterm goal is to achieve Carbon Neutral
Growth from 2020 (CNG-2020). And finally the long term goal is to achieve 50 % reduction in
carbon emission to 2005 level by 2050. These goals are to be achieved by implementing the
multi-pronged approaches that are discussed later in this chapter. The Resolution also called for
0 Article 2.2 of the Kyoto Protocol states that ‘The Parties included in Annex I shall pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation and marine bunker fuels, working through the International Civil Aviation Organization and the International Maritime Organization, respectively.
0 A 37-19.0 Ibid.
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developing carbon output scheme, transfer of technology and financial assistance to developing
states, and exemption for countries
3.3. Treaty Regime to Control Carbon Emission from Aviation
There is a continuous struggle between development and environmental protection. There
is a struggle to ensure the development of different sectors and to mitigate the negative effect of
development on the environment. This continuous struggle led to the emergence of concept of
sustainable development, i.e., meeting the needs of the present, without compromising the ability
of future generations to meet their needs.
Different global initiatives are underway to combat carbon emissions from different
sources. To achieve these goals, it is also necessary to take initiatives to reduce carbon
emissions from aviation. However, ICAO is the focal organization to draft and implement
policies to reduce carbon emission from aviation and mitigate the damage caused to environment
due to these emissions. ICAO is working on multi-pronged strategy that not only includes
capping carbon emission, manufacturing fuel efficient aircraft, operational management,
introducing alternative aviation fuel, taxing the fuel, and improvement of technology, standards,
and operations, but also devise a on Global Market Based Measure (hereinafter refereed as
‘MBM’) to reduce emissions.0 The Assembly noted that it is important to devise such
comprehensive strategy to achieve sustainable growth of aviation. The policy should control the
emissions, but should not negatively affect the aviation industry especially in developing
economies.0 Any policy devised without taking in consideration the interest of aviation sector in
not sustainable. Therefore, the policy should be realistic, achievable, and effective.
0 A 37-19.0 Ibid., 3(b).
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In 1983, ICAO established the Committee on Aviation Environmental Protection
(CAEP)0 to assists the Council in articulating strategies, and adopting new standards and SARPs
related to impact of aviation environmental that include issues relate to aircraft noise and carbon
emissions.0 Out of the three working groups0 of CAEP Working Group Three (WG3) deals with
issues of emission. Similarly, CAEP has a special Technical Task Force that is working on
Global MBM that is discussed later in the chapter.
3.3.1. Resolution A38-18
In October 2013, the ICAO Assembly adopted resolution A38-18 that laid down ICAO’s
aviation policy and climate change policy. The Resolution reaffirms the resolve to develop
aviation in sustainable manner and recognizes the right of nondiscrimination that gives equal
opportunity to all states to develop aviation. The Resolution urged ICAO to continue its
leadership role on environmental issues and to facilitate states in reducing carbon emissions from
international aviation. Commitment was also made that the ICAO and its member states would
work to achieve a medium term global goal of keeping the global net CO2 emission from
aviation at the same level.0
The Resolution reaffirms the earlier calls for adoption of MBM for international
aviation,0 and Common but Differentiated Responsibility (CBDR) for developing and developed
0 CAEP is composed of twenty-four members states from all regions of the world and fifteen observers. Twenty-four members states are Argentina, Australia, Brazil, Canada, China, Egypt, France, Germany, India, Indonesia, Italy, Japan, Netherlands, Poland, Russian, Singapore, South Africa, Spain, Sweden, Switzerland, Ukraine, UAE, UK, and US. And 15 observers include 5 States (Greece, Norway, Peru, Saudi Arabia, and Turkey) and 10 Organizations (ACAC, ACI, CANSO, EU, IATA, IBAC, ICCAIA, ICSA, IFALPA, and UNFCCC). More than six hundred experts are involved in CAEP activities and working groups.
0 “Committee on Aviation Environmental Protection (CAEP),” International Civil Aviation Organization, http://www.icao.int/environmental-protection/pages/CAEP.aspx (accessed Jan. 1, 2016).
0 The other two working groups worked on aircraft noise technical issues, and airports and operations. 0 Para 7 of A38-18.0 A37-19
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countries. CBDR is important to include more states with different levels of accountability.
Lastly, the Resolution reiterates the call for implementing a mechanism that would cap carbon
emission without negatively impacting growth.0
3.3.2. United Nations Framework Conference on Climate Change (2015)
To control climate change and ensure sustainable development, aviation cannot work in
isolation, but should be part of ongoing efforts. Similar resolve was reiterated in United Nations
Climate Change Conference (UNFCCC), 2015, that was held in Paris, also known as the Paris
Conference. ICAO proactively participated in this Conference that led to the Paris Agreement
and subsequently ICAO Council issued a Declaration on International Aviation and Climate
Change on November 18, 2015.0 Later, ICAO retreated its views in its statement to the 43rd
session of the UNFCCC Subsidiary Body for Scientific and Technological Advice0. The Council
urged ICAO to keep on playing a leadership role in reducing carbon emission from aviation. The
Declaration also recognized the efforts and commitments of member states in adopting different
strategies and technologies to reduce global aviation. It reiterated the Council’s decision to adopt
a global marketing measure scheme for international aviation and implement it from 2020 in the
Assembly’s 39th Session in 2016. The Declaration also confirms the 2016 that global CO2
standard for aircrafts will be adopted.
Later, the Conference was attended by 196 parties and resulted in the Paris Agreement.
The Paris Agreement is a universal agreement that aims at reduction of climate change. The
0 Para 3 of A38-180 ICAO Council Declaration on International Aviation and Climate Change (November 18, 2015). Retrieved
from http://www.icao.int/environmental-protection/Pages/cop21.aspx (accessed Jan. 2, 2016).0 Statement by the International Civil Aviation Organization (ICAO), to the Forty-third Session of the
UNFCCC Subsidiary Body for Scientific and Technological Advice (SBSTA43) Dec. 1-4, 2015- Paris, France. Retrieved from http://www.icao.int/environmental-protection/Documents/STATEMENTS/SBSTA43%20ICAO%20statement_Final.revised.pdf (accessed Jan. 2, 2016).
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Agreement will be legally binding after fifty-five states producing 55% of global emissions will
ratify and enter into another agreement in New York between April 2016 and April 2017. The
Agreement was opened for signature on Earth Day (April 21, 2016) and was signed by 177
states, but only fifteen states ratified till the (May 1, 2016). The Agreement is aimed at reducing
carbon emission and keeping global warming below 2 degrees Celsius0. Though, the Paris
Agreement did not make any direct mention of international aviation, but it still expresses global
commitment to reduce emission.
3.3.3. 10th Meeting of the Committee on Aviation Environmental
Protection (CAEP/10)
The 10th meeting of the CAEP was held at Montreal on February 1-12, 2016. An
important decision was taken by the states on the recommendation of 170 international experts
regarding improvement of aircraft technology. It was important to improve standards of large
aircrafts as more than 90% of international aviation emission is result of operation of aircrafts
that weigh over 60 tons.0
States formulated first ever global carbon emission standards for aircrafts that will be
applicable on all new models of small and large aircrafts launched after 2020.0 The standards call
for phasing out of older aircrafts from 2023, and new deliveries of older aircrafts should adhere
to new standards from 2023. Also, the CAEP recommended that aircrafts not complying with set
standards should be cut-off in 2028. After approval from the Council in Fall-2016, these
0 Scientist for the long time demanded to reduce the global warming below less than 2° Celsius and IPCC claims that global warming of more than 2° Celsius would have serious consequences and to achieve this target, scientist estimate that GHG emissions need to be reduced.
0 “New ICAO Aircraft CO2 Standard One Step Closer to Final Adoption,” International Civil Aviation Organization, (Montreal, Feb. 8, 2016). http://www.icao.int/Newsroom/Pages/New-ICAO-Aircraft-CO2-Standard-One-Step-Closer-To-Final-Adoption.aspx (accessed Feb. 15, 2016).
0 Ibid.
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standards will be mandatory for all states to follow.0 The new standards would help to reduce
300-650 million tons0 of carbon emissions between 2020 and 2040.
However, mere setting or making standards are not enough. It is important to lay down
the effective policies to control emission and the mechanisms to offset carbon. So, in next part
the consequences for polluters and the policy to control the emissions are discussed.
3.4. Controlling Carbon Emission
There should be some consequences for polluters to make them realize the environmental
damage and adverse effects of their activities and to motivate them to rationally use the
environment and natural resources. Furthermore, there should be some incentives for non-
polluters to motivate polluters to minimize their emissions. There are many initiatives to control
and cap carbon emissions. Initiatives like better and organized operations, use of alternative
fuels, better aircrafts, and better regulations are some important methods to control carbon
emissions. However, there is another important MBM to cap and control carbon emissions. In
this section we will discuss these different methods to control carbon emission, the best possible
and effective method to reduce the effects of climate change in accordance with global
aspiration, ways to keep the carbon emission at 2% and neutralize it after 2020. However, first
the analysis of the EU’s trading system will be carried out to understand the practical aspect of
the system.
0 Ibid.0 According to White House fact sheet the reduction will be closer to six hundred and fifty Million tons, but
according to ‘Transport and Environment’, an international environment group, the reduction will be closer to three hundred million tons.
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3.4.1. European Union Emissions Trading Scheme
The EU Emissions Trading System (ETS) is a foundation of the EU's policy to combat
adverse effect of climate change. It is cost effective and is a basic tool for reducing GHG
emissions. The ETS covers more than eleven thousand power stations and industrial plants0in
thirty-one states0.
The ETS follows the ‘cap and trade’ (hereinafter referred as ‘C&T’) principle, whereby
companies receive or buy emission allowances that they can exchange or trade with others.
Companies can buy international credits from projects that save on their emission limits. The
total number of permits are limited that ensure that available allowances have value. At the end
of the year, a company must submit allowances that cover all its emissions. In case a company
fails to produce enough allowances then they have to face heavy penalties. However, a company
can save its allowances to use for future needs.
The mechanism provides enough flexibility so that emissions are reduced in a very cost
effective way. The high cost of carbon promotes investment in clean, low-carbon technologies.
In allowing companies to buy international credits, the ETS also acts as a major driver of
investment in clean technologies and low-carbon solutions, particularly in developing countries.
Initially, aviation emission was excluded from the ETS,0 but in November 2008 the
European Parliament and Council through a Directive0 included aviation activities in the ETS for
GHG emission allowance trading within the Community. The Council stressed that the EU is
0 “The EU Emissions Trading System (EU ETS),” European Commission-Climate Action, http://ec.europa.eu/clima/policies/ets/index_en.htm (accessed Dec. 10, 2015).
0 EU-ETS operates in the twenty-eight EU states and in three European Economic Area & European Free Trade Association (EEA-EFTA) states i.e., Iceland, Liechtenstein and Norway.
0 Directive 2003/87/EC (establishing a scheme for greenhouse gas emission allowance trading within the Community).
0 Directive 2008/101/EC (amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community).
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committed to converting Europe into a highly energy-efficient and low GHG-emitting economy.0
The EU is committed to 20% reduction in its GHG emissions by 2020 from the level of 2005,
which is a more ambitious goal than ICAO’s goal.0 It also aims to cut emission by 43% till
2030.0
According to the Directive, permits will be needed for all emissions from flights
outbound and inbound to an airport in the EU. The EU will monitor CO2 emissions and will use
the formula of ‘Fuel consumption × emission factor’ for calculations.0 Fuel consumption
includes the fuel auxiliary power unit.0
The actual fuel consumed by each flight will be used for calculating the formula: Amount
of fuel contained in aircraft tanks once fuel uplift for the flight is complete + fuel uplift for that
subsequent flight’.0 It is not always possible to get actual data; in this case the Directive provides
alternative solution of using standardized tiered method to estimate average fuel consumption.0
Each aircraft operator will report the emissions in accordance with Article 14(3) of the
Directive.0 The operator should provide data identifying the aircraft operator and this should
include the name of the aircraft operator, its administering Member State, its address0, the
aircraft registration numbers and types of aircraft, the number and issuing authority of the air
operator certificate and operating license, contact details for a contact person, and name of the
aircraft owner.0
0 Directive 2008/101/EC. 0 See for further discussion, 3.4.4. ICAO’s Strategy to Adopt the Best Market Based Mechanism.0 “The EU Emissions Trading System (EU ETS),” European Commission-Climate Action,
http://ec.europa.eu/clima/policies/ets/index_en.htm (accessed Dec. 10, 2015).0 Directive 2008/101/EC0 Ibid.0 In cases where data of actual fuel consumption is not available then a standardized tiered method shall be
used to estimate fuel consumption data based on best available information. (See: Directive 2008/101/EC)0 Directive 2008/101/EC0 Ibid.0 The Address including postcode, country and, its contact address in the administering Member States.0 Directive 2008/101/EC
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The report should also include each type of fuel for which emissions are calculated and
that should include information about fuel consumption, emission factor, total aggregate
emissions from all flights, aggregate emissions from all flights that departed from an aerodrome
situated in the territory of a member state and arrived at an aerodrome situated in the territory of
the same member state, all other flights undertaken during the period covered by the report,
aggregate emissions from all flights that are either departed from each Member State or arrived
in each member state from a third country.0
The Directive was applicable to all flights regardless of the country of registration of
operator. It faced resistance from outside of the EU, especially the BRIC0 countries. Some
countries in particular showed more resistance and warned of retaliatory measures.0 The
resistance forced the EU to review its decision and the Directive was amended to be
implemented only on flights that originate and end in the EU. Additionally, the EU, in light of
ICAO’s commitment to design and implement a globally accepted MBM to cap carbon emission
from aviation sector, took a step that is termed as ‘stop the clock’. Therefore, the EU announced
to reconsider its decision after the ICAO’s decision on Fall-2016, but so far no action is
announced.
The ETS is facing an uncertain future, because its fate is dependent upon the ICAO
decision. Only the ICAO decision can help predict the fate of ETS, that is whether they would
remain limited to the EU, or after amendments in light of the ICAO decision, would be
implemented on all flights regardless of their origin.
0 Ibid.0 Brazil, Russia, India and China are considered as emerging economic powers and are collectively known
as BRIC. 0 Andreas Arvanitakis and Peter Hind, “Designing a Market-Based Measure for International,” FNI Climate
Policy Perspectives. 14 (2014):4, http://www.fni.no/pdf/FNI-Climate-Policy-Perspectives-14.pdf (accessed Nov. 10, 2015).
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However, there are few lessons that the ICAO can learn from the ETS to ensure and
implement a more effective global regime. As discussed above, the ETS adopted a simple,
effective, and accurate MRV system0 that could be emulated with more elaborations. The ETS
excluded very small emitters, making it an easier exercise in administrative perspective. The
ETS followed the complex grandfathering system for allocating allowances,0 but the ICAO has
to structure more convenient method to distribute allowances.
3. 4.2. Market Based Mechanism
The ETS or C&T schemes intend to make investment in clean technologies by imposing
certain charge or fee on GHG emissions. De-carbonizing and capping carbon is important and
according to economists the best way to achieve this objective is through market forces. Market
forces are effective, flexible, and alternate methods for capping carbon emissions. In case of
aviation sector three types of MBM are discussed that include; levies, emissions trading, and
offsetting.
It is important to note that though other measures are also important, but MBM is
expected to be most effective in controlling carbon emissions. The effectiveness of the MBM is
more than combined effect of technological and infrastructural improvements.0 It is recorded that
infrastructural and technical operations can only slow down the growth of emission.0
The first mode of aviation related MBM, i.e., ‘levies’ is either in the form of ‘tax’ or
‘charge’. The difference between the two lies in the fact that ‘levies’ in case of ‘tax’ collects
0 The amount of carbon emission is calculated by the fuel burn. 0 Grandfathering system is based on revenue-ton kilometers as a proxy for measuring market share.0 See Annex II for the graphical description of the effect of different measures in the reduction of carbon
emission from aviation.0 Andreas Arvanitakis and Peter Hind, “Designing a Market-Based Measure for International,” FNI Climate
Policy Perspectives. 14 (2014):3, http://www.fni.no/pdf/FNI-Climate-Policy-Perspectives-14.pdf (accessed Nov. 10, 2015).
85
revenues from a specific activity (in this case aviation) are then pooled in with revenue from
other sources.0 However, in case of ‘charge’ the revenue is collected from a specific activity for
providing facilities related to the same activity.
The second mode of aviation related MBM, i.e., ‘emission trading’ is related to the ‘cap’
scheme. In this case, a maximum level of emission is fixed for a particular jurisdiction or sector
and then units are created equal to the size of the cap, and then these are distributed to polluters.
In a way, a permit is issued to industries to emit a certain level of emission. The polluter has to
obtain and pay for these permits.0 This system is effective as the overall cap is constant and helps
in keeping the pollution at certain level.
The last mode of aviation related MBM is ‘offsetting’ that gives opportunity to polluter
not to reduce its own emission but reducing emissions in another sector or location. It is
important to note that to protect environment the only thing necessary is overall reduction of
emissions regardless of the fact that reduction is from which sector. In case of aviation, offsetting
is considered as more effective than reducing emission in aviation sector. Many airlines are
already operating voluntary offsetting programs, but there is a need of clear and coherent
program. Quality Standards are necessary to be established to ensure the correct offsetting of
emissions, otherwise it would be ineffective.
4.4.3. Offsetting Program
Offsetting is similar to the concept of compensation that it is necessary to compensate the
damage done to the environment by balancing or canceling. In other words, it is an effort to
0 Environment Branch, Air Transport Bureau, International Civil Aviation Organization, An introduction to market-based measures (MBMs), http://www.icao.int/Meetings/EnvironmentalWorkshops/Documents/2014-Kenya/5-4_Introduction-MBMs.pdf (accessed Nov. 9, 2015).
0 Ibid.
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neutralize the effect of carbon on the environment. According to the idea of offsetting, air
carriers can compensate for the emissions that are result of aviation, by assisting or helping the
reduction of emission in other sectors. As a result, collective emissions would reduce and
consequently overall emissions would also reduce, thus the adverse effects of climate change
could be controlled.
The air carriers can purchase either carbon or other GHG from other sectors, industries in
other countries to offset the emissions. Offsets can either be brought from international market
under the Kyoto Protocol, or from specialized offset providers or carbon brokers.0 The buyer of
the offset receives a certificate from the seller that presents the record providing details about the
project and the amount of CO2 or other GHG reduced. In 2007, Delta became the first airline to
start its offset program, by adopting a two-pronged strategy. On one hand, it bought offsets in
2013 and 2014 to achieve 2012 neutral growth and achieved that goal even after despite increase
in its operations.0 On the other hand, it gives its customers a chance to voluntarily offset, for
example, by paying just $4.19 for a 1,520-mile trip that causes 0.279 metric tons of carbon.0
Furthermore, Delta is investing in money many environmental projects. However, there are other
organizations that only relying on voluntary offsetting by its customers during booking
procedure, for example TAP Carbon, and investing that money in UNFCCC-CDM Biomass
Project in Brazil.0
0 International Air Transport Association, Aviation carbon offset programmes- IATA Guidelines and Toolkit, May, 2008, 7.
0 Ashton Morrow, “Delta Offers Earth Day Carbon Offsets for 7,000 Customers,” Delta, http://news.delta.com/delta-offers-earth-day-carbon-offsets-7000-customers (accessed Apr. 30, 2016).
0 Ibid.0 Environment, Air Transport Bureau-ICAO, 2016 Global Aviation Dialogues on Market-Based Measures
to address Climate Change (The Role of Carbon Markets), http://www.icao.int/Meetings/GLADs-2016/Documents/20160316_Role%20of%20Carbon%20Markets%20in%20ICAO%20global%20MBM.pdf (accessed Mar. 26, 2016).
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Some types of offsetting can be used as Emission Trading System (ETS), only after
certain requirement for monitoring, reporting, and verification requirements are fulfilled, for
example, EU-ETS can use credits from UNFCCC accredited projects and related activities and
are known as certified emission reductions (CERs).0 It is important to note that the carbon
market is like other commodities and is driven by the law of demand and supply.
For the successful application of offsets, it is important to have quality standards
applicable to the project and offsets. Standards are important to ascertain that the related
verification and auditing procedures are in place. There are many voluntary (third party
verification) and certified (Certified under Kyoto Protocol) emission reduction standards that
include; Clean Development Mechanism,0 Gold Standard,0 Voluntary Carbon Standard,
Voluntary Offset Standard, and Climate, Community and Biodiversity Standards etc. Offsets are
sourced from different projects, for example, avoid deforestation, reforestation, afforestation,
reduction of emission of GHG, N2O and HFCs, projects related to renewable projects, energy
efficient appliances etc.
The Emission Units are calculated by equating one emission unit equal to reduction one
ton of CO2. Offset credits are issued by crediting mechanisms and the credits are calculated on
the basis of the following formula: “Baseline Emissions - Actual Emissions = Offset Credit.”
0 International Air Transport Association, Aviation carbon offset programmes- IATA Guidelines and Toolkit, May, 2008, 7.
0 Article 12 of the Kyoto Protocol discuss the Clean Development Mechanism that is flexible mechanisms provides for emissions reduction projects which generate Certified Emission Reduction units (CERs) which may be traded in ETS. See for more details: UNFCCC, Clean Development Mechanism, http://unfccc.int/kyoto_protocol/mechanisms/clean_development_mechanism/items/2718.php (accessed Jan. 1, 2016).
0 Gold Standard is a type of Voluntary market and related with projects in energy, afforestation/reforestation, Agriculture, and water that are UNFCCC’s Clean Development Mechanism (approximately 46 million offset credits by early 2016). See for more details: http://www.goldstandard.org/ (accessed Apr. 10, 2016).
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Here the Baseline Emissions are the predicted emissions in the absence of the project
and Actual Emissions are the actual emission after the project is implemented.0 The credit
mechanisms are administered by international organizations like UNFCCC-CDM, or by national
Government as done by Switzerland,0 China,0 and Republic of Korea.0
The offsetting is an important and effective method to control emission and keep the
natural balance of the environmental forces. Its effectiveness lies in the fact that it does not push
any sector or industry to the extent that it hampers its development or endanger its survival. It
allows the sector or industry to take time to make advancement to emit less carbon and in the
meantime mitigate its adverse effect by helping other industries that already has technology to
reduce its carbon footprint. In the process overall emission is reduced or balanced.
3.4.4. ICAO’s Strategy to Adopt the Best Market Based Mechanism
To achieve global carbon reduction goals, in 2013 the Assembly’s Resolution A38-18
provided for adopting the MBM. The Resolution called upon ICAO to take a series of measures
to control emission, and the Assembly decided to work with member states and relevant
organizations to take necessary measures to achieve carbon neutral growth from 2020. The
Assembly also explained different types of measures that could assist ICAO to achieve CNG-
0 Environment, Air Transport Bureau-ICAO, 2016 Global Aviation Dialogues on Market-Based Measures to address Climate Change (The Role of Carbon Marketes, http://www.icao.int/Meetings/GLADs-2016/Documents/20160316_Role%20of%20Carbon%20Markets%20in%20ICAO%20global%20MBM.pdf (accessed Mar. 26, 2016).
0 Switzerland compensation scheme: domestic offset credits0 China Certified Emission Reduction programme: ‘Chinese CERs’0 In 2015, the Republic of Korea launched its national ETS (KETS), the first nationwide Cap-and-Trade
program in operation in East Asia. See for more details: International Carbon Action Partnership, Korea Emissions Trading Scheme,” April, 2016. https://icapcarbonaction.com/en/?option=com_etsmap&task=export&format=pdf&layout=list&systems%5B%5D=47 (accessed May 10, 2016).
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2020. These measures include technological and operational measures, and lastly but most
importantly an MBM scheme.
The Assembly decided that the ICAO would develop a global MBM, and to achieve that
goal the Council was requested to complete the work on technical aspects. The Assembly asked
the Council to prepare a feasible MBM scheme after taking into account all relevant aspects that
includes environmental, economic, and technical aspects. Similarly, the mechanism should help
in sustainable growth of aviation industry. The Council is advised to involve all stake holders,
member states, and relevant organizations in working a suitable and sustainable mechanism. The
Council is required to identify the major issues that should be addressed so approval of states
could be attained. It is important to keep in mind that ICAO aimed at approving the mechanism
in 2016 and implementing it from 2020. Hence, all appropriate measures should be included in
the plan to achieve the goal of reducing carbon emissions.
The Council and the Assembly discussed MBMs for over seven years, but failed to reach
a conclusion and discussion was hijacked by the polarized point of view of states.0 So, the ICAO
decided that the issue would not be discussed in the secretariat and a new body would be formed
to discuss the MBM. In accordance with directions of the Assembly, the Council established
seventeen-member Environment Advisory Group (EAG).0 The EAG will work under the
direction of Council and will supervise all the work related to the development of a global MBM
scheme, and make recommendations to the Council after due deliberations. In short, the EAG
has to select the best MBM to achieve CNG-2020. In the last two years (2014-16), the EAG met
fifteen times to discuss the issues of MBM. Technical support to the EAG is provided by the
GMTF0 ICAO’s CAEP.0 Ruwantissa Abeyratne, Competition and Investment in Air Transport: Legal and Economic Issues (Cham:
Springer, 2016), 42.0 The group was established in March, 2014.0 GMTF stands for Global MBM Technical Task Force.
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The EAG has to fix a selection criterion for adopting a suitable global MBM based on the
elements of safety, environmental protection, and sustainable growth of industry. Similarly, the
MBM will be chosen keeping in mind their environmental and economic impact, and their
practicability. It is important to keep in mind the time frame to achieve the CNG, and its
financial and environmental impact on developed and developing countries.0 It is also important
to incorporate the concept of CBDR and SCRC (Special Circumstances and Respective
Capabilities).
On request of the Assembly, the Council is holding a global aviation dialogue (GLADs)
to achieve a global consensus on MBM. In April 2015, the first round of GLADs was held in five
different places, and 362 participants from seventy-nine countries participated along with
twenty-two different international organizations. The second round of GLADs was held in
March-April, 2016 in different ICAO regions. This was followed by a high level meeting
(May11-13, 2016) that held discussion on a draft Assembly Resolution on global MBM and
made recommendations to the Council. Though, the Council presented and adopted its report and
recommendation in the thirty-ninth ICAO Assembly,0 we will still analyze different models that
are best suited to reduce carbon emission from aviation.
Tension prevails among developing and developed countries with regard to developing
MBM for aviation. Developing countries believe that developed countries should take lead in
emission reduction.0 In early discussion at the ICAO forum to adopt MBM, an initial meeting
was held by the AWG0 that considered six strategies including ‘global departure levy’, and a
0 Ruwantissa Abeyratne, Competition and Investment in Air Transport: Legal and Economic Issues (Cham: Springer, 2016), 43.
0 See Infra for details, 98.0 Andreas Arvanitakis and Peter Hind, “Designing a Market-Based Measure for International,” FNI Climate
Policy Perspectives. 14 (2014):7, Retrieved from http://www.fni.no/pdf/FNI-Climate-Policy-Perspectives-14.pdf (accessed Nov. 10, 2015).
0 AWG stands for Ad-Hoc Working Group.
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‘global carbon levy’. Both these ideas were dropped because of their fiscal nature. Another
strategy that was a combination of ‘offsetting’ and ‘global departure/global carbon levy was also
dropped during earlier discussions.
So, after the early discussions on MBM only two options were left, i.e., mandatory global
offsetting and global cap-and-trade scheme. Global offsetting was further discussed and
expanded to add a mechanism to earn revenue. This revenue is expected to be generated through
a transaction fee on the use of offsets. The revenue generated through this transaction fee will be
used for efforts to reduce emissions from and the fund will assist states0 in developing policies to
reduce emissions and protect environment. It is important to note that aviation is considered as a
source of revenue under the UNFCCC, and half of that revenue could be used for climate
finance.
The EAG made by the Council in December, 2013 adopted a straw-man approach0 and
endorsed an offsetting scheme that would make help achieve the target of emission-neutral
growth from 2020.0 This minimal approach was presented by BRIC0 countries, and gives a hope
that the idea has fair chance of implementation.0 The idea would consider a point based on
‘percentage of global aviation emission’, as well as a provision that will ensure the swift growth
of industry, and ensuring the early mitigation of emissions.
The straw-man presented raw and unprocessed information that provides basis for further
discussion and marks a starting point of preparing an effective MBM scheme. There are three
basic areas that are discussed and analyzed under the straw-man approach by the EAG. First, to
0 ICAO Council Working Paper C-WP/138280 A straw-man proposal is a brainstormed simple draft proposal intended to generate discussion on pro and
cons of the proposal and on the basis of these discussions generate a new and better proposals.0 Arvanitakis and Hind, “Designing a MBM for International,” FNICPP, 14 (2014):5.0 BRIC Countries include four newly advanced economies that achieve advance development stage and
includes Brazil, India, Russia, and China. 0 Arvanitakis and Hind, “Designing a MBM for International,” FNICPP, 14 (2014):5.
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discuss and weigh the alternates to MBM, for example, levy of tax or charge, basing allocation
of emission based on growth patterned data or flight routes;0 secondly, to discuss technical issues
and MVR to ensure the best calculation of carbon emission; lastly, to discuss methods of
mitigating emissions.
In January 2016, the CAEP presented a technical report on issues related to the prediction
of emission from aviation, the cost of achieving CNG-2020, cost impacts of using different
combinations for individual growth of air carriers and the growth of international aviation,
options for distribution of obligations to individual aircraft operators, and adjustments of
obligations, technical exemptions and exemptions of routes to/from low emitting states. The
CAEP presented two scenarios; an optimistic and a less optimistic scenario. According to
CAEP’s analysis, depending on the carbon price, the cost of carbon offsetting for operators will
be 0.2 -0.6 % of total revenues from international aviation in 2025, and by 2035 the cost will be
0.5 – 1.4 % of total revenues from international aviation. However, the CAEP concluded that the
impact is marginal in comparison to impact of volatile fuel prices.0
As mentioned earlier, for successful implementation of any MBM it is important to have
a Monitoring, Reporting and Verification system (MRV). This system is required to monitor use
of fuel, collection of data and calculation of carbon emission, accurate reporting of data to
calculate the total emissions and annual obligation of participants, and verification of emissions
data to ensure accuracy and avoid mistakes.0 It is important to the obligation of each participant
that after the information is received to question how to offset this emission. Emissions Unit
0 Ruwantissa Abeyratne, Competition and Investment in Air Transport: Legal and Economic Issues (Cham: Springer: 2016), 45.
0 Environment, Air Transport Bureau ICAO, ICAO, High-level Meeting on a Global Market-Based Measure (MBM) Scheme ICAO Pre-Event Briefing, 2016. http://www.icao.int/Meetings/HLM-MBM/Documents/20160504_HLM_Pre-Event_Overview%20of%20ICAOs%20Work%20on%20GMBM_V04.pdf (accessed: Apr. 30, 2016).
0 Ibid.
93
Criteria (EUC) is needed to ensure that participants purchase appropriate emissions units from
eligible mechanisms. Furthermore, in the end Registries are important to track and record
compliance data against the offset obligation.0
Airlines annually report their emissions to their State, the use of alternate fuels are
accordingly adjusted in annual emission report. States compile date of all airlines and send it to
ICAO, that data is used for calculation of annual carbon emission from aviation sector.
According to CAEP’s analysis the date should be verified in three stages: verification by ‘pre-
verification mechanism’ of aircraft operators, verification by independent third-party before the
data is transferred to State from operator, and finally State itself should review the date after
preparing the report (known as post-reporting review).0
Emission from aviation is proposed to be offset by the purchase of emissions units that
could be used in authorized programs. However, with little left in the annual session, CAEP is
still working on the criteria for emissions units to be purchased by operators under the global
MBM. There is need of framing clear international standards that would make it easy to validate,
verify, and count the offsets credits. Similarly, the mechanism should help reduce emissions
permanently, and help in maintaining transparency.
There are suggestions by developing countries to prepare a mechanism that could be
based on per capita approach to challenge the status quo of the developed countries.0 However, it
is based on the assumption that developing countries have large population that will do better
with per capita formula, and existing rights of developed countries should be challenged. The
proposal is based on the assertion that this approach would result in maximizing the pie and
disturbing it equally. 0 Ibid.0 Ibid.0 Ruwantissa Abeyratne, Competition and Investment in Air Transport: Legal and Economic Issues, (Cham:
Springer: 2016), 45.
94
However, there are some important issues that must be resolved to design an effective
offsetting scheme, for example, a mechanism to add and measure the element of growth to the
industry and not the growth of operator. This mechanism will be discriminatory to the new
operator as the initial growth will be disadvantage. However the EAG proposed to consider the
growth of the industry as well as the growth of operator, so the new entrant in a mature market
would not be disadvantaged.0 Similarly, the minimum threshold to start from somewhere, and
suggestions are to exclude states that are contributing less 1% in global aviation emission.0 This
is a fairly good suggestion as it will not divide the countries on the basis of developed or
developing countries, but will give relief to the states with relatively new and small aviation
industry to grow and will motivate states to keep their contribution remain below 1 %.
Interestingly, the CAEP made a separate Global MBM Taskforce (GMTF) to work on
the technical work of the options. The GMTF was supposed to compare existing MBMs and
determine the best option to curb emission from aviation.
It is important that to achieve the CNG-2020 there be an equitable and fair distribution of
responsibility among the operators. Scholars like Andreas Arvanitakis and Peter Hind suggest
ICAO to enforce MBM and generate revenue that could assist other industries to reduce
emissions until a mechanism to reduce them from aviation is readily available.0 Moreover, the
revenue can be invested on research to devise technology that would reduce aviation related
carbon emission and for effective techniques to mitigate the damages of emissions. The ICAO
has to come with some definite and effective proposal to spend revenues on some definite
projects that could benefit all.
0 Ibid.0 Arvanitakis and Hind, “Designing a MBM for International,” FNICPP, 14 (2014):7.0 Ibid.
95
The ICAO is suggesting the implementation of a global MBM scheme in the form of
Carbon Offsetting Scheme for International Aviation (COSIA) that would keep in mind different
circumstances and capabilities of states.0 The ICAO is planning to suggest phasing out of carbon
emission, especially for developing countries.0 Two phases are suggested for this purpose; one
that will be completed in 2021 and second phase is proposed to be completed by 2026.
The first phase will start in 2018, however, the question of which states will be included
in this particular phase, arises. The states for this will be selected on the basis of Gross National
Income (GNI) per capita,0 and international aviation activities in Revenue Tons Kilometers0
(RTKs). Thus, either the high-income states in terms of GNI in year 2018,0 or on the basis of
state’s share of international aviation activities RTKs in year 2018, would be selected, i.e., if the
state has more than 1% RTKs contribution, or if a state is among the large shareholder of RTKs
that cumulatively share 80% of the global RTKs.0
The second phase will start in 2026 and will involve states that are either categorized as
upper middle income states in terms of GNI per capita in year 2018, or states that either have
more than 0.5% share in total RTK, or if the state is among the large shareholder of RTKs that
cumulatively share 95% of the global RTKs.0
0 Environment, Air Transport Bureau ICAO, ICAO High-level Meeting on a Global Market-Based Measure (MBM) Scheme-ICAO Pre-Event Briefing, 2016. http://www.icao.int/Meetings/HLM-MBM/Documents/20160504_HLM_Pre-Event_Draft%20AR%20text_V05.pdf (accessed: Apr. 30, 2016).
0 Ibid.0 The data of states based on their incomes are maintained by the World Bank, and sates are divided in
different groups in accordance with their income groups. See: The World Bank, Data: Country and leading groups, http://data.worldbank.org/about/country-and-lending-groups (Accessed: 5 May, 2016)
0 Data is collected by ICAO. See: ICAO, Civil Aviation: 2014 International Scheduled Revenue Tonne-Kilometres (RTK) by State of Air Operator Certificate (AOC,) http://www.icao.int/Meetings/GLADs-2016/Documents/RTK.pdf (accessed May 5, 2016).
0 Based on World Bank assessment as mentioned above. 0 Environment, Air Transport Bureau ICAO, ICAO High-level Meeting on a Global Market-Based Measure
(MBM) Scheme-ICAO Pre-event Briefing, 2016. http://www.icao.int/Meetings/HLM-MBM/Documents/20160504_HLM_Pre-Event_Draft%20AR%20text_V05.pdf (accessed: Apr. 30, 2016).
0 Ibid.
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It is interesting to note that only high and upper middle income states are included in this
suggested COSIA. States that are least developed countries,0 small island developing states, or
landlocked developing countries are not included. However, if these states fulfilled the criteria of
GNI and RTKs as mentioned in the above mentioned two phases, then these countries will be
accepted in COSIA. Those states that are not included in any group are encouraged to voluntarily
adopt any scheme. Similarly, flights to and from low emitting states are also exempted from the
offsetting scheme that would amount to ten percent and fifteen percent exemption of emissions.0
However, there is one possible issue with this phasing out; what if a flight originates from
a state that is included in the phase, and lands in the states that are not part of the scheme, will
that flight operator covered by offsetting scheme? It is suggested that to keep the reporting
process simple all international flights on routes between such states be exempted from
offsetting. Only flight to and from the included states be considered to be part of offsetting
scheme.
The aircraft operator is required to calculate the amount to be offset by: ‘amount of
offsets = an operator’s emissions covered by COSIA in a given year × sector’s growth factor in
the given year’. Here the sector’s growth will be deducting ‘total emissions covered by COSIA at
the 2020 levels’ from the total emissions covered by COSIA in the given year.0 Any new entrant
will be exempted from the COSIA for three years or till its total emissions exceed 0.1% of total
0 In accordance with World Bank data. 0 ICAO CAEP, ICAO Environment Advisory Group Meeting (EAG/15) January 20-21, 2016 Agenda Item 1
Results of Technical Analyses by CAEP, Jan. 20-21, 2016. http://www.icao.int/Meetings/HLM-MBM/Documents/EAG15_CAEP%20Technical%20Analyses.pdf (accessed Mar. 10, 2016).
0 Environment, Air Transport Bureau ICAO, ICAO High-level Meeting on a Global Market-Based Measure (MBM) Scheme-ICAO Pre-Event Briefing, 2016. http://www.icao.int/Meetings/HLM-MBM/Documents/20160504_HLM_Pre-Event_Draft%20AR%20text_V05.pdf (accessed Apr. 30, 2016).
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emissions in 2020.0 Administrative burden is cited as the reason for not including smaller
emitters.
According to CAEP’s analysis final quantity of emission to be offset by 2040 is between
590 million (optimistic scenario) to 816 million (less optimistic scenario) tons of emission.0
However, the market will be affected by the offsetting scheme, but extend of effect will be
determined by the price of offset.0 The ticket prices will see a small rise of about US $10-$50,
that is not a huge effect.
The ICAO was moving towards the adoption of COSIA, however, there was confusion
over the more inclusive approach (to include more states) or less inclusive scheme (to not
include more states into the program). There was pressure on developed countries must take lead
to build trust and put developing states at par. The ICAO was expected to adopt different
mechanism for different routes considering the development level.0
All these confusions were settled in thirty-ninth session of the ICAO that was held in 27 th
September to 6th October, 2016. On the last day of the session, an agreement was reached on a
‘Carbon Offsetting and Reduction Scheme for International Aviation’ (CORSIA).0 The ICAO
resolution opted for offsetting scheme instead of EU’s cap and trade scheme.
The scheme will be enforced in three phases; pilot phase (2021-2023),0 first phase (2024-
2026),0 and second phase0 (2027-2035). The pilot phase will be applicable on the volunteer 0 Ibid.0 ICAO CAEP, ICAO Environment Advisory Group Meeting (EAG/15) January 20-21, 2016 Agenda Item 1
Results of Technical Analyses by CAEP, Jan. 20-21, 2016. http://www.icao.int/Meetings/HLM-MBM/Documents/EAG15_CAEP%20Technical%20Analyses.pdf (accessed Mar. 10, 2016).
0 Ibid.0 Andreas Arvanitakis and Peter Hind, “Designing a Market-Based Measure for International,” FNI Climate
Policy Perspectives. 14 (2014):7, http://www.fni.no/pdf/FNI-Climate-Policy-Perspectives-14.pdf (accessed Nov. 10, 2015).
0 ICAO Assembly Resolution: A39-3.0 Ibid, para 9(a).0 Ibid, para 9(b).0 Ibid, para 9(e).
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states, first phase will also be applicable on the voluntary states with the calculation of offsetting
requirements of the resolution,0 and second phase will be applicable on many states except the
exempted0 states. Under this mechanism many states and airline are given exemptions, including
new aircraft operator0 and states with less international aviation activity are also exempted from
application of CORSIA.0
According to CORSIA, aviation sector has to offset its emissions through the reduction of
emissions outside of the international aviation sector.0 The system involves concept of emissions
units and unit represents one tonne of CO2. The formula of CORSIA for calculating an aircraft
operator’s offset is;
[ % Sectoral × (an aircraft operator’s emissions covered by CORSIA in a given
year × the sector’s growth factor in the given year)] + [ % Individual × (an aircraft
operator’s emissions covered by CORSIA in a given year × that aircraft operator’s
growth factor in the given year)]
It includes 'sectoral rate' and 'individual rate', the sectoral rate represents average annual
growth of emission of international aviation and individual rate represents an individual
operator's growth factor of emissions in a given year.
Under CORSIA, all states, regardless of their participation in offsetting scheme, are
requested to submit emissions information of their operators undertaking international flights to
0 Ibid, para 11 (a).0 Exempted states include Least Developed Countries (e.g. Afghanistan, Niger, Ethiopia etc.), Small Island
Developing States (e.g. Bahamas, Nauru, Haiti, Seychelles, Fiji etc.), and Landlocked Developing Countries (e.g. Nepal, Chad, Rwanda, Zambia etc.) (See for details of exempted countries: “ICAO’s CORSIA,” Verifavia http://www.verifavia.com/greenhouse-gas-verification/program-icao-s-corsia-12.php)
0 New entrants are exempted for three years. Para 12 of A39-3/0 “Para 13: The CORSIA does not apply to low levels of international aviation activity with a view to
avoiding administrative burden: aircraft operators emitting less than 10,000 metric tonnes of CO2 emissions from international aviation per year; aircraft with less than 5,700 kg of Maximum Take Off Mass (MTOM); or humanitarian, medical and firefighting operations.” (A39-3)
0 Para 5, A39-3.
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ICAO under the implementation of a monitoring, reporting and verification (MRV) system.0
However, only those routes will have an MRV and offsetting obligation if both states connected
by the route are participating in the scheme.0
Future of CORSIA is uncertain as top aviation players and carbon emitters China,0 India,0
and Russia0 put reservations on operative part of the Resolution. They proposed certain changes
in proposal during the session and Russia even proposed an alternative approach of Clean
Development Mechanism; based on environmental fee from states calculated as a flat charge rate
per tonne of aviation fuel used for internal flights to fund environmentally efficient aviation
projects in developing states.0 Russia and India decided not to join the voluntary phase and
claimed that CORSIA will add extra burden on the developing states as the cost of this
mechanism might reach to $6.2 billion by 2025.0 However, sixty-six states representing more
than eighty-six percent of international aviation activity decided to join voluntary group.
Though, details are yet to be decided, it seems that it will be difficult for CORSIA to
achieve its goals because of the voluntary nature, several exemptions for states, and reservations
of powerful states. The cost is also expected to be high that will adversely affect the
sustainability of aviation sector.
3.5. Alternate Solutions to Combat Carbon Emission from Aviation
As discussed earlier, the ICAO is working on a multi-pronged strategy to combat carbon
emission and its adverse effects on environment. Besides MBM, it is important to focus on other 0 Ibid, Para 10(c).0 Ibid, Para 10(a). 0 Ibid, Para 23.0 Ibid, Para 5 and 11.0 Ibid, Para 5, 9(g), 11, 18, 20 and 21. 0 ICAO Assembly, Report of the Executive Committee on Agenda Item, 39th Session, (October 6, 2016), 22. 0 “U.N. sets limits on global airline emissions amid dissent,” Reuters, Oct. 6, 2016.
http://www.reuters.com/article/us-climatechange-aviation-idUSKCN1261QR (accessed Nov. 10, 2016)
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aspects that can help in reducing carbon emissions, for example, manufacturing fuel efficient
aircrafts, operational management, introducing alternative aviation fuel, taxing fuel, and
improvement of technology, standards, and operations.0
3.5.1. Alternate Aviation Fuels
To achieve ICAO’s goal of CNG-2020, the key is to develop and use sustainable
alternative aviation fuels (AAF). It is important to develop AAF that is economically viable and
environmentally sustainable. It is necessary to develop AAF, to assist and complement other
measures to reduce carbon emission. An example of AAF is aviation bio-fuels that are
considered to reduce carbon emission and in 2011 they were approved to be used in aviation.
AAF can improve air quality and reduce the adverse impacts on environment. However,
it is important to note that AAF is closer to conventional fuels with regard to their components
and properties, and they emit carbon in same quantity as the conventional fuels. Therefore, the
question arises that if AAF emit same amount of carbon as conventional fuels then what is the
benefit of developing these fuels?
In this regard, it may be noted that, though, AAF emit almost the same amount of carbon,
but they still help in cutting emission in different ways depending upon their source. For
example, if the AAF is made from biomass (crops, or agricultural residues, etc.) then the fuel
comes from plants that was taken from atmosphere through photosynthesis. The carbon that is
emitted back into the atmosphere by aircrafts during combustion will be again absorbed by
plants. In this cycle no additional carbon will be released, as is the case with fossil fuels.0 So, the
emitted carbon through AAF from biomass can be considered as neutral, and would thus help in
0 A37-19.0 International Civil Aviation Organization, How can a Drop-in Fuel Reduce GHG emissions?
http://www.icao.int/environmental-protection/Pages/AltFuel-Q2-2.aspx (accessed Jan. 18, 2016).
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reduction of carbon emission. Similarly, if AAF is made from different sources like municipal
or industrial waste, then these wastes can contain fossil carbon. In such a case, reduction in
emission will be achieved from multiple use of fossil carbon, for example, a waste that is
discarded goods or is a by-product with no utilization value from the manufacturing of goods.
The GHG emissions of waste normally results from production of these goods. Using waste as
fuel will not add emissions to the system, and in this way goal of neutral carbon emission will be
achieved,0
Similarly, AAF can be produced from different raw material, for example, renewable
biomass, waste or fossil feedstock, such as coal and natural gas. However, the fuel produced
from fossil feedstock is not included in the list of approved AAF as it will not help in reduction
of carbon emissions.0 However, the fuel made by using renewable feedstock is considered as
AAF. There are three major bio-feedstock; oils and fats0, sugars and starch0, and lignocellulose0.
0 However, another approach could be waged in this case; that will consider that emissions are shared by the manufacturing of the primary goods and the fuel. This approach will not help in achieving neutral emission, but then emission reduction will be achieved on production of goods produced.
0 AAF can be produced from fossil feedstock, for example, Che Coal-to-Liquid and Gas-to-Liquid made from coal and natural gas using the Fischer-Tropsch pathway. These fuels are allowed to be used as aviation fuel and its commercial production is also allowed. However, the important thing is that the carbon contained in it adds to the emissions. As a result, it emits more carbon emissions than conventional jet fuel. Also, it is not using renewable feedstock, and not considered as sustainable AAF. See for more details: http://www.icao.int/environmental-protection/GFAAF/Pages/default.aspx (accessed Jan. 16, 2016).
0 Triglicerides (main constituent of natural fats and oils) currently come largely from oil crops, animal fats and used cooking oil. Triglicerides contain oxygen that need to be removed to produce jet fuel components which are pure hydrocarbons. See for details: ICAO, How can alternative fuels be produced? From which feedstock? http://www.icao.int/environmental-protection/Pages/AltFuel-Q2-3.aspx (accessed Jan. 16, 2016).
0 Ibid., Sugars come from sugar crops and cereals starch and are mainly associated to fermentation routes that generally produce alcohols, which are further upgraded into hydrocarbons. This is the “alcohol-to-jet” route.
0 Ibid., Lignocellulose is found in the wall of plants’ cells and in wood, and come from various energy crops, as well as from agriculture or forest residues and from macro-algae. Lignocellulose can be directly converted into hydrocarbons using thermochemical processes such as Fischer-Trospch, pyrolysis or catalytic cracking. See Annex III for detailed diagram of the approved pathways of Production of AAF.
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ICAO Resolution A38-18 laid down clear principles to be followed in development of an AAF.
AAF should be made on commercial scale but they should not come in competition with food
and water. Only then an AAF can be sustainable, and help in social and economic growth.0
Also, AAF needs to be regularized to ensure the safety of aircrafts. An AAF must achieve
specific requirements to be treated as an alternative of conventional fuel, for example, they
should not freeze at temperatures below -47o C to work properly during high altitude flights.0
Similarly, the energy content flammability, and other safety concerns should be in accordance
with requirements of aircrafts.
Many organizations are working to develop AAF. For example, ICAO is working
globally to develop AAF that is sustainable, and three pathways for the production of AAF are
approved by ASTM0 to be mixed with alternative fuels.0 These approved AAF are allowed to be
mixed with conventional fuel.0 These fuel-blends are described and controlled by three
Annexures to ASTM Standard Specification D75660 that include Annex 1 (2009),0 Annex 2
(2011),0 and Annex 3 (2014).0 The blended fuels are used by Jet A or Jet A-1 that meet ASTM
D1655 standards, and so far there are more than seventeen-hundred commercial flights have
been operated on AAF.0 Similarly, the FAA is also playing an important role in development,
testing, and approval of new AAF.0 A38-18.0 ICAO, How can a Drop-in Fuel Reduce GHG emissions?0 ASTM is an International Standards organization that develops and publishes voluntary consensus
technical standards for a wide range of materials, products, systems, and services. See for details: www.astm.org/.
0 ICAO, Climate Change: Alternative Fuels. 0 Ibid.0 ASTM International issued ASTM Standard Specification D7566, ‘Standard Specification for Aviation
Turbine Fuel Containing Synthesized Hydrocarbons’,0 Annex 1 specifies properties for synthetic fuel from biomass using the Fischer-Tropsch process.0 Annex 2 specifies properties for synthetic fuel from vegetable oils and animal fats using the
Hydroprocessed Esters and Fatty Acids process.0 Specifies properties for synthetic fuel from fermentable sugars using the Synthesized Isoparaffins (SIP)
process.0 ICAO, Climate Change: Alternative Fuels.
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Furthermore, if newly developed AAF need new aircrafts that would cost tremendously
and create major safety and logistic issues. It is important to note that if there are AAF that needs
special handling, they will also need a change in infrastructure to avoid any mishandling and
disasters. The cost of such infrastructural changes will be huge and unrealistic. The operation too
would need to work on dual levels, as it would take time to convert the system fully on new
fuel.0 To avoid these problems, ICAO is following ‘drop-in’ fuel approach that is developing
fuels that can be used in existing conventional aircrafts without any major changes in the
structure, design, or use of the aircraft. A drop-in fuel is fully compatible, mixable,0 and
interchangeable with conventional jet fuel. It can be used just as conventional aircraft fuel and it
is designed in a way that its components and properties are close to that of conventional aircraft
fuels.
It is important to note that many airports are taking initiatives to design infrastructure to
provide biofuels to aircrafts and cut emission; for example, the Port of Seattle0 is partnering with
Boeing and Alaska Airline to develop infrastructure that can help in serving biofuels blends to
aircrafts at the airport. The aim is to reduce aviation carbon emission by 20 % by 2037.0
Similarly, Qatar Airlines has started an initiative to use ‘alternate fuels’ for commercial flights.
The alternate fuel is a fifty-fifty blend of conventional fuel and semi-synthetic Gas-to-Liquid
(GTL), the blend can be used without modification, and is practically free of Sulphur and
0 ICAO, What is a Drop-in Fuel?0 There is an important point that a drop-in fuel that is a blend of fuels, considered individually, are not
drop-in. For example, HEFA fuel that is approved for aviation use, only gives a drop-in fuel when blended up to 50% with conventional Jet A-1.
0 The Port of Seattle is the governing authority of Seattle-Tacoma International Airport.0 No Author, “Ambitions to supply all Sea-Tac flights with biofuel progress as airport launches study with
Boeing and Alaska,” GreenAir Online.com, Jan. 5, 2016 http://www.greenaironline.com/news.php?viewStory=2177 (accessed Jan. 16, 2016).
104
aromatics.0 As a result, aircrafts will emit less Sulphur oxide and other pollutants, and help in
improving air quality.
3.6. Noise Pollution: Contribution of Aviation Sector
Though, air pollution caused by aircrafts is well documented and most talked about, but
the noise pollution caused by aircrafts is mostly ignored. The sound that aircrafts produce during
different stages of flight cause noise pollution. Aircraft noises can be classified in to three
categories, i.e., aerodynamic noises,0 engine and other mechanical noise,0 and noise from aircraft
systems.0
It is important to control noise pollution caused by aircrafts for a number of reasons.
Noise pollution disturbs the daily affairs of citizens. Residents lose their power of concentration
to work, study, and rest when an aircraft flies over residential areas. The continuous exposure to
high level of noise leads to both auditory and non-auditory problems. The auditory problems
include noise-induced permanent hearing loss, and non-auditory problems include stress,
physiological and behavioral changes. According to the British medical journal, high level of
noises is linked to certain diseases. Their study concludes that people living near airports are 10-
20% more likely to suffer strokes, coronary heart diseases and cardiovascular diseases.0
As the volume of aviation is increasing, number of aircrafts and flights are also
increasing. As a result, new airports are being built and old ones are extended. Similarly, many
0 Qatar Airways, Developing Alternative Fuels, http://www.qatarairways.com/pk/en/csr-fuels.page (accessed Jan. 16, 2016).
0 Aerodynamic noise is caused by the airflow around the aircraft fuselage (the main body of the aircraft that carries passenger, crew, and cargo) and control surfaces. The aerodynamic noises increase with speed and low altitudes due to the density of the air.
0 Most Noises from aircraft are because of engines that are especially caused during takeoff and climb.0 Cockpit and cabin pressurization and conditioning systems cause noise pollution. The Auxiliary Power
Unit, and an on-board generator used in aircraft are main sources of aircraft noise system. 0 Anna L Hansell et.al “Aircraft Noise and Cardiovascular Disease Near Heathrow Airport in London: Small
Area Study,” the BMG, 2013;347. http://dx.doi.org/10.1136/bmj.f5432 (accessed Jan. 10, 2016).
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residential complexes are built near airports. Aircraft noises also compel citizens to oppose the
extension of airports.0 Keeping in view all these factors it is important to reduce the noise
pollution caused by aircrafts.
3.6.1. Development of International Aviation Law to Counter Noise Pollution
In 1966 an international conference was held in London to discuss methods to reduce
noise pollution caused by aircrafts. The aim of the discussion was to find solution through the
machinery of ICAO. In 1967, the fifth Navigation Conference was held in Montreal, wherein
beside other things the problem of noise in the vicinity of airports was discussed and
recommendations were made on the issue. In 1968, the sixteenth session of the ICAO Assembly
was held in Buenos Aires. The Assembly discussed the problem of noise pollution in the vicinity
of airport due to noisy aircrafts and called for establishment of international specifications and
guidance material relating to aircraft noise based on the recommendations of the fifth Navigation
Conference.
The need was felt to make new international SARPs related to deal with aircraft noise in
the vicinity of airports. In this regard, a special meeting was called in Montreal in 1969. As a
result of this special meeting, a new draft of Annex 16 to the Chicago Convention was made on
aircraft noise. The Council formed the Committee on Aircraft Noise (CAN), to examine aircraft
noise certification problems, and as a result the first SARPs of Annex 16 were adopted by the
Council on April 2, 1971.0
In 1977, the scope of the existing Annex 16 was widened and reorganized and aircraft
Noise Standards were laid down in the ICAO Annex 16 (Volume I). In 1983, the CAEP, the only
0 Appendix C of A37-18.0 The SARPs of the Annex 16 became effective on August 2, 1971 and applicable on January 6, 1972.
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technical committee of the Council was established. The CAEP was established to approve and
test new procedures and evaluation methods.
Though, at the time of the signing of Chicago Convention, noise pollution from aircrafts
was not an issue of concern; however, later on Annex 16 was added to deal with the growing
issue of noise pollution. Annex 16 fixes standards for different types of aircraft including
subsonic jet aircrafts and propeller-driven aircrafts, as well as supersonic aircrafts. Guidelines for
certification of supersonic and propeller-driven Short Take-Off and Landing (STOL) aircrafts as
well as installed auxiliary power-units (APUs) and associated aircraft systems when operating on
the ground are included in this annexure.
The CAEP developed standards in Annex 16 for both aircraft noise and aircraft engine
emissions. In 2001, the Council on recommendation of CAEP adopted a new Chapter0 regarding
noise standard. The procedure for the noise certification of aircrafts is mentioned in
Environmental Technical Manual (Doc 9501).
3.6.2. Balanced Approach
In 2001, the Assembly passed Resolution A35-3 (Appendix C) and validated the
‘balanced approach’ to aircraft noise management. The Assembly reiterated its support for the
‘balanced approach’ in Assembly Resolution A36-22 (Appendix C), and urged states to
recognize ICAO’s role in mitigating the problem of aircraft noise pollution. ICAO developed
policies on the elements and solutions to reduce noise pollution. The Doc 9829 ‘Guidance on the
balanced approach to aircraft noise management’ laid the recommended practices for balanced
approach.
0 Chapter 4 of the Annex 16
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The ICAO resolution A37-180 stated that it is important to control adverse environmental
impacts of aviation only by imposing charges. Instead, there are many other ways to control
environmental damage as adverse effect can be reduced; first, by adopting new and advanced
technology; secondly, by applying better air traffic management techniques and operational
procedures; thirdly, by appropriate use of airport planning, land-use planning and management;
and lastly, by taking market-based measures.0
ICAO showed its concern on the lack of consistency in environmental regulations of
states that will decrease the role of ICAO. ICAO then gave the concept of ‘balanced approach’
that is based on the concept of identifying the noise problem at an airport. The approach then
identifies four elements to reduce noise pollution and these principles including; reduction at
source, land-use planning and management, noise abatement operational procedures and
operating restrictions, with the goal of addressing the noise problem in the most cost-effective
manner.0
However, ICAO gave discretion to individual states to make environmental policy
regarding elements to reduce air pollution in accordance with principles laid down by it.0 It is the
legal obligation of states to implement the principles laid down by ICAO, and to adopt the
‘balanced approach’.0 States have to find the best and the most cost effective method to achieve
maximum environmental benefit,0 as, it is only way to achieve goal of sustainable growth of
aviation. States should make policy to phase out aircrafts that are noisy (subsonic jet) as
0 A37-18 Consolidated statement of continuing ICAO policies and practices related to environmental protection – General provisions, noise and local air quality.
0 Appendix A of A37-180 Appendix C of A37-180 Ibid.0 Ibid., 2(a).0 Ibid., 2(b) (2).
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mentioned in Volume I of Annex 16, but in a most careful way so that extra economic burden is
not placed on airlines.0
3.6.3. Technological Development to Counter Noise Pollution
Aircraft noise is a function of the power of engines that propel aircrafts through the
atmosphere. The noise can be decreased by reducing power, but it can affect the safety
characteristics of aircrafts. Noises from aircrafts can be reduced by applying two-pronged
strategy of improving operations and improving aircraft technology.
It is important to note, that today aircrafts are in general less noisy than their
predecessors,0 as the noise from aircrafts reduced by 20-30 decibels (dB), for example, Boeing
707 and Comet now produce less than one percent of the sound as compared to their earlier
versions.0 Advance quieter engines like geared-turbofan are developed by manufacturers like
MTU Aero Engines and Pratt & Whitney.0 Geared-turbofan generates high-frequency sound that
is outside the human audible range.0 Similarly, Boeing-787 has new quiet engine from Rolls
Royce ‘the Trent 1000’, as it has noise-reducing chevrons on its engine nacelles.
Efforts are made to invest more in improving technology to produce quieter aircrafts, for
example, in 2000, the EU established Advisory Council for Aeronautics Research in Europe
(ACARE) for developing quieter and cleaner aircrafts. The ACARE is funded by the EU for
0 Appendix D, Provision 1 of the A37-18.0 The aircrafts are 75% less noisy than aircrafts of 1960s because of the technological development made in
last fifty years. See for more details: Dr. Neil Dickson, “Balanced Approach to Aircraft Noise Management,” ICAO, http://www.icao.int/Meetings/EnvironmentalWorkshops/Documents/2014-Kenya/3-1_BalancedApproach_notes.pdf (accessed Jan. 13, 2016).
0 “Reducing aircraft noise - Full Case Study,” Set Squared Partnership http://www.setsquared.co.uk/impact/transport-case-studies/reducing-aircraft-noise/reducing-aircraft-noise-full-case-study (accessed May 10, 2016).
0 Luftfahrt Bewegt, Aircarft Noise Report, 2015, Bundesverband der Deutschen Luftverkehrswirtschaft.0 Ibid.
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developing technology that would reduce the Effective Perceived Noise in Decibels (EPNDB) of
new aircrafts by 10 decibels by 2020 and later revised its vision to reduce noise emission by 65%
from the level of 2000.0
3.7. Laws in Pakistan to Curb Pollution Emitted by Aviation Sector
Pakistan is not a major contributor of carbon emission, and is ranked at number thirty-
two at of carbon emitting countries that amount to 0.5% of global carbon emission.0 According
to World Bank statistics, Pakistan emitted 163,453 kilo-ton carbon0 and its per capita carbon
emission was 0.93 metric ton.0 According to the World Bank, Pakistan stands at number one-
hundred and thirty-five, in the list of carbon emitters on the basis of their per capita GHG
emissions.0
Low carbon emission does not mean that Pakistan will be spared from effects of climate
change. Furthermore, the future is also troublesome if due care is not taken. According to the
author of Pakistan’s first National Climate Change Policy Qamar uz Zaman Chaudhry,
‘Pakistan’s carbon emissions will reach to 400 million tons of CO2 equivalent per year by 2030 if
the business-as-usual scenario remains intact’. Today, carbon emissions in Pakistan are
increasing at an annual rate of 6% (18.5 million tons of CO2).0
0 “Protecting the environment and the energy supply,” ACARE http://www.acare4europe.com/sria/flightpath-2050-goals/protecting-environment-and-energy-supply-0 (accessed May 10, 2016).
0 Pakistan: CO2 emissions (kt), Fact Fish, http://www.factfish.com/statistic-country/pakistan/co2%20emissions (accessed Feb. 10, 2016).
0 The World Bank, CO2 emissions (kt), http://data.worldbank.org/indicator/EN.ATM.CO2E.KT (accessed Feb 10, 2016).
0 The World Bank, Pakistan, http://data.worldbank.org/country/pakistan (accessed Feb. 10, 2016). 0 Ministry of Climate Change, Draft Pakistan Intended Nationally Determined Contributions (INDCs),
http://www.mocc.gov.pk/gop/index.php?q=aHR0cDovLzE5Mi4xNjguNzAuMTM2L21vY2xjL3VzZXJmaWxlczEvZmlsZS9JTkRDJTIwUEFLSVNUQU4lMjAtemVybyUyMGRyYWZ0LS5wZGY%3D (accessed Jun. 3, 2015).
0 Reuters, “Pakistan crafts plan to cut carbon emissions 30% by 2025,” Tribune, Jun. 10, 2015. http://tribune.com.pk/story/901172/pakistan-crafts-plan-to-cut-carbon-emissions-30-by-2025/ (accessed Jul. 20, 2015).
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Unlike many other countries,0 there is no specific action plan or specialized piece of
legislation in Pakistan that categorically deals with environmental issues related to aviation.
However, the combination of Legislation, Policy and Standards empower the PCAA to ensure
compliance with prescribed standards of environmental protection. ICAO took initiative and
established contacts with 1550 countries including Pakistan to submit their ‘Action Plans’, that
are reporting tools to inform ICAO about state activities to curb CO2 emissions from
international civil aviation.0 These plans will assist the ICAO to achieve goals set by the
Assembly Resolution A37-19. Important points that were identified in the Action Plan to reduce
carbon emission were development of aircraft related technology, use of alternative fuels, better
traffic management, efficient operations, market based measures, and regulatory measures.
Eighty-three states,0 representing 83% of global international aviation, responded positively and
with guidance of ICAO regional offices submitted their Action Plans. However, Pakistan did not
submit any Action Plan. This not only depicts lack of commitment on part of Pakistan but also
lack of direction to curb the issue that specifically endangers the habitat of this region.
The most important document in this regard is the Pakistan Environmental Protection
Act, 1997 (PEPA). It is an umbrella legislation that governs all issues related to environmental
law in Pakistan. Principles regarding the protection, conservation, restoration and improvement
of the environment are laid down in the PEPA. It is an important law for curbing pollution and
ensuring sustainable development. Section 11(2) of PEPA empowers the Federal Government to
0 For example, US Aviation Greenhouse Gas Emissions Reduction Plan, 2015 or Canada’s Action Plan to Reduce Greenhouse Gas Emissions from Aviation. See for detail action plans of different Countries: http://www.icao.int/environmental-protection/Pages/ClimateChange_ActionPlan.aspx (accessed Sep. 10, 2015).
0 International Civil Aviation Organization, Action Plan Facts and Figures, http://www.icao.int/environmental-protection/Pages/ClimateChange_ActionPlan_FactsFigures.aspx (accessed Jan. 1, 2016).
0 Ibid. 0 International Air Transport Association, 2015 Paris Climate Conference-COP21,
http://www.icao.int/environmental-protection/Pages/cop21.aspx (accessed Jan. 1, 2015).
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impose charge on any person0 or legal entity emitting more waste, air pollutants, or noise than
the level mentioned in the National Environmental Quality Standards (NEQS).
In accordance with Section 6 of PEPA, the Pakistan Environmental Protection Council
(PEPC) was established0 and approved the NEQS. As a result, the NEQS for Municipal and
Liquid Industrial Effluents, and NEQS for industrial gaseous emission were implemented. The
NEQS fix the standards of temperature, different elements and different level of emissions. The
PEPC is under an obligation to ensure the implementation of these NEQS.0
Though, the NEQS in many cases mentions the specific source of emission, but in most
cases the sources are not specified. The emission could be from any source, even including
aviation. However, Federal Government can notify separate charges for aviation under Section
31 of the PEPA. The Federal Government made rules for charges on emission by industry when
it promulgated ‘the Pollution Charge for Industry (Calculation and Collection) Rules, 2001’.0
These Rules made a mechanism that put responsibility on the industrial unit itself to pay the
pollution charge, ensure the correct calculation, reporting and payment of the pollution charge.0
According to these Rules there will be an inspection committee consisting of a representative
from the government, and the industrial unit, nominee of provincial environmental or certified
environmental laboratory, and two members from authorized NGOs as mentioned within the
Rules themselves.
0 Person means any natural person or legal entity and includes an individual, firm, association, partnership, society, group, company, corporation, co-operative society, Government Agency, non-governmental organization, community-based organization, village organization, local council or local authority and, in the case of a vessel, the master or other person having for the time being the charge or control of the vessel. Section 2 (xxxii) of the PEPA, 1997.
0 Section 6(e) of the PEPA, 1997.0 Section 6(f) of the PEPA, 1997.0 S.R.O. (1)/2001.0 Rule 4 of the Pollution Charge for Industry (calculation and collection) Rules, 2001.
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Many countries including the UK and Norway levied charges on pollution emitting noisy
planes during their domestic flights. Similar mechanism should be adopted in Pakistan. As
discussed above, individual states can impose charges on aircrafts to control noise pollution and
emissions.
Inspiration can be taken from laws in other jurisdiction, for example Sweden. Sweden has
a comprehensive policy to reduce carbon emissions from aviation, and they successfully reduced
it by 78% from 2005-2010, and from 2010-15 they recorded an increase of only 16%.0 This is
remarkable considering the increase in aviation emission in Pakistan. In 1993, Sweden imposed
noise-charges on landing aircrafts, and in 1998 Sweden imposed charges on the NOx emitting
aircrafts.0 The charges are incentive-based environmental measures. Sweden’s sole reason is to
reduce overall emission from the transport sector, and the charges are not imposed to generate
income. PCAA should impose charges to mitigate environmental damages caused by the aviation
sector. The charges could be a temporary mechanism, till more concrete, comprehensive, and
universal mechanism is designed by ICAO.
Other than PEPA, the National Environmental Policy, 2005 is also an important policy
guideline for the protection of environment in Pakistan. The Policy was made with an aim to
improve the quality of life of citizens through sustainable development. It suggests certain steps
that the government should adopt to curb air and noise pollution, as the aviation sector
contributes in both these elements. The Government should make policy to establish the
standards of air quality and noise standards, and regulatory programs to curb harmful emissions
and control noise at source.
0 The Swedish Transport Agency, ICAO State Action Plan on CO2 Emissions Reduction Activities Sweden, Jine 30, 2015. http://www.transportstyrelsen.se/globalassets/global/publikationer/luftfart/state-action-plan-sweden-2015.pdf (accessed Dec. 10, 2015).
0 Ibid, 59.
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The policy also suggests that a concrete Action Plan should be formulated for the
implementation of the environmental policy, but still there is no coherent Action Plan to
implement the goals laid down by it.
Similarly, the climate policy also urges the Government to make policies to address the
issues of climate change and ozone depletion.0 As a result in 2012, first National Climate Change
Policy was made. It laid down certain guidelines to control environmental degradation. The
Policy urged the government to ensure that national airlines adopt new fuel efficient technology
in order to minimize the carbon emissions.0 The Policy calls to support the carbon emission
reduction initiative of ICAO. It further proposes for reduction in carbon through improved air
traffic management, improved weather services and free flight route that can reduce flight time
and fuel consumption.
The Policy has made certain contradictory suggestions, for example it insisted that the
government should actively participate in ICAO’s activities and initiatives, but not to play active
part in environmental protection. Instead, the Policy wants the Government to ensure that new
strategies of ICAO ‘do not hurt the economic interests of developing countries’ aviation
industry’0. The Policy intends to avoid strict regulation regarding environmental protection. This
provision is in contradiction to the earlier mentioned guideline for Government ‘to promote fuel
efficient aircrafts’.0
As discussed earlier, aviation is an important means of transportation in Pakistan.
Aviation industry in Pakistan is evolving both globally and locally. It is contributing in economic
growth, and also contributing in global carbon emission and noise pollution. So, it is the right
0 Ministry of Environment, Nation Environment Policy, 2005, 10-11.0 Ministry of Environment, National Climate Change Policy, 2012, 26.0 Ibid.0 Hammad Raza Khan, “A Review of Pakistan National Climate Change Policy,” Strengthening
Participatory Organization, 2012.
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time to make targeted laws to so as to control pollution that is contributed by aviation. The laws
should also focus not only on curbing pollution, but in some cases on mitigating the inevitable
damage that aircrafts cause to our environment. The present laws, policy and guidelines are too
general in nature and not specially catering the environmental issues related to aviation. National
policies are not giving importance to the aviation’s contribution in environmental degradation.
There should be focused laws and policies to ensure maximum adherence to global goals for
mitigating carbon emissions, and lowering the standards on noise pollution.
In recent years top government officials and experts have called for implementing carbon
tax in Pakistan. Sartaj Aziz, Advisor to the Prime Minister on Foreign Affairs, floated the idea to
implement carbon tax in Pakistan to generate revenue in order to mitigate the damages caused by
carbon emissions.0 It is important to use these taxes to mitigate climate change and not for other
uses, for example, to cover the budget deficit or give relief to affected industries. It will not help
in controlling climate change. Instead these taxes should be designed in a way that it helps in
encouraging that polluters to reduce their carbon emissions level.
Though, there is no study on the impact of carbon tax on emissions from aviation in
Pakistan; however, there are studies that discuss the impact of carbon taxes on overall carbon
emission. Saleem, Khan and Sarwar0 carried out a study that discusses three cases; a base case
where no carbon tax is imposed, where carbon tax is imposed ($20-$30), and lastly where heavy
carbon tax is imposed ($150-$250). According to the table, without imposition of tax carbon
emission from transport sector will likely increase from 28926.31 kt in 2015 to 75926.71 kt in
0 Editorial, “Carbon emission,” Dawn, Nov. 4, 2015.0 Muhammad Mubassir Saleem, Muhammad Bilal Khan, and Umer bin Sarwar, “The Impact of Carbon Tax
Policies on Future Carbon Emissions from Pakistan’s Energy Sector Using the Times Modeling Framework,” The Explorer Islamabad: Journal of Social Sciences no. 1(6):193-198. http://www.theexplorerpak.org/PDFs/PDF%20Files%20vol-1%20issue-1/Vol-1%20Issue-6/EJSS%2042%20THE%20IMPACT%20OF%20CARBON%20TAX%20POLICIES%20ON%20FUTURE%20CARBON%20EMISSIONS%20FROM%20PAKISTAN%E2%80%99S%20ENERGY%20SECTOR%20USING%20THE%20TIMES%20MODELING%20FRAMEWORK.pdf (accessed Feb. 10, 2016).
115
2040. The total carbon emission is projected to increase from 117031.28 kt in 2015 to 381471.01
kt.0 In case $20 per ton carbon emission tax is imposed in year 2020 and increased to $30 in
2030 then total carbon is projected to increase from 115683.18kt to 388629.09 kt by 2040. The
projected data shows that imposition of small tax can control the carbon emission to the half
level that is predicted without any carbon tax. However, this will not effectively control the
emission from transport sectors as carbon emission will increase from 25158.99 kt in 2015 to
75926.71 in 2040. This is slightly less than the first case.
In case $150 per ton carbon tax is imposed in 2020 followed by $250 per ton in the year
2030 then carbon emission will increase from 25158.99 kt in 2015 to 75279.83 kt in 2040, and
total carbon emission will increase from 109602.32 kt in 2015 to 381471.01 kt in 2040. So,
higher tax will cause decline in carbon emissions of 17 kt CO2 when compared to the base case
without any carbon tax.0
Pakistan should focus on imposing carbon tax on all sectors especially on aviation to
mitigate the adverse effect of aviation and protect environment.
Similarly, ICAO directed states to develop national policy to further the development of
AAF in their respective states in accordance with their circumstances. Though, most states have
made their national policy and share it with ICAO, but Pakistan is yet to formalize such national
policy and submit to ICAO. Pakistan has to prepare its own domestic aviation industry in line
with international development with regard to emission control. Soon there will be new bonding
regulations that will take Pakistan off guard and will adversely affect Pakistan’s novice aviation
industry. Also, Pakistan should actively participate in international efforts to curb carbon
0 Ibid, 197.0 Ibid.
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emission, because it is among top ten countries adversely effected by global warming and
climate change.
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CHAPTER FOUR
LEGAL REGIME FOR ENSURING SAFETY OF AIRCRAFT
AND PASSENGERS
Aviation in itself is not inherently dangerous. But to an even greater degree than the sea, it is terribly unforgiving of any carelessness, incapacity or neglect. (Captain A. G. Lamplugh0)
4. 1. Introduction
As discussed earlier, every year more than three and a half billion passengers and more
than fifty-one million tons of cargo is carried by air. Such high figures are achieved not only
because of the fact that air travel is the fastest mode of transport, but also because it is safe. To
ensure safety it is not only important to make sure that every serious occurrence is duly
investigated so that it will not reoccur (investigation is discussed in the next chapter), but it is
also important to impose liability on air carriers and redress injury or loss suffered by passengers
and cargo owners.
In this chapter, first there is a brief account of historical development of aviation related
liability law and the focus is on the Warsaw and Montreal Conventions. Secondly, legal issues
related to aircraft registration, airworthiness, and extend of liability of air carriers are critically
evaluated. Simultaneously, laws and rules regarding all the above mentioned issues that are
applicable in Pakistan are critically analyzed. Thirdly, power of the PCAA is analyzed with
regard to issuance certificate of airworthiness and registry of an aircraft. Lastly, the issue of
0 Chief underwriter and principal surveyor of British Aviation Insurance Company (1931).
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unruly passengers, offences onboard, and issue of state jurisdiction in cases of onboard offences
are discussed.
4.1.1. The Warsaw Convention 1929, 1955, 1961
Before discussing the content of the Warsaw Convention, it is important to take an
account of the events and situations that led to its creation. After WWI, airlines started showing
their capability to carry passenger, mail, and cargo. It was immediately felt that there is a need to
unify the private law of air carriage. In 1923, the French Government tried to legislate
domestically with regard to liability in cases of carriage by air, but concluded that to avoid the
conflict of law and jurisdiction there is a need to unify the law on an international level as there
are complex foreign elements involved.0
The French Government took the initiative and convened the first international
conference on air law in Paris from October 27 to November 6, 1925. As the diplomats do not
feel comfortable discussing technical issues, they formed an organization of international experts
known as ‘Comité International Technique d'Experts Juridiques Aériens’0 to draft a convention
that was later presented at the second international conference on private air law held at
Warsaw, Poland from October 4-12, 1929. On October 12, 1929, thirty-two LoN countries 0
adopted the Convention for the Unification of Certain Rules Relating to International Carriage
by Air, commonly known as the Warsaw Convention. The Convention came into force on 0 Albert Pelsser, “The Postal History of ICAO,” International Civil Aviation Organization,
http://www.icao.int/secretariat/postalhistory/the_warsaw_system_on_air_carriers_liability.htm (accessed Jan. 10, 2016).
0 International Conference Contemporary Issues in Air Transport, Air Law & Regulation April 25, 2008, New Delhi, India. https://www.mcgill.ca/iasl/files/iasl/C08-Michael_Milde-Warsaw_System_and_Montreal_1999.pdf (accessed Jun. 10, 2015).
0 David E. Rapoport and Ephraimson-Abt, Hans, “A 73-Year Odyssey: The Time Has Come for a New International Air Liability System,” Issues in Aviation Law and Policy, (October 2004), 3. http://www.rapoportlaw.com/Helpful-Information/Publications/PDF-TheTimeHasCome-A73YearOdyssey.pdf (accessed June 10, 2015).
119
February 13, 1933. It emerged as an important document of private international law and
subsequently over years many amending Protocols, Supplementary Instruments and Regulations
were added to the original Convention to form the ‘Warsaw System’.
The importance of the Convention lies in the fact that it was the first international legal
document that governed aviation under international law. It spear-headed the development of the
aviation sector by laying down the basic principles of international aviation.
A. Amendments of 1955 and 1961 to the Warsaw Convention
The Convention was amended in 1955 and then in 1961. The ICAO convened a
Diplomatic Conference from September 6-28, 1955 at Hague. As a result of the conference, the
Hague Protocol was adopted that formally amended the Convention. The single most important
amendment under this Protocol was that liability with respect to persons was doubled to 250,000
francs and modernized the air cargo documentation system. Another Diplomatic Conference was
convened from August 29 to September 18, 1961 at Guadalajara, Mexico. As a result of the
conference, the ‘Convention Supplementary to the Warsaw Convention for the Unification of
Certain Rules Relating to International Carriage by Air Performed by a Person other than the
Contracting Carrier’ was adopted. The Convention added the provisions related to modalities of
transport when a person was not a party to the agreement for carriage.
B. Important Provisions of the Warsaw Convention
The Convention regulates liability of an air carrier in the event of accident, for
international commercial carriage of persons, luggage or goods. The Convention made it
mandatory for air carriers to issue passenger tickets, issue baggage checks for checked luggage,
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and fix a limitation period of two years to bring in a claim against the carrier.0 It also capped the
limit of carrier liability in Poincare Gold francs0, for example, in case of injury or death the
liability of air carrier is 125,000 Poincare Gold francs0. However, there is a caveat that if the
passenger can prove ‘willful misconduct’ of the air carrier then limit on damages would not
apply, and victims can recover full damages under domestic law.0
The Courts over the year settled the question of willful misconduct but in most cases air
carriers prevailed and successfully defended the claims.0 An important judicial decision in this
regard is the American ‘Cali Case’0. On December 20, 1995, an American Airlines flight 956
that departed from Miami crashed in Cali, Columbia. As a result of the crash one hundred and
fifty-one passengers and six crew members perished, and four others suffered non-fatal injuries.
Almost one hundred sixty lawsuits were consolidated for multi district pre-trial proceedings. The
main contention of the plaintiffs was that in accordance with the caveat mentioned in Article 25
of the Warsaw Convention, there should not be any limit on liability as there was ‘willful
misconduct’ because Flight 956 deviated from the standard of care and the pilot made many
subsidiary errors, for example, the pilot violated American Airline policy by attempting a
shortcut to the airport. The US District Judge Stanley Marcus entered an order granting the
plaintiffs' motions for partial summary judgment, and concluded that the airline was guilty of
willful misconduct through its flight crew, as a matter of law. The Court applied the objective
0 Article 29 of the Warsaw Convention, 1929.0 In international regulations of liability, the Franc Poincaré is a used as a unit of account. It is defined as
65.5 milligrams of gold of millesimal fineness 900. Till 1920 it was identical to the French franc. Though the practice to convert it to national currencies varies, but in most states the conversion factor is based on the official gold price of gold, but on an official gold price. However, in most cases it is replaced by special drawing rights.
0 Approximately $8,300.0 Article 25 of the Warsaw Convention.0 David E. Rapoport and Hans Ephraimson-Abt, “A 73-Year Odyssey: The Time Has Come for a New
International Air Liability System,” Issues in Aviation Law and Policy, (October 2002), 3. http://www.rapoportlaw.com/Helpful-Information/Publications/PDF-TheTimeHasCome-A73YearOdyssey.pdf (accessed Jun. 10, 2015).
0 In Re Air Crash near Cali, Colombia on December 20, 1995, 985 F. Supp. 1106 (S.D. Fla. 1997).
121
test0 to reach the decision and also observed that they would have reached the same conclusion
even if the law required application of subjective test0.
However, the American Airline appealed in the Eleventh Circuit Court against the
decision. The appeal court reversed the decision of the district court, and stated that the Warsaw
Convention requires it to be proved that defendant was aware that his conduct would likely result
in a dangerous situation, in other words carrier remained indifferent to the existing danger. The
case was remanded for trial by jury. The judgment in the Cali case is an example of how difficult
and inconsistent the interpretation of the phrase ‘willful misconduct’ is.
According to Article 28 of the Warsaw Convention0 claim can be brought before the
Court of any signatory state of the Convention. The option lies with the plaintiff to file claim in
any one of four jurisdictions: (i) where the airline ordinarily resides, (ii) at the principle business
seat of the airline, or (iii) where any establishment of the airline is situated and wherein the
contract is made between two parties or (iv) the place of destination of flight. The Article also
gives discretion to the Court whose jurisdiction is invoked to settle the questions of procedure.
For the longest time it was assumed that the Warsaw Convention only established
principles that are only applicable on legal disputes within domestic law, and it did not create
separate cause of action.0 However, in 1977 after twenty-five years this dictum was overruled by
another dubious and uncertain decision in the Benjamins case.0
0 Objective test means ‘Measuring whether an airline was guilty of willful misconduct by comparing the conduct in the case at hand with what a reasonable person under similar circumstances’.
0 A subject test is difficult notion to prove in cases of air accidents. It is difficult to prove that the pilot knowingly put his own life and lives of passenger in danger.
0 Article 28 of the Warsaw Convention: “1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.”
2. Questions of procedure shall be governed by the law of the Court seized of the case.”0 Komlos V Compagnie Nationale Air France1 (209 F.2d 436 (2d Cir. 1953), rev'g on other grounds, 11 F.
Supp. 393 (S.D.N.Y. 1952), cert, denied, 348 U.S. 819 (1954)) and Noel v. L.A.V., 247 F.2d 677 (2d Cir.), cert, denied, 355 U.S. 907 (1957).
0 Benjamins V British European Airways (Docket No. 77-7201, decided on March 6, 1977.)
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Benjamins,0 a Dutch citizen asserted cause of action under the Warsaw Convention. The
Court dismissed his action but urged the Second Circuit to review the entire case. The Court was
satisfied with the plaintiff invoking its jurisdiction under the venue requirement0 of the
international treaty. However, as both the plaintiff and defendant were not American subjects
and it was important to overthrow the previous dicta of Noel Case0 to continue the suit between
Aliens in the Federal Court. So, the court held that the cause of action of Benjamins arose under
Warsaw Convention.
The Court quoted the change in condition for their judgment and cited the need to
develop the binding and uniform aviation law. Furthermore, uniformity could be achieved by
deciding in accordance with the Warsaw Convention than by following domestic law. The
importance of the judgment lies in the fact that it extended Federal Court’s jurisdiction to limited
group of aliens and Americans who belonged to the same state as the airline and hence barred
from jurisdiction of Federal Court. Aliens satisfy the international jurisdiction or venue
requirement of the Warsaw Convention and that Federal Court was appropriate to deal with large
air cases because it had expertise in handling complex, multidistrict litigation.0
0 In this case an airplane of a British Airline crashed immediately after takeoff from London’s Heathrow airport. Though, there was no connection between USA and the flight except that there were few Americans on the flight. And all claims were consolidated in the Eastern District of New York. Also, all claims were settled before trial except Benjamins.
0 Article 28 of the Warsaw Convention.0 Noel V Linea Aeropostal Venezolana (No. 368, Docket 24491). (One of the issues in this case was
whether plaintiff can bring a civil action based on the Warsaw Convention for a death which allegedly occurred in the airspace over the high seas. The court decided that the Warsaw Convention created no right of action and the complaint was dismissed).
0 Stanley J. Levy, “The Forum (Section of Insurance, Negligence and Compensation Law),” American Bar Association, 14:3(1979): 544.
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4.1.2. Montreal Convention
The US was not satisfied by the liability limits for carriage of persons in the Hague
Protocol, 1955, as they considered it too low. The US refused to ratify the Protocol and in
October, 1965 announced to withdraw from the Warsaw Convention. The decision of US
withdrawal was a major setback for the unification of private air law. The crisis was averted by
the conclusion of Montreal Agreement of 1996, which was accepted by the US Civil Aeronautics
Board (CAB) and the US revoked its renunciation of the Warsaw Convention. The Montreal
Agreement was concluded under the auspices of IATA. It was a temporary solution, and was
concluded between CAB and the air carriers operating passenger transport with a stopping place
in the US. The Montreal Agreement set the liability limit with regard to death, wounding or other
personal injury suffered by a passenger at US$ 58,000 exclusive of legal costs and at US$ 75,000
including legal costs.
Another attempt was made to modernize the liability laws through adoption of Guatemala
Protocol of 1971. But the Protocol never came into force because of several controversial
provisions, for example, the liability limit for passenger claims was substantially increased and
unbreakable fixed limits were introduced, the force majeure defense was removed, and the fifth
jurisdiction (place of residence of the passenger) was introduced.
In 1975, another Diplomatic Conference on international air law was convened by ICAO.
As a result of this conference, four Protocols (knows as the Montreal Protocols of 1975) were
adopted. The Protocols amended the Warsaw Convention, and The Hague and Guatemala
Protocols. The liability limit was altered again and monetary measurements were changed from
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gold to Special Drawing Rights (SDR).0 The documentary requirements with regard to cargo
were also removed.
In June 1995, IATA convened an international Airline Liability Conference in
Washington. The conference concluded on the note that there is a need to draft inter-carrier
agreements regarding enhanced liability package; and appropriate means to secure complete
compensation for passengers. As a result, IATA inter-carrier agreement on passenger liability
(IIA) was unanimously approved in October, 1995 during the 51st annual general meeting of
IATA. By adopting this agreement air carrier agreed to renounce the liability limits and also to
reduce the use the of force majeure defense against passenger claims. Afterwards, IATA started
an effort to implement acceptable provisions of IIA and as a result another IATA agreement on
measures to implement the inter-carrier agreement (MIA) was drafted that came into force on
April 1, 1997.
On one hand, due to continuous amendment in the Warsaw Convention, the Warsaw
system was disintegrated and lost its relevance. On the other hand, the volume of passenger and
cargo through air was increasing. These developments led to the demand of a new Convention to
replace the Warsaw Convention. In May 1997, the legal committee of ICAO approved the text of
the new Convention, which was later adopted by a Diplomatic Conference. In May 1999, during
the International Conference on Air law that was held in Montreal, the Convention for the
Unification of Certain Rules for International Carriage by Air (famously known as the Montreal
0 The SDR is an international reserve asset, created by the IMF in 1969 to supplement its member countries’ official reserves. Its value is based on a basket of four key international currencies that consists of the euro, Japanese yen, pound sterling, and US dollar. SDRs can be exchanged for freely usable currencies. It is important to note that he SDR is neither a currency nor a claim on the IMF. It is a potential claim on the freely usable currencies of IMF members. See for more details: International Monetary fund: Factsheet Special Drawing Rights (SDRs), April 9, 2015. http://www.imf.org/external/np/exr/facts/sdr.htm (accessed May 6, 2016).
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Convention) was signed. The new single legal instrument replaced the Warsaw system that
consisted of six different legal instruments.
In later part of this chapter, important provisions of the Montreal Convention will be
discussed in detail.
4.1.3. Aircraft Registration
Before discussing other issues, it is important to discuss issues related to the rules that
determine the nationality of aircraft. Like every person, every aircraft also has distinctive
nationality. It is important to identify the nationality of aircraft to determine which law is
applicable on the aircraft. In so many cases and incidents aircrafts are subject to domestic law of
State rather than international law. So, how to determine the nationality of an aircraft is an
important question.
Aircrafts, unlike, human beings are manufactured and assembled. Most of the world
aircrafts are made by two aircraft manufacturing giants Airbus (French Company) or Boeing
(American Company), but they are owned by states, organizations and individuals around the
globe. In this regard the issue of registration is of prime importance.
This issue is primarily dealt by Chapter III of the Chicago Convention. According to the
Chicago Convention, nationality of an aircraft is determined by the country of registration.0 The
aircraft is of a State where it is registered, and it could be different from the State of
manufacturer. So, it leads to the query whether an aircraft can be registered in two or more
countries; and if so, would it qualify as a ‘dual national’. Simply put, an aircraft cannot be legally
0 Article 17 of the Chicago Convention, 1944.
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registered in more than one country, but its registration can be changed from one State to
another.0
However, it is important to remember that issues regarding registration and transfer of
registration are dealt by the domestic law of the State.0 It is important that an aircraft should
clearly bear the mark of its registration and nationality on its structure.0 0It is obligatory on State
of registration to supply registration information to other contracting state and to ICAO upon
request.
A. Aircraft Registration in Pakistan
Part III of the CAR, 1994 deals with rules regarding registration of aircraft. According to
the law, unregistered aircraft cannot fly over Pakistan.0 However, it is not compulsory for an
aircraft to be registered in Pakistan, as an aircraft registered in another contracting Sate is also
permitted to fly in Pakistan. Furthermore, an unregistered military aircraft can fly in Pakistan
without any restriction.0 The DG has to maintain the details of all aircrafts in a register that is
known as the ‘Pakistan Aircraft Register’.0 It is the prerogative of the DG to maintain the
Register in any form as he deems fit. The Register should be open for inspection, but the DG can
impose certain conditions on it. A person, group of people, or an organization can file an
application to include an aircraft in the Register. The applicant, who is the owner, hirer,
purchaser, or lessor of the aircraft should nominate one of them as the person or organization to
0 Ibid., Article 18.0 Article 19 of the Chicago Convention, 1944.0 Ibid., Article 20.0 Ibid., Article 21.0 Rule 7, Section 1 of Part Three of the CAR, 1994.0 Ibid.0 Rule 6, Section 1 of Part Three of the CAR, 1994.
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whom the certificate of registration may be issued.0 The applicant in his applications should
provide details about the aircraft and people or organization having any interest in the aircraft.0
In accordance with international aviation law, CAR also prohibits the dual registration of
aircraft in the states simultaneously.0 As discussed above, the rules regarding the change of
registration are dealt by the domestic law. Under CAR registration will be cancelled in the
following three cases: if the aircraft is destroyed, permanently withdrawn from use, or if it is
transferred to the aircraft register of another State.0 In all three cases registration is considered as
cancelled, and if the registration certificate is still with the owner then he has to submit it to the
DG. The owner of the certificate can apply to the DG for cancellation of the registration and on
surrender of such certificate the DG should cancel the registration.0
Every aircraft, at all times, is under obligation to carry the certificate of registration. The
aircraft registered in Pakistan will be allotted group of three letters as its registration mark that
will be mentioned on the certificate of registration. The nationality and registration marks
allocated to an aircraft should be prominently affixed on its structure, and should be visible at all
times.0 Aircrafts are required to carry fireproof identification plate that should be secured to the
aircraft at a prominent place.0
In accordance with National Aviation Policy, 2015 there will be an additional condition
for registration of aircraft in Pakistan. The Policy aimed at putting calendar age limit for
0 Ibid., Rule 8(2).0 According to Rule 8(1), the Applicant should provide the name of the manufacturer, the manufacturer's
designation of the aircraft, the serial number of the aircraft, the name and addresses of all persons/organizations who have a legal interest as owners of the aircraft, if the aircraft is the subject of a hire purchase or leasing agreement, the name and address of the person or persons or organization purchasing or leasing the aircraft; and a declaration as to the truth of the statement set out in the application.
0 Rule 11, Section 1 of Part Three of the CAR, 1994.0 Ibid., Rule 10(1).0 Rule 10(3), Section 1 of Part Three of the CAR, 1994.0 Rule 13, Section 2 of Part Three of the CAR, 1994.0 Ibid.
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registration and induction of all commercials aircrafts. An aircraft should not be more than
twelve years old at the time of induction and registration, furthermore, an aircraft older than
twenty years will not be allowed to operate in Pakistan.0
In terms of the rules of registration, domestic law of Pakistan is in accordance with
international aviation law. This conformity of law is achieved by the mere fact that the Chicago
Convention left the power with states to make most rules regarding registration. States are
empowered to make laws and hence there is little guidance from international law.
4.1.4. International Register
Every country keeps the record of aircrafts in different format, and as a result there is
lack of consistency. Hence, the need was felt to record data in uniformed form. As a result, in
1961 International Register of Civil Aircraft (IRCA) was established in collaboration with
ICAO,0 Bureau Veritas0 (France), the UK Civil Aviation Authority and the ENAC0 of Italy. The
aim of IRCA was to maintain an international database about civilian aircrafts of different
countries in a common format. IRCA contains information of over 400,000 aircrafts,0 belonging
to more than fifty states. The database is available on CD-ROM, and is updated on a quarterly
basis.
The database carries information on each aircraft, but the information varies depending
on information provided by each country of registration. Regardless of the description in national
0 National Aviation Policy, 2015, 42.0 ICAO has decided to support the IRCA initiative, and this interest has been formalized in February 2001
by an exchange of letters between the ICAO and IRC.0 The Bureau Veritas S.A, is a privately owned joint-stock company It is a commercial organization that is
involved in production and distribution of the French register of civil aircraft on behalf of the French Civil Aviation Authority.
0 The Ente Nazionale Per L'aviazione Civile (ENAC) is an Italian statutory that manages the Italian Civil Aviation and its related structures.
0 Civil Aviation Authority (UK), International Register of Civil Aircrafts http://www.caa.co.uk/default.aspx?catid=60&pageid=124 (accessed Oct. 10, 2015)
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register, the IRCA carries the standard description of each aircraft that allows consistent
searching options. The database applies a standard description of aircrafts and engine types, and
removed the problem of variations in national naming conventions.
IRCA generally store the registered or Legal owner details (full names and addresses),
registration details of aircraft (registration marks and date of current registration), aircraft details
(manufacturer, aircraft type, model, popular name, aircraft serial number, number of engines, and
propeller information), engine details (engine type, manufacturer, and class), and further
technical information related to each aircraft (maximum take-off weight, year of construction,
maximum number of passengers, authority in charge of each aircraft, pressurization, wing type,
airframe material, tail wing type, landing gear type, engine power, speed, mode S code, and
OACI code).0 However, it is possible that some information may not be provided by the State.
4.1.5. International Registry in Accordance with Cape Town Convention
It was essential to formulate an international framework for “formation, registration,
protection and enforcement” of financial interests in aircrafts. Also, it was important to establish
best practices for regulating aircraft transactions. As a result, the Cape Town Treaty system was
formalized that includes one Convention (concluded in 2001) and three Protocols (concluded in
2001, 2007, and 2012 respectively). The Convention on International Interests in Mobile
Equipment on Matters Specific to Aircraft Equipment (also known as the Aircraft Protocol) is
the only Protocol that is operative and was signed with Convention.
0 ENAC, Bureau Veritas & ICAO ed. “IRCA: An unique worldwide aircraft database,” http://www.bureauveritas.fr/vDwrXFCq/Plaquette+IRCA.pdf (accessed May10, 2015).
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The Aircraft Protocol presented the idea of international registration system. Article 16 of
the Convention0 established the International Registry that works under the supervision of
ICAO.0 It is an electronic database that registers international interests in aircrafts. The registry
functions as a central repository, and provides two options to users; i.e., registration and search.
As laid down by the Cape Town Convention, all interests capable of registration should
be registered. In case of non-registration of a certain interest, the registered interest will have
priority over unregistered interests. This makes registration mandatory as priority is an important
feature of financing. The single web-based registration system is accessible at all times and is
highly beneficial to aircraft financiers.
Any interest in aircraft equipment, airframes, aircraft engines and helicopters is registered
with the International Registry, and the registration serves as a notice. Registration of interest in
an aircraft asset serves as a notification and is considered to be the best practice for owners,
creditors, debtors, lessors, lessees, agents and others in protecting their financial interest in such
an asset. The registration validates financial interest in either a fixed-wing aircraft (at least eight-
seater), helicopter (at least five-seater), or turbine engines that produce at least 1,750 pounds of
thrust and turbo-shaft or piston engines of at least five hundred and fifty horsepower.
Similarly, for the benefit of any buyer or lessor, as the case maybe, the option of
‘searching’ is given to all account holders who are approved users and also to non-account
holder guests. They can search against an aircraft asset to determine what registrations have been
made and their relative priority.0 The certificate issued by the International Registry is prima
facie evidence of facts as mentioned in the certificate as well as the date and time of registration.0
0 Article 16 of the Convention on International Interests in Mobile Equipment, 2001.0 Ibid., Article 17.0 Article 22 of the Convention on International Interests in Mobile Equipment, 20010 Ibid., Article 24.
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4.2. Rules of Airworthiness
It is important to ensure the safety of aircrafts, as an aircraft maybe flyable, but not
necessarily airworthy. Thus to make certain of the airworthiness of airplanes the Chicago
Convention made it mandatory for aircrafts to carry, beside other documents,0 the document of
airworthiness.0 It is the duty of the state of registration to issue a valid certificate of airworthiness
to every aircraft that is participating in international navigation activity.0
Annex 8 of the Chicago Convention in accordance with its Article 37 laid down standards
and recommended practices for the Airworthiness of Aircraft. According to the Annex an aircraft
is considered as airworthy if its engine, propeller or other parts in accordance with its design are
in safe condition for operation.0 Airworthiness can be defined as the mechanism that measures
the fitness of the aircraft to undertake safe flight.
The design of the aircraft should be of such nature that it should not make operation
unsafe. There should be proof of design in form of drawings of approved designs, and inspection
to ensure that aircraft is in accordance with the approved designed.0 Any replacement,
modification, and repairs should also be duly approved.0
The State will issue the certificate on the basis of satisfactory evidence that all rules of
airworthiness requirement have been duly followed.0 The validity period and renewal of
airworthiness will be regulated by the domestic law of each state. The certificate of airworthiness
0 According to the Article 29 of the Chicago Convention that the Aircraft must carry the certification of registration, licenses for crew, journey log book, etc.
0 Article 29 (C) of the Chicago Convention, 1944.0 Ibid., Article 31.0 Part I, Definition, of the Annex 8 of the Chicago Convention, 1944.0 1.3 of the Annex 8 of the Chicago convention, 1944. 0 Ibid.0 3 of the Annex 8 of the Chicago convention, 1944.
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will be valid even if the aircraft entered on the register of another country, but such states are
free to issue new certificates.0
There are some other non-technical requirements with regard to the certificate of
airworthiness; for example, the certificate should be in English and in case it is in any other
language then it should carry English translation.0 Each aircraft will carry a flights’ manual that
contains information about the approved limitations within which the aircraft is considered as
airworthy, and in case an aircraft temporarily loses its airworthiness then it will be deemed
ineligible to carry its operation until it is restored to acceptable condition.0
Similarly, in case damage is caused to an aircraft due to an accident then that aircraft
should be categorized as either safe and fit for operation, or unfit for operation.0 In case of a
damaged aircraft, the state of registry will determine whether aircraft is still airworthy or not.0
Any damage will not automatically render the aircraft redundant. In case an aircraft sustained
damages when it is in the territory of another state, then that state can prevent the damaged
aircraft from flying and communicate all the details to the state of registry. Damaged aircraft will
not be allowed to fly until restore to airworthy condition.
The annexure aimed at achieving uniformity of practice and under Article 38 of the
Chicago Convention contracting parties have to notify any difference between national
regulation and International Standards. States are also required to notify any subsequent
difference between the two. States are further advised to use the language used in International
Standards while incorporating them in their domestic law. Annex 8 in detail laid down the
technical aspects of the airworthiness of aircrafts, for example, aircraft propellers, engines,
0 Ibid.0 3.3. of the Annex 8 of the Chicago Convention, 1944.0 3.4 & 3.5 of the Annex 8 of the Chicago Convention, 19440 3.6 of the Annex of the Chicago Convention, 1944. 0 3.6 of the Annex 8 of the Chicago Convention, 1944.
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rotors, power plant, crashworthiness and cabin security. States have to follow these standards to
ensure the airworthiness of aircrafts.
4.2.1. Rules of Airworthiness in Pakistan
Pakistan is signatory of the Chicago Convention and is under obligation to develop
aviation rules in accordance with SARPs. To achieve these standards, the Directorate of
Airworthiness Inspection was established in 1947 under the department of civil aviation. Later,
in 1982 it was replaced by the Airworthiness Directorate when CAA was established.
Rules regarding airworthiness are mentioned in Rules 16-22 of CAR. According to these
rules no aircraft in Pakistan can operate without a valid certificate of airworthiness issued by the
DG.0 However, two types of aircrafts, ultralight or microlight and airships are exempted from
this pre-requisite. Similarly, in case aircrafts are allowed to fly without certificate; for example,
if an aircraft was previously certified as airworthy and is subsequently approved by the DG for
reissuance of certificate, or the damaged aircraft has to be flown to position at an aerodrome at
which repairing work has to be carried out, or locally manufactured aircraft may fly on the
permit issued by the DG for sole purpose of qualifying for the issuance of certificate of
airworthiness. Aircraft that has to be exported from Pakistan may get an ‘export certificate of
airworthiness’ in accordance with the circumstances but this certificate will not serve as
certificate of airworthiness under CAR.0 Similarly, it is mandatory for foreign registered aircrafts
to have certificate of airworthiness issued or validated by the state of registry.0
The DG will either issue or validate a certificate of airworthiness if he is satisfied that
either there is an acceptable certificate of airworthiness issued a competent authority of the state
0 Rule 16 & 17 of CAR, 1994.0 Rule 17 of CAR, 1994.0 Ibid.
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from where the aircraft was imported, or the manufacturer of the aircraft is the holder of
certificate of approval issued by the DG.0
The certificate of airworthiness is valid for a period as may be determined by the DG, but
the maximum period twelve months and the DG cannot fix the period of validity exceeding
twelve months. It is important to not fix the time for validity of a certificate of airworthiness, as
inspection at regular intervals is necessary to identify wear and tear.
The certificate of airworthiness will continue till the expiry of date mentioned in the
certificate (usually 12 months) except it may expires earlier in the following conditions: (i) if the
aircraft or one of its vital equipment is repaired or replaced in violation of instruction of aircraft
manufacturer or by the state of manufacture and approved by the DG or; (ii) if the schedule is not
carried out; or; (iii) if any modification specified necessary by the DG or State of manufacture is
not carried out, or; (iv) if any modification in aircraft are carried out without approval of the
DG, or; (v) if any directive issued by state of manufacture or the DG is not complied with, or;
(vi) if the aircraft sustained damage and is considered no longer fit to fly by the maintenance
engineer or maintenance organization.0 These provisions follow the same standards as laid down
by Annex 8 as discussed above.
The issuance of certificate of airworthiness maybe conditional that may be attached with
the certificate itself, or are mentioned in flight manual, or with other certification document, or
maybe specified in air navigation orders from time to time.0 The DG the has power to suspend or
cancel the certificate of airworthiness and suspend operation of the aircraft if he ‘has reason to
believe’ that an aircraft registered in Pakistan is not airworthy.0 These are sweeping powers, with
0 Ibid., Rule 18.0 Rule 19 of the CAR, 1994.0 Ibid., Rule 20.0 Ibid., Rule 21.
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little or almost no need to give reasons of such believe, though the DG has to take prior approval
of the Federal Government before cancelling the certificate of airworthiness. Here the Federal
Government’s involvement causes fear of political interferences. The decision making process
needs to be more structured and clearer to ensure safety of aircraft and passenger, otherwise
unworthy aircrafts will continue to put lives of passengers in jeopardy.
Similarly, it is important for airlines and aircraft owners to comply with rules &
regulations related to inspection and maintenance as laid down by the DG for the renewal of
certificate or airworthiness.0 Details of requirement of certificate of airworthiness are mentioned
in detail in ANO 92-0004, Issue-2, (2006). However, the fact that too many powers are vested in
the DG that cannot ensure airworthiness and that resulted in many aircraft accidents in Pakistan
in recent times. The details mentioned in ANO 92-0004 should be implemented more fairly and
strictly and power should be institutionalized.
4.3. Compensation of Passengers
The Montreal Convention, 1999 is the successor to the Warsaw Convention, 1929 and
replaced all related instruments. Pakistan deposited instrument of ratification in December 2006
and it entered into force for Pakistan in February, 2007.0 It was an attempt to consolidate various
rules and principles that were interpreted by case laws regarding liability as mentioned by the
Warsaw Convention. The Montreal Convention in most cases retained the language of the
Warsaw Conventions that in most Articles is the same in corresponding Articles of prior
Conventions.
0 Rule 22 of CAR, 1994.0 Convention for the Unification of Certain Rules for International Carriage by Air concluded at Montreal
on May 28, 1999. http://www.icao.int/secretariat/legal/List%20of%20Parties/Mtl99_EN.pdf (accessed Dec. 10, 2015).
136
The Montreal Convention laid simple, clearer rules for both passengers and air carriers.
Chapter III of the Montreal Convention0 laid down the liability on carriers for any injury (both
fatal and non-fatal) caused to passenger on board and damage or destruction of baggage 0 during
international journey. The air carrier will be liable for death or bodily injury caused to the
passenger on board if that is caused only by the operation of aircraft that means embarking or
disembarking. It is important that the injury or death is not caused by the act of fellow passenger
or by natural causes as in these cases air carrier will not be liable.0
The Montreal Convention separately deals with checked and unchecked baggage with
regard to air carrier liability. The air carrier is liable for the safety of checked baggage and has to
compensate in case of destruction or loss of baggage during the time it was under its charge.
However, the carrier is not liable if anything is damaged due to defect or the inferiority of quality
of the baggage. Also, the passenger is not immediately entitled for compensation, but instead
they have to wait for twenty-one days from due date of delivery to enforce rights against the air
carrier which flow from the contract of carriage.
In case of unchecked baggage, the air carrier is liable only if the baggage is destroyed or
damaged by its fault or the fault of any servant or agent of air carrier. However, the air carrier
will not be liable in four situations; (i) if the cargo, both checked and unchecked, is damaged or
destroyed by the act of public authority with regard to enter, exit or transit of cargo or; (ii) if it is
destroyed by the armed conflict or; (iii) due to an inherent defect in the cargo, and lastly; (iv) if
the packing of cargo is defective and is done by other than the agent or servant of the air carrier.
0 Convention for the Unification of Certain Rules for International Carriage by Air (also known as ‘Montreal Convention’).
0 According to Article 17 of the Montreal Convention Baggage means both checked & unchecked baggage except if mentioned specifically.
0 Article 17 of the Montreal Convention, 1999.
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The air carrier is liable for damage caused by delay except when it took all possible measures to
save the cargo but it was impossible to save it.0
The general protection of law, for example, contributory negligence is also extended to
situation of air carrier’s liability. The liability of air carriers will be reduced to the extent of
negligence, omission or wrong committed by the claimant in destruction or damage of the cargo.0
The Montreal Convention not only mentioned the cases where air carrier’s liability arises but
also mentioned the amount that legal heirs or passenger or cosigner can claim in case of death,
bodily injury, delay, damage, loss, or destruction of baggage or cargo. Article 21 mentioned that
liability of air carrier in case of death or bodily injury during flight operation is 113,1000 SDR.0
Article 22 of the Convention laid down the liability of air carrier in different situations,
for example, the maximum liability of air carrier in respect of destruction, loss, damage, or delay
of baggage is 1,131 SDR0. Though, except if at the time of boarding the passenger has submitted
a special declaration of interest then airline will be liable to pay the declared interest of
passenger. However, the air carrier may pay less if it is proved that the passenger’s actual interest
in less than claimed in suit as damages. While submitting the special declaration the passenger
may have to pay extra sum of money. The air carrier is liable to pay 4,694 SDRs for each
passenger in relation to damage caused by delay in the carriage of persons.0 In case of damage,
loss, or destruction of cargo liability of air carrier is limited to nineteen SDR per kilogram, 0
except if consignor has made special declaration of interest.0
0 Ibid., Article 19.0 Article 20 of the Montreal Convention, 1999.0 1 SDR is equal to PKR. 144.6 And 113100 SDR approximately amounts to PKRs. 16362652 on January,
2015.0 Article 21(1): Originally the amount was 100000 for each passenger for damage sustained in case of death
or bodily injury of a passenger.0 Article 22(2): Originally the limit was 1000 SDR and was later amended by the first Review. 0 Article 22(1) of the Montreal Convention, 1999.0 Article 22(3): Originally it was 17 SDR but was amended by the first Review.0 Article 22(3) of the Montreal Convention, 1999.
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In case of delay in the journey of passenger air carrier is liable to pay 4,150 SDR, except
in the situations as discussed in Article 19 of the Montreal Convention.0 Airline can invoke
defense of third part negligence in cases where damages are more than 113,100 SDR, and not
otherwise. This provision made the litigation process simpler and expedient and same rules apply
in this regard as mentioned in case of baggage.
It is important to consider that these provisions do not bar or limit the power of the Court
to award additional cost and other expenses of the litigation incurred, including interest by the
plaintiff in accordance with domestic law.0 The liability limits are reviewed every five years to
keep them relevant, modern, and effective.
An action for damages must be brought at the option of the plaintiff. The plaintiff can
bring an action in the territory of state parties0 within two years.0 The two year time period will
be calculated from the date of arrival at the destination or from the date on which the aircraft
ought to have arrived, or from the date on which the carriage stopped.0 Time barred claims will
not be entertained by the Courts; however, the method of calculating the period of limitation will
be determined by the Court of law seized of the case.0
The Montreal Convention is recognition of the need for a universal liability regime, and it
is beneficial for all stakeholders. In recognition of its need and benefits, the 38 th ICAO Assembly
passed Resolution A38-20 in October 2013 and urged states, which have not yet done so to ratify
0 Article 19 of the Montreal Convention “The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures”.
0 Article 22(6) of the Montreal Convention, 1999.0 According to Article 33 of Montreal Convention plaintiff can file case either before the court of the
domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.
0 Article 35 of the Montreal Convention, 1999.0 Ibid.0 Ibid., Article 35(2).
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the Convention to ensure the uniformity of laws. Until that time different regimes will continue
to cause confusion for states, air carriers, and passengers.
4.3.1. Liability Laws in Pakistan
Pakistan is signatory of the Montreal Convention, and it came into force for Pakistan on
February 17, 2007. According to domestic law, rules of the Montreal Convention have force of
law and are applicable on all aircrafts.0 To fulfill its responsibility under the Convention, the
Parliament passed the Carriage by Air Act on February 6, 2012. The Act repealed the Carriage
by Air Act, 1966 and Carriage by Air (supplementary Act), 1968.0 The law is applicable on all
aircrafts regardless of their nationality. However, aircrafts that are used by the state of Pakistan
for international carriage for noncommercial purposes, and aircrafts used for cargo for military
authorities that are leased or registered in Pakistan are not dealt by the Carriage by Air Act.
The law was passed in 2012, but it added the older version of the Montreal Convention in
its fourth schedule. In the Act, the amount of different liabilities of air carrier is lesser than the
amount that is fixed after the first review, and these amendments came into force in 2009, three
years before the passing of this Act. The Act is comprised of five schedules, and first four
schedules carry the relevant provisions of the Warsaw Convention (1929), Warsaw Convention
as amended at The Hague (1955), Guadalajara Convention (1961), and Montreal Convention
(1999) respectively.
The fifth Schedule carries provisions that are applicable to domestic carriage by air and
determine the liability of carrier in case of loss, damage or delay of baggage, and injury or death
during domestic flight operation. The Act attempted to consolidate all relevant laws by adding
0 Section 4 of the Carriage by Air Act, 2012.0 Ibid., Section 7.
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provisions of international conventions to cover all eventualities, as may be a high contracting
party may not be signatory of any one of the Conventions. This was important to cover different
eventualities; however, it does cause a certain amount of confusion because different legal
regimes are at work simultaneously. The drafting of the Montreal Convention was to remove
these different regimes but it is not impossible until it gets universal ratification. In accordance
with Article 55 of the Montreal Convention if more than one Convention is applicable then the
latest one will be applicable.0 In case of death, liability of carrier will be determined by the
provisions of the Montreal Convention as mentioned in fourth Schedule of the Act, wherever it is
applicable.0
The sixth Schedule of the Act deals with people who have the right to enforce claims
against the air carrier in case of death of passenger. This right is vested in family members that
include spouse, parents, step-parents, grandparents, Siblings, half-siblings, children, step-
children, and grandchildren.0 However, only one action can be brought either by the
representative of the passenger or any person who has benefit in the amount of liability, and the
amount will be awarded in proportions as directed by the Court.0 However, the family members
instead of filing a suit in Court can apply to the air carrier to pay amount recoverable in suit to
passenger’s family in proportions as mentioned in succession certificate0 duly issued by the
competent Court.0
0 Section 3(10) of the Carriage by Air Act, 2012. 0 Ibid., Section 3(5).0 Ibid., Rule 1, Schedule 6.0 Ibid., Rule 4, Schedule 6.0 Any interested party can apply to competent court to issue succession certificate and declare therein the
names and shares of those who are legal heirs of dead passenger. The court while issuing Certificate has to follow rules mentioned in Succession Act, 1925. (See: Rule 6 of Schedule 6 of the Carriage by Air Act, 2012).
0 Rule 5, Schedule 6 of the Carriage by Air Act, 2012.
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The Act reproduced definitions of most rules and definitions. The rules regarding defense
of the air carrier in cases where the goods were destroyed because of inherent defect or defective
packing not by agents or servants of the carrier, or by armed conflict, or exoneration are similar
in spirit and wording as mentioned in the Montreal Convention.0
According to the Act, the liability of air carrier in case of death or bodily harm to
passenger during domestic operation is up to five million rupees for each passenger.0 The amount
may not exceed the prescribed limit of five million if the injury or death was not caused by gross
negligence, or willful misconduct of servants or agents of air carriers, rather the accident was
caused by the act of third party.0 The passenger can claim double the amount paid for ticket or
actual damage sustained in case of delay, but air carriers are liable to pay whichever amount is
less.0 However, air carriers are free to enter into contracts with passengers and can increase or
decrease their liability. In Daoud Shami v. Messrs. Emirates Airlines and another0 the Court held
that under Article 17 of the Warsaw Convention, air carriers are only liable for physical injury
and not for ‘mental anguish’, and only the injury that is caused ‘on board’, during ‘embarking’ or
‘disembarking’. The court relied on the House of Lords decision in Sidhu v. British Airways Plc
Abnett0 where it was held that air carriers have no liability for mental anguish or agony as it does
not fall in the category of bodily harm. The court further held that air carrier liability will be
diminished for contractual obligation if the passenger failed to fulfill his side of obligation, for
example, failed to obtain valid travel documents.0
0 See: Chapter III of the 5th Schedule, of the Carriage by Air Act, 2012.0 Rule 21(1) of 5th schedule of the Carriage by Air Act, 2012.0 Ibid., Rule 21(2) of 5th schedule.0 Ibid., Rule 22(1) of 5th schedule.0 PLD 2011 SC 282.0 (1997) 1 All ER 193.0 PLD 2011 SC 282.
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In case of destruction, loss, or damage of baggage or cargo liability is limited to Rupees
one thousand per kilogram for each passenger/consignor. However, if at the time of handing of
checked baggage/cargo the passenger has submitted the declaration of special interest then air
carrier is liable to pay only the declared amount and not more than that, except if it can be proved
that the actual interest was less than the declared interest. The limitation period is two years from
the date of arrival at the destination, or the day on which the airplane was supposed to arrive, or
from the date from which the carriage stopped.
In accordance with the fourth Schedule that carries provisions of the Montreal
Convention, the liability of air carrier for death or bodily injury is one lac SDR0 and it will not
exceed if the injury or death was not caused by the gross negligence, or willful misconduct of
servants or agents of air carriers, but the accident was caused by the act of third party.0 In case of
destruction, loss, and damage of baggage, liability is limited to one thousand SDR per passenger,
except if passenger has declared more value before handing over. In case of cargo, the liability is
seventeen SDR per kilogram.
The Act is comprehensive, but needs to be more in conformity with international
Conventions. The amount of liability should be par with the changing amount in international
Conventions. However, in practice, throughout the history of Pakistan even the current amount
has never paid in full.
4.4. Offences Committed on Aircraft by Individuals
Safety and security of international aviation are two important agendas that have always
remained the top priority of ICAO. It is important to protect aircrafts from major incidents and
0 The amount is now increased to 113100 SDR as discussed above.0 Article 21 of 4th Schedule of the Carriage by Air Act, 2012.
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accidents that cause vital damage not only to the aircraft itself, but also to the passenger and
cargo onboard. Similarly, it is important to protect aircrafts from acts of individuals, who put life
of passengers in danger by their unlawful and terrifying acts. There are three possible categories
of disruptive behaviors with regard to legal repercussions act of terrorism, disruptive acts (as
mentioned in the Tokyo Convention), and general offences in contravention to air carrier’s
jurisdiction (for example, public order offence).0 However, we should also note that there are
some abusive behaviors by passengers that have no legal bearing, for example, verbally abusive
behavior, but in extreme and rare cases0 the passenger could face certain repercussions, for
example, ban from airline.
On the other hand, ICAO’s Manual on the Implementation of the Security Provisions of
Annex 60 laid down four threat levels that express the seriousness of disruptive behavior. The
four levels are as follows; minor level (verbal disruptive behavior),0 moderate level (physically
abusive behavior),0 serious level life threatening behavior (display of a weapon),0 and attempted
or actual breach of the flight deck level (attempted or actual breach of the flight crew
compartment).0 The categorization is important with regards to establishing standards of
response at each level.
0 International Air Transport Association, “Guidance on Unruly Passenger Prevention and Management,” 2015, 34. https://www.iata.org/policy/Documents/2015-Guidance-on-Unruly-Passenger-Prevention-and-Management.pdf (accessed Jul. 10, 2015).
0 For example, racial slurs, political crimes. (Article 2 of the Tokyo Convention, 1963). 0 ICAO Doc 9811 (Restricted) Manual on the Implementation of the Security Provisions of Annex 6.0 It includes unacceptable language or rude gesture. 0 It includes acts like obscene behavior towards a crew member.0 It includes acts like physical or sexual assault, intimidating or disorderly behavior.0 An attempted or actual intrusion into the flight deck, threat to gain control of the aircraft, use of a weapon,
or an attempt to unlawfully seize control of the aircraft.
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Though, in early years of aviation there was no major incident committed by an
individual. However, with rise of the Palestinian Fedayeen,0 Cuban revolutionaries0 and start of
cold war the fear of crimes on board by individual pose huge, real and immediate threat. Though
at the time of negotiation of the Chicago Conference this threat was not cause of concern, but by
1950s the threat was so serious that it transformed the meaning of aviation security.
4.4.1. Tokyo Convention
The fear of terrorist activities and unlawful seizure of aircrafts compelled ICAO to work
closely with IATA to confront these threats. They were assisted by other organizations, for
example, the International Federation of Airline Pilots’ Association, the Airports Council
International, Federal Aviation Administration, and the European Civil Aviation Conference.
In 1953, ICAO’s legal committee established a special subcommittee on the legal status
of aircrafts to study the problems associated with crimes on aircrafts. After the development of
the first draft in 1958, the scope of the Convention was expanded and the final draft was
developed in 1962. In 1963, the ICAO convened a Diplomatic Conference that adopted the
‘Convention on Offences and Certain Other Acts Committed Onboard Aircraft’, commonly
called the Tokyo Convention that was concluded at Tokyo on September 14, 1963 and came into
force on December 4, 1969.
The Tokyo Convention was a first step towards combating terrorism related to aviation.
Many other Resolutions, and Conventions followed the Tokyo Convention, for example, in 1968
at the sixteenth session of the ICAO Assembly the Resolution A16-37 on the Unlawful Seizure
0 In July, 1968 two commandos belonging to Palestinian Fedayeen hijacked the El Al Boeing 747 en route from Rome to Tel Aviv to land in Algiers.
0 The hijacking of flight between Miami and Havana was rampant that one Congressman in the House of Representative began his statement by saying: “let’s assume a traditional hijacking from a scheduled Miami flight to Havana”.
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of Aircraft was adopted. The Resolution urged the ICAO Council and all member states to take
immediate steps to tackle the issue of unlawful seizure of aircrafts. The Council took important
steps and engaged the air transport committee and air navigation commission to study the
technical aspect of aircraft security. It also approached the legal committee to refine the existing
Tokyo Convention and draft a new Convention.
An unfortunate series of event unfolded during the year between 1969 and 1970. In this
small period, 118 incident of unlawful seizure, and 14 incidents of sabotage and armed attacks
occurred. In the view of prevailing situation, an extraordinary Assembly was held in Montreal in
June 1970. Aviation security was the only agenda of the Assembly, and it led to the series of
resolutions. Later in 1972, draft standards were circulated to states for comments, and on March
22, 1974 the Council adopted the SARPs on aviation security that was designated as Annex-17 to
Tokyo Convention. The aim of law was to protect the passenger from unlawful interference and
it became applicable on November 14, 2014.
In 1969, the UNGA also expressed its concern over acts of unlawful interferences with
air crafts by adopting Resolution 2551 (XXIV). The very next year in 1970, UNSC also through
its Resolution0 urged all states to take appropriate measures to prevent hijacking of aircrafts. In
the same year the UNGA adopted another resolution0 condemning all hijacking and other
interference through threat or actual use of force.
In these times of crises, the new Hague Convention for the Suppression of Unlawful
Seizure of Aircraft was drafted in 1970.0 The Convention urged states to cooperate with each
other to reduce the incidents of hijacking. A full Diplomatic Conference was held in Montreal
and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil
0 S/RES/286.0 A/res/2645 (XXV).0 Also known as the Anti-Hijacking Convention.
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Aviation was opened for signature that subsequently came into force on January 26, 1973. The
Convention “Supplement to Protocol for the Suppression of Unlawful Acts of Violence at
Airports Serving International Civil Aviation” was also signed in 1971 but entered into forced in
1988.
The single most important and notorious event in history of aviation of accident is the
Lockerbie disaster0 of December, 1988. The accident drew worldwide attention and need was felt
to counter the threat of plastic explosives0 for aviation.
Almost one month after the Lockerbie incident the Council established an ad hoc group
of experts to discuss modes to detect explosives. The Assembly in its 27 th Session made a
proposal to draft an international treaty on marking of plastic explosives. As a result of the
proposal, a special sub-committee of the Legal Committee prepared a draft of “Convention for
the Marking of Plastic Explosives for the Purpose of Detection” that was later presented and
adopted in the Diplomatic Conference that was held in Montreal in 1991. The law came into
force in June 1998 after ratification by thirty-five signatory states. The Convention did not
prohibit or ban plastic explosives, but only requires states to properly mark these explosives in
accordance with the provisions in the Technical Annex of the Convention. It bans the
manufacturing,0 transportation,0 possession0 and transfer of unmarked plastic explosives. Article
5 of the Convention establishes an International Explosives Technical Commission of fifteen to
nineteen members. Members are selected by ICAO for period of three years, and monitor the
working of states with regard to marking of plastic explosives.
0 The investigators found traces of pentaerythritol tetranitrate and cyclotrimethylene trinitramine that are components of Semtex-H, a high-performance plastic explosive.
0 Plastic explosives are special type of explosive material, which is soft and in many cases has the additional benefit of being usable over a wider temperature range. Gelignite is one example of plastic explosives.
0 Article 2 of the Convention for the Marking of Plastic Explosives for the Purpose of Detection, 1991.0 Ibid., Article 3.0 Ibid., Article 4.
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4.4.2. Post 9/11: Amendments in International Civil Aviation Laws
The September 11, 2001 (9/11) attacks mark an important event in the history of civil
aviation. In four coordinated attacks, nineteen terrorists hijacked four passenger aircrafts. Two
of the hijacked aircrafts were flown into the World Trade Centers in New York City, the third
aircraft was crashed into the Pentagon in Virginia, while the fourth plane crashed into fields in
Pennsylvania. After the 9/11 attacks, an urgent need was felt to review the Hague and Montreal
Conventions to ensure the safety of aviation operation and to regain the confidence of people on
aviation. It was felt that the current international civil regime, at that time, did not counter threats
posed by trans-national terrorist organization.
Several proposals were made in the preparatory meetings that followed the 9/11 attacks.
Diplomatic Conference was called to discuss and formally adopt all proposals to ensure aviation
safety. As a result, in 2010 during the Diplomatic Conference on aviation security a new
international Convention on the Suppression of Unlawful Acts Relating to International Civil
Aviation, also known as the Beijing Convention, was adopted. The Beijing Convention aimed at
the safe conduct of civil aviation and for ensuring international cooperation for suppressing
unlawful acts against civil aviation.0 It prevailed over the Montreal Convention, 1971 and the
Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft.
In April 2014, a new Protocol0 was adopted to amend the Tokyo Convention of 19630
during the ICAO conference in Montreal. The Protocol was a result of four-year effort to expand
jurisdiction over offences and acts committed onboard aircrafts from the state of registration of 0 See, Preamble of the Convention on the Suppression of Unlawful Acts Relating to International Civil
Aviation0 A Protocol to amend the Convention on Offences and Certain Other Acts Committed On Board Aircraft,
1963.0 Article I of the Protocol to amend the Convention on Offences and Certain Other Acts Committed On
Board Aircraft, 2014.
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the aircraft to the state of the operator, and the state of landing. If any of these three states
initiates investigation, or judicial proceedings the other state on gaining such information will
coordinate their action with such states. It was an attempt to control the increasing trend of
disruptive and rowdy behavior of passengers on scheduled commercial flights. According to
IATA statistics there is a clear increase in disruptive behavior of aircraft passengers, and from
2007-14 more than twenty-eight thousand and four hundred such incidents were reported.0
However, the Protocol is still not operative, and will come into force only after twenty-two states
ratify it.0
4.4.3. Airline Liability and Rights with regard to Disruptive behavior of Passenger
It is important to identify, control and punish disruptive behavior on board that puts the
safety of passengers in jeopardy, or interferes with an airline crew's duties. Disruptive behavior
includes verbal threats, physical threats, intimidation, and assault. However, the Tokyo
Convention does not give an exhaustive list of disruptive behavior, but instead lays down the
broad definition of unlawful acts that are committed on board and may or may not be offences.
The Convention will be applicable on penal offences and acts that can threaten the safety of the
aircraft or of persons or property or disturb good order and discipline on board. 0 However,
Article 10 of the Montreal Protocol elaborated the prohibited acts to include physical assault or a
threat to commit such assault against a crew member and refusal to follow a lawful instruction
(for safety purposes) given by or on behalf of the aircraft Commander. However, the list does not
0 International Air Transport Association, Joint position calling for states to ratify the Montreal protocol 2014 to deter unruly passenger incidents and promote a safer air travel experience for all. https://www.iata.org/policy/Documents/tokyo-revision-position-paper.pdf (accessed June 15, 2015).
0 Article XVIII: 1. This Protocol shall enter into force on the first day of the second month following the date of deposit of the twenty-second instrument of ratification, acceptance, approval or accession with the Depositary. By November, 2015 the protocol got only one ratification.
0 Article 1 of the Tokyo Convention, 1963.
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override national legislation to punish any disruptive behavior on board. This elaboration adds
more certainty to the acts of passengers, law enforcement authorities, and airlines.
Similarly, the Tokyo Convention does not categorically define what constitutes an
international criminal offence. Hence, states determine these acts in accordance with their own
individual interpretation. This can lead to inconsistence in state practice as some countries may
consider an act as a criminal offence, but other countries may not consider it so. The law in the
country from where aircrafts embark could be different from the country where they land.
Model Legislation on Certain Offences Committed Onboard Civil Aircraft (Appendix G
of ICAO Circular 288) in its three sections gave list of the offences and disruptive behavior that
are usually committed on board. Section 1 deals with the first category of offences that are
committed against crew members, for example, committing assault that interferes with the
working of the crew members, and refusing to follow a lawful instruction given by crew member
for the purpose of ensuring the safety of the aircraft, passenger, or property, or for maintaining
good order and discipline on board.0
Section 2 includes the list of crimes where the prosecutor need not prove the jeopardizing
nature of the alleged offence. The list includes child molestation, assault, threat, intentional
destruction of property, and consuming alcohol or drugs resulting in intoxication. There is no
need to prove actual physical injury, and acts other than child molestation will be considered an
offence only if they actually endanger the safety or disturb good order and discipline onboard the
aircraft. The reason for adding this constitutive element for the offence is to limit jurisdiction.
Section 30 laid down the list of offences that can be committed on board. It include
smoking in a lavatory of aircraft or anywhere else on the aircraft that can put the aircraft safety at 0 Section 1 of the Appendix G of ICAO Circular 288 Guidance Material on the Legal Aspects of
Unruly/Disruptive Passengers.0 Section 2 of the Appendix G of ICAO Circular 288 Guidance Material on the Legal Aspects of
Unruly/Disruptive Passengers.
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risk, interfering with safety-related devices of aircraft including smoke detector, and operating a
portable electronic device when such act is prohibited.0 The list carries offences that can
negatively impact the safety of aircraft, and can cause hazards.
According to the Convention, the pilot-in-command has power to prevent and take
reasonable measures including restraining a person who has committed or is about to commit any
act that can put safety of passenger and aircraft in jeopardy.0 He also has the power to hand any
accused of on board to authorities on landing.0 Article 10 of the Convention grants immunity to
the acts of the cabin crew in relationship with the accused, for example, against whom the
actions were taken.
According to the Convention, the pilot-in-command has the power to either disembark or
deliver the passenger. To disembark or deliver a person, the pilot should land in territory of a
contracting State. The main difference between disembarkation and delivery is that is case of the
former pilot does not need to coordinate with law enforcement or other local agencies after
physically removing the person from aircraft and explaining reasons for his removal. However,
the case of delivery is more thorough, as in addition to notifying and handing over the passenger,
the pilot must also provide all legally-collected evidence and information regarding the incident
to local law enforcement authorities.0 It is the duty of pilot to deal with the situation, and to
ensure that all legal documentation is complete with regard to incident.
0 Ibid., Section 3.0 Article 7 of the Tokyo Convention, 1963.0 Ibid., Article 8.0 See for more details: International Air Transport Association, Guidance on Unruly Passenger Prevention
and Management, 2015, 35. https://www.iata.org/policy/Documents/2015-Guidance-on-Unruly-Passenger-Prevention-and-Management.pdf (accessed June 15, 2015).
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A. State Jurisdiction under the Tokyo Convention
As discussed earlier, the Tokyo Convention grants jurisdiction to the state of registration
over offenses and other disruptive acts committed on board.0 So, when unruly passenger is
handed over to authorities of the landing state they often refuse on the pretext of lack of
jurisdiction, as landing state may not necessarily be the state of registration. Similarly, the State
of Registration usually has little or no connection with the incident. As a result, unruly
passengers get away with disruptive behavior. Therefore, without fear of actual accountability,
disruptive behaviors are on rise.
There are many gaps in the Tokyo Convention that need to be covered to make the laws
more effective. The growing number of serious incidents0 of unruly passengers0 shows that the
Tokyo Convention has little deterrence. Similar views were expressed by IATA in ICAO’s
International Conference on Air Law (Montreal 2014)0 that pin-pointed the gaps in this regard.
For example, there is difference in the punishments in different jurisdictions that range from
lenient to very strict punishments. This causes difficulty for aircraft crew as it results in
inconsistent state practice. Similarly, some states who have jurisdiction to try particular crimes
do not extend their action to offences that are committed on aircraft registered in another
country. The reporting of incident should be in conformity and standard procedure should be
used to minimize the disparity between different state practices.
The IATA provided guidelines to ensure mandatory and uniform reporting of disruptive
behavior that should include details of incident. As a result of these suggestions and other
deliberations the Montreal Protocol was adopted to amend the Tokyo Convention and fill the 0 Article 1 of the Tokyo Convention, 1963.0 According to IATA, in 2012 alone every 7th unruly passenger incident required police or security service
intervention (DCTC Doc No. 23).0 According to IATA, in 2013 more than 8,217 incidents of unruly passenger were reported. (DCTC Doc
No. 23). 0 DCTC Doc No. 23
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gaps. The amendment made by the Montreal Protocol, 2014, is an attempt to curb offences and
other disruptive acts on flight.0 The Protocol equips states with requisite powers to deal with the
problem and cover the gaps in the Tokyo Convention. The Montreal Protocol extended the
mandatory jurisdiction to state of intended landing and the state of operator.0 In cases where
aircraft is diverted towards a third state, that state too has jurisdiction. This amendment gave
more comprehensive legal framework with regard to state jurisdiction over offences and other
disruptive acts committed on board.
In cases of the serious offences that put safety of aircraft, passengers or goods on board in
jeopardy,0 the state of landing has the jurisdiction of the alleged offender is still on board.0
However, the landing state, beside the seriousness of offence, has to consider the fact whether
the offence committed on board is an offence in the state of operator.0 For example, if Pakistan is
the State of Landing and Britain is the State of Operator than instead of confirming the offence in
its own domestic law, Pakistani Authorities have to confirm that whether an act committed is an
offence under British Penal Law or not. In case, the act is not an offence in Britain then Pakistani
Authorities cannot try the offence. This clause is a safeguard against the conflict between
different legal systems.
According to the Montreal Protocol cases where the aircraft is diverted to a third state,
then that state has the discretion to exercise jurisdiction. The Protocol gave mandatory
0 An Aircraft is considered to be in flight at any time when the doors are closed for embarkation till the door are reopen for disembarkation. In cases of emergency landing the flight is considered to continue until the authorities take charge of property and passengers and the goods. (Article II of the Protocol to amend the Convention on Offences and Certain Other Acts Committed On board Aircraft, 2014).
0 Article IV of the Montreal Protocol, 2014. 0 Article IV of the Protocol to amend the Convention on Offences and Certain Other Acts Committed On
board Aircraft, 2014.0 Ibid.0 Article IV of the Protocol to amend the Convention on Offences and Certain Other Acts Committed On
board Aircraft, 2014.
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jurisdiction to state of operator, as in accordance with modern practices state of registration and
state of operator are often different.
The Convention does not have overriding effect and will not exclude exercise of any
criminal jurisdiction in accordance with national law.0 These amendments extended the
jurisdiction and covered the jurisdictional gap in the Tokyo Convention, making the legal regime
more comprehensive to effectively deal with unruly behavior of passengers. Interestingly, the
Protocol also gave right to airlines to seek compensation for costs incurred as a result of
disruptive behavior of unruly passenger. This provision adds into the deterrent value, and
controls the increasing incidents of disruptive on board behaviors.
As discussed earlier, that Tokyo Convention did not explain offences and left many
uncertainties that cause many problems of interpretation and inconsistencies. The gap was also
covered by the Montreal Protocol that defined different offences against which contracting states
can take any sort of legal proceedings.0 These offences include threat or actual commission of
assault against crew member, and refusal to follow a lawful instruction given by or on behalf of
the aircraft commander.0 These amendments are important with regard to bringing consistency in
state practice.
B. Cost of Unruly Behavior
The cost of unruly behavior may be very high, especially in cases where it made aircrafts
divert and change their flight routes, wasted precious time of both passengers and crew members,
0 Ibid.0 Article X of the Protocol to amend the Convention on Offences and Certain Other Acts Committed
Onboard Aircraft, 2014.0 Ibid.
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and caused damage by disturbing important scheduled appointments and plans. The diversions
could cost airlines anything between US $10,000 and $200,000.
Airlines suffer because of such behavior. These acts should be controlled by airlines by
seeking damages from such culprit. The Montreal Convention gave boost to the right of State to
seek compensation from the unruly passenger.0 Certain countries like the US and Canada impose
heavy penalties on passenger that cause diversions. In the US, the Congress has granted the FAA
to issue fine to unruly passengers of up to $25,000.
It is important to make passengers pay for the wrong that they commit and cause mental
agony and losses to other peaceful passengers. However, it is necessary to bear in mind that most
passengers will not be able to pay such damages, and airlines too will avoid bad press about
airlines suing their passengers.
4.4.4. Liability in Pakistani Law for Unruly and Disruptive Behavior
Appendix G of the ICAO Circular 288-LE/1 proposed model legislation for incorporation
into domestic law. States are recommended to add model legislation in to their domestic law, or
to make amendment in existing law. It is the choice of states to incorporate it as primary or
secondary law.0
In the light of the Tokyo Convention, Rule 1130 of the CAR prohibits unruly and
disruptive behavior on board. According to this Rule it is prohibited to interfere with working of
crew members, indulge in offensive or disorderly behavior, or commit any act that threatens the
safety of the aircraft or of persons onboard. Certain other acts are also prohibited on board, for
0 Article XIII of the Protocol to amend the Convention on Offences and Certain Other Acts Committed On board Aircraft, 2014.
0 ICAO Circular 288 Guidance Material on the Legal Aspects of Unruly/Disruptive Passengers”, June 2002, 9.
0 Rule 113 of PART IX of CAR, 1994.
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example, carrying weapon,0 smoking in prohibited areas (whether prohibited and identified by
sign or verbally),0 carrying0 or consuming alcohol and drugs on board,0 or entering the aircraft
under the influence of alcohol or drugs.0
According to the Rules,0 it is the responsibility of the pilot-in-command to ensure
compliance with these rules. In case of violation, he may take necessary action against the
violator and while doing so may take necessary assistance. He may remove a person from the
aircraft or detain passengers, crew and cargo for such period as he considers reasonable.0
According to Rule 333 of the CAR,0 offence is described as violation of rules whether it
is done by the owner, the operator and the hirer, the pilot-in-command and any other pilot, of an
aircraft that flies in contravention of or fails to comply with any provision of these rules. These
offences will be penalized with the punishments as prescribed therein, and in cases where no
specific punishment is mentioned then such offence shall be punishable with a fine (maximum
one hundred thousand rupees) or with imprisonment for a term not exceeding six months, or
both.0 The same punishment will be extended to the person who attempted such offences.0
Unruly behavior can be punished under Section 506 if the person on board resorts to
threats to cause death, grievous hurt, destruction of property or causes to occur any crime that is
punishable with death or life imprisonment or with seven years imprisonment. The crime under
this Section is punishable with imprisonment of either description which may extend to two
years, with fine, or with both. Two years imprisonment is lenient considering the gravity of the
0 Ibid., Rule 114 of PART IX.0 Ibid., Rule 115 of PART IX.0 Ibid., Rule 117 of PART IX.0 Ibid., Rule 116 of PART IX.0 Ibid.0 Rule 118 of PART IX of CAR, 19940 Ibid.0 Ibid., Rule 333 of Section 1 of Part XVIII..0 Ibid. 0 Ibid.
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act. As mentioned earlier, airlines can suffer heavily due to unruly behavior especially in cases of
forceful flight diversions. Also, unlike other countries heavy fines are also not imposed on such
culprits. The Montreal Convention empowers states to claim compensation from unruly behavior
for monetary damage to the airline and to pain and mental agony caused to passengers.
So, to add more deterrent power, in light of the Montreal Protocol PCAA should work to
push the Parliament to make more comprehensive law regarding the liability of unruly passenger
on board. There should be statutory provision to empower Airlines to recover damages that the
airline suffered from unruly behavior of passengers especially in cases of diversions.
Similarly, Pakistan should lay down comprehensive policies that assist airlines to
ascertain when the incident of disruptive behavior has crossed the red line and has put the safety
of aircraft and passengers at risk. The best example in this regard is the Canadian ‘Guide for
Implementing Regulations Regarding Unruly Passengers and Incidents of Interference with a
Crew Member’0 that lays down the clear procedure in case of different stages of unruly behavior
and safety measures that should be taken by the crew members.
4.5. International Law Related to Hijacking of Aircrafts
Terrorism is one of the most compelling issues of modern times, and in past few decades
there is an increase in use of planes in terrorist acts across the world. The first question is that
why planes are hijacked for terrorist activities or what aims terrorists achieve by using aircrafts
in their terror activities? To understand the impact of using aircrafts in terror activities, it is
important to differentiate between two different aspects of hijacking of planes: first situation, is
the traditional terror act where planes are hijacked by terrorist and passengers are used as bait for
achieving their aims, and second situation, is where aircraft is hijacked and used as tool to attack
target on ground. The second situation is more recent trend that is extension of suicide bombing
0 Advisory Circular (AC) No. 700-010.
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phenomena that become common after emergence of Liberation Tigers of Tamil Eelam.0 The
menace of terrorism is huge and it is beyond the purview of this thesis to analyze different aspect
of this problem. However, in this section of the thesis, first, the international aviation law with
regard to hijacking and the law relating to use of airplane as tool of terrorist attack will be
analyzed. Later, anti-hijacking laws in Pakistan will be legally analyzed.
Hijacking is the biggest threat against civil aviation and is an effective way for a terrorist
group to blackmail governments and at the same time secure maximum publicity for its political,
religious, or sectarian cause.0 Hijacking is not new phenomena, as the first incident of hijacking
was recorded in 1931 when Peruvian revolutionaries commandeered a Ford Tri-motor. The first
incident of hijacking of a commercial aircraft was witnessed in 1948, and as a result the crash of
a Cathay Pacific aircraft was crashed in the ocean near Macao. In initial years of aviation from
1948-1967 there were only forty-five incidents of hijacking. However, the issue became huge
menace as in 1968 alone there were thirty incidents of hijacking. Most of these hijackings were
carried out by the Cubans and after 60s it reduced considerably.
Similarly, in 1970, the Palestinian Front for the Liberation tried to hijack several aircrafts,
some attempts were successful0 and some were unsuccessful0. Many other aircrafts were hijacked
around the world and many people were killed. However, in 1988, the most important event took
place when Pan Am flight 103 was bombed over Lockerbie, Scotland. The act was carried out by
0 It is reported that first suicide attack was carried by Ignaty Grinevitsky on March 13, 1881 that killed both Grinevitsky and Alexander II of Russia. However, in modern time though suicide attacks started from Lebanon but shortly after it was adopted and popularized by Liberation Tigers of Tamil Eelam in later 80’s and they became ‘most successful popular terrorist organization in the world’. See for details: Henry Dodd, “A short history of suicide bombing,” Action on Armed Violence, Aug. 23, 2013. https://aoav.org.uk/2013/a-short-history-of-suicide-bombings/ (access Sep. 13, 2015).
0 Kevin Chamberlain, “Collective Suspension of Air Services with States Which Harbour Hijackers,” The International and Comparative Law Quarterly no. 32:3 (1983): 616. (616-632).
0 Two flights, TWA 741 and Swiss Air 100 were hijacked from Frankfurt and Zurich respectively and were destroyed in Jordan. Another Pan Am 747 also was destroyed in Cairo and flight BOAC 775 was hijacked from Bahrain.
0 An attempt was made to hijack flights El Al291 from Amsterdam but it was foiled.
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Libyan bombers and as a result all people on board were killed. The hijacking of Pan Am flight
was an important event in different ways for international law as it also brought forward the issue
of jurisdiction in lime light.
There are three main international treaties concluded under the auspices of ICAO to
counter the menace of hijacking; including the Tokyo Convention on Offences and Certain Other
Acts Committed on Board the Aircraft, 1963; the Hague Convention for the Suppression of
Unlawful Seizure of Aircraft, 1970; and the Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, 1971. Also, in 1979 the UNGA adopted the
International Convention against the Taking of Hostages.
The Tokyo Convention, 1963 laid down certain tasks that state parties are required to
perform at the event of hijacking that includes; to take measures to restore the control of the
aircraft to the lawful commander and to facilitate the continuation of journey of the passengers
and crew without further delay. Similarly, the cargo should be returned to the possession of
lawfully entitled person. The Convention requires state parties to keep the hijacker into custody
till the legal proceedings, or extradition proceedings are concluded. As discussed above, the
Convention was amended in 2014 to extend jurisdiction to the state of the operator, and the state of
landing.0
As the incidents of the hijacking dramatically increased between 1969-70 the need was
felt to counter the menace and the Hague Convention, 1970 (also known as ‘Anti-Hijacking
Convention’) was adopted. The Convention criminalizes the person who commits or assists
others to unlawfully or by threat or intimidation seizes the control of the aircraft.0 It is
specifically applicable to civilian aircrafts0 and on situations when aircrafts take-off or lands in
0 See 4.4.2. Post 9/11: Amendments in International Civil Aviation Laws.0 Article 1 of the Hague Convention, 1970.0 Ibid., Article 3(2).
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any place other than the state of registration.0 The Convention laid down the principle that a
party to the Convention on whose territory the alleged offender is present0 must assume
jurisdiction and prosecute hijackers if no other state requests his or her extradition for
prosecution of the same crime.0 The state parties are under obligation to provide necessary
assistance to other state where criminal proceedings are initiated against the offender,0 and states
should promptly inform ICAO about the offence, offender and extradition proceeding if any.0
The Convention called for international cooperation and involvement of ICAO and its
implementation helped in controlling the increasing number of hijacking events.
Similarly, the Montreal Convention, 1971 (also known as Sabotage Convention) is
applicable on the civilian aircrafts and it criminalizes different violent acts committed on board
that jeopardize safety of passenger, aircraft and cargo, or shake the trust of people on aviation,0
for example, destroying or damaging the aircraft, destroying or damaging navigation system, or
circulating wrongful information. The Convention states that a person is considered as offender
even if he ‘attempts to commit’ or is an ‘accomplice’ of the person who commits acts mentioned
in the Convention.0 The Convention made it obligatory for states either to try or extradite the
accused to appropriate state for trial of offences that he allegedly committed as mentioned in this
Convention.
In 1979, the UNGA adopted the International Convention against the Taking of Hostages,
(also known as ‘Hostages Convention’). The Convention explained and criminalizes the act of
taking hostage.0 The Convention laid down obligation on state parties to either prosecute or
0 Ibid., Article 3(3).0 Ibid., Article 4(1) (b). 0 Ibid., Article 4(2). 0 Ibid., Article 10.0 Ibid., Article 11. 0 Preamble of the Montreal Convention, 1971. 0 Article 1(2) of the Montreal Convention, 1971. 0 Article 1 of the Hostages Convention, 1979.
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extradite the accused who committed, or attempted or was accomplice of a person who
committed the offence of taking hostages.0
It could be stated that all the four above mentioned international treaties laid down the
principle of ‘aut dedere aut judicare’ (either extradite or prosecute) to mitigate the jurisdictional
gap of internationally committed offences related to aviation including hijacking and taking
hostages. So, the norm set by international treaties is that nobody should be allowed to illegally
interfere with functioning and flight operation of aircrafts, and jeopardize the safety of aircraft,
passengers and general reputation of aviation.
As mentioned above, in certain cases aircrafts are hijacked and used as tool to cause
damage to unrelated property or cause injury to people on ground. The biggest example of this
scenario is 9/11 attacks where hijacked aircrafts were used to attack on ground targets. Under the
effect of events of 9/11, Beijing Convention was adopted in 2010, and it criminalize, beside other
things, the use of aircraft as weapon to attack targets on grounds to cause death, injury, damage
to property and environment.0 Though, the Beijing Convention, 2010 caters to the contemporary
challenges faced by civil aviation, but the Convention is not in force, as of April, 2016, because
of lacked of required ratifications.
Annex 17 of the Chicago Convention “Security: Safeguarding International Civil
Aviation Against Acts of Unlawful Interference” was adopted in 1974 as a result of negotiation
that followed the rise in hijacking cases in 1970. The Annex laid down the security standards to
be adopted by sates to reduce incidents of unlawful interferences, especially the hijacking. Later,
after amendments in 1989 it also focuses on other things like luggage screening, and after 9/11
further amendments were made in 2002 to deal with new wave of threats. Chapter V of Annex
0 Ibid. 0 Article 1(f) of the Beijing Convention, 2010.
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17 deals with rules regarding prevention that include sharing of information between states,
providing dedicated security to aviation and implementation of comprehensive security plan to
safeguard the aircraft, passenger, cargo, and baggage. Annex 17 laid down numerous provisions
to ensure safety of aviation operation.
4.5.1. Laws in Pakistan Regarding Hijacking of Aircraft
Sections 402-A, 402-B, and 402-C of the Pakistan Penal Code (hereinafter referred as
‘PPC’) deal Hijacking in Pakistan. Hijacking is defined as an “unlawful” seizure or control of an
aircraft that is gained by “the use or show of force or by threats of any kind”. 0 Interestingly, the
word “unlawful” is of quite importance and open to wide interpretation as the issue was
discussed in the Case of ‘Mian Muhammad Nawaz Sharif v. The State’.0 The Petitioner Mr.
Sharif was charged with ‘unlawful” divergence PIA aircraft bringing the then Army Chief as
well as other passengers to Karachi. The Petitioner argued that he had power under Section 6 of
the Civil Aviation Ordinance,1960 to divert an aircraft in case of emergency.0 The petitioner was
supposed to make a decision on fair assessment, but anyone’s assessment cannot be challenged
based on the fact that how he/she perceives certain facts. So the petitioner claimed that
instruction to divert aircraft was not ‘unlawful’. Interestingly, the Court decided that the
Petitioner being the Prime Minister was empowered to divert the aircraft based on assessment of
existence of emergency hence the order was not ‘unlawful’. The Court in this case distinguished
between the hijacking when the hijacker is present within the aircraft and when orders are
coming from outside as it rejected the dicta of earlier Case of Shahsawar v. The State,0 where the
0 Section 402-A of the PPC, 18600 P L D 2009 SC 814.0 Section 6 deals with Federal Governments powers to make order in times of war or emergency regarding
all aspect the aviation operation. 0 2000 SCMR 1331.
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Court decided that “offence of hijacking stood completed no sooner the aircraft was diverted
forcibly to a different destination.” The Court held that the two cases are ‘distinguishable’ as in
the case of former the Petitioner ‘only ordered the divergence of plane to another airport’ and in
all time the pilot was in full control of the aircraft. Though, the Court took a unique position in
this case. The case leads to an important observation that such events can only be avoided by
reducing the interference of Federal Government in the operation of aviation.
The definition mentioned in Section 402-A caters to the traditional cases of hijacking,
and does not include elements of other types of unlawful interferences and using aircraft or
attempt to use aircraft as tool to attack on ground as mentioned in Beijing Convention, 2010.
Also, the issues regarding hostages and those who abet in taking hostages are not dealt by the
PPC. The definition left a lot of issues open, and should be replaced with more concrete one that
encompasses all sort of illegal interferences with aviation operation.
The punishment for hijacking, attempted hijacking, conspiracy and abetting the offence
of hijacking is death or life imprisonment, forfeiture of property and fine.0 The punishment
mentioned in Section 402-B is strict. Similarly, the PPC makes harboring hijackers an offence
punishable with death or imprisonment for life and the accused is also liable to fine.
Interestingly, the Anti-Terrorism Act (ATA), 1997 defined hijacking as “any unlawful
seizure or exercise of control, or any attempt at unlawful seizure or exercise of control, of an
aircraft, by force, violence, threat or any form of obstruction, directly or through any other
person, from within or outside the aircraft.”0 This definition is more comprehensive than the
definition mentioned in the PPC. However, it only added one new aspect that airplane can be
0 Ibid., Section 402-B.0 Section 2(l) of the ATA, 1997.
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hijacked from outside as well. However, the definition didn’t add any other aspect and still caters
to conventional hijacking.
However, ATA, 1997 differentiates between simple hijacking and hijacking that amounts
to terrorism. ATA only deals with only Hijacking that amounts to terrorism, if only the action is
done “to coerce and intimidate or overawe the Government or the public or a section of the
public or community or sect or create a sense of fear or insecurity in society”. 0 The punishment
of offence of hijacking-amounting-to-terrorism is same as of simple-hijacking as mentioned in as
mentioned Section 402-B of the PPC, i.e., “death or imprisonment for life, and shall also be
liable to forfeiture of property and fine”.0
Interestingly, the ATA, 1997 also criminalizes “hostage-taking” that amounts to terrorism
and defines it as “the holding of a person captive with threats made to kill or harm that person if
demands are not met”,0 and if done for the reason mentioned in Section 6. “Hostage taking that
amounts to terrorism” is punishable “with death or imprisonment for life and liable to forfeiture
of property”.0 The punishment is similar to that of hijacking.
Pakistan has made rules to ensure the protection of aviation operation as laid down by
Annex 17 to the Chicago Convention. The CAR, 1994 laid down different rules to ensure the
safety of aviation operation, for example, Section 10 (Rules 91 to 110) deals with Conduct of
Persons at an Aerodrome that prohibits entry of the unauthorized person in the different areas
ATS Unit, hanger etc. Similarly, Part IX (Rule 111 to 117) deals with conduct of persons on
board an aircraft and it prohibits the carriage of drugs and weapons to the aircraft, and no person
0 Ibid., Section 6.0 Section 7(f) of the ATA, 1997. 0 Ibid., Section 2(e). 0 Ibid., Section 7(e).
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should interfere with the work of crew members and put the safety of aircrafts and passengers in
jeopardy.
Laws in Pakistan are very strict as expected by the international obligations and
standards, but there is a need to add more comprehensive definitions of the hijacking to add all
cases of unlawful interferences. Ideally, a separate provision should be added to cover all other
intrusions to hamper aviation operation. Also, there should be provision to cover the attempt,
conspiracy, and actual use of aircraft as a tool to attack property and person ground, and affect
environment.
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CHAPTER FIVE
JURISDICTION TO CONDUCT AIRCRAFT ACCIDENT OR
SERIOUS INCIDENT INVESTIGATION: COMPARISON OF
INTERNATIONAL AVIATION LAW AND CIVIL AVIATION
LAW OF PAKISTAN
5.1. Introduction
The main objective of ICAO is to ensure the safety and steady growth of global civil
aviation.0 Safety is an important issue for all the people involved and those who are customers of
the aviation industry. Accidents and serious incidents are unwanted events that should be
avoided. To avoid the reoccurrence of these hazardous events it is important to report, and
analyze these events. Therefore, investigation is an important tool to achieve higher standards of
global aviation safety.
To achieve the above mentioned goals the Chicago Convention0 puts an obligation on
states to hold inquiry in case of aircraft accident “involving death or serious injury, or indicating
serious technical defect in the aircraft or air navigation facilities” in accordance with rules laid
down by ICAO.0
0 Article 44 of the Chicago Convention.0 Article 26 of the Chicago Convention states that “In the event of an accident to an aircraft of a of accident
contracting State occurring in the territory of another contracting State, and involving death or serious injury, or indicating serious technical defect in the aircraft or air navigation facilities, the State in which the accident occurs will institute an inquiry into the circumstances of the accident, in accordance, so far as its laws permit, with the procedure which may be recommended by the International Civil Aviation Organization. The State in which the aircraft is registered shall be given the opportunity to appoint observer to be present at the inquiry and the State holding the inquiry shall communicate the report and findings in the matter to that State.”
0 Ibid.
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In this chapter, different issues relating to investigation, jurisdiction of investigation,
independent investigative body, and investigation reports are discussed. Lastly, air crash
investigation reports of last two air crashes that occurred in Pakistan are critically evaluated in
light of law laid down by Annex 13, but before discussing other issues important discussion
about some important terms including the term ‘investigation’.
A. Investigation
Investigation refers to an “inquiry for ascertaining facts”. The process entails detailed or
careful examination of facts. Almost every criminal investigation is an “examination, a study, a
survey and a research of facts and/or circumstances, situations, incidents and scenarios, either
related or not, for the purpose of rendering a conclusion of proof.”0 Investigation is a systematic
inquiry that thoroughly evaluates information. However, the real reason behind a criminal
investigation is an important question. There are two aims of a criminal investigation; first, to
identify, and prove the guilt of a criminal, and secondly, to prevent the commission of a crime in
future. Nevertheless, there is a stark difference between ordinary criminal investigation and
aircraft accident or incident investigation. Before discussing the main issues, it is important to
mention that aircraft investigation has two aspects, i.e., technical aspect and legal aspect, but for
the purpose of this thesis the primary focus will be on the legal aspects.
Annex 13 of the Chicago Convention defines ‘investigation’ in view of aviation
incidents/accidents as “a process conducted for the purpose of accident prevention which
0 Noor Maizura Mohamad Noor, Muhammad Bin Che Abdullah, and Zuriana Abu Bakar, “Enhancement of Newton Law of Cooling Method based on Asante’s Algorithm with Henssge Nomogram Method in Estimating the Time of Death,” International Journal of Engineering and Technology, 9:2 (2017):1. http://www.ijetch.org/vol9/962-E009.pdf (accessed Jun. 10, 2016). And See Charles M. Alifano, “Fundamentals of Criminal Investigation.” Worldwide Law Enforcement Consulting Group, Inc, 1 (retrieved from http://www.worldwidelawenforcement.com/docs/FUNDAMENTALS%20OF%20CRIMINAL%20INVESTIGATIONS.pdf (accessed Mar. 10, 2015)
167
includes the gathering and analysis of information, the drawing of conclusions, including the
determination of causes and, when appropriate, the making of safety recommendations.”0 The
definition clearly spells the difference between ordinary investigation and aviation investigation.
The main aim of aviation investigation is prevention and not accusation. The aim is to eradicate
the irritant or rectify the practice that led to the aviation accident/incident. The whole exercise is
carried out to make air travel safer.
Ordinary criminal investigations are carried out by law enforcing agencies of a country,
in accordance with its domestic law of criminal procedure. For example, Section 4(i) (l) of CrPC,
1898 defines investigation as proceeding carried out by a police officer or any person authorized
by the Magistrate for collection of evidence after an FIR is lodged. Part V (Chapter XIV) of
CrPC, 1898 deals with the rest of details of investigation and air crash investigation is dealt by
Annex 13.
Though, the emphasis of international aviation law is on preventive investigation, but this
does not mean that the law forgoes criminal responsibility of criminal elements that are
responsible for aircraft accident or serious incident. The definition of investigation as mentioned
in Chapter 1 of Annex 13 is qualified by the recommendation mentioned in Article 5.4.1 of
Annex 13. It is then confirmed that it is not an exclusionary, but only a separating clause. Article
5.4.1 recommends that if it is important to conduct “judicial or administrative proceedings to
apportion blame or liability” then such proceeding should be separate from the investigation
under Annex 13. The country undertaking such investigation is under an obligation to keep the
two separate.
Investigation process includes gathering, recording, and analysis of all available
information on the accident/incident; the issuance of safety recommendations (wherever they are
0 Chapter 1 of the Annex 13 to the Chicago Convention, 1944.
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needed), efforts to determine the exact cause of incident/accident, and the completion of the final
report.0 The investigating team can visit the accident scene, examine the wreckage, and record
the witness statements.0
B. Difference between ‘Accident’ and ‘Incident’
Before delving on other aspects, it is important to define the difference between the terms
‘accident’ and ‘incident’ in context of aircraft accident investigation. The term ‘accident’ is
defined at length in Chapter 1 (definitions) of Annex 13 as an occurrence related with aircraft.0
According to the definition, aviation accident is a time bound event, i.e., after boarding the flight
and before landing. The definition categorizes airplane occurrences into accidents in three cases,
when:
i. It results into fatal or serious injuries
ii. It cause damage or structural failure
iii. Plane goes missing or is inaccessible
0 5.4 of Annex 13 to the Chicago Convention, 1944.0 Ibid.0 “An occurrence associated with the operation of an aircraft which takes place between the time any person
boards the aircraft with the intention of flight until such time as all such persons have disembarked, in which:
a) A person is fatally or seriously injured as a result of: being in the aircraft, or Direct contact with any part of the aircraft, including parts which have become detached from the aircraft, or Direct exposure to jet blast,
Except when the injuries are from natural causes, self-inflicted or inflicted by other persons, or when the injuries are to stowaways hiding outside the areas normally available to the passengers and crew; or
b) The aircraft sustains damage or structural failure which: Adversely affects the structural strength, performance or flight characteristics of the aircraft, and would normally require major repair or replacement of the affected component, except for engine failure or damage, when the damage is limited to the engine, its cowlings or accessories; or for damage limited to propellers, wing tips, antennas, tires, brakes, fairings, small dents or puncture holes in the aircraft skin; or
c) The aircraft is missing or is completely inaccessible.” See Chapter 1 of Annex 13 to the Chicago Convention, 1944.
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An accident is result-oriented, i.e., the occurrence must cause either fatal or serious
injuries. The injuries should be a result of being in the aircraft, or coming in contact with any
part of the aircraft (attached or detached part) or because of exposure to jet blast.0 Here, it is also
important to determine fatal injuries. For the purpose of aircraft investigation fatal injuries are
the one that cause death within thirty days of accident.0 However, if injuries or death are caused
by natural causes, self-inflicted, or caused by any other person or caused because of hiding in
any place other than that normally available for passenger and crew, for example, stowaway 0
then it would not be considered as an aircraft accident. An accident excludes death caused by any
other person, thus death caused by act of terrorism or hijacking is not categorized as such.
Similarly, if any damage is caused to the plane or if any structural failures occur then it
will also be categorized as an aircraft accident. Structural failures result in strength and
performance of flight and results into major repair or replacement not engine failure.
Lastly, if the plane loses link with the control room, or is inaccessible then it does not
automatically enter as an aircraft accident. The plane is only officially declared missing, when
the official search operation is terminated and the aircraft wreckage is not found.
The term ‘incident’ is also defined in Chapter 1 (definitions) of Annex 13. It is defined as
an occurrence different from those defined as an accident. However, incidents are also
“associated with the operation of an aircraft which affects or could affect the safety of
operation”. Appendix 7 of the Accident/Incident Reporting Manual0 describes eight types of
0 Ibid.0 Annex 13 to the Chicago Convention. 1944. 0 Stowaway is a person who secretly boards an aircraft to travel without paying and without being detected
for example; two stowaway are believed to have been clinging to a British Airways flight from Johannesburg to Heathrow. One man died and other is in critical condition. The surviving man, who is believed to be aged 24, was found in the undercarriage of the plane at about 08:20 BST and taken to a west London hospital. The 5,600-mile journey (9,012km) from South Africa to the UK usually takes about eleven hours. (See for more details: 'Plane Stowaway' Body Found on Richmond Roof,” BBC News Jun. 19, 2015. http://www.bbc.com/news/uk-england-london-33196210 (accessed Aug. 10, 2015).
0 Doc 9156-AN/900.
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aircraft incidents that are main interest to ICAO with regard to accident prevention studies.
These incidents include engine failure, fires (including engine fires), terrains and obstacles
clearance incidents (danger or actual collisions), flight control and stability problems (system
failure or weather phenomena), takeoff and landing incidents (for example, belly or wheels up
landing), flight crew incapacitation, decompression,0 and near collisions and other air traffic
accidents (for example, equipment failures).0
The term ‘serious incidents’ refers to “an incident involving circumstances indicating that
an accident nearly occurred.”0 or in other words there was a “high probability of an accident”.
Rest of the element to constitute ‘serious incidents’ are similar to those required to constitute
‘accident’, i.e., the occurrence should be related to the operation of an aircraft, takes place
between the time any person boards the aircraft with the intention of flight until such time as all
such persons have disembarked. Serious incidents include near collision requiring avoidance
maneuver, fire/smoke in the cockpit, in the passenger compartment, in the cargo compartments,
or engine fires, engine disintegration etc.
There is no obligation on states to investigate aircraft incidents.0 However, there is no
bar to conduct an investigation if they consider it important incident. In such cases, the report is
to be shared with concerned states, if there are any substantial findings. Furthermore, instead of
preliminary reports, states have to prepare an Incident Data Report (IDR). Similarly, if a state
conducts an investigation into an incident on an aircraft of a maximum mass of over 5700
0 Modern aircraft are now operating at increasingly high altitudes and hence there is increase in physiological risks that are associated with decompression. In the case of decompression, there is a risk that not enough oxygen will be supplied to the body.
0 Appendix 7 of the Accident/Incident Reporting Manual (Doc 9156-AN/900)0 Chapter 1 of Annex 13 of the Chicago Convention, 1944. 0 1.4 of the Doc 9156-AN/900
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kilograms, then the state should as soon as practicable send the investigation IDR to ICAO.0
Accident prevention measures are laid down in Chapter 8 of Annex 13.
5.2. Authority to Conduct Air Crash Investigation Under International
Aviation Law
Rules regarding air crash investigation are primarily laid down in Annex 13 of Chicago
Convention. It provides rules regarding notification, investigation and reporting of the accident.
The important question is that who has jurisdiction to investigate any aircraft accident or
incident? Which parties are involved in investigation? What are the rights of each party with
regard to investigation?
If the aircraft accident or serious incident occurs on the territory of the contracting state,
then the state of occurrence will lead the investigation. The state of occurrence has access to site
and so can play the leading role in the investigation. In cases, where the state of occurrence is
leading the investigation, states of registry, operator, design and manufacture have the right to
appoint an accredited representative to the investigation. Accredited representatives have the
right to participate in all aspects of the investigation.
If the accident/serious incident occurs in the territory of a non-contracting state, and if
that state shows no intention of conducting investigation in accordance with Annex 13, then state
of registry should conduct such investigation.0 In case, the priority state of registry fails to do so
then state of operator, state of design or state of manufacture should undertake the investigation.0
These states can undertake investigation in collaboration with the state of occurrence. If the state
0 7.7 of Annex 13 to the Chicago Convention, 1944.0 5.2 of the Annex 13 to the Chicago Convention, 1944. 0 Ibid.
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of occurrence does not cooperate with the investigating state then the latter should investigate in
the light of available information.0
However, if the accident/serious incident occurs outside the territory of any state, for
example, over high seas, then the state of registry should conduct investigation. However, the
state of registry can delegate the responsibility to another state with mutual consent.0 If the state
of registry is a non-contracting party and is not interested in conducting investigation then, the
right will shift to the state of operator or, failing that, the state of design or the state of
manufacture. The state situated near the place of occurrence should provide all possible
assistance.0
5.2.1. Notification of Aircraft Accident or Serious Incident
According to Annex 13, the state of occurrence will send a notification of the accident at
the earliest possible opportunity and through the quickest possible means to all relevant states
(state of registry, operator, design, and manufacture) and to ICAO. It is rare for states to be
unaware of any aircraft accident, but if the state of occurrence is unaware of such accident then
appropriate state, i.e., either the state of registry or the state of operator shall forward a
notification of such incident to the state of design, the state of manufacture, and the state of
occurrence.
The purpose of notification is to provide important basic information about the aircraft,
the area and events that caused the aircraft accident/incident. The notification should be in plain
language and should carry the readily available information. It includes information about the
nature of the accident or incident, aircraft, crew, date, time, and location of accident, route of 0 Ibid.0 Ibid., 5.3.0 5.3.1. of the Annex 13 to the Chicago Convention, 1944.
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aircraft, and information about the dead and injured, as well as the extent of damage. The
notification will also carry the intention of the state to conduct the investigation and its extent. It
gives physical characteristics of the accident/incident area, details about investigating authority
and information about dangerous goods on board, if any. However, it is important to remember
that the state of occurrence can request the state of operator to inform about any dangerous goods
on board.
Upon receiving of information, the relevant state will acknowledge it, and inform about
appointment of accredited officer and arrival of the members.
5.2.2. International Standards and Recommended Practices for Aircraft Accident
and Incident Investigation
Annex 13 is one of the most important documents that sets standards and recommend
practices for aircraft incidents and investigation. The document, besides differentiating between
the often confusing terms ‘incident’ and ‘accidents’, also defines some other important terms, for
example, injury, serious incidents etc. However, the importance of this document is in the fact
that it lays down the objective of investigation and the format of the final report of that
investigation.
5.2. 3. Objectives of Aircraft Crash or Accident Investigation
Aircraft accident investigation has certain similarities with other types of investigation
but largely it is different from other investigations. Like other investigations, it ascertains the
facts, circumstances, and conditions that led to the accident.0 But unlike them, the very nature of
0 Part I, Chapter I of the ICAO Manual of Aircraft Accident Investigation (Doc 6920)
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this investigation is remedial rather than punitive.0 The purpose of other types of investigations is
to find the culprit and apportioning of the blame with the help of evidence. However, the only
aim of an aircraft accident investigation is “the prevention of accidents and incidents”.0 The
purpose of the investigation is not apportionment of blame or liability.0 The importance lies in
the fact that the investigators undertake it to identify the causes and to ensure that similar
mistakes should not be repeated, and that remedial actions are adopted so that no one else has to
undergo the same fate. The whole exercise is undertaken to ensure the safety of other aircrafts
and passengers by identifying the deficiencies of operations or procedures, and by giving
recommendations to eradicate those deficiencies.
It is important to highlight that air crash investigation reports are often criticized,
especially by the media, for not identifying the culprit or for not putting the liability on a
company, or pilot. As noted above, appropriation of liability is not the mandate or aim of the
investigation, but separate criminal should be held for appropriation of criminal liability.
5.3. Investigation Report
There are four stages of final report; preliminary report, interim statements, draft final
report, and final report.
i. Preliminary Report
According to ICAO guidelines, the preliminary report must be filed within thirty of the
accident. The report should carry the initial information about the occurrence, the date of
accident, the scope of accident, class of occurrence (accident, serious accident, incident or not-
0 Ibid.0 3.1. of the Annex 13 to the Chicago Convention, 1944. 0 Ibid.
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determined), the phase that the flight was in (take-off, landing, approach, en-route), the time and
place of accident, severity and number of injuries, information about aircraft (manufacturer,
country of registry serial, and registration number), mass group and status of aircraft, type of
flight (passenger or cargo), information about operation, information about crew, information
about wreckages, and sequence of events.
The preliminary report of every accident involving an aircraft weighing more than 2,250
kilograms is to be sent to the state of registry, state of occurrence, state of operator, state of
design, state of manufacture, the state that provided information, significant facilities or experts,
and to ICAO. The report is to be sent by the state conducting the investigation.
In case of an accident of aircrafts weighing less than 2,250 kilograms, the investigating
state must send preliminary report to the state of registry, state of occurrence, state of operator,
state of design, state of manufacture, the state that provided information, and significant facilities
or experts.0
As mentioned above, ordinarily preliminary report is to be sent within thirty days, but due
to unpredictable eventualities it is added that it should be sent as soon as information is
available.0 The report should be in one of the five ICAO working languages.0
ii. Draft Final Report
Investigating State prepares the draft final report and invites comments on it from the
state that instituted the investigation, state of registry, state of operator, state of design, state of
manufacture, and states that participated in the investigation. The concerned states are required
0 7.1 of Annex 13 to the Chicago Convention, 1944.0 Ibid., 7.3. 0 There are five working languages of the ICAO: English, French, Spanish, Russian, Chinese, and Arabic.
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to give their comments within sixty days of correspondence.0 The investigating state will proceed
to publish the final report if no comments are received. The report will be accordingly amended
if comments are received and accepted. The comments can be appended with the report, if the
country giving those comments so wished.0
iii. Final Report
The Final report is important for two purposes: first for keeping the actual record of the
occurrence, and secondly for providing accurate information to prevent future
accidents/incidents.0
The final report must be sent to the state that instituted the investigation, state of registry,
state of operator, state of design, state of manufacture, states that participated in the
investigation, state having suffered fatalities or serious injuries to its citizens, and state that
provided information, significant facilities or Experts.
To ensure future prevention of similar accident/incident, the state conducting the
investigation should make the final report public without any delay.
iv. Format of the Final Report
The final report should cover all aspects of the incident/accident in detail. The format of
the final report is mentioned in Annex 13 to the ICAO Convention. However, detailed guidance
is given in Part IV of the ICAO Manual of Aircraft Accident and Incident Investigation (Doc
9756). The main heads of the final reports are: title and synopsis followed by main body that
0 “Investigation Report,” Seminar On Aircraft Accident Incident Investigation, August 11-15, 2014. http://clacsec.lima.icao.int/Reuniones/2014/Sem-CAAS/Presentaciones/Ingles/Session%2011.pdf (accessed Jun. 10, 2015).
0 Ibid. 0 4.1. of the ICAO Manual of Aircraft Accident and Incident Investigation (Doc 9756)
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includes factual information, analysis, conclusions (findings, cause, and contributing/significant
factors), safety recommendations, and appendices.0
The first part is the factual information that includes the history of the flight (nature of
flight, exact location of the accident, exact events that preceded the accident, navigation details
and official communications), details about casualties and injuries, damage to aircraft, other sort
of damage caused due to the accident, personnel information (qualification, history and
experience of the crew members), aircraft information, metrological information, aids to
navigation, communications, aerodrome information (that the accident happened during which
phase of flight, for example, take-off, landing etc.), flight recorders, wreckages information,
medical and pathological reports (autopsy), fire, survival aspects, test and research, additional
information, and new investigation techniques.0
The second part of the report consists of analysis. It is an important part and it evaluates
the evidence presented in first part of the report. In this part hypotheses will be formed, and each
hypothesis will be evaluated on the basis of available evidence. The weaker ones will be
rejected. This section will discuss any information that indicates any additional cause of accident
or any other shortcomings.
Third part of the report is conclusion. This section will carry findings, and causes. The
fourth part will make recommendations to prevent future accident. And the last part will consist
of appendices (if any). The State conducting the investigation has to send the final report to
ICAO if the aircraft weighs more than 5,700 kilograms in the working languages of ICAO.0
0 4.4.1. of ICAO Manual of Aircraft Accident and Incident Investigation (Doc 9756).0 Ibid. 0 Chapter 6 of the Appendix 13
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5.4. Jurisdiction of the State to Investigate Air Crash
Article 26 of the Chicago Convention empowers the state, where the aircraft accident
occurs to conduct an inquiry.0 If the aircraft is registered in another state, then the state of
registration will be given opportunity to appoint observers at the inquiry. The state conducting
the investigation is under an obligation to share findings with the state of registration. Article 26
of the Chicago Convention is the main provision with regard to investigation, however, the
Council adopted Annex 13 on aircraft accident inquiry that provides detailed procedure and is
supplementary in nature.
The state can deviate from Annex 13 in accordance with Article 38 of the Chicago
Convention, but deviation with regard to accidents covered in Article 26 is not permitted. So, the
procedure mentioned in Article 26 is applicable only when aircraft accident resulted in ‘death or
serious injury’, or if there was indication of ‘serious technical defect in the aircraft or air
navigation facilities’. In all other cases, until ICAO recommends a procedure, the inquiry will be
conducted in accordance with the national procedure, subject to the limitation set by Article 26.0
Annex 13 refers to accredited representative and gives the right to the advisors to be present at
inquiry.0
0 Article 26 of the Chicago Convention says that “In the event of an accident to an aircraft of a of accident contracting State occurring in the territory of another contracting State, and involving death or serious injury, or indicting serious technical defect in the aircraft or air navigation facilities, the State in which the accident occur will institute an inquiry into the circumstances of the accident, in accordance, so far as it laws permit, with the procedure which may be recommended by the International Civil Aviation Organization. The State in which the aircraft is registered shall be given the opportunity to appoint observer to be present at the inquiry and the State holding the inquiry shall communicate the report and findings in the matter to that State.”
0 International Standards & Recommended Practices-Annex 13 to the Convention on International Civil Aviation, “Aircraft Accident and Incident Investigation” ICAO 9th Edition, July 2001, vi.
0 Ibid.
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5.5. Investigation in Pakistani Laws: Formation of Investigation Board or
Special Inquiry Commission
In accordance with CAR, the DG has the power to appoint one or more investigators in
case of any accident/incident that occurs in the territory of Pakistan.0 The investigator(s)
appointed by the DG has the power to issue summons, take evidence on oath, order the
production of any document or any part of aircraft before him, and order an autopsy and order
the results of autopsy to be presented before him.0 During the course of investigation he can keep
any document or part of aircraft in his custody. The investigator also has the power to allow any
person or organization to be adversely affected by the investigation to make a statement before
him, either personally or through his counsel.0 Apparently, investigator has vast powers during
the course of his investigation, but he does not work independently and the real power lies with
the DG.
Though the DG has a lot of power, but he has to seek permission of the Federal
Government before appointing investigator in case of serious accident. Similarly, there is an
additional power to establish Board or inquiry to investigate accidents/incidents that rests with
the Federal Government. According to CAR, 19940 the Federal Government has discretionary
power to appoint either board or inquiry in cases to be investigated under Section 4 of Part XV. 0
The provision gives a blanket power to the Federal Government to appoint the Board. According
to this provision it is not mandatory to establish such Boards, but only at the discretion of the
Federal Government. The Government has to conduct only one test that whether it is desirable in
the public interest or not. Subjective terms like “desirable” and “public interest” are open to
0 Rule 273, Section 6 of the Part XV of the CAR, 19940 Ibid.0 Ibid., Rule 274.0 Rule 282, Section 6 of the Part XV of the CAR, 1994.0 Section 4 of Part XV of the CAR, 1994 deals with Investigation of Accidents & Incidents
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interpretation, and with no clear guideline, the term remains vague and open to abuse. The
establishment of the Board will have an abrogative effect on the investigation carried out under
Article 4 of Part XV of CAR, 1994. If the investigations under Section 4 are incomplete, it will
be terminated and all the material related to investigation will be transferred to the Board.0 The
terminating power is to ensure that there should not be two concurrent investigations and that
there would not be any problem of control and power. Here, it is important to mention that a
State can conduct a separate administrative or judicial inquiry, but the state has to ensure that the
two remain totally separate.
5.5.1. Composition of the Board and Objective of Investigation
The Board will have one Chairman, who will be appointed by the Federal Government.
Like the Chairman, the members of the Board will also be appointed by the Federal
Government.0 It is their prerogative to appoint as many members as they deem necessary. It may
appoint the investigator who already conducted the investigation of the accident which is now
the subject of the inquiry as a member of the Board, or attached as a technical adviser.0
The Federal Government should appoint the Chairman who should have knowledge and
experience in one of these three fields, i.e., either legal, aeronautical, or flight operations.0
Similarly, the members should have knowledge and experience of aeronautical engineering, or
flight operations, or other specialist knowledge or experience as may be required for the
particular inquiry.0
0 Rule 285, Section 6 of the Part XV of the CAR, 1994.0 Ibid., Rule 282.0 Ibid., Rule 283 (4).0 Rule 283 (2), Section 6 of the Part XV of the CAR, 1994.0 Ibid., Rule 283 (3).
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Keeping in view the requirements of the international law, objective of Board’s
investigation is not appropriation of blame.0 The objective is to establish the reasons and events
that led to the accident.
5.5.2. Rules of Investigation and Powers of Board
It is important to provide safety and immunity to witnesses and people providing vital
information about the aircraft occurrence or providing access to any part of the aircraft. If people
will fear that their statement will incriminate them, or the evidence provided by them can be used
against them, then they will hide the evidence. In such cases the investigation will not be able to
determine the truth. Therefore, it is important to provide an amount of protection, because as
discussed earlier, the aim of the aircraft investigation is not to put blame but to prevent similar
occurrences in the future.
Annex 13 of Chicago Convention is mindful of such fears and states that findings of the
investigation will not be used to incriminate anyone, and the investigation will not be used in any
other criminal proceedings.0 However, the investigator can be called as expert witness in
subsequent proceedings as was done by National Transport Safety Committee of Indonesia in the
criminal proceeding of a Garuda B737 flight accident (2007).0
Similar provision is available in CAR, 1994 that if a witness fears that his testimony will
incriminate him and refuses to give it, then investigator should inform him that he has to give
testimony and it will not be admissible in evidence in any subsequent criminal proceedings.0 This
gives confidence to a witness to give the true account of the occurrence without any fear. It is
0 Ibid., Rule 284.0 5.12 of the Annex 13 to the Chicago Convention, 1944.0 Andreas Mateou and Sofia Michaelides, Flying in the face of criminalization: The Safety Implications of
Prosecuting Aviation Professionals for Accidents (New York: Routledge, 2016). 0 275(3) of Section 4 of the Part XV of the CAR, 1994.
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important to add this provision to ensure the implementation of true spirit of aircraft
investigation, i.e., prevention.
Unlike any judicial inquiry, the Board is not bound to follow any legal rules of evidence.0
These powers are given to save the credibility of report from technical aspects. It gives more
room to the Board to investigate by not indulging in technicalities. For example, under the rule of
evidence, to be legally admissible, a confession has to be recorded by the Magistrate after
fulfilling all legal requirements.0 The Board does not have power of Magistrate, hence, they are
free to follow the legal rules of evidence. For the purpose of investigation, the Board will have
similar powers as investigator,0 for example, to summon any person as witness, to take evidence
on oath, to order the production of any document or any relevant part or component of aircraft, to
order an autopsy of people who died in the accident. The Board can also hold any document or
part of aircraft in its custody during the duration of investigation.0 With regard to issuing of
summons to call witness, they shall be in writing under the hand of the Chairman of the Board,0
and the summons will specify the time, place and purpose of either taking evidence, production
of document or part of aircraft.0 Taking the cue from CPC, summons are considered as served if
served personally, or through registered post, or left with any person who is apparently an adult
(eighteen years of age) on the last known home or place of business of person who is
summoned.0
The Board also has power to enter and inspect any place where any aircraft, equipment,
or any process relevant to the inquiry is carried out.0 The owner of any such establishment has to
0 Ibid., Rule 286 (1), Section 6.0 Article 39 of the Qanun-e-Shahadat Order, 1984.0 Ibid., Rule 286 (2).0 Ibid., Rule 273, Section 4.0 Ibid., Rule 286 (2), Section 6.0 Ibid., Rule 273 (4).0 Rule 273 (5), Section 4 of the Part XV of the CAR, 1994.0 Ibid., Rule 286(4).
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allow the Board members to enter such establishment.0 Though, more protection is given to the
Board, for example, it is protected against any criticism, contempt, or disturbance,0 the Chairman
has immunity similar as Judge of a High Court,0 but some rights are given to the people and
organization affected by the investigation. The person or organization affected may ask
Chairman of the Board to grant them leave to make any statement or produce any witness. Such
affected person or organization may be represented by the solicitor to examine the witness and
may address the Board on the person’s behalf.0 However, the Chairman has a lot of powers, for
example, to fix the time and place for conducting an inquiry,0 to hold the otherwise public
proceeding of the Board in private, order one witness to leave during the testimony of another
witness, and to exclude the publication of whole or part of evidence in public interest.0
Unlike, the report by the investigator under Section 4, the report of Board will not be
send to the DG but directly to the Federal Government with all the evidence, observations and
recommendations. Any member of the Board can give dissenting opinion and write it separately.0
5.6. Independence of Investigating Board
Independence of investigation Board is an important factor that can ensure an unbiased
report without the interference of third party. Article 5.4 of Annex 13 clearly states that
investigating authority should be independent in their “conduct of the investigation” and also
should have “unrestricted authority over its conduct”. However, there is one restriction on the
0 Ibid.0 Ibid., Rule 286(5).0 Ibid., Rule 292.0 Ibid., Rule 287(3)0 Ibid., Rule 288.0 Ibid.0 Ibid., Rule 289.
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conduct of investigator i.e. conduct should be in accordance with law as laid down in Annex 13
of the Chicago Convention. Besides this there should not be any restriction on the investigation.
However, as discussed, the Board under CAR is not an independent body as it is
appointed by Federal Government, only when they feel the need for it. Furthermore, as there are
no permanent members of the Board, this opens the door to appoint incompetent cronies, or
puppet investigators. The ad hoc appointment system can color the perspective of investigators
that can affect the investigation. The Federal Government can not only meddle with the
appointment and publication of investigation of report, but can ‘advise’ the Board to investigate
a different aspect or investigate more particular matter related to the accident.0 This power can
change the direction of investigation and hinder the independence of the investigating Board.
This is against the spirit and violation of international aviation law.
Interestingly, the Federal Government can ask the Board to reinvestigate the occurrence
if either there is a reason to believe that investigation is not carried out fairly or there is discovery
of new evidence.0 Though, the Federal Government can appoint any other qualified person to
conduct the reinvestigation, but there are hardly any chances that the Board that has allegedly
carried out the miscarriage of justice will come out with different decision that will point fingers
towards them for carrying out or injustice or failure to find out earlier.
Establishment of an independent investigation Board is important for independent and
fair investigation. The investigation should be done by independent qualified experts to ensure
high level of fair investigation so as to avoid future similar occurrences and ensure aviation
safety. The same view was expressed by former Attorney General of Pakistan Anwar Mansoor
Khan, at the PALPA seminar in July 2012.0 Khan while talking about the “legal aspects of 0 Rule 290, Section 6 of the Part XV of the CAR, 1994.0 Ibid., Rule 293.0 Iqbal Mirza, “Palpa seminar: call for early formation of Pakistan Transportation Safety Board,” Business
Recorder, Jul. 4, 2012.
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aviation safety” said that three aspects of law should be amended to ensure aviation safety. First,
laws should be brought in conformity of international conventions. Secondly, aviation safety
should be a priority. Finally, to have an independent investigation board to ensure ‘unbiased
reports’.
The aviation regulations of EU0 also made it obligatory for member states to have a
permanent and independent civil aviation body, and all investigations should be carried out by
such body. The importance of independent body is vital for long term safety of aviation.
A. Disregard for International Aviation Law
Interestingly, legal safeguards provided in Annex 13 are ignored in domestic cases
because of very nature of these regulations and lack of enforcement mechanism of ICAO.0
Annex 13 is not the main part of the Convention and therefore is not directly applicable at
national level as they are not governed by International Treaty Law.0 According to Article 37
of the Chicago Convention, states are not under obligation to implement the safeguards
mentioned in Annexes.0 States have to see the practicality aspect, and ignore those standards,
which are practical. There are only few exceptions where the states have to comply, for
0 Article 6 (1) of the Council Directive 94/56/EC establishing the fundamental principles governing the investigation of civil aviation accidents and incidents, Nov. 21, 1994 states that “Each Member State shall ensure that technical investigations are conducted or supervised by a permanent civil aviation body or entity. The body or entity concerned shall be functionally independent in particular of the national aviation authorities responsible for airworthiness, certification, flight operation, maintenance, licensing, air traffic control or airport operation and, in general, of any other party whose interests could conflict with the task entrusted to the investigating body or entity”.
0 Mildred Trögeler, “Criminalisation of Air Accidents and the Creation of a Just Culture,” Diritto Dei Trasporti, no. 1(2011): 5-6. http://eala.aero/wp-content/uploads/2014/05/Mildred-Tr%C3%AEgeler-EALA-prize.pdf (accessed Jun. 20, 2015).
0 Ibid.0 According to Article 37 of the Chicago Convention the Contracting States only have ‘to collaborate in
securing the highest practicable degree of uniformity in regulations, standards procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation”.
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example, standards about certificates of airworthiness0. However, states have to inform other
states about the difference between ICAO recommended international standard and the
domestic standards, but in cases of difference between recommended practices there is no
need to notify other countries. Practically, states do not even inform other states about
differences in the international and domestic practices, and ICAO failed to enforce these
regulations due to lack of any enforcement mechanism.0 In case of inquiry of
accident/incident Article 26 of the Chicago Convention mention that an inquiry into the
circumstances of the accident should be instituted solely in accordance with procedures set
out by ICAO in ‘so far as law permits’. The last part of the Article provides an escape route
to States to not implement international safeguards. The power of decision-making given to
states under Articles 26 and 38 empowers them to disregard international law and disturb the
uniformity of law.0 There is no doubt that international law should also be amended to
remove these lacunas, and ICAO should be given some power to enforce its rules and ensure
that State parties comply with international obligations.
5.7. Review of Air Crash Investigation Reports in Pakistan
Section 5 Part XV of the CAR deals with the investigation report.0 It also laid the
requirement that the report should be in writing. However, it gives too much power to the DG
with regard to investigation Report. The investigator is under an obligation to forward the
0 According to Article 33 of the Chicago Convention certificates of airworthiness and personnel licenses only have to be recognized as valid by other contracting states if they are equal or higher than the minimum ICAO as mentioned in the Annexes.
0 Mildred Trögeler, “Criminalisation of Air Accidents and the Creation of a Just Culture,” Diritto Dei Trasporti, no. 1(2011): 6. http://eala.aero/wp-content/uploads/2014/05/Mildred-Tr%C3%AEgeler-EALA-prize.pdf (accessed Jun. 20, 2015).
0 Ibid.0 Rule 279, Section 5 of Part XV, of the CAR, 1994.
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complete report and all the material0 that he came in control during the period of investigation to
the DG. In cases of accident, the DG will forward the report and all material thereby to the
Federal Government with his recommendations. During this process the DG has to comply with
recommendations of the Federal Government. Here, there are two important points that show
that aircraft investigations in Pakistan are not free of pressures and external interferences. First,
the DG has a lot of powers. For example, the investigator will submit ‘report’ directly to him.
Furthermore, it is important that at this stage the report is not considered as final. This leaves a
lot of power with the DG to maneuver on the directions of the Federal Government. Secondly, he
is bound by the recommendations of Federal Government this creates the fear that it may
compromises the independence of the DG and by default the integrity of inquiry reports.
Similarly, publication of inquiry report is an important aspect. However, under the CAA
rules it is not mandatory.0 Instead, it is the prerogative of the DG to publish the “whole or any
part of a report”. In this exercise, the DG may publish only a portion or comment for the
guidance of people engaged in flight only to prevent the reoccurrence of such acts.0 The sole
restriction on the power of the DG is that he has to consult the Federal Government before taking
action under this rule. Again the Federal Government can interfere with the publication of
investigation report as well. Such unchecked powers led to the delay in publication of
Investigation Report in case of Air Blue air crash.
However, the powers of the DG are different for the publication of investigation report
relating to the aircraft registered in another contracting state. After receiving the report from the
investigator, the DG is under an obligation to send report to other states (if applicable), for
example, state of registry, state of operator, state of manufacture, and any state that extended any
0 Signed Statements and all other types of Documents. 0 Rule 281, Section 5 of Part XV of the CAR, 1994.0 Ibid., Rule 281(2).
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support or information.0 Following the spirit of international law, the DG is also bound to amend
the report after receiving all the comments or after expiry of sixty days, whichever is earlier.0
After either incorporating the recommendations or annexing them, the DG will send the ‘final
report’ to all the relevant states. Here, interestingly the DG has no discretion to publish or to hide
certain portion, or to delay, or act on the advice of Federal Government. Instead, the DG will act
in the true spirit of Annex 13. However, the State can assert her sovereignty and can deviate
from international rules, when the matter is of a local aircraft, registered, manufactured and
operated locally.
In the last five years, from July 2010 to July 2015, six major crashes occurred in Pakistan
including three commercial,0 two training,0 and one cargo aircraft.0 Though the CAA announced
inquiry for each crash, but failed to publish credible reports of all the crashes. Only reports of
Bhoja and Air Blue crashes were published. It is important to note that reports of these two
crashes were published under media pressure and due to magnitude of accident, while reports of
smaller aircraft crashes never saw the light of day. The reports of two major air crashes in
Pakistan are analyzed in detail below.
5.7.1. Air Blue Air Crash (2010)
On July 28, 2010 an Air Blue aircraft, A-321 AP-BJB, crashed into Margalla hills
Islamabad while circling approach for RWY-12 at Islamabad. It was en-route to Islamabad from
0 Rule 280, Section 5 of the part XV of the CAR, 1994. 0 Ibid., Rule 280 (2).0 Three aircrafts including Air Blue, JS Airline, and Bohja Airline crashed (See Supra for details: footnote
no. 43 at page no. 16). 0 On October 20, 2011, A Piper Seneca training aircraft of Schon Air crashed near Karachi while flying to
Nawabshah. All three people onboard had remained safe. And on February 23, 2012, a two-seater trainer airplane crashed in Model Town Lahore near the residence of Chief Minister Punjab Shahbaz Sharif, killing a woman instructor and a trainee pilot onboard. And
0 On November 28, 2010 cargo aircraft of Russian airline Sun Way crashed in Karachi. (See Supra for details: footnote no. 43 at page no. 16).
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Karachi. The aircraft was completely destroyed and all 152 persons on board, including six crew
members died as a result of this crash. The Government of Pakistan ordered investigation into
the crash under Rule 273 of CAR, as Pakistan was the state of occurrence and state of registry. 0
On March 7, 2011, the final investigation report was submitted to the DG. Representatives of
different accredited bodies assisted in the investigation, for example, BEA0 France Accredited
(state of manufacturer and state of design of the aircraft Airbus A‐321), Senior Safety
Investigator, BEA France, Technical Advisor to BEA France, accredited representative Airbus
flight Safety director, US accredited representative (state of certification/manufacturer of the
engines), US Accredited Representative NTSB, Technical Advisors to US Accredited
Representative, Investigator from Rolls Royce), US Federal Aviation Administration, German
Federal Bureau of Aircraft Accidents Investigation (state of manufacturer of the engines).0
It is important to note that Air Blue’s aircraft, the Airbus A321, was equipped with a
Flight Management and Guidance System (FMGS)0 (the Multifunction Control and Display
Units of FMGS that allows pilot to insert pre-planned flight route from origin to destination and
alternate route) and an Enhanced Ground Proximity Warning System (EGPWS) that can detect
involuntary flight toward terrain and provides warnings against controlled flight into terrain.0
Safety Investigation Board (SIB) investigators found both flight recorders (Flight Data
Recorder (hereinafter referred as ‘FDR’) and Cockpit Voice Recorder (hereinafter refereed as 0 Rule 273 states that “Appointment and powers of an Investigator: (1) For the purposes of an investigation
into any accident or incident occurring in Pakistan territory, the Director-General shall appoint one or more investigators, except that in the case of an accident involving serious injury or death, he shall obtain the approval of the Federal Government for such appointments”.
0 The Bureau d'Enquêtes et d'Analyses pour la sécurité de l'aviation civile (BEA) is the French authority responsible for safety investigations into accidents or incidents in civil aviation.
0 Investigation Report Air Blue Flight ABQ-202 a-321 Reg AP-BJB Pakistan crashed on July 28, 2010 at Margalla hills, Islamabad (Hereinafter, referred as “Air Blue Investigation Report”). Appendix-B “List of international accredited representatives”, 37.
0 The FMGS system provides predictions of flight time, mileage, speed, economy profiles and altitude and reduces cockpit workload, improves efficiency, and eliminates many routine operations generally performed by pilots.
0 Air Blue Investigation Report, 10.
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‘CVR’) and handed it to BEA facilities, France as the state of manufacturer and state of design of
the aircraft Airbus A‐321. The data was retrieved by BEA by downloading the manufacturer’s
read-out device. 27-hours data file was downloaded from the FDR and the CVR.
The report also contained detailed information of aerodrome, communications, landing
procedures at BBIAP, Islamabad etc. Certain pieces of information were described by aid of
diagrams. Similarly, Chapter 7 of the report contained detailed information about weather of
Islamabad on that particular day that it was rainy and cloudy at the time of the crash and the
weather data was provided to flight crew. The captain was fully aware of the weather condition,
and was worried about it.0 During the approach, he ordered the FO to activate the secondary
route and ignored the control tower about the bad weather circuit. The captain ignored the
twenty-one ‘terrain ahead’ warnings by EGPWS in the last 70 seconds before the crash,
warnings by FO, and control tower. The report recorded that the captain was jittery, nervous and
frustrated. According to the report, pilots were not fully aware of their geographical position and
they did not seek radar help. This led to the plane losing track and going astray. Though, the
captain verbally acknowledged that he was turning the plane to the left but in reality he did not
take appropriate measures to ensure that plane should turn left. The CVR recorded several
predictive warnings of ‘terrain ahead’ by EGPWS. The report accused the captain of “most
unprofessional handling” that led to the dangerous situation. The FO was also accused of not
rising to the occasion and pulling the aircraft. However, the FO gave several suggestions to pull
up and turn left. In midst of all the confusion the plane crashed into Margalla Hills.
The SIB reached the spot in the evening and examined the wreckage. The autopsy of
captain was not possible because of condition of his body, while FO’s body was handed over to
0 Air Blue Investigation Report, 22.
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the family for burial by Air Blue administration before arrival of SIB team. Though the aircraft
was completely destroyed but no other damage was caused on land.
The report concluded that the Cabin Crew was duly qualified, well rested and medically
fit, but attitude of the captain towards FO was against the established norms. Weather condition
was also considered as contributing factor by the report, and that the pilot chose procedures in
violation of Air Traffic Control’s (ATC) briefing and established procedure.0
The captain opted to fly approach on Navigation mode and asked the FO to feed 04 way
points (PBD 8-11 on FMS) contrary to ATC briefing and established procedures of “Circle to
Land Runway 12”. The captain chose the non-standard approach, and his request for RH D/W
for Runway 12 for a visual approach was rejected by radar (being contrary to established
procedures at BBIAP). Then his second request for RH D/W for Runway-12 was also declined
by ATC Tower due to procedural limitations. The radar also warned it to be very close to NoZ of
Islamabad. The captain did not pay any attention to the warning and failed to pull up, or apply
Take-Off-Go-Around thrust, contrary to the established SOPs. The report admitted that the ATC
and Radar were preoccupied with bad weather and traffic.
It is interesting to note that parting words of the report that “The accident was primarily
caused by the aircrew who violated all established procedures for a visual approach for RWY-12
and ignored several calls by ATS Controllers and EGPWS system warnings (21) related to
approaching rising terrain and PULL UP.”0 These parting lines defeat the purpose of the aircraft
investigation report, i.e., remedial and preventive, and not accusatory. The report concluded that
it was a self-created unsafe situation that was worsened by an error of judgment and gross
violation of SOPs.
0 The captain opted to fly approach on Nav mode and asked the FO to feed 04 way points (PBD 8-11 on FMS) contrary to ATC briefing and established procedures of “Circle to Land RWY-12”.
0 Air Blue Investigation Report Air, 33.
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The report made some bizarre safety recommendations, for example, Para 13.8 of the
report suggested the New Islamabad International Airport be completed and made functional on
priority”. This may be a suggestion on growing infrastructure but has nothing to do with safety0
or the investigation in hand. Similarly, Para 13.2 suggests that information regarding the
investigation should be provided to public by SIB. This suggestion may be in general public
interest, but not a safety recommendation to save future aircrafts from similar accidents (the
main purpose of conducting the investigation). The report also failed to discuss different theories
for crash, for example, fasting and lack of sleep of captain, (as it was alleged that he was fasting
and prayed all night due to Muslim auspicious day of ‘Night of Mairaj’0), and the theory that
aircraft was hit by automated anti-aircraft gun as it entered the NFZ. It is important to note that
the report did not mention what exactly constitutes NFZ, and did the plane ever enter the NFZ or
not? Furthermore, how the investigators refuted this theory? The report just briefly mentioned
about NFZ while referring to communication between Radar and ATC. As discussed earlier, the
second part of the report contains analysis based on the given facts, it is the duty of investigators
to form hypotheses, and evaluate each hypothesis on the basis of the available evidence and
reject weaker hypothesis. However, in this report no such exercise was carried out to form
different hypothesis and reject weaker hypothesis on the basis of evidence.
An interesting fact about the Air Blue Investigation Report is that a Petition0 was filed in
Peshawar High Court (PHC) against Air Blue with regard to compensation. The Court ordered
0 No information is available about the new safety features that are incorporated at new Islamabad airport. On the contrary, media is abuzz with information regarding design-flaws of the new airport that can hamper the safety of aircrafts. (See for example: Editorial, “Fate of new Islamabad Airport,” Pakistan Observer, September 4, 2016.)
0 ‘Night of Mairaj’ is night of journey and ascension and it refer to two parts of a miraculous journey that Prophet Muhammad (PBUH) took in one night from Makkah to Jerusalem and then an ascension to the heavens on Rajab 27, 621. Muslims consider it as auspicious night and spend the night of Rajab 27 in rituals and prayers.
0 WP No. 4299/2010.
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the submission of the Air Blue aircraft crash investigation report in the Court. Surprisingly, the
PCAA submitted the abridged and flawed version of the investigation report. The PCAA claimed
that they presented the thirty-eight-page summary of an otherwise very extensive three hundred
and thirty-eight-page report. However, some commentators observed that an abridged version or
incomplete report was submitted to save some officials. Regardless of the motive, the PHC
ordered the preparation of new investigation report with the help of international consultants.
The PCAA then presented the new report in the Court.
On the instruction of PHC, the new Air Blue report was prepared with the help of
international consultants. The new report is more extensive and discussed some important aspect
of the accident. The report ruled out the possibility of internal or external blast, and bird strike on
the basis of lack of evidence0. It termed the attitude of the captain as ‘snobbish’ that killed the
confidence of the FO. An important aspect of the report was that it pointed out the inadequacy
due to non-availability of radar monitoring terminal in the ATC tower. There was no visual
augmentation system in the Control Tower, and due to absence of the procedure the ABQ-202
was handed over to the tower, who failed to maintain visual contact on account of low clouds.0
The report pointed out the irregularity in the competence, qualifications and internal
recommendation criteria of Air Traffic Controllers. The controllers were not qualified, had no
on-job training, and were not authorized to independently control civil air traffic.0 Most
controllers were not aware of the modus operandi in case of radar failure. The report equally
blamed the captain for unprofessional handling of the situation and putting the aircraft in
dangerous situation,0 and the ATs for not having established and complete procedures and
0 Final Report: Air Blue Flight ABQ-202 Airbus A-321 Registration number AP-BJB Pakistan Crashed on 28 July, 2010 at Margalla Hills, Islamabad, 33.
0 Ibid., 26.0 Final Investigation Report of Air Blue Crash, 26.0 Ibid., 35.
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instructions. It declared the tower controller as incompetent to deal with the situation and
lamented the wreckage removal, cordoning and security facility as inadequate.
After the submission of the new report, the Court gave its judgment and termed fatigue
and old age of captain combined with bad weather conditions as main reasons for the accident.
The Court noted that ATC failed to provide proper instructions. The judgment also termed the
five-million-rupee compensation by airline to the heirs of victims as appropriate.
It is interesting to note that investigation of aircraft accidents is not free and fair in
Pakistan. The Courts have to intervene to ensure transparent investigation. The PCAA is not
interested in fair investigation to prevent future accidents, but try to save its employees. The
whole culture is to appropriate blame on one or a couple of people/organization. These practices
defy the whole purpose of conducting aircraft accident’s investigations.
5.7.2. Investigation Report of Bhoja Accident (2012)
Another important and unfortunate air crash occurred on April 20, 2012. The Boeing
737-236A of Bhoja Airline was en-route from Karachi to Islamabad with 127 people onboard,
including 121 passengers and 6 crew members. The domestic flight was scheduled to land at
Benazir Bhutto International Airport, Islamabad. The plane got clearance from Air Traffic
Control, but the cockpit crew did not respond to the landing clearance call. The aircraft crashed
into Hussain-abad located at four kilometers from the airport runway. The aircraft was
completely destroyed and there were no survivors.
The Ministry of Defense authorized the investigation of the crash through the issuance of
notification in accordance with Annex 13 of the Chicago Convention. As the aircraft and engines
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were made in the US, the NTSB appointed an accredited representative, who was assisted by
technical advisors from Boeing, the Federal Aviation Administration and Pratt and Whitney.
The final report was released in January, 2015.0 The Report adhered to the format
mentioned in the Appendix (Format of the Final Report) of Annex 13 of the Chicago
Convention.0 It was prepared after the analysis of CVR and FDR data in the US with assistance
of NTSB investigators.0
The report ascertained that the pilot and the FO of the aircraft were not trained to fly this
advanced version of the Boeing. According to the curriculum submitted to the investigating
team by Bhoja Air, automation of flight deck0 was not taught as they were taught about Boeing
737-200.0 However, the plane was the advanced version of the Boeing 737-200 series i.e. Boeing
737-236A that was equipped with automated flight deck.0 Both pilot and FO were inexperienced
in handling wind shear0/ Terrain Awareness Warning System (hereinafter referred as ‘TAWS’)
warning recovery techniques while managing an automated flight deck.0 The crew’s lack of
expertise to handle automated flight deck was one of the main reason for the crash.
0 Aircraft Accident Investigation into M/S Bhoja Air Flight BHO-213, Boeing 737-236a, Reg. # AP-BKC crashed on 20th April, 2012 near BBIAP, Islamabad (Hereinafter, referred as ‘Bhoja Investigation Report’). .
0 See above for more discussion. 0 Bhoja Investigation Report, 7.0 Many experts criticized the automation flight deck system for lower standards of flying skills and arguing
that pilots are losing their ability to manually control the aircraft. The problem could be partially controlled by better training and advancement in the automation system. The automation should be more human friendly. See, for further discussion: Eric E. Geiselman, Christopher M. Johnson and David R. Buck, “Flight Deck Automation Invaluable Collaborator or Insidious Enabler?,” Ergonomics in Design: The Quarterly of Human Factors Applications, 21(2013): 13-18.
0 Bhoja Investigation Report, 28.0 Ibid.0 Wind shear refers to a rapid change in winds over a short horizontal distance experienced by aircraft,
conditions that can cause a rapid change in lift, and thus the altitude, of the aircraft. See, Federal Aviation Administration, “Wind Shear,”, 2. https://www.faasafety.gov/files/gslac/library/documents/2011/Aug/56407/FAA%20P-8740-40%20WindShear%5Bhi-res%5D%20branded.pdf (accessed May 20, 2014).
0 Bhoja Investigation Report, 30.
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The report mentioned that the pilot was well aware of the weather condition at and near
Islamabad Airport (wind shear), as the weather conditions at the time of the accident were
conducive to producing strong down drafts0 and wind shear like conditions.0 The pilot was also
aware about the unsafe condition in which the aircraft was but instead of taking remedial action
he relied on automation to get out of the dangerous situation.
The report questioned the decision of the pilot to continue the flight to the original
destination in view of the prevalent weather conditions and not diverting to alternate destination.0
Lastly, the report blamed PCAA for not ensuring appropriate training and monitoring of the
variants of Boeing. However, in the same it clears PCAA from its responsibility by blaming the
Bhoja Air management for not providing the correct information about the type of Boeing.
It is important to understand that Bhoja Air obtained all relevant approvals after all the
checks in January 2012, by two inspectors of PCAA at Johannesburg, South Africa.0 The
inspectors failed to successfully check the EGPWS/TAWS as the aircraft was parked inside the
hangar. The report also admits that the Inspectors were not experienced enough so they failed to
observe the automation of flight deck. So, subsequently flight standard also could not keep a
close watch on the Bhoja Air cockpit crew’s competence skill level to manage automated flight
deck as Simulator Recurrent Training Evaluation was not monitored by Flight Standard
Directorate.0
Here the critical question is who is responsible for inexperience of inspectors who failed
to identify the model of the aircraft after such detailed inspection and approval? The PCAA
0 Ibid, 72.0 Ibid., 74.0 Ibid., 76.0 Reportedly two inspectors of the PCAA, Shaukat Hameed and Javed Afzal after detailed inspection of the
aircraft at Johannesburg gave clearance to Bhoja Air. They pointed certain issues that were later removed. 0 Bhoja Investigation Report, 31.
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should not claim lack of knowledge about the variance in the model after giving approvals and
cannot avoid its responsibility in this regard.
Though, the investigation report followed the structure as mentioned in Annex 13, as
discussed above, but it is very brief. Investigation reports must contain detail analysis, but the
Bhoja’s Air report is silent about it. It carried all the factual information, detailed conversation
between control tower and cabin crew, between pilot and FO but not a detailed analysis of these
conversations. Moreover, in the true spirit of air crash investigation report it should be remedial
in nature and not accusatory.
After analyzing investigation reports of both Air Blue and Bhoja Air, it is easy to
conclude that Air Blue investigation report is more detailed in terms of analysis. The Bhoja Air
investigation report reproduced long conversation without much analysis of data. On the
contrary, the report gives analysis of the conversation, and concludes the situation on the basis of
recorded evidence. However, both reports have accusatory tone that is more apparent in Air
Blue’s report than Bhoja Air report.
After analyzing both investigation reports, it is evident that there is dire need of an
independent investigation board in light of international aviation law and regulations. Both
reports defeat the basic spirit behind aviation investigation, i.e., not to blame but to ensure that
such incidents should not reoccur. Also, the dissatisfaction of judicial authorities over quality of
investigation and emphasis on having independent board are important to ensure aviation safety
in Pakistan.
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5.8. Investigation Procedure of Armed Forces’ Aircrafts Accidents
Though the focus of this thesis is the laws regarding civil aviation, but it is not totally out
of place to discuss the laws and regulations of military aviation regarding investigation.
Furthermore, it is important to mention that the investigation of armed forces aircraft is not
governed by the Chicago or Paris Convention. However, before discussing the law regarding the
investigation of armed forces, it is important to identify what a military aircraft is. Lastly, it is
necessary to identify the link between the state and military aircraft.
The Convention for the Regulation of Aerial Navigation (the Paris Convention, 1919)
differentiates between private and state aircraft. Article 30 of the Paris Convention gave a list of
what is considered as state aircraft as including military aircraft, aircraft exclusively employed in
a State service such as posts, customs and police. The Article declared that all other aircraft
should be considered as private aircraft. Moreover, all state aircrafts, other than military, customs
and police aircraft shall be treated as private aircrafts and as such shall be subjected to all the
provisions of the Convention.0 After defining state aircraft, Article 31 of the Paris Convention
specifically described military aircraft as “every aircraft commanded by a person in military
service detailed for the purpose shall be deemed to be a military aircraft”. 0 The Chicago
Convention too gave the similar understanding of state aircraft, i.e., an “aircraft used in military,
customs and police services shall be deemed to be State aircraft”.0
Though, many military aircraft crashed in Pakistan and resulted in the killing of some of
very important people, aircraft of Air Chief,0 Army Chief0, and a military aircraft carrying 0 Article XXX of the Convention Relating to the Regulation of Aerial Navigation Signed at Paris, October
13, 1919.0 Ibid., Article XXXI.0 Article 3(b) of the Chicago Convention, 1944.0 On February 20, 2003 the Fokker F-27 carrying Air Chief Marshal Mushaf Ali Mir crashed near Kohat.
All seventeen people on board were killed because of this crash.0 On August 17, 1988, a C-130 Hercules plane crashed after a takeoff from Bahawalpur airport. As a result
of crash Chief of Army Staff General Zia ul Haq died along with Chairman Joint Chiefs of Staff Committee
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ambassadors of different countries,0 however, there is little information about the procedure that
is followed by the military forces in cases of investigation of these aircrafts. These investigation
reports are not made public and are kept secret as it is not necessary. For the purposes of this
thesis, every effort was made to obtain a copy of rules governing the investigation of military
aircraft accident but due to the sensitive nature of the issue it was not possible. However, in cases
of an accident of military aircraft the Service Chiefs order the investigation. According to
Section 106(A) of Pakistan Air Force Act, 1953, an inquiry Board can be constituted for any
matter.
Similarly, Section 56 of the Pakistan Army Act, 1952 lays down punishment for offences
related to aircrafts. It includes acts that cause or are likely to cause destruction or loss of aircraft,0
or part of aircraft,0 or committed an act or omission that caused or likely to cause loss of life or
bodily injury to any person, cause of destruction of aircraft in neutral state, or dispossess any
service-aircraft without due authority. The Act prescribes fourteen years of rigorous punishment
in cases of voluntarily act and up to five years rigorous punishment in case of non-voluntary acts.
However, it is not possible to analyze the investigation of military aircrafts in Pakistan
without having rules for investigation and investigation reports of different aircraft accidents.
The Rules and Military Manual for the aircraft Registration are not available for general public
and similarly investigation reports are also kept confidential. The primary reason to keep such
reports secret is that there is no international requirement to make public the reports of such
investigation. Secondly, the reports are kept away from public eye to keep military secrets safe,
General Akhtar Abdur Rehman and the US Ambassador to Pakistan, Arnold Lewis Raphel.0 On May 8, 2015, a Mil Mi-17 twin-turbine transport helicopter of Pakistan Army's Aviation Corps crashed
in Naltar, Gilgit. Out of twenty people on board eight died including the ambassadors of Norway, Ambassado of Indonesia and the ambassador of Philippines to Pakistan, spouses of the Indonesian and Malaysian ambassadors to Pakistan, and three crew members.
0 Pakistan Army Act explained that aircrafts include aero plane, balloons, kite balloons, airships, gliders or other machines for flying.
0 Part of aircrafts includes different components, for example, engines.
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as often these aircrafts are loaded with weapons and missiles. Though, it may be noted that the
military manual and aircraft investigation of military aircrafts of other countries are easily
available.
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CONCLUSIONS AND RECOMMENDATIONS
SUGGESTIONS FOR FILLING THE GAPS IN LEGISLATION IN PAKISTAN AND IMPROVING INTERNATIONAL AVIATION LAW
Sustainable growth of aviation is possible only if laws are coherent and institutions are
independent and proactive, so that they can ensure safety and development of aviation. In the
beginning of this thesis certain issues and research questions were raised, and after detailed legal
analysis of both domestic and international aviation laws following points are concluded that
comprehensively answer those research questions and issues.
The main points of this work may be summarized as follows:
The ICAO Should Play a More Proactive Role
The ICAO needs to be more proactive and cohesive to take swift and prompt actions. It
should be more persuasive and influential to achieve consensus among states to take steps
towards the development of aviation, for example, consensus to adopt Market Based
Mechanism (MBM) to curb emission from aviation.
Extension of Airspace Sovereignty to Adjoining Territories
In accordance with the objectives laid down in Article 44 of the Chicago Convention, the
ICAO should take measures to ensure the safety of aviation. The recent events of aviation
sector coming under attack in the center of armed conflict, for example, the shooting
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down of MH17 in Ukraine and civilian aircrafts used as a tool in the act of terrorism give
enough reasons to the ICAO to review laws in order to make aviation more safe. The
concept of Air Defense Identification Zone in preventing such occurrences is relevant and
should be incorporated for all states, and not just for few powerful states. The Air
Defense Identification Zone can help states keep terrorists at bay.
There Should be a Hierarchal Link Between the Council and Appellate Bodies
According to Chapter XVIII0 of the Chicago Convention, the ICAO’s Council0 has
jurisdiction to settle disputes between states. The proceedings ensure a fair trial as it
prohibits parties to the dispute from participating in the decision-making process.
However, the states have a right of appeal against the decision of the Council to non-
ICAO bodies, i.e., the ad hoc arbitral tribunal or to the ICJ.0 Similarly, International Air
Transit Agreement and International Air Transport Agreement, also provide identical
solution regarding the settlement of disputes, that when negotiations fail the provisions of
Chapter XVIII of the Chicago Convention may be employed0. The important point here is
that the appellate bodies are not under obligation to respect or follow the findings of the
ICAO and this renders the status of the Council less important. States will never show
due respect to a weak and handicapped Council. To make the Council’s right of dispute
settlement more effective there should be some hierarchical and legal link between the
Council and appellate bodies. Till such hierarchical link is established the Council is just
a feeble legal body.0 Chapter XVIII of Chicago Convention ‘Disputes and Default’. It consists of five Articles (Article 84 to
88). It provides the detail mechanism for the settlement of disputes between states by the Council of ICAO.0 See 2.1.1 Composition and Functions of The ICAO, p. 51. 0 According to Article 84 of the Convention the reference to the PCIJ is made. However, the PCIJ
discontinued and is replaced by the ICJ.0 Article II, Section 2, Transit Agreement, 1944.
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Robust Role of the Council as Adjudicator
Similarly, the Council itself is less eager in employing its adjudicatory functions and
more interested in using its good offices for settlement of disputes. As discussed earlier,
there are many examples of formal complaints to the ICAO but it did not pronounce a
formal judgment in all mentioned cases and settled them through negotiation and
conciliation. The Council has to present more a robust outlook with regard to its role of
adjudication.
Consequences for Non-Compliant States
Though, the Council imposes strict consequences on non-complying air carrier, but the
penalty for non-compliant state is almost non-existent. Chapter XVIII of the Chicago
Convention provides that a non-compliant airline will be prohibited from passing through
the airspace of member states,0 but non-compliant state will only get its voting right
suspended.0 The state does not lose much as the non-participating state is not bound to
ratify amendments especially in the case of the Chicago Convention0, hence, there is no
fear of new legal obligation. The ICAO is losing its position as a primary conflict
resolution body with regard to transport.0 it is suggested to adopt the WTO mechanism to
settle disputes, where only aggrieved party takes action against the state that fails to
comply with decision of the Council or appellate forums.0 In this case, the decision would
be implemented more effectively as the aggrieved state has vested interest in the decision. 0 Article 87 of the Chicago Convention, 1944.0 Ibid., Article 88.0 Ibid., Article 94. 0 See, for details 2.1.3. Jurisdiction of the International Civil Aviation Organization, 54.0 Brian F. Havel and Gabriel S. Sanchez, The Principles and Practice of International Aviation Law,
(Cambridge University Press, 2014), 66.
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It is important to have some serious consequences for non-compliant states to create
effective deterrence.
The Civil Aviation Authority of Pakistan Should Be More Independent
Since its establishment in 1982, the Civil Aviation Authority of Pakistan (PCAA) was
never an independent body as it was under the control of the Ministry of Defense till June
2013, when it was put under the control of Cabinet Secretariat (Aviation Division).0
Though, the PCAA underwent changes to be more complaint with that ICAO but it still
needs to be more independent. The Federal Government can issue directives to the PCAA
that will be binding. Similarly, the Director General (DG) of PCAA is the most important
person vested with a lot of authority but instead of the PCAA board appointing him he is
appointed by the Federal Government. Political appointees hardly ensure neutrality and
effectiveness. The Government should give more autonomy to that PCAA as is the case
with the regulatory authorities in other countries, for example, Section 38 (1) (d) of the
UK’s ‘Civil Aviation Act, 1971’ gives power to Board to appoint “chairmen, deputy
chairmen and other members of the corporations”.
Protection of Environment for Sustainable Development of Aviation Sector
Aviation is considered as vital industry that is growing rapidly. However, for sustainable
development of aviation it is important to reduce and contain its adverse effects on
environment. The ICAO has an ambitious aim to achieve Carbon Neutral Growth (CNG)
from year 2020 and it has laid down strategy to cap emission through different ways that
0 The Aviation Division has been created vide Government of Pakistan Cabinet Secretariat Letter No.4-8/2013 dated 7th June 2013. This division deals with all matters related to civil aviation in the Country. It is headed by Secretary, Aviation Division, and is assisted by two Joint Secretaries, four Deputy Secretaries and ten Section Officers along with the relevant supporting staff.
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include manufacturing fuel efficient aircraft, operational management, introducing AAF,
taxing the fuel, and devising a MBM to reduce emissions.0 The ICAO has already
decided upon new standards for improving aircraft technology0 that are applicable
gradually from voluntary application to mandatory application. These standards will be
applicable on all new aircrafts launched 2020 onwards and old aircrafts will be
completely phased out by 2028. These new standards will help to reduce 300-650 million
tons0 of carbon emissions between 2020 and 2040. Though, Pakistan does not have an
aircraft manufacturing industry but it still must incorporate all these standards in its
domestic legislation to ensure that all aircrafts adhere to the new environmental
standards. Pakistan should start preparatory work to adopt new offsetting rules.
Market Based Mechanism for Capping Carbon Emission
The ICAO concluded that among all methods to cap emission, the best is a market based
mechanism (MBM), because they are effective and flexible. Three different types of
MBM were discussed by the ICAO including levies,0 emissions trading,0 and offsetting.0
However, it was held that offsetting is more effective than reducing emission in aviation
sector as many airlines have already adopted voluntary carbon offsetting program, for
0 A37-190 10th Meeting of the CAEP, 2016.0 According to White House Fact Sheet the reduction will be closer to 650 Million tons, but ‘Transport and
Environment’ an international environment group estimates the reduction closer to 300 Million tons. 0 ‘Levies’ is either in the form of ‘tax’ or ‘charge’, the ‘levies’ in form of ‘tax’ is collected revenues from a
specific activity (in this case aviation) are then pooled in with revenue from other sources and may use to facilitate other activities. And in case of ‘charge’ the revenue is collected from a specific activity (in this case aviation) for providing facilities related to the same activity (aviation). See, 3. 4.2. Market Based Mechanism.
0 Emission Trading is mechanism whereby companies receive or buy emission allowances that they can exchange or trade with others. The mechanism provides enough flexibility so that emissions are reduced in a very cost effective way.
0 Offsetting gives opportunity to polluter not to reduce its own emission but reducing emissions in another sector or location. It is important to note that to protect environment the only thing necessary is overall reduction of emissions regardless of the fact that reduction is from which sector.
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example Delta Airlines.0 The ICAO Assembly’s Resolution A38-18 also decided to adopt
the MBM, along with other measures to achieve the goals of CNG-2020. The Council
was advised to prepare a feasible MBM that ensures sustainable growth, and reduces
overall emission levels. The ICAO is moving towards adoption of Carbon Offsetting
Scheme for International Aviation (COSIA)0 that is a thoughtful approach giving due
attention not only to different circumstances and capabilities of states, but also to new
entrants and small emitters.0 The phase-based approach will give more confidence to the
developing countries to come at par with developed countries, as well as these states can
learn from the experience of first phase that will be applicable on more developed
countries in the first phase. The system is protective, but still needs to review that
whether too much exemption will lead to ineffectiveness of the whole scheme. This
analysis is only possible based on the date of different exempted routes and expected
growth. The International Air Transport Association and the ICAO have the ability to
foresee the trend and take the right decision.
Adoption of Alternate Fuels to Protect the Environment
Carbon offsetting is not the only way to control emission as there are other methods that
should be adopted to ensure reduction of emissions, for example, the usage of alternate
fuels. The Alternative Aviation Fuels (AAF) like bio-fuels can help in reduction of
emissions but it is necessary that these fuels be economically viable and environment-
friendly. Furthermore, it is important that these AAF should be similar to conventional
0 See for details: 4.4.3. Offsetting Program.0 See for details: 3.4.4. ICAO’s Strategy to Adopt the Best Market Based Mechanism.0 Environment, Air Transport Bureau ICAO, ICAO High-level Meeting on a Global Market-Based Measure
(MBM) Scheme-ICAO Pre-event Briefing, 2016. http://www.icao.int/Meetings/HLM-MBM/Documents/20160504_HLM_Pre-Event_Draft%20AR%20text_V05.pdf (accessed Apr. 30, 2016).
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fuel with regard to their components and properties. In other words, these fuels should be
a ‘drop-in’ that does not need any additional changes in the structure of the aircraft to use
these fuels. Otherwise, we need to replace the older aircrafts with newer version that will
be costly and difficult to incorporate. The emission level from AAF will be similar, but it
will help by not increasing or producing additional carbon emission. According to the
ICAO, the AAF are considered as neutral, and helpful in reduction of carbon emission.0
Another important aspect is that production of bio-fuels should not come in conflict with
food and water and there should not be an additional strain on food resources available
for human consumption.
Reduction in Noise Pollution
Noise pollution from aviation is a great hazard for residents and workers of nearby
locality alike. As discussed earlier, it not only hurts directly, but also indirectly
contributes to different health conditions. The ICAO Resolution A37-18 advocates a
‘balanced approach’ to control noise pollution that focuses more on technological
improvement, reduction at source, land-use planning and management, noise abatement
operational procedures and operating restrictions0 rather than imposing charges. The
ICAO gave discretion to states to make their own environmental strategy in accordance
with the principle laid down by it but they have to adopt a balanced approach.0 It is
necessary for states to find a balanced approach that should not put extra economic
burden on airlines.0
0 See for details: 3.5.1. Alternate Aviation Fuels. 0 Appendix C of A37-180 Ibid., 2(a).0 Appendix D, Provision 1 of the A37-18.
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Pakistan Should have Policy to Control Aviation Related Emissions
Pakistan is one of the ten states that are under serious threat from climate change0 and it
is estimated that if adequate action is not taken to curb emission then it will reach 400
million tons of CO2 by 2030, as it is increasing at 6% annually.0 Pakistan has to make a
comprehensive environmental policy to specifically control emissions from aviation and
has to ensure that the ICAO’s prescribed standards are fulfilled. Pakistan should make an
action plan and submit it to the ICAO as is done by the majority of states. Charge should
be levied on air carriers that are producing more emissions and noise than that mentioned
in the NEQS0 in accordance with Sections 6 and 11 of the PEPA with the aim to ensure
sustainable development. Similarly, Section 31 can be used to impose specific charge to
aviation and there is need to have mechanism to record and report accurate emission. The
charge imposed on noise and emission from aviation should be incentive based and the
purpose should not be to generate income but to reduce emissions. As discussed earlier,
Pakistan can take inspiration from countries like Sweden0 for imposing charges, and
make a comprehensive mechanism keeping economic, social, and environmental aspect
in view as directed by Assembly’s Resolution A38-18 (2013). However, the income
generated from charges should be used to reduce emission from some other sector in the
meanwhile and scientific development undertaken to reduce emission from aviation.
0 Pakistan is under threat of climate change related flood and agricultural effect. See, LEAD Pakistan, “What countries are most at risk from climate related threats,” http://www.lead.org.pk/cc/basicguide_climate_change.html#10 (accessed Dec. 10, 2015).
0 Reuters, “Pakistan crafts plan to cut carbon emissions 30% by 2025,” Tribune, Jun. 10, 2015. http://tribune.com.pk/story/901172/pakistan-crafts-plan-to-cut-carbon-emissions-30-by-2025/ (accessed Jul. 20, 2015).
0 Under the power conferred to Pakistan Environmental Protection Agency under Section 6 of the Pakistan Environmental Protection Act, 199 following National Environmental Quality Standards are made to regulate the air emissions and effluents of industry and other big polluters; National Environmental Quality Standards for Ambient Air, Pakistan Environmental Legislation and Environmental Quality Standards, and National Environmental Quality Standards for Municipal and Liquid Industrial Effluents.
0 See for details: 3.7. Laws in Pakistan to Curb Pollution Emitted by Aviation Sector.
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National Climate Change Policy of 2012 in Pakistan also urged the Government and
national airlines to adopt new fuel-efficient technology to minimize carbon emissions.0
The policy also recognized the importance of better air traffic management, improved
weather services and free flight route to improve fuel consumption. However, the policy
contradicts the efforts of the ICAO as it urged the Federal Government to resist and not
participate in the ICAO strategies because it is perceived to add extra financial strains on
developing states. However, this is erroneous as the ICAO’s policy is to ensure
sustainable growth without putting undue burden on air carriers. Pakistan should actively
participate in the ICAO’s initiatives and ensure that they are adopted. Lastly, Pakistan
needs to have separate environmental policy with regard to special focus on aviation.
Carbon Tax Should Be Introduced in Pakistan
Pakistan should charge carbon tax as suggested by Sartaj Aziz, Advisor to the Prime
Minister on Foreign Affairs, but, not to generate income but to discourage pollution and
to encourage polluters to reduce their emissions. However, a detailed scientific study is
required to study the impact of carbon tax on reduction in emission from aviation and it
should include how different level of taxes will impact the emissions. The study should
clearly state the economic impact and burden of the tax on the airlines. However,
normally small carbon taxes are preferred as they help in cutting emissions without any
extra burden on the producer. Such a study requires resources, expertize and may take
years to complete, but we have to take a step in right direction to protect our
environment.
0 Government of Pakistan, Ministry of Environment and National Climate Change Policy, 2012, 26.
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Power of the Director-General Should Be Regulated in Case of Aircraft Registration
in Pakistan
The rules regarding aircraft registration are to the most extent in accordance with
international rules as the Chicago Convention leaves it up to individual states to make
rules and regulations with regard to registration. However, great amount of power is
entrusted to the DG as he can decide the form of the register to be maintained and he can
put restriction on the open inspection of the register. The power of the DG should be
regulated to make the inspection of the register fairer and free.
Rules of Airworthiness in Pakistan Should Be Amended
In accordance with Rule 16-22 of the Civil Aviation Rules, 1994 (CAR), as discussed
earlier,0 the DG has vast authority with regard to issuance, validity, time period,
cancelation, and suspension of certificate of airworthiness. The DG has sweeping powers
with little or almost no need to give reasons of such belief though he has to take prior
approval of the Federal Government before cancelling the certificate of airworthiness.
The involvement of the Federal Government will give way for political influence and
arm-twisting. Amendments are necessary to make the decision-making process more
structured and clearer in order to ensure safety of aircraft and passengers otherwise safety
unworthy aircrafts will continue to put lives of passengers in jeopardy.
0 See 4.2.1. Rules of Airworthiness in Pakistan, 131.
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Liability Laws in Pakistan Should Be Updated
As signatory of the Montreal Convention, Pakistan passed the Carriage by Air Act in
2012. The Act added the older version of the Montreal Convention in its fourth Schedule.
The amount of different liabilities of air carrier is less than the amount that is fixed after
the first review. These amendments came into force in 2009, three years before the
passing of this Act. The relevant corrections should be made to make the Act more up to
date. The Act limits liability, in case of death or bodily harm to passengers during
domestic operation, to Rs. 5 million and in case of delay double amount for ticket or
actual damage sustained, whichever amount is less.0 However, air carriers are free to
enter into contracts with passengers and can increase or decrease their liability. The Act
declared one thousand rupees per one kilogram for a passenger/consignor in case of
destruction, loss, or damage of baggage or cargo. However, the Montreal Convention
fixes the liability of air carrier for the death or bodily injury at 100,000 SDR 0 that comes
to approximately more than fourteen million Pakistani rupees. In case of destruction, loss,
and damage of baggage is limited to one thousand SDR per passenger that approximately
amounts to 0.14 million rupees. Though there is no doubt that the Act of 2012 is
comprehensive, it needs to be more at par international conventions with regard to
compensation. The amount of liability should be at par with changing amounts in
international conventions. Similarly, the amount already mentioned in the Act of 2012
should be fully paid to the victims or legal heirs as the current amounts have never been
paid in full in the entire history of Pakistan.
0 Rule 22(1) of 5th schedule of the Carriage by Air Act, 2012.0 The amount is now increased to 113100 SDR as discussed above.
212
Pakistan Should Have Comprehensive Mechanism to Control the Unruly and
Disruptive Behavior On Board
Appendix G of the ICAO Circular 288-LE/1 provides model legislation for states that can
be incorporated in their domestic law. In the light of the Tokyo Convention, rule 1130 of
the CAR prohibits the unruly and disruptive behavior on board that criminalizes different
acts including interference with working of crew members, offensive or disorderly
behavior, and any act that threatens the safety of the aircraft or of persons on board the
aircraft etc. The punishment and fines are also laid down to punish these acts. However,
more stringent clauses should be added that can empower airlines to recover damages
because of unruly behavior of passengers especially in cases of diversions. Moreover,
Pakistan should lay down comprehensive policy for guiding airlines ascertaining when
the incident of disruptive behavior crosses the red line. The best example in this regard is
the Canadian Guide for ‘Implementing Regulations Regarding Unruly Passengers and
Incidents of Interference with a Crew Member’0 that lays down clear procedure in case of
different stages of unruly behavior and safety measures that should be taken by the crew
members.
Independent Aircraft Accident Investigation Board in Pakistan
According to Article 26 of the Chicago Convention the state where the aircraft accident
occurs has the jurisdiction to conduct an inquiry.0 Though in cases where no death or
0 Rule 113 of PART IX of CAR, 1994.0 (Advisory Circular (AC) No. 700-010)0 Article 26 of the Chicago Convention “In the event of an accident to an aircraft of a of accident contracting
State occurring in the territory of another contracting State, and involving death or serious injury, or indicting serious technical defect in the aircraft or air navigation facilities, the State in which the accident occur will institute an inquiry into the circumstances of the accident, in accordance, so far as it laws permit, with the procedure which may be recommended by the International Civil Aviation Organization. The State in which the aircraft is registered shall be given the opportunity to appoint observer to be present at the
213
serious injury is caused the domestic law will be applicable on investigation and
deviation from international standards is allowed. However, in case of serious accidents
procedure mentioned in Article 26 is applicable. In Pakistan, the DG is entrusted with
amazingly sweeping powers that includes power to issue summons, take evidence on
oath, order the production of any document or any part of aircraft before him, and order
an autopsy and order the results of autopsy to be presented before him.0 During the course
of investigation he can keep any document or part of aircraft in his custody. Once again,
the Federal Government has the power to constitute investigation board/commission only
if they so desire and in public interest. The terms are vague and open to abuse or misuse.
There should be a permanent investigation board, not to be selected by Federal
Government but by an independent board. An independent national board for all sorts of
accidents including aviation accidents can be established keeping in view the example of
the US’s National Transportation Safety Board and the UK’s Air Accidents Investigation
Branch have separate transport investigation board that is independent of the regulatory
board; however, in Pakistan the Security Investigation Board (SIB) was under the control
of the PCAA till 2015. Finally, National Aviation Policy (2015) made it independent
under which the investigation board will report to minister of aviation. It is a right step
but to make the SIB more independent it is important that it should be able to elect their
own head and free of Federal Government’s influence. Otherwise, chances are that
neutrality and fairness will be difficult to achieve.
Air Accident Investigation Process
inquiry and the State holding the inquiry shall communicate the report and findings in the matter to that State.”
0 Ibid.
214
In international law, the objective of investigation is not to appropriate blame,0 but to
establish the reasons and events that led to the accident and prevent such accidents in
future. However, the study of Air Blue and Bhoja Air crash investigation reports clearly
indicate that in Pakistan the purpose of the investigation is to appropriate blame and
identify the culprit rather than to ensure prevention. The report is submitted to the DG
who has powers to maneuver and alter the report before submitting it to the Federal
Government. The DG should be required to follow the instructions mentioned in Annex
13 rather than instructions of the Federal Government. The power of the DG should be
curtailed and necessary rules should be made for free, fair, comprehensive, and targeted
investigation as well as its publication. The cases of Air Blue crash and Bhoja crash
investigation reports depict that investigators are more interested in developing reports
that are accusatory and not remedial in nature. Thus, Courts intervene to ensure opacity
as the PCAA was not interested in fair investigation to prevent the future accidents but
was trying to save its employees. The whole culture of investigation is to appropriate
blame on one or couple of people/organization. These practices defy the whole purpose
of conducting aircraft investigation. Therefore, it is important to have an independent
investigation board in the light of international law and regulations. The Board should be
independent and there should be no role of the Federal Government neither in its
constitution nor in its and working. The report of investigation should be made public in
accordance with spirit of international guidelines.
In light of the objectives of this thesis it is hoped that all major legal issues related to
aviation are analyzed and numerous gaps in domestic legal regime are pointed out. The thesis
0 Rule 284, Section 6 of the Part XV of the CAR, 1994.
215
not only highlighted lacunas and issues related to independence of investigation Board,
structure of the PCAA, lack of laws for emission control, and inadequate laws regarding air
carrier liability but solutions are also suggested to solve these issues in light of international
obligation.
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Airports in Pakistan
229
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Annex II
Expected Effect of Different Measures on Capping Carbon Emission
230
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Annex III
231
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232
