Foundations of Aviation Law Michael W. Pearson and Daniel S. Riley © 2015 978-1-4724-4563-6 (paperback) 978-1-4724-4560-5 (hardback)

Chapter 15 International Aviation Law Foundations of Aviation Law Chapter 15 International Aviation Law

Chapter Objectives After reading this chapter, you should: understand what rights are afforded to a defendant who is being prosecuted pursuant to the Tokyo Convention; understand how annexes are added to the Chicago Convention; be familiar with the distinction between the Warsaw Convention and the Montreal Convention; understand how the ICAO is organized and the scope of its authority; know the five freedoms of the air; understand the role of the DOT and the European Aviation Safety Agency in applying international aviation agreements. understand the distinction between a restricted bilateral agreement and an open skies agreement;

International Aviation Law International Airspace International law generally accepts that a country’s sovereign airspace includes the airspace above a country as well as the airspace above a country’s territorial waters. Territorial waters extend 12 nautical miles out from a nation’s coastline. Airspace not within any country’s territorial limit is considered international. A country may, by international agreement, assume responsibility for controlling parts of international airspace, such as those over the oceans or the poles.

International Aviation Law The Chicago Convention The Second World War created not only the means for international air travel but also the will. The magnitude of the war left world governments with a firm desire to usher in a new era of cooperation and peace. Delegates from 52 countries signed the Convention on International Civil Aviation shortly before the official end of hostilities in Europe. The agreement is generally referred to as the Chicago Convention because it was signed in Chicago, Illinois. The Convention established a framework that resulted in a common system of international aviation rules. It included provisions for safety and environmental regulations, and also defined the rights and obligations of every nation as they relate to international airline operations.

International Aviation Law The ICAO In order to foster the development of a uniform approach to air regulations, the Chicago Convention created an international governing body – the ICAO. The ICAO is body of the UN and it is responsible for developing uniform air transportation standards that apply to international flight. The ICAO is divided into three branches: the Assembly, the Council, and the Secretariat. The various bureaus within the ICAO are responsible for implementing safety plans and environmental protection policies, and for monitoring the effectiveness of the ICAO’s Standards and Recommended Practices (SARPs). The Council is the rule-making body of the ICAO and is responsible for debating and adopting SARPs for air travel.

International Aviation Law The ICAO’s Rule-Making Authority SARPs concern specifications for physical characteristics, materials, configuration, performance, personnel, or procedure. If approved by two-thirds of the Council, SARPs are incorporated into the Chicago Convention as Annexes. Standards are considered necessary for the safety or regularity of international air navigation. To date, the ICAO has adopted 18 Annexes to the Chicago Convention dealing with issues such as the training and licensing of aviation personnel, airworthiness, ATC, accident investigation, and environmental protection. Annexes are not laws and the ICAO does not have legal authority to enforce them.

International Aviation Law Freedoms of the Air At the Chicago Convention, the US urged the delegates to adopt a set of aviation rights known as freedoms of the air. The freedoms of the air were placed in two separate agreements called the International Air Services Transit Agreement and the International Air Transport Agreement. These agreements are open to any country that signs the Convention on International Civil Aviation.

International Aviation Law First Freedom of the Air The first freedom is the right granted by one country to another to fly across its territory without landing. For example, an airline of country A may overfly country B enroute to country C. The first freedom is sometimes called either the transit freedom or the technical freedom. First freedom rights are almost always granted with prior notification of the flight usually required.

International Aviation Law Second Freedom of the Air The second freedom is the right granted to land in a country for technical reasons, such as refueling or maintenance, but not for commercial reasons. For example, an airline from country A might land in country B to refuel or perform maintenance while on its way to country C, but it is not allowed to load or unload passengers.

International Aviation Law Third Freedom of the Air The third freedom is the right granted by one country to another to land for the purpose of disembarking passengers who boarded in the originating country. For example, an airline of country A is permitted to enplane passengers in country A, fly to country B, and disembark the passengers there.

International Aviation Law Fourth Freedom of the Air The fourth freedom is the right granted by one country to another to land for the purpose of enplaning passengers to return to the airlines country of origin. For example, an airline of country A is permitted to enplane passengers in country B and return them back to country A.

International Aviation Law Fifth Freedom of the Air The fifth freedom is the right granted by one country to another to land in a second country, pick up new passengers in the second country, and take them to a third country. For example, an airline of country A might fly to country B, pick up passengers in country B, and fly them to country C.

International Aviation Law Sixth and Seventh Freedoms of the Air The sixth and seventh freedoms of the air are generally accepted, but are not specifically included in either the International Air Services Transit Agreement or the International Air Transport Agreement. The sixth freedom of the air is the right to carry passengers from one country to another, with a stop in the airline’s home country. The seventh freedom of the air is similar to the sixth, except that there is no stop in country A; in other words, an airline of country A could pick up passengers in country B and disembark them in country C.

International Aviation Law Eighth and Ninth Freedoms of the Air The eighth and ninth freedoms of the air are also not included in the International Air Services Transit Agreement or the International Air Transport Agreement. These freedoms protect the right of cabotage and are less commonly accepted than the sixth and seventh freedoms. Cabotage is the carriage of goods or passengers within a single country by an airline of a foreign country. It is common within Europe, but its acceptance outside the EU is more limited. The eighth freedom of the air guarantees the right of country A to stop at a two locations in country B before returning to country A. The ninth freedom of the air guarantees with right of an airline to conduct domestic operations within a foreign country, without connecting to the country of origin.

International Aviation Law The ICAO and International Environmental Law Aircraft engines produce emissions similar to those emitted by land-based fossil fuel engines. The ICAO conducted a comprehensive assessment of aviation’s contribution to global atmospheric problems. This report was issued at about the same time that the Kyoto Protocols to the United Nations Framework Convention on Climate Change were issued. The Protocol requires countries that signed the agreement to reduce their collective emissions of six greenhouse gases. International aviation emissions are currently excluded from the Kyoto Protocols as national targets. Instead, the Protocol assigns the responsibility for limiting or reducing greenhouse gas emissions to the countries of the world as a whole, working through the ICAO.

International Aviation Law Bilateral and Multilateral Aviation Agreements Freedoms of the air can also be extended through specific agreements between nations. An agreement between two nations is a bilateral agreement, and an agreement between more than two nations is a multilateral agreement. By enacting freedoms of the air through specific agreements, parties retain the power to incorporate negotiated restrictions.

International Aviation Law International Agreements Concerning Liability for Injury and Loss The Convention for the Unification of Certain Rules Relating to International Carriage by Air, or Warsaw Convention, was signed in 1929. It is an international treaty that regulates liability for international carriage of persons, luggage, and goods. The Warsaw Convention makes air carriers strictly liable for the personal injury or death of a passenger, and the loss or destruction of luggage or cargo.

International Aviation Law Block v. Compagnie Nationale Air France On June 3, 1962, an Air France jet liner crashed in Paris, killing all 122 passengers. The passengers were members of the Atlanta Art Association and had chartered the flight. Their descendants brought suit for wrongful death, but Air France argued that the maximum that the families could claim in damages was $8,291.67 for each person killed because of the damage limitation contained in the Warsaw Convention. The families argued that the Warsaw Convention did not apply because the flight was a charter flight and not a regularly scheduled international flight. Air France argued that, although it was a charter flight, the tickets issued to each passenger displayed a notice of the limitation on liability.

International Aviation Law International Agreements Concerning Safety and Security In 1963, an international convention on aviation security was signed in Tokyo. It is known as the Convention on Offences and Certain Other Acts Committed on-board Aircraft, or the Tokyo Convention, and it remains in effect today. The Convention allows contracting states to enforce their penal code against individuals aboard international flights. It authorizes the aircraft commander or captain of any flight to restrain a passenger who the he or she reasonably believes has committed a criminal offense or intends to commit a criminal offense that has endangered or could endanger the safety of passengers, the aircraft, or cargo.

International Aviation Law United States v. Tiede On August 30, 1978, Hans Tiede, his wife Ingrid, and the couple’s 12-year-old daughter boarded a flight in Poland bound for East Berlin. Hans smuggled a starting pistol aboard the flight and hijacked the aircraft, diverting it to the US Air Force Base at Tempelhof Airport in West Berlin. The US military took them into custody, and the Court of Berlin was convened to handle the prosecution. Since US criminal procedures would apply, the Court appointed American attorneys to represent Hans and his wife. Both defendants filed motion demanding a trial by jury. While the right to a jury is guaranteed under the US Constitution, the Court was convened in Berlin and Germany had abolished the right to a trial by jury in 1924.

International Aviation Law The Role of the DOT in International Aviation The DOT is the US government agency responsible for negotiating and enforcing most international aviation treaties and agreements. The DOT develops and coordinates US policy and conducts all bilateral and multilateral negotiations and issues the licenses required to operate (either domestically or internationally), within or to and from the US. The DOT processes all requests by US airlines for authority to serve specific foreign markets.

International Aviation Law The Role of European Aviation Organizations in International Aviation One of the first cooperative, pan-European aviation organizations was Eurocontrol, which stands for the European Organization for the Safety of Air Navigation. Created in 1963, this civil and military intergovernmental cooperative organization is now comprised of 38 European countries and is based in Belgium. The European Aviation Safety Agency (EASA) was created in 2003 as an operational agency of the EU with offices in Cologne, Germany. The EASA has been designated by the EU to provide specific regulatory and executive oversight for civilian aviation safety.

International Aviation Law The Role of the International Air Transport Association in International Aviation The International Air Transport Association (IATA) was founded in 1945. It is an organization of airlines whose charter makes it the primary organization to coordinate international airline cooperation. It has expanded from its original 57 members to 230 airlines from 126 member nations. In the early days of international air travel, the ICAO was responsible for coordinating air navigation and flight procedures for international flights. It was in essence an organization of government agencies. The IATA was an organization of airline companies, some private, some state-owned. Its goal was to provide international transportation standards as they applied to passengers. This included developing procedures that would determine how differences in prices due to currency exchange rates could be charged and allocated between cooperating airlines.

Chapter 15 Review Questions When a new SARP is adopted by the ICAO, is the FAA obligated to enforce it? May the ICAO enforce it over international waters? May an aircraft depart Country A, overfly Country B, and land in Country C without any form of international agreement between Country A and the other two countries? A passenger is injured on an international flight and suffers $10,000 in medical expenses. The airline was not negligent. Under the Montreal Convention, is the airline obligated to reimburse the passenger for the $10,000 in medical expenses?

Chapter 15 Review Questions An American passenger is injured on an international flight from Los Angeles to Tokyo. At the time of injury, the aircraft was located in Japanese airspace. In which country or countries may the passenger file suit? A Cubana Airlines jet departs Havana, Cuba for Mexico City. The flight is commandeered by a hijacker who forces the aircraft to land in the US. There were no Americans onboard the aircraft. The hijacker is taken into custody and is prosecuted in the US. The hijacker demands that he be afforded his Sixth Amendment right to confront the witnesses against him. Does he have this right?