International Law Of Civil Aviation

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International Law Of Civil Aviation

  1. 1. INTERNATIONAL LAW relevant to civil aviation Agus Susanto SH.MM.
  2. 2. International Law Relevant to civil aviation Civil Aviation : - Operating globally - with common world-wide requirements - safety - regularity - efficiency - depends on international co-operation & co-ordination - substantially affected by international law & international organizations
  3. 3. International Law 1. Nature of international law : - distinguish international law from municipal or domestic law - distinguish public international law from private international law - how does international law become municipal law ?
  4. 4. International Law 2. Sources of international law : - treaties - custom or general practice of states - general principles recognized by civilized nations - decisions of judicial & arbitral tribunals - distinguished writings - declarations of international organizations
  5. 5. International Law 3. State Sovereignty : the right under international law.. - to exercise the function of the state - to the exclusion of any other state - over a certain area of the world State territory includes the airspace above
  6. 6. International Law 4. State Jurisdiction : - the sovereign right of states to exercise control - a right recognized rather than conferred by international law - states must act to assume jurisdiction over person & things
  7. 7. International Law 4. State Jurisdiction : steps for exercising jurisdiction according to law : (i) creation of rules to define & impose control (ii) adjudication – applying law to facts (iii) enforcement of adjudicated outcome
  8. 8. International Law 4. State Jurisdiction : grounds for exercising criminal jurisdiction : (i) territorial principle - control of crimes committed within state’s territorial boundaries - ships & aircraft on state’s register considered quasi-territory (ii) nationality principle - control of crimes by state’s nationals committed outside the state’s boundaries
  9. 9. International Law 4. State Jurisdiction : grounds for exercising criminal jurisdiction : (iii) passive personality principle - control of crimes against nationals outside state’s boundaries (iv) protective principle - control of non-nationals whose activities outside state’s boundaries are prejudicial to state security
  10. 10. International Law 4. State Jurisdiction : grounds for exercising criminal jurisdiction : (v) universal principle - control of crimes against general international law where universal jurisdiction of all states is recognized eg. piracy limits to jurisdiction : may not be exercised by means of physical intervention in another state’s territory
  11. 11. International Law 4. State Jurisdiction : essentially takes two forms : - territorial jurisdiction - extra-territorial jurisdiction in most states : laws are assumed to operate extra-territorially unless expressly stated to do so
  12. 12. International Law 5. Nationality : a concept that links - persons - ships - aircraft - space objects … to a given state - the state determines who / what possesses its nationality - including ships & aircraft
  13. 13. International Law 5. Nationality: - international law governs the validity of state claims : - as to extra-territorial jurisdiction over nationals & persons whose conduct affects the state’s nationals - against other states whose conduct affects the state’s nationals
  14. 14. International Law 6. State Responsibility : - states are responsible for breaches of their international obligations - breaches of obligations may result in responsibility : - to act to rectify the breach - to make reparations for damage
  15. 15. International Law 7. Sovereign Immunity : - customary international law recognizes states as generally immune from the territorial jurisdiction of other states ie. States cannot be sued in another state’ courts - immunity not normally extended to state- owned commercial enterprises - immunity also extends to execution of judgments foreign states
  16. 16. International Law 8. Treaties : - agreements between states that are legally binding under international law - consent to treaties… - signature & ratification - accession - exchange of notes - amendment : usually by protocol - withdrawal : by denunciation
  17. 17. International Law 8. Treaties : interpretation…..Vienna Convention 1969 - analyze normal meaning of words in context - consider intent & purpose - consider subsequent practice indicating consensus about interpretation
  18. 18. International Law 8. Treaties : peremptory norms… Vienna Convention 1969 Art 53 : a treaty is void…if it conflicts with a peremptory norm of international law ‘ peremptory norm’ = a norm or principle recognized by the international community as a whole as a norm from which no deviation is permitted
  19. 19. International Law 9. Peaceful settlement of Disputes - inquiries, consultations & negotiation - conciliation - treaty dispute resolution processes - UN security Council - arbitration - judicial settlement
  20. 20. International Law 10. United Nations created 1945…to promote world peace & security main UN organs : - Security Council - General Assembly - Secretary General & Secretariat - International Court of Justice
  21. 21. International Law 11. Other International Organizations - structures commonly : general assembly executive council secretariat - contributions to international law declarations : embryo international principles multilateral treaties - legal personality : optional
  22. 22. International regulatory framework related to civil aviation Agus Susanto SH.MM.
  23. 23. International regulatory framework 1. Origins : - 1903 – beginnings of powered aviation - World War I – development of military aviation - Paris Convention 1919 – first international aviation law convention - 1919-1944 period – gradual growth of international air transport - Chicago conference 1944 – planning the development of post-war air transport
  24. 24. International regulatory framework 2. Chicago conference outcomes : - Chicago Convention 1944 (Convention on International Civil Aviation) - International Air Services Transit Agreement 1944 - International Air Transport Agreement 1944
  25. 25. International regulatory framework 3. Chicago Convention 1944 main aims : - to meet world needs for safe, regular & efficient air transport - to establish the basic international regulatory framework - to establish the International Civil Aviation Authority (ICAO)
  26. 26. International regulatory framework 4. Chicago convention 1944-basic principles - state sovereignty Art. 1: The contracting states recognize that every state has complete and exclusive sovereignty over the territory above its territory … territory includes territorial waters
  27. 27. International regulatory framework 4. Chicago Convention 1944 – basic principles - application of convention Art.3 (a):…applies only to civil aviation & not state aircraft - nationality of aircraft Art.17: Aircraft have the nationality of the state in which they are registered Art.20 : Every aircraft…shall bear its appropriate nationality & registration marks
  28. 28. International regulatory framework 4. Chicago Convention 1944 – basic principles - flight over territory of contracting states Art. 6: No scheduled international air service may operate over or into the territory of a contracting state, except with special authorization….
  29. 29. International regulatory framework 4. Chicago Convention 1944 – basic principles - flight over territory of contracting states Art. 5: grants aircraft not engaged in scheduled international air services the right to-make flights into and in transit across the territory of a contracting state, and to-make non- traffic stops…….
  30. 30. International regulatory framework 4. Chicago Convention 1944 – basic principles - flight over territory of contracting states Art. 7: permits contracting states to reserve all traffic between places in their territory for their own national carriers (known as ‘cabotage’)
  31. 31. International regulatory framework 4. Chicago Convention 1944 – basic principles - non-discrimination… between national aircraft & aircraft of other contracting states regarding : - flight over prohibited areas : Art. 9 - entry & departure regulations : Art.11 - airport / air navigation charges : Art. 15
  32. 32. International regulatory framework 4. Chicago Convention 1944 – basic principles - rules of the air Art. 12 : …each contracting state must enforce Convention’s rules as to flight & maneuver against its own national aircraft (wherever they may be) and to any foreign aircraft operating within its territory Art. 12 : …rules in force over high seas are the Convention’s rules
  33. 33. International regulatory framework 4. Chicago Convention 1944 – basic principles - misuse of civil aviation prohibited : Art.4 - aircraft in distress : Art. 25 - accident investigation : Art. 26 - freedom of action in war or national emergency : Art. 89
  34. 34. International regulatory framework 5. International Civil Aviation Organization (ICAO) - established by Chicago Convention, Part II aims & objectives : - to develop the principles of international air navigation - to foster the development of international air transport - to insure safe & orderly growth of international civil aviation - to meet the needs of the world for safe, efficient, regular and economical air transport
  35. 35. International regulatory framework 5. International Civil Aviation Organization (ICAO) main organs : - Assembly – all Chicago contracting states - Council – 33 elected states representing: (1) states of chief importance to air transport (2) other states making largest contribution to international air navigation facilities (3) other states that ensure representation of all major world areas
  36. 36. International regulatory framework 5. International Civil Aviation Organization (ICAO) main organs : - Air Navigation Commission - Air Transport Commission - Secretariat - Legal Committee
  37. 37. International regulatory framework 8. ICAO – Settlement of disputes - interpretation : Art. 84: disputes referred to ICAO Council for decision…appeals to arbitral tribunal / international court of justice - expulsion : originally – no expulsion provision for ICAO members - financial delinquency : Art. 63: Gen. Assembly may suspend state’s Assembly vote
  38. 38. International regulatory framework 6. Chicago Convention Annexes - Personnel Licensing - Aeronautical Telecommunications - Rules of the Air - Air Traffic Services - Meteorological Service - Search and Rescue - Aeronautical Charts - Aircraft accident investigation - Units of Measurement - Aerodromes - Operation of Aircraft - Aeronautical Information Services - Aircraft Nationality & - Environmental Protection Registration Marks - Security - Airworthiness of Aircraft - Dangerous Goods by Air - Facilitation
  39. 39. International regulatory framework 6. Chicago Convention Annexes adoption process : Art. 90 : ICAO Council adopt by two thirds vote Annex or amendment enters force 3 months later… unless in the meantime a majority of contracting states object
  40. 40. International regulatory framework 6. Chicago Convention Annexes legal effect : - within contracting states : Annexes not binding domestically until given force of law - over the high seas : rules of Convection (including Annexes) apply automatically – Art. 12
  41. 41. International regulatory framework 6. Chicago Convention Annexes obligation of contracting states : Art.12: must keep flight & maneuver rules uniform to “greatest extend possible”…with Convention rules Art.38: if compliance found impracticable…state need only notify ICAO of any difference between its own practice and that established by the international standard
  42. 42. International regulatory framework 7. ICAO – promotion of international aviation law 1948 : Geneva Convention on rights in aircraft 1952 : Rome Convention on surface damage 1955 : The Hague Protocol to Warsaw Convention 1929 1961 : Guadalajara Convention-supplement to Warsaw 1963 : Tokyo Convention on Jurisdiction & commander’s powers 1970 : Hague Convention on Hijacking
  43. 43. International Air Services Key State interest : -. International trade -. Balance of trade -. Communications -. Business -. Tourism -. Employment opportunities -. National Security -. Foreign Relations

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