Avlaw Week 2 Sem PDF

AERO1014 Aviation Law Seminar Week 2 The Development of Aviation Law The Peace of Westphalia - 1648 Collective name for 2 peace treaties signed in October 1648 in the Westphalian cities of Osnabrück and Münster Ended the Thirty Years’ War in Europe It’s debated, but the treaties are credited with th...

AERO1014 Aviation Law Seminar Week 2 The Development of Aviation Law The Peace of Westphalia - 1648 Collective name for 2 peace treaties signed in October 1648 in the Westphalian cities of Osnabrück and Münster Ended the Thirty Years’ War in Europe It’s debated, but the treaties are credited with the origins of the concept of called Westphalian sovereignty What is Westphalian Sovereignty? Sovereignty - The nation state is the ultimate authority over the land, air and sea of its territory, and everything in it Non-intervention – No nation state should interfere in the internal affairs of another nation state Legal equality of nation states – All nation states enjoy the same legal status, none is above or below any other Challenges to the idea of Westphalian Sovereignty Globalization – the doctrine of the international community Human Rights Law – e.g. the UN prohibition on genocide Supra-national organisations – e.g. the European Union Failed states International “Law” International law is NOT the same as national law International law is made up of agreements and treaties, either between 2 nation states (bilateral) or 3 or more nation states (multi-lateral) For example, the United Nations exists because of an international agreement, nation states have signed up to its charter There is still considerable debate of whether “law” is the right word to use for these agreements and treaties Nation states can’t make rules for other nation states, at least not without that states’ agreement Domestic law has law enforcement, by Courts and police, backed by the nation state – there is no equivalent in international law International agreements can have dispute resolution provisions, but if a nation state decides to ignore it, there is no higher authority who can be appealed to Why do states follow international law Sometimes they don’t! The benefits they obtain from those agreements and treaties A sense of national honour and obligation – we’ve given our word The consequences if they don’t from other states – economic, social, military Consequently: the relative power of nation states has a major influence Hard Power Military might – threat of force/use of force Economic clout – embargos/sanctions Soft Power Diplomatic currency Development aid & disaster relief Cultural influence or historical ties The Paris Convention In 1919, the first passenger air service begins (Paris – Brussels) While this was a major aviation milestone, it also created some concerns: Is it safe to allow foreign pilots to fly over our country? How do we know their training is good? Does possible surveillance threaten our national security? The Paris Convention In October 1919, 38 countries (including Australia) met to attempt to create the first international framework for regulation and standardization of aviation, while respecting the power of individual States (nations): The Paris Convention The structure of the Paris Convention: Chapter 1: General Principles Chapter 2: Nationality of Aircraft Chapter 3: Certificates of Airworthiness and Competency Chapter 4: Admission to Air Navigation Above Foreign Territory Chapter 5: Rules to be Observed on Departure When Under Way and on Landing Chapter 6: Prohibited Transport Chapter 7: State Aircraft Chapter 8: International Commission for Air Navigation Chapter 9: Final Provisions We will look at portions and highlights of these chapters in greater depth…. The Paris Convention Chapter 1: General Principles The first article (statement) of the entire convention establishes sovereignty: This means that: Nobody but the State itself can make laws governing activities in/over its territory. States collaborate for this purpose on a voluntary basis. The Paris Convention Chapter 1: General Principles Article 2: The States agree to allow each other’s airplanes to fly over their territory, as long as they follow the other standards in the convention. States also agree to treat all other States’ airplanes equally. Article 3: States have the right to prohibit airplanes from flying over parts of their territory. But they must apply this to their own private (non-state) aircraft too. The Paris Convention Chapter 2: Nationality of Aircraft Aircraft have “citizenship” Aircraft can only be registered in one State States must share their registration lists Aircraft must display their registration The Paris Convention Chapter 2: Nationality of Aircraft The Paris Convention Chapter 3: Certificates of Airworthiness and Competency Article 11: Every aircraft operating internationally must have a certificate of airworthiness. Article 12: Pilots and engineers must have a certificate of competency or license. Article 13: The licenses/certificates above must meet minimum standards in the appendices of the convention. The Paris Convention Chapter 4: Admission to Air Navigation Above Foreign Territory Article 15: Airplanes can fly over territories of States. Airplanes must follow regulations of any state that it flies over. The Paris Convention Chapter 5: Rules to be Observed on Departure when Under Way and on Landing Article 19: Aircraft flying internationally must have a. A registration b. A certificate of airworthiness c. Certificates of the flight crew d. A list of passenger names (if there are passengers) e. Cargo manifest (if there is cargo) f. Log books g. Radio license (if it has a radio) The Paris Convention Chapter 5: Rules to be Observed on Departure when Under Way and on Landing Article 21: Any one of those items can be inspected on departure or landing of an aircraft. Article 24: Any public use airport in a State must be open to all aircraft from other States. The Paris Convention Chapter 6: Prohibited Transport This chapter outlines what cannot be transported, and the different rights of States with regard to prohibiting transportation of goods. Article 26: Carriage of explosives, weapons, or war instruments is not allowed. Article 27: Photographic apparatus may be regulated by States. The Paris Convention Chapter 7: State Aircraft Article 30: “State Aircraft” includes military aircraft as well as any airplane being used by the State for State business (e.g. postal, customs, police). Article 31: If an airplane is being flown by a military officer for military use it is considered a military aircraft. Article 32: Military aircraft CANNOT fly over other States without permission. The Paris Convention Chapter 8: International Commission for Air Navigation This chapter creates the International Commission for Air Navigation (ICAN) under the League of Nations. The commission will: 1. Modify the convention from time to time 2. To establish standards 3. To collect information from and communicate to States 4. To disseminate information related to technological advancements 5. To publish maps 6. Answer questions for States when asked The Paris Convention Chapter 9: Final Provisions This section covers dispute resolution, war times, and an overall agreement to cooperate in good faith. The Paris Convention How did the Paris Convention change aviation regulation? The Paris Convention brought several innovative advancements to aviation regulation: It created an international regulatory body It brought some definitions to specific concepts It created a framework for engagement for different States But, there are threats to success of the convention: 1. Not many countries signed it (although it was replicated in other places around the world) 2. It was based on European needs Australia and the Paris Convention How did the Paris Convention change aviation regulation? The Australian Government signed up to the Paris Convention However, this didn’t automatically mean the Paris Convention had any legal effect in Australia. To implement the Paris Convention in Australia, the Federal Parliament passed the Air Navigation Act 1920 (Cth) - still in force today (https://www.austlii.edu.au/cgibin/viewdb/au/legis/cth/consol_act/ana1920148/) This made the Paris Convention part of Australian law for international and interstate flights, but there were constitutional issues in relation to intrastate flights, as mentioned in the previous section on the Australian legal system. The Paris Convention What happened to the Paris Convention? World War 2 saw the dissolution of the League of Nations, and also the International Commission for Air Navigation. How does WW2 affect aviation? It was a rapid period of aviation development: the world enters the war with propellers and exits the war with supersonic jets. Summary of Key Points from Paris Convention Principles governed the drafting of the convention: 1. Each nation has absolute sovereignty over the airspace overlying its territories and waters. A nation, therefore, has the right to deny entry and regulate flights (both foreign and domestic) into and through its airspace. 2. Each nation should apply its airspace rules equally to its own and foreign aircraft operating within that airspace, and make rules such that its sovereignty and security are respected while affording as much freedom of passage as possible to its own and other signatories' aircraft. 3. Aircraft of contracting states are to be treated equally in the eyes of each nation's law. 4. Aircraft must be registered to a state, and they possess the nationality of the state in which they are registered. Post WW2 After World War 2, the United Nations were formed. The political community, looking at the old Paris Convention, reconvenes to created a new international aviation regulatory body A group of 52 States convene in Chicago in 1944 to discuss the development of international civil aviation The Chicago Convention of 1944 was created. The Chicago Convention The Chicago Convention is similar to the Paris Convention: It makes sovereignty a priority It has similar principles of standardization It expands the Paris convention to include more standards and recommended practices (SARPs), which reflects better technology and new travel scenarios. Most importantly, the Chicago Convention created a new regulatory body called the International Civil Aviation Organization (ICAO), which still exists today. ICAO Next week we will look at ICAO: How it is structured The freedoms of the air it puts forth How it functions today Thank you! Questions?