Chapter 1 of Fundamentals of International Aviation (2021)

Air Law CHAPTER 1 International Air Law Quiz 1) Annexes to the Chicago Convention contain Standards and Recommended Practices (SARPs) which States must abide by and those they should comply with. Currently,...

Air Law CHAPTER 1 International Air Law Quiz 1) Annexes to the Chicago Convention contain Standards and Recommended Practices (SARPs) which States must abide by and those they should comply with. Currently, the Convention has annexes. a. 9 b. 13 c. 19 d. 26 2) The Wright brothers are famous because they were the inventors of aviation. a. True b. False 3) Under international air law, all countries that have signed on to the Chicago Convention have complete freedom to each other’s airspace. a. True b. False 4) The sovereign body of the International Civil Aviation Organization (ICAO) is its Assembly, with representatives from 193 Member States. ICAO’s Assembly meets at least once every: a. Month b. Year c. 3 years d. 5 years 5) International organizations, such as the International Air Transport Association (IATA) and the Airports Council International (ACI), do not play important roles within international air law. a. True b. False Answer key: 1. c; 2. b; 3. b; 4. c; 5. b 1 INTERNATIONAL AIR LAW Chapter Outcomes At the end of this chapter, you will be able to ΁ discuss the origins of aviation and the history of international aviation law; ΁ describe the 1944 Chicago Conference, as well as the structure and function of the International Civil Aviation Organization, which was established as a result of the Conference; ΁ differentiate between multilateral, bilateral, and national aviation regulations; ΁ identify the various international organizations that influence international aviation regulation; and ΁ use your understanding of international air law to discuss a case study on the shooting down of KAL 007, a civilian aircraft, by a military aircraft. Introduction The sheer complexity of international aviation law can be overwhelming to those first studying it. You may wonder how so many countries, with varying laws and cultural values and practices, can agree to follow the same rules and policies. However, without large-scale international agreement, a safe and efficient aviation system would be im- possible. Consider for a moment what air travel might be like if each country designed its own unique methods for certifying aircraft as safe to fly, communicating and navigating, plan- ning airports, or establishing pilot licensing standards. Whenever a flight crossed inter- national borders, the flight crew would have to follow a new set of rules, which would be confusing and possibly unsafe! An aviation professional trained in one country might nev- er be able to work in another country, as the standards and practices would vary greatly. For the aviation community to function safely and efficiently, international regulations must be standardized. International air law refers to the rules and regulations that impact global air transport and is a unifying element of civil aviation. To gain a solid understand- ing of how the aviation industry functions on a global scale, it is necessary to develop a familiarity with international air law; for this reason, aviation law is the foundation upon which the following chapters in this text are built. The Origins of Aviation Flight has fascinated humankind for probably as long as people have walked the Earth. Early recorded history is filled with legends of flight and early experiments—from the tale of Icarus, who flew too close to the Sun and fell to Earth when the wax holding his wings to- gether melted (Greek mythology, approximately 30 bce) to the work of Leonardo da Vinci, who was the first to apply scientific principles to aviation in his sketches of flying machines (late 1400s to early 1500s). As long as humans have observed the flight of birds, there have been those who dreamed of joining them. In fact, the term aviation, which refers to the operation of aircraft, is derived from the Latin avis, meaning “bird.” 2  INTERNATIONAL AIR LAW Icarus Greek Mythology, 30 BCE da Vinci Concept for fying machine, early 1500s Wright Brothers First powered, controlled, heavier-than-air fight, 17 December 1903 Figure 1.1 Early History of Aviation Did You Know? Early attempts at flight involved the use of ornithopters. An ornithopter is a device designed to achieve flight using flapping wings (powered by either an engine or the pilot’s muscles). Unfortunately, in the era of da Vinci, several monks lost their lives from jumping off buildings or bridges with unsuccessful ornithopters. 3 INTERNATIONAL AIR LAW The aviation industry, as we understand it today, is still relatively young. On 17 Decem- ber 1903, brothers Wilbur and Orville Wright made history when Orville successfully flew their flyer about 37 meters (120 feet), earning the brothers the distinction of being the first to accomplish powered, controlled, heavier-than-air flight. In the years that followed the Wright brothers’ success, several other functional aircraft were developed. Did You Know? The Wright brothers were not the “inventors of aviation.” The Wright brothers built their success upon the contributions of earlier aviation pioneers. Otto Lilienthal, considered the Father of Gliding, performed many controlled glides in the late 1890s. Lighter-than-air flight—using hot-air balloons and airships— began with the French Montgolfier brothers in the late 1700s and evolved to include dirigibles (blimps) offering scheduled passenger service during the time of the Wright brothers. Several other pioneers experimented with powered flight, including Clément Ader, Hiram Maxim, Karl Jatho, and Augustus Moore Herring. Therefore, to be accurate, the Wright brothers were the first to accomplish powered, controlled, heavier-than-air flight. World War I, which began in 1914, was the catalyst for the dramatic acceleration of the use of aircraft. During the war, aircraft were initially used for reconnaissance, and then eventually for bombing and air-to-air combat. When World War I ended in 1918, a surplus of trained pilots and aircraft were available for the first time in human history, and the market for civil aviation began to develop. In the interwar era, air shows, flight training businesses, chartered passenger services, aerial surveying, firefighting, and advertising outfits that scattered printed material over towns grew in availability and popularity. From the end of World War I through the mid-1930s, airlines began springing up, in- cluding KLM from the Netherlands and Avianca from Colombia (both in 1919). Other air- lines also began operations, such as Queensland and Northern Territory Aerial Services, now known as Qantas, from Australia (1920), Czech Airlines from Czechoslovakia (1923), Deut- sche Lufthansa, now known as Lufthansa, from Germany (1926), Iberia from Spain, and Pan American World Airways from the United States (both in 1927), among others. For the first time in civil aviation, negotiations between countries over landing rights and privi- leges were essential issues. In World War II (1939–1945), aviation no longer served a supporting role in military combat; air power was crucial. The German air force, called the Luftwaffe, and the Imperial Japanese Army Air Service battled the Allies’ British Royal Air Force (which included the Royal Canadian Air Force and Royal Australian Air Force), the United States Army Air Forc- es, and the Soviet Air Force in brutal bombing and fighter missions throughout the war. Incredible operational and technical aviation advancements occurred during this period. 4  INTERNATIONAL AIR LAW By the time the Allies won the war in 1945, both military and civil aviation had grown expo- nentially, and the public perception had shifted: aviation was no longer seen as something mystical but rather as a part of everyday life. History of Multilateral Aviation Regulation International air law falls into three categories: (1) multilateral agreements between three or more States, (2) bilateral agreements between two States, and (3) national regulations within a single State. This first section will explore the development of multilateral agree- ments within international civil aviation. Reviewing the early history of aviation helps in understanding when and how inter- national regulations were established. In 1908, before World War I, at least 10 German balloons crossed the border and landed in France. This raised concerns and caused the French government to propose an international conference to determine regulations for flights over and into foreign countries. This first important Conference on international air law, called the International Air Navigation Conference, was held in Paris in 1910 and attended by 19 European States; it was the first effort to diplomatically create multilateral legal principles related to air navigation. States from other continents were not invited because it seemed unrealis- tic at the time that their aircraft could travel the great distance to Europe. Discussions broke down as States disagreed about sovereignty, that is, the ownership of airspace. Should freedom of the air be established, similar to the freedom of international waters in the ocean, or should a nation’s authority include control over the airspace above its territory ? 1919 Paris Convention World War I interrupted the progress of diplomatic negotiations on civil aviation. After the fighting ended with the Armistice (signed on 11 November 1918), months of negotia- tions began at the Paris Peace Conference. The Treaty of Versailles was signed on 28 June 1919 in Versailles, France. It officially ended the war between Germany and the Allied Powers. The war had demonstrated that aircraft had tremendous, yet possibly devastating, po- tential and therefore required international attention. The Paris Peace Conference and the resulting Treaty of Versailles had significant impacts on aviation, including restrictions on German military aviation. The restrictions within the Treaty of Versailles grounded all German military aircraft, demobilized air force personnel, and limited aircraft manu- facturing and importation. The restrictions on German aircraft manufacturing were not lifted until 1926. From an air law perspective, the most notable result of this Conference was the Paris Convention of 1919 titled the ‘Convention Relating to the Regulation of Aerial Navigation’. 37 States signed the Paris Convention on 13 October 1919. It included 43 Articles that out- lined agreements on technical, operational, and organizational aspects of civil aviation. The International Commission for Air Navigation (ICAN) was also created, under the direction of the League of Nations (the predecessor of today’s United Nations), as an organization with responsibility for managing and creating new aviation regulations as necessary. The work of ICAN and its subcommissions was a tremendous help in drafting the annexes of the Chicago Convention, which was to come in 1944. 5 INTERNATIONAL AIR LAW Did You Know? It is generally accepted that the international air transport industry was born in 1919, with the signing of the Paris Convention. The year 1919 is also notable for the establishment of the precursor to the International Air Transport Association (IATA), the group that represents the majority of the world’s airlines. 1926 Madrid Convention Although the Paris Convention intended to create a single regulatory structure for civ- il aviation, this was not achieved, partially because Spain chose not to support the Paris Convention. Spain withheld support due to a disagreement about equal voting rights of members (Article 34). Spain subsequently withdrew from the League of Nations in 1926 when its claim for a permanent seat on the Council was rejected. As aviation continued to grow, Spain invited Portugal as well as Latin American and Caribbean States to the Ibero-American Conference held in Madrid from 25 to 30 Octo- ber 1926. Twenty-one States attended, and the Ibero-American Convention on Air Navigation was signed on 1 November 1926. The wording within the convention was very similar to the Paris Convention; many passages were nearly identical. The exceptions were Article 34, around equal voting rights, and Article 5, on rights for a Contracting State to permit flights over its territory of aircraft that were not of the nationality of a Contracting State. However, the impact of the convention was limited: only seven States ratified it, and the convention was never entered into force. In 1933 Spain and Argentina abandoned the Madrid Convention and joined ICAN. 1928 Havana Convention The United States and 20 other countries from North, South, and Central America met in Havana in 1928 for the Havana Convention. The goal was to establish a foundation of international cooperation specific to the Americas; however, the resulting convention weakened ICAN’s international position. Building from the Paris Convention, several sig- nificant modifications were made. The Havana Convention applied to civil aircraft (and so excluded government/military aircraft). It established basic rules for air traffic, deter- mining that every State had exclusive authority to the airspace above its land and connect- ed territorial waters. Nevertheless, there were some weaknesses to this convention, as no uniform technical standards were included, no permanent organization was established to manage or create new regulations, no provisions were made for annexes, and aircraft regulation was entirely under the laws of each country. In short, the convention lacked uniformity. Although the Paris and Havana Conventions moved discussions forward, they also led to confusion as they created two separate sets of rules. At a time when there were about 50 States involved in aviation, the Paris Convention’s ICAN represented 33 of them and the Havana Convention had been ratified by 11. With the dramatic growth of air travel following World War II, a single unifying convention was required. 6  INTERNATIONAL AIR LAW The Language of Air Law Regulation is the delivery of authoritative direction to create a desired degree of order. A convention or treaty is an international agreement between States governed by international law. A conference is a meeting of representatives from States, during which the specifications of a convention are discussed. The term State generally refers to a country. This differs from the common use of the word state in North America, which typically references the United States. Signatory to the convention and contracting State both refer to a State that has signed on to a convention. Currently, 193 States in the world are party to the Chicago Convention, which includes all the United Nations States apart from Lichtenstein and Dominica. Ratified means that a convention has been signed by enough States for it to become valid. The Chicago Convention was ratified on 4 April 1947 when the 26th State signed on. Annexes are add-ons to a convention, but do not form part of the convention itself. When new issues are identified that require international regulation, new annexes are added. Annexes allow the original Chicago Convention to remain valid so that additions can be made without requiring all 193 States to sign on to a new convention. A standard is a specification that contracting States will conform with and adopt. A recommended practice is a specification that States should adopt. ICAO (International Civil Aviation Organization) is pronounced “I-K-O” among aviation professionals, not “I-see-A-O” or “I-cow.” Cabotage is a freedom of the air that allows an air carrier to transport passengers and cargo between points within a foreign country. 1944 Chicago Convention In 1942, three years before the end of World War II, it was clear that civil aviation was a crit- ical international issue. Political and diplomatic discussions about international aviation arrangements began in Canada, the United Kingdom, and the United States. In 1943, at the Anglo-American Conference in Quebec City, Franklin Roosevelt and Winston Churchill began discussions about post-war aviation policies under a United Nations (UN) organiza- tion. As 1944 began, the war seemed to be coming to an end, and it was apparent that commercial aviation would be growing internationally. On 11 September 1944, the United States invited 53 governments to an international civil aviation conference. The Chicago Conference was convened on 1 November 1944 and lasted 37 days. Fifty-two States attended the Conference with a total of 955 people, in- cluding delegates, advisors, secretaries, stenographers, and members of the press. 7 INTERNATIONAL AIR LAW The result of the Conference was the drafting of the Convention on International Civil Avi- ation (commonly called the Chicago Convention). The Chicago Convention supersedes the Paris and Havana conventions. It established the International Civil Aviation Organization (ICAO) as the sole international organization responsible for civil aviation, replacing ICAN which had been created by the Paris Convention. The primary objective of international civil aviation was determined to be air transport in a safe and orderly manner that was economically sound and offered States equal opportunities. The convention defined universal rules associated with sovereignty of airspace, navigation, aircraft airworthiness and registration, and global Standards and Recommended Practices (SARPs) for opera- tional harmonization between States. The Chicago Convention begins with the following preamble: ‘‘ WHEREAS the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security; and WHEREAS it is desirable to avoid friction and to promote that co-operation between nations and peoples upon which the peace of the world depends; THEREFORE, the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically; Have accordingly concluded this Convention to that end [6, p. 2]. The Convention on International Civil Aviation (the Chicago Convention) still provides the ” basis for international air law today. When drafted in 1944, the convention included sever- al important instruments: 1) The Interim Agreement on International Civil Aviation, which allowed the global effort to begin before the convention was ratified. The interim agreement created the Provisional International Civil Aviation Organization (PICAO); ICAO became a per- manent organization on 4 April 1947. 2) The International Air Services Transit Agreement (called the Two Freedoms Agree- ment), which allowed aircraft of contracting States to fly over each other’s territory without landing (First Freedom of the Air); and land in each other’s territory for non-traffic purposes (such as refueling), without picking up or dropping off passengers, cargo, or mail (Second Freedom of the Air). 3) The International Air Transport Agreement (called the Five Freedoms Agreement), which added three freedoms associated with commercial transport. These were the rights to carry passengers from an air carrier’s home country to a foreign destination (Third Freedom of the Air); 8  INTERNATIONAL AIR LAW A Deeper Look: Freedoms of the Air Beyond the five freedoms of the air that are incorporated within the Chicago Convention, there are additional freedoms for scheduled international air service. These freedoms are not included in the multilateral Chicago Convention, but can be agreed to on a State-by-State basis through bilateral agreements. These additional freedoms are ΁ carrying passengers between two foreign countries, passing through the air carrier’s home country. Can be thought of as a combination of the Third and Fourth freedoms (Sixth Freedom); ΁ carrying passengers between two foreign countries, operating entirely outside of the air carrier’s home country. Aircraft are based in a foreign country for use on international routes; widely used in the cargo industry (Seventh Freedom); ΁ carrying passengers between two points in a foreign country, serving as a domestic airline within a foreign state yet originating within the air carrier’s home country (called consecutive cabotage) (Eighth Freedom); and ΁ carrying passengers between two points within a foreign country, operating entirely separately from the air carrier’s home country (called standalone cabotage) (Ninth Freedom). A B A B A B First Freedom Second Freedom Third Freedom Fly over without landing. Land without picking up or Set down passengers in a setting down passengers or foreign State. cargo. A B A B B A Fourth Freedom Fifth Freedom Sixth Freedom Pick up passengers in Carry passengers from a Carry passengers between a foreign State. second to a third State foreign States (going (beginning or ending fight through home State). in home State). B A B A B A Seventh Freedom Eighth Freedom Ninth Freedom Operate between two Operate domestically in a Operate domestically in a foreign States. foreign State (with fight foreign State (with no fight originating in home State). connections to home State). Figure 1.2 Freedoms of the Air 9 INTERNATIONAL AIR LAW carry passengers from a foreign destination to an air carrier’s home country (Fourth Freedom of the Air); and carry passengers between two foreign countries, when the flight begins or ends in the air carrier’s home country (Fifth Freedom of the Air). 4) The drafts of 12 technical annexes (organized A to L) to cover operational and tech- nical aspects of international civil aviation, such as airworthiness of aircraft, air traffic control, and communications. Today, the 12 annexes have grown to 19 and are organized by numbers rather than letters (see Table 1.1). 5) A standard form of bilateral agreement for the exchange of air routes between two countries. Bilateral agreements are discussed in more detail later in this chapter. The Chicago Convention was the result of one of the most successful and influential diplo- matic conferences ever held. The Conference established key principles that made inter- national flying safer and less complicated than it had been before World War II. The Chi- cago Convention superseded the 1919 Paris and 1928 Havana Conventions. It meant that, for the first time in history, a single international organization (ICAO) would standardize technical issues in aviation and harmonize practices between States. Annexes to the Chicago Convention When the Chicago Convention was created in 1944, 12 annexes were included with tech- nical Standards and Recommended Practices (SARPs). In the years since, as issues have arisen that were not considered in 1944, revising the convention has not generally been practical (as this would require all 193 States to sign on to a new convention and initiate lengthy negotiations). Therefore, annexes are added or modified to address these new is- sues, without directly revising the convention. The number of annexes has grown to 19, with some annexes having multiple vol- umes. The protection of the environment is a good example of an international concern that was not considered in 1944 but has become increasingly important in modern times; Table 1.1 Annexes 1 to 19 of the Chicago Convention Annex Title Description 1 Personnel Licensing Relates to the training and licensing of flight Textbook Chapter: crew members (pilots, flight engineers, and navigators), air traffic controllers, aeronautical Chapter 2 station operators, maintenance technicians, and flight dispatchers in order to ensure Chapter 4 sufficient skill among professionals and to foster international licensing standards. Chapter 5 2 Rules of the Air Covers general rules of the air, including Textbook Chapter: specific requirements for visual flight rules and instrument flight rules operations, right-of-way Chapter 5 rules, flight plan requirements, and collision avoidance principles. (continued) 10  INTERNATIONAL AIR LAW Annex Title Description 3 Meteorological Service Relates to the provision of meteorological for International Air information to aviation users, including Navigation weather reports, forecasts, landing forecasts, Textbook Chapter: weather briefings for operators, meteorological watch offices to monitor changes in the Chapter 8 weather, world area forecast systems, and the International Airways Volcano Watch. 4 Aeronautical Charts Sets standards for aeronautical charts to facilitate international navigation, including chart coverage, format, standardized symbols, and color use. Defines 21 types of charts for specialized purposes. 5 Units of Measurement Establishes the metric system as the to Be Used in Air and international standard for civil aviation, Ground Operations recognizing that a consistent measurement unit is crucial for safety and efficiency. 6 Operation of Aircraft Standardizes safe operating practices for Textbook Chapter: aircraft within international air transport operations. Defines standards for aircraft Chapter 2 operations and performance, communications, navigation equipment, maintenance, flight Chapter 4 documents, security, and responsibilities of flight personnel. 7 Aircraft Nationality and Requires aircraft to be registered in its Registration Marks contracting State and marked with letters, Textbook Chapter: numbers, or other graphic symbols, to indicate its nationality and registration. Chapter 2 8 Airworthiness of Relates to the specifications of an aircraft’s Aircraft airworthiness and includes requirements Textbook Chapter: that describe how aircraft must be designed, built, and operated. When requirements Chapter 2 are met, aircraft are issued a certificate of airworthiness, which indicates that it is fit to fly. 9 Facilitation Refers to international practices to expedite Textbook Chapter: customs, immigration, quarantine, and clearance to prevent unnecessary delay of Chapter 3 aircraft, crews, passengers, or cargo. Chapter 4 (continued) 11 INTERNATIONAL AIR LAW Annex Title Description 10 Aeronautical Includes Standards and Recommended Telecommunications Practices and procedures for air navigation Textbook Chapter: services as well as guidance material for aviation communication, navigation, and Chapter 5 surveillance. 11 Air Traffic Services Describes ground-based air traffic services Textbook Chapter: (flight information centers and air traffic control units), which are designed to prevent Chapter 5 collisions between aircraft (during taxi, takeoff, cruise, or approach to land) within the global flight information regions. 12 Search and Rescue Includes the structure and cooperative Textbook Chapter: principles needed for search and rescue operations, preparatory measures, and Chapter 9 operating procedures for actual emergencies, recognizing that the international response to aircraft accidents must be quick and efficient. 13 Aircraft Accident and States that the objective of an investigation Incident Investigation is the prevention of future occurrences and Textbook Chapter: contains international requirements for investigation, such as which States have a right Chapter 9 to participate in the investigation and the rights and responsibilities of these States. Describes the investigation process and the organization of the final report. 14 Aerodromes Describes the planning of airports and heliports, Textbook Chapter: including design of movement areas (runways and taxiways), airspace considerations to ensure Chapter 6 safe arrivals and departures, lighting, operation and maintenance, rescue and firefighting resources, as well as many other considerations. 15 Aeronautical Ensures immediate flow of quality flight and Information Services terrain data required for the operation of Textbook Chapter: international civil aviation. Makes reference to international notices to airmen (now simply Chapter 8 notices to airmen or NOTAM), which are used to alert pilots to important issues; today, data is often fed directly into on-board navigation systems. (continued) 12  INTERNATIONAL AIR LAW Annex Title Description 16 Environmental Publishes standards designed to limit the Protection environmental impact of aircraft engine Textbook Chapter: emissions and aircraft noise. Chapter 8 17 Security: Safeguarding Incorporates global standards to safeguard International Civil international civil aviation against unlawful Aviation Against Acts of acts. Requires each State to develop its own civil Unlawful Interference aviation security program. Textbook Chapter: Chapter 7 18 The Safe Transport of Establishes standards for safe transport Dangerous Goods by Air of potentially dangerous cargo (anything Textbook Chapter: radioactive, toxic, flammable, explosive, or corrosive) and provides a limited list of Chapter 3 substances identified by ICAO as unsafe to carry on an aircraft. 19 Safety Management Describes how the aviation industry must Textbook Chapter: proactively identify safety risks and reduce them, rather than take a reactive approach after Chapter 10 an accident. Requires States to develop a state safety programme based on a strong safety management system and incorporating safety oversight, data collection, analysis, and sharing of safety information for the benefit of the international civil aviation system. therefore, Annex 16: Environmental Protection was added to the convention. An overview of the topics covered in each of the annexes is included in Table 1.1. Many of these topic areas are explored in detail in later chapters of this textbook. Structure of ICAO ICAO was created through the Chicago Convention as a special agency of the UN. The vi- sion of ICAO is to achieve sustainable growth of the global civil aviation system through the development of SARPs, which support air navigation and assist in the development of the air transport sector. ICAO is managed by a Secretariat, which is a grouping of permanent administrative offices led by a Secretary General who functions as the chief executive officer of ICAO. 13 INTERNATIONAL AIR LAW Assembly Council Air Navigation Commission Figure 1.3 Images of the ICAO Assembly, Council, and Air Navigation Commission 14  INTERNATIONAL AIR LAW The high-level policies and work program of ICAO are developed by the Assembly (the sovereign body of the organization with representatives from all 193 contracting States), and overseen by a permanent governing body called the Council, which is responsible to the Assembly. While the Assembly includes representatives from all Member States and meets at least once every three years, the Council is composed of elected representatives from 36 contracting States, who work full time over their three-year terms. In 2016, the Assembly voted to increase the Council to 40 elected representatives, and the increase will take effect when the resolution is ratified. Working from the Council’s high-level objectives, the Air Navigation Commission (ANC) and panels of experts are responsible for completing the items within the work program. The ANC creates the detailed SARPs included within the annexes to the con- vention. Secretariat The Secretariat of ICAO is a grouping of permanent administrative offices, based in Montreal, Quebec, with staff recruited from the Member States of ICAO. The Secretariat also includes seven regional offices around the world, all led by the Secretary General and including five main divisions: the Air Navigation Bureau; the Air Transport Bureau; the Legal Affairs and External Relations Bureau; the Bureau of Administration and Services; and the Technical Cooperation Bureau. The Secretary General serves as the chief executive officer of ICAO and has responsibility for the direction and work of the Secretariat and is accountable to the Council. The Secre- tary General also oversees the seven regional offices and any work assigned to the Office of the Secretary General, including communications, finance, and internal audits. Air Navigation Bureau The Air Navigation Bureau (ANB), in partnership with industry associations and stakehold- ers, manages the air navigation safety, capacity, and efficiency strategies of ICAO. The ANB deals with most of the annexes (except Annexes 9, 16, and 18). The ANB creates and main- tains the Global Air Navigation Plan and the Global Aviation Safety Plan. Air Transport Bureau The Air Transport Bureau supports the implementation of strategic ICAO objectives related to security, the economics of air transport, and protection of the environment. Legal Affairs and External Relations Bureau The functions of the Legal Affairs and External Relations Bureau include advising the Secre- tary General, Council, and other bodies within ICAO on issues related to air, commercial, labor, and international law. The external relations activities include reviewing and advis- ing on relations with States, the UN, and other international organizations. 15 INTERNATIONAL AIR LAW Structure of ICAO The Assembly ICAO’s sovereign body with decision-making power for the organization. All States are welcomed into the Assembly, which currently includes 193 States that meet at least once every three years. The Council ICAO’s governing body includes representatives from 36 (soon to be 40) member States elected to three-year terms. The Air Navigation Commission Considers and recommends SARPs for approval by the Council. Includes 19 members who serve as independent experts. Industry associations and other professionals participate as observers. The Secretariat Air Navigation Bureau Manages ICAO policies related to air navigation safety and infrastructure. Air Transport Bureau Implements strategic ICAO objectives related to Secretary General security, economics of air transport, and the Serves as the chief environment. executive oÿcer of ICAO with responsibility Legal A°airs and External Relations Bureau for the Secretariat. Advises ICAO on legal issues. The Secretary General is responsible to the Council. Bureau of Administration and Services Provides administrative support, human resources, and linguistic services. Technical Cooperation Bureau Supports domestic civil aviation development projects. Regional Oÿces 1. Asia and Pacifc (APAC): Bangkok 3 2. Eastern and Southern African (ESAF): Nairobi 4 3. European and North Atlantic (EUR/NAT): Paris 5 7 1 4. Middle East (MID): Cairo 2 6 5. North American, Central American, and Caribbean (NACC): Mexico City 6. South American (SAM): Lima 7. Western and Central African (WACAF): Dakar Figure 1.4 Structure of ICAO 16  INTERNATIONAL AIR LAW Bureau of Administration and Services The Bureau of Administration and Services provides ICAO with administrative support and management through human resources, information management, and linguistic ser- vices, covering the six working languages of ICAO (English, Spanish, French, Arabic, Chi- nese, and Russian). Technical Cooperation Bureau The Technical Cooperation Bureau works with Member States by supporting civil aviation development projects in their home countries. These may include the implementation of ICAO SARPs, strengthening civil aviation authorities (CAAs), and providing training and infrastructure, among other activities. Air Navigation Regions Following the Chicago Conference in 1944, the Interim Council determined that the globe should be subdivided into air navigation regions to address issues that are specific to certain parts of the world. This would allow for operational and technical issues and air navigation facility planning to be completed in cooperation with the critical States involved, rather than involving all 193 Member States included in the Chicago Convention. In 1945, the Interim Council established the air navigation regions, divided roughly along oceanic and continental borders, which have evolved over the years to become the following (the head office for each region is provided): 1) Asia and Pacific (APAC): Bangkok; 2) Eastern and Southern African (ESAF): Nairobi; 3) European and North Atlantic (EUR/NAT): Paris; 4) Middle East (MID): Cairo; 5) North American, Central American, and Caribbean (NACC): Mexico City; 6) South American (SAM): Lima; and 7) Western and Central African (WACAF): Dakar. The Council The Council is made up of representatives from 36 Member States that serve as the govern- ing body of ICAO. Council members work at ICAO headquarters in Montreal on a full-time basis. States that are of particular importance to civil aviation are chosen to have seats on the Council. Within sessions of the Assembly, the 36 Council States are elected by the 193 Member States for three-year terms. The Council then elects its president for a three-year term and three vice-presidents for one-year terms. Council States are organized into three parts. The 2019–2022 Council includes: Part I—States of chief importance in air transport: Australia, Brazil, Canada, China, France, Germany, Italy, Japan, Russian Federa- tion, United Kingdom, and the United States 17 INTERNATIONAL AIR LAW Part II—States that make the greatest contribution to the provision of facilities for international civil air navigation: Argentina, Colombia, Egypt, Finland, India, Mexico, Netherlands, Nigeria, Saudi Arabia, Singapore, South Africa, and Spain Part III—States ensuring geographic representation: Costa Rica, Côte d’Ivoire, Dominican Republic, Equatorial Guinea, Greece, Ma- laysia, Paraguay, Peru, Republic of Korea, Sudan, Tunisia, United Arab Emirates, Zambia The Council documents and submits its work to the Assembly in annual reports. The Council is responsible for implementing resolutions of the Assembly, adopting SARPS and policy, and setting the tasks and priorities for the ICAO work program [7, p. 3.4–1]. A Deeper Look: Council States Throughout this textbook, look for tables that highlight chapter-specific examples from certain States. The 11 Council States that ICAO has designated as being of “chief importance to air transport”—as well as Egypt, India, Nigeria, and Saudi Arabia to ensure geographic representation—are referred to in these tables with domestic examples of their aviation agencies or organizations. The Assembly The Assembly is ICAO’s sovereign body, meaning that it is the group with decision-making power for the organization. It is in everyone’s best interest for all States to be welcomed into ICAO, as the universal application of ICAO SARPs promotes the safety and efficiency of international aviation. Therefore, ICAO welcomes all States to participate. The Assembly includes representatives from all 193 contracting States who come to- gether at least once every three years. Assembly sessions are convened by the Council and opened by the president of the Council. During Assembly sessions, a variety of decisions are made, relating to taking action on Council reports, approving budgets, reviewing and approving ICAO work programs, and electing new Council States. When the Assembly is underway, each State has one vote, and decisions are based on support from the majority. Occasionally an extraordinary meeting of the Assembly will be called, by the Coun- cil or by at least one-fifth of the contracting States, in response to a timely issue of high importance. For example, in 1970, an extraordinary session of the Assembly was held in response to the alarming increase in hijacking incidents in the late 1960s. Air Navigation Commission The ANC can be considered an independent advisory board to the ICAO Council on air navigation matters. The ANC is made up of 21 members with “suitable qualifications and experience in the science and practice of aeronautics” as specified by the Chicago Convention, as well as industry and State observers. ANC members are nominated by 18  INTERNATIONAL AIR LAW ICAO Member States and appointed by the Council to one-year terms. However, they act independently from their States to promote what they believe is in the best interest of in- ternational civil aviation, rather than supporting the interests of their particular States. Typically, the work of the ANC is accomplished in three sessions per year, with each last- ing nine weeks (including a three-week recess). The ANC is responsible for the technical work program of ICAO, which has high-level objectives linked to the safety, efficiency, and capacity of air navigation. ICAO Work Program When new issues are identified—resulting from an accident investigation, presented by an industry group, or arising from discussions at an Assembly meeting—they are added to the ICAO work program. This will cause the issue to be reviewed by the ICAO Secretariat, the ANC, and the Council. Did You Know? At Assembly meetings there have, on occasion, been challenges keeping States focused on technical issues rather than political differences. To understand international law, it is crucial to remember that States are primarily concerned with supporting their own interests. Louis Henkin, a Columbia law professor, is famously quoted as saying “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” He notes that nations will comply with international law if it is in their interest to do so, but that they may ignore the law if the advantages of violating it outweigh the advantages of obeying it. There have been only a few cases when States have faced the possibility of expulsion from ICAO—generally, as it is in everyone’s best interest for all States to participate, ICAO chooses compromise and accommodation when problems arise. To ensure global safety and security, ICAO has the power to audit compliance, enforce regulations, and sanction nations that choose not to comply. Standards and Other Requirements A typical response to an issue is the creation or modification of SARPs or procedures for air navigation services (PANS) documents. SARPs are contained within the annexes and define the standardized process by which aviation activities are carried out—they are crucial for achieving safe and efficient air travel around the world. Of the standards contained within the 19 annexes, the majority (16 annexes) are the re- sponsibility of ICAO’s ANB. The other three (Annex 9: Facilitation, Annex 16: Environmen- tal Protection, and Annex 17: Security) are the responsibility of the Air Transport Bureau. ICAO standards and other requirements are organized into the following: Standards and Recommended Practices (SARPs). Standards are specifications that need to be applied consistently around the globe to ensure safe and efficient air travel. States that cannot abide by a standard must notify ICAO. Recommended 19 INTERNATIONAL AIR LAW practices are specifications that promote safety and efficiency that States should abide by, as possible. The universal adoption of ICAO international SARPs is one of the foremost objectives of the organization. Procedures for Air Navigation Services (PANS). PANS are operating practices that are too detailed for inclusion within SARPs, but are applicable on a global scale. Regional Supplementary Procedures (SUPPs). SUPPs apply to certain ICAO regions. In terms of content, they are similar to PANS, but they do not have worldwide ap- plicability. Guidance materials supplement SARPs and PANS to help professionals facilitate their implementation. Since the Chicago Convention, ICAO has incorporated over 12,000 SARPs within the 19 annexes and five PANS, along with supplementary and guidance materials. The Standards-Making Process The creation of SARPs and PANS is accomplished through the standards-making process. During this process, technical and non-technical groups (typically ICAO working groups, panels, or committees containing representatives from States and subject matter experts from industry) write recommendations that include impact assessments and implemen- tation plans. Once developed, these recommendations are brought to the ANC for prelimi- nary review. If the recommendations are not considered sufficient, they may be sent back Standards-Making Process Technical and Non-technical Groups (ICAO working groups, panels, committees) Written Recommendations recommendations considered insuÿcient; returned for further work Recommendations ANC considered acceptable; sent for comment Preliminary Review States and Secretariat compiles International Final Review comments Organizations Draft No Recommendations Council not adopted Does 2/3 or Recommendations Yes adopted and States more approve? informed of new standards Figure 1.5 The Standards-Making Process 20  INTERNATIONAL AIR LAW for further work; if they are acceptable to the ANC, they are sent to States and international organizations for comment. The Secretariat compiles all comments and brings the recommendation back to the ANC for a final review. After this, the ANC sends a draft report to the Council recommend- ing adoption. Through a two-thirds majority vote, the Council can adopt the recommen- dation, and States are informed of new provisions, which normally become applicable in November of the following year. This entire process takes about two years, from initial proposal to formal adoption of a SARP within an annex or PANS document. Bilateral and National Regulations So far in this chapter, we have explored aspects of international aviation regulations— particularly the multilateral Chicago Convention. However, the regulation of civil aviation has bilateral and national components in addition to the multilateral. The final section of this chapter will explore bilateral agreements—those established between two States—as well as national regulations specific to a single State. Bilateral Regulation Unlike domestic laws within a country, or multilateral agreements like the Chicago Con- vention, bilateral regulations come into being when one State proposes an agreement di- rectly with another State. Although the Chicago Convention made several notable accom- plishments around freedoms of the air, it did not specify how air traffic rights would be exchanged between nations. Therefore, the negotiation and exchange of traffic rights are accomplished through bilateral regulations called air service agreements (ASAs). ASAs are treaties created primarily to serve States’ economic concerns—they give air carriers the privilege of carrying passengers or cargo to points over, to, or from other States’ territories. These traffic rights can be thought of as market access privileges and generally have constraints related to the frequency of flights, passenger and cargo capacity limits, and pricing guidelines. ASAs are developed through a series of meetings between State representatives, where negotiations take place to define how aviation trade will be coordinated between the two States. Globally, the result is a highly complicated labyrinth of ASAs, with more than 5,000 worldwide , many of which are in the midst of negotiation, amendment, or dispute resolution at any given time (there is also the occa- sional termination). Although most ASAs are bilateral, there are some notable exceptions of multilateral ASAs, including the Multilateral Agreement on the Liberalization of Inter- national Air Transportation (MALIAT) and the Association of Southeast Asian Nations— Single Aviation Market (ASEAN—SAM). Did You Know? A supranational organization is made up of a group of States that is given the authority by its members to act as a single body. An example is the European Union. Agreements between a supranational organization and another country are considered bilateral. 21 INTERNATIONAL AIR LAW Keep in mind that it is often in a country’s best economic interest to increase inter- national air traffic. However, every nation wants to do this in a way that does not com- promise the success of its own domestic airlines. Interestingly, ASAs include a nationality rule, which requires that airlines be substantially owned and effectively controlled by their home State. That is to say that, in principle, an American company or citizen cannot own a majority share in Air Canada, as it complicates State ASAs. This nationality rule ensures a State’s security control over aircraft flying into their airspace, impacts labor and social issues, and influences protectionism over trade in air transportation. The consequence is that airlines remain domestic entities, preventing the creation of a globalized airline. As you can imagine, the negotiation of bilateral agreements can be a complicated and time-consuming process. IATA, with more than 290 member airlines around the world, plays a vital role in assisting nations in the development of ASAs through cooperation with ICAO (which has created a Template Air Services Agreement [TASA]), airlines, and other international groups. Originally, IATA had responsibility for setting fares for international routes around the world (subject to governmental approval); however, many States now implement open skies policies. Open skies refer to liberal bilateral agreements that can be thought of as free trade for international aviation. The concept of open skies was initiated through the Unit- ed States’ airline deregulation, which occurred in the late 1970s. Domestically, the United States eased restrictions on access, routes, and pricing to promote competition among the US-based airlines. The concept was that free trade within aviation would increase compe- tition among carriers, which would lead to lower fares and better service for passengers. Following its domestic deregulation, the United States began negotiating open skies bi- lateral agreements with other countries, with 11 signed between 1978 and 1980 [22, p. 290]. The open skies concept has become an accepted part of modern aviation, with many liber- al bilateral agreements in force around the world. Open skies bilateral agreements allow foreign airlines nearly limitless access to a country and the freedom to set their own fares. National Regulation In addition to multilateral and bilateral regulation, international air law is governed by national regulation. National regulation refers to a country’s sovereign right to control its territory and the airspace above it, taking into account that country’s international obliga- tions under multilateral and bilateral agreements. Although the multilateral Chicago Convention stipulates SARPs, and bilateral ASAs al- low market access to other States, a significant component of air law remains: the actual implementation of SARPs and the creation of domestic regulations. These tasks are car- ried out by a State’s civil aviation authority (CAA). CAAs must carefully consider domestic laws and regulations in addition to international standards and agreements. National regulation of international air transport involves three activities, each of which includes enforcement actions as required: licensing—the granting or withholding of permission to conduct air transport activities; legislation—law-making, policy making, and the writing of regulations; and ad hoc authorization—day-to-day decision-making on specific matters, such as permitting a single flight or approving a particular tariff [7, p. 1.1–1]. 22  INTERNATIONAL AIR LAW Table 1.2 Civil Aviation Authorities of ICAO Council States State Civil Aviation Authority Civil Aviation Safety Authority Australia www.casa.gov.au Agência Nacional de Aviação Civil Brazil www.anac.gov.br Transport Canada Canada www.tc.gc.ca Civil Aviation Administration of China China www.caac.gov.cn Ministry of Civil Aviation Egypt http://www.civilaviation.gov.eg Direction générale de l’Aviation civile France www.developpement-durable.gouv.fr Luftfahrt-Bundesamt Germany www.lba.de Directorate General of Civil Aviation India https://dgca.gov.in Ente Nazionale per l’Aviazione Civile Italy www.enac.gov.it Civil Aviation Bureau. Ministry of Land, Japan Infrastructure, Transport and Tourism www.mlit.go.jp/en/koku Nigerian Civil Aviation Authority Nigeria https://ncaa.gov.ng Ministry of Transport Russian Federation www.mintrans.ru General Authority of Civil Aviation Saudi Arabia https://gaca.gov.sa Civil Aviation Authority United Kingdom www.caa.co.uk Federal Aviation Administration United States www.faa.gov 23 INTERNATIONAL AIR LAW National regulation is structured within an organization—generally a government entity that serves as the nation’s CAA—and by the legal framework of that country. Aviation pro- fessionals are required to learn the intricate details of their country’s regulatory structure, and entire books are dedicated to this for each country. International Organizations International organizations play important roles in international air law. Organizations fall under three main categories: International Governmental Organizations International governmental organizations (IGOs) such as ICAO and the European Union (EU) have the power to adopt binding international law that governs international air transport through the consent of their members. The Chicago Convention allows ICAO to propose and enact amendments to the convention and manage annexes with included SARPs. As a supranational organization, the EU is more agile in its law-making ability, and its actions are binding for its Member States. The EU negotiates bilateral agree- ments, such as ASAs, on behalf of its members. International Non-governmental Organizations International non-governmental organizations (INGOs) are organizations that operate in- ternationally, not established through an agreement between governments. INGOs that support aviation include IATA, the Airports Council International (ACI), the Internation- al Coordinating Council of Aerospace Industries Associations (ICCAIA), and the Civil Air Navigation Services Organisation (CANSO) among others. INGOs often observe and can influence regulations through the education of government officials and urging them to rethink aviation regulations. IATA has straddled the fence between being an IGO and an INGO by providing a structure for pricing and routing of international air services and brokering agree- ments between member airlines and governments. National Governmental Authorities and Domestic Trade Associations These groups operate within one country, including CAAs and trade groups such as Air- lines 4 America. Domestically, a CAA has responsibility over the management and control of avia- tion activities within the sovereign airspace of its State. These authorities manage regulations, security, and air navigation, among other issues (see Table 1.2). Domestic trade associations are active within a country and represent a specific group’s interests (e.g., owner and pilots’ associations, air transport groups, and airport management groups). 24  INTERNATIONAL AIR LAW Did You Know? Several international organizations are granted observer status at ICAO, allowing them to participate in activities of the organization. However, observers have limited influence, as they usually cannot vote or propose resolutions. As SARPs directly influence many groups and industries, observer status allows organizations to have their voices heard and considered during the development of SARPs. Students of international aviation should familiarize themselves with these groups, and consider how they represent the interests of critical subsections of the aviation industry. To help you develop this understanding, these groups are profiled at the end of each chapter of this textbook within organizational profiles. Conclusion Every few seconds, an aircraft takes off or lands somewhere around the world. Every as- pect of that flight relies upon standardization on a global scale: from aircraft manufac- turing standards to airport facilities to licensing and training requirements. This stan- dardization is accomplished through international air law, which is made up of a dense network of multilateral, bilateral, and domestic regulations. Globally, the multilateral Chicago Convention has the most significant impact, as it re- sults in millions of professionals applying practices based on SARPs developed through ICAO. International air law is a dynamic sphere of practice, continually evolving to meet the needs of modern aviation. Although cooperative rule-making can involve political chal- lenges, the model established within the international aviation community is recognized as a successful example of what can be accomplished when the world comes together to support a common goal. 25  INTERNATIONAL AIR LAW Supplement AIR L AW Case Study: Korean Air Lines Flight 007—An Aircraft in the Wrong Place at the Wrong Time [18, 24, 25] On 1 September 1983, Korean Air Lines flight 007 (KAL 007) was on a leg from New York City to Seoul, with a fuel stop in Anchorage, Alaska. KAL 007 was a Boeing 747 with 246 passengers and 23 crew members on board. During the cruise portion of its final leg, the aircraft deviated more than 320 kilometers (200 miles) from its intended path and flew into what was then Soviet airspace: over the Kamchatka Peninsula, a secret military facility. KAL 007 unknowingly found itself within prohibited Soviet airspace at the height of the Cold War. Soviets were sensitive to the activities of rival countries during the Cold War. Coincidentally, on 1 September 1983, Soviet air commanders had been tracking an American spy plane (Air Force Boeing RC-135), which had been flying wide circles just in and out of radar range east of the Kamchatka Peninsula. At one point, the American spy plane and KAL 007 flew so close together that they merged on Soviet radar. The American spy plane left Soviet radar coverage and KAL 007 flew directly toward the southern edge of the Peninsula. Soviet military personnel monitoring the radar screens assumed that KAL 007 was the Ameri- can spy plane. While being closely monitored by Soviet controllers, KAL 007 passed over the Kamchatka Peninsula, flew out over international waters, and toward Sakhalin Island (another Soviet territory just north of Japan). Sakhalin radar controllers designated KAL 007 as a military target, prompting them to use interception and engagement rules for military activity (rather than abiding by international civil aviation rules). Two Soviet Su-15 fighters were deployed. Twenty minutes later, while flying at 30,000 feet, a fighter pilot made visual contact with KAL 007 and took up a po- sition behind the airliner. The fighter pilot transmitted messages to ground con- trol, stating there were four engines, but did not clearly identify the aircraft as an airliner. Hearing that the plane had four engines, ground control understood this as confirmation of Soviet military suspicions that this was the American spy plane. Soviets tried to make radio contact on an emergency frequency, but the crew on board KAL 007 was not monitoring that channel. Unaware of the situation, the KAL 007 crew was performing routine oper- ations, in radio contact with controllers in Japan. The fighter pilot flashed his lights and fired warning shots, trying to force the aircraft to land, but the crew of KAL 007 neither saw nor heard the warnings. Soviet controllers were anxiously communicating with their superiors about what to do, as the aircraft was about to cross out of Soviet airspace back over international waters. In an unlucky coincidence, the KAL 007 flight received instructions from To- kyo Air Traffic Control to climb to 35,000 feet. Observing this action, the Sovi- et fighter pilot assumed it was an evasive maneuver. The fighter reported the airliner’s maneuver to Soviet commanders and was instructed to destroy the aircraft. The Soviet fighter pilot launched two missiles. One missile exploded near KAL 007, breaking a hole in the fuselage and causing the jet to lose cabin 26  INTERNATIONAL AIR LAW Supplement AIR L AW pressure. The KAL 007 crew tried to control the descent, but the aircraft stalled and fell into the Sea of Japan, killing all 269 people on board. It took several days for the Soviets to admit to shooting down the aircraft. At that point, the Soviets announced that their action was simply a response to a deliberate provocation by the United States of America. There were several immediate reactions to the event: the International Federation of Air Line Pilots’ Associations (IFALPA) called for a boycott of all flights to Moscow, and several States refused landing rights to Aeroflot (the largest airline of the Russian Federation) for weeks after the event; and groups around the world denounced the Soviet Union—actions included burning Soviet flags and boycotting Soviet liquor. With American and Soviet tensions high, the Americans publicly condemned the Soviets, focusing on what was done to the plane, and the Soviets criticized the Americans, focusing on what the plane was doing. Newspaper and magazine articles and books were published with wide- ranging theories about the events that led up to the downing of KAL 007. Did Soviets know it was a passenger-carrying civil aircraft, or did they legitimately mistake it for the military aircraft? Why didn’t controllers warn the KAL 007 pilots? Was the American spy plane aware of the KAL 007 aircraft—and if so, would the United States bear some responsibility for allowing the flight to continue? As ICAO is focused primarily on the safety of aviation, it made sense for the international community to turn to them for leadership. For the first time since the intense negotiations at the Chicago Convention, ICAO found itself in the mid- dle of heated debate between rival States. ICAO held an extraordinary session of the Council where it was agreed that an armed attack against a civil aircraft was incompatible with interna- tional civil aviation (and humanity in general) as outlined in United Nations Charter articles 2(4) and 51, and that the Soviets had not adequately consid- ered the safety of passengers and crew on board the aircraft. The ANC was instructed to study ICAO documents to find ways to prevent similar disasters in the future. These council resolutions were debated at the 24th ICAO Assembly in 1983. States had lengthy heated debates over the issues, with the Soviets asserting that the Americans had deliberately sent KAL 007 into their airspace and, there- fore, the United States ultimately held responsibility. However, most States con- demned the actions of the Soviets, and Council resolutions were passed that pro- hibited Member States from using armed force against civil aircraft. ICAO undertook three major initiatives: 1) ICAO determined that an amendment to the Chicago Convention was required to assert that the use of weapons against civil aircraft was un- acceptable. This amendment (Article 3Bis) was ultimately passed by the ICAO Assembly in 1984. 2) The ANC was tasked with reviewing all technical aspects and docu- mentation (Chicago Convention, annexes, manuals, and so on) to see if they could be improved to prevent this type of disaster. This resulted in 27  INTERNATIONAL AIR LAW Supplement AIR L AW revisions to several annexes as well as the Manual Concerning Intercep- tion of Civil Aircraft in 1984. 3. The secretary general was tasked with investigating the KAL 007 occur- rence and reporting back to the Council. This last task was incredibly difficult, as ICAO had no power to enforce its decisions or subpoena in- formation or testimony—and the key States involved were reluctant to share. The Soviets resisted the investigation and stated that they had not found the cockpit voice recorder or the flight data recorder. When the final report was submitted to the Council, it was inconclusive, as a num- ber of elements were missing. The final report could not conclude how or why KAL 007 flew off course, though pilot error was suspected. The re- port identified where the Soviets were at fault: the fighter pilot had mis- taken KAL 007 for an American spy plane and did not clarify the aircraft identification before firing the missiles. Council members condemned the Soviet Union for failing to cooperate with search and rescue activities and the ICAO investigation. Though condemned in the court of public opinion, the Soviets were not punished in any official way. In December 1990, seven years after the accident, a Soviet foreign minister apol- ogized to South Korea for the shooting of KAL 007, published interviews with the Soviet fighter pilot, and announced that they had looked for espionage equip- ment in the wreckage but found none. In 1993, the Soviets turned over to ICAO the flight recorders, which for ten years they had denied having. The ICAO coun- cil was asked to complete its investigation. The resulting report determined that there had been no equipment malfunc- tion on KAL 007, the aircraft was certified and maintained, and the crew was fit to fly. Human error, on both sides, led to the event. The KAL 007 crew had failed to note the autopilot was in an incorrect mode, which led to the deviation from the flight path, and they lacked the situational awareness to notice how far off course they had drifted. On the Soviet side, the fighter pilot had fired before making thorough efforts to identify the aircraft. The ICAO Council declared the investigation complete. This event had a transformative effect on ICAO. Suddenly, it found itself on an international stage where disputes between Member States could be brought forward. ICAO demonstrated leadership, along with technical and political ex- pertise, while maintaining focus on its core objective of promoting civil aviation safety. Key Points to Remember 1) After the Wright brothers’ successful flight on 17 December 1903, the percep- tion of aviation evolved from something mystical at the turn of the century to an ordinary mode of transportation by the end of World War II. 28  INTERNATIONAL AIR LAW Supplement AIR L AW 2) International air law refers to the rules and regulations that impact global air transport. International air law encompasses three types of regulation: multi- lateral, bilateral, and national. Multilateral aviation agreements apply to three or more States; bilateral aviation agreements exist between two States; and na- tional regulations apply domestically within a single State. 3) The first significant multilateral aviation regulations were developed at the Paris Conference and the Havana Conference. The 1919 Paris Conference re- sulted in the Convention Relating to the Regulation of Aerial Navigation, signed by 37 States on 13 October 1919. It included 43 legal articles outlining technical, operational, and organizational agreements concerning civil aviation, and cre- ated the ICAN to manage and create air regulations. The 1926 Ibero-American Conference was attended by Portugal, as well as Latin American and Caribbean States, but subsequently failed. The 1928 Havana Convention resulted in inter- national cooperation specific to the Americas and was ratified by 11 States, but global uniformity was lacking. 4) The 1944 Chicago Conference convened on 1 November 1944 and involved 52 States. The result was the Convention on International Civil Aviation, which established ICAO as the international organization responsible for civil avi- ation (replacing the Paris Convention’s ICAN); defined universal rules associated with airspace sovereignty, navigation, aircraft airworthiness, and registration, global SARPs, as well as annexes and a standard form of bilateral agreement for exchange of air routes; and incorporated 12 annexes (today, there are 19 annexes) on a variety of issues from personnel licensing to safety management. 5) ICAO is managed by a Secretariat and led by a Secretary General who func- tions as ICAO’s chief executive officer. High-level policies and the ICAO work program are developed within Assembly meetings, where all 193 contracting States convene every three years. The Council, a permanent governing body, is made up of representatives from 36 States, each of which serves a three-year term. The ANC, an advisory board with 21 members, is responsible for the ICAO work program and the creation of SARPs. 6) When an issue is identified and a response is required, the ANC employs the standards-making process. Since the Chicago Convention, over 12,000 SARPs have been incorporated within 19 annexes and five PANS. Standards are spec- ifications that must be applied consistently around the globe. Recommended practices are specifications that should be applied consistently around the globe, as possible. 7) Bilateral regulations are initiated when a State proposes an agreement direct- ly with another State. Air service agreements (ASAs) are common bilateral agreements in civil aviation that involve negotiation and exchange of air traffic rights. 8) National regulation, carried out by a State’s civil aviation authority (CAA), re- fers to a country’s sovereign control over its own territory and overlying air- space, taking into account multilateral and bilateral agreements. CAAs are in- volved in licensing, legislation, and ad hoc authorization. 29  INTERNATIONAL AIR LAW Supplement AIR L AW 9) International organizations, which play important roles in shaping interna- tional law, can be organized into three categories. International governmental organizations (IGOs), such as ICAO, have the power to adopt binding interna- tional legal rules through the consent of their members; international non- governmental organizations (INGOs), such as IATA, can influence regulations through education and lobbying of government officials; and national govern- mental authorities, such as CAAs and trade associations, are active domestical- ly and influence national regulations. Table 1.3 Acronym Rundown ACI Airports Council International ANC Air Navigation Commission APAC Asia and Pacific (air navigation region) ASA Air service agreement CAA Civil aviation authority CANSO Civil Air Navigation Services Organisation ESAF Eastern and Southern African (air navigation region) EU European Union EUR/NAT European and North Atlantic (air navigation region) IATA International Air Transport Association ICAN International Commission for Air Navigation ICAO International Civil Aviation Organization ICCAIA International Coordinating Council of Aerospace Industries Associations IFALPA International Federation of Air Line Pilots’ Associations IGO International governmental organization INGO International non-governmental organization MID Middle East (air navigation region) NACC North American, Central American, and Caribbean (air navigation region) NOTAM Notices to airmen PANS Procedures for air navigation services (continued) 30  INTERNATIONAL AIR LAW Supplement AIR L AW PICAO Provisional International Civil Aviation Organization SAM South American (air navigation region) SARPs Standards and Recommended Practices SUPPs Regional supplementary procedures UN United Nations WACAF Western and Central African (air navigation region) Chapter Review Questions 1.1 Explain why aviation grew so rapidly between 1903 and 1945. Include the key events that you believe led to these advancements. 1.2 How is the Chicago Convention important in aviation today? List three ways in which the convention impacts modern aviation. 1.3 What is the International Civil Aviation Organization (ICAO)? How did it come to exist? What is its role in today’s aviation landscape? 1.4 How was the Wright brothers’ accomplishment revolutionary? Did they do it alone, or did they build upon the success of others? Explain your answer. 1.5 In the age of security risks in aviation, are freedoms of the air becoming more difficult for States to agree upon, or easier? Explain your answer. 1.6 What is the name of your State’s civil aviation authority (CAA)? What challeng- es might it face in finding the balance between abiding by national laws and adhering to ICAO’s Standards and Recommended Practices (SARPs)? 1.7 Does your State have an open skies policy? Should it? Provide three arguments for an open skies policy and three arguments against one. 1.8 Research an example of a bilateral aviation agreement that has benefitted both countries. Provide evidence of the benefits. 1.9 Provide an example of an international governmental organization (IGO), an international non-governmental organization (INGO), a national governmen- tal authority, and a trade association that influence civil aviation in your State. Case Study Questions 1.10 As discussed, States have sovereign control over the airspace overlying their territories. However, how much control do you think is appropriate? In the tragic KAL 007 accident, Soviet actions were condemned, but would they have been justified if the aircraft shot down had been the military spy plane? 1.11 Before the flight recorders were analyzed, some theorized that the KAL 007 pilots had intentionally flown over Soviet airspace to take a more direct route to their destination in order to save fuel. If that had been the case, what rights 31  INTERNATIONAL AIR LAW Supplement AIR L AW would the Soviets have had to defend their airspace? What would have been a reasonable response to an aircraft violating a State’s restricted airspace? 1.12 ICAO’s response to the event reflected the relationship between the Council, the Assembly, and the ANC. However, it also placed Council members in a po- sition where they were going beyond acting as the voices of individual States to expressing a unified opinion on an event. Could this be a slippery slope? What challenges could arise from Council members moving away from speaking as individual States and toward expressing opinions as a unified organization? 1.13 On 8 January 2020, amid growing political tensions between the United States and Iran, Ukraine International Airlines Flight 752 crashed shortly after takeoff from Tehran Imam Khomeini International Airport, fatally injuring 176 passengers and crew. Although Iran immediately dismissed speculation that the aircraft had been brought down by a missile, it later acknowledged that its military forces had fired two surface-to-air missiles at the civil aircraft, cit- ing it as the result of “human error.” What role do you think ICAO should play in managing political tensions and their potential risk to civil aviation? References “The Paris Convention of 1910: The path to internationalism,” International Civil Aviation Organization, 2015. [Online]. Available: www.icao.int/secretariat/PostalHistory/1910_the_paris_convention.htm. B. I. Scott and A. Trimarchi, Fundamentals of International Aviation Law and Policy. Abingdon: Routledge, 2020. “The 1919 Paris Convention: The starting point for the regulation of air navigation,” International Civ- il Aviation Organization, 2015. [Online]. Available: www.icao.int/secretariat/PostalHistory/1919_the_ paris_convention.htm. “1928: The Havana Convention,” International Civil Aviation Organization, 2015. [Online]. Available: www. icao.int/secretariat/PostalHistoryA928_the_havana_convention.htm “1944: The Chicago Conference,” International Civil Aviation Organization, 2015. [Online]. Available: www. icao.int/secretariat/PostalHistoryA944_the_chicago_convention.htm. International Civil Aviation Organization, Convention on Civil Aviation (Chicago Convention). Chicago, IL: International Civil Aviation Organization, 1944, p. 2. International Civil Aviation Organization, Manual on the Regulation of International Air Transport, Doc 9626. Montreal: International Civil Aviation Organization, 2004, p. 3.4–1. “Secretary General,” International Civil Aviation Organization. [Online]. Available: www.icao.int/secretar- iat/Pages/default.aspx “Air Navigation Bureau,” International Civil Aviation Organization. [Online]. Available: www.icao.int/safe- ty/airnavigation/Pages/default.aspx. “Air Transport Bureau,” International Civil Aviation Organization. [Online]. Available: www.icao.int/secre- tariat/air-transport/Pages/default.aspx. “Legal Affairs and External Relations Bureau,” International Civil Aviation Organization. [Online]. Avail- able: www.icao.int/secretariat/legal/Pages/default.aspx. 32  INTERNATIONAL AIR LAW Supplement AIR L AW “Bureau of Administration and Services,” International Civil Aviation Organization. [Online]. Available: www.icao.int/secretariat/Administration/Pages/default.aspx. “Regional offices,” International Civil Aviation Organization. [Online]. Available: www.icao.int/Pages/Con- tact_us.aspx. “Council states 2019–2022,” International Civil Aviation Organization. [Online]. Available: https://www. icao.int/about-icao/Council/Pages/council-states-2019-2022.aspx. International Civil Aviation Organization, Air Navigation Commission: Special 200th session commemorative review, 2015. [Online]. Available: www.icao.int/about-icao/AirNavigationCommission/Documents/ANC- 200_final_web.pdf. “Air Navigation Commission,” International Civil Aviation Organization. [Online]. Available: www.icao.int/ about-icao/AirNavigationCommission/Pages/default.aspx. L. Henkin, How Nations Behave: Law and Foreign Policy, 2nd ed. New York: Columbia University Press, 1979. D. Mackenzie