1.1 Introduction
1.2 Determination of Air Space & Aviation Law
The third freedom was
the first commercial freedom.
The thousands of year’s human beings
have looked to the skies with hope and admiration. The dreams of achieving
artificial flight have occupied the imaginations of thinkers and engineers
since the days of ancient Greece
right up to the time of Leonardo da Vinci. Although these flights of fancy were
ultimately futile, in 1903 Wilbur and Orrville Wright finally turned centuries
of dreaming into reality when they flew 120 feet in Kitty Hawk, North Carolina
on December 17th, 1903.
Aviation law
is the branch of international law that concerns flight, air travel, and
associated legal and business concerns. Some of its area of concern overlaps
that of admiralty law and in many cases, aviation law is considered a matter of
international law due to the nature of air travel.[1]
However, the business aspects of airlines and their regulation also fall under
aviation law. In the United
States, the Federal Aviation Administration [FAA]
governs applied aspects of flight. In the international realm, the
International Civil Aviation Organization [ICAO] provides general rules and
mediates international concerns to an extent regarding aviation law.
1.2 Determination of Air Space & Aviation Law
Each State exercises complete
sovereignty over its territory which comprises of lands, waters, maritime
belts, air space, etc.
According
to the old view watch State exercises sovereignty over its complete air space.
In the modern times, this view is subjected to criticism and has been
criticized by the jurists. There are several views or theories prevalent in
this connection.
According
to the first view, air space is available for each State and the aircrafts of
each State may pass through it without any obstruction. This view has been
vehemently criticized because it is contrary to many international treaties.
Each state exercises control over its air space and the aircraf6ts of another
state can better in its air space only after seeking its prior permission. In
accordance with the second view, each state exercises control over its air
space up to unlimited height. It is entitled to exercise complete control over
it and may not permit the entry of the aircrafts of other states in this area.
This view also does not seem to be correct because in view of the rapid
scientific and technological developments aircraft can go to a very high
attitude. It is not possible for each state to exercise control over unlimited
height. Since it is not possible to exercise control over unlimited air space,
this view, has lost much of its relevance.
Thus there is a great
controversy in respect of law relating to airspace. But there is general
agreement regarding certain matters. There is general agreement that each state
exercises over the airspace over its territory. This sovereignty is essential
for the defense and security of the state. But at the same time there is need
for the freedom of aerial navigation for commercial, scientific and
humanitarian purposes. With a view to reconcile these conflicting needs, the concept
of functional sovereignty has been suggested. There is also the urgent need of
evolving the legal regime of air apace as new branch of international law
called Air law or Aviation Law.
1.3 History of Aviation Law
The importance of modern
aviation was recognized during World War II, when a conference was convened to
discuss regulation of postwar international civil aviation. The resulting
Chicago Convention of 1944 codified public international aviation law.
Contracting nations adopted international regulations, standards, and
procedures for the use of communication systems and air navigation aids; for
airport characteristics; for rules of the air and air traffic control; for
airworthiness of aircraft; for licensing of operating and mechanical personnel;
for aeronautical maps and charts; for log books; and for measures to facilitate
air navigation.
The established principle that every nation has complete and
exclusive sovereignty over the airspace above its territory was reaffirmed.
Every civil aircraft in international aviation must be registered, carry the
nationality of the country of registration, and bear appropriate identification
markings. The convention granted transit rights [that is, the right to fly over
another nation’s territory and the right to land there for no traffic purposes,
such as refueling] and permitted nonscheduled, charter, and private flights.
A
similar arrangement in traffic rights [to pick up and set down passengers,
cargo, and mail] was not adopted, and bilateral negotiations had to be carried
out to effect such arrangements. The American principle of “freedom of the air” and the British principle of “order in the air” were reconciled in
1946 in Bermuda at a meeting between the U.S. and Great Britain.
Subsequent bilateral agreements are based on the so-called Bermuda Principles
covering the regulation of routes, capacity, and tariff.
Another
outcome of the Chicago
conference was the International Civil Aviation Organization [ICAO], which was
formally established in 1947 as an agency of the UN to foster development and
promote cooperation in international civil aviation. The organization has a
legal committee that is responsible for producing treaties, conventions, and
protocols in those areas of aviation in which uniformity is desirable. In 1963
the committee produced the Tokyo
Convention, which dealt with offenses committed on aircraft. The many
aircraft hijackings after 1968 brought pressure to ratify this agreement, and
the U.S. Senate did so in 1969. More stringent security measures for
international flights were called for in amendments to the Chicago Convention adopted by the ICAO council in 1985, 1988, and
1992.[2]
An
early agreement, the Warsaw Convention
of 1929, provided for presumptive but limited liability of an air carrier for
personal injury or death of a passenger or damage to goods in international air
carriage. Liability for death or personal injury was limited to $8300. The Hague Protocol [1965], a series of amendments
to the Warsaw Convention, doubled the
liability limit. The U.S.
did not adhere to the Warsaw Convention
until 1934 and did not ratify or adhere to the Hague Protocol because of
dissatisfaction with their low limits of liability. In 1969 the air carriers,
under the auspices of the International Air Transport Association [IATA], a
trade association, agreed to raise this limit to $75,000 with respect to
passengers traveling to or from or passing through the U.S. This
so-called Montréal Agreement was then
incorporated in airline tariffs, which were accepted by the national Civil
Aeronautics Board [CAB]. A new treaty, the Guatemala Protocol to the Warsaw
Convention, was enacted. It was signed by the U.S. in 1970. The protocol provided
for absolute liability on the part of the airline as well as for an unbreakable
limitation of damages to $100,000. The Guatemala Protocol was later amended to
provide that the limit would be 100,000 Special Drawing Rights [units of
international monetary exchange administered by the International Monetary Fund].
This new treaty, entitled the Montréal
Protocols 3 and 4, has been denied ratification by the U.S. Senate since
1983.[3]
2.1 Aerial
Navigation
A number of international
conventions have been concluded to regulate aerial navigation.[4]
The more important of them are given below-
2.1.1 Paris
Convention of Aerial navigation 1919-
This convention framed certain rules
regarding aerial navigation during peace time. According to the convention,
each state exercises complete sovereignty over its air space. Further, during
peace, parties to the convention will give innocent passage to the other state
parties to the convention. The convention did not frame rules for the period of
war. [5]
2.1.2 Havana
Convention,
This
convention was adopted mainly by the States of American Continent. Several
rules regarding aerial navigation were adopted under the convention.
2.1.3
Warsaw
Convention, 1923
This
convention framed certain rules relating to international transport of traffic
and goods.[6]
2.1.4
Chicago
Convention on International Civil Aviation, 1944
Chicago convention is most important of all treaties and convention
relation to aerial navigation. It was signed by 53 States. Five Freedoms of air
were for the first time declared under this convention.[7]
2.2 Freedoms of the Air
Air transportation is different to
most other forms of commerce, not only because of its international components
but also because of its governmental participation and the fact that many
national airlines or 'flag carriers' are either in large part government owned,
or, even if not, are felt by the government to reflect the prestige of their
nation.[8]
In
addition, nations often feel that they can only rely on their locally owned
carriers to have a commitment to providing service to their own country. This
is unimportant if you're a small country in Europe
with excellent road and rail service to other countries, but if you're a remote
island in the Pacific, air service is essential.
And so,
for reasons variously good or bad, international air travel has long been
subjected to all manner of complicated restrictions and bilateral treaties
between nations. One of the main treaties that set out the fundamental building
blocks of air transportation regulation - the 'rules of the road' - is the
Chicago Convention in 1944.
These 'building blocks' are widely referred to
as the "freedoms of the air",
and they are fundamental to the international route network we have today.
There are five basic freedoms that are, more or less, recognized by all countries,
two others less widely accepted, and one hardly accepted at all.
Each is subject to
specific conditions, such as establishing the frequency of flights that are
determined through bilateral agreements between any two of the countries that
are parties to the Convention.[9]
First Freedom
The first freedom is the
right to fly over a foreign country without landing. It is also known as the
technical freedom. It grants the privilege to fly over the territory of a
treaty country without landing. Member states of the International Air Services
Transit Agreement grant this freedom [as well as the second freedom] to other
member states,[10]
subject to the transiting aircraft using designated air routes.
Figure – 01
To over fly one
country en-route to another
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|
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Example:
Toronto - Mexico City, over flying
the United States.
As of the summer of
2007, 129[11]
countries were parties to this treaty, including such large ones as the United States of America,
India,
and Australia.
However, Brazil,
Russia,
Indonesia,
and China
never joined, and Canada
left the treaty in 1988. These large and strategically located non-IASTA-member
states prefer to maintain tighter control over foreign airlines' over flight of
their airspace, and negotiate transit agreements with other countries on a
case-by-case basis.[12]
Since
the end of the Cold War, first freedom rights are almost completely universal,
although most countries require prior notification before an over flight, and
charge substantial fees for the privilege.
IASTA allows
each member country to charge foreign airlines "reasonable" fees for
using its airports [which is applicable, presumably, only to the second freedom]
and "facilities"[13]; according to IASTA, such
fees should not be higher than those charged to domestic airlines engaged in
similar international services. Such fees indeed are commonly charged merely
for the privilege of the over flight of a country's national territory, when no
airport usage is involved.[14]
For example, the Federal Aviation Administration of the U.S., an IASTA
signatory, as of 2009 charges the so-called enroute fees, of US$33.72 per 100 nautical miles [190 km],
of great circle distance from point of entry of an aircraft into the
U.S.-controlled airspace to the point of its exit from this airspace.[15] In addition, a lower fee [a
so-called oceanic fee] of
$15.94 per 100 nautical miles [190 km] is charged for flying over the
international waters where air traffic is controlled by the U.S., which
includes sections of Pacific, Atlantic, and Arctic Oceans.
Countries that are not signatories of the IASTA charge over flight fees as
well; among them, Russia, is known for charging high fees, especially on the transacted
routes between North America and Asia, which cross Siberia.
Second Freedom
The second freedom
allows technical stops without the enplaning or deplaning of passengers or
cargo. It is the right to stop in one country solely for refueling or other
maintenance on the way to another country.
Figure – 02
To make a technical stop in another
country
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|
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Example:
Toronto - Mexico City with a
short-range aircraft that needs to be refueled in the U.S.
The most famous example
of the second freedom is Shannon
Airport, which was used
as a stopping point for most North Atlantic
flights until the 1960s. Anchorage
was similarly used for flights between Western Europe
and East Asia, bypassing Soviet airspace,
until the 1980s. Anchorage
is still used by some Chinese and Taiwanese airlines for flights to the U.S. and Toronto from China and Taiwan. Also,
flights between Europe and South Africa
often stopped at Ilha do Sal [Sal
Island], off the coast of
Senegal,
due to many African nations refusing to allow South African flights to over fly
their territory during the Apartheid regime. Gander, Newfoundland
was also a frequent stopping point for airlines from the USSR and East Germany on
the way to the Caribbean, Central America, Mexico
and South America.
Because
of longer range of modern airliners, second freedom rights are comparatively
rarely exercised by passenger carriers today, but they are widely used by air
cargo carriers, and are more or less universal between countries.
Third Freedom
The freedom to carry traffic from a home country to another
country [A] for purpose of commercial services.
Figure – 03
To carry freight and
passengers from the home country to another country.
|
Example:
Carrying passengers from Toronto
to Chicago as a
Canadian company.
Fourth Freedom.
The freedom to pick up traffic from
another country [A] to a home country for purpose of commercial services.
Third and Fourth Freedoms are the
basis for direct commercial services, providing the rights to load and unload
passengers, mail and freight in another country.
Figure – 04
To carry freight and
passengers to the home country from another country.
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|
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Example:
Carrying passengers from Chicago
to Toronto as a
Canadian company.
Fifth Freedom
The fifth freedom allows
an airline to carry revenue traffic between foreign countries as a part of
services connecting the airline's own country. It is the right to carry
passengers from one's own country to a second country and from that country to
a third country [and so on]. The "unofficial
'seventh freedom'", is a variation of the fifth freedom and allows
international services wholly outside of an airline's origin. An example of a
fifth freedom flight is a 2004 Emirates Airlines flight originating in Dubai,
then going on to Brisbane, Australia, and then from Brisbane to Auckland, New
Zealand, where tickets can be sold on any or all sectors, and in the reverse
direction if flights are offered. It is also called a connecting flight.
Figure – 05
To carry freight and passengers
between two countries by an airline of a third country on route with origin /
destination in its home country.
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Example: A Canadian company flies from Toronto
to Chicago,
picks up passengers there, and then continues to Mexico City.
Two sub-categories
exist. "Beyond fifth freedom"
allows the right to carry passengers from the second country to the third
country. "Intermediate fifth
freedom" allows the right to carry passengers from the third to the
second country.
Fifth Freedom rights
were instrumental to the economic viability of long-haul flight until the early
1980s when advances in technology and increases in passenger volume allowed the
introduction of more non-stop services. It was not uncommon for carriers to
schedule multiple stops in foreign countries on the way to a direct flight's
final destination, especially those connecting Europe
with Africa, South
America and the Far East. An
example of such multi-stage flying is a mid-eighties Rome—Tokyo Alitalia flight by way of Athens, Delhi, Bangkok
and Hong Kong. Such routings in Asia
approximated the Silk Road Fifth freedom flights are still highly common in
East Asia, particularly routes serving Tokyo and the Bangkok—Hong Kong route,
which,
For
example, at one
point in 2004 was served by at least six airlines not based in either Thailand or Hong Kong. Other major markets which are served by
numerous fifth freedom flights include Europe,
South America, the Caribbean,
the North Atlantic, and the Tasman
Sea. Fifth freedom rights are also sought by airlines wishing to
take up unnerved and underserved routes, or those airlines whose flights
already make technical stops at a location as allowed by the second freedom.
Sixth Freedom
The unofficial sixth freedom
combines the third freedom and fourth freedoms and is the right to carry
passengers or cargo from a second country to a third country by stopping in
one's own country.
Figure – 06
To carry freight and passengers
between two countries by an airline of a third country on two routes connecting
in its home country
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Example:
A U.S.
company flying passengers from Toronto
to Mexico
while picking up or offloading passengers in Chicago.
Cathay
Pacific Airways, Thai Airways, Malaysia Airlines, Singapore Airlines and other
airlines in Asia use sixth-freedom rights
extensively to fly passengers between Europe
and Australasia [also known as the Kangaroo Route].
Likewise, American Airlines connects passengers from Europe
and Asia to other countries in the Americas via U.S. ports.
Unlike the Kangaroo Route,
however, these flights are not direct. For argument's sake, AA 168 from London to JFK ends in
JFK. However, AA 290 from JFK to EZE is a different flight number. The point
being, on Kangaroo flights one can catch, say, BA 167 from SYD to BKK to LHR on
the same flight number. British Airways commonly tickets passengers from America to Asia via London.
Iceland
air sells tickets between Europe and North America via Iceland; Finnair sells tickets from
North America to Asia
via Helsinki.
Seventh Freedom
The freedom to base aircraft in a
foreign country for use on international services, establishing a de facto
foreign hub. Covers the right to operate a passenger services between two
countries [A and B] outside the home country.
Figure – 07
To carry freight and passengers
between two countries by an airline of a third country on a route with no
connection with its home country.
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Example:
A European airline that offers flights between Canada and the U.S. without
offering any to Europe.
The seventh freedom is
rare because it is usually not in the commercial interest of airlines, except
in Europe where an EU open sky has seen many
carriers, particularly low cost carriers, operate flights between two points,
with neither of them being in their home country. On 2 October 2007, the United Kingdom
and Singapore
signed an agreement that will allow unlimited seventh freedom rights from 30 March 2008 [along with a
full exchange of other freedoms of the air].
Eighth Freedom or Cabotage
The unofficial eighth freedom is the
right to carry passengers or cargo between two or more points in one foreign
country and is also known as cabotage.
It is extremely rare outside of Europe. The
main real life example of eighth-freedom rights is the European Union, which
has granted such rights between all of its member states. Other examples of an
exchange of this right include the Single Aviation Market [SAM] established
between Australia and New Zealand in 1996 and the 2001 Protocol to the
Multilateral Agreement on the Liberalization of International Air
Transportation [MALIAT] between Brunei, Chile, New Zealand and Singapore.
Otherwise, such rights have usually only been granted in isolated instances
where the domestic air network is very underdeveloped. A notable instance was
Pan Am's authority to fly between Frankfurt
and West Berlin from the 1950s to 1980s. In
2005, the United Kingdom
and New Zealand
concluded an agreement granting unlimited cabotage rights.[16]
Given the distance between the two countries, the agreement can be seen as a
reflecting political principle rather than an expectation that these rights
will be taken up in the near future. New Zealand had previously
exchanged eighth-freedom rights with Ireland in 1999.
Figure – 08
To carry freight and passengers
within a country by an airline of another country on a route with origin /
destination in its home country
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Example:
Cathay Pacific flights from Hong
Kong to Penang via Kuala Lumpur.
Ninth Freedom
The freedom to carry traffic between
two domestic points in a foreign country. Also referred to as "full cabotage" or "open-skies" privileges. It
involves the right of a home country to move passengers within another country [A].
Figure – 09
To carry freight and passengers
within a foreign country with no connection with the home country.
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Example:
All European airlines may use this right within the EU countries.
Aircraft Hijacking
3.1 Meaning & Definition of Hijacking
Aircraft
hijacking [also known
as skyjacking and sky controlling] is the unlawful
seizure of an aircraft either by an individual or by a group. In most cases,
the pilot is forced to fly according to the orders of the hijackers. However,
there have been cases where the hijackers have flown the aircraft themselves. “Aircraft hijacking is a contemporary
addition to the roster of international and national crimes and the necessity
for its control at international and national level is only beginning to be
recounted by states.”[17]
In its wide sense hijacking is an act against the safety of civil aviation and
resembles piracy.[18]
Article 1 of the Hague
Convention of 1970, provide that “Any
person who on board an aircraft in flight[19]:
[a] unlawfully, by force or threat thereof, or by any other from of
intimidation, seizes or exercises control of that aircraft or attempts to
perform any such act, or [b] is an accomplice of a person who performs or
attempts to perform any such act, commits an offence ... ... ...” This
provision also does not define the term ‘hijacking’,
but simply mentions its essential elements which are following:[20]
(i)
Unlawful
use of force or threat thereof or any other from of intimidation;
(ii)
To
do above-mentioned acts with a view to seize that aircraft or to exercise
control over it;
(iii)
The
said acts should have been committed on board an aircraft in flight;
(iv)
Accomplice
of person who performs or attempts to perform the above-mentioned act is also
guilty of the offence of hijacking.
(v)
Accomplice
of person who performs or attempts to perform the above mentioned act is also
guilty of the offence of hijacking.
The wider concept of the offence of
hijacking has been incorporated in the Montreal convention, 1971.[21]
Article 1 of the Montreal Convention, 1971, provides that any person commits an offence if
hr unlawfully and intentionally-
[a] performs an act of violence against a
person on board an aircraft in flight if that act is likely to endanger the
safety of that aircraft;
[b] destroys an aircraft in service or causes
damages to such an aircraft which renders it incapable of flight or it is
likely to endanger its safety in flight;
[c] places or causes to be placed on an
aircraft in service, by any means whatsoever, a device or substance which is
likely to destroy that aircraft, or to cause damage to it which renders it
incapable of flight, or to cause damage to it, which is likely to endanger its
safety in flight;
[d] Destroys or damages air navigation
facilities or interferes with that operation if any such information which he
knows to be false, there by endangering the safety of an aircraft in flight.
Besides this, it is further provided
that any person also commits an offence if he attempts to commit any of the
offence mentioned earlier or if he is an accomplice of a person who commits or
attempts to commit any such offence.
3.2 Reasons behind the
Aircraft Hijacking
Unlike the hijacking of
land vehicles or ships, skyjacking is usually not perpetrated in order to rob
the cargo. Most aircraft hijackings are committed to use the passengers as
hostages. Motives vary from demanding the release of certain inmates [notably
IC-814] to highlighting the grievances of a particular community [notably AF
8969]. Hijacking may also be carried out so as to use the aircraft as a weapon
to target a particular location [notably September 11, 2001 attacks]. Other hijackers
may hold the hostages for ransom.
Most
hijackings for hostages result in a series negotiation between the hijackers
and the authorities, followed by some form of settlement. However, these
settlements do not always meet the hijackers' original demands. If the
hijackers show no sign of surrendering, armed Special Forces may be used by
authorities to rescue the hostages.
The
first recorded aircraft hijack took place on February 21, 1931, in Arequipa, Peru.
Byron Rickards, flying a Ford Tri-Motor, was approached on the ground by armed
revolutionaries. He refused to fly them anywhere and after a ten day stand-off
Rickards was informed that the revolution was successful and he could go in
return for giving one group member a lift to Lima.
3.3 Development of Law relating to hijacking-
The increase in number of incidents
of hijacking and increase in the dangers against the safety of the flights of
aircraft presented grave problems before the international community and
particularly before the International Civil Aviation Organization [I.C.A.O.].
In order to solve this problem and to punish the hijackers a Convention was
adopted in 1963, known as the Tokyo Convention, 1963. Despite the adoption of
the Convention the number of incidents continued to increase and this
Convention failed to solve the problem.[22]
Hague
Convention came
into force on October, 1971. Hague
Convention is a significant milestone for suppressing the crime of
hijacking[23].
As pointed out earlier, the Hague
Convention further developed the concept of hijacking.
Undoubtedly,
Hague Convention is a great milestone
in the field of suppressing the offence of hijacking yet it is subject to some
criticism so far as certain provisions relating to jurisdiction of States and
extradition of offenders or hijackers are concerned. Moreover, it may also be
noted that despite the provisions of Hague
Convention, the incidence to hijacking continued to increase. Consequently,
a Conference was called at Montreal
from 8th to 23rd
September, 1971. As a result of this conference, a Convention
[Known as Montreal Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971] was
adopted. Under Article 1 of the Convention, the concept of the offence of
hijacking was further widened. Under this Convention, the State parties have
undertaken that they will provide deterrent, punishment to the hijackers. Other
provisions are similar to that of the Hague
Convention.
3.4 Shooting down aircrafts
Several states have
stated that they would shoot down hijacked commercial aircraft if it can be
assumed that the hijackers intend to use the aircraft in a 9/11-style attack,
despite killing innocent passengers onboard. According to reports, U.S. fighter
pilots have been trained to shoot down hijacked commercial airliners should it
become necessary. Other countries such as India, Poland, and Russia have
enacted laws or decrees that allow the shooting down of hijacked planes.[24]
Law of Aerial Warfare
State Jurisdiction and General
Responsibilities of the Aircraft and Airport authority: Case Study
According to Article 1 of the Chicago Convention the contracting
states recognized that every state has complete and exclusive sovereignty over
the air space above its territory.
5.1 The
U-2 Case [25]
On May 1960, a U-2, a US high
altitude reconnaissance aircraft was short down at a height of 20000 meters
over Soviet territory. The air plane had taken off from Pakistan and
was schedule to land Finland
after taking aerial photographs while over soviet territory. The USSR protested
at the flight. The US
did not try to justify its action in terms of international law or protest at
the shooting down or of the subsequent trial of the pilot. The lack of protest
by US in this case is consistent with the view that intentional trespass by
military aircraft may be met by the use of force without warning.[26]
5.2 The
Libyan Airlines Tragedy, (1973) [27]
In 1973 a Libyan Airlines aircraft
on a schedule commercial flight to Cairo
was shot down Israeli fighters after accentually entering sensitive airspace
over Israeli occupied Sinai. The aircraft has knowingly ignored instructions to
land. Israel
apologised and paid compensation on ex gratia basis in respect to the
resulting loss of 108 lives.[28]
5.3 The
Korean Airlines Flight 007 Incidents (1983) [29]
A Korean Airlines Boeing 747 on a
scheduled flight from Alaska to South Korea strayed some 500 kilometers off
course over military sensitive USSR territory and was intercepted and than shot
down by Soviet Military aircraft in darkness in the vicinity of Sakalin Island
in USSR airspace north of Japan. Claims for reparation were lodged with USSR by states
in respect of lass of life and damage to property. ICAO fact finding
investigation report concluded with the aircraft’s deviation resulted not from
equipment failure or an intention to trespass but from the negligence of the
crew. Following the report, the ICAO council condemned the USSR “use of
armed force”.[30]
5.4 Harnandez
V. Air France [31]
It is generally accepted that the
Aircraft’s/carriers liability begins when the passenger put himself in the
hands of the employee of the carrier and ends when the passenger enter into the
arrival hall at the point of destination. The following case may serve as an
example.
Mr. Harnandez was going
through the passport control and the baggage area, was not with in the course
of any operation of embarking and disembarking in terms of the Warsaw
convention when terrorist attacked the baggage area. At the time of the attack,
plaintiffs Harnandez had already completed all the steps necessary to boarding
the aircraft except (1) undergoing physical and handbag searches, and (2)
physically proceeding from the search area to the aircraft some 250 meters
away. Immediately after Flight 881 was announced over the Transit Lounge
loudspeaker, the passengers were instructed to form two lines in front of
Departure Gate 4. And, while all but a handful of passengers were standing in
those lines awaiting the search procedure, two terrorists fired bursts of
automatic weapons fire in the general direction of the TWA queues and hurled
hand grenades, which exploded in the vicinity of the passengers. Accordingly
the convention did not apply to the claims for compensation resulting from the
attack and the liability of TWA (Trans World Airlines) was exempted. Under the
terms of the Warsaw Convention, as modified, TWA is absolutely liable up to a
limit of $75,000. Per passenger if an incident which causes passenger injury or
death falls within the ambit of Article 17 of the Convention. Article 17
provides:
"The carrier shall
be liable for damage sustained in the event of the death or wounding of a
passenger or any other bodily injury suffered by a passenger if the accident
which caused the damage so sustained took place on board the aircraft or in the
course of any of the operations of embarking or disembarking."
Conclusion
From the above discussion it has
been clear that the Aviation law or the Air law has two kinds of significance
1.
National
and
2.
International.
The law shows its
national significance when it deals with the state territory [aerial] state
sovereignty and control over the air space of the country. The law show its
international significance when it deals with the aerial navigation from one
country to another country. From the previous discussion it has become clear as
to the importance of the aviation law. However it is to be mentioned that, more
emphasis to be given of on the proper functioning of the aviation law in the
international field, as we have already seen that most often aviation law is
being violated in the international level. Especially at the time of war the
law is violated most frequently. Neither of the belligerent partier shows
minimum respect to the law of aerial welfare. Bombing over the civilian people
is the most common incident.
Therefore proper steps
to be taken as soon as possible to stop such kind of brutal activities. Every
country every continent, every concerned international organization, including
United Nations have to come forward to make a unanimous decision against the
violation of aviation law. Every small country or every less powerful country has
to work together. So that they can compel the powerful country to be respectful
towards the aviation law.
References
Books
- S. K. Kapoor, International Law & Human Rights [Nutshell], 12 ed. [Allahbad: Central Law Agency, 1998].
- Bijan Vasigh, Tom Tacker, Ken Fleming. Introduction to Air Transport Economics: From Theory to Applications. (UK: Ashgate Publishing Ltd., 2008).
- D. J. Harris, Cases and Materials on International Law, 4th ed. [London: Sweet & Maxwell, 1998].
- Malcolm N. Shaw, International Law, Fifth Edition, [Cambridge, Cambridge University Press, 2008].
Statutes
1. The
Chicago
Convention on International Civil Aviation, 1944.
- The Geneva Conventions of 1949.
- The Hague Protocol [1965].
- The Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971.
- The Paris Convention of Aerial navigation 1919.
- The Resulting Chicago Convention of 1944.
- The Tokyo Convention, 1963.
- The Warsaw Convention of 1929.
- The Warsaw Convention, 1923.
- The Montreal Convention, 1971.
Journals
- Alone E. Evans, “Aircraft Hijacking: Its Causes and Cure”, American Journal of International Law, Vol.63 [1969].
- Sami Shubber, “Is Hijacking of Aircraft Piracy in International Law,”? British Year Book of International Law, Vol. 62( 1968-69].
- S.C. Chaturvedi, “Hijacking and the Law”, International Journal of Innovation and Learning, Vol.11 [1971].
- Sushma Malik, “Legal Aspects of the Problems of Unlawful Salzure of Aircraft”, International Journal of Innovation and Learning, [1969].
- Sami Shubber, “Aircraft Hijacking under the Hague Convention, 1970 – A New Regime”. I.C.L. Q., Vol.22, Part 4, [1973].
- P.P.C. Haanappel, "The Transformation of Sovereignty in the Air". In: The Use of Air and Outer Space Cooperation and Competition: Proceedings of the International Conference on Air and Outer Space at the Service of World Peace and Prosperity, Chia-Jui Cheng ed. ( Beijing: Martinus Nijhoff Publishers, 1998).
- Josef L. Kunz, “The Chaotic Status of the Laws of War and the Urgent Need for Their Revision,” 45 American Journal of International Law [1951].
Web pages
1. [http://www.resource4aviationlaw.com/topics/historyofaviation.pdf,
accessed on at 1st
January 2010].
2. [http://news.bbc.co.uk/2/hi/europe/4172487.stm,
accessed on 10 January 2010].
3. [http://www.airpower.maxwell.af.mil/airchronicles/aureview/1975/nov-dec,
accessed on 21 November 2010].
Cases
1.
The U-2 Case, 56
(1960) , A. J. I. L. 135.
2.
The Libyan Airlines Tragedy,
(1973).
3.
The Korean Airlines Flight 007
Incident, 33(1984) I.C.L.Q, 712.
4.
Harnandez v. Air France, 1976,
14 Avi, 421.
INDEX
A
Anchorage
Angel Flight
B
Bermuda
Bilateral
negotiations
Brisbane
C
Cabotage
Cargo
Caribbean
Chicago Convention
Cold
War
Cornucopia
D
E
F
Frankfurt
G
Global
Positioning Satellite
H
Hostages
Humanitarian
purposes
I
J
Jurists
Jus ad bellum
K
Kangaroo
Route
L
Leonardo da
Vinci
M
Mexico City
N
Navy
Neutralized
zones
Nuclear
O
Open-skies
Ordinarily
civilian
Orrville
Wright
P
Passenger
services
Peace Pact
Protocols
R
Red Cross
Rotor-blade
S
Safety
zones
Senate
Skyjacking
Solo
flying
T
Takeoff
U
V
W
Wilbur
Insufficiency
of this Assignment:
Some
points are missing, e.g.
- Liability of Compensation
[1]
[http://www.resource4aviationlaw.com/topics/historyofaviation.pdf, Last visited
at 1st January
2010].
[2] Ibid.
[3] Ibid.
[4] I.A.S. [1957], Q.7.
[5] S. K. Kapoor, International Law & Human Rights [Nutshell], 12 ed. [Allahbad: Central Law Agency, 1998], p.121.
[6] Malcolm N. Shaw, International Law, Fifth Edition, [Cambridge, Cambridge University Press, 2008], p. 354.
[7] Article 1,2,3,5,6,17,18 of The Chicago
Convention on International Civil Aviation, 1944.
[8] P.C.S. [1984] O. 6.
[9] Malcolm N. Shaw, ibid, p.
356.
[10] International Air Services Transit
Agreement [IASTA], Article 1, Section 1.
[11] International Air Services Transit
Agreement - list of signatory states. The document is not dated, but includes Kazakhstan,
which notified the U.S. Secretary of States of its acceptance of the treaty in
July 2007.
[12] P.P.C. Haanappel, "The
transformation of sovereignty in the air". In: The Use of Air and Outer
Space Cooperation and Competition: Proceedings of the International Conference
on Air and Outer Space at the Service of World Peace and Prosperity,
Chia-Jui Cheng ed. ( Beijing: Martinus Nijhoff Publishers, 1998), p.23.
[13] IASTA, Article I, Section 4.
[14] Bijan Vasigh, Tom Tacker, Ken
Fleming. Introduction to Air Transport Economics: From Theory to
Applications. (Ashgate Publishing Ltd., 2008), p.156.
[15] Overflight Fees [FAA].
[16] New Zealand Government:
"Agreement allows unlimited UK flights".
[17] Alone E.Evans, “Aircraft Hijacking:
Its Causes and Cure”, American Journal of International Law, Vol.63
[1969], p.695.
[18] Sami Shubber, “Is Hijacking of
Aircraft Piracy in International Law,”? British Year Book of International
Law, Vol. XLii [1968-69], p.193.
[19] S.C. Chaturvedi, “Hijacking and the
Law”, International Journal of Innovation and Learning. Vol.11 [1971], p.89.
[20] S. K. Kapoor, ibid, p.309.
[21] The Text of The Montreal Convention: American Journal of
International Law, [1971], pp. 742-48.
[22] Sushma Malik, “Legal Aspects of the
Problems of Unlawful Salzure of Aircraft”, International Journal of
Innovation and Learning. [1969], p. 61 at pp. 65-71; also A. Samuel,
“Crimes Committed on Board”.
[23] Sami Shubber, “Aircraft Hijacking
under the Hague Convention, 1970 – A New Regime”. I.C.L. Q., Vol.22 Part 4,
[1973] p. 687 at p.725.
[24] [http://news.bbc.co.uk/2/hi/europe/4172487.stm,
accessed on 10 January 2010].
[25]
56 (1960) , A.J.I.L. 135.
[26]
D. J. Harris, Cases and Materials on International Law, 4th
ed. (London: Sweet & Maxwell, 1998), p. 241.
[27] Israel was
condemned by ICAO Council Resolution of June 4, 1973.
[28]
D. J. Harris, ibid, p.241.
[29]
33(1984) I.C.L.Q, 712.
[30]
D. J. Harris, ibid, p.242.
[31]
1976, 14 Avi, 421.
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