International Aviation Law for Aerodrome Planning [1st ed.] 9783030568412, 9783030568429

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Chehab Salih

International Aviation Law for Aerodrome Planning

International Aviation Law for Aerodrome Planning

Chehab Salih

International Aviation Law for Aerodrome Planning

Chehab Salih Berlin, Germany

ISBN 978-3-030-56841-2 ISBN 978-3-030-56842-9 https://doi.org/10.1007/978-3-030-56842-9

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

Ich erinnere mich noch sehr gut an diese Zeit. Es waren heiße und sonnige Sommertage Mitte der 1990er. Meine kleinen Geschwister Hadi und Halah und ich konnten es kaum erwarten, aus der Schule nach Hause zu rennen. Denn es war der letzte Schultag im Jahr und somit stand die jährliche Reise von Berlin nach Kairo an. Ich fühle sogar noch die Spannung, die in mir aufstieg, sobald wir auf den Parkplatz des Flughafens fuhren. Der Flughafen war so faszinierend. So viele Menschen, so viel Technik, so viel Aufregung. Das Bemerkenswerte an dieser Erfahrung war, dass vier Stunden und 3000 km weiter die gleiche Lebhaftigkeit am Flughafen Kairo auf uns wartete. Und das, obwohl wir in einem anderen Land, auf einem anderen Kontinent, in einer anderen Kultur ankamen. Für mich wurde jedes Jahr insbesondere an diesem Tag bestätigt: Eines Tages will ich an diesem Ort arbeiten und mich mit ihm beschäftigen. Ich möchte mich herzlichst bei meiner Mutter Sayeda Gebril und meinem Vater Mohamed Salih bedanken. Sie haben für eine hervorragende Kindheit. Insbesondere möchte ich ihnen dafür danken, dass sie mir die Möglichkeit gegeben haben, zu träumen. Ein Gut, welches in der heutigen Welt für Kinder nicht selbstverständlich ist. Nachdem der liebe Gott meinen Kindheitstraum erfüllt hat und ich mich sowohl im Studium als auch im Beruf mit den technischen und wirtschaftlichen Belangen der Flughafenplanung auseinandersetzen durfte, wuchs in mir auch das Interesse, die rechtlichen Rahmenbedingungen der Flughafenplanung kennenzulernen. Dieses Interesse mündete letztendlich im November 2019 in die Einreichung meiner Dissertation an der Juristischen Fakultät der Universität Potsdam. Die Dissertation wurde im folgenden halben Jahr weiterentwickelt, ihre Ergebnisse innerhalb dieses Buches festgehalten und veröffentlicht. Ich möchte mich an dieser Stelle als erstes bei Herrn Prof. Dr. Marcus Schladebach bedanken. Ohne seine tatkräftige Unterstützung wäre dieses Werk niemals möglich gewesen. Er ist die Definition eines ausgezeichneten Doktorvaters, der sich nicht nur inhaltlich, sondern auch auf menschlicher Ebene um seine Studenten kümmert. Als nächstes möchte ich mich bei meiner Schwester Halah Salih bedanken, die es stets schaffte, mir komplexe rechtliche Sachverhalte einfach zu erklären. Weiterhin bedanke ich mich bei Herrn Prof. Dr. Norman Weiß v

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und Herrn PD Dr. Lutz Lammers für das Zweitgutachten und die Prüfung im Rahmen der Disputation. Ein großer Dank gilt ebenfalls meinem Freund Dieter Petzsch, der sich die Zeit nahm, meine Arbeit Korrektur zu lesen. Zu guter Letzt bedanke ich mich bei dem Rest meiner Familie und Freunden für ihre Unterstützung auf meinem Weg zum Ziel. I remember those days very well—hot and sunny summer days in the mid-1990s. My little siblings Hadi and Halah and I could hardly wait to run home from school because it was the last school day of the year and thus the annual trip from Berlin to Cairo was coming up. I can still feel the tension that was rising in me as soon as we entered the airport parking lot. The airport was so fascinating. So many people, so much technology, so much excitement. The remarkable thing about this experience was that four hours later and 3000 km further on at Cairo International Airport, exactly the same attributes were present. Even though we arrived in another country, on another continent, in another culture. For me, in particular this event confirmed that one day I want to work at this place and deal with it. From the bottom of my heart, I would like to thank my mother Sayeda Gebril and my father Mohamed Salih. They have ensured and provided an excellent childhood and education. Especially, I want to thank them for giving me the opportunity to dream. A commodity that is not self-evident for children in today’s world. After God made my childhood dream come true and I was privileged to explore the technical and economic facets of airport planning, both in my academic and professional life, I also became interested in understanding the legal framework of airport planning. This interest resulted in the submission of my dissertation to the Faculty of Law at the University of Potsdam in November 2019. The doctoral thesis was developed in the next 6 months and its conclusions are published in this book. At this point, I would like to thank Prof. Dr. Marcus Schladebach at first. Without his active support, this work would have never been possible. In the truest sense of the word, he represents the definition of an excellent doctoral supervisor who cares for his students not only on an academic but also on a personal basis. Next, I would like to thank my sister Halah Salih who always managed to explain complex legal issues to me in a simple way. Furthermore, I would like to thank Prof. Dr. Norman Weiß and PD Dr. Lutz Lammers for the second advisory opinion and the examination in the context of the disputation. Many thanks also to my friend Dieter Petzsch who took the time to proofread my work. Last but not least, I would like to thank the rest of my family and friends for their support on the way to my goals. Berlin, Germany

Chehab Salih

Contents

1

Relevance of Aerodrome Planning . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Importance of Aviation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Airport Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Airport Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 International Aviation Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Definition of the Terms “Airport” and “Aerodrome” . . . . . . . . . . 1.6 Objective and Motivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7 Book Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . .

1 1 1 5 5 7 8 10 13

2

History of Aerodrome Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 The Term “Aviation Law” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Beginning of International Aviation Law . . . . . . . . . . . . . . . . . . . 2.3 Aerodrome Planning Within International Regulation . . . . . . . . . . 2.3.1 The Air Navigation Conference (Paris 1910) . . . . . . . . . . . 2.3.2 The Paris Convention 1919 . . . . . . . . . . . . . . . . . . . . . . . 2.3.3 The Ibero-American Convention 1926 . . . . . . . . . . . . . . . . 2.3.4 The Pan-American Convention 1928 . . . . . . . . . . . . . . . . . 2.3.5 Short Summary of Aerodrome Requirements in International Regulation Before the Chicago Convention . . . 2.4 Aerodrome Planning Within National Regulation . . . . . . . . . . . . . 2.4.1 National Legislation Dealing with Air Navigation . . . . . . . 2.4.2 Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.3 France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.4 Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.5 Other European States . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.6 United States of America . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.7 The Target of Establishing International Aerodrome Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15 15 16 17 17 22 28 30 32 33 33 33 40 45 46 46 53 54 vii

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Chicago Convention and Aerodrome Planning . . . . . . . . . . . . . . . . . 3.1 The End of World War II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The International Civil Aviation Organization . . . . . . . . . . . . . . . . 3.2.1 The Organisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 The Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 The Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 The Air Navigation Commission . . . . . . . . . . . . . . . . . . . . 3.3 Binding Effect of ICAO Regulations for States and Aerodromes . . . 3.3.1 Adoption of International Standards and Procedures (Article 37) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 Definition of SARPs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 Deviation from Regulation (Article 38) . . . . . . . . . . . . . . . 3.3.4 Legal Effect of SARPs . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Aerodrome Planning in the Articles of the Chicago Convention . . . 3.4.1 Prohibited Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 Military Aerodromes Serving International Air Service . . . . 3.4.3 Landing at Customs Airport . . . . . . . . . . . . . . . . . . . . . . . 3.4.4 Airport and Similar Charges . . . . . . . . . . . . . . . . . . . . . . . 3.4.5 The Chicago Convention Allowing Operation of an Unsafe Aerodrome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.6 The Chicago Convention Allowing Construction of an Unsafe Aerodrome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Aerodrome Planning in the Technical Drafts of the Annexes . . . . . 3.5.1 Establishment of Provisions for Aerodromes . . . . . . . . . . . 3.5.2 Development of the Technical Draft Annexes . . . . . . . . . . 3.5.3 Annex A: Airways Systems . . . . . . . . . . . . . . . . . . . . . . . 3.5.4 Annex B: Communication Procedures and Systems . . . . . . 3.5.5 Annex C: Rules of the Air . . . . . . . . . . . . . . . . . . . . . . . . 3.5.6 Annex D: Air Traffic Control Practices . . . . . . . . . . . . . . . 3.5.7 Aerodrome Regulation Between 1944 and 1951 . . . . . . . . . 3.5.8 The Paris Convention: A Better Role Model for Aerodrome Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.9 Practical Example of a Perfect Legal Aerodrome System . . 3.6 Amendment to the Chicago Convention in the Twenty-First Century . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.1 The Chicago Aerodrome System . . . . . . . . . . . . . . . . . . . . 3.6.2 Necessity of Amending the Chicago Convention . . . . . . . . 3.6.3 Draft for Amendments to Articles 37, 38, 69 and 70 of the CC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Development of International Aerodrome Regulation . . . . . . . . . . . 4.1 ICAO Regulatory Framework . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 Annexes to the Chicago Convention . . . . . . . . . . . . . . . . 4.1.2 Procedure for Air Navigation Services (PANS) . . . . . . . .

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57 57 59 59 60 61 61 62 62 63 64 66 82 82 83 83 84 86 90 93 93 94 95 98 99 100 100 103 105 106 106 107 109 112 115 115 115 121

Contents

4.1.3 Regional Supplementary Procedures (SUPPS) . . . . . . . . . 4.1.4 ICAO Manuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 ICAO Legal Aerodrome System . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 Essential Aerodrome Planning Requirements . . . . . . . . . . 4.2.2 Additional Aerodrome Planning Requirements and Legal Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 ICAO Rulemaking Process: Analysis and Recommendations . . . . 4.3.1 Rulemaking Phases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Analysis of Parties Involved in the Rulemaking Process . . 4.3.3 Strengthen States’ Role in the ICAO Rulemaking Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Integration of International Law into National Legislation . . . . . . 4.4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 Relation Between International and National Law . . . . . . 4.4.3 Interaction Between International and National Law . . . . . 4.4.4 Integration of the Paris- and the Chicago Convention into National Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.5 Applicability of International Law and the Chicago Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.6 Adoption of ICAO Annex 14 into National Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.7 The Ideal Method to Integrate ICAO’s Annex 14 into National Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.8 Dealing with Standards and Recommended Practices on National Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Law Enforcement of Aerodrome Regulation . . . . . . . . . . . . . . . . 4.5.1 International Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.2 National Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Aerodrome Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6.1 Purpose of Aerodrome Certification . . . . . . . . . . . . . . . . 4.6.2 Legal Questions Associated with Aerodrome Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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124 125 127 127

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137 139 139 143

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152 164 164 165 166

. 169 . 170 . 175 . 182 . . . . . .

185 186 186 195 196 196

. 198 . 206

Establishment of a Legal Framework Through Performance-Based Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Maintaining and Demonstrating Compliance . . . . . . . . . . . . . . . . 5.1.1 Development of the Universal Safety Oversight Audit Programme (USOAP) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.2 The First and Second USOAP Cycle . . . . . . . . . . . . . . . . . 5.1.3 Continuous Monitoring Approach (CMA) . . . . . . . . . . . . . 5.1.4 Legal Questions Associated with USOAP . . . . . . . . . . . . . 5.2 Performance-Based Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 ICAO’s Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 ACI’s Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

211 211 211 213 215 219 227 227 230

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5.2.3 EASA’s Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4 Challenge with Regard to Performance-Based Regulation . . . 5.3 Proposals for the Implementation of Performance-Based Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 Runway End Safety Area (RESA) . . . . . . . . . . . . . . . . . . . 5.3.2 Jetblast . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3 Further Application Areas for Performance-Based Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

238 238 243

Final Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Recommended Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 List of Hypotheses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

251 251 257 259

. . . .

. . . .

231 233

248 249

List of Abbreviations

AASL ABAJ ACAP ACAS AMC ACI ADM ADOP ADREP ADRM AFIS AGA AIP AJIL ALARP AMS AMSH ANC ANP APEX APM ARIWS ASAL ASM ATC ATM BAF BFU BGBl. BVerfGE

Annals of Air and Space Law American Bar Association Journal Airplane Characteristics For Airport Planning Airborne Collision Avoidance System Acceptable Means of Compliance Airports Council International Aerodrome Design Manual Aerodrome Design & Operations Panel ICAO Aircraft Accident/Incident Data Reports Airport Development Reference Manual Aerodrome Flight Information Services Air Routes and Ground Aids Aeronautical Information Publication The American Journal of International Law As Low As Reasonably Practicable Apron Management System Apron Markings & Signs Handbook Air Navigation Commission Air Navigation Plan Airport Excellence (Programme) Airport Planning Manual Autonomous Runway Incursion Warning System Annual Survey of American Law Airport Services Manual Air Traffic Control Air Traffic Management Bundesaufsichtsamt für Flugsicherung Bundesamt für Flugunfalluntersuchung Bundesgesetzblatt Entscheidung des Bundesverfassungsgericht xi

xii

BYBIL BYULR CAA CAP CASA CC CCLR CE CETS CFD CIANA CINA CIR CJEU CJIL CMA CSA CTS DELAG DH DJILP Doc DVBl DSU EASA EC ECHR EFOD EJICLS ELOS EMAS ERJ EU EU-OPS EuR FAA ft FOD GASP GDP GM GoJIL HILJ

List of Abbreviations

British Yearbook of International Law Brigham Young University Law Review Civil Aviation Authority Civil Aviation Publication Civil Aviation Safety Authority Chicago Convention Carbon and Climate Law Review Critical Elements Central European Touristic Solutions Computational Fluid Dynamics Convenio Ibero-Americano de Navegación Aérea Commission Internationale de Navigation Aérienne Circular Court of Justice of the European Union Chinese Journal of International Law Continuous Monitoring Approach Comprehensive Systems Approach Consolidated Treaty Series Deutsche Luftschifffahrtsaktiengesellschaft Decision Height Denver Journal of International Law and Policy Document Deutsches Verwaltungsblatt Dispute Settlement Understanding European Aviation Safety Agency European Commission European Convention on Human Rights Electronic Filing of Differences System E-Journal of International and Comparative Labour Studies Equivalent Level of Safety Engineered Materials Arresting System Embraer Regional Jet European Union European Union Requirement—Operations Zeitschrift Europarecht Federal Aviation Administration Feet Foreign Object Debris Global Aviation Safety Plan Gross Domestic Product Guidance Material Goettingen Journal of International Law Harvard International Law Journal

List of Abbreviations

IALP IAOPA IATA ICAN ICAO ICLQ ICVM IFR IJPL ILC ILS JAL JALC JAM JLA JPSIR JURA JuS lbs LGBl. LCC LNTS LuftVG LVP m MAD MGLJ MOCA MoT MoU mppa MTOM NAIA NCILJ NCLB NGO NLA NTIR NZCAA NZV OMGWS p.a. PANS

xiii

Issues in Aviation Law and Policy International Council of Aircraft Owner and Pilot Associations International Air Transport Association International Commission for Air Navigation International Civil Aviation Organization International and Comparative Law Quarterly ICAO Coordinated Validation Mission Instrument Flight Rules Italian Journal of Public Law International Law Commission Instrument Landing System The Journal of Air Law Journal of Air Law and Commerce Journal of Airport Management Journal of Legal Analysis Journal of Political Science and International Relations Juristische Ausbildung Juristische Schulung Pound (mass) Landesgesetzblatt Low-Cost Carrier League of Nations Treaty Series Luftverkehrsgesetz Low Visibility Procedures Metres Magazine of Aviation Development McGill Law Journal Manual on Certification of Aerodromes Ministry of Transport Memorandum of Understanding Million passengers per annum Maximum Take-off Mass Nigeria Nnamdi Azikiwe International Airport North Carolina Journal of International Law and Commercial Regulation No Country Left Behind Non-Governmental Organisation New Larger Aeroplane Nederlands Tijdschrift voor Internationaal Recht New Zealand Civil Aviation Authority Neue Zeitschrift für Verkehrsrecht Outer main gear wheel span Per annum Procedures for Air Navigation Services

xiv

PASG PASO PELJ PICAO PICASST RAN RESA RGBl. RGDIP RSOO SARPs SMGCS SMM SMS SRIEL SSRN SUPPS TCAS TFEU TLD TLJ TLS UKTS UMLR UNFCC UNTS USAP USOAP VCLT WTO YLJ ZLW ZöR

List of Abbreviations

PANS Aerodromes Study Group Pacific Aviation Safety Office Potchefstroom Electronic Law Journal Provisional International Civil Aviation Organization Pacific Islands Civil Aviation Safety and Security Treaty Regional Air Navigation Runway End Safety Area Reichsgesetzblatt Revue générale de Droit internationale publique Regional Safety Oversight Organisation Standards and Recommended Practices Surface Movement Guidance Control System Safety Management Manual Safety Management System Swiss Review of International & European Law Social Science Research Network Supplementary Procedures Traffic Alert and Collision Avoidance System Treaty on the Functioning of the European Union Transport, Law and Development Transportation Law Journal Target Level of Safety United Kingdom Treaty Series University of Miami Law Review United Nations Framework Convention on Climate Change United Nations Treaty Series Universal Security Audit Programme Universal Safety Oversight Audit Programme Vienna Convention on the Law of Treaties World Trade Organization The Yale Law Journal Zeitschrift für Luft- und Weltraumrecht Zeitschrift für öffentliches Recht

Chapter 1

Relevance of Aerodrome Planning

1.1

Importance of Aviation

It is a fact that aviation plays a huge role in today’s world. Continents, states and even small villages are networked to each other, allowing people all over the world to travel for different purposes. In this regard, states are connected by 3250 airports.1 Hence, different cultures come together, thus flattening the path for a more liberal atmosphere, that will contribute to the improvement of global peace. Not only sociological advantages derive from aviation, but also global economic benefits. Business travellers can travel from any point in the world to another in less than 24 h. As a consequence, economic processes are accelerating, leading to a positive impact on market growth. The aviation industry profits from a rise in jobs in the air transport sector and its supply chain.2 Currently, 65 million jobs and $2.7 trillion in global GDP are supported through aviation.3

1.2

Airport Development

Market forecasts prove that air traffic will double within the upcoming 15 years.4 Due to the catastrophe of 9/11, global passenger traffic declined by 2.7% compared to the year 2000.5 Since then, air transport has doubled until 2017 with a 60% growth

1

Airbus S.A.S, Global Market Forecast, Global Networks, Global Horizons 2018–2037, 2018, p. 3. IATA, Annual Review, 2017, p. 12. 3 IATA, Annual Review, 2019, p. 6. 4 Airbus S.A.S, Global Market Forecast, Global Networks, Global Horizons 2018–2037, 2018, p. 8f. 5 IATA, The Impact of September 11 2001 on Aviation, 2012, p. 4. 2

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2021 C. Salih, International Aviation Law for Aerodrome Planning, https://doi.org/10.1007/978-3-030-56842-9_1

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1 Relevance of Aerodrome Planning

just over the last 10 years.6 Notably, the Asian, Middle Eastern, Latin American and African markets will experience an increase in the future.7 Aircraft demand, for instance, in the Asia-Pacific region will thereby represent 42% of the shares of new deliveries.8 Europe and the United States will together account for a relatively low 35%. Nevertheless, air traffic has also risen in Europe, in particular between the Western States by a market growth of 23% in 2016 compared with 2015.9 Inter alia, this increase was due to the air traffic operation of Low-Cost Carriers (LCC) and the market entry of new airlines. Airports represent an integral part of the air transport system.10 These facilities provide the required infrastructure to accommodate the transfer of passengers and freight and allow landing and departing of aircraft. The risen demand in air traffic influences the finances of airports. In 2017, airports manifested an increase in revenue of 6.2% compared to 2016.11 Airport revenues are mainly generated through aeronautical methods (e.g. landing charges, passenger charges) and non-aeronautical concessions (e.g. rents for real estate on landside).12 The revenues from aeronautical streams are usually higher than those from non-aeronautical streams.13 This tendency evinces that the more capacity airports can offer the better their profitability will become. Mott MacDonald has published market forecasts proving that airports’ operating costs grew more slowly than revenues in an examined period.14 If this trend continues, airport authorities will hold financial means to invest in airport infrastructure related projects like maintenance and expansion. That having been said, expansion projects can have a significant role in the development of the aviation industry.15 Strong evidence of several market forecasts conducted by the main aviation players depict that airports are currently facing significant challenges in providing

6

Airbus S.A.S, Global Market Forecast, Growing Horizons 2017/2036, 2017, p. 7. Based on a study that was carried out for the Directorate General for Mobility and Transport in the European Commission. See Mott MacDonald, Annual Analyses of the EU Air Transport Market 2016, 2017, p. 7. 8 In the following Airbus S.A.S, Global Market Forecast, Global Networks, Global Horizons 2018–2037, 2018, p. 10. 9 Airbus S.A.S, Global Market Forecast, Growing Horizons 2017/2036, 2017, p. 53. 10 In the following Graham (2008), p. 2. 11 ACI, 11th Annual Airport Economics and Finance Conference Report, 2019, p. 9. 12 Mott MacDonald, Annual Analyses of the EU Air Transport Market 2016, 2017, p. 13. 13 Ibid., p. 99; ACI, Annual Report, 2018, p. 19; ACI, 11th Annual Airport Economics and Finance Conference Report, 2019, p. 13. 14 Mott MacDonald, Annual Analyses of the EU Air Transport Market 2016, 2017, p. 13. 15 Metcalfe (2008), p. 316. 7

1.2 Airport Development

3

the required infrastructure and sufficient capacity to meet the stated market growth.16 In this context, the Commercial Market Outlook of Boeing notes in 2019:17 After nine straight years of above-trend passenger growth, many airports are experiencing pressure on operational capacity. This is particularly acute in high-growth regions such as Southeast Asia, China, and India and in Western airports where airport expansion is artificially restricted, such as in many parts of Europe.

Notably, the Asia-Pacific region incurs operational constraints. It is clear that the provision of sufficient capacity, operability, and affordability will benefit local communities and national economies.18 In high populous states like Thailand, Indonesia, Philippines and of course India and China, the middle class has gained financial power due to higher incomes.19 In result, the propensity of travelling due to sociological and in particular economic purposes is predicted. In the meantime, many local airports do not have the adequate capacity to satisfy the existing and prospected demand. The capital airport of Indonesia, Jakarta Soekarno-Hatta International Airport, has a calculated capacity of 38 million passengers per year (mppa).20 Nevertheless, the airport handled around 54 million passengers in 2015. A similar tendency applies to Bangkok Suvarnabhumi Airport in Thailand, where the airport served about 52 million passengers despite a designated capacity of 45 mppa. These examples are not the only ones demonstrating the operational constraints airports are facing nowadays. In reaction, many states initiate airport development projects to support air traffic growth in the upcoming 20 years.21 Around $13 billion will be invested to develop Beijing’s New International Airport.22 The airport will serve 130 mppa23 while currently serving around 89 mppa (2015).24 Another airport development project will be executed in New Delhi, India. According to a market analysis conducted for the European Commission, Delhi International Airport was the third fastest-growing airport between 2006 and 2015 with 10.1% p.a. (No. 1: Dubai International Airport—United Arab Emirates: 11.7% p.a., No. 2: Istanbul-Atatürk Airport—Turkey: 11.5% p.a.) handling approximately 48 million passengers in 2015.25 In order to

16

Mott MacDonald, Annual Analyses of the EU Air Transport Market 2016, 2017, p. 102; Airbus S. A.S, Global Market Forecast, Global Networks, Global Horizons 2018–2037, 2018, p. 142; Airbus S.A.S, Global Market Forecast, Growing Horizons 2017/2036, 2017, p. 35; IATA, Annual Review, 2017, p. 33; IATA, Annual Review, 2018, p. 33; Boeing, Current Market Outlook, 2017, p. 42. 17 Boeing, Commercial Market Outlook, 2019, p. 7. 18 IATA, Annual Review, 2017, p. 36. 19 In the following Mott MacDonald, Annual Analyses of the EU Air Transport Market 2016, 2017, p. 102. 20 Ibid. 21 IATA, Annual Review, 2017, p. 38; Boeing, Current Market Outlook, 2017, p. 9. 22 IATA, Annual Review, 2017, p. 39. 23 Chern (2015), p. 101. 24 Mott MacDonald, Annual Analyses of the EU Air Transport Market 2016, 2017, p. 32f. 25 Ibid., p. 32.

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1 Relevance of Aerodrome Planning

increase capacity in India’s capital, a new airport, namely Noida International Airport, will be built to serve additional 50 mppa. Thereby, the investment costs amount to $3.1 billion.26 But not only new airport developments will be initiated. Construction of additional terminals for existing airports are expected as well. The Chhatrapati Shivaji International Airport in Mumbai, India is an example of such projects. The Indian authorities will invest $1.5 billion to complete a new terminal (Terminal 2).27 As a result, so-called “super hubs” will arise in Asia, notably in Dubai and China in order to connect with the Western States.28 In this context, over 40 airport development projects valued at $100 billion will be accomplished in the Middle East Region.29 The projects comprise terminal expansion and runway upgrades in Abu Dhabi, terminal enlargement and a possible new airport in Bahrain, as well as upgrades to the terminal and runway rehabilitation in Dubai. Further capital projects are foreseen in Jeddah, Riyadh, Muscat and Tehran because a capacity of 100 mppa is planned at these locations. These developments are crucial for aviation, as the key factors that drive aircraft demand, for instance, are market liberalisation, environmental regulations and notably the development of airport infrastructure.30 According to market forecasts initiated by Boeing, around $1 trillion will be invested to improve existing airport facilities or spending on new airports all over the world until 2021, taking into account that expansion projects are prevalent in mature aviation markets. Also, Boeing estimates, that at least $2 trillion will be spent on airport infrastructure until 2030.31 Airports have strategic importance for a state.32 They are part of the overall transport system and are linked “to high-speed rail and key road networks.” Moreover, as Graham mentions, airports bring wealth and thorough employment opportunities and support economic development.

26

https://www.reuters.com/article/us-india-airport/india-clears-plan-for-3-10-billion-second-air port-for-delhi-idUSKBN19F0FM, assessed on 16.08.2019. 27 Mott MacDonald, Annual Analyses of the EU Air Transport Market 2016, 2017, p. 103. 28 Airbus S.A.S, Global Market Forecast, Growing Horizons 2017/2036, 2017, p. 46. 29 In the following Airbus S.A.S, Global Market Forecast, Global Networks, Global Horizons 2018–2037, 2018, p. 90. 30 Boeing, Current Market Outlook, 2017, p. 8. 31 Ibid., p. 9. 32 Graham (2008), p. 2.

1.4 International Aviation Law

1.3

5

Airport Planning

Ultimately, states will have to invest in either airport expansion, new airport development or extensive maintenance projects to react to the capacity constraints.33 Hence, a profound analysis of airport planning requirements is vital to achieving the goals set successfully. Airport planning or aerodrome planning is treated through different perspectives. First, it can be examined from a purely technical point of view. This discipline encompasses aspects concerning design and infrastructure. Thereby, specifications thematise, for instance, width of runways, slopes on taxiway strips and markings on aprons.34 Second, there is an economic perspective. As far as this discipline is concerned, likewise airport internal administration and finance, funding, marketing, public relations or airport charges, and fees are subject to discussion.35 However, these and other disciplines must adhere to a regulatory framework, that targets safe and efficient airport operation. For instance, airports—being essential infrastructural elements of a state—have to meet high safety standards.36 As a consequence, aerodrome planning depends on legal requirements which are subject to this work. German law associates aerodrome planning directly with planning approval procedures of airports37 according to § 8 of the German Air Traffic Act (LuftVG38).39 Jurisprudence has shown that an approval according to § 8 is required either when a new aerodrome is constructed or in case of infrastructural and operational changes that have an impact on publicity or environment.40 However, this book will not interfere directly with German planning approval procedure but will take a more international and holistic approach.

1.4

International Aviation Law

This leads directly to the term aviation law in which legal requirements are manifested. Aviation law is dealt with on three different levels: national aviation law, supranational aviation law as regards European law and international aviation

33

See also Zielke (1998), p. 20. See for further details ICAO, Annex 14—Aerodromes, Vol. I—Aerodrome Design and Operation, 8th edition, 2018. 35 More information is contained in ICAO, Doc 9184—Airport Planning Manual, Part 1—Master Planning, 2nd edition, 1987. 36 ICAO, Doc 9137—Airport Service Manual, Part 9—Airport Maintenance Practices, 1st edition, 1984, para. 1.4.2. 37 In German: “Planfeststellungsverfahren”. 38 BGBl. 2007 I, p. 698. 39 For further details see Schladebach (2018), p. 132ff. 40 Delbanco (1998), p. 243. 34

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1 Relevance of Aerodrome Planning

law.41 International aviation law is applicable in more than one state, beyond national and European aviation law, based on bilateral and inter alia multilateral treaties.42 The Vienna Convention on the Law of Treaties (VCLT)43 defines in its second Annex a treaty as:44 Treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

As a matter of fact, international aviation law contains regulations and rules affecting global aviation.45 Furthermore, international aviation law provides a framework for multilateral aviation-specific concerns like safety, security, liability, aircraft financing, as well as aerodrome planning. Beside multilateral aviation law, there are also bilateral aviation law treaties.46 In terms of supranational law and European Law respectively, the European Parliament and the Council adopt regulations that are directly binding upon all Member States.47 Currently, there is a clear intention of the European Regulator to uniform aviation within the European Union through regulation rather than directives.48 The binding character of regulation can be derived from Article 288 para 2 TFEU.49 Without any doubt national aviation law is important since it regulates domestic aviation. In addition, powerful national jurisdictions had a remarkable impact on the evolution of international aviation law in the past.50 This work will primarily focus on international aviation law because of two reasons. Firstly, it would require lots of efforts to analyse the single national aviation regulations in order to describe the derived differences. This, however, is not the target of this work at hand. Secondly, according to Havel, aviation is a massive industry, heavily regulated and structurally borderless.51 As a result, it is necessary to concentrate on international regulation with regards to aviation and inter alia aerodromes. Notwithstanding, an excursion into national law will be initiated at some points—either in order to understand international obligations better or to provide best-practice examples that could benefit regulatory frameworks of other states.

41

Giemulla and Weber (2011), p. 63. Ibid. 43 1155 UNTS 331; BGBl. 1985 II, p. 927. 44 United Nations, Great Britain Foreign and Commonwealth Office Miscellaneous, Vienna convention on the law of treaties, with final act of the conference, declarations and resolutions, Vienna, 23 May 1969, 1969, p. 333. 45 In the following Havel and Sanchez (2014), p. 5. 46 Schladebach and Bärmann (2006), p. 294ff. 47 Thiele (2019), p. 116ff.; Giemulla and Weber (2011), p. 336. 48 Schladebach (2018), p. 75. 49 OJ C 326, 26.10.2012, p. 47ff. 50 Havel and Sanchez (2014), p. 6ff. 51 Ibid., p. 5. 42

1.5 Definition of the Terms “Airport” and “Aerodrome”

1.5

7

Definition of the Terms “Airport” and “Aerodrome”

The term “aerodrome” is often used synonymously and associated with “airport”.52 Both, international and European regulations as well as guidelines fail to distinguish clearly between a definition of aerodromes and airports. On the international level, the Chicago Convention (CC) uses the term “airport”, whereas ICAO Annex 14 for Aerodromes53 applies “aerodrome” in its wording. There is no explanation for this inconsistency.54 ICAO Annex 14 defines an aerodrome as:55 A defined area on land or water (including any buildings, installations and equipment) intended to be used either wholly or in part for the arrival, departure and surface movement of aircraft.

ICAO Annex 9 defines an international airport as:56 Any airport designated by the Contracting State in whose territory it is situated as an airport of entry and departure for international air traffic, where the formalities incident to customs, immigration, public health, animal and plant quarantine and similar procedures are carried out.

The introduced definitions are not contradictory. Accordingly, an aerodrome could be an airport and vice versa. Thus, a decisive differentiation is not possible. This uncertainty has a direct impact on national regulations, as German Aviation Legislation,57 for instance, does not offer a legal definition for the term aerodrome.58 Apart from this, there are no requirements listed that have to be fulfilled for an aerodrome to adapt to the status of an airport.59 The Manual on Aerodrome Certification (MOCA) states that60 “an aerodrome is considered to be an “airport” when the aerodrome operator has applied for and has been issued with an aerodrome certificate covering the operation of that airport.” The presented definition within the MOCA is not adequate since it connotes that every so-called airport is in possession of a certificate, and this is not true at all. The capital airport of Nigeria Nnamdi Azikiwe International Airport (NAIA)—Abuja has been certified recently in November 2017 and was denoted airport even before.61 In addition, the expression of “to be considered” does not have the same imperative character as “shall” for instance. The wording of ICAO is obviously one factor contributing to inconsistent usage of these terminologies. 52

Giemulla and Weber (2011), p. 57. One of the Annexes to the Chicago Convention. 54 Abeyratne (2014), p. VI. 55 ICAO, Annex 14—Aerodromes, 2018, p. 1–2. 56 ICAO, Annex 9—Facilitation, 14th edition, 2015, p. 1–3. 57 See § 6 LuftVG. 58 Schladebach (2018), p. 132; Hobe and von Ruckteschell (2009), p. 170; Zielke (1998), p. 38. 59 Hobe and von Ruckteschell (2009), p. 173. 60 ICAO, Doc 9774—Manual on Certification of Aerodromes, 1st edition, 2001, p. 3f. 61 See https://allafrica.com/stories/201905060666.html, assessed on 10.08.2019. 53

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1 Relevance of Aerodrome Planning

According to Giemulla, an airport is more than just an area where aircraft could arrive and depart from. Thus, an airport is associated with facilities.62 This approach is similar to the German Legislator’s approach. Thereby, aerodromes are separated into three different classes: airports, airfields and glider fields.63 Additionally, Giemulla states that an airport is a centre of legal relationship, bringing together economical, technical and political interests.64 Hence, all airports are aerodromes, but not all aerodromes are airports. Legally, airports are private objects of a state, as their usage is not allowed to every single person. As a fact, an airport is subject to restrictions and principles. This separates an airport from an object of public nature. Giemulla’s interpretation distinguishes clearly between both terms. Consequently, the term aerodrome will be used, as it encompasses not only airports but also other landing areas without facilities that must adhere to legal requirements in order to achieve safety.

1.6

Objective and Motivation

The main objective of this book is to discuss the following question: “What are the main legal questions and challenges regarding international requirements for aerodrome planning?” Different topics are derived from this question and discussed in legal terms. In the context of this work, aerodrome planning does not only refer to the construction and expansion of aerodromes but also to the operation, maintenance and surveillance. Keeping in mind that aerodrome developments will be accomplished in the future, the importance of the stated research question is further highlighted through the following aspects: “SAFETY FIRST!” It is assumed that this principle prevails in many different industries. Especially in high-technology branches, namely, in aviation, this principle has an extremely high priority since a shortcoming can lead to a catastrophe. On the 5th of January 2018, a Boeing 737-800 operated by United Airlines lined up on runway 33L to depart from Boston Logan International Airport.65 However, the crew contacted the tower in order to report that they have to taxi off the runway because they were not able to continue the take-off process. After cancelling the take-off clearance, the tower instructed the crew to taxi down runway 33L, which crosses runway 27, and to hold short at the runway holding position marking before crossing runway 27. Simultaneously, an Embraer ERJ-190 operated by Jetblue was on final approach of runway 27. The tower instructed United Airlines again to hold short of runway 27. Five seconds later the tower agitatedly said again “hold short runway 27”. The crew of 62

Giemulla and Weber (2011), p. 57. § 6 LuftVG; For more details see Pfisterer (2017), p. 84. 64 In the following Giemulla and Weber (2011), p. 57. 65 In the following http://avherald.com/h?article¼4b35692a&opt¼0, assessed on 10.08.2019. 63

1.6 Objective and Motivation

9

United Airlines responded that they are short of runway 27. Notwithstanding, the tower instructed the Jetblue crew to abort the landing and to go-around. Jetblue started a second approach and landed safely, whereas United Airlines returned to the apron and departed later on. The airport authority reported that United Airlines entered the protection area of runway 27 which starts right after the runway holding position marking. This led to an alarm in the tower, resulting in a go-around instruction for Jetblue. Satellite photos illustrate that there is no runway holding position marking on runway 33L in the meantime, which could be the reason for entering the protection area of runway 2766 because the crew was still looking for the marking to appear. A Boeing 737-800 has a seat capacity of 189 seats and an Embraer ERJ-190 a seat capacity of 118 seats. The worst-case scenario would be a crash of both aeroplanes at the crossing point of runway 33L and runway 27, resulting in over 300 fatalities. If this had happened, it would have been a disaster, knowing that a runway holding position marking with a length of 45 m and a width of 1.05 m67 would have saved many lives. This example clearly demonstrates how important adherence to international aerodrome planning requirements is in order to ensure safety and to save lives. It appears unreasonable and unsafe if a pilot would have to apply different rules once he overflies the invisible borders of a State.68 That said, it is necessary to define legal requirements for aerodromes that apply internationally. Market forecasts expect that South-East Asian Nations will have to invest $33 billion in aerodrome infrastructure in the next 5 years to successfully meet the demand.69 Taking into account that these nations are Developing States with limited government budgets, this is an immense sum. Therefore, it is extremely important to be aware of aerodrome planning requirements to avoid planning errors, that could lead to immense additional costs.70 Germany’s capital aerodrome, Willy-BrandtAirport, in Berlin should have opened its doors for international aviation in 2011 with 5 years of construction (since 2006) and estimated project costs of €2 billion.71 In 2018, the construction was still not finished, and the costs exceeded €7.3 billion. A further €3 billion will even be needed until 2030. Besides, all additional costs do not include potential revenues, which could have been generated by real-estate rents within each terminal.72 Incontrovertibly, this imperfection associated with aerodrome planning does not only incur losses to the government’s and aerodrome 66

Crew keeps taxiing and is looking for the runway holding-position to stop. ICAO, Annex 14—Aerodromes, 2018, p. 5–18. 68 Erler (1967), p. 11. 69 In the following Mott MacDonald, Annual Analyses of the EU Air Transport Market 2016, 2017, p. 104. 70 See also Lelieur and Schlumberger explaining how the World Bank is funding airport expansion in Asia and Africa. Lelieur and Schlumberger (2017), p. 135. 71 https://www.spiegel.de/wirtschaft/soziales/flughafen-berlin-brandenburg-ber-kosten-steigen-auf7-3-milliarden-euro-a-1195101.html, assessed on 10.08.2019. 72 https://www.zeit.de/wirtschaft/2018-01/ber-flughafen-ausbau-betriebskosten, assessed on 10.08.2019. 67

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1 Relevance of Aerodrome Planning

planners’ reputation but also often leads to inexplicable financial losses. It is a fact that this condition will be more tragic for Developing States than for Developed States, given the formers’ limited resources. In conclusion, the long-term nature of aerodrome construction along with significant financial requirements73 force aerodrome planners to comply with legal requirements and to internationally accepted best-practices. In the context of aerodrome developments, notably, Mott MacDonald mentions that high levels of expertise and resources are required in Asia to develop large scale aerodrome infrastructure.74 In most Asian cases, neither expertise nor resources are available in government-owned and/or operated aerodrome authorities, which often necessitates seeking for private involvement in aerodrome development. ICAO has established an audit program that foresees to examine the implementation status of its international legal requirements.75 The results of 2018 have been alarming since only 58.5% of the Contracting States have effectively implemented international provisions for aerodromes. In addition, many states face severe shortcomings in their safety oversight system.76 In result, the five mentioned aspects (safety, financial scale, limited expertise, few resources, alarming ICAO audit results) motivated the idea of discussing the stated research question. The objective thereby is to provide for states, international organisations, competent authorities, aerodrome planner and aerodrome operators a comprehensive overview of legal challenges and requirements with regard to aerodrome planning. In addition, answers to the derived legal questions as well as recommendations thereafter shall help to enhance regulative systems and to establish a safer aerodrome environment worldwide.

1.7

Book Overview

Before deriving and discussing legal questions and challenges, it is necessary to present the international requirements for aerodrome planning. Therefore, Chap. 2 illustrates the development of international aviation law. An analysis of the multilateral aviation law treaties in the first half of the twentieth century is conducted. The aim is to follow a chronological approach in order to point out whether states have defined legal requirements for aerodrome planning on an international basis already before the conclusion of the Chicago Convention in 1944. It is further examined what these requirements comprise and how they can be categorised. The analysis in this chapter is not limited to international law. An insight into national legislation is also necessary in order to determine whether states have adapted their national

73

Boeing, Current Market Outlook, 2017, p. 9. Mott MacDonald, Annual Analyses of the EU Air Transport Market 2016, 2017, p. 103. 75 ICAO, Safety Report, 2018, p. 15. 76 Abeyratne (2009), p. 536; Dempsey (2017), p. 108f. 74

1.7 Book Overview

11

legislation to the international treaties and how they adhered to them. In addition, the national legislation of states that have not acceded to the international conventions will be reviewed. The purpose of this study is to analyse whether the absence of accession had an adverse effect on national legislation and more precisely, whether this circumstance had negative consequences for the development of national aerodromes. Hence, it will be summarised what the target of defining international legal requirements for aerodromes is. There are legal questions that arose in the past but impact the present and therefore need to be addressed. Thus, Chap. 3 analyses the Chicago Convention of 1944, which is still in force. After an introduction to the circumstances under which the Convention has been concluded and to the supplementary agreements that are incorporated therein, the organs of ICAO are presented. The target of Chap. 3 is to examine how the Chicago Convention deals with legal requirements for aerodrome planning. For this purpose, it is first necessary to analyse the legal instruments— namely Standards and Recommended Practices—that have been provided to the ICAO through the Chicago Convention. One of the major open legal questions is related to the binding effect of Standards as well as of Recommended Practices and to associated obligations that have to be considered by the Contracting States. Subsequently, the legal aerodrome requirements in the Articles of the Chicago Convention as well as in the corresponding draft Annexes will be explained, and relevant legal questions will be analysed. The main legal question subject to the scrutiny is as to whether the Chicago Convention has ensured the safe construction and operation of aerodromes. This step is essential in order to clarify which of the two legal systems—namely the Chicago or Paris system—is more suitable to define legal requirements for aerodrome planning. Considering national and international regulation introduced in Chaps. 2 and 3, it will then be pointed out what a perfect legal system for aerodrome planning could have looked like in 1944. Based on the results of Chap. 3, an assessment shall derive as to whether states need to amend the Chicago Convention—75 years after its conclusion. This question will be answered from an aerodrome planning perspective and—if required—supported by proposals for an amendment. Chapter 4 addresses present legal questions and challenges of aerodrome planning that are relevant for ICAO, states, competent authorities, and aerodrome operators. Firstly, the regulatory framework of ICAO is introduced and described. International legal requirements for aerodrome planning are not only defined in Annexes to the Chicago Convention but also in other levels of ICAO’s regulatory framework. The binding effect of provisions on these levels differs and allows further analysis. It shall be derived to which extent Contracting States must adhere to those when planning an aerodrome. Secondly, the current legal requirements of aerodrome planning will be explored and categorised into essential and additional requirements. The objective is to give a generic overview of key considerations and different facets related to the planning of new aerodromes or the expansion of existing ones. ICAO develops the different legal requirements for aerodrome planning within its rulemaking process. This process needs to be analysed since it reveals legal weaknesses related to its democratic legitimacy. That said, a discussion shall

12

1 Relevance of Aerodrome Planning

result in different approaches and methods of improvement. These methods will be either simple to introduce or more complex, requiring an amendment to the Chicago Convention. Drafts of possible amendments in this context are proposed. States are responsible to integrate international law into their national legislation. This applies to the provisions of the Chicago Convention and to Annexes thereto. Incorporation is necessary to comply with the obligations under the Chicago Convention. There are different methods used to fulfil this requirement. Various theories are introduced in Chap. 4 that describe the relationship between international and national law and how both legal systems interact with each other. This introduction is essential to demonstrate how the Contracting States have integrated the Paris and the Chicago Convention into national law. The integration process does not always achieve the domestic applicability of international law, but instead requires it. An examination shall, therefore, clarify whether the aerodrome-related Articles of the Chicago Convention as well as the Standards and Recommended Practices in ICAO Annex 14 are directly applicable or still require additional national acts. In the next step, an excursion into national legislation is sensible to illustrate different methods on how states integrate ICAO Annex 14 for Aerodromes into national law. The different methods have their advantages and disadvantages, which are particularly apparent when ICAO establishes amendments that have to be applied domestically. The Theory of Essentialness from Germany will be explained and used to point out if it is legitimate to provide an executive organ of the state with powers to introduce amendments to Annex 14. In result, it should be derived what the most appropriate way to incorporate Annex 14 is. Furthermore, an analysis shall reveal how states should deal with the integration of ICAO Standards and Recommended Practices nationally. The integration of international law motivates a discussion on available enforcement tools in both systems. In the first instance, sanctionable law and associated cases have to be determined. In the second step, an analysis shall derive whether ICAO’s vertical or horizontal law enforcement mechanism is more suitable to enforce aerodrome regulation. ICAO’s procedure for transparency and disclosure is in this regard analysed and evaluated. The chapter is finalised with an analysis of ICAO’s aerodrome certification requirements. This step is necessary since a large number of Contracting States have not certified their aerodromes in accordance with international Standards yet. Chapter 5 addresses legal questions and challenges that arise in the present and impact the future. The responsibility towards an aerodrome does not end with its certification. The aerodrome must continue to prove its operability and meet the existing and new legal requirements for aerodrome operation and infrastructure. ICAO uses the USOAP—an auditing program—to assess to which extent the Contracting States implement international regulation and whether states have established an oversight system. Chapter 5 analyses the USOAP from a legal point of view and examines whether the Chicago Convention has given the ICAO the necessary powers to execute this program. Furthermore, an analysis should highlight if states are legally obliged to participate in the auditing process and to implement corrective recommendations made by ICAO. Many states do not follow and comply with the Standards and Recommended Practices of ICAO. Notably, the USOAP

References

13

results for aerodromes are not satisfactory. Reasons for this shortcoming and the current mitigation practices of ICAO are pointed out and evaluated. This evaluation shall motivate ICAO to rethink the current way of rulemaking for aerodrome requirements. In this respect, a shift from prescriptive regulation to performancebased regulation could be beneficial. What exactly performance-based regulation is and where the differences to prescriptive regulation lie, will be answered in this chapter. In particular, the discussion will outline what needs to be taken into account when implementing performance-based regulation due to current challenges. Chapter 5 also identifies which types of provisions in ICAO Annex 14 should be considered for the development of rulemaking in a performance-based way. Performance-based aerodrome planning requirements are then drafted and proposed for two safety-critical topics related to aerodrome planning—namely for the provision of a RESA and the management of jetblast hazards at the aerodromes. Additional considerations in this regard are provided for the implementation of an SMGCS and management of change at aerodromes. Chapter 6 sums up the main results through the provision of hypotheses. Further, this chapter proposes recommended actions. These actions should be fulfilled by different entities: ICAO, the state, competent authorities, and aerodrome operators as well as aerodrome planners. Every stakeholder has a defined responsibility in the process chain that needs to be sufficiently addressed in order to achieve a safe and efficient aerodrome environment.

References Abeyratne R (2009) The role of the International Civil Aviation Organization (ICAO) in the twenty first century. AASL 34:529–544 Abeyratne R (2014) Law and regulation of aerodromes. Springer, Cham Chern C (2015) Chern on dispute boards: practice and procedure, 3rd edn. Informa Law from Routledge, New York Delbanco H (1998) Die Änderung von Verkehrsflughäfen. Duncker & Humblot, Berlin Dempsey PS (2017) Public international air law, 2nd edn. William S. Hein & Co., Montréal Erler J (1967) Rechtsfragen der ICAO: Die Internationale Zivilluftfahrtorganisation und ihre Mitgliedstaaten. Heymanns, Munich Giemulla EM, Weber L (eds) (2011) International and EU aviation law. Kluwer Law International, Alphen aan den Rijn Graham A (2008) Managing airports: an international perspective, 3rd edn. Routledge, London Havel BF, Sanchez GS (2014) The principles and practice of international aviation law. Cambridge University Press, New York Hobe S, von Ruckteschell N (eds) (2009) Kölner Kompendium des Luftrechts, Volume II Luftverkehr. Heymanns, Cologne Lelieur I, Schlumberger CE (2017) Airport business and regulation. In: Dempsey PS, Jakhu RS (eds) Routledge handbook of public aviation law. Routledge, New York, pp 114–136 Metcalfe M (2008) Managing environmental capacity constraints at airports: an approach developed by the US Air Force. JAM 2:306–317 Pfisterer H (2017) European Regulation of Aerodrome Safety Management Systems in the EASA System. Kassel University Press, Kassel

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Schladebach M (2018) Luftrecht, 2nd edn. Mohr Siebeck, Tübingen Schladebach M, Bärmann D (2006) Luftverkehrsabkommen als Grundlage internationalen Fluglinienverkehrs. NZV 19:294–303 Thiele A (2019) Europarecht, 16th edn. J. Niederle Media, Altenberge Zielke T (1998) Verkehrsaufteilung in Flughafensystemen. Duncker & Humblot, Berlin

Chapter 2

History of Aerodrome Planning

2.1

The Term “Aviation Law”

Aviation law defines a comprehensive legal framework that deals with aviation, aircraft, and the airspace as an element of aviation.1 The term air law is often used synonymously. However, air law connotes a more general character. Aviation law, on the contrary, is discussing more specific topics in terms of air traffic and air transport.2 This book will mainly subject civil aerodromes that serve for international air traffic. The term aviation law will be therefore used because it is more accurate for the upcoming topics. The transnational nature of aviation requires to discuss aviation law internationally.3 The purpose of international aviation law is thereby to provide harmonised regulation for international aviation operations and to solve legal challenges and problems that derive from aviation.4 International aviation law distinguishes between private aviation law and public aviation law.5 The distinction between both legal systems is based on the involved parties and the forum of enforcement. Private multilateral aviation law naturally deals with liability concerns between aircraft operators and their contracting partners (Warsaw6 and Montreal7 Conventions) or between aircraft operators and third parties (Rome8 Convention).9 In 1

In the following Riese (1949), p. 11. Schladebach (2018), p. 6. 3 Giemulla and Weber (2011), p. 63. 4 Bartsch (2016), p. 14. 5 Havel and Sanchez (2014), p. 11ff. 6 49 Stat. 3000; 137 LNTS 11; RGBl. 1933 II, p. 1039. 7 2242 UNTS 309; S. Treaty Doc. No. 106-45 (2000). 8 310 UNTS 181; Not ratified by Germany according to Schubert (2009), p. XVII. 9 Giemulla and Weber (2011), p. 68. 2

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2021 C. Salih, International Aviation Law for Aerodrome Planning, https://doi.org/10.1007/978-3-030-56842-9_2

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2 History of Aerodrome Planning

general, private international aviation law considers private disputes involving a party that can be from another state.10 The majority of international aviation law content is defined by international public law.11 Public international aviation law governs the conduct of states and intergovernmental organisations.12 Primarily, public international aviation law applies to agreements between states.13 Its content is stipulated in international conventions or treaties. Both, public and private law principles play an important role in international aviation law, as they are the legal basis of the discipline that solves problems derived from air navigation.14 However, this work is going to deal only with public aviation law as it provides legal requirements for aerodrome planning.15

2.2

Beginning of International Aviation Law

The first promulgation of legal requirements with regard to aviation was a police directive16 in 1784.17 At that time, the French police defined that balloons of the Montgolfier Brothers may only take-off with prior authorisation.18 The directive was enacted for safety reasons.19 The police prohibited anyone without qualification to fly a balloon.20 In addition, the French police began to ground any balloon that carried burner or fireworks for safety reasons, as well.21 Contemporary international aviation law developed at the beginning of the twentieth century.22 Improvements of dirigible balloons and new possibilities in air communication and navigation motivated the discussion of international law concerning aviation.23 The first bilateral agreement between two states was in 1898.24 This agreement regulated the operation of military balloons crossing the

10

Bartsch (2016), p. 22. Havel and Sanchez (2014), p. 11. 12 Ibid. 13 Bartsch (2016), p. 14. 14 Giemulla and Weber (2011), p. 72f. 15 For further details with regard to private aviation law see Schladebach (2018). 16 “Ordonnance interdisant les ascensions sans autorisation préable, promulguée le 23 avril 1784 par le Lieutenant Général de Police Lenoir”, Text available in Caplan (2009), p. 368f. 17 Riese (1949), p. 10; Fortier (2004), p. 20. 18 Giemulla and Weber (2011), p. 6; Wouters (2011), p. 361. 19 Schladebach (2014), p. 15. 20 Fortier (2004), p. 20. 21 Schladebach (2014), p. 15. 22 Ibid., p. 27. 23 Hershey (1912), p. 381. 24 Meyer (1944), p. 24; Schladebach (2014), p. 22f. 11

2.3 Aerodrome Planning Within International Regulation

17

border of Germany and Austria.25 The agreement was based on the principle that every state is authorised to regulate air traffic within the airspace above its territories.26 One year later, the first multilateral agreement was concluded—namely The Hague Declaration.27 This Declaration prohibited “launching of projectiles and explosives from balloons, and other methods of similar nature.” The begin of the twentieth century initiated the international discussion on air sovereignty.28 Most remarkably was the French law expert Fauchille who made the first suggestion for an international convention.29 He had the opinion that according to the freedom of the seas, the global air is the common property of humans.30 A state should not claim sovereignty over its airspace unless for national defence reasons. This principle is entitled as “L’air est libre.” Nonetheless, Fauchilles had the perception that a state should be authorised to protect its airspace—for instance during wartime.31 Aerodrome planning requirements were not discussed at that time. The World War I improved aircraft technology which was essential for the introduction of inter alia aerodrome requirements. Debates on air sovereignty and freedom of the air were preceding in the time before World War I.32 Aviation law and in particular international aviation law kept developing with the improvement of aircraft technology.

2.3

Aerodrome Planning Within International Regulation

2.3.1

The Air Navigation Conference (Paris 1910)

2.3.1.1

General

The time after World War I witnessed negotiations between states on multilateral treaties. The three most important historical conventions before the Chicago Convention (CC) are the Paris Convention (1919), the Ibero-American Convention on Air Navigation (1926) and the Pan-American Convention on Commercial Aviation (1928).33 It is apparent that multilateral treaties were limited to regional areas. This is due to the fact that aircraft technology was not mature enough compared to the

25

Bentzien (2001), p. 3. Schladebach and Bärmann (2006), p. 294. 27 32 Stat. 1839; Treaty Series 393; For more details see Schladebach (2014), p. 23f.; Giemulla and Weber (2011), p. 6f. 28 Schladebach (2014), p. 29. 29 Fauchille (1901), p. 414ff. 30 Ibid.; For more details see Riese (1949), p. 73; Schladebach (2014), p. 28ff. 31 Fauchille (1901), p. 430. 32 Schladebach (2018), p. 18ff.; Bogert (1920), p. 273. 33 Giemulla and Weber (2011), p. 64. 26

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2 History of Aerodrome Planning

second half of the twentieth century. However, a tendency of establishing intergovernmental responsibilities can be derived.34 In 1910, the first international conference aiming to develop uniform aviation law was held in Paris.35 The so-called Air Navigation Conference was entered by 18 states (Austria-Hungary, Belgium, Bulgaria, Denmark, England, France, Germany, Italy, Monaco, Netherlands, Portugal, Rumania, Russia, Serbia, Spain, Sweden, Switzerland and Turkey).36 These states adopted a draft for the Convention entitled “Projet d’une convention internationale relative á la navigation aérienne.” The Convention was about to contain seven chapters and 55 Articles. The following chapters were included: I. II. III. IV. V. VI. VII.

Nationality of Aircraft and Registration Requirements Approval and Airworthiness Certificates Authorization of Aircraft within the Borders and above a National Territory Regulations on Take-off, Landing and Flight Customs and Freight Public Aircraft Final Provisions

Moreover, the draft Convention contained three annexes: A. Marks of Nationality and Registration B. Characteristics of the Aircraft C. Rules of the Air Traffic Before the conference was held, international balloon flights were unregulated.37 Till 1910, there have not been any acceptable plans for international flight regulation. German airships departed from Germany, flew over Switzerland and landed on French territory without giving any thoughts to permission.38 It is reported that between April and November 1908 at least ten balloons departed from Germany and landed in France carrying 25 aviators of whom more than ten were German officers.39 The Paris Convention should counteract this trend and regulate international flights.40 However, the Convention was not ratified by the states, since they had opposing opinions on the theories of national sovereignty as well as freedom of the air.41 Freedom of the air is associated with the right to fly through airspace of another

34 See also Riese clarifying that once an aircraft is capable of crossing borders, international aviation law becomes inevitable. Riese (1949), p. 15. 35 Schladebach (2014), p. 54ff. 36 In the following Bethkenhagen (2004), p. 84. 37 Cooper (1952), p. 127. 38 Ibid., p. 128. 39 Sand et al. (1960), p. 30. 40 Cooper (1952), p. 128. 41 Schladebach (2018), p. 20.

2.3 Aerodrome Planning Within International Regulation

19

nation at any height without being disturbed.42 This approach was criticised, as it does not take into consideration aspects of national security. The theory of national sovereignty defines that a state has the absolute power of the airspace above its territories.43 The argument against the idea of national sovereignty was that a state could not extend indefinitely into airspace.44 France and Germany advocated wide freedom.45 Foreign aircraft should be treated by national regulations. Great Britain, Austria-Hungary and Russia wanted territorial sovereignty in order to limit unauthorised overflights. This should protect their national security. Germany would have benefited from the freedom of flying and subsequently landing at most since Germany had technical advantages in their Zeppelins and military dirigibles.46 It is not surprising that the theory of national sovereignty won against the theory of freedom of the air at that time.47 This is due to the fact that freedom of the high seas and the associated “open port policy” in maritime law is easier to accept from a national security standpoint than freedom of the air. Aircraft can move threedimensionally and represent a danger in the airspace above national territories. The failure of the Convention initiated bilateral agreements which were signed between nations to handle trans-border issues.48 One of them is the Air Service Agreement between France and Germany in 1913 negotiated between the French Ambassador and the Secretary of State for Foreign Affairs in Berlin.49 It laid down necessary certification requirements for flight operation and flying aircraft.50 Despite the failure of the Convention, the draft offered many essential ideas for the future of international aviation law,51 for instance, with regards to customs procedure or rules of the air. At first glance, the draft might not contain provisions for aerodrome planning.

2.3.1.2

Aerodrome Planning Subject to the Air Navigation Conference

Forbidden Zones and Landing Areas In preparation of the conference, the French Government sent relevant questions to the invited states in order to define the conference scope.52 Generally, the questions

42

Schladebach (2014), p. 28ff. Ibid., p. 42ff. 44 Giemulla and Weber (2011), p. 8. 45 Milde (2012), p. 8f. 46 Ibid., p. 9. 47 In the following Haanappel (2003), p. 4. 48 Schladebach (2018), p. 21. 49 RGBl. 1913 II, p. 601; For more details see Bentzien (2001), p. 3. 50 Bethkenhagen (2004), p. 84. 51 Schäffer (2007), p. 37f.; Milde (2012), p. 8. 52 Cooper (1952), p. 129. 43

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2 History of Aerodrome Planning

had a technical nature. The questions, for instance, thematised technical rules applicable to the departure of aircraft. Inter alia, the states replied with their opinions on free landings. Belgium noted that the answer to the question on free landings depends on the extent of navigational freedom. The Italian Government insisted that landings should not be conducted on military zones.53 Russia agreed with the Italian approach. Landings should be free except in prohibited areas. The British Government recommended that every Contracting State should have the power to determine special landing locations for foreign aircraft and to prescribe zones in which landings are prohibited.54 The idea of declaring restrictions above the airspace of one’s territory had been manifested in the draft. Accordingly, a state could restrict a route in its airspace to the Contracting States as per Article 21.55 Article 23 defines how forbidden zones shall be defined (scale of 1:500,000) and where they should be published (within aeronautical maps). Article 24 stipulates that as soon as a pilot perceives flying into a forbidden zone, he has to land the aircraft immediately. A landing is also to be initiated when a warning signal is given from the ground. However, the draft does not contain any provisions on where exactly to land and how the landing area should be characterised. Considering that, one must say that landings at that time were not restricted to happen on aerodromes or landing areas only.56 Also, Article 24 does not mention from where and whom a warning signal from the ground has to be issued. It only prescribes that states must inform about warning signals adopted in national regulation. Consequently, the idea of technical uniformity was not developed compared to today. Since every state had the chance to develop its own means. If the draft had laid down that the warning signal must be given from an aerodrome, it would have had provided aerodrome requirements on facilities. Further, there would have been requirements for aerodrome operation, because giving a signal and, as a result of this, conducting a landing by the pilot afterwards could have been interpreted as an early landing procedure. According to Article 44, military aircraft need an authorisation to land or depart. But, in a distress situation military landing could not be refused as per Article 45. Again, it is not obligatory to depart or land at defined landing areas corroborating the fact that landings were not restricted to happen at aerodromes.

Aerodrome Infrastructure Article 1 of the draft defines aircraft as free balloons, airships and flying machines. Airplanes were not mentioned. Before World War I, airplanes were not technically

53

Ibid., p. 130. Ibid., p. 134. 55 Draft of the text of the Convention is included in Procès-verbaux des séances et annexes—Paris: 18 Mai—29 Juin 1910, Conférence internationale de navigation aérienne, 1910. 56 In German: Flugplatzzwang. 54

2.3 Aerodrome Planning Within International Regulation

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developed, and balloons, as well as airships, were mostly operated.57 Balloons do not need an aerodrome to land, as a greenfield is sufficient. Consequently, the draft does not use the terms aerodrome or airport. Further, the draft of the Convention does not contain any requirements for aerodromes. Thus, it does not lay down any rule or recommendation about facilities to provide at an aerodrome. Article 29 commits landing aircraft to adhere to police jurisdiction and customs supervision. The rule is also mandatory for aircraft landing in another Contracting State. In this case, the nearest police or custom authority has to be informed. Hence, a state would have own interest in implementing facilities for these authorities in areas next to places which are often used for landings in order to meet its duties. Annexes A and B define nationality and registration marks as well as characteristics for aircraft. The Annexes do not thematise any types of aerodromes. Annex C defines lighting requirements for the different aircraft types while leaving visual aids for aerodromes open.

Aerodrome Operation Article 15 and 16 of Annex C determine which lights and signs have to be illuminated during landing or during distress by the aircraft. For these requirements, the authors made a distinction between operation by day and night. However, there are no operational requirements laid down for an aerodrome or a landing area neither during day nor during night-operation. Only Article 31 mentions that each state shall instruct its authorities, populations, and neighbourhood to afford aircraft support when landing or in a distress situation. No recommendations rather than provisions were mentioned on how to support landing aircraft.

Conclusion If the states had signed the Convention, it would have had a binding status. This is derived from the requirements in Annex C. As Article 30 stipulates that states shall impose punishments in case aircraft do not adhere to the rules of the air laid down in Annex C. In result, the Paris Conference did not thematise aerodrome requirements. On the contrary, all requirements either for landing or during flight had been defined for different aircraft types. Considering that aircraft were only supposed to be balloons and landings had not been restricted to landing areas at that time, the absence of aerodrome requirements becomes logic. However, later when the Special Committee No. 2 of the Civil Aerial Transport Committee (Great Britain) reviewed the draft in 1918, it recommended to take into account rules for landing and departing on aerodromes in further considerations of

57

See Murphy (2005), p. xff.; Dobson (2017), p. 7ff.

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2 History of Aerodrome Planning

any conventions.58 They had the opinion that aerodrome regulations should be considered in an international agreement since the contemporary national regulations have not been satisfactory. For instance, visual marks should be placed at certain landmarks to give pilots visual references when flying. For aerodromes, they recommended a system with large movable arrows which can be illuminated at night. These should indicate the direction of the ground, wind, as well as the best lie of the land in case of wind absence. This rule should ensure that aircraft could depart or land with headwind. Additionally, the Committee called for rules to prevent collision between landing traffic—for example when spiralling down to aerodrome—and an aircraft which is gliding straight ahead. A significant number of terms and definitions have been developed within the Paris Conference that are important for aviation law today.59 Most of them have been derived from French and British maritime law as well as Swiss and Dutch road transport law.

2.3.2

The Paris Convention 1919

2.3.2.1

General

The former Allied States decided at the post-war peace conference to hold an international conference in order to discuss rules of the air.60 The aim was to define international air traffic regulation. This was necessary because all negotiating states had been certain that aviation is going to develop. Besides, a global uniformity was targeted.61 The Paris Convention relating to “Regulation of Aerial Navigation” was signed on 13 October 1919.62 It was the first multilateral regulation of international air traffic.63 Thirty-two countries have ratified the Convention, which is remarkable for that time, given the technological and territorial limits.64 It covers many aviationrelated concerns at that time like the nationality of the aircraft, acceptance of airworthiness, certificates, and authorisations.65 The Paris Convention solved the question of airspace sovereignty and defined in Article 1 as “The High Contracting

58 In the following Reports of the Civil Aerial Transport Committee, Appendix A to Report of Special Committee No. 1, published by His Mayesty’s Office, Cd. 9218, 1918, p. 35. 59 Polkowska (2008), p. 60. 60 In the following Schladebach (2014), p. 66f.; Milde (2012), p. 9ff.; Meyer (1944), p. 46ff. 61 Riese (1949), p. 80. 62 11 LNTS 173. 63 Giemulla and Weber (2011), p. 10. 64 Havel and Sanchez (2014), p. 31. 65 Giemulla and Weber (2011), p. 10.

2.3 Aerodrome Planning Within International Regulation

23

Parties recognize that every Power has complete and exclusive sovereignty over the airspace above its territories.”66 The Paris Convention initiated the concept of global uniformity by addressing specific annexes relating to the articles.67 It consists of 42 Articles and eight Annexes.68 The following chapters are incorporated: I. II. III. IV. V. VI. VII.

Nationality of Aircraft and Registration Requirements Approval and Airworthiness Certificates Authorization of Aircraft within the Borders and above a National Territory Regulations on Take-off, Landing and Flight Customs and Freight Public Aircraft Final Provisions

Moreover, the Convention contained the following Annexes:69 A. B. C. D. E.

The Marking of Aircraft Certificates of Airworthiness Log Books Rules as to Lights and Signals, Rules of the Air Minimum Qualifications necessary for Obtaining Certificates as Pilots and Navigators F. International Aeronautical Maps and Ground Markings G. Collection and Dissemination of Meteorological Information H. Customs The Convention established an independent body—namely the Commission Internationale de Navigation Aérienne (CINA).70 It acted as an administrative body containing a panel of experts.71 CINA had been legitimated with law-making rights. Furthermore, the Annexes could be changed through a qualified majority leading to a binding status for all states, including states that voted against the change. Advantageously, a high level of standardisation was ensured that way, especially in terms of technical provisions, since the Annexes were directly binding.72

66

Convention for the Regulation of Aerial Navigation in AJIL 17 (1923), 195, p. 198. Havel and Sanchez (2014), p. 31. 68 The text of the Convention as well as Annex H is contained in Convention for the Regulation of Aerial Navigation in AJIL 17 (1923), 195, p. 195ff. 69 The Annexes to the Paris Convention are included in Convention for the Regulation of Aerial Navigation—Annexes A-H, in: Treaties Series No. 2 (1922), 28, p. 28ff.; Convention for the Regulation of Aerial Navigation—Amendments of Annexes A-E, in: Treaties Series No. 14 (1923), 577, p. 577ff. 70 Havel and Sanchez (2014), p. 31. 71 In the following Giemulla and Weber (2011), p. 10. 72 Riese (1949), p. 119. 67

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2 History of Aerodrome Planning

The force of the Convention ended in 1947, when the Chicago Convention73 (CC) was ratified.74 The United States of America did not sign the Convention due to constitutional concerns.75 The United States opted instead to support regional compacts.76 In addition, one has to say that a worldwide uniformity could not be achieved through this Convention because many states did not join the Convention or ratified it inter alia due to discriminatory aspects.77 The victorious states did not only want to establish uniform law but also to rule over international air traffic.78 Nevertheless, the Paris Convention, which is also known as the CINA Convention, was the Magna Charta of aviation until 1939. It was the basis for the CC.

2.3.2.2

Aerodrome Planning Within the Paris Convention

Forbidden Zones and Landing Areas The Paris Convention of 1919 allows the declaration of forbidden areas above states’ territory which apply to aircraft from the other Contracting States as per Article 3. The authors followed the same approach as in the draft Convention of 1910. On the contrary to 1910, the areas where landings were allowed are precisely defined in the Paris Convention of 1919 as aerodromes. According to Article 4, if an aircraft entered a forbidden zone, the aircraft has to land as soon as possible outside of the prohibited area at the nearest aerodrome. The draft of 1910 had not mentioned where to land. These aerodromes shall be determined and notified by all Contracting States to CINA as per Article 15. The Paris Convention of 1919 introduced different types of aerodromes. Aircraft departing abroad shall start their journey from an aerodrome facilitated with customs administration as per No. 1 of Annex H. These aerodromes are cited as customs aerodromes. According to No. 3 in Annex H, aerodromes with customs administrations are international aerodromes. Further information and provisions concerning these aerodromes had to be communicated to CINA, which distributes this information to all Contracting States. Consequently, the Paris Convention separates between international and national aerodromes. No. 4 of Annex H evinces this fact. It says that if an aircraft crosses the frontier at any point of those designated, the aircraft shall land at the nearest customs aerodrome. In case of landing at an aerodrome before reaching this custom aerodrome, nearest customs and police had to be informed immediately. Hence, some aerodromes do not have customs administration—and in result are not international but national.

73

15 UNTS 295; BGBl. 1956 II, p. 412. Giemulla and Weber (2011), p. 64. 75 For more details see Riese (1949), p. 81; Meyer (1944), p. 47; Schladebach (2014), p. 67. 76 Havel and Sanchez (2014), p. 33. 77 Schladebach (2014), p. 68. 78 In the following Riese (1949), p. 80. 74

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Aerodrome Infrastructure Identical to the draft of 1910, the Paris Convention of 1919 uses the term aircraft. It is defined within the Definitions section of Annex D that aircraft are fixed or free balloons, airships and flying machines. Further, the Paris Convention of 1919 defines flying machines in more detail. Aeroplanes, seaplanes, or other aircraft that are heavier than air are associated with flying machines. Since aeroplanes need an aerodrome to land on, it was necessary to provide provisions for aerodromes within the Paris Convention of 1919. Aerodromes were subdivided into different areas. This can be derived from No. 14 in Annex H in which customs officers shall be permitted to access all landing and starting parts of the aerodrome. As per Article 21, authorities are given the right to visit aircraft upon departure or landing in order to verify documents. These authorities must consequently be provided with facilities. No. 1 in Annex H outlines that aircraft departing from a state to another must start from an airport with customs administration and land at custom aerodromes in the other State. Customs administration, therefore, also need facilities at an aerodrome. The same applies to police that fulfils tasks at an aerodrome as per No. 7 in Annex H. Also, operational personnel are supposed to be working at an aerodrome because according to Article 22, aircraft shall be assisted when landing. They do not only need facilities but also equipment that has to be provided at an aerodrome in order to support landing aircraft. Inter alia, lights and morsing equipment must be provided to permit landings of aircraft according to No. 14 b) in Annex D. Further required equipment for aerodrome operation can be derived from No. 18 a) (balloons) and 20 a) (projectiles) in Annex D. The Paris Convention lays down planning requirements for an aerodrome. Most of the requirements for aerodrome planning are defined in Section IV of Annex D. According to No. 36, the aerodrome has to implement a flag to indicate whether to circuit to the right (white flag) or to circuit to the left (red flag). Moreover, an aerodrome has to provide a wind direction indicator e.g. as a landing fee, conical streamer, or smudge fire. Technically, an aerodrome shall be divided into three parts as per No. 44 in Annex D. Take-offs shall be conducted in the right zone and landings in the left zone. Between both zones, there shall be a neutral zone. No. 46 in Annex D lays down lighting requirements for the different zones which proves that flying and consequently landing by night should be allowed. Thereby, the authors also defined minimum requirements for aerodromes. The aim of defining minimum requirements was to save lights and personnel. This evinces that the authors of the Paris Convention took in to account limited resources of states. Annex D proves that the idea of installing visual aids at an aerodrome was existent in the beginnings of defining international aerodrome planning requirements. Also, the denotation of obstacles had been defined. In this regard, suitable markings shall be placed on all fixed obstacles within 500 m of the aerodrome (No. 48 of Annex D). In result, thought was accordingly also given to the protection from obstacles.

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Aerodrome Operation The Paris Convention does not only provide provisions for aerodrome infrastructure but also introduces rules for aerodrome operation. Article 21 gives authorities the right to visit aircraft upon departure or landing in order to verify documents. As per No. 5 of Annex H, the logbook could be checked. Further, goods have to be investigated by customs as per No. 7 of Annex H. Article 15 of the Convention stipulates that an aircraft can be obliged to land. Thereby, ground personnel have to instruct pilots in the air through signals provided in Annex D. No. 19 of Section II in Annex D defines that to force an aircraft to land by day, three discharges, at intervals of ten seconds, of a projectile showing on bursting black or yellow smoke had to be shown from ground. By night, the projectiles had to show bursting red stars or lights. These provisions outline that for a landing, there is an interaction which had to be followed between the aircraft and the aerodrome. Consequently, an aerodrome must be considered as more as just a place to land on, since the operational staff working at the aerodrome had been granted with the right to ground aircraft—for example for national security or safety reasons. According to No. 14 in Annex D, a green pyrotechnical lamp had to be fired, or a green lamp had to be flashed intermittently by an aircraft in order to signalise the intend to land. In addition, aircraft shall make its call sign by using the International Morse Code. In response, the ground control has to repeat with the same call-sign followed by flashing green light in order to permit the landing. If an aircraft is not allowed to land, the red light has to be flashed as per No. 15 of Annex D. The described scenarios can be summarised as an early attempt of defining landing procedure at aerodromes. In addition, Section II of Annex D lays down the procedure which has to be followed from the ground in order to warn an aircraft that it is in the vicinity of a prohibited area. According to No. 18 (a), ground control shall use three discharges, at intervals of ten seconds, of a projectile showing on bursting white smoke. The location of the burst indicates the direction which aircraft have to follow. This procedure is defined for day operation. A similar approach is used for night operation with the only difference that white stars are shown and not white smoke. This procedure shows another example of interaction between the aerodrome and the aircraft at that time. No. 20 of Section II in Annex D lays down operational requirements in case of adverse weather. In this situation, a balloon acting as an aerial buoy had to be implemented to indicate the aerodrome. In result, the Paris Convention can also be seen as the first international agreement laying down provisions for adverse weather operation at aerodromes. No. 39 regulates that acrobatic landings are prohibited at aerodromes that are used for international air traffic. That said, also operational restrictions were defined in the Paris Convention. As per No. 41 in Section IV of Annex D, landings, as well as take-offs, shall be conducted up-wind except when natural conditions do not permit. This provision shows that the authors also discussed operational safety at aerodromes since

2.3 Aerodrome Planning Within International Regulation

27

take-offs with tailwind are not as safe as with upwind.79 Further safety-relevant aspects at an aerodrome can be derived from No. 47 in Annex D. Fixed balloons, kites, or moored airships shall not be elevated at an aerodrome. No. 44 of Section IV in Annex D requires that landings should be as near as possible to the neutral zone and left of any landed aircraft. After ending the landing procedure and coming to the end of the landing run, aircraft shall taxi to the neutral zone. Taking-off aircraft shall be as far right as possible of the neutral zone. They shall keep clear to the left of any starting aeroplanes. These rules of behaviour outline that also operational safety directly on the aerodrome was considered. No. 45 lays down that an aerodrome must be free before an aircraft starts with the take-off. Although the Convention does not define what is meant by a clear aerodrome, all these operational provisions can be regarded as the first safety-related aerodrome operation requirements.

Conclusion The Paris Convention of 1919 introduced many new requirements for infrastructure and aerodrome operations. Infrastructural, as well as operational requirements, are hereby interdependent. Also, administrative responsibilities had been foreseen. The reforms related to aerodrome provisions that were desired by the Special Committee No. 2 of the Civil Aerial Transport Committee in 1918 had been fulfilled. The idea of defining technical provisions in the annexes made it easy to amend them based on technical development.80 With no doubt, great care had been exercised while preparing these rules.81 The provisions will have been empirically analysed and practised in the art by experts, which clarifies that aviation legislation should be based on techno-practical examinations. Notwithstanding, a shortcoming is seen in Article 25 of the Convention with regards to aerodromes. It stipulates that the Contracting States have to ensure that aircraft adhere to the provision in Annex A regarding nationality marks. If not, states shall impose penalties. There is no rule foreseen for the punishment of aerodromes if they do not adhere to provisions related to aerodrome—although there had been many safety-relevant provisions defined for aerodromes. In order to prevent discrimination, the Paris Conventions of 1919 states in Article 24 that the charges for landings and aerodrome should be similar for national and foreign aircraft. This Article also derives an economical requirement for states and aerodromes because this provision has an impact on financial considerations when defining fees and charges. It should be noted at this point that many provisions and theories that have been manifested in the Paris Convention were included in subsequent aviation law treaties

79

Price and Forrest (2016), p. 206. Wegerdt (1930), p. 26. 81 In the following Kuhn (1920), p. 374. 80

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in the twentieth century.82 The Paris Convention must be regarded as the main initiator of international aerodrome regulation.

2.3.3

The Ibero-American Convention 1926

2.3.3.1

General

The Ibero-American Convention, which is also known as the CIANA83 Convention, was initiated by Spain in 1926.84 Spain, at that time, had not signed the Paris Convention, due to the fact that it was not guaranteed the same voting power as France or Italy.85 The Ibero-American Convention was signed in Madrid by Spain, Portugal, and the South American States. It contained 43 Articles and five Annexes.86 A permanent international commission with oversight and rule-making duties like CINA should have been initiated, namely CIANA.87 Contentwise, there were no significant differences compared to the Paris Convention of 1919.88 The most significant contrast was that there were no discriminatory issues, and states should be treated equally. The CIANA Convention lost its importance when Spain and Argentina signed the Paris Convention after discriminatory issues had been removed from the Paris Convention. Moreover, the South American States joined the Pan-American Convention in 1928. The CIANA Convention never entered into force.89

2.3.3.2

Aerodrome Planning Within the Ibero-American Convention

Similarities to the Paris Convention All provisions relating to an aerodrome that have been enacted in the Articles of the Paris Convention remained the same within the CIANA Convention. Accordingly, Article 3 of the Convention defines that states have the right to define prohibited

82

Riese (1949), p. 80. Convenio Ibero-Americano de Navegación Aérea; Text available at http://www.sct.gob.mx/ fileadmin/_migrated/content_uploads/3_Decreto_por_el_cual_se_promulga_el_Convenio_ Iberoamericano.pdf, assessed on 03.08.2018. 84 For more details see Riese (1949), p. 86; Schladebach (2014), p. 74; Meyer (1944), p. 57; Volkmann (1930), p. 22; Johnson (1965), p. 36. 85 Milde (2012), p. 12. 86 Concertado Entre México Y Varias Naciones, Decreto Por El Cual Se Promulga El Convenio Iberoamericano De Navegación Aérea, 1926, Introductory Note. 87 Ibid., as per Article 34. 88 In the following Riese (1949), p. 86. 89 Giemulla and Weber (2011), p. 64. 83

2.3 Aerodrome Planning Within International Regulation

29

areas. As per Article 15, aircraft could be forced to land on a designated aerodrome. These aerodromes had to be defined by the states and published through the CIANA. Whether on departure or landing, local authorities had the right to visit the aircraft to verify documentation as per Article 21. Hence, facilities had to be provided for these authorities at an aerodrome. Further, as per Article 22, landing assistance had to be offered for national and foreign aircraft. That said, operational requirements written down in the Convention text as well as Annex D were very similar to the provisions defined in the Paris Convention. This extends to the definition of an aircraft in Annex D of the Convention as well as to the infrastructural requirements of an aerodrome. The economical requirement prescribing the same fees for foreign aircraft like for national aircraft was also included, as no discriminatory shall be made as per Article 24. The CIANA Convention was concluded 9 years after the Paris Convention. Surprisingly, the authors did not establish new requirements. For instance, there were still only punishments for aircraft that do not adhere to the provisions in Annex D and not to aerodromes which do not fulfil operational or infrastructural requirements according to Article 25.

Differences to the Paris Convention Compared to the Paris Convention, Annex H thematising customs was not included in the CIANA Convention. Neither operational nor infrastructural requirements for customs administration can therefore be derived. As per No. 36 of Annex D, aircraft are obliged to always circuit to the left. The Paris Convention prescribed a flag to be installed that should indicate the direction to circuit. On the one hand, this provision in the CIANA Convention leads to a uniform circuit procedure. On the other hand, operational flexibility is thereby limited, since the aerodrome cannot decide on the better circuit direction based on environmental aspects. Additional infrastructural requirements in comparison with the Paris Convention were made in No. 40 of Annex D. A ball must be implemented on a mast to indicate that there is no wind. Otherwise, a landing T90 must be established. The implementation of a ball was not defined within the Paris Convention. The Paris Convention introduced rules for visual aids. The CIANA Convention does also contain provisions for lighting requirements of aerodromes with some differences. According to No. 46 of Annex D, not only obstacles but also the whole aerodrome perimeter shall be denoted with red lights. Based on this provision, the complete aerodrome boundary is visible for pilots in the air. A further new provision is that the landing T had to be illuminated by three light positioned triangular. The lighting requirement of the

90 A landing T was an infrastructural element of an aerodrome. The landing T was installed on a pivot and suitable for turning in all directions. It was lined up with the wind direction and indicated to land along the shaft of the T towards the cross arm. Further information are available at http:// www.airwaysmuseum.com/Signal%20Square.htm, accessed on 10.10.2018.

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landing T evinces that also wind conditions during night and adverse weather operations were considered by the authors of the CIANA Convention.

2.3.4

The Pan-American Convention 1928

2.3.4.1

General

The Pan-American Convention91 on commercial aircraft was signed in 1928 in Havana and therefore entitled as the Havana Convention.92 The United States initiated this Convention. Thus, some American States did not join the Havana Convention because they did not want to be influenced by the United States. In comparison to the Paris Convention of 1919, there are also only minor differences in the Convention text. The major difference was that the Havana Convention did not introduce an independent body like CINA aiming to deal with oversight and law-making. Besides, the Havana Convention did not have any annexes. Eleven states ratified the Havana Convention until 1944. Till the beginning of the World War II, there was no aviation convention which was signed by all or the majority of states.

2.3.4.2

Comparison to the Paris and Ibero-American Convention

Equivalent to the Paris and Ibero-American Convention, flying into forbidden zones was not allowed as per Article 5 and 6 of the Havana Convention.93 If an aircraft enters a forbidden zone, it is obliged to land outside this area at the nearest so-called airdrome. This airdrome shall be considered as an international airport. Thereby, the pilot is notified through signals that the forbidden zone has been entered. However, the Havana Convention does not define characteristics of the signals. It is only defined as per Article 6 that the signals must be “agreed upon”. The Havana Convention does not give any guidelines on how and who has to give signals either. A clarification through annexes is not possible, since the Havana Convention does not entail technical annexes. The Havana Convention uses the terms international airport and airdrome within Article 6. However, it is not directly explained whether there is a difference between both. It is assumed that an international airport is an airdrome for which customs administration are provided and where international air traffic is possible. The evidence for that is laid down in Article 18. It stipulates that an aircraft engaged in

91

129 UNTS 225. In the following and for more details see Meyer (1944), p. 283ff.; Milde (2012), p. 12f.; Schladebach (2014), p. 74f.; Riese (1949), p. 86f.; Giemulla and Weber (2011), p. 64f. 93 Pan-American Convention on Commercial Aviation; Text published in Meyer (1944), p. 283ff. 92

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international traffic which enters the airspace of a Contracting State shall land on a customs airdrome. International airports, so-called ports of entry and departure, shall be notified to the Pan American Union that undertakes some tasks CINA does under the jurisdiction of the Paris Convention. Further, foreign aircraft shall obtain a clearance as required by the national laws in order to take-off from a port of departure under the jurisdiction of the Contracting State. The Havana Convention stipulates that national regulations can prescribe that no aircraft shall legally enter into or depart from aerodromes of the Contracting State other than those designated and communicated as ports of entry and departure. Especially landings shall only be made on these international airports expect when the competent authority has issued a special permit to land on other aerodromes. Two aspects can be derived from Article 18. First, states are granted with the right to establish own provisions within national regulation. Hence, flexibility is provided to them and favoured over uniformity. Second, for the first time, an oversight authority is directly mentioned in an air navigation-related convention which has to fulfil certain tasks as per Article 18. In accordance with Article 18, foreign aircraft can also be forced to land in case of flying over the territory of another Contracting States. Thus, forcing aircraft to land is not limited to the situation when an aircraft enters a forbidden zone. Again, signals shall require the pilots to land. Similarly, there is no definition for the types of signals. It is derived here that technically no explicit uniformity was targeted since many different versions of signals could be developed by each state. Hence, a pilot flying to an aerodrome of a Contracting State would have to be aware of national regulations. Moreover, aircraft commander, crew and passenger and cargo shall be obliged to immigration, emigration, customs, police quarantine or sanitary inspection as per Article 18. Thus, facilities for these authorities must be provided. A Contracting State can decide on an exemption from landing on ports of entry and departure for postal aircraft as per Article 19. This provision has not been provided in the Paris Convention. Article 21 prescribes that discharging passengers and cargo at international airports or ports of entry shall be possible. As a consequence, these processes need terminals and hangars to ensure this type of aerodrome operation. These derived requirements are new compared to previous conventions. Terminals are also directly mentioned in Article 30 of the Havana Convention. In regard to operational aerodrome requirements, Article 23 lays down that operation should be specified for an aerodrome by national law. This is another evidence that uniformity was not the main target of the Havana Convention because different operational standards could be developed in each Contracting State. The Paris Convention was more uniform by formulating Annex D with technical and operational provisions for all states which had been binding. Also contradicting uniformity is Article 12 of the Havana Convention. It allows states to establish own certification requirements for its aircraft. Agreed standards had not been manifested. Similar to all previous Conventions, the Havana Convention obliges states to prohibit higher aerodrome charges for foreign aircraft as per Article 24.

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2.3.5

Short Summary of Aerodrome Requirements in International Regulation Before the Chicago Convention

In conclusion, all introduced multilateral agreements had an impact on aerodrome planning requirements. The Paris Convention of 1919 had definitely more new aerodrome related provisions than the other conventions. The CIANA and Havana Conventions had some new rules but did not add many new requirements. The following bullet points summarise the new aspects that were introduced by the different conventions: The failed Paris Convention of 1910: • • • •

Declaration of forbidden zones Facilities for customs and police Landing in distress situation needs support from the ground Document examination by customs and police after landing The Paris Convention of 1919:

• • • • • • • • • • • •

Declaration of forbidden zones and designation of aerodromes to land on Distinction between international and national aerodromes Facilities for aerodrome operational personnel Equipment in order to establish aerodrome operations (e.g. lights, morsing equipment, projectiles) Same aerodrome fees for national and international aircraft Subdivision of an aerodrome into different areas (take-off area, landing area and neutral zone) Definition of visual aids (e.g. lighting requirements) Protection of obstacles through markings Definition of landing procedure by day and night, during adverse weather conditions, during distress and when landing is forced Procedure to warn aircraft nearing a prohibited zone Aerodrome operation restrictions (e.g. acrobatic landings) Definition of take-off procedure (departure in upwind, departure only when aerodrome is clear) The Ibero-American Convention of 1926 (CIANA):

• New Circuit Procedure only in one direction • Implementation of a ball to indicate no wind • Definition of new requirements for visual aids (lighting of aerodrome perimeter and landing T) The Pan-American Convention of 1928 (Havana): • Flexibility through establishment of national regulation • Introduction of a national oversight authority

2.4 Aerodrome Planning Within National Regulation

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• Postal aircraft allowed to land on aerodrome not designated as ports of entry or departure • Terminals for discharging passengers and cargo

2.4

Aerodrome Planning Within National Regulation

2.4.1

National Legislation Dealing with Air Navigation

After having presented the development of international aerodrome planning requirements in the first half of the twentieth century, it is necessary to examine whether states have implemented those requirements into their national legislation. Contemporary aviation law on the national level was introduced after World War I when commercial air traffic started.94 For instance, the following national aviation legislation had been enacted: the German Air Traffic Act in 1922 and the French Loi du 31 Mai 1924 réglementant la navigation aèrienne. The following section will analyse the national legislation of Germany, France, Italy and the United States of America. Germany was very well developed in technology and one of the leading states with regard to law-making of aviation until the end of WWI.95 France and Italy had a significant part in negotiating the principles of the Paris Convention of 1919 and signed as well as ratified the Convention.96 The choice of the United States of America is due to the fact that the United States did not ratify the Paris Convention of 1919.97 Hence, it is necessary to examine if this circumstance had an impact on the development of national aviation law with regard to aerodrome planning and on the development of aerodromes.

2.4.2

Germany

2.4.2.1

From Greenwards to Jet Technology

At the beginning of the twentieth century, there were no technical or legal requirements for aerodromes.98 Aviation started on military areas due to the fact that these were big enough as well as flat. In addition, spectators have been kept away through

94

Riese (1949), p. 10. Birmanns (2001), p. 31. 96 Cooper (1951), p. 269. 97 Ibid., p. 266. 98 In the following Delbanco (1998), p. 27. 95

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boundaries in order to ensure safety in case of an accident.99 Later, when military activities increased, flights were conducted on green fields.100 With the increase of aviation in the 1920s, aerodromes were improved by introducing greenswards to taxiways, by implementing visual aids for night flights and the development of facilities for maintenance, storage as well as administration and handling. The next major change for aerodromes was in the 1950s when jet technology was introduced.101 Aerodromes had to improve their runways and taxiway with regards to strength and length. Besides, aprons had to be improved since engines had impacts like heatwaves and jetblast. In addition, aprons had to be larger in order to serve the volume of traffic. Germany did not enter the CINA, but the Paris Convention had its influence on Germany.102 This is due to the fact that Article 319 of the Treaty of Versailles103 obliged Germany to enforce measures ensuring that German aircraft flying above German territory must comply with the same rules laid down in the Paris Convention.104 Further, foreign aircraft had based on Article 313 full landing freedom.105 Landings were until 1935 not restricted to happen on aerodromes only.106

2.4.2.2

1910 Ordinance of Prussia

The German Constitution of 1871 defined that provisions for aviation have to be made on behalf of the federal states.107 Only the signage of international aviation conventions should be under the responsibility of the government.108 Due to the fact that concerns regarding aviation had a safety and security related background, the Police of Prussia promulgated an ordinance on the 22nd of October 1910 in order to regulate air traffic with aircraft, airships, and balloons.109 The first airline of the world, namely “Deutsche Luftschifffahrtsaktiengesellschaft – DELAG”, started its operation in 1909 with commercial airship traffic.110 In the years before the First World War, DELAG carried out a large number of commercial flights. This increased the necessity to establish aviation law.111 Furthermore, the government

99

Treibel (1992), p. 7. In the following Delbanco (1998), p. 27. 101 In the following Birmanns (2001), p. 54. 102 Wegerdt (1930), p. 27ff. 103 9 LNTS 271; RGBl. 1919, p. 687. 104 See also Wegerdt (1930), p. 1. 105 For a summary of associated obligations of Germany see Schladebach (2014), p. 65f. 106 Schwenk and Giemulla (2019), p. 401. 107 Bethkenhagen (2004), p. 24. 108 Ibid., p. 53. 109 Ibid., p. 24f. 110 Ibid., p. 31ff. 111 Ibid., p. 33. 100

2.4 Aerodrome Planning Within National Regulation

35

had also military interests in aviation. Therefore, a National Aviation Donation Programme was initiated.112 The legally significant aerodrome in 1910 in Germany was in Johannisthal in the province of Brandenburg.113 The aerodrome accommodated flight competitions.114 The aerodrome operator at that time “Flug- und Sportplatzgesellschaft Berlin Johannisthal” contacted the Police President of Berlin in order to enact an ordinance.115 The operator wanted pilots conducting flights on its aerodrome to be certified in compliance with the provisions of the Fédération Aéronautique Internationale since they wanted to ensure that a pilot could fly safely because of spectators in the vicinity of the aerodrome. According to § 3, it was not allowed to fly beyond the aerodrome boundaries. Aircraft at that time could not always continue the flight process, and therefore, it was essential to fly only within the aerodrome area.116 This proves that persons in response gave thought to the definition of aerodrome boundaries in order to ensure operational safety as well as the safety of persons and objects outside the aerodrome. A landing in distress situation on a defined aerodrome is much safer than outside because the public could be negatively affected.

2.4.2.3

1914 Draft Version of Air Traffic Act

The increase in aviation required more regulation. Hence, a draft version of an Air Traffic Act was developed in 1914.117 The governance wanted to ensure national uniformity this way, instead of having different police ordinances.118 According to that draft, landings were allowed everywhere and not only on aerodromes.119 This rule was defined because there were still many emergency landings and an obligation to force pilots to only land on aerodromes would have limited the development of aviation.120 Notwithstanding, aerodromes had to be certified because safety had to be ensured for the pilot, spectators, as well as for further objects in the vicinity of an aerodrome. Two aspects had to be considered for certification and approval: possible obstacles in the vicinity of the aerodrome and the sufficient size of the aerodrome. In addition, the legislators assessed whether the operator is compliant with commercial policies. Consequently, not only the safe location of an aerodrome was important,

112

Ibid., p. 38. Ibid., p. 54f. 114 Schladebach (2018), p. 17. 115 In the following Bethkenhagen (2004), p. 54ff. 116 Ibid., p. 57. 117 Delbanco (1998), p. 43f. 118 In the following Bethkenhagen (2004), p. 103. 119 Also known as free landing right. 120 In the following Delbanco (1998), p. 44. 113

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2 History of Aerodrome Planning

but also the suitability of the aerodrome operator. This obligation has not been part of any international treaty before. The federal states had to certify the aerodromes.121 The most important considerations had been safety and defence. In case the military was against the approval, the aerodrome could not be built. The draft distinguished between two different types of landing fields. Landing and departure area which served for transportation through airships. These had been areas with a limited envelope. Aerodromes, the second type, were areas for exercising flights and developing aviation.122 This outlines that the idea of having different aerodrome categories with different purposes was existent in the beginnings of defining legal requirements for aerodromes.

2.4.2.4

1918 Temporary Air Traffic Ordinance

The first World War had a negative impact on the development of legal aerodrome planning requirements, as the draft of the Air Traffic Act could not be adopted.123 The technological development improved so that in 1918 a temporary ordinance was promulgated by the interior ministry124 in order to build a legal basis for increasing aviation.125 The ordinance was not as detailed as the draft version of the Air Traffic Act in 1914. Aerodromes, as well as departure and landing areas, were still in need of an approval. This time, the certification was issued on state level, since the national Civil Aviation Authority (CAA) had to approve.126 Federal states and municipalities were not responsible for the certification of aerodromes anymore. The government claimed that right for itself, since security was a critical topic after World War I. However, the ordinance did not lay down what is going to be proved and how the certification process will be structured. Further, the obligation of complying with commercial policies had been retreated.127 This ordinance also repealed regulation on federal state level—i.e. police ordinances like the aforementioned of Prussia.128 It was the first nationwide regulation.129 That being said, the aim of ensuring safety through standardisation developed at that time.

121

Birmanns (2001), p. 34f. Ibid., p. 34f. 123 In the following Delbanco (1998), p. 45f. 124 In German: Reichsamt des Inneren. 125 Delbanco (1998), p. 46. 126 In the following Birmanns (2001), p. 36. 127 Delbanco (1998), p. 46. 128 Bethkenhagen (2004), p. 203. 129 Ibid., p. 205. 122

2.4 Aerodrome Planning Within National Regulation

2.4.2.5

37

1922 Air Traffic Act

In 1922, the German Government reacted to the improvement of aircraft technology and aviation within the wartime.130 The first German Air Traffic Act131 was adopted.132 Germany had not been a part of the Paris Convention but nevertheless applied many provisions of the Convention within its national Air Traffic Act.133 Notably, the aim was to be able to conclude air traffic agreements which were laid down in the Paris Convention.134 According to § 1, the use of the airspace is free for all aircraft which means that everyone can use the airspace. In relation, one could think that landing and departure are also possible everywhere. However, the German legislator had some concerns regarding a free landing right. Since the air traffic increase was hazardous to passengers, crew and people on the ground. Technologically, a landing in adverse weather conditions or during night was possible but conducting this on an insufficient aerodrome could lead to many risks.135 Even in good weather conditions, the pilot had to be familiar with the landing area. Moreover, security, foreign and customs related issues were contradicting the idea of a free landing right, especially in times of border crossing flights.136 Also, the legislator wanted to assure the right of third persons having private land that could incur losses due to landing aircraft.137 Nevertheless, the legislator did not want to oblige landings only on aerodromes in order to keep the aviation development alive and because aerodrome infrastructure was not fully developed. In result, § 12 defined that landings outside aerodromes are only possible in case of emergency. In addition, within built-up areas landings are only possible on not walled properties. According to § 7, the implementation of an airport needs the certification by the government of the Reich and the federal state authority/the competent authority. The certification was denied in case the intended location is insufficient for the establishment or if the operation would be unreliable. This provision was not applicable to government enterprises which were established for public use. A certification was necessary to control the landing restriction at aerodromes.138 As per § 7, an aerodrome could lose its certification when there were unsafe infrastructural issues, or the operation was not credible.139 Moreover, there was no distinction anymore for the

130

Busse (1928), p. 54. RGBl. 1922 I, p. 681. 132 The text of the Air Traffic Act is included in Gottscho (1930), p. 11ff. 133 Zielke (1998), p. 29. 134 In the following Delbanco (1998), p. 46ff.; Birmanns (2001), p. 37ff.; Bethkenhagen (2004), p. 217ff. 135 Unruh (1934), p. 7. 136 Ibid., p. 9. 137 In the following Delbanco (1998), p. 48f. 138 Cloppenburg (2005), p. 1294. 139 Delbanco (1998), p. 48. 131

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2 History of Aerodrome Planning

terms “aerodrome” and “departure and landing area”. The Act distinguishes in § 7 between “airports” and “landing areas”, whereas airports are still supposed to be areas to conduct exercising flights on. The legislator declared in § 8 that the development of aerodromes is very crucial like ports for sea traffic and stations for trains.140 Conducted studies at that time agreed that aerodromes were more important for the development of air traffic than the development of airlines.141 Due to the fact that Germany had to pay reparations after the World War I, the legislator allowed private companies to build and operate aerodromes under the oversight of the government.142 Nevertheless, municipalities should hold shares in order to support private companies because airports were not rentable at that time.143 In regard to the construction of airports, there was a restriction derived from Article 180 of the Versailles Treaty.144 Aerodromes were not allowed to be built within 50 km east of the Rhine.145 The Allies had an interest in flying above and landing within German territories. As per § 8, an airport shall encompass a defined airport zone. In addition, facilities for police have to be provided gratuitously (see § 9). Provisions for the aerodrome operator had also been established. These are manifested in § 10 of the Act. The provision stipulates that the rules in § 26 of the commercial ordinance have to be followed. This is also binding for aerodromes that are not commercial but also public. In the 1930s, air traffic increased further, and airplanes became faster and heavier.146 Consequently, the legislator wanted to prohibit landings outside aerodromes. The aim was to ensure safety and to secure the rights of property owners. Hence, departure and landing were only allowed on aerodromes that were certified for a specific aircraft type (§ 12). With this amendment in 1935, certification was necessary for both infrastructure and operation. In result, the amendment led to flight operation on an appropriate aerodrome.

2.4.2.6

1930 Air Traffic Ordinance

The year 1930 witnessed the promulgation of the Air Traffic Ordinance,147 which defined detailed information on the certification of aerodromes. The airport is defined in § 35 as a system with facilities for take-off and landings of aircraft for

140

Ibid., p. 49f. Pirath (1931), p. 24. 142 Delbanco (1998), p. 50. 143 Birmanns (2001), p. 40. 144 225 CTS 188; UKTS 1919 4, p. 336. 145 Delbanco (1998), p. 50. 146 In the following ibid., p. 51. 147 RGBl. I, p. 363. 141

2.4 Aerodrome Planning Within National Regulation

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public or private use.148 An airport consists of a movement area for handling departure and landing of aircraft. Additional facilities necessary for the operation of aircraft as well as a so-called airport zone were defined in § 36. Public airports are divided into airport of the first order and second order in accordance with their size and type. Provisions for both types are manifested in Annex 6. If new constructions (buildings, masts, high voltage or communication facilities) or other disturbing facilities will be built in a perimeter of 0.5 km of the boundaries of the movement area of the aerodrome, the construction police authority or another competent authority shall contact the aerodrome operator before approval and shall negotiate and request an approval by the aviation authority (§ 37). The idea behind that was to assess the risks of new constructions that could endanger flight operation. This evinces that the idea of stakeholder consultation in case of construction was existent in the beginnings of defining aerodrome approval requirements as it is the case today.149 According to § 38, a certification basis had to be defined. It is highlighted that the safety of the location by investigating possible obstacles and the suitability of the aerodrome operator by evidencing its capability had been the most important certification aspects. The certification process is further described in §§ 39–46. It is defined how the different authorities interact with each other. Moreover, the ordinance determined responsibilities for the process (§ 40) and the role of the Minister of Traffic. For the first time in German history, the ordinance obliged aerodromes to be recertified in terms of changes to infrastructure or operation (§ 43). The aerodrome operator can be obliged to take measures to ensure public safety and regularity (§ 41). Hence, the aerodrome operator is responsible to ensure safe operation. The aerodrome operator does not establish measures of his own. The state must approve these as per § 42. In accordance with § 45, the aerodrome operation must be reliable. The personnel must be competent and credible. The federal state authority has the aerodrome oversight and can at any time inspect operations as well as infrastructure. The federal state authority can enact further provision for the airport or its vicinity to ensure safety (§ 46).

2.4.2.7

Annexes to the Air Traffic Ordinance of 1930

Annex 6 to the ordinance introduced infrastructural requirements for an aerodrome and its vicinity. According to § 1, aircraft operating at first order aerodromes shall have the possibility to taxi 600 on movement area in all directions before taking off with a gradient of 1:15. The movement area shall have no swampy surface conditions during adverse weather, as well as no debris on the surface. The probability of

148

Text of the ordinance included in Gottscho (1930), p. 43ff. For more details concerning today’s aerodrome approval process see Schladebach (2018), p. 133.

149

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the development of fog should be reduced. These provisions shall ensure aircraft safety on the aerodrome and in its vicinity. Obstacles in the vicinity of the aerodrome should also be denoted as per § 2 where it states that no obstacle shall be within 1.5 km of the movement area. Obstacles have to be denoted if they penetrate a 1:15 surface from the aerodrome. The idea of having obstacle limitation surfaces was not defined in the aforementioned conventions and is new in this context. It is one of the main topics in today’s international aerodrome regulation.150 Further provisions were made for visual aids (§ 5) and required equipment and facilities (§ 6). In § 8, there were some minimum requirements defined for aerodromes of the second order. Moreover, the legislators defined important standards in order to plan different parts of the aerodrome—namely the airport zone and the movement area. Contrarily to the conventions, detailed provisions were made for repair halls, energy supply systems and first aid. The legislator, though, did not link these infrastructural requirements with the obligation of aerodrome certification in § 7 of the Air Traffic Act. This link was introduced later in 1936 when both regulation and ordinance were amended and promulgated together.

2.4.3

France

2.4.3.1

1920 Order Regulating Air Navigation in France

In the 1920s, the Under-Secretariat of Aeronautics and Air Transport was the official body of air navigation services in France.151 Every month, an Air Navigation Bulletin was published in which inter alia new worldwide regulations were published as well as aeronautical maps provided. The first relevant regulation in France after the adoption of the Paris Convention in 1919 was the Order regulating Air Navigation in France in 1920.152 The President of the Republic of France enacted this Order based on the report of the Minister of Public Works, the Minister of the Interior, the Minister of War and the Minister of the Navy. The French State distinguished between public and private aerodromes. Public aerodromes are made available to pilots by the state, departments and municipalities. These aerodromes have been under the direct control of the State. Private aerodromes are those established by individuals, either for personal use or for transportation service. Except in cases of force majeure, aircraft may not land on private aerodrome unless there is a prior authorisation of the owner as per Article 17. The 150

See ICAO, Annex 14—Aerodromes, Vol. I—Aerodrome Design and Operation, 8th edition, 2018, Chapter 4. 151 In the following Sous-secrétariat de l’Aéronautique et des Transports aériens, Bulletin de La Navigation Aérienne, 1920, p. 33. 152 The text of the order is included in ibid., p. 33f.

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41

Under-Secretary of State for Aeronautics and Air Transport had the responsibility for the air navigation sector. This is derived from Article 17 in which it is stipulated that no private aerodrome may be created or used as a place of landing or departure by aircraft intended for public transport without an authorisation. If private aerodromes are operated commercially, user fees must be approved by the Under-Secretary of State. In addition, an air navigation control officer must be appointed at the aerodrome at the expense of a transport company. The oversight was the responsibility of the authority which verified user fees and authorised aerodromes. According to Article 18, landing on a state aerodrome, the shelter of an aircraft, the use of the various installations of the aerodrome and the repairs, give rise to taxes. The detailed tariffs and the method of payment of these fees are subject to orders of the Under-Secretary of State for Aeronautics and are posted in each aerodrome. The same rules apply to aerodromes belonging to departments and municipalities. The reason of implementing these rules is definitely that the authority wanted to ensure that no indifferent fees for national foreign aircraft are being defined. This obligation is derived from Article 24 of the Paris Convention.

2.4.3.2

1920 Order Regulating Air Traffic, Lights and Signals

In the same year, the Under-Secretary of State for Aeronautics and Air Transport published a further Order regulating Air Traffic, Lights and Signals.153 Chapter V of this regulation thematises air traffic rules above or in the vicinity of aerodromes. As per Article 5, each aerodrome shall raise a flag on a high point, which shall give the aircraft aiming to land or depart from the aerodrome, the indication that a turn must be made to the left (indicated by a red flag) or right (indicated by a white flag). The same provisions were also valid for the night with the difference that red light (left) and green light (right) shall indicate circuit direction as per Article 45. Moreover, an aircraft shall not turn within 500 m of the nearest point on the perimeter according to Article 36. Acrobatic landings were prohibited on state aerodromes. It was also forbidden for aircraft to engage in acrobatic exercises within 2000 m of the nearest point of one of these aerodromes (Article 37). Further infrastructural requirement was a wind direction indicator (Article 39). That said, the legislator also prescribed the aerodrome layout in Article 44. Any aerodrome is virtually divided into three zones. The right zone will be the take-off zone, and the left zone, the landing zone. Between these two zones, there will be a neutral zone. An aircraft intending to land should do so as close as possible to the neutral zone, but to the left of any other aircraft that has already landed. Having slowed down or finished rolling on the ground, the aircraft will immediately proceed to the neutral zone. Similarly, an aircraft that departs will do so in the right-most part of the departure

153

The text of the order is included in ibid., p. 86ff.

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area, while remaining clear to the left of any other aircraft being or about to be removed as per Article 43. As a matter of fact, these provisions clarify how France implemented the infrastructural obligations defined in technical Annexes of the Paris Convention domestically. The same also applies to the introduction of operational requirements laid down in the Paris Convention, as follows: It has been prescribed according to Article 40 to depart and land upwind. In addition, it was manifested that when two aircraft approach an aerodrome the highest must manoeuvre, as per Article 41. During a distress situation, an aircraft was guaranteed free landing through Article 42. Article 44 lays down that no aircraft shall start before the aerodrome is free.

2.4.3.3

1920 Provisional Regulation of Operational Conditions and Use of State Aerodromes

Overview A further relevant regulation was enacted in 1920. The Provisional Regulation of the Operational Conditions and Use of State Aerodrome. The regulation retreated all the provisions adopted before. This regulation contained two chapters and four annexes:154 • • • • •

Chapter I—General provisions Chapter II—Sanctions Annex A—Domestic Aerodrome Regulations Annex B—General Air Traffic Regulations on and in the Vicinity of Aerodromes Annex C—Control Measures For Aircraft Landing At Or Departing From A State Aerodrome • Annex D—Taxes for the Use of the Aerodrome Due to the fact that most of the provisions remained the same compared to the first two orders, the upcoming section will only highlight some of the difference and innovations presented.

Differences to the Aforementioned Orders of 1920 This regulation witnessed the classification of two different aerodrome types. Public airfields were owned by the state and made available by the Air Navigation Service, which ensured the establishment and operation (Chapter I, Article 1 and 2). The second class of aerodromes are state aerodromes that include facilities leased to shipping companies accommodating facilities for aircraft in transit. Hereby, the legislator linked the regulation to the Paris Convention as aircraft from all

154

In the following ibid., p. 111ff.

2.4 Aerodrome Planning Within National Regulation

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Contracting States will find a shelter, fuel and depending on the size of the aerodrome, a set of usual spare parts and a repair workshop. According to Article 3 of Chapter I, equally national and foreign aircraft will have to pay fees for used services of the aerodrome in accordance with Annex D. This Annex includes for instance fees for the parking of an aircraft on an aerodrome. Air Navigation Companies will be held responsible for offences committed by their staff. The whole regulation was binding. The evidence for that is laid down in Article 4 where it says that the personnel of the Air Navigation Companies having their base at the aerodrome and the pilots of aircraft landing on or departing from the aerodromes have to comply with the instructions and rules specified in Annexes A, B, C. In case of violation there are penalties defined and application of the sanctions provided in Chapter II. Sanctions were imposed in case of non-compliance with the provisions. They start with a suspension for a more or less long period of time to a ban on landing at any state airfield as per Article 1. For foreign companies whose personnel do not comply with the present regulations, sanctions would be imposed and communicated to their governments. Annex A provided important rules for roles and responsibilities which must exist at an aerodrome. Thereby, state airfields are placed under the direction of an airfield manager who is the delegate of the Air Navigation Service. In addition, the head of the aerodrome has to be nominated. He/she is responsible for the operation of the various organisations and installations like rented facilities, repair services, day and night lighting, signalling, land and radio links and meteorology. Consequently, he/she shall take all appropriate measures inside the aerodrome to ensure efficient aerodrome operation on a stable aerodrome infrastructure (Article 2). According to Article 3, there will be an information exchange between the police and the aerodrome head related to movements on the aerodrome. The head of the aerodrome shall ensure physical security and the proper maintenance of common or rented premises and shall take all appropriate measures to that effect. This means that the aerodrome head has a significant role in maintaining compliance and adequate standards at the aerodrome. Further, responsibilities and oversight rights are defined in Article 5 and Annex C. In Article 6, it is stated that Air Navigation Companies shall have a designated representative at the aerodrome. This representative must attend the departure and arrival visits of all aircraft belonging to his company. He is the first contact person of the aerodrome head. This provision ensures collaboration between the aerodrome operator and associated stakeholders. Annex B contains the same infrastructural and operational requirements mentioned above in the first two orders added with some further provisions already mentioned in the Articles and Annexes of the Paris Convention of 1919.

Conclusion A new approach which was foreseen in France with this order is to define a dedicated regulation for aerodromes. This was new to the air navigation community because

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legal requirements for aerodromes had always been defined as part of the air navigation regulation. Aerodrome operators and stakeholders at an aerodrome had with this method a single document to work with. The legal requirements itself were entirely in accordance with the provisions of the Paris Convention of 1919. But also, some new requirements were established. The regulation did not only prescribe provisions for aerodrome personnel but also for aerodrome stakeholder like for instance shipping companies. If any personnel did not adhere to the regulation sanction would be fined. The Paris Convention had prescribed punishment in case of non-compliance. The French orders thereby adopted this provision.

2.4.3.4

Law on Air Navigation of 31 May 1924

The first law related to aviation was the Law on Air Navigation of 31 May 1924.155 It was promulgated by the President. This law adopted many provisions of the Paris Convention in 1919. For instance, according to Article 8, aircraft of foreign nationality shall not fly over French territory only if this right is granted to them by a treaty or if they receive for this purpose an authorisation. In addition, many further provisions were defined in order to develop an air navigation system. Inter alia, the law declared the aircraft operator as guarantor for the safety of passengers and cargo156 and defined more issues regarding liability. For aerodromes, the provisions had a more general character and did not contain, for example, requirements to be fulfilled by the aerodrome operator like in the ordinances introduced before. The law notably defines that certain issues have to be defined through ordinances. As per Article 20, the location and extent of the prohibited areas shall be specifically indicated in an order.157 This Article also contains the provision binding a pilot to land at the nearest aerodrome outside the restricted area. According to Article 24, except in cases of force majeure, aircraft may land or depart only at aerodromes for public use or at a private aerodrome. This evinces that landing was restricted to happen on aerodromes. Article 27 lays down that a public airfield is created by the state, departments or municipalities. Departmental and municipal aerodromes may be established only with the authorisation of the Minister of Transport and are subject to the supervision of the state. That having been said, the state was responsible to certify aerodromes. The land that is required for the establishment of public aerodromes may be provided and declared as being in the public interest by an associated order as per Article 28. This way aerodrome development should be motivated.

155

In the following Sous-secrétariat de l’Aéronautique et des Transports aériens, Bulletin de La Navigation Aérienne, 1924, p. 815ff. 156 Gardner (1953), p. 43. 157 In the following Sous-secrétariat de l’Aéronautique et des Transports aériens, Bulletin de La Navigation Aérienne, 1924, p. 815ff.

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In Article 30, it is specified that international air transport has to depart and land on designated international airports. This provision is also derived from the Paris Convention of 1919. The same applies to the provision requiring verification of documents as per Article 35 and further processes related to police and customs administration as per Article 36. Laws as well as orders in France were in full compliance with the Paris Convention.

2.4.4

Italy

2.4.4.1

1922 Acts, Regulations and Provisions on Aerial Navigation

Aerodrome Infrastructure In 1922, Italy introduced Acts, Regulations and Provisions on Aerial Navigation in order to establish Air Traffic Regulations. As per Article 1 of the Air Navigation Act, the regulation was applicable in the national territory and in all colonies of Italy.158 Thereby, any violations shall be punished through penalties as per Article 38. The legislator also commits the aerodrome operator to investigate any violations (Article 39). Hence, aerodrome operators were obligated with special duties. According to Article 18, at each aerodrome flags, signals and light for navigation have to be provided. These items belong to visual aids. Further, Article 23 prescribes a wind direction indicator and as per Article 27 a landing T in order to indicate the landing and take-off direction. In accordance with Article 31, the aerodrome also had to provide signals in order to be visible for pilots. These signals will be determined by the competent authority which had oversight duties as per Article 31. An illuminated red light should indicate to pilot to circuit right and a green light to circuit left. These rules apply to night landings at aerodromes as per Article 33. During operation by day, a white flag indicates a right and a red flag a left circuit as per Article 19. The legislator developed a system for operation by day and night. Article 34 contains further infrastructural requirements.

Aerodrome Operation Operationally, aircraft were only permitted to land or to take off from an aerodrome if there is no risk of collision with other aircraft according to Article 15. In addition, aircraft should only turn within 500 m of the perimeter of the aerodrome according to Article 20. Acrobatic landings were prohibited (Article 22) and departures, as well as landings, should only be conducted upwind (Article 24). The legislator also gave

158

In the following Sous-secrétariat de l’Aéronautique et des Transports aériens, Bulletin de La Navigation Aérienne, 1922, p. 391ff.

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thought to the situation in which two aircraft near an aerodrome as per Article 25. Hence, the higher aircraft shall manoeuvre to avoid the aircraft flying at a lower level. In case of aircraft distress, the aerodrome is obliged to provide a free field for landing at an aerodrome after receiving a distress signal (Article 26). A further obligation of the aerodrome operator is to ensure that the take-off zone is made free after landings as per Article 29. Aircraft have to be carried to the hangars immediately as per Article 30. This was defined for safety reasons. Article 36 contains many restrictions which must be ensured during aerodrome operation. The analysis derives that the Italian Act was in full compliance with the provisions of the Paris Convention.

2.4.5

Other European States

During this research, national legislation of other European States has also been analysed like the National Aviation Acts of Spain and Belgium in 1919 and Ireland in 1920. All states that became parties to the Paris Convention of 1919 enacted national laws, acts and orders that were in accordance with the Paris Convention 1919.159 Notwithstanding, also non-contracting states like the USSR developed regulations based on the Paris Convention. Most of all regulations contained the title “for the regulation of air navigation.”160 A tendency proving that states tried to develop separate own requirements could not be manifested. Due to the fact that the provisions for aerodrome planning were equivalent to the provisions in Italy, France, and Germany, the national laws are not going to be analysed further in detail. The research also scrutinised if there were cases in which heterogeneity of aerodrome infrastructure and operation was reported in these states. This was not the case. It is therefore concluded that adherence to international aviation law has a positive impact on the development of technically homogenous aerodromes and consequently on uniformity.

2.4.6

United States of America

2.4.6.1

United States and a Different Approach

Legislative actions in the United States and internationally had a substantial impact on the development of civil aviation—and in particular aerodrome planning.161 The Post Office Department conveyed its interest in civil aviation in 1911. The purpose

159

See also Pepin who draws the same conclusion. Pepin (1957), p. 2. Ibid., p. 3. 161 In the following Horonjeff et al. (2010), p. 17. 160

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was to transport mail by air. Between Washington, D.C. and New York City, the first air mail route in the United States was established. Operations had been accomplished by the War Department before handing out the services to the Post Office Department at the end of 1918. The route was extended to the cities Chicago in 1919 and to San Francisco in 1920. In 1921, the State of Oregon set up a responsible agency for aviation.162 Since then, all states founded aviation authorities either as divisions, bureaus, commissions or departments. These authorities had different responsibilities covering topics such as planning state airport systems, providing state aid to local airport authorities, constructing and maintaining navigational equipment, enforcing safety regulations, and licensing airports. The Post Office and the military motivated local interests between 1919 and 1926 to build aerodromes.163 They did not have financial capabilities to build facilities that could support air mail or military aviation training on their own. Therefore, they persuaded localities by emphasizing the idea that aerodromes are going to be necessary for urban development. There was a lack of development of landing areas which should support the rapid development of air traffic after the first World War.164 When the Air Commerce Act was enacted in 1926, aerodromes were being built already for 7 years.165 In the 1920s, local private interests and local governments built and maintained aerodromes.

2.4.6.2

From the Paris Convention of 1919 to the Air Commerce Act of 1926

The extent of the United States’ participation in the preparation and drafting of the Paris Convention was significant.166 The delegates of the United States of America took a leading part in urging the adoption of certain basic principles of the Convention. The United States signed the Convention but did not ratify it. Members of the US Aviation Committee could not understand why the United States did not ratify the Paris Convention.167 This is due to the fact that they recognised that a close follow to the development European States took in aviation is crucial as well as that the international nature of aviation requires a uniform Air Code. In 1919, aerodromes in the United States were simple but large facilities with a minimum set of equipment.168 There was no national regulation on how to build

162

In the following ibid., p. 36. Bednarek (2001), p. 6. 164 Lehrer (2014), p. 46. 165 Bednarek (2001), p. 6. 166 In the following Cooper (1951), p. 266. 167 Davis (1923), p. 421. 168 Bednarek (2001), p. 12. 163

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airports.169 In order to develop aerodromes, the Army Air Service developed and published in 1923 a profound guidance manual on airport construction—namely “Airways and Landing Fields”.170 The Army Air Service distributed thereby guidelines on “How An Airport Should Be Built.” The manual entailed some minimum standards such as size, location, shape, as well as markings, approaches and accommodations. The aerodrome should be located “within reach of ground transportation facilities, for the aerial transportation of passengers and merchandise [was] closely linked with these conveyers of commerce.” Further, the location should provide space for future growth and “should allow a clear, unobstructed area of about 2,700 feet along the direction of the prevailing wind, if not in all directions.” Although pilots could take off from shorter fields, more area should be provided due to the possibility of an engine loss during take-off.171 The optimal shape of a field was a square characterised by equal length for landing and take-offs. This configuration should allow landings and take-offs in all directions. Other shape options comprise fields with a L-shape, rectangular, or triangular. All options were documented under the title the “Four Types of Ideal Landing Fields.” In addition, the aerodrome surface should be suitable for aircraft operation during any weather conditions as well as “level and fairly smooth.” The development of airports should not be at locations where high buildings or other obstructions could interfere with aircraft on approach or during departure. Visual aids were also considered. Thus, the field should accommodate a large white circle in the middle of the landing area. The landing direction should be indicated by wide panels within the circle. Besides, the wind had to be indicated either by a wind cone, a landing T or smudge fire. Further recommendations were made for communication systems, transportation facilities, gasoline, oil supply as well as sun-dry supplies. The establishment of the field could be extended through hangars and shops. All these technical guidelines did not have any binding force.

2.4.6.3

The Air Commerce Act of 1926 as Amended 1938

A count in 1924 delivered that eighty of the larger cities had established aerodromes.172 These were built in different circumstances and in different ways. Federal aid was not given. The idea was that local interests, either public or private, should accomplish the establishment of aerodromes. In addition, federal regulation “though called for, failed to materialize.” The various state legislation was different.173 In some cases, local governments and in other cases, cities and counties had the central

169

Bednarek mentions that all attempts were initiated by the Post Office and Air Service before 1926. 170 In the following Bednarek (2001), p. 23f. 171 In the following ibid., p. 23f. 172 Ibid., p. 40. 173 In the following ibid., p. 42.

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role in airport development. Between 1925 and 1927, the aerodrome operators held meetings in order to define general aerodrome operation principles. Also, the Aeronautics Branch of the Department of Commerce followed attempts to standardise aerodrome development. Despite these attempts to establish standardisation, variation in aerodrome planning remained because cities worked out how and who to build the airports. But not only infrastructure was negatively affected, also aerodrome management was administrated in different ways. This raised the question of who should manage aerodromes. In this matter, there were two different approaches. First, aerodromes were managed as parks by the park department. Second, the idea existed that aerodromes were strict transportation facilities and therefore were in need of being managed by transportation experts. In 1926, the first federal Air Commerce Act was enacted.174 The government approached the draft through an analogy to former water navigation regulations. These had comprised rules for visual aids,175 safety inspections, support for the development and improvement of ports and provisions regarding the operations.176 Local governments or the private sector of economy were responsible for the provision of docks and terminal facilities. The federal government did not see a role for itself in providing airports.177 Consequently, aerodromes were held analogous to the docks of water transportation.178 The oversight was assigned to different agencies. For instance, the Post Office Department had been responsible for airmail contracts, whereas the Bureau of Air Commerce in the Department of Commerce administrated registration, certification and airways. Hence, a lack of coordination was adherent. Besides, the Act prohibited direct federal funding for aerodrome development. The Air Commerce Act distinguished between two kinds of aerodromes. First, there is an airport which should mean any locality on land or water established for landings and take off of aircraft providing facilities for shelter supply, aircraft repair and places for discharging passengers or cargo (Section 9 (g)).179 The second class of aerodromes is associated with emergency landing fields that are established for landing and take-off of aircraft and located along an airway intermediate to airports connected by the airway. This class of aerodromes had limited requirements as they did not need facilities for shelter supply, repair and facilities for discharging (Section 9 h). Aerodrome planning requirements like those introduced through the Annex D of the Paris Convention were thereby not included in the Act. In the late 1920s and early 1930s, the Aeronautics Branch set basic requirements for aerodrome

174

In the following Horonjeff et al. (2010), p. 18. Visual aids include signing, marking, and lighting. 176 In the following Horonjeff et al. (2010), p. 18. 177 Ashford et al. (2011), p. 6. 178 In the following Horonjeff et al. (2010), p. 18. 179 The text of the Air Commerce Act of 1926 as amended 1938 is included in Hotchkiss (1938), p. 171ff. 175

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construction in a series of non-binding bulletins instead of “mandating acts” or “strong regulation”.180 The aim of the bulletins was to achieve some uniformity. The Air Commerce Act had committed the Secretary of Commerce to rate aerodromes in the United States. Thus, the Aeronautics Branch established a rating system.181 It stipulated that aerodromes should at least have a sufficient landing area which is “a smooth, well-drained landing area, sufficiently firm to permit the safe operation of aircraft under all weather conditions, approximately level, and free from obstructions or depressions presenting hazards in the taking off or landing of aircraft,”. Additionally, the airport should be connected to the nearest city, provided “with a wind direction indicator, adequate markings, runways (. . .), drainage, and adequate provisions for fuel, communications, transportation to the nearest city or town, and personnel.” The rating system contained three categories:182 “equipment and facilities, size of effective landing area, and lighting equipment.” However, rating of aerodromes was voluntary. Only in case an airport issued an application, the aerodrome could be rated. According to an article by the Military Air Services in 1932, cities only applied to aerodrome rating if they knew they would get a good rating. The participation of a high number of airports was key for the improvement and standardisation aim of the Department of Commerce’s airport rating system. But unfortunately, only 5% participated until 1932. In addition to the rating system, the Aeronautics Branch tried to establish standardisation and uniformity through publishing information regarding “airport management, rentals, concessions, and field rules.” Here also, there was no binding effect.

2.4.6.4

The Uniform Airport Act of 1935

The federal government’s role in developing municipal airports remained weak in the late 1920s and into the early 1930s.183 The Aeronautics Branch only offered cities voluntary support in form of information and suggested standards within air bulletins. It just encouraged all cities to build at least any way of aerodromes. In the bulletin “Suggested City or County Aeronautics Ordinance and Uniform Field Rules for Airports” in 1929, the Aeronautics Branch opened a discussion on the necessity of uniformity.184 In this context, the Airport Section was developed consisting of five persons that “assist municipalities and others interested in airport development in the selection of sites, and to offer advice concerning the proper methods of construction.”185 However, they could only fulfil their duty when being asked for. They travelled through the United States to support evaluating potential aerodrome

180

Bednarek (2001), p. 45. In the following ibid., p. 45. 182 In the following ibid., p. 46f. 183 In the following ibid., p. 46ff. 184 In the following ibid., p. 47. 185 In the following ibid., p. 48. 181

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sites. It has to be mentioned that five employees were not enough to cover the whole United States. The early 1930s witnessed the development of the Federal State Airport Program.186 It was initiated due to the fact that airports in the United States were not standardised. It was considered as an opportunity at this time to build a constructive, homogeneous, standardised network of airports throughout the United States. The target of the programme was to establish and develop new airports at centres of population of 10,000 or over which possess no airports at that time.187 The Department of Commerce had the perception that it is not possible to sell aircraft where no airports exist. New airports should create the potential market for aircraft. The degree of control granted to the municipalities empowered to construct and maintain airports has again varied from state to state.188 In order to counteract this trend, the Uniform Airport Act of 1935 was enacted.189 Power was granted to local bodies to adopt regulations and establish charges, fees and tolls for the use of airports and landing fields, penalties for the violation of said regulations and establish liens to enforce payment of said charges, fees and tolls. According to the prefatory note, the Act shall provide acquisition, construction, operation, and regulation of airports and landing fields for the use of aircraft, by municipalities, counties and other political subdivisions. As per Section 5, counties, municipalities, or other political subdivisions that have established or will establish airports or landing fields are authorised to construct, equip, improve, maintain and operate the same. The provision thereby does not provide technical and operational rules for aerodromes—similar to the aforementioned national and international regulations. The whole Act only defines general rights for establishment, construction, operation and funding without defining contextual planning requirements.

2.4.6.5

The Civil Aeronautics Act of 1938

The first real effort to plan the US aerodrome system apart from individual aerodromes had begun to emerge with the Civil Aeronautics Act of 1938,190 which reorganised the aviation oversight.191 The Act established one independent agency in order to regulate air transport, namely the Civil Aeronautics Authority.192 In accordance with the Act, federal governments had been authorised to develop, operate, and maintain airways. However, a mandate to actively aid airport development was still missing. Section 303 of the Act authorised federal funds for the

186

Wynne (1935), p. 538ff. Ibid., p. 539. 188 Grover (1934), p. 426. 189 Text is available at https://www.nap.edu/read/22735/chapter/1, accessed on 12.12.2019. 190 The text of the Civil Aeronautics Act of 1938 is included in Hotchkiss (1938), p. 191f. 191 Caves and Gosling (2008), p. 6. 192 In the following Horonjeff et al. (2010), p. 18f. 187

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construction of landing areas only when the administrator who was the person in lead within the Civil Aeronautics Authority certified “that such landing area was reasonably necessary for use in air commerce or in the interests of national defence.” According to Section 302 c), the authority shall through the administrator make a field survey of the existing airport system and shall present the results containing recommendations to the Congress. The main question was “as to whether the Federal Government should participate in the construction, improvement, development, operation, or maintenance of national airport system, and if Federal participation is recommended, the extent to which, and the manner in which, the federal government shall so participate.” These are some of the recommendations of the resulting survey report:193 1. Development and maintenance of an adequate system of airports and seaplane bases should be recognized in principle as a matter of national concern. (. . .) 2. In passing upon applications for federal expenditure on airport development or improvement, the highest preference should be given to airports which are important to the maintenance of safe and efficient operation of air transportation along the major trade routes of the nation; and to those rendering special service to the national defence. (. . .) 3. The detailed plans for the location and development of any airport with respect to which there is federal contribution of any kind, should be subject to the approval of the federal agency charged with the establishment of civil airways, landing areas, and necessary air navigation facilities. 4. There should be no direct federal contribution to the cost of maintaining airports, other than federal airports; except that the administrator of the Civil Aeronautics Authority may, in accordance with the Civil Aeronautics Act and so far as available funds permit, assume the cost of operating any lighting equipment and other air navigation facility as a part of the cost of operation of the federal airways system.

Apparently, till the end of 1930s, the US had heterogeneous aerodromes. Clear binding provisions for the construction, the management and the maintenance of aerodromes like the introduced regulation in Europe had not been enacted. Only the results of the survey revealed that aerodromes are a national concern.

2.4.6.6

The Way to the Chicago Convention of 1944

During the war, many other studies and examinations had been conducted.194 In consequence, the federal government spent $353 million on development of landing areas. The Civil Aeronautics Authority built more than 500 airports for the military which were handed over to cities and states for civil use. In addition, the interest in airport facilities was delivered to Congress.195 In reaction, the Federal Airport Act

193

Ibid., p. 19ff.; House Document 245, 76th Congress, 1st Session. In the following ibid., p. 21. 195 In the following ibid., p. 21. 194

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was promulgated in 1946 which was also known as the Federal Airport Aid Program, in which $500 million were provided for airport development across the country and additional $20 million in Alaska, Hawaii, Puerto Rico, and the Virgin Islands.196 Both, the Paris and the Havana Convention, had a positive impact on aviation.197 However, the US government had the perception that these regulations are not adequate for the time after World War II because of the development in aviation. Technical and navigational requirements should be based on an international agreement. The international air traffic at that time increased mainly in Europe because the short distances were in line with the technical capabilities of aircraft. US Vice President Wallace presented a seven-point programme for the time after the war containing topics like:198 1. The banning of Germany and Japan from building airplanes and from any form of air traffic. 2. The establishment of an international aviation authority. 3. Internationalisation of the main global airports. 4. The creation of an international air police (United Nations Peace Air Force). 5. Internationalisation of aviation. President Roosevelt joined the discussion in 1943. In his opinion, free airspace meant that the airports could be used irrespective of their owners. Further, he created a commission with the task to work on future aviation question. Inter alia, the commission recommended the establishment of a special airport authority by the United Nations (UN) that should be responsible for financing and administration of certain internationally significant airports as a trustee. The commission also pledged to call for an international conference on aviation to clarify all aviation issues. This conference should provide regulation and repeal former conventions. Many topics that were variously regulated by the states or not regulated at all on the international level should be thematised.

2.4.7

The Target of Establishing International Aerodrome Requirements

In comparison to multilateral conventions, national legislation thematised provisions in greater detail. This inter alia applies to the definition of roles and responsibilities. The airport situation and aerodrome provisions of the United States of America were analysed due to the fact that the Paris Convention of 1919 was not ratified. The fact of not ratifying and adhering to the Paris Convention of 1919 will have had an 196

Ibid., p. 23. In the following Giemulla and Weber (2011), p. 12f. 198 In the following ibid., p. 12f. 197

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impact on the adverse aerodrome situation in the United States. The United States only signed and ratified the Havana Convention.199 However, the Havana Convention differs remarkably from the Paris Convention, since the latter mainly dealt with technical and operational issues of aviation. In contrast, the Havana Convention focused on traffic right and grating the right for foreign aircraft to discharge passengers and freight at any airport authorised as a port of entry within the other Contracting States. Further and as aforementioned, uniformity in the Havana Convention was not given the high priority as it was within the Paris Convention. Three relevant US Acts were analysed, and none of them contained the provisions the European States were applying. The Military Air Service provided requirements for aerodrome planning which covered many planning topics discussed in Europe. Nevertheless, these guidelines were only defined as recommendations and were not binding or legally established. This shortcoming contributed to the construction of aerodromes in many different ways because localities were working out on where and how to build aerodromes. The main target of international aviation law is standardisation as this is the main ingredient for safety. Uniformity, itself, will thereby result in a safety benefit.200 Uniformity could, in this context, not be achieved in the United States, although many attempts were made. Many different entities have initiated standardisation attempts in the US. Even the aerodrome operator tried to work on common principles, but aerodrome planning and operation still varied. Apparently, it is more convincing if aviation law and particularly aerodrome regulation are enacted and promulgated by the main state entity responsible for transportation on a nationwide basis. Further, responsibilities should be clearly defined. A large nation like the United States might have benefited from a clear legal order with regard to requirements of aerodrome planning.

References Ashford NJ, Mumayiz SA, Wright PH (2011) Airport engineering: planning, design, and development of 21st century airports, 4th edn. Wiley, New Jersey Bartsch RIC (2016) International aviation law: a practical guide. Ashgate, Surrey Bednarek JRD (2001) America’s airports: airfield development, 1918–1947. Texas A&M University Press, Texas Bentzien JF (2001) Das internationale öffentliche Luftrecht als Teil des Völkerrechts. In: Benkö M, Kroll W (eds) Luft- und Weltraumrecht im 21. Jahrhundert. Heymanns, Cologne, pp 3–24 Bethkenhagen K (2004) Die Entwicklung des Luftrechts bis zum Luftverkehrsgesetz von 1922. Lang, Kiel Birmanns S (2001) Internationale Verkehrsflughäfen: Völkerrechtliche Verpflichtungen und innerstaatliche Einflußnahmemöglichkeiten des Bundes hinsichtlich kapazitätserweiternder Maßnahmen. Duncker & Humblot, Berlin

199 200

In the following Milde (2012), p. 12f. Riese (1949), p. 65.

References

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Bogert GG (1920) Problems in aviation law. Cornell Law Q 6:271–309 Busse R (1928) Luftrecht. De Gruyter, Berlin Caplan H (2009) The crime of flying the way forward to 1784. Air Space Law 34:351–370 Caves RE, Gosling GD (2008) Strategic airport planning. Pergamon, Oxford Cloppenburg J (2005) Sind Flughäfen öffentliche Sachen? DVBl. 120:1293–1302 Cooper JC (1951) United States participation in drafting Paris Convention 1919. JALC 18:266–280 Cooper JC (1952) The international air navigation conference, Paris 1910. JALC 19:127–143 Davis WJ (1923) The Civil Aeronautics Act of 1923. ABAJ 9:420–422 Delbanco H (1998) Die Änderung von Verkehrsflughäfen. Duncker & Humblot, Berlin Dobson A (2017) A history of international civil aviation: from its origins through transformative evolution. Routledge, New York Fauchille P (1901) Le domaine aérien et le régime juridique des aérostats. A. Pedone, Paris Fortier R (2004) The balloon era. Canada Aviation Museum, Ottawa Gardner ER (1953) Comparative air law. JALC 20:34–57 Giemulla EM, Weber L (eds) (2011) International and EU aviation law. Kluwer Law International, Alphen aan den Rijn Gottscho E (1930) Luftverkehrsrecht: Luftverkehrsgesetz und Luftverkehrsordnung nebst ergänzendem Anhang. Beck, Munich Grover RL (1934) The legal basis of municipal airports. JALC 5:410–439 Haanappel PPC (2003) The law and policy of air space and outer space: a comparative approach. Kluwer Law International, The Hague Havel BF, Sanchez GS (2014) The principles and practice of international aviation law. Cambridge University Press, New York Hershey AS (1912) The international law of aerial space. AJIL 6:381–388 Horonjeff R, McKelvey FX, Sproule WJ, Young SB (2010) Planning & design of airports, 5th edn. McGraw-Hill, New York Hotchkiss HG (1938) A treatise on aviation law, 2nd edn. Baker, Voorhis & Co., New York Johnson D (1965) Rights in airspace. Manchester University Press, Manchester Kuhn AK (1920) International aerial navigation and the peace conference. AJIL 14:369–381 Lehrer HR (2014) Flying the beam: navigating the early US Airmail Airways, 1917–1941. Purdue University Press, Indiana Meyer A (1944) Freiheit der Luft als Rechtsproblem. Aeroverlag, Zurich Milde M (2012) International air law and ICAO: essential air and space law, 2nd edn. Eleven International Publishing, The Hague Murphy JD (2005) Military aircraft, origins to 1918: an illustrated history of their impact. ABC-CLIO, Santa Barbara Pepin E (1957) Development of the national legislation on aviation since the Chicago Convention. JALC 24:1–23 Pirath C (1931) Luftverkehrspolitik und Stand des Weltluftverkehrs. In: Pirath C (ed) Die Luftverkehrswirtschaft in Europa und in den Vereinigten Staaten von Amerika. Forschungsergebnisse des Verkehrswissenschaftlichen Institut für Luftfahrt, vol 4. Oldenbourg, Berlin, pp 7–38 Polkowska M (2008) The development of air law: from the Paris Conference 1910 to the Chicago Convention of 1944. AASL 33:59–90 Price JC, Forrest JS (2016) Practical airport operations, safety, and emergency management. Elsevier, Cambridge Riese O (1949) Luftrecht: Das internationale Recht der zivilen Luftfahrt unter besonderer Berücksichtigung des schweizerischen Rechts. K. F. Koehler, Stuttgart Sand PH, Freitas JS, Pratt GN (1960) An historical survey of international air law before the second world war. MGLJ 7:24–42 Schäffer H (2007) Der Schutz des zivilen Luftverkehrs vor Terrorismus: Der Beitrag der International Civil Aviation Organization (ICAO). Nomos, Baden-Baden Schladebach M (2014) Lufthoheit: Kontinuität und Wandel. Mohr Siebeck, Tübingen

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Schladebach M (2018) Luftrecht, 2nd edn. Mohr Siebeck, Tübingen Schladebach M, Bärmann D (2006) Luftverkehrsabkommen als Grundlage internationalen Fluglinienverkehrs. NZV 19:294–303 Schubert W (ed) (2009) Akademie für Deutsches Recht 1933–1945, Protokolle der Ausschüsse/18 Ausschüsse für Luftrecht, Luftschutzrecht, Kraftfahrzeugrecht und Rundfunkrecht. De Gruyter, Berlin Schwenk W, Giemulla E (2019) Handbuch des Luftverkehrsrechts, 5th edn. Heymanns, Munich Treibel W (1992) Geschichte der deutschen Verkehrsflughäfen: Eine Dokumentation von 1909 bis 1989. Bernard & Graefe, Bonn Unruh AV (1934) Flughafenrecht. Ost-Europa-Verlag, Königsberg Volkmann K (1930) Internationales Luftrecht. Ferd Dümmlers, Berlin Wegerdt A (1930) Germany and the Aerial Navigation Convention at Paris, October 13, 1919. JAL 1:1–32 Wouters M (2011) Regulatory constraints in Europe or “how free are you?”. In: Macário R, Van de Voorde E (eds) Critical issues in air transport economics and business, 1st edn. Routledge, London, pp 361–369 Wynne JS (1935) Federal and state airport programs. JALC 6:538–542 Zielke T (1998) Verkehrsaufteilung in Flughafensystemen. Duncker & Humblot, Berlin

Chapter 3

Chicago Convention and Aerodrome Planning

3.1

The End of World War II

World War II resulted in significant advances in aviation technology that positively influenced civilian aircraft—“Aircraft became faster, stronger, and more fuel-efficient.”1 These capabilities had a substantial benefit on civilian air commerce. The governments desired to establish a new basis for cooperation and peace. The United States wanted to steer negotiations towards a free market in order to dominate the global market place.2 In fact, the Havana Convention also convinced the US that internationally standardised technical provisions are essential for civil aviation.3 Technologically, the American airline industry was the most developed at that time, and the United States wanted to maintain this position. However, this was difficult to achieve based on the old conventions which were not universal.4 Consequently, the United States brought 54 states together in the winter month of 1944 to develop a mechanism for international aviation law.5 The CC was signed on the final day, 7.12.1944, of the International Civil Aviation Conference and is considered as the most important legal framework for aviation.6 It replaced the Paris—as well as the Havana Convention.7 Every Contracting State has been committed to denunciate partnership in the Paris or Havana Convention according to Article 80 of the CC. Based on the CC, the

1

In the following Pearson and Riley (2015), p. 308. Havel and Sanchez (2014), p. 28. 3 Riedi (2015), p. 65f. 4 Riese (1949), p. 97f. 5 Havel and Sanchez (2014), p. 28. 6 Schladebach (2014), p. 79f. 7 For further details see Jacobini (1948), p. 51ff. 2

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2021 C. Salih, International Aviation Law for Aerodrome Planning, https://doi.org/10.1007/978-3-030-56842-9_3

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International Civil Aviation Organisation (ICAO) was established (Article 43ff.).8 ICAO rationalised all other organisation dealing with aviation before9—like for instance the CINA.10 Old conventions or agreements which are compatible with the provisions of the CC are allowed to be valid as per Article 82. The CC introduced an innovative regulatory framework that exchanged multiple individual agreements with a common system of international aviation rules.11 The Convention comprises rights and obligations of states regarding international air navigation.12 The so-called Chicago system included the following agreements:13 • • • •

the Convention on International Civil Aviation (CC);14 the International Air Transit Agreement;15 the International Air Transport Agreement;16 the Interim Agreement on International Civil Aviation.17

The CC included the reciprocal right of departure and landing for non-commercial purposes in accordance with Articles 5 and 6 of the CC.18 The International Air Transit Agreement was adopted together with the CC. It comprised of the reciprocal right of departure and landing for technical purposes. The agreement came into force after the ratification of most of the CC Contracting States.19 The International Air Transport Agreement established three commercial freedoms.20 The agreement came into force after being ratified by only 11 states. Due to the fact that most of these states are small states, the agreement is meaningless.21 These commercial freedoms that developed later must be granted by means of bilateral agreements.22 The Interim Agreement on International Civil Aviation established the Provisional ICAO (PICAO) for the purpose of collaboration in international civil aviation as per Article 1 of the agreement. It was replaced by the CC on 4 April 1947.

8

For further details see Schladebach (2014), p. 84; ICAO, Doc 7300—Convention on International Civil Aviation, 2006, p. 20. 9 Riese (1949), p. 45. 10 Giemulla and Weber (2011), p. 14. 11 Pearson and Riley (2015), p. 308. 12 Riedi (2015), p. 11. 13 Giemulla and Weber (2011), p. 14. 14 15 UNTS 295; BGBl. 1956 II, p. 412. 15 84 UNTS 389; BGBl. 1956 II, p. 442. 16 171 UNTS 387. 17 59 Stat. 1516. 18 Giemulla and Weber (2011), p. 14. 19 The agreement comprises the First and Second Freedom of the Air. See Schladebach (2018), p. 50. 20 The Third, Fourth and Fifth Freedom of the Air. See Giemulla and Weber (2011), p. 14. 21 Schladebach (2014), p. 193. 22 Giemulla and Weber (2011), p. 14.

3.2 The International Civil Aviation Organization

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The Unites States’ ambition to dominate the global aviation market through the CC could not be realised.23 Contrarily, Great Britain preferred a more planned and controlled aviation market.24 Instead, the Convention was shaped to solve technical coordination problems—among others aircraft registry and air traffic management.25 Birmanns therefore understands the CC to be a kind of successful compromise.26 This fact can also be derived from the Preamble of the CC, which has to be taken into account when developing and applying the provisions of the CC. There it says, that the Contracting States have “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”. This principle is also important to aerodrome planning because Article 44 defines the development of technical provisions for airports and air navigation facilities for international civil aviation as an objective of the ICAO.

3.2 3.2.1

The International Civil Aviation Organization The Organisation

According to Article 43 of the CC, an organisation shall be formed—namely the International Civil Aviation Organization (ICAO). Different bodies constitute ICAO. Particularly, a Council and an Assembly were formed. ICAO’s objectives are laid down in Article 44. The organisation aims to develop principles as well as techniques for international air navigation. With regard to aerodrome planning, ICAO shall encourage the development of airways, airports and air navigation facilities for international civil aviation as per Article 44 (c). Further targets are the insurance of safe, orderly, efficient, and economical air transport27 and the prevention of economic waste.28 Article 44 (i) provides the ICAO with the implied power for the sake of developing all aspects related to international air traffic. Article 44 mentions the term “safety” three times. It can therefore be concluded that the most important target for ICAO is the safety of international air traffic.29

23

Havel and Sanchez (2014), p. 28. Birmanns (2001), p. 84. 25 Havel and Sanchez (2014), p. 28. 26 Birmanns (2001), p. 84. 27 Article 44 (a) of the CC. 28 Article 44 (e) of the CC. 29 Riedi (2015), p. 18f. 24

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Generally, international organisations have limited legal subjectivity.30 The legal subjectivity of the organisation is derived from its Contracting States.31 In this regard, the first sentence of Article 47 of the CC mentions that ICAO shall enjoy the sufficient legal capacity to perform its functions in each territory of a Contracting State. According to the second sentence of Article 47, the ICAO shall be granted with “full legal personality wherever compatible with the constitution and laws of the State concerned.” Schäffer derives correctly from the second sentence that ICAO possesses an incomplete or limited legal personality.32

3.2.2

The Assembly

Provisions regarding the Assembly are laid down in Articles 48 and 49 of the CC. The Assembly is thereby convened by the Council and shall meet not less than once in 3 years.33 Upon request by the Council, extraordinary meetings are possible. Each Contracting State shall have equal voting rights. The representative delegates can be assisted by technical advisers who do not have a voting right.34 The majority of the votes is required to vote for decisions.35 In practice, however, all decisions of the Assembly are taken by consensus.36 As per Article 49 (a), the Assembly shall elect a President of the Assembly at each meeting as well as the Contracting States that shall represent the Council.37 Inter alia, the Assembly shall examine and take actions on reports from the Council and decide on them,38 determine financial arrangements and vote on annual budgets,39 consider proposals for the provision of amendments,40 and delegate powers to the Council in order to discharge the duties of ICAO.41 The Assembly has a reviewing function for the work of the ICAO as a whole.42

30

Ibid., p. 15. Ipsen (2014), p. 220. 32 Schäffer (2007), p. 52. 33 Article 48 (a) of the CC. 34 Article 48 (b) of the CC. 35 Article 48 (c) of the CC. 36 Giemulla and Weber (2011), p. 82. 37 Article 49 (b) of the CC. 38 Article 49 (c) of the CC. 39 Article 49 (e) of the CC. 40 Article 49 (j) of the CC. 41 Article 49 (h) of the CC. 42 Havel and Sanchez (2014), p. 59. 31

3.2 The International Civil Aviation Organization

3.2.3

61

The Council

The Council is a permanent body and responsible to the Assembly.43 It shall contain 36 Contracting States and is elected every 3 years. The Council is headed by a President who has no vote.44 Decisions also require the majority of votes.45 According to Article 53, any Contracting State can participate in the consideration by the Council and by its committees and commissions without a vote. The Convention distinguishes between mandatory functions of the Council (Article 54) and permissive functions (Article 55). Mandatory functions are inter alia the submission of reports to the Assembly, determination of its organisation and rules of procedures, establishment of an Air Navigation Commission, appointment of a chief executive officer who shall be called Secretary General, request, examination and publication of information to advancement of air navigation and the operation of international air services, adoption of international Standards and Recommended Practices, and to consider recommendations of the Air Navigation Commission for amendment of the Annexes. Permissive functions include but are not limited to the delegation of additional duties to the Air Navigation Commission, conduction of research related to all aspects of air transport and air navigation with international importance and communicate results to the Contracting States, and investigation of any circumstances which appear to avoid obstacles to the development of air navigation. The Councils primary responsibility is the development and adoption of Standards and Recommended Practices (SARPs) listed in the technical Annexes to the Convention.46 Based on this function, ICAO can be categorised as a coordinating organisation, that establishes regulations.47

3.2.4

The Air Navigation Commission

The Air Navigation Commission (ANC) shall be composed of 19 persons with sufficient experience and knowledge in the science of aeronautics appointed by the Council as per Article 56. According to Article 57, the ANC shall consider and recommend to the Council for adoption, modifications of the Annexes to the Convention, establish technical submissions on which the states may be represented, and advise the Council concerning the collection and communication to the Contracting States of all information that considers necessary for the improvement of international air navigation. The ANC reports in all matters to the Council. The

43

Article 50 (a) of the CC. Article 51 of the CC. 45 Article 52 of the CC. 46 Havel and Sanchez (2014), p. 58. 47 See in this context Ipsen (2014), p. 201. 44

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Council may under Article 55 (b) delegate to the ANC duties additional to those set out in the Convention. However, it has made use of this option only sparingly.48

3.3 3.3.1

Binding Effect of ICAO Regulations for States and Aerodromes Adoption of International Standards and Procedures (Article 37)

Article 37 of the CC lays down provisions for SARPs. The Article stipulates that the Contracting States undertake “to collaborate in securing the highest practicable degree of uniformity in regulations, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters.” According to this Article, the envisaged uniformity shall lead to an improvement of air navigation. ICAO shall hereby adopt and amend SARPs as well as procedures dealing with the airspace and the needed infrastructure on the ground. Article 37 (b) refers in this context directly to “characteristics of airports and landing areas”. Aerodrome planning itself also depends on further provisions and is not limited to aerodrome characteristics. For these provisions also SARPs shall be developed. Article 37 lists related topics like communication systems, air navigation aids, including ground marking (a), rules of the air and air traffic practices (c), as well as customs and immigration procedures (j). All of these aspects influence the aerodrome planning process. ICAO has through Article 37 of the CC the unrestricted authorisation to establish a comprehensive regulatory framework for international aviation.49 Predominately, ICAO’s provisions do have a technical and infrastructural nature. For political reasons, the authors of the Convention refused an economic regulation.50 According to Article 54 (l) of the CC, SARPs shall be designated in specific Annexes to the CC. Over 10,000 SARPs have been developed till today.51 All of them are designated in Annexes to the Convention.52 SARPs are ICAO’s primary tool in offering international provisions for aerodromes.53

48

Giemulla and Weber (2011), p. 89. Erler (1967), p. 115; Yemin (1969), p. 120. 50 Osieke (1979), p. 3f.; Frenzel (2011), p. 62. 51 Bartsch (2016), p. 246. 52 Nyampong (2017), p. 186. 53 See also Weber (2017), p. 22. 49

3.3 Binding Effect of ICAO Regulations for States and Aerodromes

3.3.2

63

Definition of SARPs

The CC does not provide definitions for International Standards as well as for Recommended Practices.54 The Assembly presented definitions based on a suggestion by the Interim Council in the first meeting.55 These definitions are valid until today and contained in the Annexes. According to ICAO Annex 14 for Aerodromes,56 a Standard is “[a]ny specification for physical characteristics, configuration, matériel, performance, personnel or procedure, the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which Contracting States will conform in accordance with the Convention.” A recommended practice is defined in ICAO Annex 1457 as “[a]ny specification for physical characteristics, configuration, matériel, performance, personnel or procedure, the uniform application of which is recognized as desirable in the interest of safety, regularity or efficiency of international air navigation, and to which Contracting States will endeavour to conform in accordance with the Convention.” A different definition of SARPs is contained in Annex 9 “Facilitation”.58 According to the foreword, a Standard is defined as “[a]ny specification, the uniform observance of which has been recognized as practicable and as necessary to facilitate and improve some aspect of international air navigation, which has been adopted by the Council pursuant to Article 54 (l) of the Convention, and in respect of which non-compliance must be notified by Contracting States to the Council in accordance with Article 38.” In regard to a recommendation, it says “[a]ny specification, the observance of which has been recognized as generally practicable and as highly desirable to facilitate and improve some aspect of international air navigation, which has been adopted by the Council pursuant to Article 54 (l) of the Convention, and to which Contracting States will endeavour to conform in accordance with the Convention.” The Council made at its 15th meeting of the 6th Session in 1949 the decision to define SARPs differently for Annex 9.59 The nature of the provisions appeared to require that SARPs be based on the concept of “uniformity which will facilitate and improve air navigation” as noted in the opening words of Article 37 rather than the more specific items of “safety, regularity and efficiency” which are the basis for the other Annexes.

54

Nyampong (2017), p. 186. ICAO, Doc 8192-C/934, Assembly Resolutions at 14th Session, 1962, p. 102f.; Erler (1967), p. 116f. 56 ICAO, Annex 14—Aerodromes, Vol. I—Aerodrome Design and Operation, 8th edition, 2018, p. xiiif. 57 Ibid. 58 ICAO, Annex 9—Facilitation, 14th edition, 2015, p. xi. 59 ICAO, Doc 10055—Manual on Notification and Publication of Differences, 1st edition, 2018, para. 1.1.7.; Erler (1967), p. 119. 55

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The definitions convey differences between Standards and Recommended Practices. As far as Standards are concerned, the phrase “recognized as necessary” must be translated in minimum requirements to whom Standards are restricted to.60 Compared to International Standards, Recommended Practices are only supposed to be “desirable”. International Standards are thus provided with more importance for air navigation compared to Recommended Practices. In addition, ICAO expects that states “will conform” with Standards. That being said, for Recommended Practices, states are expected to “endeavour to conform.” A specific editorial practice is foreseen in the writing of SARPs. The operative verb “shall” is used for Standards.61 Recommended Practices are expressed with the operative verb “should”. Moreover, Recommended Practices are printed in light face italics. Their status is indicated by the prefix Recommendation. The CC clearly distinguishes between both terms. Legally, this underlines a higher status of International Standards compared to Recommended Practices.62 Besides, it can be derived that the recitals for a Standard are safety and continuity of air navigation, whereas for Recommended Practices also profitability should be considered.

3.3.3

Deviation from Regulation (Article 38)

Article 38 addresses departures from International Standards and procedures. There is legal confusion regarding the term “procedure.”63 Some legal scholars regard this term as a basis for further regulation—namely for Procedures for Air Navigation Services (PANS) and Supplementary Procedures (SUPPS).64 Other authors associate the term only with the unprecise wording of the Convention.65 The fact that speaks in favour of the latter opinion is that procedures are not governed or ruled by the CC.66 Further, the introductory notes of PANS do not refer to the term “procedure” in the CC.67 This is not the case for Annexes where the introductory notes of the Annexes mention SARPs contemplated in the CC.68 Additionally, ICAO mentions that the authors of the CC only endeavoured to develop SARPs containing a variety of material, including specifications for equipment and inter alia

60

In the following Kaienburg and Wysk (2018), p. 43f. ICAO, Annex 14—Aerodromes, 2018, p. xiv. 62 See in the following Kaienburg and Wysk (2018), p. 44; Erler (1967), p. 117; Rosenthal (1989), p. 151. 63 Frenzel (2011), p. 63. 64 Erler (1967), p. 128f.; Schäffer (2007), p. 128f. 65 Carroz (1959), p. 165; Yemin (1969), p. 119; Buergenthal (1969), p. 115. 66 Frenzel (2011), p. 63. 67 See for example ICAO, Doc 9981—PANS—Aerodromes, 2nd edition, 2016, Introduction. 68 ICAO, Annex 14—Aerodromes, 2018, p. xiiiff. 61

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procedures.69 In this context, the adoption and promulgation of SARPs are expressly provided for by the CC through Article 54 (l) and Article 90. This does not apply to “procedures”. In conclusion, it is more convincing that the term “procedure” in Article 37 and 38 of the CC does not refer to PANS and SUPPS. Article 38 prescribes rules that have to be followed when a state cannot bring its own regulations into full accordance with the International Standards and procedure.70 States shall also consider these rules when they deem it necessary to adopt regulations or practises differing in any particular respect from provisions laid down in International Standards. This means that the authors considered cases in which a state is not able to be conform—i.e. cases in which it is “impracticable” to adhere. Hence, the authors provided the possibility to deviate from International Standards and procedures. States which see the necessity to deviate shall “give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard.” Dempsey defines this process as “opting-out”,71 and Ducrest says “contracting-out”.72 The idea behind providing the possibility to opt-out is to enable states to consider national specialities.73 The expression “immediate” is not further defined. But, since the aim of the CC is to achieve safety through uniformity, the term can be understood as “as soon as recognising the difference”. The Council passed the Resolution of Adoption of Annex 2, 3, and 5 at the 22nd meeting of its 3rd Session.74 The Resolution defined that states should not only notify the ICAO of any differences between any of its own practices and those established by the Standards contained in the Annexes but also should notify “differences” as covering “non-compliance in any respect” with Standards. Aston notes, in this regard, correctly that Article 38 does not aim to provide the right to reject all provisions but to permit non-compliance of individual provisions.75 Furthermore, the opting-out possibility of a state does not have an impact on the binding status of the provision for the rest of the states.76 With regards to amendments, Article 38 defines that a state shall inform the ICAO within 60 days if it is not willing to adopt these amendments into its own regulation. Consequently, ICAO will inform the other Member States of the deviation and if provided by the state about the corresponding national practices of that State. In case a state would not notify of a deviation towards the amendment within 60 days, there

69 In the following ICAO, Draft of Doc 10055—Manual on Notification and Publication of Differences, 2015, para. 1.1.6. 70 See also Leloudas (2003), p. 78. 71 Dempsey (2008), p. 76. 72 Ducrest (1995), p. 355. 73 Kaienburg and Wysk (2018), p. 47. 74 ICAO, Doc 10055—Manual on Notification and Publication of Differences, 2018, para. 1.2.3f. 75 Aston (2017), p. 135. 76 Kaienburg and Wysk (2018), p. 47.

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are no punishments foreseen by the authors. Therefore, one can say that the possibility to deviate is in practise timely not restricted.77 If there is a deviation from a Recommended Practices, states are only “invited” to notify the ICAO of the non-compliance.78 The notification obligation is only mandatory for Standards and procedures.79 Recommended Practices and an associated deviation from them are not stipulated in Article 38. A difference between International Standards and Recommended Practices can consequently also be derived from Article 38. Inevitably, there is a contradiction between Article 37 and 38. On the one hand, Article 37 prescribes that states shall be compliant with International Standards in order to secure worldwide uniformity. On the other hand, the legislator enables states to differ from the regulation by just notifying ICAO through Article 38. Despite ICAO’s perception that states will adhere to Standards to support international air navigation, its definition goes on to recognise that deviation is possible as per Article 38.80 Some legal scholars, therefore, deprive a voluntary binding effect of Standards.81 For instance, Wright, when speaking about the Annexes in which SARPs are designated, says that they “are not laws and the ICAO does not have the legal authority to enforce them. Instead, they are guidelines that the Member States may use to promulgate their own aviation regulations.”82 However, this perception cannot convince completely since the CC clearly distinguishes between two legal tools—namely Standards and Recommended Practices, as well as requests adherence as per Article 37.83 The unclear status of the binding effect of Standards and Recommended Practices allows further analysis.

3.3.4

Legal Effect of SARPs

3.3.4.1

Derived Legal Challenge for Aerodromes from Articles 37 and 38 of the CC

Article 37 and Article 38 do not clearly identify whether the International Standards, as well as the Recommended Practices, are legally binding or not. SARPs miss a clear legal identity. This question was subject to discussion in many jurisprudence

77

Buergenthal (1969), p. 78f.; Aston (2017), p. 136. Havel and Sanchez (2014), p. 62. 79 Giemulla and Weber (2011), p. 37f. 80 Havel and Sanchez (2014), p. 63. 81 Buergenthal (1969), p. 76f.; Carroz (1959), p. 158; Riese (1949), p. 126f. 82 Pearson and Riley (2015), p. 312. 83 See also Frenzel (2011), p. 68; Schäffer (2007), p. 104; Yemin (1969), p. 142. 78

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theses.84 ICAO’s binding effect has been often discussed controversially during the last centuries.85 If the opting-out possibility manifested in Article 38 would lead to a non-binding status, the following problem could emerge for aerodromes. It could be possible to have a state which has got aerodromes that are not compliant with, e.g. the aerodrome-related Standards of ICAO. This could be for instances provisions for runway marking. The state could be following its own methodology without notifying ICAO. Consequently, a foreign pilot could be irritated when manoeuvring on the runway in this state due to a non-compliant status and unknown provisions. This situation would militate against the principle of reciprocity, which the CC is based on.86 Aerodromes would not be open under uniform conditions as required by Article 15 of the Convention and would also not be provided in accordance with SARPs as per Article 28. A shortcoming like in the aforementioned situation could lead to an incident or an accident, and international safety would be jeopardised. Therefore, it is important to discuss whether SAPRs are binding or not. During such a legal analysis, one must clearly distinguish between the binding effect of Standards and of Recommended Practices because the CC treats them differently. Therefore, one can presume a graded binding effect. If Standards and Recommended Practices are legally binding for the Contracting States, one has to ask whether both are also automatically binding for an aerodrome operator. Admittedly, states have signed and ratified the CC. Nevertheless, the CC mentions in Article 28 that airports shall be provided in accordance with SARPs. So, is an aerodrome operator bound to follow aerodrome-related SARPs?

3.3.4.2

Comparison Between the Status of the Articles of the CC and Its Annexes

The Articles of the CC are legally binding, as the Articles are an elementary part of a multilateral agreement.87 This Treaty was signed and ratified by states. The question arises as to whether it is possible to draw an analogy effect from the binding effect of Articles to Annexes. Two criteria must be valid.88 First, both systems must be following the same interest or target, and second, the legal system must be ungoverned—namely an adverse gap must be existent.89 In international law, drawing an analogy is far more complicated than in national law.90 One reason for

84 Thiery (2018), Kaienburg and Wysk (2018), Riedi (2015), Frenzel (2011), Mackenzie (2010), Yemin (1969), Buergenthal (1969), Erler (1967) and Schenkman (1955). 85 See Kaienburg and Wysk (2018), p. 48. 86 Giemulla and Weber (2011), p. 58f. 87 Kaienburg and Wysk (2018), p. 49. 88 Meier and Jocham (2015), p. 494f. 89 In German: planwidrige Reglungslücke. See ibid., p. 494f. 90 In the following Von Arnauld (2016), p. 124f.

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this is that states only have to fulfil obligations to the extent that they have undertaken to comply with. If there is no obligation, the state is not bound. It is therefore difficult to justify the existence of a regulatory gap. The same target can be manifested for Articles and Annexes of the CC. The CC mentions in the Preamble that international air navigation is aimed to be developed in a safe and orderly manner. Annex 14 comprises SARPs that shall improve safety, efficiency and regularity.91 Therefore, one can assume that Articles, as well as an Annex, follow the same interest. With the difference that the CC is a treaty, and the single Annexes to the CC are developed explicitly for the different subjects of aviation. The second criterium for the analogy approach defines that the exposed topic to which a rule is transferred (here from Article to Annex) must be ungoverned.92 This cannot be applied for the Annexes since the Annexes are clearly governed by Article 37 and 38. Hence, it is not possible to draw an analogy from the binding effect of the Articles to the binding effect of the Annexes (SARPs). By defining Article 37 and 38, it becomes clear that the Annexes do not have the same legally binding force as the Articles of the main body of the Convention.93 In addition, the Annexes to the CC are not even part of the CC. Firstly, there are not subject to ratification legislation.94 Secondly, Article 54—laying down mandatory functions of the Council—prescribes to “Adopt, in accordance with the provisions of this Convention, international standards and recommended practices; for convenience (. . .) designate them as Annexes to this Convention (. . .)”. Consequently, one could argue that the Annexes and their included SARPs are not an integral part of the Convention.95 The legal literature is in agreement on that question and does not regard the Annexes as part of the CC.96 This fact is even corroborated by Article 90 (a) which stipulates an approval procedure for the adoption of Annexes. On the contrary, the Articles of the Convention become effective after ratification as per Article 90 of the CC. The Articles of the Convention are to be understood as international primary law. Primary law must be developed by the states itself.97 The question on whether the Annexes can be understood as international secondary law depends on the fact if SARPs are binding or not. The relevance of the question regarding the binding effect increases with the fact that the SARPs are not a part of the CC.

91

ICAO, Annex 14—Aerodromes, 2018, p. 1–1. Meier and Jocham (2015), p. 495. 93 In the following Giemulla and Weber (2011), p. 96; Abeyratne (2007), p. 520. 94 Giemulla and Weber (2011), p. 96. 95 Abeyratne (2007), p. 520. 96 For more details see Kaienburg and Wysk (2018), p. 50. 97 Von Arnauld (2016), p. 53. 92

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Analysis Method Through Article 31 of the VCLT

International Courts make use of the interpretation rules that were codified in the Vienna Convention on the Law of Treaties98 (VCLT) to interpret multilateral treaties99—like the CC. Consequently, the status of the binding effect of the Standards and Recommended Practices will be analysed with the interpretation rules defined in Article 31 of VCLT. The VCLT was concluded on 23 May 1969 and came into force on 27 January 1980. The question arises whether it is possible to apply the VCLT interpretation rules on the CC which had been concluded on 7 December 1944. Based on ratione temporis, Article 4 of the VCLT defines that the Convention is only applicable to treaties that are concluded after the VCLT. With this principle, treaties shall be assessed according to the law that was applicable at the development time. Further, Article 28 of the VCLT prescribes that a treaty should generally not bind a party to any act or fact that took place before the establishment of a treaty.100 Notwithstanding, some reasons speak in favour of the use of the VCLT. According to Article 1 of the VCLT, the treaty applies to treaties between states. These agreements have to be in a written form as per Article 2 (1)(a). Both criteria are given for the CC. The most important fact allowing to use the VCLT to analyse the CC is the following. The VCLT contains mostly rules that were used and applied even before the conclusion of the VCLT. Thus, the rules evolved to customary law. As far as the rules of interpretation codified in Article 31 of VCLT are concerned, these have been derived from Carl von Savigny’s major work System of the Present Roman Law (1840–1848).101 Article 31 (1) defines to interpret a treaty based on three different rules: the ordinary meaning, the treaty context, and the object and purpose of the treaty. In regard to the ordinary meaning rule, a term shall be interpreted in accordance with its usual meaning. The decisive factor here is the time at which the treaty was concluded. The ordinary meaning follows from the general meaning of a term. Under certain circumstances, (also) the technical usage has to be considered.102 As per Article 31 (2), the context of the treaty shall also be considered during an interpretation process. Besides the actual treaty text, also the Preamble, annexes, any subsequent agreement between the parties, any practice in the application of the treatment, or any international law rules applicable between the parties can be examined.103 Based on the object and purpose rule, the target of the treaty shall be interpreted objectively. This rule has derived the principle of effectivity within the

98

1155 UNTS 331; BGBl. 1985 II, p. 927. Ipsen (2014), p. 410; McLachlan (2005), p. 279. 100 In the following Von Arnauld (2016), p. 81f. 101 Rückert (2006), p. 60f. 102 Kandler (2008), p. 10. 103 See also in the following Von Arnauld (2016), p. 95. 99

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development of international law.104 Hence, this principle also became part of customary law. Accordingly, a treaty has to be interpreted in a way that allows to optimally achieve the purpose of the treaty (effet utile). In addition, Article 32 of the VCLT provides the possibility to include the preparatory work of the treaty as well as to consider the circumstances of its conclusion time. This (historical) rule, however, is only to be used in a supplementary way, if the rules in Article 31 leave an ambiguous or an obscure meaning or if the Article 31 rules lead to a manifestly wrong meaning. One can ask which of the interpretation rules might have a priority when a treaty is interpreted. The interpretation rules within the VCLT are entitled as “General Rule of Interpretation”. This means that the interpretation rules shall be uniformly applied.105 The International Law Commission (ILC) mentions in this context a single combined operation. Accordingly, no rule has a priority towards the other ones. Additionally, the interpretation only through the ordinary meaning rule should not be enough.106 Consequently, one can define a situational priority and not an abstract priority. Nevertheless, it makes sense to start an interpretation with the ordinary meaning rule due to the alignment with the text offered by the objective approach.107 This approach will be applied to the following analysis. The order of the interpretation rules will be in accordance with the order listed in Article 31 of the VCLT.

3.3.4.4

Legal Status of International Standards

Ordinary Meaning Rule Article 37 uses the word “to undertake” which has not the same power as “to adhere”, nor is the imperative form “shall” present in the text. To undertake only means that states should collaborate.108 Havel and Sanchez come here to the conclusion that the authors of the CC considered states’ sensibility. Thus, in their opinion, the usage of the term “to undertake” has not the power to determine Standards as non-binding. This opinion is reasonable. Erler blieves in this context that the wording style fails to indicate a strict binding effect.109 He goes further and has the opinion that the CC gives Contracting States room to decide on applicability. However, one has to encounter that the wording of the CC is in general very sensible. For instance, the phrase “as far as it may be practicable” is often used (e.g. Art. 12, 23, 28). A further example is the term “as far as laws permit” in Article 26. It 104

Ipsen (2014), p. 412. YBILC 1966 II, 221. 106 Ipsen (2014), p. 410. 107 Ibid., p. 411. 108 Havel and Sanchez (2014), p. 61. 109 Erler (1967), p. 133. 105

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would be delusionary to manifest a non-binding character for all those examples. The soft wording is rather used to motivate states to adhere to Standards. Riese has an appropriate approach, in this context, as he perceives a binding effect, however, derives from the wording room for discretion provided from the CC to the Contracting States.110 Milde analyses Article 37 by defining that states obligation does not lie in complying with Standards but in collaboration “in the highest practicable degree of uniformity.”111 Generally, international law reflects the wish of the states to regulate international relations in a binding manner.112 Even stronger, international law is based on a universal binding effect besides a consensus and its rulemaking process.113 There are many expressions which indicate that Standards are binding. In Article 37, the term “necessary”, as well as the terms “will conform” and “recognized as necessary” in the definition of a Standard indicate this fact. Moreover, Article 90 (a) of the CC prescribes that the new Annexes or amendments to these “shall become effective”. Further, as per Article 90 (b), the Council shall inform the Contracting States when the Annexes or amendments “come into force”. According to the ICAO Council “[a] Standard shall contain a statement specifying an obligation by means of “shall”. If the obligation applies only under specified conditions, the Standard shall contain subsidiary statements specifying precisely those conditions. For subsidiary statements verbs such as “may” and “need not” are acceptable.”114 Thereby, the word “obligation” indicates a binding status.115 In addition, the Council also defines that there can be different conditions for an obligation. If Standards would not be binding, it would not be rational to separate into different conditions. The sensible wording, as well as the timely unrestricted right to deviate from the Standards, do not allow to define a strict or an absolute binding effect of Standards.116 Nevertheless, the ordinary meaning rule analysis has more convincing arguments for the definition of a binding status of International Standards. Ultimately, a state has two options: to comply with the ICAO Standards or to notify of any differences. A “silent non-compliance” is not foreseen in Article 37.117

110

Riese (1949), p. 125f. Milde (2012), p. 170. 112 Von Arnauld (2016), p. 1. 113 Ibid., p. 3f. 114 ICAO, Doc 8143-AN/873/3—Directives to Divisional-type Air Navigation Meetings and Rules of Procedure for their Conduct, 1983, p. 7. 115 In the following Kaienburg and Wysk (2018), p. 55. 116 Ibid., p. 56. 117 Riedi (2015), p. 133f.; Frenzel (2011), p. 66f.; Kaienburg and Wysk (2018), p. 48. 111

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Context Rule Article 3 bis c) of the CC stipulates that “(...) each contracting State shall establish all necessary provisions in its national laws or regulations to make such compliance mandatory for any civil aircraft registered in that State or operated by an operator who has his principal place of business or permanent residence in that State.” This passage includes the word “to establish”. This term differs from the expression “to implement” which is more direct.118 Based on that, one could assume that states are not bound to integrate the provisions into national laws directly. Besides, Article 11 stipulates that national regulations relating to departure or landing have to be considered by foreign aircraft when departing or landing in this Contracting State. Hence, the right is provided to states to develop own requirements which could be different from state to state. Similarities can be recognised in Article 12. Here, the authors oblige states to ensure that every aircraft flying over or manoeuvring within its territory, and every aircraft carrying its nationality mark complies with the regulation and rules of manoeuvre and flying in another state. Again, the opportunity is provided to states to make own requirements. These do not have to be fully compliant with ICAO, since ICAO only prescribes to keep national regulations compliant with ICAO “to the greatest possible extent” as per Article 12.119 Also, Article 13 prescribes that passengers, crew, and cargo of the aircraft have to adhere to the regulation of the state related to customs procedures. Again, different national regulation could exist in all states. This outlines another example of possible national deviation. Nonetheless, Article 12 also obliges to adhere to rules established under the CC above the high seas. Only, ICAO is authorised to establish rules for air navigation above the high seas.120 Consequently, it could be assumed that other topics like SARPs applicability based on Articles 37 and 38 do not have a binding status. This is due to the fact that the provision of Article 12 cannot be transferred to other Articles. In ICAO’s resolutions, one is also often reminded of a non-binding nature.121 Here, words like “must” and “ordered” are rare, but members are “urged,” “reminded,” “invited,” “encouraged,” and “asked” to take action. All those aspects fail to attribute Standards with a clear binding effect. However, as far as Article 38 is concerned, it is also not persuasive to declare Standards as completely non-binding,122 since graded consideration is given for Standards and Recommended Practices. In this Article, Standards are mentioned, and Recommended Practices are not even thematised. Notwithstanding, the context

118

See Kaienburg and Wysk explaining the terms in another context. Kaienburg and Wysk (2018), p. 51. 119 For more details see Havel and Sanchez (2014), p. 60. 120 Schladebach (2014), p. 164f. 121 Mackenzie (2010), p. 100. 122 See also Leloudas deriving a legal obligation that is “not absolute”. Leloudas (2003), p. 78.

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rule does not offer convincing arguments to declare a binding status for International Standards.

Object and Purpose Rule The Preamble of the CC states “that international civil aviation may be developed in a safe and orderly manner (. . .).” This target is challenging to achieve without a binding effect. As safety is in need of uniformity to achieve a sufficient level of safety.123 Aerodromes should be, for instance, developed in accordance with SARPs (Article 28). Thus, pilots must rely on the same technical infrastructure when flying from state to state.124 Article 33 of the CC prescribes states to recognise certificates of airworthiness and competency of other Contracting States “provided that the requirements under which such certificates or licences were issued or rendered valid are equal to or above the minimum standards which may be established from time to time pursuant to this Convention.” This principle is based on reciprocity. The recognition of the certificates is based on the acceptance of the minimum Standards designated in the Annexes.125 The principle of reciprocity is one of the most persuasive evidences for a binding status.126 The object and purpose rule clearly declares a binding status for International Standards in order to achieve the targets of the CC.

Historical Rule Due to the fact that the interpretation rules of Article 31 of the VCLT could not derive a clear status of the binding effect, Article 32 will be applied. Historically, the authors of the Convention did not intend a weak binding status of the Annexes to the CC. But after World War II, most of the Contracting States had economic challenges.127 Consequently, the authors wanted to guarantee uniformity to the highest degree.128 For example, the authors chose the word “desirable” in the Preamble.129 Here, the authors of the Convention were confronted with a conflict. The rate of standardisation shall be established as high as possible. But they had to take into account, on the one hand, limited resources of less-developed states to meet requirements, and, on the other hand, the fact that the provisions should not be lower than the standard which had already been achieved in the more-developed states.

123

Huang (2009), p. 59; Kaienburg and Wysk (2018), p. 62. Schäffer (2007), p. 104f. 125 Kaienburg and Wysk (2018), p. 64f. 126 Milde (1996), p. 6. 127 Schladebach (2014), p. 83. 128 Kaienburg and Wysk (2018), p. 59ff. 129 In the following Giemulla and Weber (2011), p. 37f. 124

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If ICAO had forced states to adhere to strict binding obligations, many states would not have ratified the CC.130 This applies to all states that knew implementation would be impossible due to economic, political, or constitutional reasons. Furthermore, existing Contracting States would also be less open-minded. Given the fact that the provisions would be binding, delegates of these states would have scrutinised any amendments with great care and primarily in terms of its ability to comply with them. As a consequence, this strong pressure would have led to settle for less stringent technical requirements in order to obtain the passages of the amendment.131 For instance, in 1951, the Council considered the adoption of Annex 14 for aerodromes.132 The Brazilian Representative argued that the term “shall come into force and be implemented” located in the Standard Resolution Form is challenging if the term is seeking the carrying out of the provisions of the Annex. By relying on Articles 38, 54, and 90 of the Convention, he insisted that the term “to be implemented” would be against the “spirit of the Convention” and would put high pressure on the states if they would be charged to implement at least all Standards for all their aerodromes on one date. Otherwise, if the term “to be implemented” should only indicate that the Annex will “come into force” this would have to be explained in the Foreword to the Annex in order to prevent misunderstanding. Several Contracting States agreed with their Brazilian Colleague.133 Therefore, this issue was resolved by the ANC, and the term “come into force and be implemented” was exchanged with the term “shall be applied.”134 Through setting very high standards as a goal, though allowing states a room of activity, and by helping states through Articles 69 as far as airports are concerned, ICAO tries to achieve standardisation of international civil aviation.135 Having said this, the author also took into consideration the fact that the United States did not ratify the Paris Convention because they did not want to confer legislative power of an international organisation.136 Also, in case of the CC, as Schladebach mentions, the USA did not want to provide strong implied powers to an international organisation.137 One of the major challenges was to establish international uniformity and to not infringe into constitutional procedures of states that require ratification of treaty

130

Mackenzie (2010), p. 194. Ibid., p. 194. 132 ICAO Council, 13 Session in 1951, Doc 7177 (C/828), 1952, p. 70; See also Buergenthal (1969), p. 71. 133 ICAO Council, 13 Session in 1951, Doc 7177 (C/828), 1952, p. 70; See also Buergenthal (1969), p. 71. 134 ICAO Council, 17 Session in 1952, Doc 7328 (C/853), 1953, p. 168; See also Buergenthal (1969), p. 71. 135 Mackenzie (2010), p. 194. 136 Erler (1964b), p. 264. 137 Schladebach (2018), p. 47. 131

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amendments.138 The problem that goes along with treaty amendments is that the new content is thus only applicable in states which approved and ratified the amendment.139 This means that if the Annexes to the CC would have represented an integral part of the CC, every amendment to the Annexes would have required ratification in those states. Neither uniformity nor safety could have been established that way. The same legislative structure like in the Paris Convention would have led to the fact that many states would not sign the Convention either due to constitutional burdens or to limited technical and financial resources to implement the provisions in the Annexes.140 In fact, several states which were technically not developed did not ratify the Paris Convention because they were afraid of not being able to implement the binding provisions of the Annexes.141 The travaux préparatoires of the CC contains a statement that “the Annexes are given no compulsory force”.142 This quotation should be understood as a permission to states opting to deviate and to notify of differences under Article 38.143 The historical rule delivers that the authors wanted to achieve a status which is as binding as possible to achieve the goals set. This is also evidenced by the introductory note of the draft Annex D to the CC where it says:144 “The Air Traffic Control Practices shall be uniformly applied in all contracting States, except in the case of aircraft of the armed forces of a State where appropriate military authority determines that non-compliance with these Rules is required.” The term “shall be uniformly applied” outlines that the drafters did not want a non-binding effect. This can also be seen in the reports to the preparation works of the technical drafts by the sub-committees. The Sub-committee 2 stated that the “documents covering Rules of the Air and Air Traffic Control Practices which can be adopted as binding by all nations of the world and it is recommended that every effort be exerted to permit the accomplishment of such as objective.”145 Further, all states were urged “to initiate full compliance insofar as possible.”146 These statements underline the fact that a non-binding effect was not aimed—nevertheless there was also no other choice.

Conclusion The context rule, as well as the historical rule, could not identify a clear binding status for International Standards. However, the historical rule delivered that it was tough to add more binding effect into the CC given the circumstances after World

138

Cooper (1965), p. 337. Schwenk and Giemulla (2019), p. 13. 140 Buergenthal (1969), p. 120. 141 Riedi (2015), p. 63. 142 Abeyratne (2007), p. 520. 143 Huang (2009), p. 60. 144 ICAO, Final Act and Appendices—Convention on International Civil Aviation, 1944, p. 226. 145 Ibid., p. 860f. 146 Ibid., p. 860. 139

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War II. The ordinary meaning rule and in particular, the object and purpose rule could derive a binding effect. The targets of the Convention cannot be fulfilled without a kind of binding effect. In addition, this binding effect must be based on reciprocity of all Contracting States in order to achieve uniformity. States have a legal obligation to comply with the Standards through their general obligation under Article 37 of the Convention, unless they report a difference from a particular Standard under Article 38.147 States are required to integrate them into national law.148 One can define a “relaxed binding effect.”149 In this context, the term secondary law can be applied to Standards. This term separates established provisions by an international organisation form the provisions in the actual convention.150 The opinion that states are completely free to adhere to the Standards151 is therefore not convincing. If adherence is not possible, there is the obligation to notify any difference.152 The opting-out possibility in Article 38 does not encounter the binding effect in Article 37. It possesses a common tool in international law since states are not forced to implement international provisions.153 That said, Schwarzenberger mentions that international legal power appears to be limited compared to the wide scope of jurisdiction.154 The binding effect is though not automatically applicable in national law. The binding effect applies only to the states.155 Standardisation is achieved by means of International Standards, which are transposed into national law as ICAO is not empowered to draw up directly applicable technical Standards to the Contacting States.156 In addition to the principles of air sovereignty laid down in Article 1 of the CC, this is illustrated by the wording of Article 38, which compares the international regulations with the national regulations. This means that ICAO’s provisions towards aerodromes will not apply directly to a national aerodrome operator.157 Nevertheless, as far as aerodrome operators are concerned, one can define a “fact-based” binding effect of ICAO’s provisions. Even if these Standards would not be legally binding or if a state would not integrate them into national law, it would make sense for an aerodrome operator to comply with them to the greatest possible extent. Due to the fact that many states follow these

147

Milde (2004), p. 461. Bartsch (2016), p. 27. 149 Erler (1967), p. 135. 150 Aston (2017), p. 47. 151 See for example Buergenthal (1969), p. 78 or Mackenzie (2010), p. 194. 152 ICAO, Doc 10055—Manual on Notification and Publication of Differences, 2018, p. II-1ff. 153 Thiery (2018), p. 41. 154 Schwarzenberger (1960), p. 283. 155 Frenzel (2011), p. 71. 156 In the following Münz (1994), p. 384; Frenzel (2011), p. 70. 157 Schwenk and Giemulla (2019), p. 407. 148

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provisions, one can determine them as a kind of technical comparative law for aerodromes. A higher reputation and efficiency can be expected by adhering to them.

3.3.4.5

Legal Status of Recommended Practices

Ordinary Meaning Rule Based on its definition, compliance with the Recommended Practices are considered to be “desirable”. Here, a clear distinction is made to Standards which are regarded as “necessary”. Further, Recommended Practices are indicated through the term “should” and printed in italic within the Annexes.158 This creates the impression of Recommended Practices being defined as soft law.159 Even the term “Recommended Practices” fails to characterise any binding effect.160 The ordinary meaning rule derives a non-binding status for Recommended Practices.

Context Rule Article 37 of the CC mentions both Standards as well as Recommended Practices in the context of necessary provisions for the improvement of air navigation. They are also both considered as elements of the Annexes as per Article 54 (l) of the CC. Hence, they are subject to the same approval procedure as per Article 90 of the Convention. Recommended Practices also “become effective” and “into force” exactly like Standards and exactly the same effort is needed to develop them.161 It would thus be controversial to declare Recommended Practices as completely non-binding. However, states are also not obliged to notify of any differences to the Recommended Practices. Recommended practices are treated differently here.162 Article 38 does not even mention them in the text. Only the Annexes declare that states are “invited” to extend the notification obligation as per Article 38 to Recommended Practices.163 The context rule fails to declare Recommended Practices as binding. However, it is not possible correspondingly to declare them as completely non-binding.

158

ICAO, Annex 14—Aerodromes, 2018, p. xiv. Havel and Sanchez (2014), p. 62f. 160 Buergenthal (1969), p. 78. 161 Frenzel (2011), p. 68. 162 Havel and Sanchez (2014), p. 62f. 163 ICAO, Annex 14—Aerodromes, 2018, p. xiii. 159

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Object and Purpose Rule Due to the fact that Article 37 governs both Standards as well as Recommended Practices, also Recommended Practices are given a role to achieve the targets safety, uniformity and efficiency. Otherwise, it would not make sense to locate Recommended Practices in the Annexes or to define the same approval procedure. Moreover, ICAO would have the possibility to locate Recommended Practices within other so-called documents (e.g., ICAO Doc or Circulars). The object and purpose rule outlines that Recommended Practices have an increased binding effect compared with “normal recommendation or guidelines” and a minimised binding effect compared with Standards.

Historical Rule The historical rule declares Recommended Practices as non-binding. Within the travaux preparatoires it was defined that:164 “A particular problem of status is that of recommended practices. The Committee believes that in certain branches of regulatory action some subjects should be fully standardized, while upon others the internationally agreed documents should present only recommendations implying no obligation, but expressive of a hope that the several nations will follow the recommendation as closely as may be practicable under their particular circumstances (. . .).”

Conclusion The analysis of the legal status of International Standards and Recommended Practices derived that there is a graded binding effect.165 The same binding effect of Standards could not be determined for Recommended Practices. But it is also not reasonable to declare Recommended Practices as completely non-binding, because there are some important aspects showing off a certain legal identity. In this regard, Recommended Practices are required to the same approval procedure as Standards (Article 90), are an integral part of the Annexes (Article 54 l) and do have a role in achieving the targets of the Convention (Article 37). One can definitely say that states are obliged to consider the possibility of implementing Recommended Practices.166 But, due to the fact that they do not have the same legal binding status, Recommended Practices must not be integrated into national law like Standards. If

164

ICAO, Final Act and Appendices—Convention on International Civil Aviation, 1944, p. 708; See also Carroz (1959), p. 167. 165 Kaienburg and Wysk come to the same conclusion in Kaienburg and Wysk (2018), p. 40. 166 ICAO stipulates in the definition of Recommended Practices that states “will endeavour to comply”.

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states do have the option to opt-out of Standards, one can say that they also have the option to opt-in Recommended Practices.167 Therefore, Recommended Practices cannot be seen as internationally binding secondary law. There seems to be an intermediate level between binding and non-binding law. Based on the conducted analysis, it makes sense to deviate from a controversial discussion whether ICAO’s provisions are binding or not and to think about compromise solutions. In jurisprudence, the term “soft law” is often used in such cases.168 Soft law expresses a type of law without a clear binding effect.169 This legal category has been often controversially discussed by legal scholars.170 Knauff mentions that soft law is treated like an “unloved stepchild”. In this context, Herdegen goes further and defines soft law as an “expression of legal embarrassment”.171 Even the ordinary meaning of the term soft law opens questions as it could imply two different kinds of norms.172 On the one hand, it could be a norm which is not defined precisely—“too vague”—but could a have a binding effect. Or on the other hand, it could be precise norm including rights and obligations without a clear binding effect. Soft law is a legal category that tries to find its place between binding and non-binding law.173 Guzman and Meyer see the basis for this legal confusion in the fact that soft law is a “residual category” which has been evolved as a result of the clearly separated categories of binding and non-binding law rather than being developed on its own characteristics. That said, soft law describes a norm that seems to have a legal obligation but fails to formally bind states. According to Shelton, soft law represents “political commitments that could lead to law.”174 According to Kälin et al., a norm has to fulfil some requirements in order to be able to be classified as soft law.175 Firstly, the norm has to be adopted by a representative majority. In terms of Recommended Practices, this can be affirmed since the ICAO Council is required to adopt Recommended Practices as per Article 54 (l). Accordingly, Article 90 requires a two-thirds majority of the votes for the adoption of inter alia Recommended Practices. Secondly, there have to be defined rules of conduct for the norm. This can also be affirmed for Recommended Practices, as states are invited to extend the notification obligation as per Article 38 to these norms.176 Furthermore, an adherence request

167

Kaienburg and Wysk (2018), p. 74. Von Arnauld (2016), p. 117; Vitzthum (2016), p. 58. 169 Schweisfurth (2006), p. 98f.; Hobe (2014), p. 228f. 170 Knauff (2010), p. 17f. 171 Herdegen (2008), p. 150. 172 In the following Huang (2009), p. 196; Weil (1983), p. 414. 173 In the following Guzman and Meyer (2010), p. 172. 174 Shelton (2009), p. 68. 175 Kälin et al. (2010), p. 223. 176 ICAO, Annex 14—Aerodromes, 2018, p. xiii. 168

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can be derived from Article 37. More rules of conduct can be found in the definition of Recommended Practices as states shall “endeavour to conform” with them.177 Thirdly—as Kälin et al. mention—the norm has to be subject to state practice. Also the third requirement is fulfilled.178 This is due to the fact that many states treat and regard Recommended Practices nationally similar or even equal to Standards.179 In case that these three requirements are fulfilled, the good faith principle can be deduced and states are required to endeavour the applicability of soft law. In this context, Schweisfurth, foresees a further criterium.180 There should be a follow-up procedure in place which shows off through implementing and status reports if and how states are adhering to a soft law norm. This can also be affirmed for Recommended Practices. Since 1998, ICAO has established an audit programme that targets to assess how states are inter alia complying with Recommended Practices.181 Conclusively, it is legitim to define Recommended Practices as soft law. However, the term soft law will not be applied in this book due to the aforementioned controversy of this term within jurisprudence. It appears not rational to introduce an ambiguous term (soft law) to a topic (binding effect of Recommended Practices) which also misses a clear legal identity. The legal literature introduces in connection with the status of Recommended Practices the term “quasi-binding norms”.182 There is a consensus in the legal literature that both soft law as well as quasi law represent the same idea of having a semi-binding category.183 The term “quasi-binding norms” is not included in the CC.184 As per Article 54 (j), the Council shall report to the Contracting States “any infraction of this Convention, as well as any failure to carry out recommendations or determinations of the Council”. In this Article, the authors separate between an infraction that is associated with a treaty breach and “any failure to carry out recommendations or determination of the Council.” This could be considered as non-compliance in regard to quasi-binding norms—respectively recommendations.185 Huang states that Article 69, in which the ICAO Council is authorised to contact a state when the Council deems the aerodrome as not safe and to make 177

Ibid., p. xiiif. Kälin et al. (2010), p. 223. 179 EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 2. 180 Schweisfurth (2006), p. 99; See also Riedi (2015), p. 55. 181 Assembly Resolution A32-11 (1998): Establishment of an ICAO universal safety oversight audit programme in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-100; ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 3rd edition, 2011, para. 5.2.12. 182 Huang (2009), p. 186ff.; Kaienburg and Wysk (2018), p. 79. 183 Riedi (2015), p. 55; Guzman and Meyer (2010), p. 172. 184 The following considerations are based on the studies of Huang (2009), p. 186ff. as well as Kaienburg and Wysk (2018), p. 79. 185 Huang (2009), p. 197. 178

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recommendations for improvement thereon, reinforces the distinction.186 Because it is further stated in this Article that if the state fails to apply the recommendations, this does not represent “an infraction” of the CC. It is “only” a reportable incident as per Article 54 (j). Even if the state does not follow the recommendation, the CC is not breached because Article 70 allows a Contracting State to reject an arrangement that includes the recommendations. Kaienburg, Wysk and Huang argue that when reading Article 54 (j), 69, and 70 in context, the authors of the CC intended to handle recommendation as less binding than any fully binding guideline because they have included as reportable events in Article 54 (j) “failure to carry out recommendations” next to with “any infraction” of the Convention.187 It is completely agreed with that Recommended Practices should be considered as quasi-binding. However, the introduced argumentation in the legal lecturers based on Articles 54 (j), 69, and 70 would assume firstly that the authors of the CC had meant exactly the same when using the term “Recommended Practices” in Article 37 and “recommendation” of ICAO in Article 54 (j) and 69. This might not be the case. If an aerodrome is deemed unsafe as per Article 69, the aerodrome will probably miss implementing the International Standards which are “necessary”. As a matter of fact, the recommendations by ICAO would then entail particularly Standards complemented by Recommended Practices. This means that the term “recommendation” in Article 54 (j) and Article 69 might rather comprise International Standards, Recommended Practices, as well as other common practices and not only Recommended Practices. In result, Recommended Practices are also seen as quasi-binding norms but rather based on the aforementioned facts in this analysis.188 One can say that recommendations are not strictly binding as traditional sources of law.189 Nonetheless, they should be considered and acted upon in good faith. They are supposed to be important tools of ICAO’s legal order. With regard to aerodrome operators, a “fact-based” binding effect can also be derived for Recommended Practices. Even if the state does not opt them into national regulation, there might be Recommended Practices which are important to apply for an aerodrome operator, since they are according to Article 37 also necessary to achieve the envisaged uniformity. The CC has provided the ICAO through Article 37 with a mandate to develop Recommended Practices also for aerodromes.

186

Ibid., p. 197. Ibid., p. 198; Kaienburg and Wysk (2018), p. 80. 188 Recommended Practices are required to the same development and approval procedure as Standards (Article 90), are an integral part of the Annexes (Article 54 l) and do have a role to achieve the targets of the Convention (Article 37). 189 Huang (2009), p. 198. 187

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Aerodrome Planning in the Articles of the Chicago Convention Prohibited Areas

Article 9 (a) of the CC stipulates that the Contracting States may define prohibited or restricted areas. Flying over these areas is not allowed for aircraft engaged in international scheduled airline service. The prohibited or restricted areas are valid for national as well as foreign aircraft engaged in these services, which means that foreign aircraft are not discriminated. Aircraft of non-scheduled services are not mentioned. Article 9 (b) grants the same right to a state but with the difference that the prohibition or restriction may only be temporary. Further, it could be applied either for a part or for the whole territory. In this regard, Article 9 (b) refers to all aircraft of other states without distinction of nationality. Although the CC grants states the right to close (parts of) the airspace due to military necessity or public safety, the experience shows that the airspace above conflict zones is often not closed.190 One can say that the primary purpose of Article 9 is then disregarded. The main purpose is definitely to protect civil aircraft from notably military operations that could endanger the aircraft in flight.191 As per Article 9 (c), each state may force any aircraft entering prohibited or restricted areas to land on a designated airport within its territory. Again, there is no distinction made between national and foreign aircraft. Article 9 (c) applies to both. In fact, it is only allowed to force aircraft to land when the aircraft has entered these areas, i.e., an aircraft may not be forced to land on an airport for no reason.192 It is not mentioned as to whether the airport will be within the prohibited or restricted area or outside of these areas. In this regard, Article 9 (c) mentions the term “as soon as practicable thereafter.” However, the term “thereafter” is most likely referred to the forced landing “after” an aircraft has entered these areas and not after passing or flying out of prohibited or restricted areas. In case of a prohibition due to the existence of a military zone, it would make more sense if the aerodrome would be outside of the area because the aerodromes in that area will likely be military. Apparently, it can be derived that the aerodrome has to be within states’ territory. One might ask if these aerodromes have to be designated airports in accordance with Article 68. Article 9 refers to aircraft engaged in international scheduled airline service, which is the same type of service states shall designate aerodromes to as per Article 68. However, Article 9 (c) does not directly refer to airports in accordance with Article 68. The CC does so in Article 15. So, if only airports in line with Article 68 are meant, one could assume that the CC would have mentioned it. Further, in case of a forced landing after entering these areas. The intent is to land at an airport

190

Weber (2017), p. 31. Schubert (2017), p. 107. 192 Schladebach (2014), p. 221. 191

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“as soon as practicable thereafter”, i.e. the first desire would be a fast landing and not the search for an airport designated for international air service as per Article 68. Nevertheless, it would make sense that these airports are at least in accordance with Article 10 that provide customs and other authorities for examination—for instance to investigate the reasons of entering the area and to provide customs for foreign citizens.

3.4.2

Military Aerodromes Serving International Air Service

Article 1 of the CC recognises that every state has complete sovereignty over the airspace of its territory. Article 2 defines that the land area is part of this territory. Thus, the usage of the aerodromes of a Contracting State is only possible with an assent. Article 3 (b) of the CC defines that aircraft used by military, customs or police are not subject to the Convention since they are defined as state aircraft which are excluded from applicability as per Article 3 (a). The question arises as to whether the CC also covers military airports, and notably as to whether the CC has to be applied for military airports that are inter alia used for international civil aviation. Neither Article 3 nor the whole Convention does refer or mention military aerodromes. Both attached agreements, the International Air Transit Agreement and the International Air Transport Agreements refer to aerodromes for military purposes. The Articles 1 of both agreements prescribe that the privileges which are the defined freedoms of the air are not applicable at airports for military purposes to the exclusion of any scheduled international air services. This means that military aerodromes serving scheduled international air services are considered and recognised. The Preamble of the CC states that the development of international civil aviation is targeted. In result, one can derive that military aerodromes are not subject to the CC. However, military aerodromes that serve for international civil aviation will have to be regarded similar to civilian aerodromes serving scheduled international air service. This is due to the fact that the envisaged safety in the Preamble of the CC has to be ensured for civilians in both cases.

3.4.3

Landing at Customs Airport

Through Article 10 of the CC, every aircraft which enters the territory is committed to land at a designated airport of a state for the purpose of customs and examinations. The departure also must be conducted from a designated customs airport. These provisions apply except when under the terms of the CC or a special authorisation, aircraft are permitted to cross the territory of a Contracting State without landing. Consequently, Article 10 restricts the right to land during non-scheduled flights

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defined in Article 5 to customs airports.193 Departure of an aircraft of a Contracting State is accordingly also restricted to customs airports. As per Article 10, these custom airports must then be designated, published and communicated to ICAO. States shall communicate information on special national custom regulations to ICAO. In addition, customs procedure in accordance with international recommendations as per Article 23 shall be established. The authors also prescribed in this Article that the establishment of customs free airports is not prohibited. Further principles and guidelines for customs are laid down in Article 24.

3.4.4

Airport and Similar Charges

Article 15 of the CC defines relevant provisions for aerodromes. Accordingly, each aerodrome of a Contracting State which is open for public use subject to the provision of Article 68 shall be open for aircraft of all other Contracting States under uniform conditions. Uniform conditions shall thereby apply for the use of all air navigation services (e.g., radio and meteorological services). Imposed charges for foreign aircraft shall not be higher than those for national aircraft. This applies to aircraft engaged in scheduled and non-scheduled international air services. The charges shall be published and communicated to ICAO. In case a Contracting State desires, the charges imposed for airports as well as other facilities shall be subject to review by the ICAO Council. As a consequence, airport charges shall be transparent.194 Article 15 does not indicate that foreign aircraft have automatically traffic rights at a national aerodrome.195 Traffic rights are based on Article 5 and 6 of the CC. Nonetheless, if an aircraft is granted with a traffic right, it has to be treated under uniform conditions as per Article 15. The last sentence of Article 15 prescribes that “No fees, dues or other charges shall be imposed by any contracting State in respect solely of the right of transit over or entry into or exit from its territory of any aircraft of a contracting State or persons or property thereon.” It can be derived that states shall not gather fees that are not going to remunerate air navigation facilities used.196 Cloppenburg derives requirements for aerodrome charges from the wording in Article 15 of the CC.197 The same is also recommended by ICAO, as follows:198 “It is recommended that States (i) permit the imposition of charges only for services and functions which are provided for, directly related to, or ultimately beneficial for, civil aviation

193

Birmanns (2001), p. 99f. Graham (2008), p. 152. 195 Haanappel (2003), p. 45. 196 Giemulla and Weber (2011), p. 40. 197 For further details see Cloppenburg (2006), p. 187. 198 ICAO, Doc 9082—ICAO’s Policies on Charges for Airports and Air Navigation Services, 3rd edition, 2012, p. I-1. 194

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operations; and (ii) refrain from imposing charges which discriminate against international civil aviation in relation to other modes of international transport.” Airport charges can represent a significant portion of the overall cost of airlines.199 Article 15 targets non-discrimination and uniformity covering the cost of the facilities and services. Imposing charges for only crossing the territory is therefore not allowed. The same can be derived from the International Air Transit Agreement. The agreement restricts the principle of air sovereignty as per Article 1 of the CC and grants the right associated with Article 6 of the CC on a multilateral basis.200 In fact, many geographically large states like Brazil, China, Indonesia, Canada and Russia did not ratify the agreement. This fact, as well as the large envelope of these states, led to complications for international airlines in terms of their flight route planning. An airline which is going to fly above Siberia, for instance, is requested to pay overflight charges.201 These states started to negotiate on fees for overflight rights. This right is often used by states as a political and economic leverage. The same applies to states like China and Indonesia.202 Schladebach says, in this regard, that air sovereignty has become politicized and customised, which is against the principles of aviation law.203 Milde goes further and reveals that Russia has even charged fees as commercial payments to Aeroflot204 for the right to overfly its territory.205 The opposing view of Russia is that these “fees” are not considered to be “fees” but “royalties” to grant foreign aircraft commercial entrance.206 Today, some airports are not open under uniform conditions as per Article 15 of the CC.207 There are states that do not treat foreign airlines the same as national airlines. Based on Article 15, a Contracting State would have the right to consult the Council for a recommendation. However, the text of the CC leaves open as to whether a state is bound to a recommendation of the Council.208 The term “recommendation” implies a non-binding effect based on the reporting power in Article 54 (j). Article 15 does not mention what happens if a state does not follow the recommendation.209

199

Giemulla and Weber (2011), p. 41. In the following Schladebach (2018), p. 50. 201 Baum et al. (2000), p. 332. 202 Haanappel (2003), p. 20. 203 Schladebach (2018), p. 50. 204 Russian aircraft operator. 205 Milde (2004), p. 455. 206 This legal challenge and a possible violation to the CC, in this regard, will not be further discussed here, as the topic is not aerodrome related in the first instance. For more details on this legal issue see Schladebach (2018), p. 50; Giemulla and Weber (2011), p. 41ff. 207 Bailey (1994), p. 99. 208 Cooper (1965), p. 340. 209 Huang (2009), p. 198. 200

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Moreover, Article 15 does not answer if states are also given the authority to impose charges for other than the use of such airports or facilities.210 For instance, it is not answered if the use of air navigation facilities does also cover the air traffic control services either located at the aerodrome or within the state territory. Similarly, the Convention does not discuss how airport charges are to be calculated or how states may challenge excessive user charges. No clarification in the Annexes to the Convention is related to user charges for airports and air navigation services as well. The ICAO Council has developed some recommendations in this context on Charges for Airport and Air Navigation Services211 and Air Navigation Service Economics.212 Notwithstanding, these recommendations do not have the force of law. Margo sees in Article 15 a lack of regulation and recommends ICAO to enforce Standards in this regard.213 However, this target could also face challenges by the other Contracting States, as the majority of states will not have the political will to manifest international economic regulation.214 At first glance, Article 15 of the CC has a purely economic and non-discriminatory nature. However, ICAO does also derive a technical principle for aerodromes from this provision. ICAO defines that the uniform conditions as per Article 15 are achieved by aerodrome certification.215 Though, the aerodrome certification does not comprise an examination of airport charges but the technical specification in Annex 14.216 Therefore, it can be concluded that the uniform conditions in Article 15 also apply to technical uniformity of aerodromes required by the CC.217

3.4.5

The Chicago Convention Allowing Operation of an Unsafe Aerodrome

3.4.5.1

Designation of Airports and Improvement of Air Navigation Facilities

The Contracting States may designate the airports that international air services may use as per Article 68. Further, states may define air routes within their territory which

210

Cooper (1965), p. 340. See ICAO, Doc 9082—ICAO’s Policies on Charges for Airports and Air Navigation Services, 2012, Section II. 212 See ICAO, Doc 9161—Manual on Air Navigation Services Economics, 5th edition, 2009, p. 5. 213 Margo (1995), p. 56. 214 Hartmann (2007), p. 51ff. 215 In the following ICAO, Doc 9734—Safety Oversight Manual, Part A, The Establishment and Management of a State’s Safety Oversight System, 2nd edition, 2006, para. 3.7.3.7. 216 ICAO, Annex 14—Aerodromes, 2018, para. 1.4.1. 217 The same conclusion is also drawn by Addy. See Addy (2008), p. 33f. 211

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aircraft for international air service may use. Article 68 does not mention non-scheduled international air service. Therefore, non-scheduled air traffic is privileged upon scheduled air traffic,218 since states are allowed to restrict aircraft operation to certain airports and air routes. The Articles 10 and 68 play a huge role as they impose legal responsibility upon the state. Each Member State is responsible under international law for any liability arising from actions taken at its airports.219 Neither a state nor an aerodrome can avoid liability. It is noted that many states fail to designate or to update the list of aerodromes in accordance with Article 10 and Article 68 of the CC.220 The International Air Transit Agreement Article 1 (Section 4) and the International Air Transport Agreement in Article 1 (Section 5) include the text of Article 68 of the CC. Consequently, the provisions from Article 68 apply to the first five Freedoms of the Air. In case the Council has the perception that airports, air navigation facilities, including radio and meteorological services are not safe, regular, efficient or economical, the state and other affected states shall be consulted by the Council in order to examine possible recommendations as per Article 69. No state shall be guilty of an infraction of the Convention in case it fails to fulfil the recommendation. According to Article 70, the state may conclude an arrangement to give effect to the recommendations. Further, the state can decide to bear all related costs. If this is not possible, the state may request the Council to provide a portion or all the costs. As per Article 71, the Council also may provide manpower to administer and maintain airports and air navigation service in order to ensure compliant and thereafter safe operation. For this service, the Council may specify reasonable fees. If land is needed for facilities the Council financed, the state shall either provide it by retaining title or facilitate the use under reasonable terms and according to national laws as per Article 72. Article 73 stipulates that the Council may within the limits of the funds which may be made available to it by the Assembly, meet the current expenditure for the aforementioned purposes from the general budget of the Organization. Further, the Council assesses the sum of the required capital funds. The Council shall transfer the capital funds in agreed proportions over a specified period to the Contracting States whose airlines use the facilities. Article 74 defines that in case the Council advances funds upon request by the state for the establishment of airports or other air navigation facilities, the agreement may contain, with the consent of the state, technical assistance by the Council for the supervision and operation of the airports and other facilities. Related costs and charges may be paid out from the revenue of airports and facilities. According to Article 75, if the state aims to take over airports and other facilities provided by the Council, the state should pay a for the Council a reasonable amount. Abeyratne says correctly that the principle of joint financing of air navigation services under the CC is foreseen with these provisions which shall

218

Birmanns (2001), p. 92. In the following Abeyratne (2014), p. 51. 220 IAOPA, Incorporating General Aviation into ICAO Annex 14, Aerodromes, 2010, p. 1. 219

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create understanding and friendship among nations.221 One can also add that these rules express the intent of burden sharing in order to be effective. In result, the provisions from Articles 69–75 entailing the possibility of getting support by ICAO for the development of aerodromes (and other air navigation facilities) do not represent an obligation towards states but an offer. The authors of the CC had at the Chicago Conference in 1944 the impression that “without such provisions, international air transportation might be hampered by a lack of airports in strategically located States that were either unwilling or unable to provide adequate facilities”.222 Nonetheless, it has to be mentioned that a state is not completely free in consulting the ICAO Council for help as per Article 70 and 71, it is more considered as a last option. The Assembly Resolution mentions in this regard that “[a] Contracting State will exhaust all possibilities of arranging directly for the provision of adequate air navigation facilities and services before applying to ICAO for aid.”223 So, if a Contracting State approaches ICAO, the Council will “ascertain the additional requirements for the operation of international air services, and to initiate expeditious action towards meeting these requirements.”224 In case the Council approves financial or technical help this will “aim to provide air navigation facilities and services adequate, but no more than adequate, to meet the requirements of international air services (. . .)”.225 “ICAO will satisfy itself in every case that circumstances actually require financial and technical aid through the Organization.”226 As a matter of fact, the optimistic wording used in the Articles 69–75 of the CC does definitely not mean that there is a simple process for getting this support in reality.

3.4.5.2

Operation of Non-compliant Aerodromes

As aforementioned, Article 69 stipulates that states shall not feel guilty of an infraction to the CC if they fail to carry out recommendations made by the Council based on the fact that the aerodromes were deemed as not safe. One could ask if this means that an aerodrome could, in this case, stay open under unsafe conditions and continue to serve for international air traffic. According to the text, it says if the state “fails to carry out”. As per the Cambridge Dictionary “to fail” means “to not succeed in what you are trying to achieve or are expected to do”. The term “to fail” thus indicates that there must be an intention of a state to carry out the envisaged recommendation. A “fail” might be considered as a factor preventing the state

221

Abeyratne (2013), p. 627. ICAO, Final Act and Appendices—Convention on International Civil Aviation, 1944, p. 649. 223 Assembly Resolution A1-65 (1947): Joint Support Policy, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, para. 3.4, p. IV-2. 224 Ibid., para. 3.2, p. IV-2. 225 Ibid., para. 3.3, p. IV-2. 226 Ibid., para. 3.6, p. IV-2. 222

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from achieving the goal which is out of states’ hand. Not having enough financial capabilities does not seem to convince in this case, as the state has the possibility to ask the Council for the costs as per Article 70. Therefore, what would be the case if the aerodrome of a state is not compliant with SARPs, the Council deems the aerodrome as not safe and makes recommendations to the state, but the state does not follow them with or without a reasonable cause? ICAO is, in this context, not authorised by the CC to investigate if the state actively tried and consequently “failed” to implement the associated recommendations. Article 69 does not address what will happen to the aerodrome if the recommendations are not implemented. Although it would be against the purpose and the objective of the CC to not do everything possible to apply those recommendations, it is recognised as a possible case. The aerodrome availability for international air service would then not be prohibited by the CC though being not uniform and not safe, which is against the targets set in the Preamble of the CC. It would make sense for all parties to exclude this aerodrome from the participation in international air navigation. Since the target of the CC is according to the Preamble, the “development of international air navigation in a safe and orderly manner.” However, there is no legal basis in the CC to enforce that. In regard to international aerodrome regulation, this is seen as a weakness of the CC. Unsafe aerodromes can serve for international air service. A further question that arises is in regard to the first sentence in Article 69. It says here: “If the Council is of the opinion that the airports (. . .) are not reasonably adequate for the safe, regular, efficient, and economical operation of international air services (. . .) the Council shall consult with the State directly concerned (. . .)”. When does this process start? Does ICAO have a defined procedure that determines how exactly an unsafe aerodrome looks like? Are Contracting States requested to notify ICAO when they notice an aerodrome which is operated unsafely? The CC is completely silent on these questions. Ideally, the ICAO should start to consider if an aerodrome could be operated unsafely at least when a state notifies ICAO about differences to Standards with regards to aerodromes as per Article 38. In this case, a different approach is taken by the state, which could but does not have to be safe. Also, when states indicate that aerodromes in other states are operated unsafely, ICAO should start to act and consult. Another obvious trigger is when ICAO receives information on incidents at an aerodrome. However, in some cases, this might be too late. In this context, ICAO mentions the following “It should be noted, however, that the filing of differences with respect to international Standards does not mean that a State can then continue to do business as usual. Several articles of the Convention make it clear that if Standards adopted by a State are lower than those required by ICAO, aerodromes, aircraft, service providers or personnel with licences or certificates endorsed by that State cannot participate in international air navigation, except with the permission of the State or States whose territory is entered. The responsibility to obtain such permission is that of the individual or civil aviation organization whose certificate has been so endorsed, although a State may also

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request blanket permission on behalf of its licence or certificate holders”.227 However, as far as aerodromes and especially Article 69 is concerned, there is no legal evidence in the CC clarifying that aerodromes could in this matter be excluded. ICAO does not mention, in this connection, the Article that allows this opinion and interpretation.

3.4.6

The Chicago Convention Allowing Construction of an Unsafe Aerodrome

3.4.6.1

States’ Responsibility Towards the Development of Aerodromes

An important obligation for infrastructural and operational requirements is laid down in Article 28. Article 28 (a) requires states to provide in their territory airports and air navigation facilities. Article 28 (b) goes further and requires states to implement visual aids (standard systems of markings, signals and lighting) and to put in operational practices. Article 28 (a) and (b) comprise infrastructural elements of an aerodrome. As per Article 28, both infrastructural, as well as operational requirements, have to be in accordance with SARPs. The state has the ultimate responsibility to make airports available within its territory.228 Irrespective of the business status of an aerodrome—either operated privately or governmentally—a state is required to hold the responsibility towards its airports.229 This is derived from the request in Article 28. Also, for privately operated aerodromes, legal responsibility is imposed on the State.230 Apparently, the authors of the CC foresee the provision of air navigation facilities as more important than aerodromes. This fact derives from Article 22 where states are required to adopt all practicable measures to facilitate and expedite aircraft navigation between states. Based on the importance of this provision, states are also requested to develop regulation for these measures. Article 22 does, in this context, not oblige states to adopt measures to facilitate the development of aerodromes. Consequently, the primary goal is to establish an infrastructure that allows air navigation between states and the secondary goal is to establish an infrastructure on the ground to make landings possible.

227

ICAO, Doc 9734—Safety Oversight Manual, Part A, The Establishment and Management of a State’s Safety Oversight System, 2006, para. 3.3.3.2. 228 Giemulla and Weber (2011), p. 57; Abeyratne (2014), p. 2. 229 Abeyratne (2011), p. 314. 230 Ibid., p. 316.

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91

Construction of Non-compliant Aerodromes

Article 28 requires states to establish aerodromes. This Article is accompanied by Article 44 (c) where the ICAO has to encourage the development of among other airports. One can ask whether a state would violate against the CC if it does not provide aerodromes. Article 28 contains the term “as far as may be practicable”. Schubert has the perception that this term relates to the compliance with SARPs mentioned in this Article. He goes further and says that states are not fully committed to being compliant with the SARPs and links the aforementioned term to Article 38, where deviation is allowed.231 It is more likely that this term is associated with the provision and establishment of aerodromes. This is due to the fact that the term is located at the beginning of the sentence, far away from the term “in accordance with standards and recommended practices”. The term “as far as may be practicable” was more likely put at the beginning of the sentence in order to refer to all three bullet points. The term “as far as may be practicable” does thus refer to the provision (Article 28 (a)), the adoption (Article 28 (b)), and to the collaboration (Article 28 (c)). The provided discretion, therefore, refers to the provision of aerodromes and not to the adherence to SARPs. If a state has the possibility to provide aerodromes, it shall do so. And, if it does, aerodromes shall be in accordance with SARPs. Given the fact that airports are the biggest single investment projects for the civil infrastructure of states,232 discretion was given to the State.233 The state may consider its capabilities for the development of such projects—especially being in the time of redevelopment after WWII. If the term would imply that states have discretion towards compliance with SARPs this would be against the “safe and orderly” principle of the Convention defined in the Preamble of the CC. The CC does not mention what happens in case a state does not adequately provide aerodromes.234 One might ask if a state than contradicts the principles of the CC or if the state would violate against Article 28. States are granted with the right to define on their own how many facilities could be provided.235 If the state has not the financial capabilities, it can ask the Council to bear for the costs as per Article 70, but it is not bound to do so. In case a state would not intend to provide aerodromes for international air traffic—though having the means to provide—it would act against the target of the CC. The Preamble mentions here the development of international air navigation. Even though, the state would, however, not infringe the CC due to the provided discretion. Notwithstanding, it is not defined what the term “practicable”

231

Schubert (2017), p. 89. Faller (1984), p. 418. 233 Abeyratne (2013), p. 120. 234 Haanappel (2003), p. 48. 235 Cloppenburg (2006), p. 56f. 232

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comprises. Thus, Article 28 cannot be seen as an absolute obligation forcing states to provide aerodromes.236 The analysis of Article 69 derived that the CC does not prohibit an aerodrome that is not considered as safe from taking part in international air service. This work showed off that aerodrome provisions are mainly based on operational as well as infrastructural requirements. Therefore, it must also be analysed if the construction (i.e., the infrastructural part-either expansion or new development) of an aerodrome based on safe ICAO requirements is ensured. One could ask now first if a state would infringe the CC if it builds and provides aerodromes that are not in accordance with SARPs. This is illustrated when a state does not follow Recommended Practices and notifies, e.g. differences to many Standards. As a consequence, the second question arises as to whether an aerodrome that is constructed not compliant with SARPs can accommodate international air traffic. Article 28, as well as the Articles 68–75, do not answer these questions. Although, Article 28 prescribes the provision of aerodromes in accordance with SARPs. The latter are governed by Article 37 and 38 and according to Article 54 (l) located in the Annexes to the Convention. This means that Article 28 does not regulate SARPs. Based on the conducted analysis of the legal binding effect of SARPs, the following has to be manifested. The Standards are binding unless a state opts out according to Article 38. The Recommended Practices must be followed at least in good faith. This means that the introduced example could happen. In result, the CC allows the construction of an aerodrome based on requirements other than those defined in SARPs—without having assurance if these “other guidelines” are safe for international air service. Other requirements could also be sufficient, but it is not ensured by the ICAO that they are safe. Hence, the CC does not foresee the construction of aerodromes based on other requirements as an infraction to the Convention. Firstly, the principle of uniformity is not guaranteed. Secondly, unsafe aerodrome could be built and would be available for international air traffic. This shortcoming in Article 28 reflects the aforementioned problem in Article 69. In both cases, non-compliance with SARPs and shortcomings or deficiencies in safety cannot be categorised as infractions of the CC, since a violation is not applicable to the SARPs that are contained in the Annexes to the Convention.237 A legal contradiction can be derived from a comparison between the Articles 28 and 69 with Article 22. Article 22 obliges states to take action in order to prevent constraints. As the state is requested to take measures “and to prevent unnecessary delays to aircraft, crews, passengers and cargo,”. This would be the case when traffic congestion happens. ICAO wanted to prevent through this provision, disturbance of handling processes at aerodromes.238 Slenczka mentions thereby that if granted with the traffic right, states are obliged to provide the promised facilities and not to allow

236

Birmanns (2001), p. 87f. Abeyratne (2013), p. 577. 238 Buergenthal (1969), p. 110. 237

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congestion.239 The provision in Article 22 does not contain the requirement of adhering to SARPs. Therefore, there is no flexibility foreseen in this Article. The CC does not allow any constraints. However, the development and the operation of aerodrome could be jeopardised through deviation from SARPs.

3.5 3.5.1

Aerodrome Planning in the Technical Drafts of the Annexes Establishment of Provisions for Aerodromes

The Annex to the CC that primarily deals with aerodrome planning is Annex 14 for Aerodromes.240 This document contains in accordance with Article 37 International Standards and Recommended Practices for aerodromes. However, these provisions were not published at the same time as the CC was signed. The first version of Annex 14 became effective on 1st November 1951.241 It was defined that these rules shall come into force on 1st June 1952 for aerodromes “used as regular or alternate aerodromes by international air services.” Thus, and having in mind that the CC was concluded in 1944, provisions for aerodromes had to be developed first. The aim of this chapter is to analyse if aerodrome provisions had been developed since the Paris Convention. Therefore, the technical draft Annexes that were adopted together with the conclusion of the CC will be analysed. The final acts and appendices of the CC contained the drafts of 12 technical Annexes (A-L).242 As per the foreword of the first version of Annex 14, Annex A to the Convention dealing with Airways Systems was developed in 1944 at the Chicago Conference.243 It posed the basis for the development of Annex 14. Annex A has a technical nature and discusses mostly infrastructural requirements. Contrarily, Annex D to the Paris Convention also contained operational requirements. The content and topics of Annex D are not only included in Annex A but also in Annex B (Communication Procedures and Systems) and Annex C (Rules of the Air).244 Some additional

239

Slenczka (1998), p. 13. ICAO, Annex 14—Aerodromes, 2018, p. xiii. 241 In the following ICAO, International Standards and Recommended Practices—Aerodromes— Annex 14 to the Convention on International Civil Aviation, Aerodromes, 1st edition, 1951, p. 5. 242 International Civil Aviation Conference, Proceedings of the International Civil Aviation Conference: Chicago, Illinois, November 1–December 7 1944, Series: Department of State publication. International organization and conference series, 4, 1948, p. 4f.; See also Milde (1984), p. 121. 243 ICAO, International Standards and Recommended Practices—Aerodromes—Annex 14 to the Convention on International Civil Aviation, Aerodromes, 1951, p. 5. 244 Knauth has conducted a comparison between the technical Annexes of the Paris Convention and the technical Annexes to the CC. However, he derives that aerodrome characteristics have not been discussed in Annex D to the Paris Convention. The Paris Convention did not envisage a dedicated annex for aerodromes. Notwithstanding, the Convention included, as aforementioned, 240

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operational requirements for aerodromes could also be found in Annex D (Air Traffic Control Practices).

3.5.2

Development of the Technical Draft Annexes

During the International Civil Aviation Conference, different committees were established to develop the Annexes.245 The Subcommittee 1 of the Technical Committee II commenced work based on a prepared document by the United States delegation dealing with Communication Procedures and Systems as well as Airways246 Systems and others. In order to handle the work better, the Subcommittee was divided into two groups—with Sub-subcommittee 1B dealing with Airways Systems. Sub-subcommittee 1B had difficulties to develop regulation. The reason for that was that there was no existing international research background for the subjects except for lighting of landing areas as well as for marking of airways. Therefore, detailed specification had to be developed. Further, general requirements dealing with related subjects were postulated because additional detailed studies were conducted by other committees. The Sub-subcommittee 1B came to the conclusion that the document related to Annex A—Airways Systems can in this status not be considered as more than a basis for further examinations by committees.247 The Sub-subcommittee had the opinion that this document is a mixture of generalities and in-depth details. Airways and associated necessary facilities were described only in general. Whereas visual aids (markings, signs and lighting) were specified in great detail prescribing minimum requirements for landing areas as well as for airways. Sub-committee 1A dealing with Annex B—Communication Procedures had a more solid background of existing procedure.248 Ultimately, it was recommended to continue with the development of these Annexes after the conference based on arising works.249 A committee in the future shall deal with physical characteristics, lighting, and marking standards for landing areas as well as Standards for visual and mechanical aids (other than radio aids) to air navigation. Subcommittee 2 of the Technical Committee II dealt with the provisions

infrastructural and operational aerodrome provisions in Annex D. For further details see Knauth (1944), p. 763. 245 In the following International Civil Aviation Conference, Proceedings of the International Civil Aviation Conference: Chicago, Illinois, November 1–December 7 1944, 1948, p. 775ff. 246 An airway is a designated path through the navigable air space, identified by an area of a specified width on the surface of the earth. The definition is provided in ibid., p. 183. 247 Ibid., p. 776. 248 Ibid., p. 775. 249 In the following ibid., p. 776f.

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for Annex C and D.250 The Subcommittee developed two draft Annexes to the greatest possible extent of refinement and requested all Contracting States to study both Annexes. Consequently, any recommendations should be sent to the associated committee of the Interims Council. Annex A was reviewed and amended at the First Session of the PICAO Subcommittee on Airways Systems, Landing Areas and Ground Aids in 1945, and at the Second Session of the Aerodromes, Air Routes and Ground Aids Division (AGA) in 1946.251 In September 1947 at the Third Session, the division developed and submitted the material in the form of International Standards and Recommended Practices that were forwarded to the states for comment in the first quarter of 1948. Based on that, the ANC further developed Standards and Recommended Practices during 1949 and submitted them for comment to the states together with additional recommendations made in November 1949 at its Fourth Session for commenting by October 1950. Afterwards, the ANC made some amendments resulting in the adoption of the Annex by the Council as Annex 14.

3.5.3

Annex A: Airways Systems

3.5.3.1

Definitions

Annex A defined an airfield as any landing areas on the ground at which no facilities are available for public use “for the shelter, servicing, or repair of aircraft or for receiving or discharging passengers or cargo.”252 On the contrary, airports could also be landing areas on water and had to have facilities for public use and discharging passengers and cargo. Further, the term “international airport” was defined. Thereby, an international airport is an airport available or used for international air service. A landing area is defined as any surface of land or water prepared or selected that is used or intended to be used for landings and take-offs. A runway has been defined as a surfaced path along which aircraft land or take-off from. Hence, the difference between a runway and a landing area is that a runway has a surfaced path.

250

Ibid., p. 860f. In the following ICAO, International Standards and Recommended Practices—Aerodromes— Annex 14 to the Convention on International Civil Aviation, Aerodromes, 1951, p. 5. 252 The text of Annex A is included in International Civil Aviation Conference, Proceedings of the International Civil Aviation Conference: Chicago, Illinois, November 1–December 7 1944, 1948, p. 183ff. 251

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Types of Landing Areas

Annex A divides between land airports and water airports. For land airports, three different types were defined.253 The definition of airports was aimed in order to ensure uniformity in classification. Class A—Transoceanic were land airports that have at least one surface instrument runway 7000 ft (2150 m) or more long, capable of safely accommodating the continuous operation of aircraft having a wheel load of 75,000 pounds (34,000 kg), or a gross weight of 150,000 pounds (68,000 kg). The Class B—Transcontinental airports had a runway length of 5000 ft (1500 m) useable for aircraft with a wheel load of 50,000 lbs (22,500 kg) and an aircraft gross weight of 100,000 lbs (45,000 kg). Class C—Interstate were airports with lower values for runway length (3500 ft/1050 m), wheel load (30,000 lbs/13,500 kg), and gross weight (60,000 lbs/27,000 kg). A further difference between Class C and Class A & B airports was that Class C airports did not need an instrument runway. That was only necessary for Class A and B airports. However, Annex A does not provide information on what an instrument runway is, and how it has to be equipped. This outlines that some aerodrome aspects in 1944 were not determined in detail and evinces the fact that Annex A was not mature enough for worldwide application. All three classes have the same requirements for facilities which are drainage, day airport marking, land airport lighting, wind indicator, land direction indicator, refuelling, shops, hangar, storage facilities, meteorological facilities, office space, two-way radio facilities and airport traffic control facilities. Appropriate facilities shall be implemented for customs, immigration, and quarantine.

3.5.3.3

Types of Airways

The Annex distinguished between three types of airways.254 Class A—Transoceanic are airways having Class A land or water airports, airfields, landing area contact flight aids (including lighting), instrument aids to navigation, instrument aids to takeoff, final approach and landing, communications services, air traffic control services (including warning of collision and aircraft distress services), and meteorological service, all as specified in the Annexes. Class A airways may also include instrument aids to taxiing. Class B airways have similar requirements with differences related to flight aids. Class C—Interstate airways have the lowest requirements. These are airways having Class C land or water airports, airfields, landing area day marking devices, communications service, aircraft distress service and meteorological services. Class C airways may include airways contact flight aids, landing area

253

No. 3 of Section III defines provisions for land airports and No. 4 for water airports. See ibid., p. 188ff. 254 Ibid., p. 188.

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luminous marking devices, instrument aids to navigations, instrument aids to takeoff, final approach, and landing, instrument aids to taxiing and air traffic control service.

3.5.3.4

Obstructions

The Annex differs between obstructions within the airport area and obstructions in the vicinity of the airport.255 Objects which are used or intended to be used for landings or take off within the airport area that are considered to be hazards shall be removed. If this is not possible, the objects shall be marked by day markers and luminous markers. This provision points out that there was a distinction made between day and night operation. For objects out of the airport area but in its vicinity, these shall be marked and illuminated if they infringe so-called obstruction marking surfaces.256 These are the Horizontal, Approach and Transitional surfaces. They have different characteristics. For instance, the Approach surface extends from the end of the runway to a distance of 2 miles (3.2 km). In fact, these surfaces are the precursor of today’s Obstacle Limitation Surfaces as per ICAO Annex 14.257

3.5.3.5

Airfield

In order to ensure uniform classification, airfields were separated into three different classes.258 Military airfields are maintained and operated only for military purposes and are not open for civil use. Intermediate airfields are those landing areas in the vicinity of airways opened for both military and public use but do not have facilities for handling passengers or cargo. Private airfields are those landing areas that are for individual purposes and not open to either public or military use.

3.5.3.6

Visual Aids

Annex A contains detailed provisions on visual aids.259 Generally, there is a distinction between Ground aids to Contact Flights and Ground aids to Instrument Operation. Ground aids to Contact Flight include day marking devices furnishing visible information and points of reference for use during daylight and furnishing visible information and points of reference during night. Thereby, it is defined how

255

Ibid., p. 189. Ibid., p. 189. 257 ICAO, Annex 14—Aerodromes, 2018, Chapter 4. 258 International Civil Aviation Conference, Proceedings of the International Civil Aviation Conference: Chicago, Illinois, November 1–December 7 1944, 1948, p. 191. 259 Ibid., p. 191f. 256

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and where elements should be marked at the airport. For example, it is defined how taxiways have to be marked. Accordingly, all markings on taxiways shall be chrome yellow. Similarly, it is defined that all signs shall consist of characters having a colour approximating chrome yellow placed on a black background. Also, the height of the signs was defined. With regard to lighting, there were many provisions in Annex A. One example is that at least one wind direction indicator shall be lighted or illuminated at each landing area. Annex A also contains provisions for airfield and land airport runway lights as well as lights for boundaries. The provisions for Ground Aids to Instrument Operation were less than for Contact Flights. They encompass provisions for instrument aids to navigation, final approach and landing, taxiing, take-off, collision warning, search and rescue operation as well as air traffic control. In result, Annex A contained many provisions that were new at that time—notably for visual aids.260

3.5.3.7

Technical Differences to the Aerodrome Provisions in the Paris Convention

New topics and content developed during the wartime. In comparison to the Paris Convention, runways should now be determined based on the aircraft types operating on it. The runway itself also had requirements that have to be fulfilled like provisions towards grading. A completely new system was defined for visual aids (markings, signs, and lighting). Runways should, for instance, have runway edge lighting, whereas the Paris Convention only required to illuminate the different aerodrome areas for take-off and landing. A further new development was the definition of obstacle limitation surfaces in order to ensure safe departure and landing. Thereby, any obstruction should not penetrate these surfaces. Obstacle clearance was to this time only dealt with in national legislation. Annex A also introduced ground aids to instrument operation that contained requirements for radio communication. All these provisions are the basis of the development of today’s Annex 14 to Aerodromes.

3.5.4

Annex B: Communication Procedures and Systems

The definition section of Annex B laid down some terms that had relevance for an aerodrome.261 An Airport Control Tower was defined as a facility within an airport control sector to provide adequate supervision of air traffic. Further, the Annex

260

Visual aids comprise marking, signs and lighting. The text of Annex B is included International Civil Aviation Conference, Proceedings of the International Civil Aviation Conference: Chicago, Illinois, November 1–December 7 1944, 1948, p. 203ff.

261

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defined alternate and intermediate landing areas. Both should be defined in the flight plan. An intermediate landing area should be used for a layover and an alternate landing area if the flight cannot be conducted to the final destination. Moreover, Annex B laid down rules for the communication between pilots and ground stations. For example, the pilot should conform to the given instructions by the ground station. Also, appropriate behaviour during abnormal operation was defined— namely when the communication is interrupted. In addition, rules were developed that described the interaction with an airport traffic control centre before and after the conduction of a flight. The communication procedures in the Paris Convention were defined in Annex D.262 The content in Annex B to the CC has developed to a great extent compared to the Paris Convention.

3.5.5

Annex C: Rules of the Air

The Annex defined the airport traffic zone as the usable surface of an airport and the airspace above having a radius of at least 5 miles around the airport centre.263 Airport traffic was thereby defined as both aircraft operating in the airport traffic zone as well as vehicle operating on an airport. An airport control sector was the area in which air traffic is subject to the supervision of an airport traffic control tower. The definitions section contained a definition for the usable surface of an airport. This was the surface comprising areas where landing, take-off, and manoeuvring were conducted by an aircraft. Annex C laid down operational rules that have to be followed for departure and landing. In this context, a clearance either per radio or visual signal had to be requested in order to depart from the airport. It was further prescribed that unless another advice is issued by the tower or ground signals at an airport, approaching aircraft and departing aircraft shall always turn to the left; and aircraft that does not intend to land shall avoid the pattern of air traffic within the airport traffic zone. Annex C also introduced new provisions regarding instrument flight rules. Pilots should comply with them when flying within the airport control sectors or an airport traffic zone.

262

Knauth (1944), p. 763. The text of Annex C is included in International Civil Aviation Conference, Proceedings of the International Civil Aviation Conference: Chicago, Illinois, November 1–December 7 1944, 1948, p. 220ff.

263

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Annex D: Air Traffic Control Practices

Annex D clarifies that an Annex must have been read in context to the other Annexes since some references were made to other Annexes—namely Annexes B and C. The objective section obliged the air traffic control to prevent aircraft collision on the airport and in the airspace.264 Further, interference with departing and landing aircraft should also be avoided. But also preventing collision of aircraft and obstacles on the airport was thematised. This should be ensured by warning taxiing aircraft of any parked aircraft near to the taxi route. In addition, the tower was obliged to control vehicles and persons on the ground with the aim to not pose a hazard for operating aircraft. Moreover, the state was required to designate the boundaries of the airport control sector. Air Traffic Control facilities should also have light equipment to guide aircraft not equipped with radio. The Annex defined different messages by showing different colours to the pilots. Different information was also determined that should be issued to inform the pilot of the airport condition: 1. Construction work along or near the runway in use. 2. Rough or soft portions of the usable surface of the airport, whether marked or not. 3. Any maintenance apparatus or workmen on or near any portion of the usable surface of an airport which the person in command of an aircraft might elect to use. 4. Slippery condition of runways or taxiways. 5. Snow piled or drifted on or adjacent to the usable surface of the air ort. 6. Failure or irregular functioning of any portion of the airport lighting system. 7. Aircraft parked close to runways or the usable surface of the airport. 8. Floating objects, buoys, or other obstructions which may be a hazard to aircraft alighting on water. Many further provisions were defined in Annex D that derive operational requirements for aerodromes.

3.5.7

Aerodrome Regulation Between 1944 and 1951

The provisions for aerodromes have developed remarkably in terms of infrastructural and operational requirements compared to the Paris Convention. The drafting of the technical draft Annexes was one of the major accomplishments of the Chicago Conference.265 They were planned to be a crucial part of the CC after going through the study process. Until 1944, there had never been worldwide acceptance in regard to technical aerodrome provisions. The adherence to the Paris Convention was 264

The text of Annex D is included in ibid., p. 226ff. In the following Washington, D.C.: Division of Publications, Office of Public Affairs, Aspects of United States Participation in International Civil Aviation, 1948, p. 28.

265

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limited to a certain region. Due to the fact that Annex 14 came into force in 1951266 (7 years later than the origin of the CC), the question arises as to which international regulation have been applicable to aerodrome planning during that period of time. The literature is silent on the regulatory gap between 1944 and 1951 for aerodrome provisions. One option could have been the provisional applicability of Annex A before the CC was ratified and afterwards before Annex 14 was adopted. In some cases, provisional applicability might have its benefits for the Contracting States.267 In this regard, Article 25 (1) (a) of the VCLT prescribes that a treaty or a part of a treaty are provisionally applied when the treaty itself stipulates this or when as per Article 25 (1) (b) this has been agreed on in another manner. However, this was not manifested in the CC. On the contrary, the proceedings of the CC mention in the introductory note that Annex A-L are “Drafts of Technical Annexes”.268 They were only signed as final drafts and referred to the Interim Council.269 Article 80 of the CC defines that each state shall denunciate participation either to the Paris or the Havana Convention immediately after coming into force of the CC. This was on 1st March 1947. Consequently, the Paris Convention and its Annexes were in force for almost 3 years after signage of the CC in 1944. The eight Annexes of the Paris Convention had 66 pages in the beginning and grew over the years to 156 pages by developing the Annexes.270 Special Committees were responsible within CINA to revise the texts of the Annexes to the Convention. The CINA stopped its work in 1940 when Paris was invaded.271 In terms of content, the drafts of the technical Annexes of the CC were more developed than the Annexes of CINA before the war. New provisions had been developed based on the experience gained during WWII.272 The latest developments of flying—namely the capability of aircraft flying all over the world by following uniform signals and procedures— had been considered in the draft technical Annexes of the CC.273 After closure of the bureau in Paris, CINA remained inactive during WWII.274 CINA realised that it was essential to update the technical regulations before the CC would be valid. Immediately after the signage of the CC in 1944, CINA’s Sub-Commissions and technical

266

ICAO, International Standards and Recommended Practices—Aerodromes—Annex 14 to the Convention on International Civil Aviation, Aerodromes, 1951, p. 5. 267 Ipsen (2014), p. 406. 268 International Civil Aviation Conference, Proceedings of the International Civil Aviation Conference: Chicago, Illinois, November 1–December 7 1944, 1948, p. 6. 269 Jenning (1945), p. 194. 270 Further information are available at https://www.icao.int/secretariat/postalhistory/ican_global_ prospects_reduced_to_regionalism.htm, accessed on 10.10.2018. 271 Thibeault (2008), p. 684. 272 Further information are available at https://www.icao.int/secretariat/postalhistory/ican_global_ prospects_reduced_to_regionalism.htm, accessed on 10.10.2018. 273 Washington, D.C.: Division of Publications, Office of Public Affairs, Aspects of United States Participation in International Civil Aviation, 1948, p. 28. 274 Further information are available at https://www.icao.int/secretariat/postalhistory/ican_global_ prospects_reduced_to_regionalism.htm, accessed on 10.10.2018.

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Committees conducted the review of the Annexes to the CC in order to consider amendments to the Annexes of the Paris Convention. A large number of changes were adopted in 1945. The aim was not only to bring the technical Annexes on an up-to-date status but also to guarantee a smooth changeover. The aforementioned question is, therefore, answered until 1947. For all Contracting States of the Paris Convention, the technical Annexes were updated based on the draft technical Annexes of the CC and were accordingly applicable. One insight of Chapter 2 was that even non-Contracting States of the Paris Convention had adhered to the technical provisions due to the fact that these were internationally generated and supposed to be the best-consolidated practices. One might assume that accordingly, the status of the technical Annexes to the Paris Convention—being the same for the CC and the Paris Convention—were applied between 1944 and 1947 universally. These provisions have been reflecting the actual state of the art. For instance, states that were parties of the Havana Convention might have applied these provisions, since the Havana Convention had no technical annexes. It is also assumed that states that did not consider signing the CC at that time will have followed these provisions since economical capabilities after WWII were limited and the development of own provisions for aerodromes and other areas of aviation would have afforded many expenses. Compared to the other Annexes to the CC, Annex 14 was adopted late in 1951, 4 years after the entry into force of the CC. Annex 1—for instance—was adopted earlier in 1948 right after ratification.275 The study of provisions for aerodrome took more time. An indication for the type of aerodrome provisions that have been applied between 1947 and 1951 has not been obtained. A presumption in favour of the fact that Annex A might have been applied until the adoption of ICAO Annex 14 is represented in the statement of the Sub-committee II where it says “[t]hat all Nations be urged to accept these documents as basic requirements and to initiate full compliance insofar as in possible, consistent with present commitments to other treaties and current conflicting regulations of any one State which they do not consider advisable to discard at this time”276 Although the Sub-committee II was responsible for the development of the drafts for Annex C—Rules of the Air and Annex D—Air Traffic Control Practices, this can also be also assumed for Annex A due to the fact that on the one hand, both Annexes (C & D) comprise aerodrome related provisions and the Annexes were referring to each other. In result, the provisions in Annex A will have been applied until the adoption of Annex 14. However, without any international legal binding effect.

275

ICAO, Annex 1—Personnel Licensing, 11th edition, 2011, p. x. International Civil Aviation Conference, Proceedings of the International Civil Aviation Conference: Chicago, Illinois, November 1–December 7 1944, 1948, p. 860.

276

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103

The Paris Convention: A Better Role Model for Aerodrome Regulation

The CC was more influenced by provisions made in international treaties like the Paris Convention than from national air navigation acts. Notwithstanding, also national regulation had an impact. For instance, Annex A to the CC discussed obstruction surfaces which have been only thematised in national regulation before the CC—e.g. within German regulation. The Paris Convention was ratified by 32 states which is remarkable at that time given the technical and territorial limitations. It introduced crucial international aviation regulation principles at that time. There are also provisions which were taken over in the CC from the Paris Convention like provisions for air navigation services or the usage of aerodromes under the same charges.277 The latter requirement was prescribed in both Conventions (Articles 15 of the CC and Article 24 of the Paris Convention). Given the fact that the Paris Convention and its Annexes were not only applied in the Contracting States but also in their colonies, a soft universal character can be derived.278 The idea of international technical uniformity was introduced by the Paris Convention and applied by the Chicago System.279 In addition, the approach of defining special annexes with standards that reflect the actual technical development was initiated by the Paris Convention. The establishment of an international body fostering cooperation and harmonisation in technical matters, disseminating matters on air navigation and rendering advice on matters submitted by the Contracting States was also not an invention of the CC. The question arises as to which of both Conventions is more appropriate for the establishment of international aerodrome regulation. On the contrary to CINA, not the ICAO plenary body—the Assembly—adopts rules in the form of SARPs but the Council. These SARPs are not directly binding like in the case of the Paris Convention. They have to be integrated into national legislation.280 On the one hand, the adoption process is quicker if only the Council decides on Annexes because not every Contracting State has to be asked for an opinion.281 On the other hand, the Paris Model has its advantages as far as democratic legitimacy is concerned. In case of the CINA, three fourth of the votes of Contracting States are necessary for an amendment as per Article 34 of the Paris Convention. Consequently, all Contracting States in the plenary body have an active part in the adoption process.282 Compared to the Chicago System, if within 3 months half of the states notify that they do not

277

Riese (1949), p. 223. Erler (1967), p. 12. 279 In the following Havel and Sanchez (2014), p. 31f. 280 Pepin (1952), p. 153. 281 Riese (1949), p. 118. 282 Buergenthal (1969), p. 119. 278

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agree with the provisions, SARPs will not become effective.283 Also, not all the ICAO States adopt the SARPs since the membership of the Council is limited. The Paris Convention grants all states the right to vote on the modification of Annexes, whereas the CC stipulates in Article 90 that all Contracting States have the right to disapprove an Annex. The Paris model is therefore more democratic. At the time of the signing of the Paris Convention, it was internationally discussed whether the Annexes of the Paris Convention are directly binding or not. The evidence for the binding effect can be found in Article 39 of the Paris Convention where it says that “The provisions of the present Convention are completed by the Annexes A to H which, subject to Article 34 (c) shall have the same effect and shall come into force at the same time as the Convention itself.”284 Therefore, one can clearly say that the Annexes to the Paris Convention were fully binding to the states.285 Ratification after the amendment of the technical Annexes was not required.286 This would have complicated amending the Annexes unnecessarily. Based on these facts (democratic rulemaking and binding annexes), the model of the Paris Convention is regarded as a better model than the CC in terms of establishing international aerodrome regulation.287 The success of the Paris Convention lies in the binding force of the Annexes and the legislative work of CINA.288 This has an effect on uniformity and consequently, safety. The Paris Convention would, in this context, not allow the operation or the construction and expansion of an aerodrome based on provisions other than those in its Annexes. Besides, Annex 14 had to be developed first. There was a time-based gap in which there was no binding universal aerodrome regulation. Therefore, international uniformity and safety have been jeopardised within this period. Annex D to the Paris Convention was available immediately in 1919. The CC created a framework for international air navigation that still applies today. Inevitably, one can say that the character of Chicago is more universal than CINA.289 This is due to the fact that more states ratified the CC. It might also appear unfair to compare both Conventions due to the time and circumstance in which the CC has been developed. Notwithstanding, the legal model of the Paris Convention is more sufficient to achieve uniformity for aerodromes.

283

Riese (1949), p. 119. See also Bouve (1935), p. 306. 285 Ibid., p. 306; See also Erler (1967), p. 11. 286 Erler (1964a), p. 62. 287 Buergenthal declares the CC as “a retrograde step” compared to the Paris Convention. See Buergenthal (1969), p. 119. 288 Erler (1964a), p. 77. 289 Riese (1949), p. 107. 284

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Practical Example of a Perfect Legal Aerodrome System

The CC was signed on 7th December 1944. If it is assumed that a state would start on 8th December 1944 to develop aerodrome regulation, one might ask what the ingredients of a perfect legal aerodrome system could be. The basis is represented by all pervious provisions that had been promulgated by states as well as international conventions. States should open their aerodromes under uniform conditions and designate those aerodromes which are available for international air traffic (Paris and Chicago Convention). The responsibility for aerodromes should be in the hands of the state (France) since aerodromes are a national concern (Germany, France, Italy). This is necessary in order to ensure standardisation and national security. There should also be a competent authority that has the oversight on aerodromes (CIANA Convention). In addition, states should define a system for aerodrome certification which contains the determination of a safe location and compliance with commercial guidelines for the aerodrome operator (Germany). The selection for a landing location can be based on the recommendations of the Military Air Service in the United States. However, a binding effect should be provided to them. As per the German and French legislation, there should also be different categories of aerodromes based on size and purpose. The aerodrome infrastructure should be constructed on the basis of the newest provisions (Annex A to the CC and amended Annexes to the Paris Convention). Operational requirements were not defined in Annex A to the CC. Therefore, operational requirements should be derived from the other technical draft Annexes of the CC as well as from amended requirements of the CINA after WWII. In addition, operational restrictions could be derived from the Paris Convention, as the Italian legislator did. Thereby, acrobatic landings at aerodromes or departing only when landing area is free shall be defined. Responsibilities of the aerodrome head and personnel working on the aerodrome should be based on French regulation. Further, the regulation should prescribe the discharge of passengers and cargo at terminals (Pan-American Convention). More details on facilities can be derived from provisions in many regulations like Germany and France. All these states laid down principles for facilities at an aerodrome with the purpose of developing the aerodrome environment. Ultimately, provisions for aerodromes could be adopted in a special aerodrome regulation (France).

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3 Chicago Convention and Aerodrome Planning

Amendment to the Chicago Convention in the Twenty-First Century The Chicago Aerodrome System

The CC is with 193 Contracting States290 and its body the ICAO that steers technical cooperation and solves international disputes regarded as one of the most effective multilateral agreements.291 Schladebach considers the CC as “Magna Charta” of international aviation law.292 Although the Convention was established 75 years ago, new challenges are encountered through inter alia amendments to its Annexes.293 ICAO has separated political as well as technical facets of international civil aviation through its Annexes.294 The reference in the end clause of Article 44 of the CC mentions the “development of the principles and techniques of international air navigation”. This emphasises the predominantly technical nature of the mandate of the organisation which could be seen in Annex A for example. It also clarifies why most of the legal provisions for aerodromes either infrastructural or operational are technical. Of course, planning and development functions for air transport are also parts of the mandate of ICAO.295 The Preamble of the Convention commits states to develop civil aviation “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”. All these aspects have to be well considered for the development and operation of an aerodrome. Only to maintain aerodromes would not be enough296 and would not lead to the development of international air traffic. Furthermore, states commit to resolve bottlenecks and capacity constraints. This is today a problem due to capacity constraints at aerodromes worldwide.297 To allow capacity constraints at aerodromes is not compatible with the targets of ICAO. Continuous and safe aviation depends on substantial development of aerodrome infrastructure.298 This can be achieved by compliance with the legal requirements of aerodromes according to technical provisions that are continuously updated. Compliance in this regard means to adhere to the regulatory framework.299 290

ICAO has reached the number of 193 Member States in 2019. For further details see: https:// www.icao.int/Newsroom/Pages/Dominica-becomes-ICAOs-193rd-member-state.aspx, assessed on 20.07.2019. 291 Havel and Sanchez (2014), p. 34. 292 Schladebach (2018), p. 48. 293 Schladebach (2014), p. 81. 294 Jasentuliyana (1994), p. 444. 295 Giemulla and Weber (2011), p. 78. 296 In the following Birmanns (2001), p. 86f. 297 IATA, Worldwide Slot Guidelines, 2019, p. 2. 298 Riese (1949), p. 222. 299 Kaienburg (2010), p. 15.

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The aerodrome system derived from the CC can be summarised as followed:300 The Contracting States shall provide airports to international air traffic. The principle of reciprocity is the cornerstone for this provision. Every Contracting State shall provide for the other Contracting States air navigation facilities and airport services in conformity with the SARPs laid down in the relevant Annexes. Support can be offered by the ICAO in order to improve and standardise the airport system of each State. The states themselves have the possibility to establish aerodrome planning and manage their airport systems (mainly through the Articles 15, 22, 28, 37 and 68–76 of the CC).

3.6.2

Necessity of Amending the Chicago Convention

The question arises as to whether the CC is also appropriate and sufficient in its current form 75 years after the signage and consequently, if amendments should be recommended. The Convention is undoubtedly an outstanding object of international law-making, since it was not only the constitutional basis for ICAO but also built a framework to standardise international aviation law.301 It represents the minimum common denominator of the political will of the negotiating states that agreed on it.302 Most of the contemporary Contracting States adhere to a Convention although they were not participating in developing it. This fact undermines the worldwide acceptance of an agreement that has proved to be a viable basis for the development of international civil aviation.303 The same participation of the states with a more stringent character of this Convention at that time would have been questionable. A further achievement of the Conference was the establishment of a firm basis for the immediate delimitation of air routes between nations in the only way then feasible, that is, through bilateral agreements.304 These provisions could not be established multilaterally due to the fact that most states did not want to guarantee each other traffic rights.305 But international civil aviation has developed since the birth of the CC. There have been lots of new aviation topics that were not foreseen in the Convention.306 There are provisions in the CC which also make it possible to amend the Convention.307 These are defined in Article 94 of the Convention. Within 60 years, the CC had only minor amendments which did not touch the unification of international air

300

Giemulla and Weber (2011), p. 58f. Abeyratne (1994), p. 71; Milde (2004), p. 445. 302 Milde (2004), p. 445. 303 Münz (1994), p. 384. 304 Pogue (1995), p. 39. 305 Münz (1994), p. 384. 306 Weber (2004), p. 311. 307 Donato (1994), p. 234. 301

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law.308 Notwithstanding, the amendments did not reflect the changes in aviation technology.309 ICAO never published any text admitting a profound change to the Convention as necessary.310 On highly technical issues, the gap between the technically possible and the solutions recognised as necessary by the majority of states often diverges.311 This is a problem for ICAO since its organisational structure does not offer optimal conditions for bringing such diverging interests together in an appropriate and sustainable consensus. One reason is that the Assembly meets only once every 3 years. Further, the CC did not reach a solution or an agreement for economic and commercial regulation of international civil aviation.312 The introduction of SARPs on issues that are currently unregulated, such as airport charges, customs and immigration controls, fees and fines should therefore also be given the highest priority.313 The analysis of the binding effect showed that the legal status of SARPs could obviously not be determined at first glance. The soft wording in the CC made sense due to the circumstances in the after wartime in which the Convention was established. However, 75 years later, one could assume that the Contracting States could be ready for a change. In this context, states should bear a self-explaining text by replacing vague wording with a clear tone of the Convention.314 The reason for that is that the flexible framework should not amount to the dangerously “creative” interpretation of the CC and reading into it what its authors never even contemplated.315 The text of the CC should also be amended to ensure that International Standards are binding (at first glance) and respected by states.316 As far as aerodrome planning is concerned, the CC should ensure that aerodromes are developed in compliance with the SARPs of the CC (Articles 28, 37 and 38) and only safe operated aerodromes (Article 69) should serve for international air service. A change is often difficult to achieve in international law due to many factors.317 Though, if it is deemed as necessary, it should be progressed. The CC deserves amendments in its constitutional provisions mentioned.318 The Assembly has stip-

308

Milde (2004), p. 446. Ibid., p. 449. 310 Ibid., p. 450; Weber also said that there is no ambition to amend the CC fundamentally. See Weber (2004), p. 311. 311 Münz (1994), p. 385. 312 Haanappel (2003), p. 43. 313 Margo (1995), p. 60. 314 Ibid., p. 60. 315 Milde (2004), p. 450. 316 Margo (1995), p. 60. 317 In case of the CC, a large number of states would have to ratify the amendment. See for more details Guldimann (1994), p. 359. 318 Milde (2004), p. 470. 309

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ulated that an amendment to the CC shall be concluded when one of both arguments exist: a proved necessity by experience or when an issue is desired or useful.319 The latter argument can be clearly manifested from an aerodrome-related point of view. An amendment would help to guarantee achieving the targets set in the Preamble of the CC—inter alia for aerodromes.

3.6.3

Draft for Amendments to Articles 37, 38, 69 and 70 of the CC

3.6.3.1

Standards and Recommended Practices

Although there are legal scholars that call for amending the CC, most of the research papers do not provide possible drafts for the associated amendments.320 Based on the aforementioned necessity to amend the CC form an aerodrome perspective, possible drafts shall be proposed in order to enhance the infrastructure and operation of aerodromes. Article 37: Adoption of International Standards and Procedures (. . .) To this end the International Civil Aviation Organization shall adopt and amend from time to time, as may be necessary, international standards and recommended practices. An international standard is any specification for physical characteristics, configuration, matériel, performance, personnel or procedure, the uniform application which is necessary for the safety or regularity of international air navigation and to which Contracting States are obliged. A recommended practice is any specification for physical characteristics, configuration, matériel, performance, personnel or procedure, the uniform application which is desirable in the interest of safety, regularity or efficiency of international air navigation, and to which Contracting States shall endeavour to conform. International standards and recommended practices as well as procedures shall deal with: (. . .) The basic idea for the amendment of Article 37 is not to change the legal status of International Standards and Recommended Practices that has been analysed and derived. Instead, it is necessary to make their status clear and not questionable—

319

Assembly Resolution A4-3 (1950): Policy and programme with respect to the amendment of the Convention in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-2. 320 See for example Milde (2004), p. 443ff.; and Margo (1995), p. 49ff.

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namely to provide them with a clear legal identity. The proposed amendment for Article 37 includes the definitions of a Standard as well as of Recommended Practices that are stated in the actual Annexes to the CC as well as in Assembly Resolutions. Thus, the introduced amendment is based on an ICAO definition. As a matter of fact, the definition of Standards was enlarged with the term “obliged” which clearly manifests that Standards are binding. As far as Recommended Practices are concerned, the term “desirable” illustrates than a reduced binding effect is foreseen for Recommended Practices. Notwithstanding, Recommended Practices would not be completely non-binding since the definition contains the term “to shall endeavour to conform”. This means that states would still have to try to implement these requirements in “good faith”. Article 38: Departures from International Standards and Procedures Any State which finds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices having differing in any particular respect from those established by an international standard and for which an equivalent level of safety is ensured and provided by the Contracting State, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the International standard. (. . .) Article 38 of the CC should still be only applied for Standards as these are necessary and the lowest common denominator. The aim of this amendment is to ensure that there is no regulation applied by a Contracting State that is below the safety standards set by ICAO. The term “equivalent level of safety” is not new to aviation and the field of aerodromes. The European Regulation (EU) 2018/1139321 refers to this term several times—i.a., in Article 34 5. (b). In this context, aerodromes are granted with the right to deviate from applicable European certification specifications that are subject to aerodrome certification, once an equivalent level of safety has been accepted by the competent authority. Similarly, the European Regulation (EU) No 139/2014,322 which contains the European Implementing Rules for aerodromes uses this term to provide flexibility for states and notably aerodromes in deviating from provisions.323 As far as the context rule for Standards was analysed, it was manifested that there is no absolute binding effect for Standards because a deviation is possible. After this amendment, a deviation would still be possible, but only then when an equivalent level of safety is guaranteed for the notified difference. The absolute binding effect obliging to always adhere to Standards would still not be existent. An absolute

321

OJ L 212 of 22.8.2018, p. 1; European Basic Regulation for aviation. OJ L 44 of 14.2.2014, p. 1. 323 Regulation (EU) No 139/2014, Article 7. 322

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binding effect is also not desirable since safe flexibility should be maintained for the Contracting States. The opt-out possibility of states would still be possible, but only then when a deviation is based on reasonable safety and not arbitrarily. It is then the task of the ICAO to analyse if the equivalent level of safety is sufficient and ensured by the State. The equivalent level of safety should contain the Standard for which a deviation is aimed, a reason for deviation, the introduced difference, and a demonstration that the safety level of the national difference is not lower than the actual Standard.

3.6.3.2

Compliant and Safe Aerodrome Infrastructure and Operation

Article 69: Improvement of Air Navigation Facilities If the Council is of the opinion that the airports or other air navigation facilities, including radio and meteorological services, of a contracting State are not reasonably adequate for the safe, regular, efficient, and economical operation of international air services, present or contemplated or no evidence of an equivalent level of safety of an associated differences to international Standards has been provided by the Contracting State, the Council shall consult with the State directly concerned, and other States affected, with a view to finding means by which the situation may be remedied, and develop together with the State a suitable mitigation plan to guarantee safe operation of the airport. States shall follow these plans and re-consult the Council if they fail to carry out the mitigation plan in order to redevelop the plan. Unless the actions defined in the mitigation plan are not fulfilled, Contracting States shall not release airports for international air traffic. Article 70: Financing of Air Navigation Facilities A contracting State, in the circumstances arising under the provisions of Article 69, shall conclude an arrangement with the Council for giving effect to the mitigation plan. (. . .) Of course, the prohibition of unsafe aerodromes as well as the release of aerodromes after fulfilling the mitigation plan is a clear state act. This is due to the fact that Article 1 of the CC recognises the full sovereignty of the states. ICAO has not and should not have the power to cease or open aerodrome operation in a Contracting State. It is however the responsibility of the states towards the international aviation community to cease aerodrome operation if these aerodromes are not safe for international air service. If states violate against these provisions, it would be an infraction to the Convention rather than a fail to carry out recommendations by the Council as per Article 54 (j). This amendment is not seen as too aggressive as the state has the possibility to re-consult and reschedule the mitigation plan if they fail to carry out the first mitigation plan. States, in this regard, will act in concert with ICAO and on a

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cooperative basis. An infraction will only occur if a state does not engage in trying to solve the situation and continues the operation of the unsafe aerodrome for international air service. Furthermore, the proposed amendment contains a trigger for the Council to start consulting the State. This is when no evidence could be provided for an equivalent level of safety. The current definition or trigger was not eliminated since the Council could still recognise unsafe operation through other channels. Article 28: Air Navigation Facilities and Standard Systems Article 28 was criticised for allowing the provision of aerodromes in accordance with other than the SARPs. An amendment to Article 28 would not be necessary due to the fact that the proposed amendment to Article 38 prevents a deviation from Standards without applying provisions that have an equivalent level of safety.

References Abeyratne R (1994) The economic relevance of the Chicago Convention - a retrospective study. AASL 19:3–80 Abeyratne R (2007) The legal effect of ICAO decisions and empowerment of ICAO by contracting states. AASL 32:517–527 Abeyratne R (2011) Winter blues at European airports: the need for airport responsibility and corporate foresight. JAM 5:311–324 Abeyratne R (2013) Convention on International Civil Aviation: a commentary. Springer, Cham Abeyratne R (2014) Law and regulation of aerodromes. Springer, Cham Addy NA (2008) Aviation safety & security in West Africa: legal and regulatory issues inherent in aerospace activities - focus on Nigeria. AASL 33:32–58 Aston JD (2017) Sekundärgesetzgebung internationaler Organisationen zwischen mitgliedstaatlicher Souveränität und Gemeinschaftsdisziplin. Duncker & Humblot, Berlin Bailey EO (1994) Article 15 of the Chicago Convention and the duty of states to avoid discriminatory user charges: The US-UK London Heathrow Airport User Charges Arbitration. AASL 19:81–105 Bartsch RIC (2016) International aviation law: a practical guide. Ashgate, Surrey Baum GR, Giemulla E, van Schyndel H (2000) Einige Anmerkungen zu M. Mildes “Some Question Marks about the Price of “Russian Air””. ZLW 49:331–336 Birmanns S (2001) Internationale Verkehrsflughäfen: Völkerrechtliche Verpflichtungen und innerstaatliche Einflußnahmemöglichkeiten des Bundes hinsichtlich kapazitätserweiternder Maßnahmen. Duncker & Humblot, Berlin Bouve CL (1935) Regulation of international air navigation under the Paris Convention. JALC 6:299–324 Buergenthal T (1969) Law-making in the International Civil Aviation Organization. Syracuse University Press, New York Carroz J (1959) International legislation on air navigation over the high seas. JALC 26:158–172 Cloppenburg J (2006) Rechtsfragen der Errichtung und Nutzung von Flughafensystemen. Heymanns, Munich Cooper JC (1965) The Chicago Convention - after twenty years. UMLR 19:333–344 Dempsey PS (2008) Public international air law, 1st edn. McGill University Libraries, Montréal

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Donato M (1994) ICAO’s golden anniversary - the necessity of golden rules for the international air transport industry. AASL 19:221–238 Ducrest J (1995) Legislative and quasi-legislative functions of ICAO: towards improved efficiency. AASL 20:343–365 Erler J (1964a) The regulatory functions of ICAN and ICAO: a comparative study. McGill University Libraries, Montréal Erler J (1964b) Regulatory procedures of ICAO as a model for IMCO. MGLJ 10:262–268 Erler J (1967) Rechtsfragen der ICAO: Die Internationale Zivilluftfahrtorganisation und ihre Mitgliedstaaten. Heymanns, Munich Faller E (1984) International legal aspects relating to the construction and extension of airports. ZLW 33:418–428 Frenzel M (2011) Sekundärrechtsetzungsakte internationaler Organisationen: Völkerrechtliche Konzeption und verfassungsrechtliche Voraussetzungen. Mohr Siebeck, Tübingen Giemulla EM, Weber L (eds) (2011) International and EU aviation law. Kluwer Law International, Alphen aan den Rijn Graham A (2008) Managing airports: an international perspective, 3rd edn. Routledge, London Guldimann W (1994) The Chicago Convention revisited: possible improvements after 50 years. AASL 19:347–362 Guzman AT, Meyer TL (2010) International soft law. JLA 2:171–225 Haanappel PPC (2003) The law and policy of air space and outer space: a comparative approach. Kluwer Law International, The Hague Hartmann C (2007) Aéroports: Quelques enjeux juridiques actuels. Library and Archives Canada, Ottawa Havel BF, Sanchez GS (2014) The principles and practice of international aviation law. Cambridge University Press, New York Herdegen M (2008) Völkerrecht, 4th edn. Beck, Munich Hobe S (2014) Einführung in das Völkerrecht, 10th edn. A. Francke, Tübingen Huang J (2009) Aviation safety and ICAO. Kluwer Law International, Alphen aan den Rijn Ipsen K (ed) (2014) Völkerrecht, 6th edn. Beck, Munich Jacobini HB (1948) Observations on international aviation law. Soc Sci 23:51–53 Jasentuliyana N (1994) Celebrating fifty years of the Chicago Convention twenty-five years after the moon landing: lessons for space law. AASL 19:429–450 Jenning RY (1945) International civil aviation and the law. BYBIL 22:191–209 Kaienburg N (2010) Compliance in High Profile-Fällen der WTO. Mohr Siebeck, Tübingen Kaienburg N, Wysk P (2018) Die Bindungswirkung von ICAO-Vorschriften. ZLW 67:38–86 Kälin W, Epiney A, Caroni M, Künzli J (2010) Völkerrecht: Eine Einführung, 3rd edn. Stämpfli, Bern Kandler H-C (2008) Rechtliche Rahmenbedingungen biomedizinischer Forschung am Menschen: Das Zusatzprotokoll zum Übereinkommen über Menschenrechte und Biomedizin Über biomedizinische Forschung. Springer, Berlin Knauff M (2010) Der Regelungsverbund: Recht und Soft Law im Mehrebenensystem. Mohr Siebeck, Tübingen Knauth AW (1944) Aviation law. ASAL 3:755–766 Leloudas G (2003) Legal aspects of aviation risk management. McGill University Libraries, Montréal Mackenzie D (2010) ICAO - A History of the International Civil Aviation Organization. University of Toronto Press, Toronto Margo RD (1995) Kicking and screaming into the twenty-first century: a practitioner’s prescription for updating the Chicago Convention. AASL 20:49–60 McLachlan C (2005) The principle of systematic integration and Article 31 (3)(c) of the Vienna Convention. ICLQ 54:279–319 Meier P, Jocham F (2015) Wie man Argumente gewinnt. JuS 6:490–496 Milde M (1984) The Chicago Convention - after forty years. AASL 19:119–131

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Milde M (1996) Enforcement of aviation safety standards: problems of safety oversight. ZLW 45:3–17 Milde M (2004) Chicago Convention at sixty: stagnation or renaissance. AASL 29:443–471 Milde M (2012) International air law and ICAO: essential air and space law, 2nd edn. Eleven International Publishing, The Hague Münz R (1994) 50 Jahre Abkommen über die Internationale Zivilluftfahrt - Rückschau und Ausblick. ZLW 43:383–387 Nyampong Y (2017) Aircraft and airport noise: local issues with global implications. In: Dempsey PS, Jakhu RS (eds) Routledge handbook of public aviation law. Routledge, New York, pp 180–194 Osieke E (1979) Unconstitutional acts in international organisations: the law and practice of the ICAO. ICLQ 28:1–26 Pearson MW, Riley DS (eds) (2015) Foundations of aviation law. Ashgate, Surrey Pepin E (1952) ICAO and other agencies dealing with air regulation. JALC 19:152–165 Pogue LW (1995) Personal recollections from the Chicago Conference: ICAO, then, now, and in the future. AASL 20:35–48 Riedi S (2015) Die technischen Normen der Internationalen Organisation für Zivilluftfahrt (ICAO): Völkerrechtliche Bedeutung und Umsetzung der Standards, Recommended Practices und PANS ins schweizerische Recht. Stämpfli, Bern Riese O (1949) Luftrecht: Das internationale Recht der zivilen Luftfahrt unter besonderer Berücksichtigung des schweizerischen Rechts. K. F. Koehler, Stuttgart Rosenthal G (1989) Umweltschutz im internationalen Luftrecht: Völkerrechtliche Lösungsansätze für die umweltrelevanten Auswirkungen des zwischenstaatlichen zivilen Luftverkehrs. Dissertation, University of Cologne Rückert J (2006) Friedrich Carl von Savigny, the legal method, and the modernity of law. Juridica Int 11:55–67 Schäffer H (2007) Der Schutz des zivilen Luftverkehrs vor Terrorismus: Der Beitrag der International Civil Aviation Organization (ICAO). Nomos, Baden-Baden Schenkman J (1955) International Civil Aviation Organization. Librairie E. Droz, Geneva Schladebach M (2014) Lufthoheit: Kontinuität und Wandel. Mohr Siebeck, Tübingen Schladebach M (2018) Luftrecht, 2nd edn. Mohr Siebeck, Tübingen Schubert F (2017) Air navigation. In: Dempsey PS, Jakhu RS (eds) Routledge handbook of public aviation law. Routledge, New York, pp 88–113 Schwarzenberger G (1960) Reflections on the law of international institutions. ICLQ 13:276–292 Schweisfurth T (2006) Völkerrecht. Mohr Siebeck, Tübingen Schwenk W, Giemulla E (2019) Handbuch des Luftverkehrsrechts, 5th edn. Heymanns, Munich Shelton D (2009) Soft law. In: Armstrong D (ed) Routledge handbook of international law. Routledge, New York, pp 68–80 Slenczka J (1998) Airport congestion at FRA and the law. McGill University Libraries, Montréal Thibeault C (2008) The practice of international aerospace medicine. In: Davis JR, Johnson R, Stepanek J, Fogarty JA (eds) Fundamentals of aerospace medicine, 4th edn. Lippincott Williams & Wilkins, Philadelphia, pp 683–693 Thiery SH (2018) Die Luftverkehrsverwaltung im Auftrag des Bundes: Praxis trägerübergreifender Verwaltungssteuerung. Mohr Siebeck, Tübingen Vitzthum W (2016) Begriff, Geschichte und Rechtsquellen des Völkerrechts. In: Vitzthum W, Proelß A (eds) Völkerrecht, 7th edn. De Gruyter, Berlin, pp 1–60 Von Arnauld A (2016) Völkerrecht, 3rd edn. C.F. Müller, Heidelberg Weber L (2004) Convention on International Civil Aviation - 60 years. ZLW 53:289–311 Weber L (2017) The Chicago Convention. In: Dempsey PS, Jakhu RS (eds) Routledge handbook of public aviation law. Routledge, New York, pp 9–32 Weil P (1983) Towards relative normativity in international law? AJIL 3:413–442 Yemin E (1969) Legislative powers in the United Nations and specialized agencies. AW Sijthoff, Leyden

Chapter 4

Development of International Aerodrome Regulation

4.1

ICAO Regulatory Framework

4.1.1

Annexes to the Chicago Convention

4.1.1.1

Purpose

Financially as well as bureaucratically, ICAO had a more universal character than CINA.1 Based on this fact, Riese was certain that improvements for air navigation and ground facilities would come about. Being the magna charta of international aviation law until today, the CC is the ultimate basis for international aerodrome provisions. Unilaterally, individual states cannot solve aviation related challenges, as aviation is international and borderless.2 Therefore, states need international bodies to find common solutions. It would be illusionary to oblige a pilot to apply different rules in terms of signage, for instance, every time he or she operates on a new aerodrome. Thus, aerodrome construction requires planning to accepted international standards in order to harmonise aerodrome infrastructure and operation and to minimise the possibility of failure and safety deficiency.3 The development of aerodrome infrastructure itself is a national concern that cannot realistically be conducted by an international body. Nonetheless, it is clear that there is a need for standardised procedures, regulations, equipment, as well as infrastructure on a worldwide basis. As per Article 37 of the CC, ICAO is obliged to adopt and amend SARPs. The CC defines in Article 37 (b) that SARPs shall comprise characteristics of airports and landing areas. SARPs shall consist in this context of mature provisions and shall

1

Riese (1949), p. 108. Ashford et al. (2011), p. 1. 3 In the following ibid., p. 1. 2

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2021 C. Salih, International Aviation Law for Aerodrome Planning, https://doi.org/10.1007/978-3-030-56842-9_4

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ensure the required levels of safety, efficiency and interoperability.4 Article 54 of the CC lays down mandatory functions of the Council. Accordingly, the Council shall adopt international SARPs and designate them as Annexes to the CC. Consequently, the primary purpose of the ICAO Annexes is to accommodate SARPs. Annexes represent ICAO’s main legal instrument to enact international provisions. This is derived from Article 90, where the Council is obliged to immediately inform states of any Annexes coming into force or amendments thereto. Aviation safety has been promoted through developing and updating a wide range of SARPs that were declared in the Annexes to the CC.5 ICAO Annex 14 for Aerodromes represents the umbrella of aerodrome planning and consists of SARPs for the development and maintenance of an aerodrome. One could ask as to whether aerodrome planning is limited to the provisions contained in Annex 14. The Annex is very clear on that since it defines that ICAO Annex 14 does not entail all requirements for aerodrome planning.6 ICAO also publishes further ICAO Documents in order to support the Contracting States with the implementation of provisions.7 For instance, environmental as well as economic impact, and other non-technical considerations of an aerodrome are not contained in Annex 14.8 Guidance material for these subjects can be found inter alia in the Airport Planning Manuals (APM).9 The same applies to requirements for aviation security related to aerodromes. ICAO Annex 17, as well as the Aviation Security Manual, serve as a basis in this regard. Chapter 1 of ICAO Annex 14 also refers to other documents like PANS-Aerodromes10 and the Aerodrome Design Manuals (ADM).11 Until today, ICAO has published 19 Annexes to the CC. There are also other Annexes that subject aerodromes such as: Annex 2—Rules of the Air, Annex 3— Meteorological Services for International Air Navigation, Annex 6—Part I—Operation of Aircraft, Annex 11—Air Traffic Services, Annex 12—Search and Rescue, Annex 15—Aeronautical Information Services, Annex 16 Vol. I—Aircraft Noise, Annex 17—Security and Annex 19—Safety Management. As a consequence, every entity which is involved in aerodrome planning—either on the side of aerodrome operators or on the side of competent authorities—will have to deal with different document types that are developed by ICAO. That said, these different document types embody different kinds of binding effect.

4

Abeyratne (2013), p. 419. Weber (2017), p. 16. 6 ICAO, Annex 14—Aerodromes, Vol. I—Aerodrome Design and Operation, 8th edition, 2018, p. 1-1. 7 Mensen (2013), p. 162. 8 In the following ICAO, Annex 14—Aerodromes, 2018, p. 1-1. 9 ICAO, Doc 9184—Airport Planning Manual, Part 1—Master Planning, 2nd edition, 1987. 10 ICAO, Doc 9981—PANS—Aerodromes, 2nd edition, 2016. 11 ICAO, Doc 9157—Aerodrome Design Manual, Part I—Runways, 3rd edition, 2006. 5

4.1 ICAO Regulatory Framework

4.1.1.2

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Structure of the Annexes

Content The structure of an Annex is exemplarily described by Annex 14 for Aerodromes. ICAO Annex 14 contains a section with abbreviations and symbols.12 Afterwards, the authors name publications that are related to the Annex. Here, documents are defined that thematically concern aerodrome provisions. The subsequent section is the Foreword which includes following sub-titles: Historical background, Actions by Contracting States, Status of Annex Components, Selection of Languages, Editorial Practices and a Table of Amendments. Historical Background gives a short summary on how the Annex has been developed and when the first version had been established. A detailed view on the amendments which were added to the Annex is contained in the Table of Amendments. It should be noted that some Annexes contain a subpart dealing with applicability and responsibility defining when the Annex applies. ICAO Annex 14 is subdivided into two volumes.13 Volume I—subject to this book—addresses aerodromes. Volume II thematises Heliports. The provisions in Annex 14 Volume II complement those requirements in Vol I. that are applicable to both aerodromes as well as heliports. Annex 1414 is one of the most changing Annexes.15 This fact is caused by the development of new aircraft types, the increasing air traffic market, the necessity to operate within adverse weather conditions as well as the technological development of aerodrome equipment.16 By comparing Annex A with ICAO Annex 14, the changing character becomes apparent: Annex A comprises five sections (Definitions, General, Landing Areas, Ground Aids to Contact Flight and Ground Aids to Instrument Operation) and contains 18 pages.17 The first edition of Annex 14 contains six sections (Definitions and Phraseology, General, Physical Characteristics of Aerodromes, Aeronautical Ground Light and Surface Marking Colours, Obstruction, Clearing and Marking, Visual Ground Aids and Aerodrome Equipment). The first edition extends to 61 pages including SARPs and 18 pages of relevant attachments.18 The current edition of Annex 14 became effective in 2018. This document encompasses 285 pages. Additional 37 pages of attachments complete the whole Annex. Also,

12

In the following ICAO, Annex 14—Aerodromes, 2018, p. xiv. ICAO, Annexes 1 to 18, 1974, p. 26. 14 In the following, if ICAO Annex 14 is mentioned, Volume I for aerodrome is meant. 15 Faller (1984), p. 421. 16 ICAO, Annexes 1 to 18, 1974, p. 25. 17 International Civil Aviation Conference, Proceedings of the International Civil Aviation Conference: Chicago, Illinois, November 1-December 7 1944, Series: Department of State publication. International organization and conference series, 4, 1948, p. 183ff. 18 ICAO, International Standards and Recommended Practices—Aerodromes—Annex 14 to the Convention on International Civil Aviation, Aerodromes, 1st edition, 1951, p. 3f. 13

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the number of subjected topics increased. The following topics are covered within the latest part of Annex 14:19 • • • • • • • • • •

Chapter I—General Chapter II—Aerodrome Data Chapter III—Physical Characteristics Chapter IV—Obstacle restriction and removal Chapter V—Visual Aids for Navigation Chapter VI—Visual Aids for Denoting Obstacles Chapter VII—Visual Aids for Denoting Restricted Use Areas Chapter VIII—Electrical Systems Chapter IX—Aerodrome Operational Services, Equipment and Installations Chapter X—Aerodrome Maintenance

In addition, five appendices comprise detailed technical specification in respect of lights, markings and signs. The whole Annex is concluded with two attachments entailing information concerning guidance material and obstacle limitation surfaces. The titles of ICAO Annex 14 Chapters imply the technical nature of the Annex. Without any doubt, Annex 14 experienced a development of topics that play a huge role in aerodrome planning. Fundamental rules for aerodrome design and aerodrome provisions have been set in order to be implemented through national measures.20

Actions by Contracting States In the section “Action by Contracting States”, ICAO Annex 14 refers to the obligation imposed by Article 38 of the CC which requires the Contracting States to notify ICAO in case of any differences between national regulation and International Standards in the Annex or further amendments thereto.21 In this regard, Contracting States are also invited to notify any differences with regard to the Recommended Practices—notably when the difference is affecting the safety of air navigation. Consequently, the evaluation of differences to ICAO Annex 14 is an individual state concern. This means that every state must examine if the difference might have an effect on safety. Besides, the authors also call for attention regarding the “establishment and withdrawal of and changes to facilities, services and procedures affecting aircraft operations.” Additionally to the obligation of Article 38, Annex 15 to the Convention thematising Aeronautical Information Service should be considered.22 Annex 15 defines that differences should also be listed in the Aeronautical Information Publication (AIP) of the state.23

19

ICAO, Annex 14—Aerodromes, 2018, p. vf. Howard (2013), p. 284. 21 In the following ICAO, Annex 14—Aerodromes, 2018, p. xiii. 22 Ibid., p. xiii. 23 ICAO, Annex 15—Aeronautical Information Services, 15th edition, 2016, para. GEN 1.7. 20

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In other Annexes, the section “Action by Contracting States” includes a further remark.24 It is said that based on a resolution adopted by the Council, on 13 April 1948, Contracting States are invited “to use the precise language of those ICAO Standards that are of a regulatory character” and that are “important for the safety or regularity of air navigation.”25 Further, the provisions of the associated Annexes had been written in a way as to “facilitate incorporation, without major textual changes, into national legislation.” This remark outlines the importance ICAO understands in having harmonised and standardised national regulation.

Status of Annex Components This passage lists the different parts of the Annex. Thereby, forewords, introductions, notes and attachments encompass material that was only approved by the Council for publication in association with the SARPs.26 Introductions comprise explanatory material in order to understand the content of the Annex chapters better.27 Notes give information or references to SARPs. However, they do not represent parts of the SARPs. Attachments are complementary material to the SARPs. They can also be considered as a guide to the application of SARPs. The Annex is further represented through SARPs, appendices, definitions, tables and figures.28 Appendices are adopted by the Council and are a part of the SARPs.29 They are grouped separately for convenience. These are necessary to achieve requirements of core SARPs. If an appendix refers to a Standard, this is denoted with “shall” and in case of a Recommended Practices with “should.”30 The definition section represents an integral part of SARPs because the specification could be affected by a change in the term meaning.31 Tables and figures illustrate SARPs.32 Most of the Annexes have been adopted in six different languages (English, French, Spanish, Chinese, Russian, Arabic).33 The Contracting States are requested to choose one version for the sake of implementation into national legislation either through direct use or through translation. Afterwards, ICAO shall be informed.

24

This applies to Annex 1, 8, 10, 11, 12, 16 and 17. In the following ICAO, Annex 11—Air Traffic Services, 14th edition, 2016, p. x. 26 ICAO, Annex 14—Aerodromes, 2018, p. xiv. 27 In the following ICAO ANC, Guide to the Drafting of SARPs and PANS, Final (Rev.1.5), 2015, p. 14. 28 ICAO, Annex 14—Aerodromes, 2018, p. xiiif.; ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, p. 25ff. 29 ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, p. 31. 30 Ibid., p. 24. 31 ICAO, Annex 14—Aerodromes, 2018, p. xiv. 32 ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, p. 14. 33 ICAO, Annex 14—Aerodromes, 2018, p. xiv. 25

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Legal Effect of Annexes to the Chicago Convention

Due to the fact that SARPs are defined in the Annexes, the legal effect of the Annexes is predominately governed by the Articles 37 and 38 to CC.34 This applies to SARPs, appendices, definitions, tables, and figures. The aforementioned, analysed and derived binding effect of SARPs also covers these parts of the Annex. In fact, the binding effect does therefore not refer to forewords, introductions, notes and attachments. A national deviation from these parts of the Annex must not be notified as per Article 38 of the CC. ICAO has not the legal authority to enforce an Annex to the CC domestically.35 Annexes are also not subject to the ratification of the CC.36 Therefore, the parts with a binding effect have to be integrated into national law separately. In result, if a Contracting State has implemented Annex 14 domestically, the aerodrome operator will have to adhere to these provisions based on national legislation and not based on international law. In case the Contracting State opts to notify differences to the Council for Annex 14 as per Article 38, the aerodrome operator will adhere to these differences and not to the contemporary provisions contained in Annex 14, since the aerodrome operator is bound to the national legislation and not to ICAO. According to ICAO Annex 14, the contained SARPs are applicable to aerodromes open to public use as per Article 15 of the CC.37 Private aerodromes are not mentioned in this context. The CC does also not refer to private aerodromes. It is important to point out that ICAO refers to aerodromes open to public use and not aerodromes that are operated publicly. This means that a state also has to ensure the application of ICAO Annex 14 at aerodromes that are operated or owned privately— though open to public use. As far as aerodromes are concerned that are only open to private use, the Contracting State can exercise discretion and decide on whether to apply the SARPs of ICAO Annex 14 or not. In this regard, ICAO does not define in Annex 14 as to whether this Annex is applicable to both international and national aerodromes. As a matter of fact, one could assume that ICAO Annex 14 is applicable to all aerodromes of a Contracting State that are open to public use regardless of the fact if they serve for international or national air transport. This assumption is corroborated by the text of Article 37, which lays down that a high “degree of uniformity will facilitate and improve air navigation.” Consequently, national aspects could also be covered here.38 However, there are also reasons that indicate pure international applicability. Article 68 of the CC obliges the Contracting States to designate aerodromes for international air service. Besides, Article 69 grants the ICAO with the power to consult a Contracting State when it deems states’ aerodromes as unsafe. In this regard, ICAO negotiates

34

Giemulla and Weber (2011), p. 96. Pearson and Riley (2015), p. 312. 36 Erler (1967), p. 132. 37 ICAO, Annex 14—Aerodromes, 2018, para. 1.2.1. 38 See also Riedi (2015), p. 91. 35

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mitigations together with the state and other states that are affected. This implies internationality. Further, the Preamble of the CC sets the development of international civil aviation as the target of the CC. Hence, it seems to be more persuasive that SARPs—and in this case, the applicability of ICAO Annex 14—target international aerodromes.

4.1.2

Procedure for Air Navigation Services (PANS)

4.1.2.1

Purpose of PANS-Aerodromes

PANS-Aerodromes is the most important PANS for aerodrome planning. It is a supplement to the SARPs contained in Annex 14.39 But also, PANS-Operation,40 as well as PANS-ATM,41 contain provisions which could have an effect on aerodromes. The subsequent chapters will explain the purpose and structure of PANS by using PANS-Aerodromes as an example. PANS-Aerodromes specifies—more detailed than SARPs—operational procedures that should be applied by the aerodrome operator in order to ensure safe aerodrome operation.42 Existing or new aerodromes shall comply with the provisions of the aerodrome infrastructure in Annex 14.43 Therefore, PANSAerodromes is not substituting any provisions. The content of this PANS is designed in a way to allow the use of procedures and methodologies described in Annex 14. These procedures refer to the assessment of operational issues relevant to existing aerodromes in a challenging environment.44 These issues are addressed in order to ensure continuous safety of aerodrome operation. Procedures in the PANSAerodromes are addressed to aerodrome operators and regulators.45

4.1.2.2

Structure of PANS

Similarly, to the Annexes, PANS-Aerodromes is subdivided into the Foreword and the actual chapters.46 The Foreword section contains different subparts: Historical 39

ICAO, Doc 9981—PANS—Aerodromes, 2016, p. vii. ICAO, Doc 8168—PANS—Aircraft Operations, Vol. I—Flight Procedures, 5th edition, 2006; ICAO, Doc 8168—PANS—Aircraft Operations, Vol. II—Construction of Visual and Instrument Flight Procedures, 6th edition, 2014. 41 ICAO, Doc 4444—PANS—Air Traffic Management (ATM), Vol. I—Flight Procedures, 16th edition, 2016. 42 ICAO, Doc 9981—PANS—Aerodromes, 2016, para. 2.3. 43 In the following ibid., para. 2.4. 44 ICAO, Annex 14—Aerodromes, 2018, para. 1.7. 45 ICAO, Doc 9981—PANS—Aerodromes, 2016, para. 2.3. 46 In the following ibid., p. viiff. 40

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Background, Scope and Purpose, Status, Implementation, Publication of Differences, and a description of the Content of the Document as well as a Table of Amendments. The historical background section mentions that the PANSAerodromes Study Group (PASG) prepared PANS-Aerodromes. During the final review of Amendment 10 to Annex 14 in June 2008, it was thematised that Annex 14 is a design guideline in the first place. Therefore, SARPs contained therein were more appropriate for the implementation of new aerodromes. Accordingly, it was necessary to develop alternative measures to accommodate a specific type of aeroplane at existing aerodromes where full compliance with Standards could not be achieved. This was idealised with PANS-Aerodromes, which includes procedures on how to address such operational issues. The PANS-Aerodromes is separated into two different parts.47 The first part contains procedures for the certification of aerodromes, safety assessments at aerodromes, and aerodrome compatibility.48 The second part exposes the topic of aerodrome operation management.49 The subjects of the second part are to be developed: Airside inspection, Work in Progress, Foreign Object Debris (FOD), and Wildlife Hazard Management. Similarly to Annex 14, also appendices and attachments are contained in PANS. Appendices are part of the PANS.50 Attachments are supplementary materials to the Procedures.

4.1.2.3

Legal Effect of PANS

The CC does not mention PANS and consequently does not oblige states to adhere to them according to Article 37. Besides, PANS do not fall under the obligation of Article 38 of the Convention.51 A basis for PANS can be derived from Article 55 (c) of the CC, in which the Council is granted with the power to “[c]onduct research into all aspects of air transport and air navigation which are of international importance, communicate the results of its research to the contracting States, and facilitate the exchange of information between contracting States on air transport and air navigation matters.” In fact, there is no specific adherence obligation for states which could be derived from Article 55 (c). In regard to the establishment of PANS, there is also a difference between PANS and SARPs.52 SARPs are adopted by the Council in accordance with Article 37 of the CC and are subject to the full procedure of Article 90. PANS are only approved by the Council. This outlines a different status between PANS and SARPs. The

47

Ibid., para. 6.1. Ibid., para. 6.2. 49 Ibid., para. 6.3. 50 Ibid., para. 3.3f. 51 Ibid., para. 5. 52 In the following ibid., para. 3.1. 48

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verbs “shall” and “should” are also used in PANS.53 However, they do not indicate a binding effect in the PANS documentation like it is the case in the Annexes to the CC. “Shall” is “used where uniform application is essential” and “should” is used “where variation in detail would not be an impediment to successful application.”54 It can be derived that PANS are subordinated to SARPs. Different legal qualities of the various ICAO documents arise and lead to a graded binding effect.55 Hence, a recommending character is derived for PANS. This character is further evinced by the following fact. Annex 14 refers to PANS-Aerodromes several times. In all these cases, the reference is always made either in the note section or in the attachment. Both parts of the Annex do not represent parts of the actual SARPs but of the supplementary and non-binding part of ICAO Annex 14. Nevertheless, ICAO provides PANS with a certain legal importance. This is based on three reasons. First, ICAO states that in order to facilitate the processing towards implementation, PANS are written in a language which allows direct use by aerodrome operator and state personnel.56 Consequently, PANS can be directly used for the purpose of certification, oversight and management of aerodromes’ operational activities. This evinces that although PANS do not have the same binding effect as SARPs, ICAO intends national practices and utilisation of PANS which gives them a higher status than just normal guidance material contained in ICAO Manuals. Second, based on the provisions in Annex 15—Aeronautical Information Services, Contracting States are asked to publish significant differences between national procedures and the related ICAO PANS provisions in the AIP when knowledge of the differences is important to the safety of air navigation.57 This is also not required for guidance material in the ICAO Manuals but for SARPs in the Annex. Thus, PANS are provided with a specific importance. Third, ICAO outlines that PANS could eventually become SARPs when a maturity and stability for adoption has been reached. In this regard, one could say that PANS is provided with a stage below SARPS.58 Therefore, it makes sense for a state to apply PANS as far as it is practicable. Provisions of ICAO are only binding for an aerodrome as long as the state excepts the provisions and integrates them in one or another way into its legislation.59 Due to the fact that PANS only have a recommending character, their implementation depends on states’ discretion. They will not become applicable as long as they are not enforced by the State. As a matter of fact, states often treat PANS similar to Standards.60

53

ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para. 4.2.3. Ibid., para. 4.2.3. 55 Kaienburg and Wysk (2018), p. 40. 56 ICAO, Doc 9981—PANS—Aerodromes, 2016, p. viii. 57 Ibid., p. viii. 58 Schubert (2017), p. 101. 59 Erler (1967), p. 132. 60 Giemulla and Weber (2011), p. 39. 54

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4.1.3

Regional Supplementary Procedures (SUPPS)

4.1.3.1

Purpose of SUPPs

Regional Supplementary Procedures (SUPPS) represent the procedural part of the Air Navigation Plan (ANP) that is developed in Regional Air Navigation (RAN) Meetings.61 SUPPs serve for application in specific regions and not like PANS or SARPS for worldwide applicability. SUPPs—like PANS—comprise of requirements in more detail than the Annexes.62 SUPPs are consolidated and published in an ICAO Document (Doc), which is divided into several chapters.63 Each chapter lists the SUPPs that are of relevance to a particular ICAO region. SUPPS comprise permissible additions to the provisions in Annexes and PANS. They can declare profound procedural regional options for SARPs and PANS.64 Further, they can disseminate a regional procedure with a kind of operational significance. These procedure supplement existing provisions in Annexes or PANS.

4.1.3.2

Legal Effect of SUPPs

SUPPs are not mentioned in the CC. As a consequence, there is no obligation to adhere to them as per Article 37 and Contracting States are also not required to notify differences in accordance with Article 38. At first glance, one could assume a similar status to PANS. This is also assumed by ICAO.65 This is due to the fact that SUPPs are also approved by the Council and not adopted.66 In addition, both PANS and SUPPs represent procedures. Similar to PANS, a basis for SUPPs can be derived from Article 55 (c) to the CC. However, there are also reasons that indicate the intention of ICAO to allocate a lower role to SUPPs compared to PANS. First, SUPPs have to comply with existing SARPs or PANS and therefore shall not conflict with any provisions in the Annexes or PANS.67 Second, even the term “supplementary procedures” indicate a subordinated role to PANS. Third, SUPPs have compared to PANS a reduced international character as their applicability is limited to regions. Fourth, and as aforementioned, PANS could be transferred to SARPs if suitable.68 ICAO does not foresee this process for SUPPs. On the contrary, SUPPs can evolve from regional procedure to procedure with a worldwide applicability (PANS). Fifth, states are not invited to 61

In the following ICAO, Doc 7030—Regional Supplementary Procedures, 1st edition, 2008, p. v. Schubert (2017), p. 101. 63 In the following ICAO, Doc 7030—Regional Supplementary Procedures, 2008, p. v. 64 Ibid., p. v. 65 Ibid., p. 299. 66 In the following ibid., p. v. 67 Ibid., p. v. 68 Ibid., p. v. 62

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notify differences between national procedures and SUPPs in the AIP—like it is the case for PANS. In result, SUPPs also have a recommending character. However, a lower regulatory status compared to SARPs and PANS.69

4.1.4

ICAO Manuals

4.1.4.1

Purpose of Manuals

ICAO establishes technical manuals to provide guidance material as well as information related to SARPs and PANS.70 The information material represents guidance on the implementation of the aforementioned provisions. Technical manuals have the uniform application of SARPs as their objective.71 They shall be updated continuously to ensure that their content reflects current practices and procedures.72 Technical manuals are published as ICAO Docs. An ICAO Doc is considered by the ICAO as a publication that has an enduring character or a specified importance for the Contracting States.73 The ICAO has published technical manuals that are relevant for aerodrome planning. Annex 14 contains a list of all ICAO Manuals that are related to the specifications in Annex 14.74 The Air Routes and Ground Aids (AGA) Division of ICAO recognised in its 6th Session in 1957 the need for a manual providing guidance on the design of aerodromes.75 The ANC published an Aerodrome Manual which was progressively revised and updated from time to time. The structure of the Aerodrome Manual was later revised, and it now encompasses three distinct documents: Doc 9157—Aerodrome Design Manual (ADM) (6 Parts), Doc 9184—Airport Planning Manual (APM) (3 Parts), Doc 9137—Airport Service Manual (ASM) (9 Parts). The titles of the manuals already emphasise their importance for aerodrome planning. Most of the included material is closely associated with the SARPs in Annex 14. The primary purpose of the mentioned manuals is to simplify the uniform application of ICAO Annex 14. All manuals are intended to be kept up-to-date. Experience gained as well as comments of the manual users shall help to enhance further editions. Two further manuals that comprise essential guidance for aero-

69

Schubert (2017), p. 101. ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para. 1.4.4ff. 71 ICAO, Doc 7231—ICAO Publication Regulation, 11th edition, 2009, p. 3. 72 Giemulla and Weber (2011), p. 40. 73 ICAO, Doc 7231—ICAO Publication Regulation, 2009, p. 2. 74 ICAO, Annex 14—Aerodromes, 2018, p. xif. 75 In the following ICAO, Doc 9157—Aerodrome Design Manual, Part I—Runways, 2006, p. iii. 70

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drome planning: Manual on Certification of Aerodromes (MOCA)76 and Safety Management Manual (SMM) should also be mentioned here.77

4.1.4.2

Purpose of Circulars

A further document type that is published by the ICAO is a Circular (CIR). Unlike manuals, CIRs are generally not updated.78 CIRs disseminate relevant information for the Contracting States.79 These comprise inter alia “summaries of treaties or agreements, analyses, reproductions of or extracts from documents submitted by the Contracting States, reports on implementation of international SARPs and related acts.” A CIR can contain guidance material for aerodromes. For instance, CIR 211-AN/128 on Aerodrome Flight Information Services (AFIS) discusses the establishment of AFIS.80 There are also some CIRs which have an informative character like CIR 301-AN/174.81 This document provides operational information on runway to taxiway minimum separation distances and obstacle limitation surfaces. In another CIR example, ICAO outlines developments regarding airport provision and ownership.82 This CIR also focuses on aspects to be assessed by states that considers a change in ownership and management. An additional purpose of CIRs is the publication of the results of a study.83 For example, ICAO scrutinised together with several states, international organisations, and manufactures the introduction of New Larger Aeroplanes (NLA) to aerodromes. This study concluded, in this regard, that Annex 14 does already include all necessary provisions to ensure safe operation of NLAs.

4.1.4.3

Legal Effect of Manuals and Circulars

There is no entitled status section in the ICAO Manuals which derives the status of the guidance material. Similar to PANS and SUPPS, guidance material or the provision of manuals is literally not mentioned or declared as an ICAO responsibility in the CC. A basis for technical manuals could also be derived from Article 55 (c).

76

ICAO, Doc 9774—Manual on Certification of Aerodromes, 1st edition, 2001. ICAO, Doc 9859—Safety Management Manual, 4th edition, 2018. 78 Giemulla and Weber (2011), p. 40. 79 In the following ICAO, Doc 7231—ICAO Publication Regulation, 2009, p. 3. 80 ICAO, Cir 211-AN/128, Aerodrome Flight Information Service (AFIS), 1988, p. i. 81 ICAO, Cir 301-AN/174, New Larger Aeroplanes Infringement of the Obstacle Free Zone: Operational Measures and Aeronautical Study, 2005, p. i. 82 In the following ICAO, Cir 284-AT/120, Privatization in the Provision of Airports and Air Navigation Services, 2002, p. i. 83 In the following ICAO, Cir 305-AN/177, Operation of New Larger Aeroplanes at Existing Aerodromes, 2004, p. i. 77

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CIRs are also based on Article 55 (d) in which the Council may “[s]tudy any matters affecting the organization and operation of international air transport (..).” This is the case for the introduction of new larger aircraft. A manual is approved and published under the authority of the ICAO Secretary General.84 ICAO Manuals and CIRs are not subject to the procedure as per Article 90. Moreover, ICAO lists both document types on the lowest hierarchy level of ICAO’s regulatory framework.85 ICAO does also not invite the Contracting States to notify of any differences between national practices and ICAO’s guidance material. Consequently, only a guiding character is manifested for ICAO Manuals and CIRs.

4.2

ICAO Legal Aerodrome System

4.2.1

Essential Aerodrome Planning Requirements

4.2.1.1

Aerodrome Reference Code and Type of Runway

The aim of this section is to provide a generic overview of aerodrome related requirements contained within ICAO’s legal framework. Essential requirements will refer to planning provisions that apply to almost every aerodrome. The introductory note of ICAO Annex 14 specifies that the SARPs contained in Annex 14 stipulate the physical characteristics, obstacle limitation surfaces, facilities, and technical services to be provided at an aerodrome.86 SARPs in ICAO Annex 14 are interrelated to an aerodrome reference code system and to the type of the provided runway.87 Both aspects have to be well considered when conducting aerodrome planning. As far as the types of runway are concerned, there are six types of a runway:88 Non-instrument,89 Non-precision approach,90 Precision approach

84

ICAO, Doc 9157—Aerodrome Design Manual, Part I—Runways, 2006, see covering page. ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para.1.4.6. 86 ICAO, Annex 14—Aerodromes, 2018, p. 1-1. 87 Ibid., p. 1-1. 88 Ibid., Table 3-2. 89 Non-instrument runway: A runway intended for the operation of aircraft using visual approach procedures or an instrument approach procedure to a point beyond which the approach may continue in visual meteorological conditions.; ibid., p. 1-7. 90 Non-precision approach runway: A runway served by visual aids and non-visual aid(s) intended for landing operations following an instrument approach operation type A and a visibility not less than 1000 m.; ibid., p. 1-5. 85

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category I,91 Precision approach categories II92 and III,93 Take-off runway.94 The aim of establishing a relation between an aerodrome reference code system and SARPs is to simplify reading and understanding of the provisions.95 SARPs that refer to one’s aerodrome reference code have to be considered. By following the relevant SARPs associated with an aerodrome reference code, efficiently proportioned aerodromes can be developed.96 The aerodrome reference code comprises a Code Number and a Code Letter.97 Both are related to the aeroplane performance characteristics and dimensions. The Code Number98 is based on the aerodrome reference field length.99 It represents a length which is required by an aircraft for take-off. The determination of an aeroplane reference field length has only the purpose to define the Code Number and has at this point nothing to do with the determination of an actual runway length.100 The Code Letter101 is based on the wingspan of an aircraft. The Code

91

Precision approach runway, category I: A runway served by visual aids and non-visual aid(s) intended for landing operations following an instrument approach operation type B with a decision height (DH) not lower than 60 m (200 ft) and either a visibility not less than 800 m or a runway visual range not less than 550 m.; ibid., p. 1-6. 92 Precision approach runway, category II: A runway served by visual aids and non-visual aid (s) intended for landing operations following an instrument approach operation type B with a decision height (DH) lower than 60 m (200 ft) but not lower than 30 m (100 ft) and a runway visual range not less than 300 m.; ibid., p. 1-6. 93 Precision approach runway, category III. A runway served by visual aids and non-visual aid (s) intended for landing operations following an instrument approach operation type B to and along the surface of the runway and: A—intended for operations with a decision height (DH) lower than 30 m (100 ft), or no decision height and a runway visual range not less than 175 m, B—intended for operations with a decision height (DH) lower than 15 m (50 ft), or no decision height and a runway visual range less than 175 m but not less than 50 m, C—intended for operations with no decision height (DH) and no runway visual range limitations.; ibid., p. 1-6. 94 Take-off runway: A runway intended for take-off only; ibid., p. 1-10. 95 Ibid., p. 1-1. 96 Ibid., p. 1-1. 97 Ibid., para. 1.6.1. 98 Code Number 1: Less than 800 m, Code Number 2: 800 m up to but not including 1200 m, Code Number 3: 1200 m up to but not including 1800 m, Code Number 4: 1800 m and over; ibid., Table 1-1. 99 Aeroplane reference field length: The minimum field length required for take-off at maximum certificated take-off mass, sea level, standard atmospheric conditions, still air and zero runway slope, as shown in the appropriate aeroplane flight manual prescribed by the certificating authority or equivalent data from the aeroplane manufacturer. Field length means balanced field length for aeroplanes, if applicable, or take-off distance in other cases.; ibid., p. 1-2. 100 Ibid., p. 1-14. 101 Code Letter A: up to but not including 15 m, Code Letter B: 15 m up to but not including 24 m, Code Letter C: 24 m up to but not including 36 m, Code Letter D: 36 m up to but not including 52 m, Code Letter E: 52 m up to but not including 65 m, Code Letter F: 65 m up to but not including 80 m; ibid., Table 1-1.

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Number, as well as the Code Letter, have to be determined for the most critical aircraft that is going to be accommodated.102 Thus, there is a direct link between the aerodrome facilities and the aircraft types that can and will operate at the aerodrome. Aircraft that have characteristics in accordance with the aerodrome reference code of the aerodrome can operate there. Consequently, aerodrome planning initially starts with the determination of the aerodrome reference code. All provisions related to the definition of an aerodrome reference code are formulated as Standards and therefore binding upon the Contracting States. The Standard status makes absolute sense due to the fact that almost all subsequent specifications in ICAO Annex 14 are based on this codification. The development of a new aerodrome, as well as an expansion project, requires therefore answers by the aerodrome operator or aerodrome planner to following questions. What are the critical aircraft types that will operate on the aerodrome, and what are their performance characteristics and dimensions? The answer to this question will derive which aerodrome reference code is required and which SARPs are essential for the development or expansion. Further, what kind of runway will be available (non-instrument or precision-approach, etc.)? The answer to this question will deliver, for instance, the type of visual aids that has to be provided.103 One might ask now how the aerodrome reference code can be determined. Here, ICAO Annex 14 refers directly to the ICAO ADM Part I and II.104 As per Appendix 1 of the ADM Part I105 and Appendix 3 of ADM Part II,106 a list is provided which entails current aircraft types with their Code Number and Code Letter. A similar but more updated list is also provided in PANS-Aerodromes.107 However, ICAO recommends planners to use the data with caution due to the fact that aircraft data are subject to change and aircraft are often built with optional specifications. Hence, documentation provided by the aircraft manufacturer should be obtained.108

4.2.1.2

Safety Assessments: Basis of a Safety Management System (SMS)

The ICAO Assembly recognises that many serious planning challenges can be prevented if the operating requirements of new aircraft allow economic operation

102

Ibid., para. 1.6.3f. For example, a threshold marking shall be provided at the threshold of a paved instrument runway.; See ibid., para. 5.2.4.1. 104 Ibid., p. 1-14. 105 ICAO, Doc 9157—Aerodrome Design Manual, Part I—Runways, 2006, p. A1-1. 106 ICAO, Doc 9157—Aerodrome Design Manual, Part II—Taxiways, Aprons and Holding Bays, 4th edition, 2005, p. APP 3-1. 107 ICAO, Doc 9981—PANS—Aerodromes, 2016, p. I-4-Att D-1. 108 Ibid., p. I-4-Att D-1. 103

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without further requirements to the aerodrome infrastructure.109 The introduction of a new aircraft to an aerodrome can have a huge impact on its infrastructure and facilities.110 For instance, the introduction of the Airbus A380 led to many infrastructural consequences. The question arises as to whether it is possible for an aerodrome to accommodate an aircraft that has a higher aerodrome reference code than the own one. In this case, the state and thus the aerodrome operator is bound to assess the compatibility between the operation of the aircraft and the infrastructure and operation of the aerodrome.111 Measures must be mitigated in order to ensure an acceptable level of safety of the aerodrome operations.112 Guidance on how to assess the compatibility and develop such procedures is included in PANS-Aerodromes. Due to its relevance for modern aerodrome planning, an explanation for the term safety assessment shall be provided here. ICAO Annex 19 obliges states to ensure that aerodromes certified in accordance with Annex 14 have implemented a Safety Management System (SMS).113 A safety assessment is a cornerstone of an SMS.114 It is used to assess safety concerns—for instance those that arise from deviations from Standards. The operation of an aircraft with characteristics above aerodromes’ aerodrome reference code would be such a deviation. The safety assessment process foresees to define the safety concern and to identify the associated regulatory compliance, to identify hazards of the deviations, to assess deriving risks, to develop mitigations measures, and to develop an implementation plan for the mitigations.115

4.2.1.3

Aerodrome Infrastructure

Runways Physical characteristics of an aerodrome are provided for three infrastructural elements: runways, taxiways, aprons. It becomes apparent that many provisions for runways are declared only as Recommended Practices rather than Standards,116 such as provisions for number and orientation of runways, location of thresholds, length as well as width of runways, minimum distance between parallel runways and slopes on runways. In regard to the determination of a runway length, it is only

109

Assembly Resolution A38-12 (2013): Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, Appendix J—The provision of adequate aerodromes, p. II-15. 110 In the following Graham (2008), p. 323. 111 ICAO, Annex 14—Aerodromes, 2018, para. 1.7.1. 112 This process is referred to as safety assessment. 113 ICAO, Annex 19—Safety Management, 2nd edition, 2016, para. 3.3.2.1 (f). 114 In the following ICAO, Doc 9981—PANS—Aerodromes, 2016, para. 3.3.1. 115 Ibid., para. 3.4.1.3. 116 See ICAO, Annex 14—Aerodromes, 2018, p. 3-1–3-7.

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recommended to establish a runway which is suitable to meet the operational requirements for the expected aircraft.117 The runway should not have a length which is “less than the longest length determined by applying the corrections for local conditions to the operations and performance characteristics of the relevant aeroplanes.” Annex 14 does not include any provisions on how to calculate a runway length. It refers directly to the ADM Part I for guidance. In this regard, Chapter 3 (Runway Length Considerations)118 and Chapter 4 (Aeroplane Performance Parameters affecting Runway Length)119 explain in great detail how to calculate the required runway length. The determination of a runway length is accordingly not based on SARPs but on guidance material. Although Manuals do only have a guiding character, aerodrome planner will have to rely on them to a great extent. The provisions for the determination of the runway width are formulated as a Recommended Practice.120 The runway width is based on the Code Number and the Outer Main Gear Wheel Span (OMGWS) of an aircraft. Different widths are provided for the specific Code Numbers. According to the definitions for SARPs, uniform application is only regarded as necessary for a Standard. As a consequence, it seems questionable to define for important dimensions such as runway width and runway lengths only Recommended Practices. The possibility of deviating from these provisions by states will be higher compared to a formulation as a Standard which is binding. A reason for defining the provision as a Recommended Practice could be to give states more flexibility due to topographical aspects, for instance. However, a Standard might be more reasonable in this case.

Taxiways and Aprons ICAO Annex 14 defines a taxiway as a path on the aerodrome which is provided for the taxiing of an aircraft establishing a link between one part of the aerodrome and another.121 Three different types of taxiways are further defined: “aircraft stand taxilane, apron taxiway, and rapid exit taxiway.”122 The OMGWS determines the width of a taxiway.123 The planning of a taxiway system is complex. The reason for that is that various minimum separations have to be respected. For instance, there is 117

In the following ibid., para. 3.1.7. ICAO, Doc 9157—Aerodrome Design Manual, Part I—Runways, 2006, p. 3-1. 119 Ibid., p. 4-1. 120 ICAO, Annex 14—Aerodromes, 2018, para. 3.1.10. 121 Ibid., p. 1-11. 122 Aircraft stand taxilane: A portion of an apron designated as a taxiway and intended to provide access to aircraft stands only. Apron taxiway: A portion of a taxiway system located on an apron and intended to provide a through taxi-route across the apron. Rapid exit taxiway: A taxiway connected to a runway at an acute angle and designed to allow landing aeroplanes to turn off at higher speeds than are achieved on other exit taxiways thereby minimizing runway occupancy times.; ibid., p. 1-11. 123 Ibid., Recommendation 3.9.4. 118

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the minimum separation between taxiway centre lines and runway centre line. Aerodrome planners have to consider many aspects for the determination of this separation distance which are the type of runway, the Code Number, and the Code Letter.124 Minimum separation distances should not be undershot provided that an aeronautical study125 proves that safety is not impacted negatively. The ADM Part II guides through an associated aeronautical study.126 Compared to the provisions provided for the establishment of taxiways and runways, very few SARPs are developed for the characteristics of an apron.127 Most of the provisions are made for de-icing facilities.128 Only one Standard is provided for aprons which has a security background rather than a safety-related.129 Besides, ADM Part II also provides guidelines for the development of aprons.130

Obstacle Limitation Surfaces and Possible Legal Applicability SARPs for obstacle limitation surfaces have the purpose to declare the airspace around aerodromes free of obstacles.131 It shall be prevented that aerodrome operations become unusable due to the growing height of obstacles. The infringement of obstacle limitation surfaces due to obstructions can lead to necessary adjustments of approach procedures.132 Apparently, all provisions that define the characteristics of obstacle limitation surfaces are declared as Standards and not as Recommended Practices. This evinces the fact that it is crucial to adopt these surfaces in the same way they have been defined. However, two important Recommended Practices regarding objects out of the obstacle limitations surfaces are made in 4.3.1 and 4.3.2 of ICAO Annex 14. The former one specifies that arrangements should be made between the relevant authorities when a proposed construction outside the obstacle limitation surfaces exceeds a predefined height limit established by the competent authority.133 Hence, an

124

Ibid., Table 3-1. An aeronautical study is conducted to assess the impact of deviations from the aerodrome standards specified in Annex 14, to present alternative means of ensuring the safety of aircraft operations, to estimate the effectiveness of each alternative and to recommend procedures to compensate for the deviation.; ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, Appendix 3, p. A3-1. 126 ICAO, Annex 14—Aerodromes, 2018, p. 3-21. 127 An apron is defined as area, on a land aerodrome, intended to accommodate aircraft for purposes of loading or unloading passengers, mail or cargo, fueling, parking or maintenance.; ibid., p. 1-3. 128 Ibid., p. 3-29–3-31. 129 Ibid., para. 3.14.1. 130 ICAO, Doc 9157—Aerodrome Design Manual, Part II—Taxiways, Aprons and Holding Bays, 2005, p. 3-1ff. 131 ICAO, Annex 14—Aerodromes, 2018, p. 4-1. 132 Ibid., p. 4-1. 133 Ibid., para. 4.3.1. 125

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aeronautical study should assess the effect of the expected construction on aircraft operations. The latter recommendation defines that outside the obstacle limitation surface, objects with a height of 150 m or more above ground level should be regarded as an obstacle.134 Also, here, an aeronautical study should assess if the obstacle could jeopardise aircraft operation. In this context, an example shall clarify how states could implement this provision. The German Air Traffic Act135 stipulates in § 18 (1a) that there must be arrangements between the relevant authorities when constructions are planned which could negatively affect air navigation facilities. Thus, the Air Navigation Oversight Authority (Bundesaufsichtsamt für Flugsicherung, BAF) approves the construction based on an aeronautical study conducted by the German Air Navigation Service Provider (Deutsche Flugsicherung). This § covers the first aforementioned recommendation. As far as the second recommendation is concerned, § 14 (1) defined that constructions with a height of more than 100 m require prior approval by the BAF. This means that Germany transferred the ICAO recommendation even more stringent as recommended by ICAO (150 m). A close collaboration with authorities is important to prevent construction of obstacles.136 The aerodromes operator should also alert associated authorities of potential problems which may arise under their jurisdiction. Regular and frequent visual inspections of obstacles should take place to fulfil this obligation.137 At this point, the usage of computer applications using both synthetic and real images for the detection of obstacles on the ground can help.138

Visual Aids Visual aids can have a huge influence on the performance of an aerodrome. The relevance is illustrated by many African aerodromes, where the absence of visual aids often leads to flight cancellations.139 Chapter 5–7 prescribe the SARPs to be followed with regards to visual aids. The three chapter thematise visual aids for navigation (markings, signs, and lights), visual aids for denoting obstacles, and visual aids to denote areas of restricted use. Visual aids account for the largest number of provisions in ICAO Annex 14. In the ADM Part IV, it is noted that additional guidance is given in the Apron Markings & Signs Handbook (AMSH) developed by the Airports Council

134

Ibid., para. 4.3.2. BGBl. 2007 I, p. 698. 136 Abeyratne (2014), p. 92. 137 Ibid., p. 92. 138 Gauci (2010), p. 214. 139 Addy (2008), p. 50. 135

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International (ACI)140 and the International Air Transport Association (IATA).141 As per the foreword, this manual shall only supplement those provisions published by the ICAO.142 Further, it is not recommended to use the contained material “without referring to applicable laws and regulations and/or without taking appropriate professional advice.”143 Thus, an example is provided in which ICAO uses the material of other specification-generating organisation. Notwithstanding, this handbook has no binding effect. It could be a reasonable approach to integrate the guidance of the AMSH into the legal framework of ICAO. This is due to the fact that these provisions are modern compared to those in the ADM Part IV.144 This approach would be consistent with the targets of the ICAO adopted in Assembly Resolution A38-11.145 In this context, the ICAO Assembly instructed the ICAO Council to utilise the material of other “standards-making organisation in the development of SARPs, PANS and ICAO technical guidance material.”

4.2.1.4

Aerodrome Operation

Irrespectively of the SARPs prescribing infrastructural requirements for an aerodrome, Annex 14 also specifies technical services that shall be provided.146 These technical services are defined by operational requirements. The operational status of related facilities shall be forwarded to air traffic service units.147 This information shall be provided to arriving and departing aircraft. Further, they shall be held up-todate and adjusted in times of condition changes without delay. With regard to further operational requirements, the aerodrome operator is committed to develop an aerodrome emergency plan that must be appropriate to the aerodrome operation and activities accomplished at the aerodrome.148 ICAO Annex 14 defines aerodrome emergency planning as a process of aerodrome preparation for an occurring emergency at the aerodrome or in its vicinity. Moreover, the aerodrome operator shall assess wildlife strike hazards, inter alia through the recording and

140

Airports Council International (ACI), the only worldwide association of airports, has 623-member airport authorities that operate over 1940 airports in 176 countries. It advances the collective interests of, and acts as the voice of, the world’s airports and the communities they serve.; IATA and ACI, Airport Development Reference Manual (ADRM), 10th edition, 2017, p. 4. 141 International Air Transport Association (IATA) is the industry’s responsive and forward-looking trade association. Founded in 1945, IATA brings together approximately 265 airlines, including the world’s largest.; For further details related to IATA, see Schladebach (2018), p. 170 and IATA and ACI, Airport Development Reference Manual (ADRM), 2017, p. 2. 142 ACI, Apron Markings and Signs Handbook, 3rd edition, 2017, Foreword. 143 Ibid., Disclaimer. 144 The last edition of the AMSH was published in 2017. The last version of ADM Part IV in 2004. 145 In the following ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, p. 45. 146 ICAO, Annex 14—Aerodromes, 2018, p. 1-1. 147 In the following ibid., para. 2.9.1. 148 Ibid., para. 9.1.1.

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reporting of wildlife strikes to aircraft, the collection of information on wildlife in the aerodrome vicinity, and ongoing evaluation.149 In addition, the aerodrome operator must ensure safe vehicle operation. The provisions here define that vehicle operations shall be authorised by the authority which is responsible for either the manoeuvring area (taxiways and runways) or the apron.150 Aerodromes are furthermore obliged to establish a maintenance programme that includes preventive maintenance.151 Thereby, facilities shall be held in a condition that “does not impair the safety, regularity, or efficiency of air navigation.” In this context, facilities refer to pavements, visual aids, fencing, drainage systems, electrical systems and buildings. As far as pavements are concerned, runways, taxiways and aprons shall be monitored and preventively as well as correctively maintained.152 Further operational provisions are contained in other Annexes to the CC—similar to provisions defined in the draft Annexes B-D. For instance, aircraft taxiing on the manoeuvring area are obliged to stop and hold at all runway-holding positions if it is not otherwise requested by the ATC.153 Annex 3 obliges Contracting States to establish meteorological stations at aerodromes in its territory as it determines to be necessary.154 Annex 6 Part 1 defines that the state of an aircraft operator shall require the aircraft operator to establish aerodrome operating minima for the aerodromes the aircraft operator intends to operate on.155 These aerodrome operating minima shall in the normal case be not lower than those developed by the state of the aerodrome. A flight shall not be conducted to an aerodrome unless the meteorological conditions at the destination aerodrome are above the aerodrome operating minima set.156 The question arises as to whether an aerodrome operator is also obliged to establish own aerodrome operating minima. The answer tends to be negative since Annex 14 is completely silent on that issue and consequently does not bind a state or an aerodrome operator to do so. Annex 6 also notes that the state of the aerodrome is not required to develop an aerodrome operating minimum.157

149

Ibid., para. 9.4.1. Ibid., para. 9.7.1. 151 In the following ibid., para. 10.1.1. 152 Ibid., para. 10.2.1. 153 ICAO, Annex 2—Rules of the Air, 10th edition, 2005, para. 3.2.2.7.2. 154 ICAO, Annex 3—Meteorological Service for International Air Navigation, 19th edition, 2018, para. 4.1.1. 155 ICAO, Annex 6—International Commercial Air Transport—Aeroplanes (Part I), 10th edition, 2016, para. 4.2.8.1. 156 Ibid., para. 4.3.5.2. 157 Ibid., p. 4-4. 150

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Aerodrome Security and Aerodrome Economics

The Administrative Court of Braunschweig has decided that due to the security situation in Egypt, German airlines shall control passengers separately at Egyptian airports.158 With this in mind, the question arises as to whether a foreign court can make decisions that have to be applied in another state. The 9/11 events led to more security scrutiny worldwide. Numerous changes were made to improve security methods at aerodromes.159 Security is an important factor for aerodrome planning and operation.160 Annex 14 contains provisions that shall enhance the level of security at an aerodrome. Nonetheless, also for security issues, ICAO Annex 14 does not have the overall solution and is, therefore, referring to ICAO Annex 17, as well as to the ICAO’s Aviation Security Manual. Security controls at aerodromes are for instance not thematised in ICAO Annex 14 and thus the annex cannot answer the introduced question.161 Due to the prevalent technical nature of ICAO Annex 14, economic rules are also not included. As per the Chapter General, reference is made to the APM Part I.162 APM comprises guidelines to assess the economic feasibility of the development or expansion of airport projects.163 Further chapters relate to financial agreements and sources of funding.164 More assistance is provided in the Airport Economics Manual that gives guidance on efficient management of airports and in the Manual concerning ICAO’s Policies on Charges for Airports and Air Navigation Services.165 The latter targets principles for imposing airport charges.166 In the following, some considerations related to aerodrome economics will be exemplarily illustrated. Aerodromes incur high fixed costs that are mainly funded by traffic.167 In case of decreased demand, aerodromes face challenges to maintain high standards of safety, security and quality of service. Therefore, ICAO’s policy defines that there might be circumstances in which prefunding is accepted through the raise of charges.168 This approach is also supported by the ACI which states that “Airports are

158

VG Braunschweig, Urt. v. 12.7.2017—2 A 327/16, 2 A 328/16, 2 A 329/16, 2 A 330/16, 2 A 331/16, 2 A 332/16, 2 A 334/16, 2 A 335/16. 159 Graham (2008), pp. 121–123. 160 ICAO, Annex 14—Aerodromes, 2018, p. 1-1. 161 The question will not be answered in this book. It aimed to illustrate that Annex 14 does not contain answers to all aerodrome related questions. 162 ICAO, Annex 14—Aerodromes, 2018, p. 1-1. 163 ICAO, Doc 9184—Airport Planning Manual, Part 1—Master Planning, 1987, p. 1-2. 164 Ibid., p. 1-23–1-24. 165 ICAO, Doc 9562—Airport Economics Manual, 3rd edition, 2013, p. v. 166 ICAO, Doc 9082—ICAO’s Policies on Charges for Airports and Air Navigation Services, 3rd edition, 2012, p. II-1. 167 In the following ibid., p. vii. 168 Ibid., p. I-4.

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capital-intensive businesses and need to be able to set charges related to the full cost of the service, including a rate of return sufficient to finance the infrastructure and its operations and to satisfy investors and creditors.”169 In general, airport charges should be rationally imposed.170

4.2.2

Additional Aerodrome Planning Requirements and Legal Considerations

4.2.2.1

Implementation of an Autonomous Runway Incursion Warning System (ARIWS)

ICAO Annex 14 does also contain aerodrome planning requirements that become applicable once a system or a provision is implemented. This means that if the provision is not introduced to an aerodrome, there are no obligations existent. According to ICAO, more than 60% of the Member States do not ensure that their aerodrome operators have introduced strategies or procedures to prevent runway incursions171 and associated accidents and incidents.172 Runway incursions can result in serious accidents with many fatalities.173 The Autonomous Runway Incursion Warning System (ARIWS)174 is a new system introduced to ICAO Annex 14 in the Amendment 13-A in 2016.175 The aim of an ARIWS is to monitor the runway situation and to automatically return information inform of warning lights at the runway thresholds as well as runway entrances.176 Pilots, as well as vehicle drivers, get information through red warning lights whenever a runway is occupied by another aircraft or vehicle. ICAO Annex 14 requires aerodrome operators to assess the need for this warning system based on aerodrome characteristics.177

169

ACI, Policies and Recommended Practices Handbook 2018, 9th edition, 2018, p. 20. Ibid., p. 18. 171 Runway incursion is defined as any occurrence at an aerodrome involving the incorrect presence of an aircraft, vehicle or person on the protected area of a surface designated for the landing and take-off of aircraft. Definition included in ICAO, Doc 9981—PANS—Aerodromes, 2016, p. I-1-1. 172 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 1 January 2013 to 31 December 2015, 2016, para. 4.8.4.1. 173 Abeyratne (2008), p. 232. 174 A system which provides autonomous detection of a potential incursion or of the occupancy of an active runway and a direct warning to a flight crew or a vehicle operator.; ICAO, Annex 14— Aerodromes, 2018, p. 1-3. 175 Ibid., p. xx. 176 In the following ibid., para. 21.1.1. 177 Ibid., para. 21.1.4. 170

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Legal Question Related to AIRWS

An ARIWS generates warnings independently from ATC and consequently delivers direct information to flight crews and vehicle operators.178 Thus, one might ask which instruction prevails in respect of an information conflict—ARIWS or ATC instruction. The question on which to follow human or machine is a key question in aviation. Aviation incurred 71 fatalities inter alia in 2002 when a collision between two aircraft occurred north of the city Überlingen in Germany.179 According to the Investigation Report of the German Federal Bureau of Aircraft Accidents Investigation (BFU), one crew followed the instruction of the ATC (to descend) instead of the on-board system TCAS180 (to climb). As far as international regulations are concerned, the report states that “The regulations concerning TCAS published by ICAO and as a result the regulations of national aviation authorities, operations and procedural instructions of the TCAS manufacturer and the operators were not standardised, incomplete and partially contradictory.”181 Hence, an answer to this safety-critical question is very important.182 ICAO Annex 14 defines that the ARIWS generates warnings in near real-time to the flight crew.183 There is no time for communication in such a situation. The generation of a warning to the ATC and afterwards, the evaluation of this information and instruction to the pilot would cost too much time when it is aimed to stop the aircraft and prevent a collision. When a pilot has received clearance to cross the runway and recognises the red-light array, the pilot must stop and inform the ATC of abortion because of ARIWS warning.184 ICAO prescribes that it is important that the visual signal must be consistent all over the world. Extinguishing red lights does not indicate a clearance.185 This still must be issued by the ATC. The provisions made by ICAO in Annex 14 in this context are very clear and satisfying. However, it seems to be irritating that these very important and safety-critical operational requirements are defined in the attachments of ICAO Annex 14. The attachments do not have any binding-effect and shall only supplement SARPs.186 It is recommended to define them therefore as Standards. In general, an ARIWS must not be provided at an

178

Ibid., para. 21.1.2. German Federal Bureau of Aircraft Accidents Investigation, Investigation Report—Accident above Lake of Constance, 2004, p. 5. 180 Traffic Alert and Collision Avoidance System. 181 German Federal Bureau of Aircraft Accidents Investigation, Investigation Report—Accident above Lake of Constance, 2004, p. 5. 182 For an overview of more fatal accidents with regards to runway incursions, see Abeyratne (2008), p. 233ff. 183 In the following ICAO, Annex 14—Aerodromes, 2018, para. 21.2.1. 184 In the following ibid., para. 21.2.1. 185 Ibid., para. 21.2.2. 186 Ibid., p. xiv. 179

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aerodrome. Aerodromes are asked to assess if the installation of such a system could positively benefit based on traffic levels, aerodrome geometry, taxiway layout etc.187 Once an aerodrome operator decides to implement an ARIWS, additional planning requirements related to ARIWS technical characteristics become binding.188

4.3

ICAO Rulemaking Process: Analysis and Recommendations

4.3.1

Rulemaking Phases

4.3.1.1

Overview

The establishment of SARPs has been ICAO’s primary method for determining safety benchmarks.189 The CC does not explain how SARPs are being developed. The Air Navigation Bureau—belonging to the ICAO Secretariat—is responsible for all Annexes with a technical nature.190 These are 17 out of 19 Annexes. The remaining two Annexes Facilitation (Annex 9) and Security (Annex 17) fall under the responsibility of the Air Transport Bureau.191 Article 57 (a) of the CC defines recommending adoptions and modifications to the Annexes as the first task of the ANC. In regard to amendments, the Assembly Resolution A37-15 defined the following:192 “The amendments shall reflect new requirements and technics in order to provide a sound basis for infrastructure and procedures. A high degree of stability in SARPs shall be maintained to enable the Contracting State will maintain stability in their national regulations. The amendments shall be limited to safety-relevant regularity and efficiency. Editorial amendments shall be made only if essential.” The ICAO Council and the Secretary General direct the Air Navigation Bureau of the Secretariat to conduct technical studies and research with the assistance of specialist panels and study groups.193 In the end, the ANC decides on the content of the SARPs by considering those cases where immediate action is required due to safety or security concerns. SARPs are developed at a very early stage before being adopted by the Council. The process for the development of new Annexes is the

187

Ibid., para. 21.2.1. See related Standards in ibid., para. 9.12.1 and 9.12.2. 189 Havel and Sanchez (2014), p. 177. 190 Abeyratne (2013), p. 3. 191 Ibid., p. 478. 192 Assembly Resolution A37-15 (2010): Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation, 2010, Appendix A. 193 Bartsch (2016), p. 58f. 188

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same as for the amendment of existing Annexes.194 This rulemaking process is explained analysed in the following.

4.3.1.2

Development Phase

Usually, the rulemaking process starts with the ICAO Council requesting the subordinated body—the ANC—to develop an Annex.195 But also, the ICAO Assembly, Contracting States196 or international organisations are authorised to submit proposals for the development of new SARPs by the ANC.197 The incoming proposal is analysed by the ANC.198 There are several consultative mechanisms that can be used.199 Often, the proposal is forwarded to a specialised working group for review.200 Most of the work is hereby finalised in meetings.201 So that a consensus is reached. There are two different types of air navigation meetings.202 First, there are air navigation conferences that comprise a substantial number of unrelated subjects of worldwide scope. These topics fall within several air navigation fields. Second, there are divisional-type air navigation meetings that are confined to only limited air navigation fields. Within the meetings, recommendations for the implementation of new SARPs, PANS and guidance material are discussed and prepared.203 That being said, the meeting also includes, as necessary, discussions on other recommendations related to action by Contracting States or the ICAO. The scope of the subjects determines the type of the convened meeting. Contracting States are authorised to participate in the meetings with an equal voice.204 International organisations are invited to attend as observers. Beside these meetings, technical subjects that need detailed examination are normally submitted to panels that contain experts. If an issue is less complex, it may be assigned to the ICAO Secretariat for further examinations. An air navigation study group can give support. After consultation, the various groups report a technical proposal back to the ANC with the revision of SARPs or new SARPs to review. One could ask how ICAO distinguishes between the choice of a Standard and a Recommended Practice. In this regard, consideration is given to the technical

194

Albisinni (2016), p. 220. Abeyratne (2016), p. 128. 196 Havel and Sanchez (2014), p. 178. 197 Pelton and Jakhu (2010), para. 17.3.2.1. 198 Abeyratne (2016), p. 131. 199 Albisinni (2016), p. 220. 200 Abeyratne (2016), p. 131. 201 Pelton and Jakhu (2010), para. 17.3.2.1. 202 In the following ICAO, Doc 8143-AN/873/3—Directives to Divisional-type Air Navigation Meetings and Rules of Procedure for their Conduct, 1983, p. 1. 203 In the following ibid., p. 1. 204 In the following Abeyratne (2016), p. 131. 195

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expertise and financial capabilities of the Contracting States, as they are going to establish the provision in the future.205 Further, a provision could be politically unacceptable in the meantime in order to be defined as a binding Standard. As a matter of fact, the access to technology, allocation of resources, implementation of reform or even change of governments, have an influence on the development of either Standards or Recommended Practices. In this context, also the ANC guidelines have to be considered which foresee that a Standard must be recognised as necessary for the safety or regularity of international air navigation, whereas a Recommended Practices is considered as desirable for the interests of safety and regularity of international air navigation so that states should only endeavour to conform.206 SARPs can then take a negative form that prescribes states shall not enforce more than certain maximum requirements, or a positive form inviting states to ascertain actions as declared in the ICAO Annexes.207

4.3.1.3

Review Phase

The review comprises considerations of controversies in the opinion of the Secretariat or the ANC that should be cleared before submitting the provisions to states for comment.208 After clearing all questionable issues, the ANC forwards the prepared recommendations for SARPs and their alternative proposals to the Contracting States and international organisations for comment.209 In case a state requests more technical specifications, these will be made available for states’ validation. The comment phase lasts for 3 months. Other international organisations also develop Standards. If they were verified and validated, they can also be referenced. Then, the Secretariat analyses the comments of the states and prepares a working paper entailing detailed comments and a proposed action plan.

4.3.1.4

Adoption and Publication Phase

Consequently, the ANC follows up with a final review of the recommendations and develops the final text for proposed amendments to SARPs, PANS and related attachments.210 This is forwarded to the Council.211 According to Article 54 (l) and 90 of the CC, the ICAO Council takes the final decision regarding the adoption of proposed SARPs. Under the title “Report to Council by the President of 205

In the following Bartsch (2016), p. 58. ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, p. 24. 207 Abeyratne (1992), p. 388. 208 Albisinni (2016), p. 221. 209 In the following Abeyratne (2016), p. 131. 210 Pelton and Jakhu (2010), para. 17.3.2.2. 211 Albisinni (2016), p. 221. 206

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the Air Navigation Commission” amendments to the Annexes are then presented to the Council.212 Usually, decisions of the Council require only a majority of the votes as per Article 52. Article 90 (a) stipulates a two-third majority for the adoption of Annexes. The two-third majority is in this regard not verbally connected to amendments of the Annexes. Notwithstanding, there is a consensus in the legal lecture that the modification of an Annex needs the same majority as its adoption.213 This explanation is corroborated by Article 37, which defines the terms “adopt and amend” in the same context as the Councils’ tasks. Further, as Frenzel notes, Article 54 (m) refers regarding amendment of provisions to Article 90.214 Also, the title of Article 90 contains the terms “adoption and amendment.” In conclusion, in both cases, the adoption or the amendment of SARPs, a majority of two thirds is needed, which means that 24 members of the Council must approve.215 If the adoption is successfully accomplished, the Council prepares an interim edition of the amendment within 2 weeks and distributes it as the Green Edition to states along with an explanatory letter.216 This letter contains specific dates related to the application of the amendment. The Contracting States are allowed to disapprove the adopted amendments to SARPs within 3 months as per Article 90 of the CC. The effective date is then approximately 4 months after adoption by the Council. If the Annex is not disapproved, it becomes effective on the determined date.217 Hence, the effectiveness of Annexes starts with the expiration of the time to notify disapproval.218 Subsequently, there is another period of approximately 4 months until the applicability date.219 One month before the applicability date is the notification date.220 On this date, states must have delivered any differences that will exist between national regulation and the provided Standards in the Annex. These are then supplemented to the Annexes in hard copy form.221 Unless states have provided differences to the Standards, states are bound to implement them on the applicability date.222 The ICAO Council has in this regard defined an applicability date for each year which is in the month of November in order to limit the frequency of Annex and PANS amendments. On average, 2 years are from preliminary review by the ANC

212

Abeyratne (2016), p. 132. Buergenthal (1969), p. 64; Frenzel (2011), p. 65; Erler (1967), p. 125; Riese (1949), p. 118f.; Schäffer (2007), p. 93. 214 Frenzel (2011), p. 65. 215 Albisinni mentions in the original text 25 members. However, this would be one vote more than it is literally required. See Albisinni (2016), p. 212. 216 In the following Abeyratne (2016), p. 132. 217 Huang (2009a), p. 54f. 218 Buergenthal (1969), p. 66. 219 ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, Appendix A, p. 43. 220 Pelton and Jakhu (2010), para. 17.3.2.3. 221 ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, Appendix A, p. 43. 222 In the following Abeyratne (2016), p. 132. 213

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until the applicability date. The duration of the rulemaking process depends on the number of consultations cycles as well as the participation of states and international organisations—having in mind the goal of achieving a logical consensus. Proposed amendments to PANS are approved by the ANC and forwarded to the Council for its approval.223 The President of the Council approves PANS after being circulated and commented by the Representatives of the Council. The Secretary General is authorised to publish Manuals and Circulars in accordance with principles and policies approved by the Council.224

4.3.2

Analysis of Parties Involved in the Rulemaking Process

4.3.2.1

The Role of States

The phases of the ICAO rulemaking process clarify how ICAO establishes new and modifies existing SARPs. States have given legislative power to the ICAO.225 This power became effective with the ratification of the CC. Article 54 (l) of the CC prescribes the adoption of SARPs and their designation in Annexes to the Convention as a mandatory function of the Council. In this regard, experts of ICAO’s technical committees develop and formulate the SARPs that shall apply universally and not state representatives.226 Nevertheless, Contracting States are still engaged in the rulemaking process. They can initiate the rulemaking process with a proposal, are invited to comment a revised proposal submitted by the ANC and have been granted with the right through Article 90 of the CC to disapprove the adoption or amendment of SARPs (Green Edition). Based on this right, Cheng derives that the Council has not full legislative power since states have the option to disapprove the introduced provisions. Therefore, Cheng defines the Councils’ power as quasilegislative power.227 As a matter of fact, this veto power is not likely to be effective today due to a large number of Contracting States.228 Based on 193 Member States that ICAO currently counts, 97 states would have to issue an disapproval within a period of 3 months.229 In the history of ICAO, there has not been one case of regulation refusal.230 The veto power would have been realistic if the number of Contracting States had been much lower, as it was at the beginning of the Chicago

223

ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para. 2.2.4. Ibid., para. 4.1.6.1. 225 Abeyratne (2007), p. 523. 226 Brinsmead (2007), p. 6. 227 Cheng (1962), p. 64. 228 Albisinni (2016), p. 222. 229 Albisinni refers to another number of required votes for disapproval based on an obsolete number of Contracting States. 230 Huang (2009a), p. 55; Even with a lower number of Member States. 224

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era. Therefore, from a purely theoretical legal point of view, one can affirm the fact that ICAO has a quasi-legislative function because the disapproval right is manifested in Article 90 of the CC. However, from a pragmatical perspective, the veto power a Contracting State has, is rather only available based on the right granted to notify differences as per Article 38 of the CC.231

4.3.2.2

The Role of the Assembly

The Assembly is the plenary body of the ICAO. Each Contracting State has one vote in the Assembly, irrespective of its share in international air transport and the level of contributions to the ICAO budget.232 In connection with ICAO’s primary task—the formulation of International Standards and Recommended Practices—the Assembly has no allocated role.233 The Assembly is considered to be the main policy-making body of ICAO.234 It emphasises the main principles and objectives that ICAO foresees. Targets, ambitions, and objectives are laid down in Assembly Resolutions. But the Council is the body with administrative and regulative functions that fulfils these objectives.235 Assembly sessions are held ordinary every 3 years in accordance with Article 48 (a) of the CC. That said, a legislative role would be improbable. Given the fact that the sessions of the ICAO Assembly are infrequent, the ICAO Council takes over routine and non-routine functions.236 According to Article 48 (a), the CC allows extraordinary sessions of the Assembly. This shows that the possibility of being rapid is ensured,237 for instance, in order to react to unlawful acts that have an international impact on safety and security of international air navigation. Even if the Assembly had been granted with a legislative role, it would not have been reasonable and efficient to call for extraordinary sessions and invite all Contracting States to ICAO’s headquarter for the purpose of developing aerodrome provisions or SARPs in general.

4.3.2.3

The Role of the Council

The Council is as per Article 50 (a) of the CC the permanent body of ICAO and responsible to the Assembly. Article 50 (a) also stipulates that 36 members shall be elected for the legislature period of 3 years. The member shall as per Article

231

Cheng also points out the right granted through Article 38 as a reason for ICAO’s quasilegislative function. For further details see Cheng (1962), p. 64. 232 Münz (1994), p. 385. 233 Fossungu (1998), p. 2. 234 Albisinni (2016), p. 211. 235 Ibid., p. 212. 236 Fossungu (1998), p. 9. 237 Kirchner (2010), p. 288.

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50 (b) represent three different Categories “(1) the States of chief importance in air transport; (2) the States not otherwise included which make the largest contribution to the provision of facilities for international civil air navigation; and (3) the States not otherwise included whose designation will insure that all the major geographic areas of the world are represented on the Council.” This strategy aims to guarantee adequate representation of different interests. However, the CC does not define how many states shall be elected for each Category. ICAO defines, in this context, in a subordinated procedure that as per Rule 56 (b) the ICAO Assembly shall fix the maximum number of states to be elected for each Category at the beginning of the session.238 The current Council consists of 11 members in Category I, 12 members in Category II, and 13 members in Category III.239 The CC does not stipulate how to determine states which are important to international air transport or which contribute large content. Milde derives that the authors of the CC wanted “to keep an economic, technical and geographic balance in the composition of the Council.”240 It is only the express of states’ political judgement to define whether a state is suitable for Category I/II.241 But, one can conclude that it is very unlikely to find many Developing States within the first two Categories. Developing States will rather be represented partly within Category III. Hence, the Council is predominated by the First World.242 The Federal Republic of Germany, for instance, which acceded to ICAO in June 1956, has been continuously represented in that body since 1959.243 Consequently, Developing States have a very limited role in adopting SARPs. The dominance of Developed States is also reflected in budgetary contribution to the organisation.244 Other states delay their financial obligation until immediately prior to the Assembly and do only come up with the minimum amount required to reinstate their voting rights.245 In this regard, Article 62 of the CC stipulates that the voting power of Contracting States in the Assembly or Council can be suspended if a state fails to discharge its financial obligation. In addition, the Developed States provide many experts for the different panels.246

238

ICAO, Doc 7600 Standard Rules of Procedure of the International Civil Aviation Organisation, 2014, p. 18. 239 https://www.icao.int/Newsroom/Pages/A39-ICAO-Assembly-elects-new-Council-for-threeyear-term.aspx, assessed on 12.03.2019. 240 Milde (2012), p. 150f. 241 Ibid., p. 150f. 242 Tourtellot (1981), p. 66. 243 Münz (1994), p. 386. 244 Bliss outlines the role of the United States in 2007. The USA contributed 25% of the overall budget and more than one-third of the voluntary contributions for a security programme. For further details see Bliss (2004), p. 13,257. 245 Assembly Working Paper A39-WP/61 (2016): Financial Aspects of the Question of Contributions in Arrears, 2016, para. 3.2.3. 246 Bliss (2004), p. 13,257.

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On 4 April 1947, the CC was ratified by 26 states. At that time, 80.8% of the Contracting States were represented in the Council (21 members).247 With the number of Contracting States increasing, the seats in the Council had been increased over the years to 36 Members.248 Today, only 18.7% of 193 Contracting States have the legal power to adopt SARPs. Since the vote of 24 states is required, only 12.4% of the Contracting States’ votes are required to adopt regulation for all Contracting States. This rate is thus needed to decide for instance on the adoption of new amendments to aerodrome provisions within all Member States. This rate can be considered as very low given the fact that a minority of states decides on the regulation which will be applicable upon all states. This might contradict the theory of international law in which states remain the main legal persons.249 In this context, Kau mentions correctly that international organisation only have a restricted legal personality.250

4.3.2.4

The Role of the Air Navigation Commission (ANC)

Based on the duties of the ANC laid down in Article 57 of the CC, the ANC can be considered as ICAO’s main technical body. In regard to the development of SARPs, Article 57 (a) obliges the ANC to “[c]onsider, and recommend to the Council for adoption, modifications of the Annexes to this Convention.” As per Article 56, the ANC shall be composed of 19 members. The members shall have “suitable qualifications and experience in the science and practice of aeronautics.” This requirement points out that aeronautical experts shall be recruited and not politicians. Article 56 further stipulates that all Contracting States may submit nominations. However, the CC does not define who elects the ANC members out of these nominations. The Article only highlights that the President of the ANC shall be appointed by the Council. A separate procedure defines that also the other members of the ANC shall be appointed by the Council for a 3-year term.251 Due to the fact that the Council is dominated more by Developed States, it is apparent that also these states will have a large role in selecting key personnel for the ANC disproportionately to other states.252 Albisinni mentions in this regard that the dominance of Developed States in the ANC is mitigated through “short term (period of 3 years) legislative period, the required majority of Members of the Council to appoint the

Huang points to the same aspect but calculates with the membership figures from 2009. It should be noted that due to the increasing number of Contracting States, the rate of the states that adopt regulation decreases. For further details see also Huang (2009a), p. 55. 248 Münz (1994), p. 386. 249 Von Arnauld (2016), p. 22. 250 Kau (2016), p. 143. 251 ICAO, Doc 7559/9 Rules and Procedure for the Council, 2013, Rule 16 (a), p. 6. 252 See also Benvenisti (2014), p. 19. 247

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Members and President of the ANC, and the voting by secret ballot.”253 It is questionable if these countermeasures are sufficient to encounter a dominance of Developed States in the ANC. The required majority of votes, as well as the voting by secret ballot, could also play in favour of Developed States, given the fact that the Council is already dominated by Developed States. Similarly to the challenge faced by the ICAO Council, a very low number of Contracting States is also represented in the ANC. Less than 10% of the states have a seat in the ANC, which is even less than the rate in the Council. Huang, therefore, correctly demands the ICAO to develop countermeasures, since the rulemaking process is driven by a low number of Contracting States.254 Notwithstanding, one has to admit that the ANC has played a major role in the ICAO rulemaking process and is a reason for ICAOs’ effective rulemaking.255 The ANC does only make recommendations to the Council. Nonetheless, the Council will, in most cases, follow these recommendations due to the technical experience of the Commission. The possibility of taking rapid actions is ensured by relying on technocrats. The Council’s legal power and the technical expertise of the ANC are important for the provisions of Article 54 and Article 37 of the CC. It is consequently difficult to establish a balance between democracy and effectiveness.

4.3.2.5

The Role of Panels, Air Navigation Groups, and Committees

The Council, as well as the ANC, set up panels which are small groups of experts with an important role in SARPs adoption.256 They contribute significantly to the tasks of the ANC.257 This is due to the fact that the small group character improves efficiency in the rulemaking process. The panel which is responsible for aerodrome provisions is the Aerodrome Design & Operations Panel (ADOP).258 In 1958, the Aerodrome Panel was established as a successor of many different aerodrome related panels like the Visual Aids Panel, the Aerodrome Reference Code Panel, the Rescue and Firefighting Panel, and other research groups related to aerodrome facilities and service. ICAO renamed the panel in 2014 to ADOP. The new target was to emphasise more on efficiency and capacity subjects and consequently a focus on aerodrome operation.

253

Albisinni (2016), p. 212f. Huang (2009a), p. 58. 255 In the following Kirchner (2010), p. 288. 256 The Council is granted with this right as per Article 55 (a) of the CC. Further, ICAO, Doc 7559/9 Rules and Procedure for the Council, 2013, Rule 17 (a), p. 6f. defines that commissions and working groups may be established. Article 57 (b) of the CC provides the ANC with this right. 257 Albisinni (2016), p. 213. 258 In the following ICAO, The Air Navigation Commission, Special 200th Session Commemorative Review, 2015, p. 8. 254

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The ANC panels solve specialised problems within a defined timeframe.259 These problems cannot be solved by the ANC itself and the Secretariat. Thereby, the panel experts act and work on the basis of their expert capacity. It is not foreseen to act as representatives of the nominators or states. A consultative capacity is also given to air navigation study groups or council technical committees. In case of less complex aspects a further examination is undertaken by the Secretariat which can be assisted by an air navigation study group.260 Air navigation study groups are small expert groups provided by states and international organisations. They assist the ICAO Secretariat in order to advance progress on technical subjects. Moreover, technical, economic, social or legal aspects can be assessed by technical committees of the Council. They support the Council when special expertise is not available and in the developing process of ICAO SARPs. Divisional meetings are still held from time to time.261 But, nowadays, the trend of letting the preparation work done by panels of experts emerged. In comparison to divisional meetings, panels are small, informal and personal. The size does not exceed 15 members. The work is done through correspondence in working groups or panel meetings. They express their professional opinion rather than the opinion of the nominating states or international organisation. With this concept, the frequency of large international technical meetings shall be reduced. The efficiency of panels also has two disadvantages: Firstly, the wide participation of states is restricted in the rulemaking process.262 States, as well as international organisations, may only send individuals as observers to panels.263 In this case, the observer has not the right to vote but to discuss the material inside the panel. The inclusion of observers is limited, and their number shall not affect the work of the panel negatively.264 This corroborates the fact that only a minority of the Contracting States will have the chance to participate in the panels. Secondly, the disparity between Developed and Developing States enlarges in the panels compared to the ICAO Council.265 The more sophisticated a subject or topic is, the less likely a Developing State will be engaged in the panel work. Even if qualified experts of Developing States are represented in the panels, these experts are limited in financial and technical resources—compared to nominated experts of Developed States.

259

In the following Albisinni (2016), p. 220. In the following Abeyratne (2016), p. 131. 261 In the following Huang (2009a), p. 56f. 262 Ibid., p. 57. 263 ICAO, Doc 7984/5—Directives for Panels of the Air Navigation Commission, 5th edition, 2014, para. 3.2.1.3. 264 Ibid., para. 3.2.4. 265 In the following Huang (2009a), p. 57. 260

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4.3.2.6

149

Responsibility and Role of the State Towards the Rapid Change of Annex 14

The Preamble of the CC defines that the Contracting States have “agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner (. . .).” Safety can therefore be considered as a main target of the CC. As far as aerodromes are concerned, the same safety requirement applies to them because Article 69 provides the Council with the power to consult Contracting States if aerodromes do not have safe and efficient operation. Aerodrome safety is inter alia ensured through compliance with associated SARPs generated within ICAO’s rulemaking process. The question arises as to whether the CC obliges Contracting States to participate in the development of SARPs and in this case, aerodrome provisions. Article 28 of the CC encourages states to provide aerodromes, whereas Article 15 prescribes that these aerodromes shall be open under uniform conditions. This applies to aerodromes designated as per Article 68. None of these Articles mention the development of SARPs. Only Article 28 obliges to apply them. Hence, a fulfilment of the aerodrome-related Articles is possible without participation in the development process. In this regard, a state is only required to adhere to the adopted and resulting Standards as per Article 37 and to notify difference in accordance with Article 38. Article 37 b) defines that the ICAO shall adopt characteristics of airports and landing areas. States are not mentioned here. The same applies to Article 44 in which ICAO’s objectives define that the ICAO is obliged to develop the principles and techniques of international air navigation. Article 54 (m) defines in this context that the ICAO Council shall consider recommendation for the Annexes by the ANC. Again, Contracting States are not required to make recommendations for SARPs. As a consequence, it is apparent that states are not directly obliged through the CC to participate in the rulemaking process. Contracting States have guaranteed through the CC Implied Powers266 to the ICAO in order to establish SARPs. Nevertheless, in Article 44 (i), it says that ICAO shall “promote generally the development of all aspects of international civil aeronautics.” And, for aerodromes, it says in Article 44 (c) that ICAO’s aim shall be “to encourage” the development of airports. With regard to the ordinary meaning rule,267 both verbs “to promote” and “to encourage” do not limit the development of aerodrome provisions and in general SARPs to the ICAO, since it is not said that ICAO (alone) “develops” airport principles. It can be derived that the authors of the CC address the Contracting States here. The context rule can be applied to Article 69 in which the Council can consult states when their aerodromes are deemed unsafe. In this case, ICAO will define mitigations collaboratively with the state. The derivation of technical solutions which can be the development of new or the recommendation of existing

266 267

Ipsen (2014), p. 221. Based on Article 31 of the VCLT.

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SARPs is not limited to the ICAO. Further, as per Article 57 (b), states are invited to take part in technical sub-commissions established by the ANC. As aforementioned, these commissions take an important role in the definition of SARPs. With regard to the object and purpose rule, the Preamble clearly exposes the desire of development through “cooperation of nations”. It is reasonable that the cooperation can also encompass the development of provisions by states. According to the CC, states are not literally obliged to participate in the development process of aerodrome provisions and SARPs in general, but they are also not hindered to do so. There are several indications in the CC that point out that the participation of states is crucial in order to develop aviation safety. The improvement of aviation safety goes along with the development of and adherence to SARPs. This can be derived from Article 37 of the CC. Consequently, states are required to be active in promoting aviation safety.268 The CC does not allow states to do nothing. On the contrary, this is exactly the case, when the majority of states are not participating in the rulemaking process.

4.3.2.7

Balance Between Democratic-Legitimacy and Regulative-Efficiency

The power of the Council is only borrowed by the Assembly and by using this legal power the Council relies on technocrats to a huge extent.269 This was manifested for the ANC and associated panels that are engaged in the rulemaking process. The recourse to expert panels and technical commissions aims to increase an effective decision-making process.270 However, this approach has its shortcomings from a democratic-legitimacy perspective.271 The Council, the ANC, and the ADOP do not represent many states. In particular, Developing States only constitute a minority in contrast to the compositional system of the Assembly where Developing States are represented in majority and where every state has one vote so that Developing States can largely influence processes.272 The Chicago System for the adoption of inter alia aerodrome regulation is in this case completely different compared to the Paris System, where new amendments to the Annexes were adopted by the plenary body. On the one hand, the rulemaking process of ICAO exists for 75 years generating international aviation provisions applicable all over the world. ICAO’s rulemaking approach is considered to be effective compared to other international organisations.273 On the other hand, the democratic-legitimacy is very low and will further decline with the increase of the number of Member States. Kirchner says that

268

Huang (2009b), p. 76. Kirchner (2010), p. 291. 270 Albisinni (2016), p. 222. 271 Kirchner (2010), p. 289. 272 Huang (2009a), p. 57. 273 Kirchner (2010), p. 290ff. 269

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existing doubts concerning the legitimacy of ICAO’s approach, which relies on technocrats can only be calmed down as long as this approach is fruitful.274 There are indeed some reasons to increase the democratic-legitimacy of the ICAO rulemaking process. Firstly, a state is still the main subject of international law.275 A state which is not represented in one of the rulemaking bodies will receive the draft of regulative amendments when the preparation work is already done to a huge extent. This is due to the fact that the development phase can take up to 5 years.276 Based on the developed SARPs, the ANC will have conducted a preliminary review, and a wheelchanging input is unlikely to happen277 provided that there is no sufficient uprising. Controversies will also have been cleared.278 Most of the states will practically have only the possibility to deviate from these provisions as per Article 38. This approach seems to be contradicting the idea of states being the main subject of international law. Secondly, the fact that the majority of the states are not participating in the rulemaking process could have a negative impact on the implementation of SARPs afterwards—especially in case of Developing States. The majority of the states will not contribute to the development of Annex 14 since they are only represented in the Assembly. Many aerodromes in Africa are not compliant with ICAO Standards.279 One can assume that Developing States in Africa will not have participated largely in any aerodrome-related rulemaking process. Developing States often ratify international convention on aviation very fast, but fail to implement provisions thereto.280 Already in 1981, it was noticed, that Developing States, e.g. in Africa, were underrepresented in the ICAO Council due to the fact that the CC was predominately a First World-Convention.281 Also, the lastest audit results of ICAO point out that a huge number of Contracting States does not implement SARPs associated with different subjects—notably aerodromes and air navigation services.282 Participating in the rulemaking process will not necessarily guarantee compliance of (Developing) States. However, the effectiveness of ICAO’s rulemaking process does also not lead to a high SARP implementation status by states. Inevitably, the participation of more states would not only balance the rulemaking process in favour of the democratic-legitimacy but could also help

274

Ibid., p. 289. Ipsen (2014), p. 3. 276 ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, Appendix A, p. 43. 277 Huang refers in this context to the work which has been conducted by panels and submitted to the ANC. Although, this material is only forwarded as recommendation, it is unlikely to be re-invented. For further details see Huang (2009a), p. 58. 278 Albisinni (2016), p. 221. 279 http://www.cassoa.org/cassoa/?p¼749, assessed on 10.08.2019. 280 Addy (2008), p. 33. 281 Tourtellot (1981), p. 55. 282 ICAO, Safety Report, 2018, p. 15. 275

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Contracting States to understand the provisions more and earlier which could be beneficial for the implementation of the SARPs. A strong role during the whole process will very likely help states to implement more SARPs. Thirdly, Contracting States are even less involved in the establishment of PANS and ICAO Manuals. Due to the fact that PANS-Aerodromes and aerodrome-related Manuals only require an approval and consequently an affirmative vote, even fewer states decide on important provisions.283 Hence, only the vote of 19 Members of the Council is required which equals fewer than 9.8% of the Contracting States. As far as aerodrome regulation is concerned, it was laid down that PANS, as well as ICAO Manuals, are extremely important for aerodrome planning. For instance, the Manuals are necessary to determine the lengths of runways. States would have to apply provisions that were only approved by a minority of states.

4.3.3

Strengthen States’ Role in the ICAO Rulemaking Process

4.3.3.1

Notification of Differences

After it has been concluded that more intensive participation of Contracting States in the rulemaking process of international aviation law will be beneficial for the development of aerodrome provisions and SARPs in general, participation possibilities must be determined. According to Article 38 of the CC, Contracting States shall notify of any differences between national regulation and adopted amendments to International Standards within 60 days after the adoption. And, as per ICAO Annex 14, states are also invited to notify of any differences to Recommended Practices.284 As a matter of fact, the notification obligation does not ensure that ICAO is informed about the actual reason for deviating from the Standard. This can be illustrated by the following example. The current Austrian AIP version encompasses all differences to ICAO’s SARPs.285 Annex 14 defines that “Flags used to mark mobile objects shall not be less than 0.9 m on each side (. . .)”, as per 6.2.2.4.286 According to the Austrian AIP, it says that “Flags used to mark obstructions are 0.5 M square.”287 This shows that by notifying ICAO of the difference, ICAO now only knows what the difference is. Hence, the information is going to be further forwarded to the rest

283

Huang (2009a), p. 58. ICAO, Annex 14—Aerodromes, 2018, p. xiii. 285 The AIP was updated in October 2018 pursuant to the new amendment of ICAO Annex 14 which became effective in July 2018. For further details see Austrocontrol, AIP Austria, 2017, GEN 1.720. 286 ICAO, Annex 14—Aerodromes, 2018, para. 6.2.2.4. 287 Austrocontrol, AIP Austria, 2017, GEN 1.7-20. 284

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of the Contracting States. However, through this notification ICAO is not aware of the actual reason for the difference. ICAO does not know why the state decided to deviate from this regulation. Article 38 also does not oblige a state to define a reason for the deviation.288 Particularly, information on the reasoning would definitely support the development of aerodrome provisions, since an associated information would derive whether the deviation was motivated due to financial, geographical, or technical reasons. This would benefit the rulemaking process, since, for instance, not every state has financial and technical means to comply with certain requirements.289 This approach is also encouraged by the ICAO Assembly. According to the Assembly Resolution A39-22, the Assembly directs the Council “to monitor and analyse the differences between the regulations and the practices of Member States and the SARPs and PANS with the aim of encouraging the elimination of those differences that are important for the safety, regularity and efficiency of international air navigation and taking appropriate actions;”.290 Knowledge of the actual reason would support the defined target. The notification of differences is not only mentioned in the CC but also in the Manual on Notification and Publication of Differences. The document lays down that the following information should be provided:291 1. “the number of the paragraph or subparagraph as amended which contains the SARP to which the difference relates; 2. the reasons for the difference why the State does not comply with the SARP, or considers it necessary to adopt different regulations or practices; 3. a clear and concise description of the difference; and 4. intentions for future compliance and any date by which the State plans to confirm compliance with and remove its difference from the SARP for which the difference has been notified (Note on the Notification of Differences).” The request of a planned date and confirmation of compliance derives that ICAO does not want states to have a difference to the SARPs for a long period of time, i.e., differences shall not represent a permanent solution. More importantly, it requests states to lay down the reason for deviation. To fulfil this task, states shall use the Electronic Filing of Differences (EFOD) System.292 This requirement is currently not applied by all states. This is evinced by the following example.

288

The proposal of a draft for amendment of Article 38 provided in this work would cover the notification of a reason for deviation through provision of an Equivalent Level of Safety. 289 Huang (2009b), p. 76. 290 Assembly Resolution A39-22 (2016): Formulation and implementation of Standards and Recommended Practices (SARPs) and Procedures for Air Navigation Services (PANS) and notification of differences in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. II-4. 291 ICAO, Doc 10055—Manual on Notification and Publication of Differences, 1st edition, 2018, para. 4.2.2 e). 292 ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, p. 45.

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ICAO Annex 14 defines the length of runway strips. Accordingly, “a strip shall extend before the threshold and beyond the end of the runway or stopway for a distance of at least 60 m for runways with code number 2, 3, and 4 and 60 m for instrument runways with code number 1 and 30 m for non-instrument runways with code number 1.”293 The CAA of New Zealand (NZCAA) deviates from this provision. Thus, the runway strip has a length of 60 m for runways with code number 3 and 4, but only 30 m for runways with code number 2 and 10 m for runways with code number 1.294 Hence, the ICAO Standard was only partially implemented. The column in the EFOD in which the reason for deviation should be described, remained however empty. The notification of the reason is understood as an effectual tool. Knowledge on the reason can enhance the continuous rulemaking process through indirect participation of the states. States can also suffer from temporary or short-term differences (e.g. exemptions/ exceptions).295 The question arises as to whether a state has to notify ICAO of shortterm differences or not. Article 38 of the CC is very clear on this. It requires that states immediately notify ICAO of differences, without exception and without taken to account the duration of the difference. According to the resolution of adoption of Annexes 2, 3 and 5 to the Convention, passed by the Council at the 22nd meeting of its 3rd Session, defined that “differences” are covering “non-compliance in any respect” with a Standard.296 This encompasses all situations, in which a state fails to comply with a Standards. This also includes provisions in which a state defines a requirement which exceeds the SARP and is more demanding.297 According to ICAO Annex 15, the AIP shall include in its General part information on the choice made by a state in each significant case where an alternative course of action is provided for the difference of a Standard, a Recommended Practice or a Procedure.298 Therefore, also for short-term differences, it should be highly recommended to notify of the reason for the difference in order to support further rulemaking tasks. The primary purpose of notifying differences in the AIP is to inform flight crews and other stakeholders about essential differences to international operations which are not readily available.299 One could ask if a state violates against Article 28 of the CC, in case differences at an aerodrome are not made available. Admittedly, one has to answer this question positively because through Article 28, states should provide aerodromes in accordance with SARPs. Hence, a pilot flying to a Contracting State would assume that the aerodrome has the same condition as defined by ICAO Annex 14, if no differences had been published by the Contracting State. Consequently, he

293

ICAO, Annex 14—Aerodromes, 2018, para. 3.4.2. NZCAA, Compliance Checklist (CC)/Electronic Filing of Differences (EFOD)—Annex 14, Volume 1, Amendment 13, 2017, p. 86. 295 ICAO, Doc 10055—Manual on Notification and Publication of Differences, 2018, para. 1.2.5. 296 Ibid., para. 1.2.3. 297 Ibid., para. 2.4.1.1. a). 298 ICAO, Annex 15—Aeronautical Information Services, 2016, para. 4.1.2. 299 ICAO, Doc 10055—Manual on Notification and Publication of Differences, 2018, para. 1.4.2. 294

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would assume that no differences exist against the elements of the Standards. This circumstance could eventually lead to a safety reduction. Reporting differences promotes safety and efficiency in air navigation by ensuring that all stakeholders governmental as well as operators “are aware of national rules and practices in so far as they differ from those prescribed SARPs.”300 But also, the rulemaking process and consequently regulatory could be enhanced that way. Lack of information on difference or non-compliances with SARPs creates uncertainty and jeopardises safety of air navigation.301 Incorrect or missing notification can potentially mislead the international community, may cause safety issues and result in undesirable operational situations.

4.3.3.2

Development and Commenting of Proposals

As already mentioned, states are engaged two times in the rulemaking process. States are allowed to submit proposals to the ICAO. By motivating the states to forward more proposals for SARPs, a higher involvement of states would be present in the rulemaking process. In addition, states should also concentrate on a detailed examination of the provisions in the commenting phase of the review process. According to the Assembly Resolution A38-11, “Member States should comment fully and in detail on the proposals for amendment of SARPs and PANS or at least should express their agreement or disagreement on their substance.”302 Both alternatives are requiring a continuous exchange between national aerodromes and their competent authorities. National aviation authorities must be aware of the challenges aerodrome operators face in order to fulfil provisions. A knowledge of that and a submission of this information to ICAO afterwards would enhance the development SARPs. These steps are important, especially for Developing States, as it is noticed that those states often ratify multilateral treaties but do not take a further part in participation.303 Both options represent simple ways to participate more in the rulemaking process. The reporting of states opinion can encounter prevalent domination of Developed States in the rulemaking process.304 In this regard, the desire of states to be more involved in the rulemaking process is crucial, as the effectiveness of international organisations depends on states.305

300

Ibid., para. 1.3. Ibid., para. 1.5.1. 302 Assembly Resolution A39-22 (2016): Formulation and implementation of Standards and Recommended Practices (SARPs) and Procedures for Air Navigation Services (PANS) and notification of differences in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. II-4A. 303 Komba and Mwakisu (2012), p. 6f. 304 Huang (2009a), p. 57. 305 Ipsen (2014), p. 197. 301

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Development of an Observing Panel for the Rulemaking Process

A further possibility to participate in the rulemaking process for states is to participate as an observer. This option is based on Article 57 (b) of the CC. However, it has to be noted that the number of individuals as observers is limited. The quantity should not adversely affect the conduct of the work.306 Consequently, one can say that Developing States will not influence the rulemaking process remarkably through an observing role. A possible solution could be the implementation of an observing panel composed of Developing States. The involvement of this panel could have the task to evaluate new amendments in an early rulemaking phase and to give a consolidated opinion on the implementation feasibility within Developing States. Due to the fact that panels shall endeavour a consensus agreement on all recommendations to the ANC,307 one vote of the whole panel could be considered as required to achieve the required consensus. This observing panel would not only be limited to the rulemaking process of aerodrome-related provisions but could also provide feedback to other panels that discuss different kind of SARPs. The introduced possibility would be partly in compliance with Article 53 of the CC, which gives Contracting States the right to attend the Council, its committees, and commissions of any questions which affects their interest. However, in this case, the CC does not provide a voting right which would be useful here.

4.3.3.4

Conduction of an Impact Assessment

Contracting States are provided with a proposal of amendments during the review phase and with the Green Edition in the adoption phase. The latter entails an impact assessment of the proposed amendments conducted by the ICAO. In the 5th meeting of Councils’ 204th Session, the Council requested that states, when being advised of the adoption of an Annex amendment, shall be provided with an impact assessment.308 An impact assessment encompasses the assessment of the proposed amendment (Part I), an examination of the proposed implementation plan (Part II), and considerations regarding the impact on the audit plan (Part III).309 The impact assessment is conducted by the associated panel. Part I examines the impact of the regulative amendment on safety, security, environment and efficiency. Further, it figures out the impact on financial or personnel resources of states and industry. It refers to the costs to develop, implement, maintain, and consider oversight issues associated with the proposed amendment as far as states are concerned. In regard to the industry, it considers costs of

306

ICAO, Doc 7984/5—Directives for Panels of the Air Navigation Commission, 2014, para. 3.2.4. Ibid., para. 3.4.6.1. 308 Amendment 14 State Letter AN 4/1.2.27-18/23, Adoption of Amendment 14 to Annex 14, Volume I, 2018, p. 3. 309 In the following ICAO, Impact Assessment Form, 2016, p. 1. 307

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implementing the change, where compliance is required by the state, which may translate into costs for equipage, human resources, training, documentation, aircraft modifications or upgrades, operations and airworthiness for example. The form sheet also stresses that while the implementation of a proposal may involve an initial cost to a system, the overall impact of the proposal should be to reduce costs. Part II contains an assessment of the implementation of the new provisions. It should contain detailed information on the important steps to consider for the adoption. It also contains a timeline needed for industry and states to implement the provisions.310 Part III contains questions trying to figure out whether ICAO’s audit plan requires and adjustment.311 The form notes that panel experts may feel limited in their ability to respond to the questions in the assessment form. Nonetheless, they are requested to provide their views. Answers will be presented to the Council and further developed. The developed version is then submitted to states with the proposed amendments. Hence, states have 3 months to communicate disapproval to the amendments. Two challenges arise here. First, it is very questionable whether the panel of experts is capable of determining the impact of the amendments—especially from a perspective of a Developing State. How could an aeronautical expert from England determine the obstacles and challenges in terms of the implementation that will be faced in South Sudan? Without any doubt, the state itself will be the best entity that can respond to these questions. Second, the results of the impact assessment are provided at the end of the rulemaking process. It would be better if the results of the impact assessment would be provided to the states earlier in the rulemaking process—namely during the submission of the proposal in the review phase in which states are asked for comment. That having been said, input by the states could be taken under consideration timely in the rulemaking process. In case states are provided with the impact assessment early, this could help them to understand the amendment better and to comment it better. Further, ICAO should aim to request states to comment the impact assessment as well. Since the states will be able to provide to the Council useful and probably unknown input with regard to implementation challenges. The views of the states would definitely enhance the rulemaking process and adjustments could be made in the early phase.

4.3.3.5

Increasing the Number of Air Navigation Meetings

There are two types of air navigation meetings. Air navigation conferences are held when a substantial number of interrelated worldwide topics within several air navigation fields should be discussed.312 Divisional meetings are held when only

310

Ibid., p. 2. In the following ibid., p. 3f. 312 ICAO, Doc 8143-AN/873/3—Directives to Divisional-type Air Navigation Meetings and Rules of Procedure for their Conduct, 1983, para. 2. 311

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one or a few fields are covered. The ANC can decide to consult states on the need of an air navigation meetings by sending a draft list of subjects.313 Based on the responses, the ANC develops an agenda for the meeting.314 The question arises whether this type of participation would be beneficial. On the one hand, the participation of states in the rulemaking process will increase and consequently the democratic-legitimacy. This is evinced by the fact that the aim of such meeting is to “record minority views and references to points of divergence that have arisen, and the extent of agreement reached in the discussion (. . .)”.315 Hence, also views of Developing States would be perfectly reflected. But on the other hand, it is blatant that a conference with about 193 states would never be as efficient as a panel meeting including 15 members. The ANC only establishes this kind of a meeting, when it is made sure that the subject cannot be solved within other forums such as a panel for instance.316 Therefore, this option remains possible but is not the most appropriate due to the severe reduction of regulative efficiency.

4.3.3.6

Recomposition of the ICAO Council

The composition of the ICAO Council was predominately defined by the First World.317 As said, Developing States like the African States were in 1950 likely to be represented in the third Category of the ICAO Council. Due to the fact that African States nowadays encompass a third of the globe, a discussion on the underrepresentation in the ICAO Council and consequently a possible change is allowed.318 The ICAO Council is considered to be a very important body, since executive, judicial, administrative, as well as legislative powers, are given by the CC as per Article 44. In relation, the plenary body only meets once every 3 years (Article 48 of the CC). A change of the number of seats for the Council had been accomplished earlier whereas the criteria of composition did not change.319 The Assembly Resolution A13-1 adopted the first enlargement of ICAO Council from 21 members to 27 in 1962.320 The reasons for the expansion had been the increase in memberships of ICAO, the aim to better achieve global representation of areas that were not represented in the Council in the past, and all executive bodies of specialised

313

Ibid., para. 5.1. Ibid., para. 5.2. 315 Ibid., para. 6.5.2. 316 Ibid., para. 5.2. 317 Tourtellot (1981), p. 54f. 318 See also Tourtellot speaking about this approach 30 years ago. In ibid., p. 53. 319 Ibid., p. 53. 320 Assembly Resolution A13-1 (1961): Amendment to Article 50 (a) of the Convention increasing the membership of the Council to twenty-seven in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-15. 314

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agencies of the UN had been enlarged.321 A further enlargement and consequently amendment to Article 50 (a) was adopted in 1974 from 30 to 33 members.322 In this context, the necessity was seen to represent Developing States in the Council better and to ensure the participation of small and large states that were concerned with major problems in aviation and keeping their technical and financial support.323 A similar necessity was mentioned in the proposal for the last amendment in 1989 by 41 African States (entered into force in 2002).324 It was “expressed that the growing challenge offered by technological innovations and changing commercial strategies in international air transport and the consequent desire of a number of states, particularly Developing States, to assume their responsibilities by participating in the work of the Council, favoured the increase in the size of that body from 33 to at least 36.” At that time, 162 states were members of ICAO. It is obvious that 30 years later, a new amendment is required due to the increasing Member State number of ICAO (actually 193). If one would increase the number of seats of the ICAO Council in order to reach the ratio that was existent after the signage of the CC (80.7% of the ICAO Contracting States were represented in the Council), approximately 156 states would be represented in this body. Without any doubt, the democratic-legitimacy would be very high. However, this high number would have a negative impact on the efficiency of the body. But the efficiency is highly rated.325 A considerable expansion of Council membership will definitely not be in favour of the efficiency of the ICAO Council.326 Hence, one can say that the strong raise of the Council seats will not lead to a better balance of the democratic-legitimacy and regulative-efficiency but would only shift the burden to the other side, which could be even worse. In 2016, the ICAO Assembly had already approved in accordance with Article 94 (a) to amend Article 50 (a) and to provide four more seats. Consequently, by replacing in this Article 36 with 40.327 Therefore, all Contracting States were

321

https://applications.icao.int/postalhistory/the_icao_council.htm, assessed on 14.3.2019. Assembly Resolution A21-2 (1974): Amendment to Article 50 (a) of the Convention increasing the membership of the Council to thirty-three in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-17. 323 Ibid., p. I-17; https://applications.icao.int/postalhistory/the_icao_council.htm, assessed on 14.3.2019. 324 In the following https://applications.icao.int/postalhistory/the_icao_council.htm, assessed on 14.3.2019. 325 Kirchner (2010), p. 289. 326 Münz (1994), p. 386. 327 Assembly Resolution A39-4 (2016): Amendment to Article 50 (a) of the Convention on International Civil Aviation in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-19. 322

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requested to ratify this amendment.328 The amendment was based on a proposal by Portugal and Saudi Arabia where latter says:329 Since the entry into force of the Convention on International Civil Aviation on 4 April 1947, the size of the Council of ICAO has been increased four times in accordance with the ever increasing membership. The last increase was decided 25 years ago in October 1990, when the ICAO membership stood at 162 States. Since that time, the size, structure and importance of international air transport for the national economies has significantly changed, and civil aviation has become a major driver of economic development and tourism for many countries. As a result, more States than before are prepared to take an active role in decisions affecting the global air transport system as well as their national economies. It is advisable for the Organization to bring on board significant new players to enable broad consensus on future challenges. Given that the ICAO membership now stands at 191 States, in order to ensure adequate representation of the member States it would be desirable and useful to increase the size of the Council from 36 to 39 seats.

This passage clearly evinces the interest of states to participate in the international rulemaking process. On the one hand, it is obvious that four more seats will not decrease the efficiency of a well-organised and experienced body. On the other hand, the increase of seats to 40 might also not be sufficient to enhance the current situation due to the fact that the enlargement is very small compared to the actual number of Member States (4 seats more compared to an increase of 31 Members States). In this regard, the ICAO Council noted that the necessity to enlarge the seats is based on the fact that a forecast for 2030 showed that there are “sub-regions and hubs that are not represented in the Council.”330 Furthermore, ICAO being a UN agency has comparingly few seats in the governing body. However, the participation of Developing States will with this enlargement only be increased slightly, since the Council aims to split the additional seats between the Categories.331 The same was noted by the ICAO Council in 2013 when Saudi Arabia proposed to enlarge the seats in the Council from 36 to 39.332 The Council commented that an enlargement is needed and desired by many states. Nevertheless, even an enlargement would not “guarantee that the States and regional groupings that are seeking additional representation would be elected to the Council.” Thus, one must particularly consider other criteria to adjust, in order to achieve the endeavoured balance and a higher participation of notably Developing States. Overall, there are three criteria that can be changed: the number of seats, the types of categories and the ratio between the categories.333 Due to the fact that the first 328

Assembly Resolution A39-5 (2016): Ratification of the Protocol amending Article 50 (a) of the Convention on International Civil Aviation in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-20. 329 Assembly Working Paper A39-WP/18 (2016): Agenda Item 12: Proposal to amend Article 50 a) of the Chicago Convention so as to increase the membership of the Council, 2016, para. 1.2. 330 Ibid., para. 1.2. 331 Ibid., Appendix A, para. 1.3. 332 Assembly Working Paper A38-WP/17 (2013): Agenda Item 21: Proposal to amend Article 50 a) of the Chicago Convention so as to increase the membership of the Council to 39, 2013, p. 4. 333 Tourtellot (1981), p. 74f.

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criterium has already been changed to an acceptable number, the second and third criteria could be amended. A possible approach could be the definition of a fourth category in which Developing States shall be included or states that are of a major need for financial and technical support. As aforementioned, one argument for the enlargement of the ICAO Council in 1974 was to include more states that provide financial or technical help. Therefore, it would make sense also to include states which are in need of this help in order to have cooperation on the highest rulemaking level. In addition, the ratio between the Categories should also be amended to be equal of 10 within all four Categories. A significant number of Developed States would be still assured in the Council (Category I and II). The know-how would also be represented by states in the Categories I and II and slightly by some states within Category III. On the other hand, Category III is then recognised as truly neutral, since account is only taken to the geographical representation. Developing States would be represented completely in Category IV and partly in Category III. As a consequence, experienced and strong Developed States would still represent the superior number. As far as the ratio is concerned, equal representation in each Category is nothing new to the ICAO Council, since this was the case when the ICAO Council was amended from 27 members to 30 members.334 Each Category had 10 members.335 The ratio was only amended in favour of the Category II and III because of the political pressure of states that could be represented in these groups.336 A reduction of the ratio in Category II and III will not pose a problem for Developing States since there is a new Category IV in which many states of the former Category II and III could be represented in. Developed States also should not have issues against this approach since their participation would be ensured strongly in Category I and II and the ratio of their Categories would be equal again to the other Categories. One might think that the enlargement of seats for Developing States could eventually hinder the effectiveness of the ICAO Council through voting and consequently prevent useful innovations to be implemented. A similar case was observed for the World Trade Organisation (WTO) where Developing States use their voting power to affect negotiations dominated by Developed States. By acting in coalitions, Developing States can encounter Developed States.337 Two prominent examples clarify this challenge. First, Developed States had to increase the super-majority requirement from two-thirds to three-quarters at the time of the Uruguay Round to eliminate a blocking power in voting procedure by Developing States.338 Second,

334

Assembly Resolution A17A1 (1971): Amendment to Article 50(a) of the Convention increasing the membership of the Council to thirty in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-16. 335 Milde (2012), p. 151. 336 Ibid., p. 151. 337 Rolland (2007), p. 483. 338 Ibid., p. 520.

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small island states that played historically a minor role in international rulemaking, blocked the adoption of the United Nations Framework Convention on Climate Change (UNFCC) agreement.339 In such cases, Developing States express their willing “to stop being a ‘rule taker’ and become a ‘rule maker’.”340 A similar procedural shortcoming is not supposed to happen after the introduction of the proposed amendment. As far as an approval is concerned, a decision needs a majority of votes as per Article 52 of the CC. Developed Sates will still represent Category I and II and a part of Category III so that a blocking power by Developing States is unlikely to happen. As far as the adoption of regulation is concerned in Article 90 (a) of the CC, a higher majority of two-thirds is required. Here, it could be possible that in some cases, the adoption could be blocked through all states in Category IV and by some states in Category III, which also might be Developing States. If this is the case, ICAO will have to admit that the amendment is not mature enough to be implemented on worldwide basis. Article 37 of the CC targets “the highest practicable degree of uniformity in regulations, standards, procedures, and organization (. . .).” Due to the fact that the ICAO Council reflects the whole world geographically, technically, and financially, a rejection of the amendment would mean that a high degree of uniformity can currently not be met on a worldwide basis. In legal literature, it is argued that the legislative framework of the CC is not the reason for the significant number of non-complying states, but the big gap between Developing and Developed States regarding technical and financial means.341 In 1969, Buergenthal answered the question whether it is logical to implement rules many states could not comply with by saying that even if this is so, states which are able to comply with these rules will comply. This represents a kind of standardisation. He goes on to say that some compliance to a few provisions by all states and approximately complete compliance by some states is better than no compliance with any provisions. This opinion might seem convincing for the 1960s given the comparably low number of ICAO Member States and the remarkably lower level of international air traffic. However, one must say that this answer might not be appropriate in 2019. Fifty Years and 73342 Member States later, even on the side of ICAO there is another understanding and initiative which foresees that “No Country Left Behind”.343 The programme is based on partnerships and assistance programmes that aim to help states more in order to achieve sufficient compliance. The proposed amendment would support this principle and encounter the negative trend already recognised by Milde in 1996. “ICAO moves ahead like a

339

Burke-White (2015), p. 41f. O’Donoghue and Tzouvala (2016), p. 55. 341 Buergenthal (1969), p. 121f. 342 There were 120 Member States in 1971. See https://applications.icao.int/postalhistory/the_icao_ council.htm, assessed on 14.3.2019. 343 In the following Assembly Resolution A39-23 (2016): No Country Left Behind (NCLB) Initiative in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-118f. 340

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fast locomotive, happy with its speed but without noticing that many wagons of the train may have become unhitched and stay behind.”344 The proposed amendments will also have a positive balance effect on the subordinated rulemaking process since the recomposition of the ICAO Council will also impact the composition of the ANC and panels. This is due to the fact that Developing States could influence the appointment of members more now. In this regard, the ICAO Assembly also approved an amendment of the number of the ANC members from 19 to 21 members.345

4.3.3.7

Draft for Amendment of Article 50 (b) of the Chicago Convention

Due to the fact that the ICAO Assembly already approved the increase of seats of the Council, an amendment to Article 50 (a) is not necessary. Also, the ratio criteria are not envisaged in the text of the CC. As per Rule 56 (b), the ICAO Assembly has to determine the maximum number of states to be elected for each Category at the beginning of the session.346 This number should be equal of 10 for each Category. Consequently, the only amendment to the Convention is in respect of the introduction of Category IV in Article 50 (b). The proposed amendment to Article 50 (b) is the following: (b) In electing the members of the Council, the Assembly shall give adequate representation to (1) the States of chief importance in air transport; (2) the States not otherwise included which make the largest contribution to the provision of facilities for international civil air navigation, (3) the States not otherwise included whose designation will insure that all the major geographic areas of the world are represented on the Council; and (4) the States that represent developing States or are in need of financial and technical support. Any vacancy on the Council shall be filled by the Assembly as soon as possible; any contracting State so elected to the Council shall hold office for the unexpired portion of its predecessor’s term of office.

344

Milde (1996), p. 7f. Assembly Resolution A39-6 (2016): Amendment to Article 56 of the Convention on International Civil Aviation in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-24. 346 ICAO, Doc 7600 Standard Rules of Procedure of the International Civil Aviation Organisation, 2014, p. 18. 345

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Integration of International Law into National Legislation Introduction

The ICAO Council adopted a resolution on 13 April 1948, in which it urges the Contracting States “in complying with ICAO standards which are of a regulatory character, to introduce the text of such standards into their national regulations, as nearly as possible, in the wording and arrangement employed by ICAO.”347 With this request the Council intended “to free those engaged in international air navigation to the greatest possible extent from the necessity of detailed examination of national laws and regulations upon crossing international boundaries, and because many of the benefits of international standardization of practices and of regulatory requirements may be lost through diversity of form and arrangement in the publications through which they are promulgated in the various States.” That being said, the degree of differences to the ICAO text should be limited “to an absolute minimum.”348 Irrespective of the legal system of a state or how it operates, technical, operational and safety standards of aviation generated under the umbrella of international aviation law must be the same in each state.349 These standards have to be in accordance with ICAO’s Standards—and at the best desirably also compliant with Recommended Practices. This will guarantee to achieve the targets set down in the Preamble of the CC. Expressions used like “binding force” and “binding upon member states” do not ipso facto lead to a binding effect with regard to the national law of a state.350 The binding effect of multilateral treatments towards states does only derive the obligation on a state to give those international regulations a binding character nationally. Therefore, international legislation requires an act of transference from international to national law.351 This act fulfils the international obligation of the state. Supranational organisations only have the ability to enact regulation being ipso facto binding nationally.352 Thereby, ratification is the notification addressed to the partner in the international treaty that the treaty has been brought into force at national level.353

347

See in the following ICAO Council, Report of the Council to the Sixth Session of the Assembly, 1948, p. 21; Pepin (1952), p. 153; Abeyratne (2016), p. 41. 348 Pepin (1952), p. 153f. 349 Bartsch (2016), p. 38. 350 Erler (1964), p. 14f. 351 Riese (1949), p. 61ff.; Erler (1964), p. 14f.; Bartsch (2016), p. 44; Abeyratne (1998), p. 5. 352 Erler (1964), p. 15. 353 Hobe (2014), p. 246.

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Relation Between International and National Law

There are two theoretical dichotomies that reflect the relation between international and national law.354 They also provide answers to the question as to whether international law is directly applicable to authorities and courts of a state after entry into force of a multilateral treaty.355 The VCLT itself does not offer answers to this kind of questions.356 Only Article 27 of the VCLT defines that “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” Thus, a state which is bound by international law either a multilateral treaty or international customary law has the obligation to fulfil its duty. International law acknowledges that states have room for flexibility in the creation of a domestic legal structure related to the fulfilment of an obligation under international law.357 In any case, the state owe each other a result, but are free on the way to get there. First, there is the principle of monism.358 Monism defines that both national and international law are integral parts of a single legal system. The old monism theory declares a supremacy of national law.359 In this case, international law is considered to be derived from internal law.360 This ideology of monism is barely existent in these days.361 The young monism theory accepts supremacy of international law compared to national law.362 The basis behind this is that a state cannot plead national regulations being the cause to violate international obligations. In case of collisions between the two legal systems, international law takes precedence over the norms of the national legal systems derived from it.363 The monist approach allows applicability of international law by a national court before a multilateral treaty is integrated into national law.364 Second, there is dualism which identifies two separate forces operating on international and national level.365 Both legal systems work autonomously. On the one hand, there is the legal relation between sovereign states which is governed by multilateral treaties and international customary law.366 On the other hand, there is national law laying down rules for the relation between citizens and their national

354

Abeyratne (1998), p. 4. Will (2015), p. 1165. 356 Hobe (2014), p. 242. 357 Kunig (2016), p. 78. 358 O’Brien (2001), p. 108. 359 Will (2015), p. 1166. 360 Hobe (2014), p. 239. 361 Herdegen (2018), p. 173. 362 Abeyratne (1998), p. 4. 363 Hobe (2014), p. 240. 364 Ferreira and Ferreira-Snyman (2014), p. 1471. 365 Kunig (2016), p. 77. 366 Schweisfurth (2006), p. 195. 355

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government.367 Rights and obligations exist on both legal systems.368 The dualism ideology distinguishes between these two systems.369 Thereby, domestic law can refer to international law, whereas the latter is not automatically integrated into the former system. Due to the fact that both legal systems are separated from each other, none of them can claim supremacy.370 Therefore, collision between international and national law is considered as possible. Another opinion which also can be found in jurisprudence is that international and national law cannot conflict since they are operating in different spheres, and there is no common activity.371 The dualist approach commits states to integrate international law into national law before enforcement of provisions of the multilateral treatment by the court.372 This integration is a necessary act of the legislature.373 As far as both theories are concerned, there are cases in which it is difficult to distinguish between monism and dualism, as some legal systems reflect elements of both.374 For example, the legal constellation in Germany has principles of both theories.375 In this context, von Arnauld recognises a merging process of both theories.376 An adherence to either the monist or the dualistic approach does not suffice.377 It is seen that customary law is often easily incorporated by the states, whereas in particular multilateral agreements are treated in different kinds and with different implementation methods.

4.4.3

Interaction Between International and National Law

Both theories, monism and dualism, describe the relation between international and national law, whereas they do not explain how both legal systems interact with each other.378 Nor does international law prescribe norms and obligation related to the way of integration into domestic law.379 For instance, Article 1 of the European Convention on Human Rights (ECHR)380 binds Contracting States to respect human

367

Starke (1936), p. 70; Abeyratne (1998), p. 4. Hobe (2014), p. 240. 369 Abeyratne (1998), p. 4. 370 In the following Will (2015), p. 1166. 371 O’Brien (2001), p. 110. 372 Ferreira and Ferreira-Snyman (2014), 1471f. 373 Laws (2000), p. 18. 374 Ferreira and Ferreira-Snyman (2014), 1471f. 375 Kunig (2016), p. 79. 376 Von Arnauld (2016), p. 213. 377 Shaw (2017), p. 135f. 378 Will (2015), p. 1167. 379 Schweisfurth (2006), p. 196f. 380 CETS no. 194; BGBl. 1952 II, p. 685. 368

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rights: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” However, the provision does not define how a state has to assure that.381 Thus, a state which particularly differs between both legal systems, has to define ways to integrate international law. It is not always clear which theory was used by a state to give effectiveness to international law.382 Different theories also exist in this regard: The incorporation theory defines that international law is automatically integrated into national law without a specific act of integration.383 The norm is incorporated simply because it is an international norm. Hence, the incorporation theory is based on monism—giving supremacy to international law.384 International law is thereby integrated into national law either with a general clause in states’ constitution, explaining the order of international law, or blanketly.385 The theory was developed by Blackstone (England) who defined that “international law is part of the law of the land”.386 For example, the British courts have often ruled on the basis of international law without verifying whether the international rule in question has been transposed into national law.387 It is additionally also possible that requirements are defined before a multilateral treaty is incorporated.388 In this case a more dualistic approach is derived. Further, international law can be integrated based on the transformation theory.389 Thus, international must be transformed into dictates of justices of the state— without change to its content. In comparison with the incorporation theory, international law becomes national law after transformation.390 The transformation theory is therefore based on the dualistic approach. The transformation can be achieved either through a blanket approval or approval for each multilateral treatment.391 A blanket approval is especially useful for international customary law which is amended frequently. It is not merely an act of shifting a legal norm from international to national law, but a genuine transformation.392 Therefore it is possible, that the national legal norm is applicable even before entry into force internationally, or if the treaty is no more in force.393 The difference between incorporation and transformation is that former integrates all international provisions unless they are

381

Schweisfurth (2006), p. 197. Ibid., p. 198. 383 Dixon (2013), p. 98. 384 Schriewer (2017), p. 118. 385 Will (2015), p. 1167. 386 Blackstone (1769), p. 67. 387 Hobe (2014), p. 241. 388 Kunig (2016), p. 80. 389 Hobe (2014), p. 241. 390 Kunig in Vitzthum (2016), p. 80. 391 Schöbener (2013), p. 520; Will (2015), p. 1167. 392 Hobe (2014), p. 241. 393 Kunig (2016), p. 80. 382

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excluded and latter integrates international law when it is decided to be included.394 Therefore, often, incorporation is referred to monism and transformation to dualism. The third theory is the delegation theory. In comparison to the transformation theory, international law must also be provided with effectiveness through a national act.395 However, this theory defines that international law will only be announced to be applicable nationally. This means that the delegation theory defines that the legal act of transformation does not lead to a conversion of international law to national law but only to order the application of international law domestically.396 The delegation theory is based on the monism approach.397 The relation between international and national law and consequently the theory which is based on has to be derived from the constitution of a State.398 Often, it is quite difficult to determine which theory is used to transform international law into national law.399 For the case of Germany, there are arguments for all three aforementioned theories.400 However, there is a consensus that the domestic applicability of the international law starts when both the multilateral treaty has entered into force as well as when the integration has been nationally completed.401 The dominance of a theory at a certain time depends on the changing concepts of state sovereignty, which in turn are reflected in the constitutions.402 Also, in terms of the rank classification of international law in the domestic legal system, international law leaves the rank classification to the free decision of the states.403 Rank classifications are usually made in the constitutions. Often, implemented international laws have the rank of the act of their incorporation into domestic law. But also, lower and higher ranking is possible.404 A dualistic approach must not automatically lead to a lower rank of international law.405 It is possible to have a higher rank than the national acts but a lower one than the constitution.

394

Dixon (2013), p. 98. Hobe (2014), p. 241. 396 Von Arnauld (2016), p. 212. 397 Schöbener (2013), p. 520. 398 Will (2015), p. 1168. 399 Ibid., p. 1171. 400 BVerfGE 75, 1, p. 19; Von Arnauld (2016), p. 212; Hobe (2014), p. 244; Will (2015), p. 1169f. 401 Will (2015), p. 1172. 402 Ibid., p. 1175. 403 Schweisfurth (2006), p. 201. 404 Ibid., p. 201. 405 Schriewer (2017), p. 121. 395

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Integration of the Paris- and the Chicago Convention into National Law

Integration of international aviation law is an indispensable act to allow national applicability.406 In general, two different methods have been used to incorporate the Paris- and Chicago Convention into national law. The first method poses a blanket approval for ratification of the convention. Accordingly, all subordinated provisions and regulation that will be developed by the international organisation become nationally effective. This means that no further legal act is required for the transformation. Also, no executive body is required to provide effectiveness to upcoming international regulation that are referred to the initial convention. The only national conduct which is necessary is an official announcement in states’ Law Gazette407 to render the binding effect on public, since no legal norm can be binding on public unless the citizens are informed.408 One example of this kind of method is represented by the Italian Model.409 National force of CINA regulation was achieved only through an official announcement. This was due to the fact that the Italian Air Code of 1923 contained in Article 50 (a) a provision which gave automatic municipal force to CINA regulations: “All provisions of the Convention and its Annexes along with their amendments, even if not reproduced in the present Code, are executory, and they form part of the law of the country.” Given the fact that a specific act of integration was necessary, it is unlikely that the incorporation theory has been used here. The text indicates that the delegation theory might have been used. This is due to the fact that a national act was used to provide the Paris Convention, Annexes thereto, as well as amendments with national applicability. But also, indications for the transformation theory can be derived because in this case international law, i.e., the Paris Convention, forms “part of the law of the country, which could mean that it has become national law.” The second method is to enact an order or statue that transforms the convention into national law.410 Hereby, an Air Navigation Act would also delegate legislative function to the executive that was authorised to implement international regulation by orders.411 Most of the Member States of CINA applied this method.412 This method was also continued to be applied by most of the Contracting States of the CC. So, if the CC is ratified and the state has joined ICAO, responsibility to enact further regulations developed by the international organisation is assigned to the

406

In the following Erler (1964), p. 15f. In Germany: Bundesgesetzblatt (BGBl.). 408 Erler (1964), p. 15f. 409 Ibid., p. 64. 410 Ibid., p. 16. 411 Ibid., p. 64. 412 Ibid., p. 146. 407

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executive body—namely the responsible Ministry of Transport.413 Differences between the ICAO Annexes and national law can evolve here. However, this is consistent with Article 38 of the CC, which allows deviation.414 The question of whether this is associated with the monist or dualist approach must be derived from the associated constitution. It is nevertheless presumed that the monism theory will not be predominate in this case. This is due to the fact that supremacy of international law cannot be recognised. Further, international law is not automatically integrated into national law, which encounters the ideology of the incorporation theory. National orders by the executive body will be necessary to enact further regulation based on amendments by ICAO. International law in this case is transformed into national acts and orders, which speaks more in favour of the transformation theory than for the delegation theory. This is due to the fact that the effectiveness of international law is not just announced to be applicable nationally like it is the case for the delegation theory. Both examples illustrate that it can be challenging to derive how international law has been integrated into national law. There are cases in which indications for more than one theory can be found.

4.4.5

Applicability of International Law and the Chicago Convention

4.4.5.1

Difference Between Self-Execution and Non-Self-Execution

With their incorporation into the domestic legal order, international legal provisions have become effective nationally.415 However, this does not always mean that they can also be immediately applied in the domestic legal order.416 Applicability is not a product of domestic effectiveness of the international law.417 Applicability rather prerequires legal effectiveness. The domestic applicability depends on the purpose of the associated norm and on its wording. A norm of international law can only be applicable at the intergovernmental level when it only addresses states. These kinds of international norms are therefore unsuitable based on its content for domestic application. On the other hand, domestic application comes into consideration if the object and purpose of the norm refer to domestic legal relationships. Whether such a provision is directly applicable in the domestic legal order or not depends, however, on the formulation of the provision. Only if a treaty norm is already formulated so

413

EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 44; Buergenthal (1969), p. 106. 414 Erler (1967), p. 151. 415 Schöbener (2013), p. 522. 416 Kunig (2016), p. 81. 417 In the following Schweisfurth (2006), p. 203.

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precisely in terms of content that rights arise directly from it or obligation for individuals or legal persons or the law enforcement entities of a state, it can also be applied directly. Such norms are called self-executing. In this case, executive and judicial entities can immediately apply the norm.418 Legal persons could also appeal to the associated international provisions in front of the court.419 In order to be applicable within a state, some norms of international law require domestic implementing regulations.420 This action refers to acts of state sovereignty.421 Many treaties oblige to take steps for giving domestic effectiveness. Such provisions contain a legislative mandate and thus, after their incorporation into domestic law, the legislative entities are the addressees that still have to take action in order to provide applicability via domestic law.422 If the applicability of international law norms depends on the upstream action of state legislative entities, these norms are referred to as non-self-executing by international law scholars.423 Not independently applicable can be a whole treaty or only some of their provisions.424 The competence to define the self-executing character of a norm is that of the state.425 Every state has different requirements to define direct applicability. In some cases, judicial and administrative authorities decide on this. It may therefore happen that the same standard is treated as directly applicable in one state but not in another.426 It is noted that on the one hand, many common law states deny the possibility of self-execution and therefore prescribe a legislative enactment before applicability.427 On the other hand, most civil law states allow self-executing treaties in a form or another. Even in European—supranational law—there is a distinction between self-executing and non-self-executing law.428 EU-Regulations are directly applicable within the EU Member States.429 EU-Directives oblige the single Member States to develop associated acts in order to provide applicability by legal entities and courts.430

418

Von Arnauld (2016), p. 214. Schöbener (2013), p. 522. 420 Kunig (2016), p. 81. 421 Schweisfurth (2006), p. 203. 422 Ibid., p. 203f. 423 Von Arnauld (2016), p. 213. 424 Schweisfurth (2006), p. 204. 425 Ibid., p. 205. 426 Ibid., p. 205. 427 Janis (2008), p. 103. 428 Von Arnauld (2016), p. 228. 429 Article 288 para. 2 TFEU. 430 Article 288 para. 1 TFEU. 419

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Self-Execution of the Chicago Convention

The question arises as to whether the CC is self-executing or non-self-executing. As aforementioned, there is also a possibility for treaties to represent self-executing and non-self-executing provisions. Article 33 of the CC defines provisions for the recognition of certificates and licenses. The Article stipulates that airworthiness certificates issued by the Contracting State where the aircraft is registered shall be recognised valid in other Contracting States given the fact that the certificates are issued on the basis of ICAO’s minimum Standards. The reciprocal ideology of the CC faced a serious challenge in 1979.431 This led to a case in 1981 in the United States which inter alia discussed whether Article 33 is self-executing or not.432 The US government stated that it is unclear whether this Article is self-executing or not.433 In this regard, the court defined that the intention of the signatories has to be interpreted on the basis of the wording—and if ambiguous—also on the preparatory work.434 The court stated that unless the state of registry observes the so-called minimum standards, certificates of this Contracting States must be recognised.435 That said, the court stipulated that Article 33 is self-executing.436 Although a national court of another state could decide completely oppositely, this example inevitably outlines that there are Articles in the CC that could be understood as selfexecuting by the Contracting States. Article 22 of the CC explores the facilitation of formalities: “Each contracting State agrees to adopt all practicable measures, through the issuance of special regulations or otherwise, to facilitate and expedite navigation by aircraft between the territories of contracting States, and to prevent unnecessary delays to aircraft, crews, passengers and cargo, especially in the administration of the laws relating to immigration, quarantine, customs and clearance.” The tendency for this Article of the CC is rather to be non-self-executing than self-executing. The Contracting States are provided with a legislative mandate to establish domestic legal provisions to inter alia prevent any delays for passengers and cargo. Most important is that these to be established domestic regulation do not change the legal character of the international provision.437 Based on the two examples, one can say that the CC is one of the treaties that encompasses non-self-executing as well as self-executing elements. As far as the example of Article 22 of the CC is concerned, the determination is simple since the text of the Article directly obliges the state to take further legal steps. Notwithstanding, it can also be very complex to determine an answer to the question

431

McCreary (1989), p. 722. British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153 (D.C. Cir. 1981), para. 1156. 433 Ibid., para. 1157. 434 Ibid., para. 1160. 435 Ibid., para. 1160. 436 Ibid., para. 1161. 437 Schöbener (2013), p. 522. 432

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of self-execution, due to the fact that important details of constitution law, as well as international law, are concerned.438

4.4.5.3

Self-Execution of Aerodrome-Related Articles in the Chicago Convention

The question of the existence of self-executing and non-self-executing elements can also be raised for aerodrome-related Articles of the CC. This question will be answered for the examples of Article 15 and Article 28 of the CC. In 1961, there was a case in front of the U.S. District Court for the Southern District of Florida which thematised the self-execution of Article 15.439 The case was between a number of foreign airlines and the Dade County Port Authority that embodies the role of the aerodrome operator of the Miami International Airport.440 It was questioned whether these foreign airlines were committed to pay airport charges that had been higher than those imposed on American airlines. Article 15 of the CC stipulates that every airport of a Contracting State which is open to public use shall be open under uniform conditions. Some airlines filed a complaint against the aerodrome operator in front of the Board of County Commissioners441 of Dade County acting as an appellate court. The Board inter alia had the opinion that the provision of Article 15 does not apply for “private” aerodromes and hence is not selfexecuting.442 The Board dismissed the complaint. The complaint was brought into court, which decided that Article 15 of the CC is self-executing and that Article 15 does not require further legislation to provide effectiveness.443 This is due to the fact that it represents the desire to assure equal treatment of the citizens of the Contracting States in the use of airports and air navigation facilities. Rijks concludes correctly in this context that the term “open to public use” does not restrict the provisions of Article 15 to aerodromes operated by the state but does also include aerodromes operated privately.444 In regard to aerodrome planning, one might ask if the provision of aerodromes in accordance with SARPs, which is governed by Article 28 is self-executing or not. Aerodromes can be either operated privately or by the state itself.445 Article 28 of the CC addresses in its wording directly the Contracting States. Therefore, one could

438

Evans (1951), p. 66. US District Court for the Southern District of Florida, 197 F. Supp. 230 (S.D. Fla. 1961), 1961. 440 Rijks (1962), p. 50. 441 This Board is an administrative board provided for each county to administrate the county. This definition is from ibid., p. 51. 442 Ibid., p. 52. 443 Ibid., p. 55; US District Court for the Southern District of Florida, 197 F. Supp. 230 (S.D. Fla. 1961), 1961. 444 Rijks (1962), p. 59. 445 Bogan (1996), p. 77f. 439

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derive the direct obligation upon states to provide aerodromes operated by the state in accordance with SARPs. The important question that arises is whether this provision is also self-executing for aerodromes that are going to be established and operated by private entities. So, is a private entity bound to build an aerodrome open to public use in accordance with SARPs or could the aerodrome also be built on the basis of other principles? It seems not convincing to derive a direct obligation from Article 28 for private entities, since the wording addresses clearly the state “Each Contracting State undertakes, (. . .)”. This does not apply for example to Article 15 where it says that “Every airport in a contracting State which is open to public use by its national aircraft shall likewise, (. . .)”. A further argument against the self-execution of Article 28 is that the Standards are binding upon states until they were integrated nationally. Hence, an internal legal act is necessary before Standards become applicable. Further prerequisites of self-executing provision are that firstly applicability requirements can be derived and secondly that the provision has a clear legal consequence.446 In terms of the former requirement, it cannot clearly be derived from Article 28 if the provision applies only for aerodromes serving international air service (mentioned in Article 28) or also for all those aerodromes that are open to public use (not mentioned in Article 28). Again, Article 15 is clearer here, as it refers to Article 68 (definition of aerodromes for international air service) as well as mentions the term “open to public use”. Applicability requirements of Article 28 for aerodromes operated privately and open to public use cannot be directly derived. A clear legal consequence for a privately operated aerodrome that does not consider compliance with SARPs is also not derived for Article 28. Based on these facts, Article 28 tends to have a non-self-executing character. States will have to establish legal acts in order to force private entities to provide aerodromes in accordance with SARPs in their territory and to fulfil their obligation towards Article 28. As a consequence, the CC contains self-executing and non-self-executing Articles with regard to aerodrome planning.

4.4.5.4

Self-Execution of ICAO Annex 14

International Standards can be treated as ICAO’s secondary law. This is due to the fact that secondary law is considered to be binding.447 Secondary law is not an actual treaty. It is established by the organisation (in this case ICAO), and the obligation to enforce secondary law nationally can be derived from the foundation treaty (in this case the CC).448 The question on the self-execution of international law is posed for international norms.449 Thus, not only the CC but also ICAO Annex 14, comprising

446

Schöbener (2013), p. 522. Von Arnauld (2016), p. 217. 448 Ibid., p. 217. 449 Schöbener (2013), p. 521. 447

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“international norms” for aerodrome planning, can be analysed regarding the selfexecuting character of its norms. The Standard 10.2.3. defines that “A paved runway shall be maintained in a condition so as to provide surface friction characteristics at or above the minimum friction level specified by the State.”450 This means that a state is required to establish criteria for the minimum friction level before this binding Standard can be applied. In this regard, a further legal act is necessary by the State. The provision, therefore, tends to be non-self-executing. On the contrary, Standard 5.3.11.1 stipulates that: “Runway end lights shall be provided for a runway equipped with runway edge lights.”451 Aerodrome planer or operator could easily consider these provisions—after integration into national law—without the necessity of the state to promulgate additional orders and acts for applicability. Both examples clarify that not only the CC, but also secondary law contained in ICAO Annex 14 entails non-self-executing as well as self-executing elements. That being said, the roles and responsibilities of states towards the implementation of a legal aerodrome system do not end with the integration of international aerodrome requirements into the domestic legal order and the associated provision of effectiveness. The state is also responsible to provide applicability for international norms that are non-self-executing.

4.4.6

Adoption of ICAO Annex 14 into National Legal Framework

4.4.6.1

Different Approaches to Incorporate Annex 14

After incorporating the CC into the national legal framework, the next big step for a state—as far as aerodrome regulation are concerned—is to transfer the provisions of ICAO Annex 14 into national regulations. Integration methods of ICAO Annex 14 differ to a large extent.452 Various national practices will be introduced in the following in order to provide associated advantages and disadvantages thereto. The classification of the various integration methods based on the aforementioned theories is a question of interpretation and discretion which cannot be clearly derived in practice.453 Notwithstanding, it is aimed to outline indications of the discussed theories.

450

ICAO, Annex 14—Aerodromes, 2018, para. 10.2.3. Ibid., para. 5.3.11.1. 452 This was concluded by the EASA based on a comprehensive benchmark study in 2010. See EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 44. 453 Schriewer (2017), p. 117. 451

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In some states, ICAO Annex 14 is declared as fully binding.454 This method is known as dynamic referencing.455 Switzerland defined in Article 6a of its Air Aviation Act456 that the Bundesrat is provided with the legal power to define specific Annexes to the CC as directly applicable. Based on that, the Regulation on infrastructure in aviation457 was enacted by the Bundesrat which declares in Article 3 (2) that for aerodromes ICAO Annex 14 to the CC as well as associated provisions are directly applicable. Apparently, there are indications for the delegation theory. The fact that speaks in favour of the delegation theory and against the incorporation theory is that an act is used to announce the applicability. So, there is no general clause in the constitution which the incorporation theory would be based on. The delegation theory is based on a monist approach. This is plausible for the case of Switzerland. Since the founding of the federal state, Switzerland has a large monist tradition.458 Another approach is the integration of the complete set of ICAO Annex 14 provisions in various national regulations.459 Austria followed this approach. Part IV of the Austrian Air Aviation Act460 regulates aerodromes. As per § 66, the Minister of Traffic is provided with the legislative power to enact ordinances that lay down legal requirements for aerodromes. Hence, different ordinances were enacted like the Regulation on civil aerodromes or the Regulation on Certification of Airports. This process illustrates indications for the transformation theory. Since every relevant SARP has to be integrated into national law. The transformation theory tends to be based on the dualistic approach.461 The Austrian model clarifies that there are states where it is difficult to derive whether a monist or a dualistic approach is followed. Often, Austria is associated more with the monist approach.462 Notwithstanding, there also legal opinions that define a dualistic approach—especially when analysing the relation between domestic Austrian law and the EU law.463 Other states implement ICAO Annex 14 and other Annexes to the CC into one single regulation.464 This approach is followed by the Government of India. The Office of Director General of the Civil Aviation adopted the “Civil Aviation

454

EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 2. 455 Ibid., p. 45. 456 BBl 2016 7133. 457 748.131.1. 458 Keller (1999), p. 226; Oesch (2009), p. 339. 459 EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 2. 460 BGBl. I Nr. 92/2017 (NR: GP XXV RV 1657 AB 1736 p. 190. BR. AB 9886 p. 870.). 461 Will (2015), p. 1167. 462 Binder (1975), p. 310. 463 Potacs (2010), p. 134. 464 EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 2.

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Requirements Section-4, Aerodrome Standards & Licensing Series ‘B’, Part I, Issue II”,465 in which the provisions of Annex 14 are contained. A further practice is the full translation of ICAO Annex 14 and the following adoption as national regulation.466 The state of Malaysia followed this approach and defined aerodrome provisions for operations in its language.467 Both, the Indian and the Malaysian Models tend to have applied the transformation theory. International law is transformed through acts and orders into national law. Here, a tendency to the dualistic approach can be derived since international law is not given any supremacy. In this regard, India, for instance, does not allow a treaty to be applicable unless an enactment by the Indian Parliament.468 One further solution is to rely on a cooperation agreement with a neighbour state.469 This approach was followed by Lichtenstein. This state concluded an agreement470 with Switzerland. Hereby, Lichtenstein declared the rules of the aviation regulation of Switzerland as binding as well as the Swiss national CAA as the oversight body of its own state. This means that Lichtenstein indirectly applies the dynamic referencing approach and the delegation theory.

4.4.6.2

Reduced Democratic-Legitimacy Versus Increased Regulative-Efficiency

The type of incorporation of ICAO Annex 14 has a direct impact on the introduction of amendments to the Annexes. In cases in which the implementation of ICAO Annex 14 is fulfilled through an act of a parliament, amendments to the Annexes become sophisticated, since the process can be time-consuming.471 Buergenthal mentioned already in 1969 that the implementation of amendments to the Annexes is a major administrative problem for many states.472 This is not the case when the implementation of ICAO Annex 14 is only accomplished through an order which is a level below an act.473 The duration is then minimised since the implementation of amendments is assigned to the 465

See http://dgca.nic.in/cars/D4B-B1.pdf, access on 10.02.2018. EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 44. 467 http://www.dca.gov.my/wp-content/uploads/Civil-Aviation-Aerodrome-Operations-Amend ment-Regulations-2018.pdf, access on 10.02.2018. 468 Mahajan (1974), p. 104; Janis (2008), p. 102. 469 EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 44. 470 LGBl.-Nr. 2010.077. 471 EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 2. 472 Buergenthal (1969), p. 108. 473 EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 44. 466

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competent authority—for instance the CAA which will update national law after amendments become effective by the use of an ordinance.474 The examples showed that this approach is often followed.475 In order to prevent long-lasting rulemaking process, the approach of dynamic referencing which is for instance followed by Switzerland can also be considered as useful. Advantageously, amended SARPs become immediately applicable after coming into force which assures instant applicability.476 In addition, a competent authority is not required to pass through implementation procedure. Also, the national parliament is not required to enact further acts once an amendment has been introduced by the ICAO. Disadvantageously, a state loses its control over the national rulemaking process, as the international organisation ICAO is setting SARPs.477 This can be an issue when the state intends to adopt more stringent requirements due to for example topographical reasons. A further disadvantage is related to dynamic referencing, as well as, to the case in which execution power to enact orders is provided to the Ministry of Transport or the CAA. In this case, the democratic legitimacy might be infringed.

4.4.6.3

Theory of Essentialness as a Solving Role Model

The provision of legislative functions to executive bodies was as aforementioned one of the main models used by the ICAO Contracting States.478 From a democratic point of view, one might ask if it is legitimate for an executive body to enact associated orders, although the Minister of Transport for instance is not being elected by the citizens. This question was discussed and solved in German jurisprudence. In the following, the German example of incorporating international law—and in particular amendments thereto—shall be introduced in order to answer the question whether it is necessary to let a plenary assembly of a state—namely the parliament introduce international aerodrome provisions. According to the German constitution,479 all state powers require democratic legitimation.480 The election of the German Parliament, the Bundestag, and the state parliaments is accomplished directly by the citizens. Consequently, this gives the

474

Ibid., p. 44. As aforementioned, Erler notes that this approach is used by most of the Contracting States of ICAO and CINA. See Erler (1964), p. 146. 476 EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 13. 477 Ibid., p. 45. 478 Erler (1964), p. 146. 479 In German: Grundgesetz—GG. 480 BVerfGE 83, 60, 72. 475

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parliament a special degree of democratic legitimation.481 One could derive from this, a priority of the parliament (Bundestag) and a justification for particularly important decisions to be taken by the Bundestag.482 However, the Federal Constitutional Court has relativized this aspect and emphasized that in parliamentary democracy, the government is elected by the parliament.483 Based on parliaments’ trust, the government also possesses a personnel democratic legitimacy. In addition, the executive power—as well as the legislative power and the judicial power—have institutional and functional democratic legitimacy, because the constitutional body has created them as a direct constitutional institution with a constitutional direct function.484 Thus, it can be derived that there are cases in which delegating legislative functions to the executive power is possible. However, the question is, which are these cases, and how to characterise them. The German Constitution stipulates that all essential decisions for the public are to be taken by the parliamentary legislator and may not be left to the subordinated administration or transferred.485 The German Federal Constitutional Court foresees to protect essential functions of the elected legislative representatives with regard to the adoption of legislative norms that could have an impact on the rights guaranteed by the constitution or other profound aspects of public policy.486 In order to do so and to assess what essential is the “Theory of Essentialness”487 was developed. The Theory thematises the legitimacy of administration and is a common principle of constitutional and administrative law.488 The Federal Republic of Germany governs legitimacy of administrative acts through two principles:489 Firstly, there is always a priority of acts.490 Administrative orders shall never contravene acts. This is due to the fact that acts have passed by a democratic elected body. Secondly, there is the reservation of acts.491 Thus, whenever the basic rights guaranteed through the constitution are restricted, there is an obligation for a legal basis when the executive takes administrative actions. Executive bodies need a legal basis to act because associated actions must be justified democratically and foreseeable by the public. In this regard, the Theory of Essentialness arises.492 The theory is not manifested in any act or norm. In some cases, however, the theory is derived directly from

481

Degenhart (2019), marginal no. 38. Von Arnim (1987), 1242. 483 In the following BVerfGE 49, 89, 125; ibid., 1243. 484 BVerfGE 48, 89, 125; 68, 1, 88. 485 Article 80 I 2 GG, German Constitution. 486 BVerfGE 7, 282, 302ff.; Lindseth (2003), p. 1395. 487 In German: Wesentlichkeitstheorie. 488 Von Campenhausen (2004), p. 680f.; Foster and Sule (2002), p. 165f. 489 Foster and Sule (2002), p. 165f. 490 In German: Vorrang des Gesetzes. 491 In German: Vorbehalt des Gesetzes. 492 Von Campenhausen (2004), p. 681; Foster and Sule (2002), p. 165f. 482

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Article 20.3 GG 2 or referred to as customary constitutional law.493 It is rather established by the Federal Constitutional Court.494 Basically, it says that essential matters have to be regulated by the parliament.495 It determines which matters the parliamentary legislature must regulate itself and which it may delegate to the executive.496 Therefore, it is often also entitled as parliament reservation.497 The parliament is the only directly elected organ of the state. As such, it must guarantee the basis of legitimate administrative action and cannot evade its task of taking fundamental decisions for the community.498 In this context, a parliamentary act is not allowed to be so vaguely worded that it is ultimately the executive that decides the substance of the matter.499 The Federal Constitutional Court uses the Theory of Essentialness to distinguish between legislation covered by either the reservation of acts or the parliament reservation.500 Thus, the more essential a matter for the civilians is, the more it is necessary for regulation by the parliament—i.e., less discretion by executive bodies when implementing orders.501 On the basis of this theory, the Federal Constitutional Court thus attempts to determine the necessity of a law and the required regulatory density of a law.502 The requirements of regulation increase equally with the essentialness of the matter to be regulated. As a result, there follows a prohibition of delegation with regard to essential decisions and a duty on the part of the parliamentary legislature to take such decisions itself.503 The Court obliges the German Parliament to regulate “in basic legislative areas, especially in the area of the exercise of constitutional rights, to the extent that this legal regulation is accessible, to take all essential decisions themselves”.504

493

Deutscher Bundestag—Wissenschaftliche Dienste, Reichweite der 043/15, 2015, p. 4. 494 BVerfGE 34, 165, 192; 40, 237, 249; 41, 251, 260; 45, 400, 417; 47, 49, 89, 126. 495 Von Campenhausen (2004), p. 681; Foster and Sule (2002), p. 165f. 496 Deutscher Bundestag—Wissenschaftliche Dienste, Reichweite der 2015, p. 5. 497 In German: Vorbehalt des Parlaments; See also Hofmann (2018), p. 21. 498 Deutscher Bundestag—Wissenschaftliche Dienste, Reichweite der 2015, p. 4. 499 Ibid., p. 6. 500 BVerfGE 50, 290, 332. 501 Von Campenhausen (2004), p. 681; Foster and Sule (2002), p. 165f. 502 BVerfGE 34, 165, 192; 40, 237, 249; 41, 251, 260; 45, 400, 417; 47, 49, 89, 126. 503 Deutscher Bundestag—Wissenschaftliche Dienste, Reichweite der 2015, p. 5. 504 BVerfGE 34, 165, 192; 40, 237, 249; 41, 251, 260; 45, 400, 417; 47, 49, 89, 126.

Wesentlichkeitslehre, 46, 78; 48, 210, 221;

Wesentlichkeitslehre,

Wesentlichkeitslehre,

46, 78; 48, 210, 221; Wesentlichkeitslehre, 46, 78; 48, 210, 221;

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Consequently, the criteria for determining essentialness are neither clear nor exhaustive.505 It was often controversially discussed what exactly an essential function of the Bundestag is. The Court behaved pragmatic in this matter and made principled distinctions on the basis of existent fact and the importance of the political questions.506 Beside interference into basic rights of civilians defined by the constitution, there are some other criteria that have to be considered in terms of essentialness of a matter. In this regard, the following criteria are mentioned by the Bundestag: the size of the group of addressees, the long-term effect of a regulation, serious financial consequences, considerable effects on the state structure, concretisation of open constitutional law, the effects on the community as well as the immediacy and finality of a legal regulation.507 Criteria that militate against the essentialness are if the legislator refrains from a detailed legislative regulation, particularly in case of rapidly changing circumstances.508 Consequently, the legislator than refers the decision to a procedure that permits a more rapid reaction to changed conditions. This is particularly the case if non-legal criteria have to be used to regulate the matter. In such a case, the Bundestag would be overwhelmed with a final decision in view of the complex and complicated factual context. This means that parliament’s limited capacity and the limits of its expertise must be considered.

4.4.6.4

Applicability of the Theory of Essentialness on ICAO Annex 14

The question arises as to whether the establishment of regulation associated with ICAO Annex 14 could be delegated to the executive bodies without having concerns on democratic-legitimacy. In order to apply the Theory of Essentialness to answer this question, a closer look shall be taken to amendments of ICAO Annex 14. Amendment 13 to Annex 14 was promulgated in the State Letter in 2016.509 It contained amendments such as: provisions related to the ARIWS and provisions relating to the design and operations of aerodromes, including the publication of the Runway End Safety Area (RESA). Similar changes arose from Amendment 14 to Annex 14 mentioned in the State Letter of 2018.510 In this context, aerodrome design

505

Deutscher Bundestag—Wissenschaftliche Dienste, Reichweite der Wesentlichkeitslehre, 2015, p. 6. 506 Lindseth (2003), p. 1396. 507 Deutscher Bundestag—Wissenschaftliche Dienste, Reichweite der Wesentlichkeitslehre, 2015, p. 8. 508 In the following ibid., p. 8. 509 Amendment 13 State Letter AN 4/1.2.26-16/19, Adoption of Amendment 13 to Annex 14, Volume I, 2016. 510 Amendment 14 State Letter AN 4/1.2.27-18/23, Adoption of Amendment 14 to Annex 14, Volume I, 2018.

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modifications have been introduced in Chapter 3 and 4 of ICAO Annex 14. For instance, the width of runway strips was decreased from former 150 m to 140 m. If the criteria for and against the Theory of Essentialness are applied to this context, one can say that this kind of regulation does not have considerable effects on the state structure and does not affect constitutional law, as well as the right of civilians. Further, the provisions only address the aerodrome-related environment and not a large target group. The specifications contained in ICAO Annex 14, as well as provisions in the amendments, are more technical than legal. Hence, the parliament might be overwhelmed to analyse the complex provisions. In addition, ICAO Annex 14 is rapidly changing, since it was developed in 1951. This can be derived from the amendment table in Annex 14.511 Based on the conducted scrutiny, it is reasonable to delegate legislative functions to an executive power for the amendment of ICAO Annex 14. The executive organ of the state can firstly react faster to any occurring changes and secondly will have the expertise to grasp and apply the provisions that were generated internationally. This analysis was conducted for ICAO Annex 14 and aerodrome-related provisions. This means that the result could differ with regard to any other Annex of ICAO. There might be cases in which the democratic legitimacy could be negatively affected if legislative functions are delegated to the executive. The Theory of Essentialness can be considered as a comprehensible process for other Contracting States with a similar constitutional order to investigate the reasonability of delegating legislative functions to an executive power.

4.4.7

The Ideal Method to Integrate ICAO’s Annex 14 into National Law

In fact, 70% of the ICAO Contracting States have not yet established procedures to timely amend their national aviation regulation after the issuance of amendments to ICAO Annexes.512 In case of existent procedures, these often lack the required level of detail concerning processing of ICAO State Letters, coordination with relevant authorities, and the inclusion of realistic and effective timelines for each step of the implementation process.513 This process starts with the identification of the amendment need of a regulation and ends with the publication of amended or new regulation. The lack of amending national regulations timely after the amendment of an ICAO Annex can result in incomplete and poor regulatory frameworks.514 This lack is often based on limitation in the availability of qualified personnel. In turn, a

511

ICAO, Annex 14—Aerodromes, 2018, p. xvff. ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.1.1.1. 513 In the following ibid., para. 4.1.1.2. 514 In the following ibid., para. 4.1.1.2. 512

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state is then not capable of licensing, certifying, and approving organisations like aerodromes timely. Hence, oversight is negatively impacted. In this context, ICAO has confirmed that the maintenance of national regulation aiming to be in line with ICAO amendments is also necessary in case states adopt regulation form other states, regional organisations, or “model regulations”.515 Generally, states try to fulfil their international obligation in international law.516 This is due to the fact that on the one hand, states are aware of the long-term benefit of a functioning international legal system which is based on reciprocity, and on the other hand—like for humans—states do not want to incur losses to their reputations. Every integration approach should be based on the legal system—in particular the constitution517—as well as on structural and organisational circumstances of a state. However, there will be approaches which should be higlighted more as they will enable an efficient regulatory system. Two different theories were presented, describing the relation between international and national law. The monist approach assigns a supremacy to international law. This ideology is more desirable from an international law perspective, although the dualistic approach seems to be more assertive these days.518 The reason for this is that an increase in state sovereignty is recognisable.519 In this context, a reverse side is seen by globalisation and the information revolution. Paradoxically, a trend towards localisation, renationalisation, fragmentation and deconstruction of the modern world, and even re-sovereignisation is apparent.520 This fact is contradicting since sovereignty is equalised through globalisation.521 Consequently, the incorporation theory is not likely to be applied since it is primarily based on monism. The same relates to the delegation theory which only announces the applicability of international law domestically without transferring it into national law. The re-sovereignisation, as well as the rely on the dualistic approach, will lead in most applications to the endorsement of the transformation theory. As aforementioned, this theory has been used by most of the ICAO Contracting States. Although, the Theory of Essentialness could evince that democratic legitimacy will not be negatively affected, the transformation approach should not be recommended in the first instance. First, a significant number of international provisions with a changing character will have to be converted into national law. This approach could lead to

515

Ibid., para. 4.1.1.2. In the following Henriksen (2017), p. 17. 517 Erler (1964), p. 63; Will (2015), p. 1165. 518 Schweisfurth (2006), p. 196. 519 Will (2015), p. 1175. 520 Gadzhiev (2019), p. 2. 521 Schladebach (2014), p. 110. 516

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discrepancies given the large amount of provisions in ICAO Annex 14 that need to be transposed.522 Second, processes and procedures have to be developed by the states in order to guarantee the timely amendment of the Annexes and compliance of national law with international law.523 In case of amendments, the process of determining in which regulation and how to implement is complicated. Experience with the SARPs and their reasoning could thereby also play an important role. Third, if ICAO Annex 14 is transposed to different national orders, there is often no overview on the differences to ICAO.524 In this case, the targets of the CC are endangered. The ICAO notes in this context that “[t]he primary purpose of notifying differences is to promote safety, efficiency and regularity in air navigation by ensuring that all stakeholders, concerned with international civil aviation are aware of all national rules and practices in so far as they differ from those prescribed in SARPs. Therefore, lack of information on differences creates uncertainty and poses a potential hazard to the safety, regularity and efficiency of air navigation.”525 The implementation of ICAO Annex 14 through different regulation from an act to directives is understood as time-consuming and complicated, especially for a Developing State.526 Fourth, the implementation through any methods that require a parliamentary act lead to complications when amendments are introduced by ICAO.527 As far as ICAO Annex 14 is concerned, the transformation theory only succeeds in very few cases.528 One might ask what the best implementation approach of ICAO Annex 14 for a (Developing) State is. An EASA study defined that in general dynamic reference of ICAO Annex 14 seems to be the best approach.529 This is due to the fact that provisions become applicable immediately and no delays occur after an amendment. In addition, no discrepancies to ICAO Annex 14 will then exist. EASA’s result is considered as satisfactory. Especially, for Developing States, since these states will not have to pass through intense national rulemaking procedures. The time that is won could be used to determine first which differences to notify to ICAO as per Article 38 and how to comply and enforce SARPs practically.530 For instance, the 522

EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 47. 523 In the following ibid., p. 47. 524 In the following ibid., p. 47. 525 ICAO, Doc 10055—Manual on Notification and Publication of Differences, 2018, para. 1.5.1. 526 In the following EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 47. 527 In the following ibid., p. 45ff. 528 Ibid., p. 47; ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.1.1.1. 529 EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 47. 530 Ibid., p. 47.

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state could use the capacities to develop and enact regulation to support the implementation of ICAO Annex 14 provisions. The focus of Developing States should be clearly on these tasks. Dynamic referencing reminds of the delegation theory which is associated with the monism approach. This means that the limitation of states’ sovereignty might have a positive effect on national aerodrome regulation and consequently on safety.

4.4.8

Dealing with Standards and Recommended Practices on National Level

SARPs are treated differently by states. Some states do only integrate Standards into national law, while other states define Standards as well as Recommended Practices as binding.531 In addition, some states even declare requirements that are more stringent than the internationally generated Standards.532 It is also assumed that there will be states that follow the theory declared in the CC and define Standards as mandatory and Recommended Practices as recommended. This attitude can also be seen in the European Union where a so-called Multi-speed approach is followed.533 Different states have common objectives. Notwithstanding, the way of integrating ideas, methods and provisions differs. The status of implemented SARPs as well as introduced amendments also depends on the operating structure within a state. Some states for instance do not separate between aerodrome operator and oversight entities. In cases in which there is no separation, it is very likely that the state does not enact many legal requirements in order to not regulate its activities too much.534 The different treatment of SARPs on national level leads to the question as to whether the targets of the CC can be realised by this heterogeneity. The target is stated in the Preamble of the CC which is the development of international civil aviation in a safe and orderly manner. As far as aerodromes are concerned, these shall be provided in accordance with SARPs as per Article 28 (a). In order to achieve safety, uniformity has to be guaranteed. This uniformity is aimed with the development and application of SARPs as per Article 37 that also references to the characteristics of airports in letter (b). Although the CC mentions Recommended Practices alongside Standards in the aforementioned Articles, it appears that the target of the CC can be achieved without explicitly relying on them. This is due to the fact that Article 38 does not bind a state to notify ICAO in case of differences to Recommended Practices. Adherence to them would though increase safety and enhance the set targets of the CC.

531

Ibid., p. 2. Ibid., p. 2. 533 https://eur-lex.europa.eu/summary/glossary/multispeed_europe.html, assessed on 14.03.2019. 534 EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 44. 532

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Therefore, one can say that if a state does only follow Standards it already supports the targets of the CC. This also means that Recommended Practices for aerodromes should never be safety-critical provisions, as the Standards represent the lowest common denominator. Recommended Practices have a supporting, complementary role. At this point, ICAO’s Standard setting methodology becomes very important. Thus, the ICAO approach first determines if there is a necessity for developing a Standard or if the challenge could be solved with the definition of a Recommended Practices, PANS or other guidance material.535 The same applies to further provisions in ICAO’s regulatory framework like PANS, for instance. Their application will increase safety standards, but if they are not introduced nationally, this should not be an impediment to achieve the targets of the CC. In conclusion, one can say that the different ways to treat SARPs nationally for aerodromes do not pose a problem unless Standards are followed and Recommended Practices are tried to follow in good faith, since they have a supporting role towards safety. The question as to whether ICAO Annex 14 provisions can be converted nationally into more stringent requirements can be answered in the affirmative. This is due to the fact that Annex 14 defines that the provisions in the document are to be considered as minimum aerodrome specifications for existing and to be developed aircraft.536 The CAA has then the possibility to establish additional measures. As long as these minimum specifications are covered uniformity and consequently safety can be achieved.

4.5

Law Enforcement of Aerodrome Regulation

4.5.1

International Level

4.5.1.1

Necessity and Effect of Law Enforcement

Safety regulation focuses on preventing accidental harm.537 The question arises as to what happens with regard to law enforcement if a Contracting State neither implements the minimum specifications designated in ICAO Annex 14 nor notifies differences as per Article 38 of the CC. Law enforcement is a relatively new topic in the era of ICAO.538 Milde noted in 1995 that after 50 years there was no legal comment heard in the ICAO forum which discussed safety oversight. Generally, UN organisations are criticised for having no direct enforcement tools.539 With regard to

535

ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, p. 1. ICAO, Annex 14—Aerodromes, 2018, p. 1-1. 537 Dempsey (2004), p. 4. 538 Milde (1996), p. 3. 539 Dempsey (2017), p. 6f. 536

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the enforcement of international law, reactive methods for rehabilitation and means to secure performance of international obligations can be understood.540 In doing so, both repressive and cooperative, partnership-based means and methods are applied. These can be used individually or collectively by several states or communities of states. Often, law enforcement is directly connected with sanctions.541 The concept of sanctions has no fixed content. In international law, it traditionally refers to measures that react to a violation of international law and is aimed at persuading the state responsible—by inflicting (legal) disadvantages such as the withdrawal of rights or benefits or withholding them—to cease its conduct contrary to international law.542 Accordingly, sanctions are only special means of enforcing international law but are not identical with them. There are also material-specific mechanisms of enforcement which are not aimed at “repressing” the infringer, but which are primarily intended to achieve the enforcement of international law by means of cooperative action. The UN Security Council is considered as the only international power to sanction states for violating international law.543 Other UN bodies work with a system of compliance as well as mild enforcement levels. In case of sanctions, one has to clarify first which of the provisions of the Chicago Aerodrome System are sanctionable. The Articles of the CC pose the primary system which can be sanctioned by traditional methods under international law against convention infractions.544 Recommended Practices were determined as quasi-law. Contracting States have the possibility to opt them into their legal framework, but they are not completely obliged to do so. The notification of difference as per Article 38 is not mandatory. They are therefore not sanctionable. In regard to Standards, these lie on a level between the Articles and the Recommended Practices. Due to the fact that Standards are binding, they have to be regarded as sanctionable law. Adherence to them is important to achieve the goals in the Preamble of the CC. In general, compliance with aerodrome provisions is crucial since 90% of accidents, incidents and occurrences happen in the aerodrome vicinity.545 A discussion on sanctioning and enforcement is therefore necessary. In the aerodrome context, this means that on the one hand, the violation of aerodrome-related Articles should be sanctioned. This would mean that a state which, for instance, allows constraints at aerodromes that negatively impact safety would violate against Article 22 of the CC. A further example would be imposing higher aerodrome charges for foreign aircraft compared to national aircraft. In this regard, Article 15 of the CC would be infringed. On the other hand and with regard to Standards, a violation would mean if a state does not e.g. implement the Standard

540

Schweisfurth (2006), p. 215. Ibid., p. 216. 542 In the following Schröder (2016), p. 584. 543 Dempsey (2017), p. 7. 544 Huang (2009a), p. 244. 545 EASA, Annual Safety Review, 2011, p. 50. 541

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obliging to provide a RESA546 without notifying the difference to ICAO as per Article 38. There are indeed cases in which states do not report differences, and it cannot be assured that they really comply with those Standards.547 Many states do not discharge the obligation of notifying differences to their national regulation as per Article 38. ICAO itself commented this “unexpected fact” by saying “[t]here is no explicit sanction in the Convention for failing to notify.” Apparently, silence of the states does not mean that they comply.548 Currently, more than 75% of the ICAO Member States have not implemented an effective system for the identification and notification of differences between SARPs and national regulation.549 As a matter of fact, 80% do not follow their obligation as required by Annex 15 to publish differences in the AIP. Even if states have an established procedure, these often lack timely coordination, detail and clarity. Qualified personnel is in addition limited. It is noted that some states do not notify differences because competent resources are missing to understand ICAO’s provisions.550 Other states do not implement the Standards because of financial and technical means. These states are poor and not able to establish comprehensible air navigation facilities and safety agencies.551 Even if established, they face challenges to fund them sufficiently so that they could properly fulfill their obligation towards the CC. In all those cases, the obligation is not fulfilled.552 As said, the CC does not contain any dedicated sanction if a state does not implement a Standard and does not notify a difference.553 Sanctions in the form of compensations like in the WTO as per Article 22 para 1 DSU are not foreseen.554 Admittedly, disciplinary sanction might not lead to a positive effect in these situations, since it is not the case that the state does not want to implement the provisions.555 In many cases, states rather need assistance in implementing the provisions. Lack of resources in these states is the major challenge on the way to useful safety oversight. With sanctions on the international level for these states, the enforcement would be harder than the effect. A positive outcome of a sanction would be questionable.556

546

ICAO, Annex 14—Aerodromes, 2018, para. 3.5.1. Ahmad (2017), p. 226. 548 Buergenthal (1969), p. 100. 549 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.1.2.1. 550 Ducrest (1995), p. 355. 551 Dempsey (2004), p. 20f. 552 Ducrest (1995), p. 355. 553 Ibid., p. 355. 554 For more comprehensive details see Kaienburg (2010), p. 96. 555 In the following Huang (2009a), p. 212. 556 Buergenthal (1969), p. 101. 547

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However, another reason for not complying is in other cases that states do not accept International Standards as binding.557 It is noted that some attribute to the Standards the full force of a source of international law equivalent to the Articles of any international convention. Notwithstanding, others consider the Standards as nothing more than guidance material or so-called “soft law”.558 These are cases in which a sanction might be considerable. One could ask now if for the case in which states are unwilling to accept the binding status of Standards or when there are deliberately not notifying differences though do not implement Standards, a sanction should be considered. There are quotes that call for sanctions by ICAO. The former Head of the US CAA (FAA) said that “without a sanctioned definition of safety, there can be no safety yardstick, no safety standard.”559 Further, it is stated in international law that if necessary, states may be forced to return to compliance by taking countermeasures.560 A sanction could hence be an option.

4.5.1.2

Vertical Law Enforcement Mechanism

Although, there is no dedicated sanction for the case of not complying with Standards and also not notifying them, the CC does contain some law enforcement mechanisms (vertical and horizontal). They shall be introduced in the following in order to derive if they are suitable for the sanctionable cases. The reporting of infractions and failures to carry out recommendations under Article 54 (j) is a central tool of ICAO.561 Based on this power, ICAO established in 2005 a procedure for transparency and disclosure for states that have severe compliance shortcomings regarding safety-related SARPs and that fail to establish a compliant safety oversight system.562 ICAO defined three different scenarios for the applicability of this procedure which represent different cases: First, a state could have limited resources and a lacking regulatory framework with no adequate personnel.563 In this case, ICAO will assist to find financial institutions to help. Second, a state could lack technical know-how. Here, ICAO will assist in providing technical assistance through regional collaborations. Safety 557

Many legal scholars refer to this case. See Milde (1996), p. 4; Kaienburg and Wysk (2018), p. 70; Buergenthal (1969), p. 101; Huang (2009a), p. 61f. 558 Milde (1996), p. 4. 559 Bartsch (2016), p. 281. 560 Von Arnauld (2016), p. 86. 561 In the following Huang (2009a), p. 209. 562 ICAO, State Letter AN 1l/4 1-05/87—Procedure for transparency and disclosure regarding significant compliance shortcomings with respect to safety-related SARPs, 2005, p. 2; Huang (2009a), p. 209. 563 In the following ICAO, State Letter AN 1l/4 1-05/87—Procedure for transparency and disclosure regarding significant compliance shortcomings with respect to safety-related SARPs, 2005, Attachment A.

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risks are going to be managed collaboratively. Third, a state is engaged in aviation activities that are implausible compared to the State’s oversight capabilities. ICAO provides an example for this case, in which a state could have an excessive number of large-transport aircraft on its registry which is much higher than its safety oversight capability. ICAO states that when “unscrupulous operators, operators with malicious intent and other parties exert influence and take advantage of the prevailing situation in states which prevent the relevant authorities from intervening adequately. In such a case, there may be a need, as a last resort, for action by the Council, which may wish to make a recommendation or determination, as appropriate. If the state concerned fails to carry out recommendations or determinations of the Council and the unsafe conditions are not resolved, all Contracting States need to be informed, in accordance with Article 54 (j) of the Convention on international Civil Aviation (Chicago, 1944)”.564 In the third case, ICAO would start to gather more information regarding the oversight capabilities of a state.565 Thus, the state would receive assistance through supporting mechanisms and regional partnerships. The focus of everyone would be to resolve the problem. “If the State was unwilling or unable to participate in such activities, the case would be presented to the ICAO Council for special consideration and possible future action under the procedure for transparency and disclosure associated with Article 54 (j).”566 The definition of the Council reaction to the third scenario is formulated very carefully and it already assumes an honest intent by the state which has been cheated by the “unscrupulous operator”. In such a case, the state would first be consulted in order to resolve the problem.567 Only when the state does not fulfill the recommendations, the ICAO Council can consider reporting a failure to carry out recommendations—“as a last resort.”568 This process is often entitled in international law as “blaming and shaming” used to threaten national governments.569 These actions lead to reputational losses of the states.570 The State Letter does not outline if also the reporting power of an infraction to the Convention could be issued which is also manifested in Article 54 (j)—e.g. if there is a clear violation of Articles. It appears to be rather only the reporting of a failure to adopt the recommendation, as the State Letter defines that an associated failure “to carry out the recommendation” shall then be reported to the Contracting States.571 It is a similar case like in Article 69, in which a state shall not feel guilty of an infraction to the CC if it fails to adopt the recommendation. Further, no reference

564

Ibid., p. 2. In the following ibid., para. 3.2, p. A-2. 566 Ibid., p. 1. 567 Huang (2009a), p. 210. 568 Blumenkron (2009), p. 42. 569 DeMeritt (2012), p. 616. 570 Piera (2016), p. 150. 571 Huang (2009a), p. 210. 565

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in the State Letter is made to Article 54 (k) which requires the Council to report the infraction to the ICAO Assembly. The procedure for transparency and disclosure seems to be also in accordance with Article 55 (c) of the CC. This Article provides the Council with the power to conduct research with regard to international air transport and air navigation matters and report and communicate them to the Contracting States. It is not directly mentioned if also failures to comply with aerodrome-related SARPs are covered by the procedure for transparency and disclosure. Neither reference is made to any other air navigation facilities. One of the primary purposes of this procedure is “to focus their [States] role in the surveillance of all aircraft operations, including foreign aircraft within their territory.”572 Although aerodromes are not directly mentioned, it appears that they are included since “safety-related SARPs” are mentioned.573 So, if this law enforcement tool is applicable to aerodromes, is it also sufficient for the introduced sanctionable cases? It might be completely appropriate for states that need technical assistance. Nevertheless, there might also be cases in which more stringent enforcement should take place, namely, if states are unwilling to adhere to SARPs as per Article 37 of the CC and to notify of differences according to Article 38 of the CC because a severe safety reduction can be expected in this case. In 2000, Singapore Airlines Flight 006 was about to take-off from Taipei Airport.574 The crew taxied on the wrong runway which was partially closed and collided during the take-off start with a construction site. The reason for the collision and for the crew taxiing on to the wrong runway was a set of missing aerodrome markings, lightings and signs.575 There have been 83 fatalities and 71 injured persons, including 39 serious injuries.576 The aerodrome was not compliant to International Standards in terms of visual aids.577 In such cases, the reporting power as a failure of adopting recommendations as per Article 54 (j) might be considered as a too weak enforcement tool. Therefore, also the reporting of infraction of the CC similarly defined in Article 54 (j) should be considered as a practicable law enforcement tool in these cases due to the fact that not complying and not notifying difference could lead to a massive safety reduction and encounter the targets of the CC. Even, the announcement of the possibility of using this reporting power in the procedure for transparency and disclosure could force states to fulfil their obligation. 572

ICAO, State Letter AN 1l/4 1-05/87—Procedure for transparency and disclosure regarding significant compliance shortcomings with respect to safety-related SARPs, 2005, Attachment A. 573 Ibid., p. 2. 574 Aviation Safety Council, Taiwan, Republic of China, Crashed on a Partially Closed Runway during Takeoff, Singapore Airlines Flight 006, Boeing 747-400, 9V-SPK, CKS Airport, Taoyuan, Taiwan, October 31, 2000, 2002, p. ii. 575 Ibid., p. v. 576 Ibid., p. i. 577 Taiwan was for the period of more than four decades prohibited from participating in any ICAO conferences or meetings. For more details see Dempsey and Chen (2013), p. 517.

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Failure to implement SARPs and failure to notify differences should not be explained away solely by reference to local problems and infrastructural deficiencies.578 ICAO has derived implied authority from the Contracting States, granting ICAO to exercise certain powers.579 One of them is that the ICAO Council has the right as per Article 54 (k) to report infractions of the Convention conducted by a state to the Assembly in case no further action is taken after the time of notification of the violation. The powers and duties of the Assembly, which are defined in Article 49 do not stipulate what the Assembly is going to do after being informed of the infraction. Article 49 (c) prescribes that the Assembly shall take appropriate action based on the reports of the Council. Most important would be the development of means that aim to fulfill the targets of the CC by considering effet utile: If a state provides aerodromes as per Article 28 with guidelines that are not conform with the SARPs and does not report them according to Article 38 or operates unsafe aerodromes mentioned in Article 69, an infraction has to be reported to the Contracting States as per Article 54 (j) and to the Assembly as per 54 (k). If the state still does not take appropriate actions, a sanction would be considerable. Similarly, to Article 87 in which airlines could be banned, aerodromes provided to the international air traffic should be blacklisted for participation in international air navigation. Further and as per Article 88, the voting power in the ICAO bodies should be revoked for the states. The competencies of the international organisations must correspond to the purpose and the objectives.580

4.5.1.3

Horizontal Law Enforcement Mechanism

Law enforcement can also be triggered horizontally in the Chicago System which means that states have the possibility to react to non-compliances. This approach is similar to Article 34 of the ICJ statute581 which only gives states the possibility to denounce states. Similarly, in European Law, Article 259 TFEU582 provides states with the possibility to notify the Court of Justice of the European Union (CJEU) whenever another state does not comply with obligations of the treaty.583 The question arises as to whether horizontally triggered law enforcement tools are suitable to force states to fulfil their obligation towards Article 37 and 38 with regard to aerodrome provisions as well as due to infractions to Article 28 and Article 15. As per Article 84 of the CC, a Contracting State can submit to the Council any disagreements between another state to the interpretation or application of the CC and its Annexes in case such a disagreement cannot be settled by negotiation. Article

578

Liyanage (1996), p. 256. Abeyratne (2007), p. 524. 580 Ipsen (2014), p. 221. 581 ICJ Statute, 26.06.1945, 15 UNTS 355; BGBl. 1973 II, p. 506; United Nations, Statute of the International Court of Justice, 18 April 1946, available at: https://www.refworld.org/docid/ 3deb4b9c0.html, accessed on 28.03.2019. 582 OJ C 326, 26.10.2012, p. 47ff. 583 Article 259 para. 1 TFEU. 579

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55 (e) provides the ICAO Council with the possibility to “[i]nvestigate, at the request of any contracting State, any situation which may appear to present avoidable obstacles to the development of international air navigation.” Based on both Articles, a state could consequently submit to the Council a disagreement concerning the non-compliance of aerodromes of another state. This refers to aerodrome provisions in the CC as well as Standards in ICAO Annex 14. Article 84 provides the Council with the right to decide on the dispute. The Contracting State itself may, subject to Article 85, appeal from the decision of the Council to an ad hoc arbitral tribunal agreed upon with the other parties to the dispute or to the Permanent Court of International Justice. Article 86 stipulates that the decision of the Council on whether an international airline is operating in conformity with the provisions of this Convention must remain active unless reversed on appeal. Any decision to other matters must be suspended until the appeal is decided. This law enforcement power, although being important, has never been used.584 ICAO is empowered through Article 87 to ban airlines from operation worldwide if they fail to conform with the final decision of the ICAO Council. Huang sees in this similarities to supranational power.585 The Council also has further sanction powers granted by the CC, if its decision after a disagreement is not adhered to.586 In this regard, Article 88 of the CC stipulates that the Assembly must suspend the voting power of a Contracting State both in Assembly and if existent in the Council if the state is found default of the provisions in the associated chapter. One might ask now if the Council would have the possibility to enforce the ban of aerodromes for international air service under Article 87. The CC does not mention that. This right is only directly provided for banning an airline. However, Article 86 also refers to decisions other than those related to non-complying airlines. The Council could under Article 84 in case there is a disagreement between two states concerning ICAO Annex 14 take a decision. It might be the notification of the unsafe status of the aerodrome to the Contracting States or other maybe more stringent decisions.587 However, the ICAO Council would only start jurisdictions under Article 84 when a concerned state applies the disagreement.588

4.5.1.4

Appropriate Enforcement Mechanism for Deviation from SARPs

The CC gave the ICAO the power to develop essential requirements and gave the Contracting States the responsibility to implement these. ICAO successfully established many provisions. However, many states did not implement provisions

584

Huang (2009a), p. 211; There is also no reported case in the last 10 years. Ibid., p. 211. 586 Abeyratne (2007), p. 526. 587 These are assumption and not defined in the CC. 588 Buergenthal (1969), p. 127. 585

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into their national law. Dempsey says in this context:589 “For many years ICAO blithely turned a blind eye to such delinquency. The fundamental objective of achieving uniformity in international aviation safety and navigation - an area where uniformity is manifestly desirable.” The implementation of international provisions is crucial for aerodromes. Therefore, also attention should be paid to means of law enforcement to force states to fulfil their obligations towards the CC. Different, law enforcement mechanisms—namely horizontal or vertical— have been introduced. The vertical law enforcement mechanism is more appropriate to react to the sanctionable cases in which aerodrome related Articles are violated or Standards are disregarded without notification of differences: First, the implementation obligation of SARPs has an erga omnes character.590 It is based on a top-down principle. ICAO establishes provisions and the states implement them. So, when states do not fulfil their obligation of provisions this problem should also be solved vertically because the ICAO is then the only subject which is suitable to determine whether the state has returned to compliance. States notify difference as per Article 38 to ICAO and not directly to the other Contracting States. Second, the horizontal law enforcement mechanism is unlikely to be applied because a state is not complying to the Articles of the CC or not adhering to SARPs and not notifying differences. The process would have to be initiated by a state. States would be very cautious to denounce other states due to political and economic reasons. States would, in this case, burden intergovernmental relationships for the sake of aerodrome safety which is not convincible. Further, no Contracting State should take it upon itself unilaterally to become the “self-appointed policeman of the world” in matters affecting safety in international aviation.591 Third, the vertical law enforcement procedure seems to be preceding. ICAO has better means as a state to monitor states’ compliance continuously through its audit programme. If a state would notice non-compliance at aerodromes of another Contracting State first and issue an eligible disagreement, it would be a loss to the reputation of ICAO because of not being attentive for a longer period. The law enforcement initiated through the Council (vertically) is, therefore, more effective and likely to be applied than the law enforcement which is triggered by a state (horizontally). It reminds of the European Law. Similarly, in European Law, Article 258 TFEU gives the European Commission the power to notify the CJEU whenever another state does not comply with the obligations of the treaty.592 Nevertheless, the procedure for transparency and disclosure should also contain the enforcement tool of reporting infractions to the Contracting States and to the Assembly. An appropriate legal solution is seen in the proposed amendments in this work for Article 38 and Article 69 of the CC. If a state followed other provisions than

589

Dempsey (2004), p. 73. Huang (2009a), p. 208. 591 Tompkins (1995), p. 322. 592 Article 258 para. 1 TFEU. 590

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Standards, it would have to prove to ICAO that these are also safe through an equivalent level of safety. If it does not do so or does not implement SARPs at all, this will trigger the investigation by ICAO. If ICAO deems the aerodrome as unsafe, it will consult the state to work on a mitigation plan. Unless the mitigations are not implemented, the state is not allowed to provide the aerodrome for international air service.

4.5.2

National Level

More than 40% of the ICAO Contracting States do not have an established legal framework that enables effective enforcement of the applicable primary aviation legislation and specific operating regulations for aerodromes.593 This applies inter alia to cases in which there is a conflict of interest due to the fact that the state is involved in the provisions of aerodrome services. ICAO understands that it is extremely important to provide clear enforcement powers to a CAA and implement effective penalties. Legal departments and different entities of a CAA have to cooperate in order to establish adequate enforcement means and procedure. The policies should provide effective answers to non-compliances and violations which are appropriate and consistent. The implementation of profound enforcement policies and procedures is still challenging for many states.594 ICAO Annex 14 notes that “The most effective and transparent means of ensuring compliance with applicable specifications is the availability of a separate safety oversight entity and a well-defined safety oversight mechanism with support of appropriate legislation to be able to carry out the function of safety regulation of aerodromes.”595 Compliance with introduced provisions develops a minimum safety standard. International air traffic can rely on if they were not notified otherwise.596 Once adopted, these Standards are enacted by national aviation. Thus, compliance with aerodrome infrastructure and operation is the responsibility of each Contracting State. Adherence to these SARPs is monitored by national entities—usually the CAA as per each national legislation. Ultimately, aerodrome design and its infrastructure, facilitation, and aerodrome operation must be overseen. Unreasonable deviation from set rules must be sanctioned in order to ensure safety.597 Sanctions on national level should be even more consequent than on international level. This is due to the fact that states have to ensure meeting their obligations

593 In the following ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.1.4.1. 594 Ibid., para. 4.1.4.2. 595 ICAO, Annex 14—Aerodromes, 2018, p. 1-12. 596 Lelieur and Schlumberger (2017), p. 127. 597 Ibid., p. 127.

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towards the CC. These sanctions could entail warning letters to aerodrome operator referring to non-compliance, actions like ceasing of unsafe areas at the aerodrome, or even the withdrawal of the operating certificate. Due to the fact that aerodromes pose integral infrastructural elements of a state these have to be safe. Also, ICAO mentions and motivates states to define penalties,598 a term which is not used either in the soft wording CC or in the technically oriented ICAO Annex 14 in terms of aerodromes. Sanctionable law on national level will differ from the international level. This is due to the fact that an aerodrome operator will have to adhere to the national legislation that has been adopted by the associated state. In regard to the aerodrome-related Articles of the CC, the state will have to announce and ensure their applicability first. Hence, aerodrome operators have to adhere to them. Standards of ICAO Annex 14 for which no deviation has been notified by the state as per Article 38 and which have been adopted nationally represent sanctionable law. The same applies to more stringent provisions that might have been developed by the state and Recommended Practices that have been opted in and provided with a binding effect nationally. In case an aerodrome operator aims to deviate from these national provisions, an exemption is required which should be based on a safety assessment for safetyrelated provisions. In this regard, it is also extremely important that states develop mechanisms to approve exemptions for aerodromes. This could not be provided in 50% of the Contracting States.599 Aerodromes must also notify differences to the CAA in order to initiate a safety assessment process for the approval of exemptions.

4.6 4.6.1

Aerodrome Certification Purpose of Aerodrome Certification

One of the most essential criteria which the ICAO legislative process is based on is uniformity with International Standards.600 Only when states agree on a degree of compatibility with regulation, safety of international civil aviation can be achieved. Uniform application of Standards is recognised as necessary for the safety and regularity of international air navigation.601 As far as Recommended Practices are concerned, they are desirable in the interest of safety, regularity or efficiency of international air navigation as well as of environmental protection. ICAO stipulates that “States are obligated to provide timely notification to ICAO when adopting

598

ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.1.4.1. 599 Ibid., para. 4.1.3. 600 Huang (2009a), p. 49. 601 In the following ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para. 1.4.1.2.

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regulations or practices differing from those established by ICAO SARPs.”602 The ICAO Assembly calls in this regard Contracting States to reaffirm and to adhere to their obligations as per Articles 37 and 38 of the Convention.603 Beside rulemaking and standardisation, certification is key to achieve a high level of safety.604 States need to establish civil aviation regulation that includes aerodrome regulation consistent with the adopted Annexes in order to guarantee fulfilment of their obligation under the CC.605After having integrated aerodrome planning requirements into national law, these provisions shall be applied to build, expand, and maintain aerodrome facilities. One of the ways to achieve uniformity for aerodromes is through certification. The inclusion of a requirement for aerodrome certification in the aerodrome regulation shall ensure that aerodrome operators meet their obligations.606 ICAO Annex 14 notes that the aim of certification is to enforce uniform application of ICAO Annex 14.607 Compliance can be effectively achieved if there is a separate safety oversight entity and a profound safety oversight mechanism.608 This must be supported with relevant legislation in order to regulate aerodromes safely. An aerodrome operator who is certified proves to all related stakeholders that the aerodrome meets infrastructural and operational requirements.609 Further, the aerodrome is capable of maintaining this status till the validity of the certificate.610 An amendment to the aerodrome certification is necessary when:611 “there is a change in the ownership or management of the aerodrome; a change in the use or operation of the aerodrome; a change in the boundaries of the aerodrome; or when the holder of the aerodrome certificate requests an amendment.” Currently, almost 60% of the states have not fully implemented requirements for aerodrome certification.612 A comprehensive aerodrome certification process has not been established in more than 50% of the states. Although, ICAO Annex 14 defines

602

In this context, ICAO also refers to the notification of Recommended Practices as being an obligation which is not consistent with Article 38 of the CC. However, it emphasises the necessity of also notifying Recommended Practices.; ibid., para 1.5.3. 603 Assembly Resolution A39-22 (2016): Formulation and implementation of Standards and Recommended Practices (SARPs) and Procedures for Air Navigation Services (PANS) and notification of differences in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. II-3. 604 EASA, Annual Safety Review, 2008, p. 33. 605 ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, p. 1-1. 606 Ibid., p. 1-1. 607 ICAO, Annex 14—Aerodromes, 2018, p. 1-12. 608 In the following ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, p. 1-1. 609 ICAO, Doc 9981—PANS—Aerodromes, 2016, para. 2.1.3. 610 Ibid., para. 2.3.6.3. 611 ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, para. 3B.9. 612 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.8.1.1.

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this as a Standard.613 Further, 60% of the states have not established a framework within the certification process that entails a procedure for the conduction of safety assessments, reviewing and accepting of non-compliances with established requirements.614 ACI understands in this context that regulators’ lack of processes, training and state safety programs prevents aerodrome operator from accomplishing certification or getting clear guidance from their CAA.615 As far as the exemptions are concerned, 50% of the states do not have a legal basis for the issuance of exemptions to the regulatory framework.616 In general, the certification and continuous surveillance should entail the scrutiny and approval of exemptions where a non-compliance does exist and mitigated through a safety assessment. Often, states do not even document non-compliances.617 ICAO Annex 14 defines that “States shall certify aerodromes used for international operations in accordance with the specifications contained in this Annex as well as other relevant ICAO specifications through an appropriate regulatory framework.”618 Due to the fact that this provision is declared as a Standard, it is binding upon states. However, ICAO noted during the 38th session of the ICAO Assembly in October 2013 that there is a low level of implementation of aerodrome certification at aerodromes by Contracting States.619 These shortcomings allow discussing aerodrome certification in more detail in order to derive recommendations that shall enable a higher number of aerodrome certifications worldwide.

4.6.2

Legal Questions Associated with Aerodrome Certification

4.6.2.1

Lack of Qualified Resources

The certification process starts when an applicant expresses interest for the aerodrome certificate.620 Afterwards, the CAA is required to conduct a flight operations assessment in which the CAA ensures that the local aerodrome operation defined in the application will not jeopardise the safety of aircraft operation. If this task has been successfully accomplished, the CAA will define the requirements for the

613

ICAO, Annex 14—Aerodromes, 2018, para. 1.4.3. ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.8.1.1. 615 ACI, World Report, 7/2017, p. 17. 616 In the following ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.1.3.1. 617 Ibid., para. 4.1.3.2. 618 ICAO, Annex 14—Aerodromes, 2018, para. 1.4.1. 619 Abeyratne (2014), p. vi. 620 In the following ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, para. 4.3.1. 614

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aerodrome certification while taking into account that the aerodrome operator must have the sufficient competence and experience to comply with the regulatory framework.621 Furthermore, an aerodrome manual has to be assessed.622 An additional important step represents the on-site visit of the aerodrome in order to assess the facilities, services and equipment.623 In this regard, dimensions and surface conditions of runways, taxiways, and aprons are examined. The CAA can also require the certification of staff.624 The aerodrome certification process also comprises more tasks which are not going to be discussed in detail. It is apparent that such an immense process requires a well-organised infrastructure within the authority. Aerodrome certification is not considered to be a one-sided activity.625 Instead, it requires the efforts of both the aerodrome operator and especially the CAA. In particular, the compliance check of the aerodrome infrastructure requires, on the one hand, resources and on the other hand, a sufficient level of knowledge. This is, for instance, evinced by the fact that all visual aids have to be assessed regarding compliance.626 Notably, Developing States will face challenges to provide an administrative infrastructure within the authority as well as resources and know-how to fulfil the tasks of a CAA during the aerodrome certification. ICAO mentions in this context that 70% of the Contracting States do not have a sufficient number of qualified and experienced personnel in the CAA to conduct the aerodrome certification.627 In this context, a solution is provided by ICAO itself. ICAO recognises that there can be instances, where it is not feasible for a state to establish a structure dealing with aerodrome certification. Reasons could be that a state has only a limited number of aerodromes or not enough technical and financial capabilities.628 In these cases, states shall not diminish the necessity of certifying their aerodromes but enter cooperative arrangements with other states. ICAO’s Technical Cooperation Programme can support the state in arranging such an agreement. A further and similar solution is to establish regional oversight entities to make them responsible for a couple of states. An example for this model is the Pacific Aviation Safety Office (PASO) which was established in 2004.629 PASO was initiated in order to provide regulatory aviation safety oversight services to the Pacific Islands Civil Aviation Safety and Security Treaty (PICASST) Member States.630 In this context, ICAO also

621

Ibid., para. 4.4.1. Ibid., para. 4.4.3. 623 Ibid., para. 4.4.4. 624 Abeyratne (2014), p. 63. 625 ACI, World Report, 6/2017, p. 22. 626 ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, p. 4-2. 627 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.8.1.1. 628 ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, p. iii. 629 http://paso.aero/who-we-are/, assessed on 12.02.2019. 630 http://paso.aero/what-we-do/, assessed on 12.02.2019. 622

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notes that based on states’ constraints and limitation a Regional Safety Oversight Organisation (RSOO) appears to be reasonable.631 A RSOO might be beneficial to provide a qualified number of personnel to accomplish aerodrome certification for more than one State.

4.6.2.2

Vast Amount of Documentation and Low Level of Detail

As part of the certification process, ICAO Annex 14 defines that a state is obliged to ensure that “an aerodrome manual which will include all pertinent information on the aerodrome site, facilities, services, equipment, operating procedures, organization and management including a safety management system, is submitted by the applicant for approval/acceptance prior to granting the aerodrome certificate.”632 Beside ICAO Annex 14, provisions and guidelines for aerodrome certification are developed in many documents. Annex 14 refers in this context to PANSAerodromes in which information regarding the content of an aerodrome manual is given.633 PANS-Aerodromes determines procedures and principles to be followed when certifying an aerodrome operator.634 These include but are not limited to “the initial meeting between the state and the aerodrome operator, technical inspections of the aerodrome, approval/acceptance of all or relevant portions of the aerodrome manual, on-site verification of aerodrome operational aspects including the SMS of the operator, analysis of the deviations from regulatory requirements and issuance of the verification report, assessment of the corrective action plan, issuance of the certificate and continued safety oversight.” Further, PANS-Aerodromes contains guidance for the initial aerodrome certification process.635 It also incorporates a checklist for the states that supports assessing the acceptance of the aerodrome manual. Due to the fact that the SMS of an aerodrome operator is also subject to the aerodrome certification, ICAO Annex 14 refers also to ICAO Annex 19 (Safety Management) and to the SMM.636 Most of the guidance on aerodrome certification is contained in the MOCA.637 The manual aims to provide guidance to states with regard to the establishment of a regulatory system for aerodrome certification.638 In addition, the manual provides an

631

ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.2.1.3. 632 ICAO, Annex 14—Aerodromes, 2018, para. 1.4.4. 633 Ibid., p. 1-13. 634 ICAO, Doc 9981—PANS—Aerodromes, 2016, para. 6.6.1. 635 Ibid., para. 6.6.2. 636 ICAO, Annex 14—Aerodromes, 2018, p. 1-13. 637 Ibid., p. 1-13. 638 Abeyratne (2014), p. 61.

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aerodrome certification model regulation.639 The manual also explains in detail how the certification process should be established.640 It sets forth that states are responsible to ensure safety, regularity and efficiency of aircraft operations at aerodromes under their jurisdiction.641 In case of shifting aerodrome operation to an operator, the state retains its overseeing responsibility. Thereby, it shall be ensured that the operator is compliant with associated SARPs and applicable national regulations. ICAO emphasises in this regard that “the obligation of states to ensure safe aerodrome facilities and services remains unaffected.”642 As depicted, many different documents deal with guidelines and provisions for aerodrome certification. It becomes difficult to keep track of the different documents. Also, the ACI recognises that understanding the importance of aerodrome certification is lost to various interpretations form aerodrome operators and regulators.643 Regardless of the fact that many different documents address aerodrome certification, it is conspicuous that ICAO Annex 14 does only stipulate 3 Standards and 1 Recommendation for the certification of aerodromes, although ICAO mentions in the ICAO Annex 14, in PANS, in the MOCA as well as in Assembly Resolutions how important the certification of aerodromes is. Apparently, the number of Standards is not in line with necessity of aerodrome certification. It is recommended to shift, i.e. to upgrade some of the provisions contained in the MOCA and PANSAerodromes to ICAO Annex 14 and to define them as Standard or at least as Recommended Practices. Having more Standards defined for aerodrome certification could lead to more uniformity with regard to aerodrome certification by the Contacting States. The associated ICAO guidance material—the MOCA—does only contain four and a half pages to explain the certification process. It defines which parts of the aerodrome infrastructure have to be assessed during the on-site verification.644 However, it is in no way described how the assessment shall be conducted and how a CAA can ensure that items are compliant. A CAA personnel who is not sufficiently qualified and in charge of aerodrome certification will face severe challenges to conduct assessments based on this manual. The ACI requested ICAO back in 2009 to develop the MOCA.645 But since its first issuance in 2001

639

ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, para. 3-1ff. Ibid., para. 4-1ff. 641 In the following ibid., para. 1.1.1. 642 Assembly Resolution A38-12 (2013): Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, Appendix J—The provision of adequate aerodromes, p. II-15. 643 ACI, World Report, 7/2017, p. 17. 644 ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, para. 4.4.4. 645 ACI, Policies and Recommended Practices Handbook 2009, 7th edition, 2009, Section 5, p. 2. 640

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nothing has changed. Since this date, ICAO Annex 14 has already been amended 13 times.646 Therefore, the development of the MOCA is also recommended.

4.6.2.3

Aerodrome Certification Only for Standards or for SARPs

Standard 1.4.1 stipulates that states are obliged to certify the aerodromes that are used for international operations.647 This means that every aerodrome in a state which accommodates aircraft flying abroad or arriving from outside of states’ territory has to undergo the aerodrome certification process. These aerodromes shall be provided compliant to the “specifications” contained in Annex 14 and other relevant “ICAO specifications” through a relevant regulatory framework.648 The question arises as to whether “specification” includes only Standards or also Recommended Practices. The General Part of ICAO Annex 14 defines that the Annex contains “minimum aerodrome specification”.649 There is no further definition of what specifications are in this context. One could assume that only Standards are meant. This is due to the fact that the term minimum is included and would be in line with the definition of Standards which characterises them as “necessary”. Contrarily, Recommended Practices are only desired and would not correspond to the term “minimum”. A further clue that indicates that only Standards are meant is provided in the MOCA. Hereby, the model of the aerodrome certification regulation uses following expression “(. . .) certain specified elements, such as the movement area and visual aids, must meet the standards specified for licensed aerodromes, (. . .)”.650 The term “standard” is here used in connection with “specified.” Nevertheless, there are also references that indicate that specification comprises both Standards and Recommended Practices. The first sentence in ICAO Annex 14 stipulates “This Annex contains Standards and Recommended Practices (specifications) that prescribe the physical characteristics and obstacle limitation surfaces to be provided for at aerodromes, and certain facilities and technical services normally provided at an aerodrome.”651 Whereas the editorial practices define that “The following editorial practice has been followed in the writing of specifications: for Standards the operative verb “shall” is used, and for Recommended Practices the operative verb “should” is used.”652 In addition, many passages in the MOCA also refer to Standards and Recommended Practices, such as for the on-site assessment where characterises

646

See ICAO, Annex 14—Aerodromes, 2018, p. xixff. Ibid., para. 1.4.1. 648 Ibid., p. 1-12. 649 Ibid., p. 1-1. 650 ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, Section B, p. 3-4. 651 ICAO, Annex 14—Aerodromes, 2018, p. 1-1. 652 Ibid., p. xiv. 647

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shall be in accordance with both Standards and Recommended Practices.653 The indications speak more in favour of the fact that ICAO understands both Standards and Recommended Practices as being specifications. As a consequence, aerodromes have to be certified in accordance with Standards and Recommended Practices. Besides, it is also not clear what Standard 1.4.1 in ICAO Annex 14 means with the certification of “other relevant ICAO specifications”.654 As aforementioned, aerodrome planning is not limited to the provisions of ICAO Annex 14. On the one hand, it could mean other aerodrome related SARPs in further Annexes. In this case, the provision would be reasonable. On the other hand, ICAO could mean aerodrome-related specifications in the guidance material, e.g. provisions in ADM Part I or in PANS-Aerodromes. As a matter of fact, there is an indication providing that ICAO understands that also relevant guidance material should be subject to certification. This can be derived from ICAO’s audit programme in which the implementation status of guidance material is also assessed.655 Legally, it is difficult to find reasonable reasons for the certification of Recommended Practices and guidance material. This is due to the fact that according to the CC, states are not obliged to implement them into their national regulation nor is adherence to guidance material necessary to achieve the targets of the CC. It is therefore not recommended to stipulate the certification requirement for provisions which do not have a binding effect. From a pure technical point of view, it would represent a perfect status if states would be able to implement Recommended Practices and also guidance material and thus to certify them. However, this might, for the time being, complicate the aerodrome certification process. In 2009, ACI recommended ICAO to define that aerodrome certification should only be in accordance with Standards and that certification of Recommended Practices should not be mandatory.656 This opinion is agreed with. Aerodrome certification based on Standards would ease the certification process, e.g. in terms of on-site assessment. The only case when also Recommended Practices should be certified is the situation in which a state defines them as binding or defines national own requirements which could be more stringent. The reason for that could be national specialities or topographic considerations. Then, these provisions would have a higher safety-relevant character and should also be certified. But, internationally, certification of aerodromes should be in line with the legal binding effect and represent certification of the safety-critical Standards only.

653

ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, p. iii as well as para. 1.1. and p. 3-2. 654 ICAO, Annex 14—Aerodromes, 2018, para. 1.4.1. 655 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 3rd edition, 2011, para. 5.2.12. 656 ACI, Policies and Recommended Practices Handbook 2009, 2009, Section 5, p. 2.

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Type of Aerodromes Subject to Aerodrome Certification

The Recommended Practices 1.4.2 defines that states should certify aerodromes open to public use.657 States are allowed to restrict certification of aerodromes based on the number of passengers served by the aerodrome, Maximum Take-off Mass (MTOM) of aircraft, scheduled or unscheduled operation, night and day operation.658 States must also determine how to regulate uncertified aerodromes. The MOCA does not provide guidance on which aerodromes to exclude from the certification requirement and on how to regulate uncertified aerodromes. The MOCA does only present exemplary aerodrome characteristics for which the aerodrome certification might be considered. Thereby, for instance, aerodrome certification could be reasonable for aerodromes accommodating aircraft departing with an MTOM of more than 2730 kg,659 or aerodromes for “regular public transport operations” and accommodating aircraft with more than 30 passengers.660 The type of aerodromes within the scope of certification can differ largely.661 There are authorities that certify all aerodromes with IFR662 traffic, or all aerodromes for public use, or only aerodromes for commercial use, or all existing aerodromes.663 There are also states that certify aerodromes where only a significant number of scheduled airline traffic is accommodated.664 Others define threshold levels of activity regardless of the purpose. The Standard 1.2.2 in ICAO Annex 14 states “The specifications, unless otherwise indicated in a particular context, shall apply to all aerodromes open to public use in accordance with the requirements of Article 15 of the Convention.”665 One could draw the conclusion that if the provisions in ICAO Annex 14 are for all aerodromes open to public use, the certification requirement applies also to all aerodromes open to public use. This requirement is however only stipulated in the Recommended Practices 1.4.2. The reason for not defining this provision as a Standard is that this would bind states to certify hundreds of national aerodromes that are covered by the general criteria of “public use”, regardless of aerodromes’ activity.666

657

ICAO, Annex 14—Aerodromes, 2018, para. 1.4.2. ICAO, Doc 9774—Manual on Certification of Aerodromes, 2001, p. iii. 659 Ibid., p. 3-5. 660 Ibid., p. 3-4. 661 EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 52. 662 Instrument Flight Rules. 663 EASA, Studies on the state of the implementation of the provisions contained in ICAO Annex 14 on Aerodromes in the EASA Member States, 2010, p. 52. 664 IAOPA, Incorporating General Aviation into ICAO Annex 14, Aerodromes, 2010, p. 3f. 665 ICAO, Annex 14—Aerodromes, 2018, para. 1.2.2. 666 IAOPA, Incorporating General Aviation into ICAO Annex 14, Aerodromes, 2010, p. 3. 658

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The International Council of Aircraft Owner and Pilot Associations (IAOPA) understands that aerodrome certification is associated as a complex and expensive process.667 This also applies to the process of maintaining certification. Therefore, IAOPA questions if aerodrome certification should also be conducted for “small, low volume, part-time-customs aerodrome used by general aviation aircraft.” Currently, the aerodrome certification requirement is defined irrespective of the size and purpose of the aerodrome which—as IAOPA mentions—brings no benefit. Regardless of the opt-in status of Recommended Practices, IAOPA believes that this provision should be amended due to the fact that many Recommended Practices become Standards in many states.668 Therefore, IAOPA suggests to define in ICAO Annex 14 the recommended aerodrome certification for “(. . .) those public use aerodromes which provide commercial air transport services, utilizing aircraft with 30 or more passenger seats.”669 In this context, ACI supports the aerodrome certification principle that was put forward in ICAO Annex 14 and in the PANS-Aerodromes that requires according to Standard 1.4.1 aerodromes used for international operations to be certified for safety purposes.670 This principle is agreed with. The Standard 1.4.1 in ICAO Annex 14 should remain and oblige the certification of international aerodromes only. This is due to the fact that the CC is applicable to international aerodromes in the first place. With regard to the recommendation of IAOPA, also, the Recommended Practices 1.4.2 in ICAO Annex 14 should remain and only recommend the certification of aerodromes open to public use. States have the possibility to opt-in Recommended Practices. States should ensure in the first instance that the aerodromes that are provided for international air service are compliant and certified. This should be the aim of every Contracting States in order to fulfil its obligations towards the CC. If in this context, the state has capabilities to also certify more aerodromes for public use, this would definitely enhance the safety-level. A state should then define for itself which aerodromes open to public use have to undergo the certification process. This decision should be taken based on the availability and quality of national resources, and this will differ from state to state. If ICAO would implement the recommended amendment of IAOPA, some states would have the possibility to certify more aerodromes than only those that accommodate aircraft with more than 30 seats, and other states less than those. However, ICAO should provide in the MOCA, guidelines for the states on how to establish own threshold criteria, and how to define activity levels for which aerodrome certification is required. From a safety-perspective, it is obvious that as much

667

In the following ibid., p. 1ff. Ibid., p. 3. 669 Ibid., p. 5. 670 See ACI, Policies and Recommended Practices Handbook 2018, 2018, Section 5.2, p. 95 and ACI, Policies and Recommended Practices Handbook 2016, 8th edition, 2016, Section 5.3, p. 79. 668

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as possible aerodromes should be certified. Nevertheless, it will not be possible to certify all aerodromes of a state. But due to the fact that different aerodrome operating models are existent (privatised, corporatized, commercial), there should be national laws and regulation for all types.671 This means that the important question is not only which aerodromes should be excluded from the obligation to be certified according to ICAO Annex 14 but how to regulate excluded aerodromes since also these aerodromes have to be safe. This topic is currently not sufficiently covered by ICAO and needs to be reviewed.

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DeMeritt JHR (2012) International organizations and government killing: does naming and shaming save lives? Int Interactions 38:597–621 Dempsey PS (2004) Compliance & enforcement in international law: achieving global uniformity in aviation safety. NCILJ 30:1–74 Dempsey PS (2017) Multilateral conventions and customary international law. In: Dempsey PS, Jakhu RS (eds) Routledge handbook of public aviation law. Routledge, New York, pp 1–8 Dempsey PS, Chen K-W (2013) Aviation safety and security requires global uniformity. AASL 38:515–542 Dixon M (2013) Textbook on international law, 7th edn. Oxford University Press, Oxford Ducrest J (1995) Legislative and quasi-legislative functions of ICAO: towards improved efficiency. AASL 20:343–365 Erler J (1964) The regulatory functions of ICAN and ICAO: a comparative study. McGill University Libraries, Montréal Erler J (1967) Rechtsfragen der ICAO: Die Internationale Zivilluftfahrtorganisation und ihre Mitgliedstaaten. Heymanns, Munich Evans AE (1951) Some aspects of the problem of self-executing treaties. Proc Am Soc Int Law Its Annu Meeting 45:66–75 Faller E (1984) International legal aspects relating to the construction and extension of airports. ZLW 33:418–428 Ferreira G, Ferreira-Snyman A (2014) The incorporation of public international law into municipal law and regional law against the background of the dichotomy between monism and dualism. PELJ 17:1470–1496 Fossungu PA-A (1998) The ICAO Assembly: the most unsupreme of supreme organs in the United Nations system - a critical analysis of assembly sessions. TLJ 26:1–49 Foster NG, Sule S (2002) German legal systems and laws, 3rd edn. Oxford University Press, Oxford Frenzel M (2011) Sekundärrechtsetzungsakte internationaler Organisationen: Völkerrechtliche Konzeption und verfassungsrechtliche Voraussetzungen. Mohr Siebeck, Tübingen Gadzhiev K (2019) On the globalization and fragmentation of the modern world. JPSIR 2:1–10 Gauci J (2010) Obstacle detection in aerodrome areas through the use of computer vision. Dissertation, Cranfield University Giemulla EM, Weber L (eds) (2011) International and EU aviation law. Kluwer Law International, Alphen aan den Rijn Graham A (2008) Managing airports: an international perspective, 3rd edn. Routledge, London Havel BF, Sanchez GS (2014) The principles and practice of international aviation law. Cambridge University Press, New York Henriksen A (2017) International law. Oxford University Press, Oxford Herdegen M (2018) Völkerrecht, 17th edn. Beck, Munich Hobe S (2014) Einführung in das Völkerrecht, 10th edn. A. Francke, Tübingen Hofmann F (2018) Staatsrecht I, 3rd edn. Script, Repetitorium Hoffmann Howard D (2013) Points of connection: relating ICAO Annex 14 to spaceports. AASL 38:281–302 Huang J (2009a) Aviation safety and ICAO. Kluwer Law International, Alphen aan den Rijn Huang J (2009b) Aviation safety, ICAO and obligations erga omnes. CJIL 8:63–79 Ipsen K (ed) (2014) Völkerrecht, 6th edn. Beck, Munich Janis MW (2008) International law, 5th edn. Wolters Kluwer, New York Kaienburg N (2010) Compliance in high profile-Fällen der WTO. Mohr Siebeck, Tübingen Kaienburg N, Wysk P (2018) Die Bindungswirkung von ICAO-Vorschriften. ZLW 67:38–86 Kau M (2016) Der Staat und der Einzelne als Völkerrechtssubjekte. In: Vitzthum W, Proelß A (eds) Völkerrecht, 7th edn. De Gruyter, Berlin, pp 133–246 Keller H (1999) Rechtsvergleichende Aspekte zur Monismus-Dualismus-Diskussion. SRIEL 9:225–249 Kirchner S (2010) Effective law-making in times of global crisis - a role for international organizations. GoJIL 2:267–292

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Komba BS, Mwakisu MJ (2012) The international law making process and the participation of developing countries, the case study of Vienna Convention on the Law of Treaties 1969. Bachelor Thesis, Tumaini University Iringa Kunig P (2016) Völkerrecht und staatliches Recht. In: Vitzthum W, Proelß A (eds) Völkerrecht, 7th edn. De Gruyter, Berlin, pp 61–132 Laws J (2000) Monism and dualism. La Revue administrative 53:18–22 Lelieur I, Schlumberger CE (2017) Airport business and regulation. In: Dempsey PS, Jakhu RS (eds) Routledge handbook of public aviation law. Routledge, New York, pp 114–136 Lindseth PL (2003) The paradox of parliamentary supremacy: delegation, democracy, and dictatorship in Germany and France, 1920s–1950s. YLJ 113:1341–1415 Liyanage SD (1996) Aviation safety oversight assessment. AASL 21:235–261 Mahajan VD (1974) Public international law. Eastern Book Co., Lucknow McCreary SD (1989) The Chicago Convention: Article 33 and the SFAR 40 Episode. JALC 54:721–755 Mensen H (2013) Planung, Anlage und Betrieb von Flugplätzen, 2nd edn. Springer Vieweg, Berlin Milde M (1996) Enforcement of aviation safety standards: problems of safety oversight. ZLW 45:3–17 Milde M (2012) International air law and ICAO: essential air and space law, 2nd edn. Eleven International Publishing, The Hague Münz R (1994) 50 Jahre Abkommen über die Internationale Zivilluftfahrt - Rückschau und Ausblick. ZLW 43:383–387 O’Brien J (2001) International law. Cavendish Publishing Limited, London O’Donoghue A, Tzouvala N (2016) TTIP: the rise of mega-market trade agreements and its potential implications for the global south. TLD 8:30–65 Oesch M (2009) UNO-Sanktionen und ihre Umsetzung im schweizerischen Recht. SRIEL 19:337–358 Pearson MW, Riley DS (eds) (2015) Foundations of aviation law. Ashgate, Surrey Pelton JN, Jakhu R (eds) (2010) Space safety regulations and standards. Elsevier, Oxford Pepin E (1952) ICAO and other agencies dealing with air regulation. JALC 19:152–165 Piera A (2016) Designing the legal form of a global aviation market based measure. CCLR 2:144–152 Potacs M (2010) Das Verhältnis zwischen der EU und ihren Mitgliedstaaten im Lichte traditioneller Modelle. ZöR 65:117–139 Riedi S (2015) Die technischen Normen der Internationalen Organisation für Zivilluftfahrt (ICAO): Völkerrechtliche Bedeutung und Umsetzung der Standards, Recommended Practices und PANS ins schweizerische Recht. Stämpfli, Bern Riese O (1949) Luftrecht: Das internationale Recht der zivilen Luftfahrt unter besonderer Berücksichtigung des schweizerischen Rechts. K. F. Koehler, Stuttgart Rijks K (1962) Airport charges under judicial review. NTIR 9:50–61 Rolland SE (2007) Developing country coalitions at the WTO: in search of legal support. HILJ 48:483–551 Schäffer H (2007) Der Schutz des zivilen Luftverkehrs vor Terrorismus: Der Beitrag der International Civil Aviation Organization (ICAO). Nomos, Baden-Baden Schladebach M (2014) Lufthoheit: Kontinuität und Wandel. Mohr Siebeck, Tübingen Schladebach M (2018) Luftrecht, 2nd edn. Mohr Siebeck, Tübingen Schöbener B (2013) Völkerrecht und nationales Recht (allg. und Bundesrepublik Deutschland). In: Schöbener B (ed) Völkerrecht: Lexikon zentraler Begriffe und Themen. C.F. Müller, Heidelberg, pp 515–522 Schriewer B (2017) Zur Theorie der internationalen Offenheit und der Völkerrechtsfreundlichkeit einer Rechtsordnung und ihrer Erprobung am Beispiel der EU-Rechtsordnung. Duncker & Humblot, Berlin Schröder (2016) Verantwortlichkeit, Völkerstrafrecht, Streitbeilegung und Sanktionen. In: Vitzthum W, Proelß A (eds) Völkerrecht, 7th edn. De Gruyter, Berlin, pp 539–590

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Schubert F (2017) Air navigation. In: Dempsey PS, Jakhu RS (eds) Routledge handbook of public aviation law. Routledge, New York, pp 88–113 Schweisfurth T (2006) Völkerrecht. Mohr Siebeck, Tübingen Shaw MN (2017) International law, 8th edn. Cambridge University Press, Cambridge Starke JG (1936) Monism and dualism in the theory of international law. BYBIL 17:66–81 Tompkins GNJ (1995) Enforcement of aviation safety standards. AASL 20:319–334 Tourtellot CT (1981) Membership criteria for the ICAO Council: a proposal for reform. DJILP 11:51–80 Vitzthum W (2016) Begriff, Geschichte und Rechtsquellen des Völkerrechts. In: Vitzthum W, Proelß A (eds) Völkerrecht, 7th edn. De Gruyter, Berlin, pp 1–60 Von Arnauld A (2016) Völkerrecht, 3rd edn. C.F. Müller, Heidelberg Von Arnim HH (1987) Zur “Wesentlichkeitstheorie” des Bundesverfassungsgerichts. DVBl. 102:1241–1249 Von Campenhausen AF (2004) The German Headscarf debate. BYULR (2):665–699 Weber L (2017) The Chicago Convention. In: Dempsey PS, Jakhu RS (eds) Routledge handbook of public aviation law. Routledge, New York, pp 9–32 Will M (2015) Völkerrecht und nationales Recht. JURA 37:1164–1176

Chapter 5

Establishment of a Legal Framework Through Performance-Based Regulation

5.1 5.1.1

Maintaining and Demonstrating Compliance Development of the Universal Safety Oversight Audit Programme (USOAP)

After having received the aerodrome certificate, the aerodrome operator is required to maintain facilities, services, equipment and operating procedures as per the issued certificate.1 In addition, immediate advise to authorities and aircraft operators is necessary in case of any emerging deviations from the certificate.2 As a matter of fact, the responsibility towards an aerodrome does not end with the issuance of the aerodrome certification. The aerodrome operator, as well as authorities, have further obligations in order to ascertain aerodrome operability. Controversially, ICAO has observed that more than 50% of the Contracting States have not developed a formal surveillance programme for their certified aerodromes.3 Surveillance programmes aim to ensure that aerodrome operators meet the certification basis continuously and fulfil their obligations under the certificate as well as requirements of the approved aerodrome manual. Therefore, a surveillance programme should be in place that defines procedures and interval surveillance plans. Besides, it has to comprise surveillance activities such as unannounced inspections by competent authorities.

1 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 1 January 2013 to 31 December 2015, 2016, para. 4.8.3; Abeyratne (2014), p. 61. 2 Abeyratne (2014), p. 61. 3 In the following ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.8.3.

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2021 C. Salih, International Aviation Law for Aerodrome Planning, https://doi.org/10.1007/978-3-030-56842-9_5

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In the first centuries after the conclusion of the CC,4 many states did not notify ICAO about differences to International Standards.5 In fact, not even one-third of the Contracting States could provide ICAO with appropriate information on the implementation status of ICAO’s provisions. The effective and real level of SARPs implementation by the Contracting States on international level was a matter of doubt and concern.6 The main reasons for this shortcoming were inter alia the inadequate commitment of states, lack of resources and lack of enforcement practices of the ICAO.7 In order to encounter this negative trend, ICAO introduced the Universal Safety Oversight Audit Programme (USOAP).8 The Council administrates and supervises the audit system.9 Through the ICAO audit programme, ICAO aims to assess states’ compliance with the CC, ICAO SARPs, PANS, as well as, guidance material and relevant safety-related practices generally used in the aviation industry.10 In addition, the capability of states’ safety oversight is examined.11 ICAO defines the term “safety oversight” as the capability of the state to ensure effective implementation of safety-related SARPs and relevant procedures defined in the Annexes to the CC as well as related ICAO documents.12 In regard to aerodromes, the states’ oversight is associated with certification, control, and supervision of the aerodromes.13 After 9/11, ICAO also established the Universal Security Audit Programme (USAP).14 USAP aims to promote aviation security by auditing states towards the fulfilment of security responsibilities.15 USAP follows the same methodology as USOAP. Security audits are conducted on a governmental level but also on aerodromes to ensure compliance with ICAO Annex 17 (Security).16 USOAP is further linked with ICAO’s Global Aviation Safety Plan (GASP) that focuses on achieving a significant decrease in accident rates.17 GASP is in collaboration with states and industry. Without any doubt, USOAP is a significant part of 4

Riedi mentions here the time until the end of the 1980s. Riedi (2015), p. 148. 6 Milde (1994), p. 426. 7 Kaienburg and Wysk (2018), p. 67. 8 Riedi (2015), p. 180f. 9 In the following Albisinni (2016), p. 212. 10 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 3rd edition, 2011, para. 5.2.12. 11 Ibid., para. 2.5.2. 12 ICAO, Doc 9734—Safety Oversight Manual, Part A, The Establishment and Management of a State’s Safety Oversight System, 2nd edition, 2006, para. 2.1.1. 13 Ibid., para. 2.3.4.3. 14 Established in ICAO Assembly Resolution A35-9. 15 Assembly Resolution A39-18 (2016): Consolidated statement on continuing ICAO policies related to aviation security in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, Appendix E, p. VII-12ff. 16 Huang (2009b), p. 69. 17 Bartsch (2016), p. 60. 5

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ICAO’s framework, since it is the first audit and reporting process for the purpose of determining states’ implementation status of safety-related SARPs.18

5.1.2

The First and Second USOAP Cycle

In 1998, the Assembly decided on the establishment of the USOAP.19 The scope of the audit programme was limited to Annex 1 (Personnel Licensing), Annex 6 (Operation of Aircraft), and Annex 8 (Airworthiness of Aircraft). The audit of safety oversight was accordingly performed by an Annex-by-Annex basis.20 The first cycle of the USOAP ended in 2001.21 The audits conducted by ICAO revealed that even Developed States had differences between national regulation and ICAO Standards that were not communicated to ICAO.22 Several findings indicated that states face difficulties in implementing ICAO’s SARPs.23 Therefore, the ICAO Assembly requested the Secretary General to provide appropriate guidance on possible financial and technical sources of assistance, as well as, to utilise operational and technical expertise of ICAO to give training on safety oversight. Learnt from the past, ICAO had the opinion to develop USOAP from an Annex-by-Annex auditing approach to a Comprehensive Systems Approach (CSA) that should concentrate on the overall capability of states’ safety oversight.24 Consequently, ICAO progressively expanded the scope of the USOAP, resulting in the inclusion of all safety-related Annexes to

18

Weber and Jakob (1998), p. 323f. In the following Assembly Resolution A32-11 (1998): Establishment of an ICAO universal safety oversight audit programme in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-100. 20 Assembly Working Paper A35-WP/7 (2004): Transition to a comprehensive systems approach for audits in the ICAO Universal Safety Oversight Audit Programme (USOAP), para. 3.1.1. 21 Assembly Working Paper A33-WP/47 (2001): Report on the ICAO Universal Safety Oversight Audit Programme, para. 3.1. 22 Huang (2009b), p. 69. 23 In the following Assembly Resolution A33-9 (2001): Resolving deficiencies identified by the Universal Safety Oversight Audit Programme and encouraging quality assurance for technical cooperation projects in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-102. 24 Assembly Working Paper A35-WP/7 (2004): Transition to a comprehensive systems approach for audits in the ICAO Universal Safety Oversight Audit Programme (USOAP), para. 3.1.2. 19

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the CC25—among others ICAO Annex 14 for Aerodromes.26 The expansion was considered as an important step to increase global safety.27 In 2004, the Assembly approved the initiation of the second audit cycle in which aerodromes have also been investigated.28 It was stipulated to start with the second cycle in 2005. In 2010, ICAO had audited 165 Contracting States.29 The results have not been satisfactory and indicated challenges in implementing ICAO’s regulatory framework.30 As far as aerodromes are concerned, major improvements related to aerodromes’ physical characteristics were required at many locations.31 USOAP identified that the status of implementing aerodrome-related requirements is not optimal yet. Therefore, the Assembly defined that states should take necessary actions to resolve shortcomings. In addition, states should concentrate more on the management of aerodrome operation and runway safety.32 ICAO USOAP delivered a large number of Contracting States that do not have certified their aerodromes.33 Also, many aerodrome operators did not have an applied SMS. This obligation was not discharged in 83% of the states. The following bullet points sum up the aerodrome-related USOAP results in 2010:34 • 58% of the states had not developed procedures for aerodrome certification and surveillance; • 72% of the states had no guidance for aerodrome certification and surveillance; • 69% of the states had not developed a runway safety program with regards to runway incursions; • 65% of the states had no mechanism to reduce safety issues timely; • 59% of the states had not reviewed Aerodrome Manuals periodically.

25

Bartsch (2016), p. 60. Assembly Resolution A35-6 (2005): Transition to a comprehensive systems approach for audits in the ICAO Universal Safety Oversight Audit Programme (USOAP), no. 4, p. 2; This Assembly Resolution is not included in ICAO Doc 10075 due to the fact that it has been superseded by Assembly Resolution A37-5 (2005): The Universal Safety Oversight Audit Programme (USOAP) continuous monitoring approach. 27 Stimpson (2003), p. 13,255. 28 Assembly Working Paper A35-WP/7 (2004): Transition to a comprehensive systems approach for audits in the ICAO Universal Safety Oversight Audit Programme (USOAP), para. 3.1.6. 29 ACI, APEX in Safety—Reference Document, 2018, p. 3. 30 Quinlan et al. (2016), p. 12. 31 In the following Assembly Resolution A38-12 (2013): Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation in: ICAO, Doc 10075— Assembly Resolutions in Force (as of 6 October 2016), 2017, Appendix J—The provision of adequate aerodromes, p. II-15. 32 Ibid., Appendix J—The provision of adequate aerodromes, p. II-15. 33 Abeyratne (2014), p. vi. 34 ACI, APEX in Safety—Reference Document, 2018, p. 3. 26

5.1 Maintaining and Demonstrating Compliance

5.1.3

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Continuous Monitoring Approach (CMA)

In 2010, USOAP was extended to the Continuous Monitoring Approach (CMA).35 USOAP introduced with CMA “an information-driven, risk-based and resultoriented programme.”36 The USOAP CMA targets to monitor states’ oversight capability continuously.37 A Memorandum of Understanding (MoU) signed between ICAO and each Contracting State initiates the audit in form of continuous monitoring activities.38 The main principle of USOAP CMA activities is that the whole procedure shall be fully transparent and open to examination by the Contracting States, i.e., a full disclosure of the audit results shall provide sufficient information for further decisions related to safety by other states.39 ICAO verifies through the USOAP CMA State’s compliance with the Articles of the CC or national regulations and its implementation of SARPs, procedures and aviation safety best practices.40 Each state is audited at least once every 6 years.41 The audit entails three phases.42 In phase 1, ICAO identifies to which extend ICAO requirements have been met, i.e. national differences to ICAO’s regulatory framework are manifested.43 ICAO uses a set of questionnaires and compliance checklists to accomplish this phase. The examination is conducted off-site. Phase 2 witnesses on-site audits of any discrepancies that have been emerged during phase 1.44 There are two kinds of audits:45 CSA Audits and Safety Audits. One purpose of CSA audits is to assess the effective implementation of the eight Critical Elements (CE).46 Safety audits follow the same objective and methodology as CSA audits.47 However, states request Safety Audits voluntarily to assess their safety oversight system. ICAO determines the necessity of

35 Assembly Resolution A37-5 (2010): The Universal Safety Oversight Audit Programme (USOAP) continuous monitoring approach in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-107. 36 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, p. 6. 37 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, para. 3.2.1. 38 Ibid., para. 2.6.2. 39 Ibid., para. 2.6.3. 40 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, p. APP-A1. 41 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, para. 2.1.8. 42 Ibid., para. 7.1.1. 43 In the following Bartsch (2016), p. 60. 44 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, para. 7.1.3. 45 Ibid., para. 3.5.2. 46 Ibid., para. 3.5.3. 47 Ibid., para. 3.5.4.

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a CSA Audit and defines its scope.48 The CEs are Primary aviation legislation; Specific operating regulations; State system and functions; Qualified technical personnel; Technical guidance, tools and provision of safety-critical information; Licensing, certification, authorisation and/or approval obligations; Surveillance obligations; Resolution of safety issues.49 For instance, the area Primary aviation legislation subjects the capability of the government and the associated administration—namely the CAA to proactively regulate civil aviation activities.50 As far as aerodromes are concerned, this means dealing with aerodrome development, certification and operation. The second purpose of the audits is to assess the implementation status of SARPs and associated procedure and guidance material.51 That said, eight areas are assessed:52 Primary aviation legislation and civil aviation regulations; Civil aviation organisation; Personnel licensing and training; Aircraft operations; Airworthiness of aircraft; Aircraft accident and incident investigation; Air navigation services; and Aerodromes and ground aids. Once non-compliance with either Articles of the CC, ICAO Assembly Resolutions, safety-related provisions in the Annexes to the Convention, PANS, ICAO guidance material, or good aviation safety practices is found, a so-called “finding” is issued.53 Hence, ICAO recommends a measure to be taken.54 In case ICAO identifies a non-compliance with either minimum requirements established by the state or International Standards, which result in an immediate safety risk to international civil aviation, a “significant safety concern” is communicated to the state.55 In response to any findings and significant safety concerns, states have to provide a corrective action plan that foresees actions to be taken as well as an expected timeframe.56 In the third phase, the ICAO Coordinated Validation Mission (ICVM) takes place.57 ICVM is developed to assess the level of corrective actions or mitigating measures envisaged by a state in order to resolve the findings and significant safety concerns identified in the past. Based on the results, a draft report is forwarded to the state for comment.58 If ICAO receives 48

Ibid., para. 3.5.5. ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, p. 8f. 50 ICAO, Doc 9734—Safety Oversight Manual, Part A, The Establishment and Management of a State’s Safety Oversight System, 2006, para. 3.2.4. 51 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, para. 3.5.3. 52 Ibid., para. 2.4. 53 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, p. APP-A1. 54 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, p. 1–2. 55 Ibid., p. 1–3. 56 Ibid., para. 5.2.23f. 57 In the following ibid., para. 3.5.6. 58 Ibid., para. 7.4.8. 49

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any comments from the state these are incorporated into a final report.59 The final report entails an analysis of the corrective plan, further comments by the state and information on how the state implemented the corrective plan.60 Also during the innovative CMA, states could not evidence that a satisfactory national safety oversight system has been established, as—for instance—more than 75% of the Contracting States have not yet established an effective system for the identification and notification of the differences between their national regulation and SARPs to ICAO.61 Therefore, the Assembly directed the Council again to implement comprehensive assistance programs.62 In terms of aerodromes, the results of 2017 outline that only 58% of the Contracting States had efficiently implemented ICAO’s aerodrome provisions.63 Unsatisfactorily, this percentage enhanced only by 0.5% in 2018.64 Almost 60% of the states have not established any procedure or mechanism based on safety assessments in order to scrutinise and approve non-compliances with legal requirements.65 In 70% of the states, aerodromes do not have a procedure to ensure that the aerodrome operators collect, monitor, and analyse safety occurrences and trends and mitigate them.66 All other audited areas with regard to aerodromes also outline a significant number of non-compliances.67 There are cases in which ICAO wants to have a more direct link to aerodrome operators to promulgate SARPs and other ICAO policies—namely by programmes initiated through the ACI.68 In 2011, ACI launched the Airport Excellence (APEX) programme in order to help airports improving their safety compliance and mitigating safety risks to reduce incidents.69 The basis for APEX includes ICAO Annex 14 provisions, as well as, ACI best-practices, and national requirements.70 The target of APEX is to measure regulatory compliance while considering the operational needs of an aerodrome.71 Operational efficiency shall be enhanced by improving safety standards. Through cooperation with international stakeholders like ICAO,

59

Ibid., para. 7.4.9. Bartsch (2016), p. 60. 61 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.1.2.1. 62 Assembly Resolution A39-14 (2016): Regional cooperation and assistance to resolve safety deficiencies, establishing priorities and setting measurable targets in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-105. 63 ICAO, Safety Report, 2017, p. 10. 64 ICAO, Safety Report, 2018, p. 15. 65 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.8.1.1. 66 Ibid., para. 4.8.2.1. 67 For further results see ibid., p. 33ff.; ICAO, Safety Report, 2018, p. 15. 68 Behnke (2012), p. 192. 69 ACI, JAM 6 (2012), 412, p. 412. 70 ACI, APEX Safety—Brochure, 2018, p. 1. 71 ACI, APEX in Safety—Reference Document, 2018, p. 3. 60

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the level of compliance with SARPs shall be increased.72 The programme starts with a self-assessment in which the aerodrome is required to answer a safety questionnaire. Afterwards, an on-site validation is conducted by an ACI Team.73 Then, solutions will be recommended, and an action plan is designed based on the on-site visit. The Safety Review Team combines different expertise (e.g., Runway Safety, Low Visibility Procedure, Aerodrome Certification) and aviation stakeholder (e.g., airlines, air navigation service providers, authorities).74 The review contains infrastructural and operational aspects. In this regard, physical characteristics but also operational subjects such as wildlife management are assessed.75 ACI staff support an audited aerodrome in order to achieve the goals defined in the action plan.76 Hence, different assisting practices can be provided, such as “pools of experts, training, workshops, seminars, and working groups at local, regional and international levels.” A parallel program for Security (APEX is Security) was established in 2017 by ACI to improve airport security around the world.77 Legally, aerodromes are not obliged to request the APEX Safety Review. Participation is completely volunteering.78 By 2017, 67 airports had been reviewed,79 among others, ten aerodromes from Latin America. It could be manifested that there are at least 15 common non-compliances at the aerodromes recognised through APEX. The information on common difficulties enables ACI and the stakeholder to find solutions for a broad area. One can say that although ACI defines APEX as a Safety Review, it is shaped and structured exactly like ICAO’s USOAP CMA process. Even a parallel programme for aerodrome security was established. However, the additional APEX programme will not significantly change the alarming results of USOAP. This is due to the fact that aerodromes are not bound to participate, which can be illustrated by the low number of participation (67 aerodromes). In fact, USOAP results did not improve since the introduction of APEX. It should also be not neglected that APEX is concentrating on the effective implementation of aerodrome-related provisions, i.e. an examination of states’ oversight capability is not audited and assessed.

72

Ibid., p. 4. Ibid., p. 4. 74 Ibid., p. 5f. 75 ACI, APEX Safety—Brochure, 2018, p. 2. 76 In the following ACI, APEX in Safety—Reference Document, 2018, p. 7. 77 ACI, APEX in Security—Reference Document, 2018, p. 3; ACI, APEX in Safety—Reference Document, 2018, p. 2. 78 ACI, APEX in Safety—Reference Document, 2018, p. 8. 79 In the following ACI, World Report, 6/2017, p. 21. 73

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5.1.4

Legal Questions Associated with USOAP

5.1.4.1

Compliance of USOAP with the Chicago Convention

219

One might ask if ICAO is granted with the necessary power by the CC to establish the USOAP. USOAP shall verify how states comply with ICAO’s provisions. The CC does not foresee an audit system. Notwithstanding, Article 54 (i) empowers the Council to “[r]equest, collect, examine and publish information relating to the advancement of air navigation and the operation of international air services, (. . .)” This case is represented in Phase 1 of USOAP in which ICAO collects information from the Contracting State and examines the implementation status. Also, Phase 3 of USOAP is consistent with the CC. In case a state fails to implement the recommendations to the audit findings, ICAO notifies the other Contracting States through the disclosure of the audit report and the associated publication of the results. The power to do so is provided to ICAO through the reporting power in Article 54 (j). If the audits would result in an infraction to the Articles of the CC, and the state fails to resolve the infraction, ICAO could also disclose this information to the other states. Article 54 (j) does also cover the reporting of convention violations. In this case, ICAO would further have the power to forward the information on the convention breach to the Assembly as per Article 54 (k). As far as aerodromes are concerned, the CC provides the ICAO with powers that appear within the USOAP. Article 69 allows the Council to contact the states if their aerodromes are not considered to be safe. Further, maintaining a safe operational level of aerodromes upon states’ request is represented in Article 71 of the CC. Hereby, the Council is legitimated to provide assistance to achieve a safe level at aerodromes. Kirchner describes this as a functional approach provided by the CC to the ICAO.80 This applies to the supporting approach which is foreseen in the USOAP. The compliance assessment of the USOAP CMA with the CC evinces firstly that USOAP is complaint with the CC and that the ICAO Council is empowered with the necessary powers. Secondly, it becomes apparent that USOAP is not only considered as an audit programme but can also be defined as an enforcement programme. This is due to the fact that the aforementioned procedure for transparency and disclosure is entailed in USOAP. States that fail to carry out recommendations are reported to the other Contracting States. It is questionable if the procedure for transparency and disclosure, based on only the reporting power of failure to carry out recommendations to Contracting States, is appropriate to enforce ICAO’s provisions. Since the introduction of the USOAP, compliance with both states’ oversight as well as aerodrome provisions has not been significantly enhanced. Therefore, the procedure for transparency and disclosure is not considered as sufficient and enough to force states to implement ICAO’s provisions effectively. 80

Kirchner (2010), p. 291.

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Legal Effect of an Assembly Resolution

The ICAO Assembly resolves in A32-11 “that a universal safety oversight audit programme [shall] be established, comprising regular, mandatory, systematic and harmonized safety audits, to be carried out by ICAO; that such universal safety oversight audit programme shall apply to all Contracting States; and that greater transparency and increased disclosure be implemented in the release of audit results (. . .)”81 Strict voluntary safety audits were not considered to be expedient.82 That said, the question arises as to whether a Contracting State is bound to participate in the USOAP and to be audited by the ICAO, i.e. to which extent is a Contracting States bound to an Assembly Resolution. There is a consensus in legal literature that international organisation can address through resolutions legally binding provisions to its bodies.83 Huang mentions in this regard “rules concerning their structure, functioning or procedures.”84 This opinion is consistent with Article 49 (d) of the CC in which the Assembly is granted with the power to “[d]etermine its own rules of procedure and establish such subsidiary commissions as it may consider to be necessary or desirable (. . .).” In terms of resolutions’ binding effect on states, although there are some opinions in favour of a binding effect,85 legal scholars tend to assign a non-binding character: Riedi mentions that ICAO’s Assembly Resolutions have only a recommending character and entitles them as soft law.86 Shelton’s opinion is similar, as she declares resolutions as “non-binding political instruments.”87 Truxal—when discussing specific Assembly Resolutions—also indicates them as non-binding.88 Piera draws a comparison here to UN Assembly Resolutions and declares both as “per se not binding.”89 The CC itself does not contain any stipulation binding the Contracting States to the content of Assembly Resolutions. For instance, Assembly Resolutions cannot be compared to Standards to which states are obliged to adhere to as per Article 37. A notification in case of a deviation from an Assembly Resolution is also not required like it is the case for Standards according to Article 38 of the CC. Therefore, it is not 81 Assembly Resolution A32-11 (1998): Establishment of an ICAO universal safety oversight audit programme in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-100. 82 Leloudas (2003), p. 79. 83 Huang (2009a), p. 182; Riedi (2015), p. 30. 84 Huang (2009a), p. 182. 85 Huang provides different opinions of legal scholars regarding the binding effect of Assembly Resolutions of international organization. He comes to the conclusion that “it will be necessary to analyze different resolutions on their own merits.” See ibid., p. 183. 86 Riedi (2015), p. 30. 87 Shelton (2009), p. 68. 88 Truxal discusses in this regard goals set by the Assembly in order to reduce the global impact of aircraft noise and emissions. For further details see Truxal (2011), p. 237f. 89 Piera (2016), p. 144.

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possible to derive an apparent legally binding effect on states from the A32-11 that binds states to participate in the USOAP.

5.1.4.3

Legal Effect of a Memorandum of Understanding (MoU)

The MoU stipulates that states shall provide ICAO with all necessary information to ensure successful conduction of CMA activities.90 As the Assembly Resolution does not bind states’ participation, the question arises as to whether a state is bound to participate in the USOAP through this MoU. Article 1 of the VCLT applies to treaties between states. The MoU is an agreement between a Contracting State and the ICAO.91 Article 3 of the VCLT defines that although the VCLT does not apply to agreements between states and other subjects of international law,92 it does not affect the legal force of such agreements negatively. In result, the VCLT cannot be applied to the MoU. However, the VCLT does not limit an eventual binding effect of the MoU. There is no article in the MoU that defines a binding character for states. Most of the provisions refer to the roles and responsibilities of ICAO and the state regarding the USOAP CMA activities.93 The MoU is not required to be ratified or approved by the parliament of the state.94 It shall only be signed by a representative of the competent authority. In result, the MoU does not represent an international treaty between states, which means that infringing provisions of it are not associated with a violation against international law.95 Therefore, one can say that the MoU does not bind a state to participate in the USOAP either. Notwithstanding, ICAO defines that if a state does not sign and send a copy of the MoU to the Council, all Contracting States shall be notified about the State’s refusal to participate in USOAP.96 The reporting power granted to the Council as per Article 54 (j) is used in this case again and to motivate states to participate and not the effect of the MoU. Again, the procedure for transparency and disclosure is noticed. Article 1 of the CC recognises the sovereignty of every single Contracting State. The key to sovereignty is that the state is not liable to any external authority.97 Notwithstanding, the Assembly resolves in A32-11 “that a universal safety oversight audit programme [shall] be established, comprising regular, mandatory, systematic

90 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, para. 4.3.1. 91 Ibid. 92 The ICAO is such a subject of international law. 93 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, para. 4.3.1. 94 See ibid., App B-6. 95 Riedi (2015), p. 182. 96 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, para. 4.6.2. 97 Huang (2009b), p. 70.

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and harmonized safety audits, to be carried out by ICAO (. . .).”98 That being said, it is reasonable to ask if ICAO can oblige a state to allow an external audit team to examine states’ compliance—especially during the on-site audit in Phase 2.99 As Huang points out, there had been many sceptic opinions, as follows.100 For instance, a part of states represented in the Council defined that: “The primary role of ICAO, as established in the Chicago Convention, is the adoption and amendment of SARPs. The Convention does not, in any way, give the Organization an executive function in ensuring compliance by States with the SARPs; the filing of differences is the explicit responsibility of the States. The development of a more robust safety oversight programme must respect these basic competencies.”101 China did not want ICAO to behave like a police in the field of safety102 and Senegal had the impressions that the mandatory nature of the audit is contradicting the principle of sovereignty.103 The Assembly has advised the states “to agree to audits to be carried out upon ICAO’s initiative, but always with the consent of the state to be audited, by signing a bilateral Memorandum of Understanding with the Organization, as the principle of sovereignty should be fully respected.”104 The USOAP CMA notes in this context that the USOAP “fully respects a sovereign State’s responsibility and authority for safety oversight, including its decision-making powers with respect to implementing corrective actions related to identified deficiencies.”105 Nonetheless, as Stimpson mentions, the necessity of states “political will” remains crucial to start and complete the USOAP,106 since the MoU is not binding. Huang outlines that the fact that all states does not refuse the audit power of ICAO without being constitutionally authorised “lies in the commitment of the entire international community to protect the safety of international civil aviation.”107 One can agree with this opinion to a great extent since firstly the states declare the

98

Assembly Resolution A32-11 (1998): Establishment of an ICAO universal safety oversight audit programme in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-100. 99 This refers to the on-site audits conducted in the second phase of the USOAP. 100 Huang (2009a), p. 78f. 101 ICAO Council, Working Paper C-WP/10832 (1998), “Safety Oversight Programme – Implementation in 1999–2001 Triennium” (Presented by Angola, Australia, Bolivia, Canada, Egypt, India, Indonesia, Mexico, Pakistan and Saudi Arabia), p. 1ff. 102 ICAO, Doc 9704-C/1122, C-MIN. 151/1-15, Council-151st Session, Summary Minutes with Subject Index, 1997, p. 94f. 103 Ibid., p. 97ff. 104 Assembly Resolution A32-11 (1998): Establishment of an ICAO universal safety oversight audit programme in: ICAO, Doc 10075—Assembly Resolutions in Force (as of 6 October 2016), 2017, p. I-100. 105 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, para. 2.6.1. 106 Stimpson (2002), p. 13,157. 107 Huang (2009a), p. 79.

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willingness to protect international safety with the signage and ratification of the CC. Secondly, states are obliged to certain principles pursuant to the CC. In reference to Article 12 and Article 37 of the CC, states shall collaborate to the highest degree to realise standardisation and harmonisation of rules, standards and procedures. However, this might not be the only reason. This is due to the fact that “the commitment of the entire international community” is not reflected in the results of the audits which are still catastrophic—both in case of states’ oversight, or the implementation of SARPs, and even in just notifiying deviations from Standards. The main reason is more likely to be another one: A state that does not participate in the auditing process has more to lose than a state that participates but concludes with poor results. In the first case, it would be blamed and shamed through the reporting power in front of all states. In this regard, states’ reputation would decrease, and the state could have economic disadvantages because other states could have the impression that this state consciously opposes safety and the audit process. In the second case, the state would have nothing to fear. ICAO will only use the enforcement measures as per the reporting power granted through Article 54 (j) of the CC and publish the results of this and all other states. Accordingly, the state knows that most of the Contacting States, and even Developed States, cannot demonstrate satisfactory compliance results. All Contracting States are thus sitting in the same boat. This example clarifies again that the enforcement through Article 54 (j), and in particular, only through the reporting of failures to carry out recommendation, is not sufficient to enforce ICAO’s SARPs.

5.1.4.4

Legal Effect of a Corrective Action Plan

ICAO distinguishes between findings and significant safety concerns. The latter applies to non-compliance with Standards set forth in the Annexes to the CC that result in an immediate safety risk. The former applies to non-compliances with all related ICAO provisions starting from the Articles of the CC, SARPs, PANS, and further guidance material. Apparently, ICAO has defined graded deficiency levels showing off that significant safety concerns are more critical and considered to be a level higher compared to findings. This is firstly illustrated by the fact that significant safety concerns are communicated to the state through a formal written notification.108 This is not the case for findings which are only posted in the USOAP online framework or included in the draft and final report.109 Secondly, it is illustrated by the wording of both terms.

108 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, Appendix B, no. 24. 109 Ibid., Appendix B, no. 29.

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With regards to the significant safety concerns, it is absolutely clear that non-compliance with Standards is addressed110 since the binding effect applies to them and Standards represent minimum requirements which are safety-critical. It is, however, unclear why a non-compliance with Standards and especially with Articles of the CC is also defined as a finding111 and consequently a level below the significant safety concern category. This question arises because a non-compliance with the Articles of the CC could represent an infraction to the Convention. In this case, not only the reporting of failures to carry out recommendations as per Article 54 (j) is concerned, but also the reporting of infractions as per Article 54 (j) and the reporting power according to Article 54 (k) of the CC112 are touched, if the state fails to take appropriate actions to resolve the deficiency within a reasonable time. However, the definition of the finding category does not mention as to whether the reporting of infractions to states (Article 54 (j)) as well as to the Assembly (Article 54 (k)) is also possible. In case of an infraction to the CC, immediate action would be necessary by the state which is required in the case of the classification of significant safety concerns (“short time frame”), but not obviously for a finding (“forty-five days”). Further, the inclusion of non-compliance with Articles in the finding category, in which also non-compliance with guidance material is manifested, implies wrongly that infringing Articles to the CC is not a significant concern. Therefore, it is recommended to upgrade non-compliances with the Articles of the CC to the category of significant safety concerns. Significant safety concerns should entail non-compliance with Articles of the CC and International Standards as these provisions are binding upon Contracting States. The audit process should primarily concentrate on this category. A non-compliance with the CC should immediately be resolved. A non-compliance with an International Standards should either be immediately resolved or notified as a deviation as per Articled 38 of the CC. The fact that the states are also audited in terms of non-compliances with Recommended Practices, PANS and further ICAO guidance material and international best-practices evinces that ICAO understands these provisions as necessary. However, similar to the aerodrome certification where states are required to certify quasi-binding Recommended Practices and relevant ICAO guidance material, ICAO also audits these mentioned non-binding provisions. ICAO defines for non-compliance with them findings and the state has to establish mitigations in the corrective action plan. This outlines that the binding effect of ICAO’s provisions is not consistent with the certification and auditing requirements. States are audited based on provisions that they are not bound to establish. ICAO should continue auditing the non-binding provisions, as compliance with them increases safety. However, ICAO should also emphasise that recommendations to findings of non-compliances can be opted-in like it is the case of the quasi-/non110

Ibid., p. 1–3. Ibid., p. 1–2. 112 The Council is then legitimated to report the infraction to the Assembly. 111

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binding provisions. If a state does not implement non-binding provisions, it should not be “blamed and shamed” through the reporting power of Article 54 (j) to the CC which is the basis of the procedure for transparency and disclosure. One might ask if a state is bound to implement corrective actions which are defined after arisen deficiencies. After identification of a finding, the state has to provide a corrective action plan within 45 days from the date of publishing the finding on the USOAP CMA online framework or from the date of notification of the finding draft final report.113 The state must then determine specific actions, associated implementation dates, and the responsible entity for the correction. In case no corrective action plan is provided, ICAO contacts the state, determines the reasons, and reports them to the Council.114 ICAO also gives feedback regarding the acceptability of any proposed corrective action plan. This is the case when the corrective actions do not adequately address the findings.115 ICAO notifies the states in case a significant safety concern is identified and provides a short time frame to address the issue.116 Should the state fail to resolve the significant safety concern, the non-compliance will be made available to all Contracting States through the USOAP CMA online framework.117 The situation is similar to the one described in Article 69 of the CC where ICAO gives recommendation after identifying unsafe circumstances at an aerodrome. Also, here, the state will not be considered as being guilty of an infraction to the Convention because it failed to implement the recommendations. However, the Council can inform the other Contracting States of the unsafe situation according to Article 54 (j). Again, the procedure for transparency and disclosure is used to motivate states to comply with the corrective actions. All provisions related to requirements of the corrective action plan are formulated in the MoU which has already been defined as non-binding. Accordingly, a binding effect of the corrective action plan cannot be derived.118 However, one might ask which entity has the right to interpret recommendations in the corrective action plan. The ICAO Assembly decided to publish all results of the Contracting States in form of a safety oversight audit follow-up report.119 Inter alia, the report illustrates the differences between ICAO Standards and national provisions.120 If the differences persist after publication of the final report, they are regarded as deviations as per Article 38 of the CC. This raised the question of how to proceed if the audit team assumes a deviation, but the state itself believes to have

113 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, Appendix B, no. 29. 114 Ibid., Appendix B, no. 29. 115 Ibid., Appendix B, no. 30. 116 Ibid., Appendix B, no. 28. 117 Ibid., para. 3.6.3. 118 Riedi comes to the same result in Riedi (2015), p. 185. 119 Kaienburg and Wysk (2018), p. 68. 120 In the following Riedi (2015), p. 185f.

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implemented the requirements correctly. The Council decided that ICAO interpretations take precedence. This might be questioned since only the states are empowered to notify differences as per Article 38 of the CC. The CC does not include a direct provision that allows the Council to interpret the Convention. Further, the Council has an administrative role and is not authorised to question notified differences to the Standards.121 Notwithstanding, the target of uniformity through adherence to Standards—governed in Article 37 of the CC—is not possible without a common understanding of the Standards. That said, a right is derived for the Council to decide in such case, since a common interpretation will lead to uniformity. This right of the Council can also be derived indirectly from Article 84 of the CC. The Council was granted here with the power to decide on a disagreement between parties on the interpretation of an Annex.

5.1.4.5

Establishing Compliance Starts with Appropriate Rulemaking

ICAO audits are an effective tool to reveal the amount of safety deficiencies in the Contracting States.122 However, ICAO faces challenges in addressing them effectively. The audit results that have been presented with regards to aerodromes derive many challenges worldwide. In case ICAO realises that a state is struggling to resolve any findings or significant safety concerns, or if the safety oversight has become worse, it might follow one of these approaches:123 “increase the monitoring of the State, provide or facilitate assistance, consider financial or technical aid, and/or reassess or monitor more closely existing technical assistance projects. As mentioned, often more technical assistance is provided.” The commenting lecture also calls for guidance and assistance for states facing challenges to implement Standards.124 The technical assistance policy of ICAO should focus on the effective and efficient implementation of Standards as well as the correction of safety deficiencies derived from the audits.125 Blumenkron mentions in this regard that repeating audits is “is a waste of precious financial resources which could be better invested in provision of assistance to states in need.”126 But one might ask if this type of assistance is effective given the financial constraints placed on ICAO.127 Further, the USOAP results have not significantly changed over the past years, although assistance had been given after every cycle. It

121

In the following ibid., p. 186. In the following Onidi (2008), p. 39f.; Huang (2009b), p. 69f. 123 ICAO, Doc 9735—Universal Safety Oversight Audit Programme—Continuous Monitoring Approach, 2011, para. 3.4.2. 124 Onidi (2008), p. 43. 125 See also ibid., p. 43. 126 Blumenkron (2009), p. 69. 127 Onidi (2008), p. 43. 122

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is not surprising that, for example, Ahmad, believes that the USOAP fails to achieve its purpose.128 The reason for the USOAP shortcomings might be reflected in the fact that USOAP relies during the whole process only on the procedure for transparency and disclosure. The reporting power as per Article 54 (j) is used in case a state would not participate in the USAOP, for publishing the results, and in case a state does not implement the corrective actions. However, it becomes apparent that the results did not change positively over the years, i.e. that the reporting power is not sufficient to enforce compliance. A new approach must evolve that neither relies completely on the aforementioned procedure for transparency and disclosure, nor on the provision of assistance every time a state is not able to implement the provisions, nor on the development of additional audit programs like APEX. Onidi recommends correctly that the Council should take decisive action in order to support safety.129 Based on this work, the legal process can be summed up as follows: ICAO develops regulation in the rulemaking process, states implement them into their national legal framework, aerodromes apply them, authorities certify aerodromes, and at the end, the state and the aerodromes are audited. The deficiencies are noticed during the USOAP process, but they are probably generated even before. One of the major obstacles for achieving global aviation safety is lack of compliance of the existing international legal framework.130 Therefore, the first step—namely the rulemaking process has to be discussed. Why do states and aerodromes experience these immense challenges to implement ICAO’s provisions? ICAO has focused till today on prescriptive requirements to develop minimum Standards.131 Notably, ICAO Annex 14 contains prescriptive Standards to a great extent. But there are also other ways how SARPs could be established that could have a positive effect on compliance and lead to more flexibility for states. A new approach should consider the performance and the needs of a state and an aerodrome.

5.2 5.2.1

Performance-Based Regulation ICAO’s Perspective

There are three types of rulemaking that ICAO defines to develop a Standard: Prescriptive Regulation, Performance-based Regulation, and Hybrid Regulation.132

128

Ahmad (2012), p. 83. Onidi (2008), p. 43. 130 Ahmad (2012), p. 85. 131 ICAO, Doc 9859—Safety Management Manual, 4th edition, 2018, para. 8.3.5.3. 132 ICAO ANC, Guide to the Drafting of SARPs and PANS, Final (Rev.1.5), 2015, para. 3.1ff. 129

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In order to explain what performance-based regulation is, one has first to clarify prescriptive regulation.133 Prescriptive Standards define how activities have to be conducted.134 They determine explicitly what has to be achieved and how it should be conducted.135 For instance, it could be defined which equipment has to be used or where a function should be performed.136 Normally, there is only one approach or solution to demonstrate compliance. The prescriptive approach is the best approach to achieve harmonised procedures among the Contracting States. This approach is limited to the basis of past experiences. This possibly can bring in safety risk. They often represent minimum requirements with the aim of compliance rather than management of safety risk. In addition, prescriptive Standards can limit innovation by not allowing the mitigation of the underlying safety risks in new and innovative ways.137 ICAO expects that compliance with prescriptive standards achieves the target level of safety.138 Often, prescriptive provisions are established after the occurrence of an accident. These Standards then represent lessons learned. Compliance with prescriptive regulation means to implement the regulation without any deviation. For example, Standard 3.5.1 prescribes that every code 3 and 4 runway, as well as every code 1 and 2 instrument runways, shall have a RESA.139 In this case, no further analysis or any justification has to be provided from the aerodrome operator or from the authority in this case.140 Every state has to enforce this rule as per Article 37 of the CC. ICAO manifested that there is an increased need to support innovative implementation approaches which shall improve efficiency and exceed safety.141 At this juncture, the performance-based approach arises. A performance-based SARP requires a defined performance or a desired outcome.142 It, however, leaves the method of achieving “that outcome up to the discretion of the regulated entity.” The method includes provisions on how a required performance could be achieved. A great flexibility shall be provided to the Contracting States here to allow the development of effective solutions that will meet the targeted performance.143 A

133

ICAO, Doc 9859—Safety Management Manual, 2018, para. 8.3.5.2. ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para. 3.2.1. 135 ICAO, Doc 9859—Safety Management Manual, 2018, para. 8.3.5.2. 136 In the following ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para. 3.2.1f. 137 Ibid., para. 3.2.2. 138 ICAO, Doc 9859—Safety Management Manual, 2018, para. 8.3.5.2. 139 ICAO, Annex 14—Aerodromes, Vol. I—Aerodrome Design and Operation, 8th edition, 2018, para. 3.5.1. 140 ICAO mentions in the following section service provider and not aerodrome operator. However, this also applies to aerodrome operator since they provide services. The term “aerodrome operator” is used because it is more specific. ICAO, Doc 9859—Safety Management Manual, 2018, para. 8.3.5.2. 141 Ibid., para. 8.3.5.3. 142 In the following ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para. 3.3.1ff. 143 Ibid., para. 3.3.2. 134

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service provider, in this case the aerodrome operator, must demonstrate that the desired outcome is achieved.144 Standard 9.10.3 in ICAO Annex 14 defines that “Suitable means of protection shall be provided to deter the inadvertent or premeditated access of unauthorized persons into ground installations and facilities essential for the safety of civil aviation located off the aerodrome.”145 The abovementioned Standard does not mention which suitable means of protection shall be provided. It describes the desired outcome, which is that no unauthorised person should access into ground installations and facilities through the provision of means of protection. Regulation that are defined in this way commit aerodrome operator to provide the necessary evidence to the authority that it complies with such a requirement.146 States must take into account how compliance can be demonstrated. That said, there is a need to provide guidance material or acceptable means of compliance to support regulative compliance.147 Standard 3.9.19 in ICAO Annex 14 stipulates rules for taxiways on bridges. “The width of that portion of a taxiway bridge capable of supporting aeroplanes, as measured perpendicularly to the taxiway centre line, shall not be less than the width of the graded area of the strip provided for that taxiway, unless a proven method of lateral restraint is provided which shall not be hazardous for aeroplanes for which the taxiway is intended.”148 The Standard requires an aerodrome operator to implement “a proven method of lateral restraint” and does not oblige to adhere to a defined method. However, the Standard implies that a safety assessment has to be conducted since the method “shall not be hazardous”. It would be the task of the competent authority to approve the results of the safety assessment which consequently may not be hazardous.149 Standard 3.9.19 outlines that the applicability of performance-based regulation can require aerodrome operators to consider a risk-based approach through conducting a safety assessment. One can accordingly say that the risk-based approach is an integral part of performance-based regulation. The ICAO Assembly initiated the idea of risk-based safety regulation in 2010 in order to promote more transparency of safety information.150 The USOAP CMA uses the “risk-based approach in order to measure and monitor safety oversight capabilities and to improve safety performance.”151 Sometimes, both terms are used in the same context as the “risk and performance-based approach.”152 The overall idea is to assure

144

ICAO, Doc 9859—Safety Management Manual, 2018, para. 8.3.5.6. ICAO, Annex 14—Aerodromes, 2018, para. 9.10.3. 146 ICAO, Doc 9859—Safety Management Manual, 2018, para. 8.3.5.9. 147 Ibid., para. 8.3.5.7. 148 ICAO, Annex 14—Aerodromes, 2018, para. 3.9.19. 149 ICAO, Doc 9859—Safety Management Manual, 2018, para. 8.3.5.9. 150 EASA, Annual Report, 2010, p. 1. 151 Blumenkron (2017), p. 60; ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, p. 6. 152 Finnish Transport Safety Agency (Trafi), Finnish Aviation Safety Programme, 2018, p. 12. 145

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compliance by considering risks that may arise as well as the active operational model.153 The third approach to formulate a Standard is the hybrid approach which allows the usage of both prescriptive and performance-based SARPs.154 Thus, a prescriptive text declares a minimum requirement that has to be fulfilled. However, a performance-based Standard is integrated into the provision to allow alternative means of compliance. It is important that in these cases the performance-based standard does not allow a lower level of safety compared to the required prescriptive requirement.

5.2.2

ACI’s Perspective

Equivalent to the risk-based approach of the ICAO USOAP CMA principle, also ACI supports the idea that aerodrome operator should have the flexibility to mitigate risks when introducing new provisions.155 ACI recommends that the prescriptive manner should not be used excessively. The international organisation supports the development of performance-based regulation. In 2018, ACI also recommended to reduce safety buffers in Annex 14 in case there is no improvement of the level of safety.156 In ACI’s opinion, design standards should be driven by a hazard analysis. In this analysis, the probability of occurrences and severity of consequences have to be considered. The reduction of safety buffers would increase the opportunities “to accommodate larger aircraft, minimise the need for operational restrictions and reduce the cost of construction of new, and expansion of existing, airports (. . .).” The basis for a regulative change should be a relevant safety assessment with consensus on its results. The aim should be to manage risks to As Low As Reasonably Practicable (ALARP) to avoid any accidents and consequently fatalities, injuries or significant damage. A clear intention of ACI to move from prescriptive regulation towards performance-based regulation can be derived.157

153

Ibid., p. 35. In the following ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para. 3.4.1. 155 In the following ACI, Policies and Recommended Practices Handbook 2016, 8th edition, 2016, Section 5.1, p. 79; ACI, Policies and Recommended Practices Handbook 2018, 9th edition, 2018, Section 5.1, p. 95. 156 In the following ACI, Policies and Recommended Practices Handbook 2018, 2018, Section 5.4, p. 96f. 157 See also ACI, Annual Report, 2017, p. 64; ACI, Annual Report, 2018, p. 16. 154

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5.2.3

231

EASA’s Perspective

Based on Article 100 II TFEU, European secondary law can be enacted. This is foreseen mainly through EU regulation rather than through directives.158 The Regulation (EC) 1592/2002159 established the European Aviation Safety Agency (EASA). EASA is an executive agency which develops certification specification for European aviation.160 The European States considered it as more effective to have a common legal framework for technical and operational requirements in the aviation field.161 The scope of responsibilities increased with the Regulation (EC) 216/2008162 and expanded lately further with the Regulation (EU) 2018/ 1139.163 Based on the aerodrome-related Regulation (EU) 139/2014,164 EASA establishes Acceptable Means of Compliance (AMC) as per ADR.AR.A.015, and Guidance Material (GM) as per Article 76 of the Basic Regulation (EU) 2018/1139. The responsibility to draft regulation and to enforce them moved from the national level to the European level.165 Nonetheless, the responsibility for certification and oversight of aerodromes remains in the hands of the sovereign states. National authorities have still discretion in the decision-making process. Flexibility and national solution shall be provided for aerodrome infrastructure that way. EASA distinguishes between performance-based regulation and risk-based oversight. The agency defines performance-based Regulation as an approach to concentrate on desired, measurable outcomes.166 Risk-based oversight is then determined as “A way of performing oversight, where planning is driven by the combination of

158

Schladebach (2006), p. 773ff. OJ No. L 240 of 7.9.2002, p. 1. 160 Schladebach (2018), p. 123. 161 Uva (2010), p. 62. 162 OJ No. L 79 of 19.3.2008, p. 1. 163 Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91; OJ L 212 of 22.8.2018, p. 1. 164 OJ L 44 of 14.2.2014, p. 1. 165 In the following Kessler (2015), p. 16. 166 EASA, A Harmonised European Approach to a Performance-Based Environment (PBE), 2013, p. 4. 159

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risk profile167 and safety performance;168 and execution focuses on the management of risk, besides ensuring compliance.”169 EASA has the opinion that instead of providing and establishing prescriptive regulation which defines what states either are allowed or not allowed to do, performance-based regulation defining a desired outcome should be enacted.170 In particular, the conduction of a safety assessment becomes very important. Not only the demonstration of an acceptable safety level is essential but also sharing alternative means of compliance.171 Besides, obligations and rights must be clearly defined. EASA has the perception that performance-based regulation will facilitate more safety.172 Among the advantages of performance-based regulation, EASA enumerates:173 an improved understanding of occurring risks and clearer development of the required mitigation measures, efficiency through a better targeting of resources, a better legislative adaptability and flexibility, a focus on the individuals in the aviation system and their role in safety. Performance-based regulation will lead to a more active involvement and interaction of all stakeholders in managing the system.

A risk profile is defined as “The elements of risk that are inherent to the nature and the operations of the regulated entity, this includes: the specific nature of the organisation; the complexity of its activities; the risks stemming from the activities carried out.” Definition in EASA, Practices for riskbased oversight, 2016, p. 10. 168 Safety performance means “The demonstration of how effectively can a regulated entity mitigate its risks, substantiated through the proven ability to comply with the applicable requirements; implement and maintain effective safety management; identify and manage safety risks; achieve and maintain safe operation. The results of past certification and/or oversight also need to be taken into account.” Definition contained in ibid., p. 10. 169 Ibid., p. 10f. 170 EASA, A Harmonised European Approach to a Performance-Based Environment (PBE), 2013, p. 5. 171 Ibid., p. 7.; In this regard, both the Basic Regulation (EU) 2018/1139,as well as the Implementing Rules in Regulation (EU) No 139/2014, refer to acceptable means of compliance. For instance, the ADR.AR.B.020 Record keeping in Regulation No 139/2014 obliges the competent authority to establish a system of record keeping for “the evaluation and notification to the Agency [EASA] of alternative means of compliance proposed by aerodrome operators and the assessment of alternative means of compliance used by the Competent Authority itself.” 172 Ibid., p. 9. 173 Ibid., p. 8. 167

5.2 Performance-Based Regulation

5.2.4

Challenge with Regard to Performance-Based Regulation

5.2.4.1

Relation Between Prescriptive and Performance-Based Regulation

233

Without any doubt, one can say that all major aviation organisation endeavour to introduce performance-based regulation in order to give states the possibility to implement innovative methods for safety assurance. ICAO and EASA have agreed that in order to improve safety a different regulatory approach is required.174 The transition to performance-based regulation shall focus on achieving the objectives of current requirements and consequently demonstrating compliance.175 Safety levels can this way become even higher as with the prescriptive approach. However, one could ask if performance-based regulation is going to replace prescriptive regulation completely. A complete replacement of prescriptive requirements with performancebased regulation appears improbable.176 A number of aviation stakeholders in Europe believe that also prescriptive requirements must be kept.177 They also have the perception that prescriptive requirements should be preserved and only be complemented with performance-based regulation.178 Similarly, ICAO believes that some SARPs have to be developed in prescriptive as well as in a performance-based manner in order to support alternative means of compliance.179 This would mean that on the one hand, an aerodrome operator that has the possibility to comply with rigid values could still comply with prescriptive regulation. On the other hand, an aerodrome operator that needs a more flexible approach could establish own means of compliance associated with its operation based on performance-based regulation. This is going to ensure operational flexibility as well as more efficient use of resources. Prescriptively written requirements will continue to be important in some cases when standardisation in compliance is targeted.180 An example of this are the requirements for runway markings. Practically speaking, regulation will never be fully prescriptive or fully performancebased.181

174

Drew (2017), p. 1. Ibid., p. 4. 176 Sønderby (2016), p. 19. 177 EASA, Opinion No 01/2015, related to A-NPA 2014-12—RMT.0613—13.3.2015, 2015, p. 4. 178 Ibid., p. 4; Sønderby (2016), p. 17. 179 In the following ICAO, Doc 9859—Safety Management Manual, 2018, para. 8.3.5.10; ICAO refers in this context to service provider and not directly to aerodrome operators. The content, however, applies to aerodrome operators as they represent provider of services. 180 Ibid., para. 8.3.5.12. 181 Ibid., para. 8.3.5.13. 175

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Proposal of a Definition for Performance-Based Regulation

An emerging challenge with respect to the terms “performance-based” or “riskbased” regulation is that the purpose and meaning is understood differently among aviation stakeholders.182 Different opinions regarding the meaning and right way of application exist even within the same stakeholder group. There are currently no common definitions.183 Even, the ICAO documents explain performance-based regulation by clarifying the difference to prescriptive regulation. However, there is no clear legal definition provided. This is seen as a major shortcoming with regards to implementing performance-based regulation.184 Many stakeholders cannot define what things like performance or risk-based provisions are.185 Although having the same content, EASA and ICAO do not have a common and agreed definition. ICAO’s definition comprises a negative definition connected to prescriptive regulation. EASA’s uses two terms “risk profile” and “safety performance” to explain both performance-based regulation and risk-based oversight. For many stakeholders terms like performance-based regulation, risk-based oversight, safety performance are unclear and misunderstood.186 Misunderstanding can thereby cause harm to the implementation of performance-based regulation. Given the fact that previous research paper called for the development of a common definition,187 this book proposes the following one: • Performance-based regulation defines a desired outcome. A service provider is required to conduct a (safety) assessment based on its operational mode and performance parameters, to derive safe and efficient methods to achieve the outcome, and to demonstrate compliance to a competent authority.

5.2.4.3

Implementation of Performance-Based Regulation

In 2014, EASA released a paper revealing the responses from the aviation community to the proposed implementation of performance-based regulation.188 Many commenters responded in this context by saying “that the discussion on ‘prescriptive’ versus ‘performance-based’ is of secondary importance while addressing the increased complexity, uniform interpretation and application of existing rules should be the main issue.” 182

In the following EASA, Opinion No 01/2015, related to A-NPA 2014-12—RMT.0613— 13.3.2015, 2015, p. 4. 183 Sønderby (2016), p. 26. 184 Ibid., p. 25f. 185 Ibid., p. 24. 186 Ibid., p. 26. 187 Ibid., p. 28. 188 In the following EASA, Opinion No 01/2015, related to A-NPA 2014-12—RMT.0613— 13.3.2015, 2015, p. 4.

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This opinion appears to be logic—keeping in mind the aforementioned ICAO USOAP results. There is only one of the eight audited areas which represents a compliance rate of over 75%.189 Aerodrome compliance represents the second-worst results (58.5%) after the subject of Aircraft incident and accident investigation (55.5%).190 Even, on states’ level more than 70% of the Contracting States have not developed comprehensive procedures to amend domestic civil aviation regulations in order to comply with amendments to the Annexes to the CC.191 The implementation of performance-based regulation should therefore not stop the enforcement of existing regulation. A clear binding effect coupled with the publication of a small but sufficient number of SARPs could increase compliance and worldwide safety. This approach would be better than providing great amounts of provisions that are not applied. This methodology would also be in line with ICAO’s principle for adopting SARPs. As ICAO’s policy intends to reduce the number of Standards and to focus on “Implementation of existing Standards”.192 Fewer but clearer provisions will require the review and reform of current provisions.193 Notwithstanding, the majority of stakeholders appreciate the objectives of performance-based regulation.194 They believe that it will be less effective to ensure a sufficient level of safety through the compliance with detailed technical or prescriptive Standards. A number of commentators recommended a smooth transition towards performance-based regulation. This is due to the fact the implementation of performance-based regulation will afford many resources. Further, a rapid transition could decrease international harmonisation. EASA agrees with a step-by-step implementation approach. The agency understands that training and oversight need to evolve during the implementation of performance-based regulation.195

5.2.4.4

Required Resources

ICAO states that more than 75% of the Member States do not have a system in place to recruit and retain sufficient qualified technical personnel.196 Even if they recruit qualified experts, they are not able to retain them. Lack of insufficient numbers of personnel of qualified inspectors can be the root cause for the identification of This applies to the area “airworthiness of aircraft” (AIR). See ICAO, Safety Report, 2018, p. 15; ICAO, Safety Report, 2019, p. 16. 190 ICAO, Safety Report, 2018, p. 15. 191 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.1.1.1. 192 ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, p. 1. 193 Onidi (2008), p. 43. 194 In the following EASA, Opinion No 01/2015, related to A-NPA 2014-12—RMT.0613— 13.3.2015, 2015, p. 4f. 195 Ibid., p. 4f. 196 ICAO, Universal Safety Oversight Audit Programme—CMA Results (Safety Report), 2016, para. 4.2.1.1. 189

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significant safety concerns.197 In this regard, states should also aim to establish a solid training policy. Currently, more than 35% of the states did not establish this. ICAO states that especially technical staff (inspectors) should be trained.198 This applies to on-the-job training, recurrent and advanced training. Limited financial resources represent the main obstacle to provide sufficient training.199 Requirements written in a performance-based way require regulators to have sufficient skills and expertise to assess the performance of a system.200 This is due to the fact that the results of a conducted safety assessment of an aerodrome operator have to be examined and approved which is not comparable to a compliance check of prescriptive regulation.201 In addition, performance-based regulation can influence enforcement of regulation.202 A non-compliance in respect of prescriptive provisions can be determined easily. For example, the runway width can be measured to prove compliance. As far as performance-based regulation is concerned, enforcement becomes more challenging.203 A service provider such as an aerodrome operator for instance could be able to show that a process is present (e.g. a hazard reporting system) but fails to prove the intended outcome (effectiveness of the hazard reporting system). There have to be inspectors from the authority that are trained concerning performance-based regulation.204 Therefore, performance-based regulation requires a shift in the way regulators and regulated organisations think and work.205 The question arises as to whether the transition to performance-based regulation should be postponed. The answer is no! It is the role of ICAO to show strength and to provide the states with efficient guidelines in form of acceptable means of compliance and guidance material on how performance-based regulation should be applied. At the moment, performance-based regulation is not satisfactorily supported by guidance material.206 Sønderby recommends developing more guidelines on how to generally deal with performance-based regulation.207 The efforts put into training and financial assistance should be shifted to developing more explicable guidance material. Since, it is not only about training the staff but also about giving them guidelines to conduct associated tasks successfully.208

197

Ibid., para. 4.2.1.2. In the following ibid., para. 4.2.2.1. 199 Ibid., para. 4.2.1.2. 200 ICAO, Doc 9859—Safety Management Manual, 2018, para. 8.3.5.9. 201 Ibid., para. 8.3.5.13. 202 Ibid., para. 8.3.5.14. 203 In the following ibid., para. 8.3.5.14. 204 Sønderby (2016), p. 25. 205 Drew (2017), p. 2. 206 Sønderby (2016), p. 23. 207 Ibid., p. 28. 208 Ibid., p. 28. 198

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It is also recommended for ICAO to develop mechanisms in order to gather relevant acceptable means of compliance that have been developed by the states itself. Because these experiences could be shared among the other states. Thereby, acceptable means of compliance should always reflect the complexity of regulation.209 The same also applies to the provisions of guidance material. A good approach is the definition of risk-based indicators that shall help to manage safety proactively.210

5.2.4.5

Definition of Key Areas for Performance-Based SARPs in ICAO Annex 14

Performance-based SARPs are rarely within ICAO Annex 14. ICAO Annex 14 is still based on prescriptive provisions in form of aerodrome design specifications. SARPs that are provided in performance-based manner are not marked or specifically outlined. Therefore, one has to get through all the single provisions to find them. A further crucial point for the development of performance-based regulation is to identify the main areas for which performance-based regulation is suitable.211 In this context, three recommendation can be made: Firstly, given the fact that many of the Contracting States are Developing States, financial means will be very limited in these states. It is therefore important to provide performance-based regulation for SARPs that are in need of high financial resources. Once flexibility is given to states here, compliance with more SARPs could be achieved. Secondly, there is a need to explore prescriptive SARPs that require lots of space. Compliance with requirements is not optional. Notably in terms of aerodrome infrastructure, there are cases in which there are insurmountable geographical or other physical problems.212 Inter alia, many states will not install a RESA due to topographical challenges. Here, a performance-based SARP could give the aerodrome operator the possibility to deviate from the prescriptive requirement by ensuring through a safety assessment that a shortened area is also safe. As stated, it will then be the task of the authority to approve aerodromes’ considerations. Thirdly, having said that only 58.5% of the Contracting States had efficiently implemented aerodrome provisions,213 ICAO should scrutinise key areas where many states do not comply with SARPs. A scrutiny could derive that there are common areas where many states would need more flexibility in order to comply. These key areas should be then approached, focusing on the feasibility of

209

Ibid., p. 17. Plos (2016), p. 26. 211 EASA, Opinion No 01/2015, related to A-NPA 2014-12—RMT.0613—13.3.2015, 2015, p. 5. 212 ICAO, Doc 9734—Safety Oversight Manual, Part A, The Establishment and Management of a State’s Safety Oversight System, 2006, para. 3.3.7.1. 213 ICAO, Safety Report, 2018, p. 15. 210

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establishing performance-based SARPs. For instance, the ACI APEX programme delivered 15 common gaps in the Latin & Caribbean area.214 ICAO could build on this and examine the most common gaps internationally. The ICAO rulemaking process entails the engagement of many experts from different states. The expert panels will have to decide which of the SARPs to provide in a performance-based manner and how these have to be defined. The challenge will not only be the development of SARPs for performance-based regulation but also to establish associated acceptable means of compliance and guidance material. This will help states to allocate their resources and to better transit to the new regulation form. The prescriptive SARPs should remain. In this context, it would make sense to distinguish within ICAO Annex 14 between the two types with regard to the format in order to outline when the state can opt to implement performance-based regulation—for instance through giving performance-based regulation 4 numbers and underlining them: X.X.X.X States should ensure that aerodrome operators implement a hazard reporting system. (performance-based) X.X.X A taxiway, other than an aircraft stand taxilane, shall be included in a strip. (prescriptive)

5.3

Proposals for the Implementation of Performance-Based Regulation

5.3.1

Runway End Safety Area (RESA)

5.3.1.1

Problem Description

Given the facts that firstly ICAO Annex 14 does not comprise many performancebased provisions, and secondly many Contracting States are—based on the USOAP results—not compliant with ICAO Annex 14, this section will provide proposals for the inclusion of aerodrome-related performance-based regulation. It is not aimed to provide the most optimal technical solution in this work but to highlight how performance-based provisions could be formulated. Subsequent flexibility shall give the states, and notably the aerodromes, a chance to comply to a greater extent to ICAO’s provisions. In this regard, it is essential to consider in which level of ICAO’s regulatory framework the different provisions may be located. This refers to ICAO Annex 14, PANS or any other guidance material in the ICAO Docs. The first topic for which the definition of performance-based provisions shall be discussed in the RESA. 214

ACI, APEX in Safety—Reference Document, 2018, p. 8.

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239

The purpose of a RESA is to reduce damage to aircraft that overruns or undershoots the runway envelope.215 Therefore, an additional area beyond the ends of the runway shall be provided. ICAO Annex 14, Chapter 3.5 documents the SARPs for a RESA. In this context, Standard 3.5.1 defines that a RESA has to be provided for Code Number 3 and 4 runways as well as for instrument runways for Code Number 1 and 2.216 Further, Standard 3.5.3 specifies that a RESA shall extend from the Runway Strip217 to a distance of 90 m.218 The subsequent Recommendation 3.5.4 determines that a RESA should extend to a distance of 240 m for code number 3 and 4 runways, 120 m for code number 1 and 2 runways (instrument), and 30 m for code number is 1 or 2 non-instrument runways.219 All these distances can be reduced if there is an arresting system in place.220 An arresting system is located at the end of a runway in order to decelerate an aircraft overrunning the runway.221 Further SARPs are made related to the strength, the slopes, and objects on the RESA. The Attachment, Section 10 also defines guidance for the application of a RESA. It is explained that objects that are or must be located in the RESA have to be frangible.222 In case the provision of a RESA is prohibitive, it is for example recommended to reduce the declared distances of a runway in order to have an extended area for the definition of a RESA.223 Moreover, information regarding arresting systems are provided. These systems could be effective to arrest aircraft overruns.224 The performance of an arresting system can be demonstrated through a validated system and should be based on the type and performance of the aircraft that are accommodated.225 The ADM Part I also discusses the provisions of a RESA. Apparently, the content is very similar to that one which is provided in ICAO Annex 14 and there is no significant supplementary material. The purpose of the RESA is mentioned as well as the design characteristics of a RESA.226 It is also explained how to handle obstacles in this area. In comparison to ICAO Annex 14, ADM Part I explains why 240 m are recommended for a RESA.227

215

ICAO, Annex 14—Aerodromes, 2018, para. 3.5.8. Ibid., para. 3.5.1. 217 Runway strip: A defined area including the runway and stopway, if provided, intended: (a) to reduce the risk of damage to aircraft running off a runway; and (b) to protect aircraft flying over it during take-off or landing operations. Definition in: ibid., p. I-8. 218 Ibid., para. 3.5.3. 219 Ibid., para. 3.5.4. 220 Ibid., para. 3.5.3f. 221 Ibid., pp. 1–3. 222 Ibid., para. 10.1. 223 Ibid., para. 10.2. 224 Ibid., para. 10.3. 225 Ibid., para. 10.4. 226 ICAO, Doc 9157—Aerodrome Design Manual, Part I—Runways, 3rd edition, 2006, para. 5.4.1. 227 In the following ibid., para. 5.4.7. 216

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It says that a study of the ICAO Aircraft Accident/Incident Data Reports (ADREP) conducted by ICAO derived that the distance of 90 m (Standard) would capture approximately 61% of runway overruns. The distance of 240 m (Recommendation) would contain 83% of the overruns. It is recognised by ICAO that some overruns will not all be covered by the 240 m RESA distance. Further, the ADM provides information concerning an arresting system which was developed in the United States. This system is entitled as Engineered Materials Arresting System (EMAS) and was introduced to many aerodromes. In case of an aircraft overrun, engineered materials are going to crush under the weight of the aircraft. Hence, energy is absorbed, and the aircraft comes to a stop sooner than without such a system.228 The ADM refers to other documents of the US FAA which specify requirements in a greater detail. PANS-Aerodromes lays down aspects that must be considered when a RESA is reviewed.229 In this context, aspects like hazards and the nature beyond the runway end, the level of traffic at an aerodrome, type of approach, location of runways and taxiways, aerodrome overrun and veer-off history, and many other issues shall be considered. Further, a long list of potential solutions is provided. The list includes inter alia the following aspects: reduction of operation during adverse weather conditions, improvement of the runway surface in a timely manner, upgrading visual and instrument aids, and a reduction of the declared landing distances in order to provide a RESA.230 The content in PANS-Aerodromes with regard to the RESA is vaguely formulated. It is not explained how a RESA should be reviewed. Given the fact that provisions in the PANS could be transferred to SARPs when becoming mature, one has to say that the included information should be clearer. A Contracting State must have the possibility to apply them without having interpretation problems. In regard to the potential solutions, the PANS does not even explain what the problem is. It is not clear whether the provided solutions shall reduce the risk of an overrun or shall help to establish a RESA. With regards to ICAO Annex 14 and the associated guidance material in ADM Part I, it appears that there is no big difference between the content. The SARPs in ICAO Annex 14 are prescriptive and define certain values in respect of RESA width and length that shall be provided. Similarly, the ADM Part I repeats these provisions and does not add much content to the establishment of a RESA through the provision of guidance material. Both documents specify that the length of a RESA can be reduced when an arresting system is provided. However, it is not defined how much an arresting system would affect the characteristics of a RESA. For instance, is it possible to shorten the length of a RESA with an arresting system by 20% or more or less? ICAO Annex 14 is silent on this issue.

228

Ibid., para. 5.4.16ff. ICAO, Doc 9981—PANS—Aerodromes, 2nd edition, 2016, para. 3.3f., p. I-4-App-9f. 230 Ibid., para. 3.3., p. I-4-App-10. 229

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According to ACI, approximately 70% of the aerodromes in the Latin & Caribbean Area could not provide a RESA.231 This means formally that these aerodromes have not an area in place which accommodates aircraft in case of an overrun. The regulatory situation does not enhance this situation. This is due to the fact that many uncertainties on the one hand and less flexibility on the other hand, are provided. An aerodrome operator is obliged to establish a RESA to reduce the damage to an aircraft which overruns a runway. The main question that remains open is: What can an aerodrome operator do when there is not enough space to provide a compliant RESA and when there are no financial means to purchase an EMAS?

5.3.1.2

Proposal of Performance-Based Regulation for a RESA

As mentioned, states can have challenges to provide the RESA due to the local topography. This for example is the case in Norway.232 Luftfartstilsynet, the Norwegian CAA, commissioned AEA Technology to carry out a safety assessment in order to develop aerodrome design regulation—in particular to establish requirements for a RESA. Up until that point, planning requirements were based on ICAO Annex 14. Due to special topographical conditions in the vicinity of Norwegian aerodromes, it was desired to improve the effectiveness of aerodrome regulation. Widespread interest supported the refinement approach of aerodrome planning requirements. Therefore, the performance-based approach for the definition of aerodrome design requirements was followed. It should enable a certain Target Level of Safety (TLS). Thereby, hazards were related to design features. A further rational behind this approach was to reduce costs and efforts required. Also, ICAO believes that sufficient space might be a problem, since it reveals that the first obstacle within a RESA might “be a road, a railroad or other constructed or natural feature.”233 A RESA should be an area which is free of obstacles, without high slopes, and with further advantageous technical criteria to reduce the probability and severity of damage to an aircraft when the aircraft overruns the runway end. The obligation to provide a RESA in Standard 3.5.1 in ICAO Annex 14 distinguishes between different Code Numbers which means also different runway lengths. However, there is no consideration given to operational needs and circumstances. One might compare a Code Number 3 runway with a length of 1200 m on which big and heavy aircraft land, with a Code Number 4 runway with 4000 m on which small aircraft are operating. Both runways would according to ICAO Annex 14 need exactly the same RESA which is not convincing since an overrun in the second case is less probable than in the first case. In the latter, it could also be possible that the likelihood of an occurring overrun is approximately nil. This is due to the fact that a

231

ACI, World Report, 6/2017, p. 21. In the following Eddowes et al. (2001), p. iii. 233 ICAO, Annex 14—Aerodromes, 2018, para. 10.1. 232

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small aircraft which does not require a long landing distance would have enough distance to stop the aircraft on a 4000 m long runway. Therefore, the definition of legal requirements for a RESA should be independent from the Code Number. These considerations lead to following performance-based Standard for a RESA: Standard 3.5.1.1: A RESA shall be provided when there is a probability of 1027 of an aircraft overrun or undershoot per movement. A safety assessment targeting the probability of an aircraft overrun and undershoot shall be conducted by considering the operational and infrastructural characteristics of the aerodrome. The safety assessment shall be based on the ICAO Aircraft Accident/Incident Data Reports (ADREP) and derive the necessity of a RESA. Note.— Guidance on how to set-up an aerodrome-related safety assessment based on the ADREP is defined in PANS-Aerodromes. Further, examples on how such study can be conducted are available in the Aerodrome Design Manual (Doc 9157), Part 1 – Runways. The Standard shall ensure that every aerodrome assesses the necessity of providing a RESA for one of its runways based on aerodrome-related operational considerations. The TLS of 1027 per movement is here included exemplary and was used in the introduced Norwegian RESA study.234 PANS-Aerodromes must then contain a methodology on how to conduct such assessment and in particular how the operational circumstances that exist at the aerodrome must be considered. Although the definition of a methodology is very important, it should not be included in ICAO Annex 14. Specific procedures that are too detailed are preferred in the PANS.235 ICAO should also determine in the PANS operational aspects that should be regarded like the runway length, accommodating aircraft types, movement rates, landing directions, and meteorological factors. Moreover, PANS should include in the attachment the complete and updated ADREP on which states and aerodromes should base their assessments on. The ADM Part I should contain examples of conducted safety assessments with regard to a RESA for different runways and operational types and give states a stepby-step guidance on how such an assessment has to be conducted. As a matter of fact, this document should also entail guidance for competent authorities on how to evaluate the assessment and the subsequent results of the aerodrome operator. Particularly, it should inform how the aerodrome and the authority have to react when there is a change to the aerodrome environment or to aerodrome operation which would impact the results of the safety assessments. Further, the ADM Part I should contain acceptable means of compliance that support both the aerodrome operator as well as the authority. It could include examples developed by ICAO as well as successfully conducted assessments by states.236 The ADM Part I would then

234

Eddowes et al. (2001), p. iv. ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para. 1.4.2.1. 236 Like for example, the studies conducted for the Norwegian CAA. 235

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fulfill its purpose which is the technical guidance and amplification of SARPs and PANS.237 The dimensions of a RESA should be as follows: Standard 3.5.3.1: The length of a RESA shall be sufficient to capture 61% of all runway overruns. The implementation of an arresting system reduces the length by 30%. Recommendation 3.5.4.1: The length of a RESA should be sufficient to capture 83% of all runway overruns. The implementation of an arresting system reduces the length by 30%. Standard 3.5.5.1: The width of a RESA shall be sufficient to capture 61% of all runway veer-offs at the end of a runway. Recommendation 3.5.6.1: The width of a RESA should be sufficient to capture 83% of all runway veer-offs at the end of a runway. Instead of defining prescriptive values (90 m and 240 m) for the lengths of a RESA, a specific outcome is provided now. The percentages are derived from the ADM Part I. The provision of a desired percentage will lead to different RESA dimensions for different runways which makes sense since operation differs at every aerodrome and consequently also the risk of an overrun or undershoot is not the same. The introduced performance-based SARPs should also define how an arresting system influences the considerations. The value of 30% is randomly chosen. ICAO has to review how such a system could influence the envelope of a RESA. This should also be provided in the ADM Part I for different systems. The proposed performance-based SARPs shall not replace the actual prescriptive regulation but shall complement them to give states that face challenges to provide the 90 m and 240 m a possibility to deviate safely and to be conform. The prescriptive SARPs can remain and be implemented as minimum requirements by states that do not have any problem in providing this area.

5.3.2

Jetblast

5.3.2.1

Problem Description

Jetblast is the exhaust that emanates from an engine in form of strong wind.238 It is generated through the air flow and exhaust gas which develop behind jet engines. It can represent a limiting factor to operations on the apron. Jetblast can cause harm to

237 238

ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para. 1.4.4. CASA, Chapter 7—Design Standards for licensed Aerodromes, 1999, pp. 7–55.

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persons and damage to equipment, vehicles, and aircraft.239 It effects all areas on the aerodrome where operations are foreseen. Potentially, jetblast can lead to loose objects being thrown for great distances.240 An area of a considerable distance behind an aircraft could be jeopardised by jetblast.241 Hence, jetblast hazards must be put under considerations when the manoeuvring area of an aerodrome is planned. As an example, in 2015, a Boeing 747-8 turned into an aircraft stand at Frankfurt Airport.242 Two busses located in a jetblast affected area were hence damaged. Further, passengers were injured. Currently, there are no international regulations that bind a state or an aerodrome operator to consider jetblast hazards during aerodrome planning—neither prescriptive nor performance-based regulation are established. There is only one note in the Appendix of ADM Part II that defines “[j]et blast velocities above 56 km/h are considered to be undesirable for personal comfort or for the operation of vehicles or other equipment on the movement area.”243 It is also recommended to install jetblast fences which are “capable of braking the initial jet blast to uncritical velocities of the order of 56 km/h.”244 Further information is not provided by ICAO. ICAO Annex 14 does not list any SARPs laying down requirements regarding jetblast consideration for aerodrome planning. On national basis attempts are made in this regard. In Australia, the critical threshold velocity of 56 km/h (mentioned in ADM Part II) is not defined. However, it is inter alia stated that personnel working in the vicinity of an aircraft should not be subject to a critical velocity of 80 km/h.245 In the UK, it is only mentioned that jetblast must be taken into account.246 The US FAA defines that wind velocity greater than 30 mph (48 km/h) can lead to loose objects being thrown away and damage to objects and injury to persons. Even gust exceeding 20 mph (31 km/h) may represent a danger.247 Engine thrust is indicated through three different levels: idle thrust, breakaway thrust, take-off thrust.248 At least idle thrust must be considered on areas were aircraft operate. Additionally, breakaway thrust249 is the thrust level that must be 239

Melber-Wilkending (2004), p. 152. ICAO, Doc 9157—Aerodrome Design Manual, Part II—Taxiways, Aprons and Holding Bays, 4th edition, 2005, p. APP 2-1. 241 CASA, Chapter 7—Design Standards for licensed Aerodromes, 1999, pp. 7–55. 242 German Federal Bureau of Aircraft Accident Investigation (BFU), Investigation Report BFU 15-1075-5X, 2015, p. 1. 243 ICAO, Doc 9157—Aerodrome Design Manual, Part II—Taxiways, Aprons and Holding Bays, 2005, p. APP 2-1. 244 Ibid., para. 4, p. APP 2-1. 245 CASA, Chapter 7—Design Standards for licensed Aerodromes, 1999, pp. 7–55. 246 UK CAA, CAP 642—Airside Safety Management, 2018, p. 85. 247 FAA, Advisory Circular AC 150/5300-13A, 2012, Appendix 3, p. 241. 248 In the following ICAO, Doc 9157—Aerodrome Design Manual, Part II—Taxiways, Aprons and Holding Bays, 2005, p. APP 2-1. 249 Breakaway thrust is the thrust that gets the aircraft moving. 240

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considered for the design of terminal buildings, aprons and taxiways. Velocities for these thrust levels are provided by the aircraft manufacturer in the Airplane Characteristics For Airport Planning (ACAP) document which is developed for most aircraft types.250 Thereby, diagrams illustrate at which distance a specified jetblast velocity can be expected. By comparing these diagrams between the different aircraft manufacturers, two substantial aspects become apparent: • First, aircraft manufacturer base different conditions for which breakaway thrust is measured. This becomes apparent by reviewing two modern aircraft types of Boeing and Airbus that can be compared due to their size: Boeing 787 and Airbus A350. – Boeing calculates the breakaway thrust and consequently the jetblast contour lengths from computer data under following conditions: standard day conditions,251 sea level, no wind, 0% and 1% slope of the surface underground, one specific engine type, Maximum Takeoff Mass and Maximum Landing Mass, one and two operating252 engines.253 – Airbus has a different approach to determine jetblast contour lengths and considers: standard day conditions added by 15  C, sea level, no wind, 0% and 1.5% slope, different engine types, information only for Maximum Takeoff Mass, one and two operating254 engines.255 • Second, the aircraft manufacturers submit different velocities in their ACAPs. Boeing provide for the Boeing 787-800 distances for the jetblast velocities of 56 and 80 km/h,256 whereas Airbus defines for its Airbus A350-900, velocities of 54, 108, and 166 km/h.257 There is no clarity concerning the velocity threshold that represents a harm to persons, equipment and aircraft. Besides, there is no agreed common baseline defining under which circumstances jetblast contour lengths should be measured. Additionally, the provided jetblast contour lengths are provided by Boeing and Airbus for a static airplane.258 This is not realistic, since the aircraft will be moving

250

ICAO, Doc 9157—Aerodrome Design Manual, Part II—Taxiways, Aprons and Holding Bays, 2005, p. APP 2-2. 251 Standard day defines a temperature of 15  C for sea level (altitude of 0 m). 252 Boeing does not define how much percent of the maximum takeoff thrust is required to break away either for one or two operating engines. 253 Boeing, ACAP—B787, 2018, p. 6-3f. 254 Airbus defines 11% of maximum takeoff thrust if two engines are operated and 22% of maximum takeoff thrust if one engine is operated. 255 Airbus, ACAP—A350, 2018, section. 6-1-3, p. 2ff. 256 Boeing, ACAP—B787, 2018, p. 6-3f. 257 Airbus, ACAP—A350, 2018, section. 6-1-3, p. 2ff. 258 Boeing, ACAP—B737, 2013, p. 409; Boeing, ACAP—B787, 2018, p. 6-1; Airbus, ACAP— A350, 2018, section. 6-1-0, p. 1.

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after applying breakaway thrust and therefore pulling the contour length with it. Static considerations will derive conservative lengths.

5.3.2.2

Proposal of Performance-Based SARPs for Jetblast Hazards

There is a gap in international regulation. Although, the jetblast hazard is safetycritical, there are no associated SARPs. States define their own procedure without a harmonised and standardised baseline. This is against the purpose of ICAO publications which aim “to promote the fulfilment of the aims enunciated in the preamble and Article 44 of the Convention on International Civil Aviation.”259 It is the role of ICAO to be active here and to promulgate efficient and safe SARPs. A possible international solution through performance-based regulation shall be proposed. However, the proposal of a regulative introduction cannot start with ICAO Annex 14. It must start with ICAO Annex 8 (Airworthiness of Aircraft), in which provisions for aircraft components—e.g. engines are made. This is due to the fact that it is important to build responsibilities of aerodrome operators on a solid and common basis. All aircraft manufacturers have to provide the same basis of information and content. As a consequence, the following points have to be first defined uniquely: conditions under which breakaway thrust is determined and definition of a critical jetblast velocity. It makes sense to define prescriptive provisions for these aspects, since standardisation and harmonisation are targeted in the first instance. The following definition should be included in the definition part of ICAO Annex 8: Breakaway thrust is the level of thrust needed to initiate aircraft taxi movement260 under following conditions: MTOM, sea level, no wind, standard day, dynamic airplane, no slopes, all available engines operating, critical engine type. The following prescriptive rules are proposed: Standard X.X.X Aircraft manufacturer shall provide the length of a jetblast contour behind the aircraft for the velocities of 56 km/h, and 80 km/h. These shall be provided for the three thrust levels: idle thrust, breakaway thrust, and take-off thrust. Standard X.X.X Aircraft manufacturer shall provide tables defining how the following circumstance influence the associated distances: slopes, wind, aircraft mass, number of operating engines. After having enforced these provisions, it is possible to implement performancebased SARPs for aerodromes since a resilient and reliable basis is available. It is 259

ICAO, Doc 7231—ICAO Publication Regulation, 11th edition, 2009, Article 1 a), p. 1. Definition is based on ICAO, Doc 9157—Aerodrome Design Manual, Part II—Taxiways, Aprons and Holding Bays, 2005, p. APP 2-1.

260

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worth noting that the inclusion of the velocities 56 km/h and 80 km/h is exemplary. However, it has to be defined which velocities would impact persons, equipment and aircraft negatively. Appropriate definitions for idle and takeoff thrust comprising the conditions under which the jetblast contours shall be measured, should also be provided. Performance-based regulation is suitable for the jetblast problem because there are different infrastructural and operational means to mitigate the jetblast risk. Further, the types of aircraft operating at an aerodrome will differ. Through flexibility regarding the introduction of these measures every aerodrome operator will have the chance to establish sufficient means of protection. The following performance-based SARPs can be proposed: Standard X.X.X.X Aerodrome operator shall assess jetblast hazards on areas of the movement area where persons, vehicle, equipment or aircraft are exposed to jetblast and shall establish measures to prevent the risks of the breakaway jetblast velocity of 56 km/h. Recommendation X.X.X.X Aerodrome operator should assess jetblast hazards on areas of the movement area where persons, vehicle, equipment or aircraft are exposed to jetblast and should establish measures to prevent the risks of the breakaway jetblast velocity of 80 km/h. Note.— Guidance and examples on how to set-up an aerodrome-related jetblast assessment are available in Aerodrome Design Manual (Doc 9157) Part II – Taxiways, Aprons and Holding Bays. PANS-Aerodromes entails a set of operational and infrastructural measures that can be implemented to reduce the jetblast risk. Both performance-based provisions define a desired outcome but leave the methodology open. The Recommended Practice is an additional regulatory request which would make operation at the aerodromes safer.261 However, even with the implementation of the Standard, risks are reduced and compliance is ensured. States that need assistance to fulfil this obligation are referred to the PANS-Aerodromes and to the ADM Part II. PANS-Aerodromes could comprise in this context infrastructural and operational measures and procedures to reduce the risks. A measure could be the restriction of an aircraft type on an affected area. Once these provisions become mature, they could be transferred to SARPs.262 PANS-Aerodromes should also contain a methodology on how to assess jetblast on movement areas. The ADM Part II can then comprise examples of conducted cases and technical guidance for authorities explaining how to approve safety assessments conducted by the aerodrome operator.

261

The 80 km/h is faster than the 56 km/h velocity. Nevertheless, 56 km/h velocity extends to a longer distance from the aircraft and is therefore more critical. 262 ICAO ANC, Guide to the Drafting of SARPs and PANS, 2015, para. 1.4.2.1.

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Further Application Areas for Performance-Based Regulation

The essence of this chapter has been to outline that non-compliances should not only be addressed by more training. ICAO’s regulative model concerning aerodromes has to be more flexible and dedicated to the circumstances and challenges of the states and their aerodromes. Both, performance-based regulation, as well as prescriptive regulation, will have an essential role in the rulemaking process. Depending on the topic, there can be only prescriptive, only performance-based SARPs, and in most cases both types standing together complementing each other. This enables states to adhere to the minimums specification or to implement a new set of measures. This shall guarantee the demanded “smooth transition”. Beside the SARPs that are not implemented by the states, ICAO should also consider safetycritical issues that are currently not sufficiently covered, for instance, jetblast hazards. Safety-critical topics should be immediately tackled with the development of relevant SARPs. As a matter of fact, there are also cases in which not only ICAO Annex 14 is concerned but also other associated Annexes must be regarded. This is especially due to the fact that aerodrome planning is an overarching topic and not limited to responsibilities of an aerodrome operator. This is depicted by the fact that many stakeholders like Air Navigation Service Provider or aircraft operators interact at an aerodrome. The introduction and transfer to performance-based regulation will consequently need more aviation safety research.263 It could be evidenced that performance-based regulation is suitable in cases where either the aerodrome operation is affected, or the local circumstances have to be regarded. As far as the operation of the aerodrome is concerned, facts like accommodating aircraft categories, actual capacity of the aerodrome, traffic density, and flight operations have to be considered. Local circumstances comprise facts like the topography, aerodrome layout, weather. That said, there are many topics which could be scrutinised for their suitability for performance-based regulation. For example, Standard 9.8.1 obliges the provision of a Surface Movement Guidance and Control System (SMGCS) at an aerodrome.264 An SMGCS provides control and regulation of aircraft, ground vehicle and personnel on the movement area of an aerodrome.265 It comprises measures and procedures to prevent collisions and to ensure efficient traffic flow. The SMGCS Manual defines that the provision of an SMGCS should depend on the visibility conditions and the traffic density.266 Apparently, there is a contradiction between ICAO Annex 14 where it is prescriptively prescribed to provide a SMCGS and the associated SMGCS Manual in which states and aerodromes are informed that operational 263

EASA, Opinion No 01/2015, related to A-NPA 2014-12—RMT.0613—13.3.2015, 2015, p. 16f. ICAO, Annex 14—Aerodromes, 2018, para. 9.8.1. 265 ICAO, Doc 9476—Manual of Surface Movement Guidance and Control Systems (SMGCS), 1st edition, 1986, p. 1-1. 266 Ibid., para. 1.4.1. 264

References

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aspects have to be considered when deciding on the implementation of a SMGCS.267 As a consequence and based on the formulation in the SMGCS Manual, one can say that the provision of an SMGCS might not be necessary in all circumstances—i.e. it could be too demanding to require an implementation at all aerodromes. Here, a performance-based SARP requesting the state to investigate whether such a system is necessary or not would make sense. A further significant topic which should be regarded for performance-based regulation is the management of change. This topic comprises inter alia aerodrome development projects that could have an effect on the infrastructure and operation of an aerodrome. Aerodrome development project will be often separated into different phases and it must be ensured that every phase is safe,268 and does not impact on-going aerodrome operation negatively. Safety assessments for each phase will derive infrastructural and operational requirements through the identification of hazards and the analysis of risks.269 ICAO Annex 14 does not contain SARPs that thematise the management of change at an aerodrome. However, the Annex is referring to the PANS-Aerodromes.270 PANS-Aerodromes contains a number of provisions for change management at aerodromes that are already formulated in a performance-based way.271 It says “(. . .) aerodrome operators should have in place procedures to identify changes and to examine the impact of those changes on aerodrome operations.”272 The procedure is in this context not defined, whereas the target of the provision which is the identification of changes to aerodrome operation is defined. It is recommended to shift the related provisions for change management to ICAO Annex 14 due to their importance for aerodrome development projects and to formulate SARPs for them.

References Abeyratne R (2014) Law and regulation of aerodromes. Springer, Cham Ahmad T (2012) Achieving global safety in civil aviation: a critical analysis of contemporary safety oversight mechanisms. AASL 37:81–124 Albisinni FG (2016) The rise of global standards: ICAO’s standards and recommended practices. IJPL 8:203–231

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The information in the SMGCS Manual is written in a performance-based way, as it leaves the methodology open and defines that operational factors have to be considered when providing an SMGCS. 268 UK CAA, CAP 760—Guidance on the Conduct of Hazard Identification, Risk Assessment and the Production of Safety Cases, 2010, Chapter 1, para. 1.1. 269 Ibid., Chapter 1, para. 1.5. 270 ICAO, Annex 14—Aerodromes, 2018, para. 1.4.4, Note 2. 271 ICAO, Doc 9981—PANS—Aerodromes, 2016, p. I-2-11f. 272 Ibid., para. 2.4.4.1.

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Bartsch RIC (2016) International aviation law: a practical guide. Ashgate, Surrey Behnke P (2012) Accredited training for airport management: the ACI/ICAO global AMPAP programme. JAM 6:191–194 Blumenkron J (2009) Implications of transparency in the International Civil Aviation Organization’s Universal Safety Oversight Audit Programme. AASL 34:31–70 Blumenkron J (2017) International safety requirements. In: Dempsey PS, Jakhu RS (eds) Routledge handbook of public aviation law. Routledge, New York, pp 33–63 Drew C (2017) A performance based environment – what does this mean for the aviation community?. White Paper, Baines Simmons Limited Eddowes M, Hancox J, MacInnes A (2001) Final report on the risk analysis in support of aerodrome design rules. Report produced for the Norwegian Civil Aviation Authority, AEA Technology plc, Cheshire Huang J (2009a) Aviation safety and ICAO. Kluwer Law International, Alphen aan den Rijn Huang J (2009b) Aviation safety, ICAO and obligations erga omnes. CJIL 8:63–79 Kaienburg N, Wysk P (2018) Die Bindungswirkung von ICAO-Vorschriften. ZLW 67:38–86 Kessler G (2015) Safety at regional airports in Europe: regulatory aspects. JAM 9:15–21 Kirchner S (2010) Effective law-making in times of global crisis - a role for international organizations. GoJIL 2:267–292 Leloudas G (2003) Legal aspects of aviation risk management. McGill University Libraries, Montréal Melber-Wilkending S (2004) Aerodynamic analysis of Jet-Blast using CFD considering as example a Hangar and an AIRBUS A380 configuration. In: Rath HJ, Holze C, Heinemann HJ, Henke R, Hönlinger H (eds) New results in numerical and experimental fluid mechanics V: Contributions to the 13th STAB/DGLR symposium Munich, Germany 2002. Springer, Berlin, pp 152–159 Milde M (1994) The Chicago Convention - are major amendments necessary or desirable 50 years later. AASL 19:401–452 Onidi O (2008) A critical perspective on ICAO. Air Space Law 33:38–45 Piera A (2016) Designing the legal form of a global aviation market based measure. CCLR 2:144–152 Plos V (2016) Methodology for risk-based indicators implementation. MAD 4:23–26 Quinlan M, Gregson S, Hampson I, Junor A, Carney T (2016) Supply chains and the manufacture of precarious work: the safety implications of outsourcing/offshoring heavy aircraft maintenance. EJICLS 5:1–30 Riedi S (2015) Die technischen Normen der Internationalen Organisation für Zivilluftfahrt (ICAO): Völkerrechtliche Bedeutung und Umsetzung der Standards, Recommended Practices und PANS ins schweizerische Recht. Stämpfli, Bern Schladebach M (2006) Europäisches Luftverkehrsrecht: Entwicklungsstand und Perspektiven. EuR 41:773–793 Schladebach M (2018) Luftrecht, 2nd edn. Mohr Siebeck, Tübingen Shelton D (2009) Soft law. In: Armstrong D (ed) Routledge handbook of international law. Routledge, New York, pp 68–80 Sønderby K (2016) How can aviation regulators retain effectiveness in a performance-based environment?. Master Thesis, Lund University Stimpson EW (2002) Meeting the global challenges: an ICAO update. IALP 4:13151–13166 Stimpson EW (2003) ICAO: recent accomplishments and challenges ahead. IALP 10:13251–13278 Truxal S (2011) The ICAO assembly resolutions on international aviation and climate change: an historic agreement, a breakthrough deal and the Cancun effect. Air Space Law 36:217–242 Uva RS (2010) EASA’s new fields of competence in the certification of aerodromes. JAM 5:60–71 Weber L, Jakob A (1998) Activities of the International Civil Aviation Organization (ICAO). AASL 23:321–342

Chapter 6

Final Results

6.1

Executive Summary

An aerodrome is strategically, economically, as well as socially an essential infrastructural element of a state. Many aerodromes worldwide face operational constraints due to limited capacity. The solid growth in international air transport motivates states to invest in either aerodrome expansion or new development projects. Aerodrome planning can be treated from a technical, an economical, or an organisational perspective. Notwithstanding, there is a legal framework above all disciplines. States have agreed through the Chicago Convention to provide the ICAO with implied powers in order to develop Standards and Recommended Practices. They target safety, efficiency, and regularity of international aviation. Compliant aerodrome planning has thus a decisive influence on aerodrome safety. Currently, over 40% of ICAO’s Contracting States do not comply with legal requirements for aerodrome planning. Besides, sufficient safety oversight is also not established. An in-depth discussion of legal questions and challenges regarding international requirements for aerodrome planning is therefore necessary. I. Congestion, non-compliance, and a high rate of accidents and incidents in their vicinity—aerodromes are legal and safety-critical hotspots. In Chap. 2, the development of international aerodrome planning during the first half of the twentieth century has been analysed. International aviation law was necessary because aircraft were able to cross borders. As a consequence, this affected legal aspects concerning safety and national security. Even before the Chicago Convention was signed, states had established legal requirements for aerodrome planning within multilateral treaties. In 1918, there was the first international demand for developing characteristics of landing areas within the next international convention. This target was realised in the Paris Convention of 1919. The Convention developed the idea of firstly establishing an international organisation to © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2021 C. Salih, International Aviation Law for Aerodrome Planning, https://doi.org/10.1007/978-3-030-56842-9_6

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deal with legal aspects of international aviation, and secondly defining technical requirements in annexes to a convention. These principles represent cornerstones for the development of further international aviation law treaties in the twentieth century. The content of these treaties is strongly based on the provisions of the Paris Convention. For instance, all following treaties divided aerodromes into aerodromes for international and aerodromes for national air traffic. This rule was manifested by the Paris Convention. Due to the technical capabilities of aircraft, treaties before 1944 applied to certain regions and not on a worldwide basis. Annex D of the Paris Convention defines many important legal requirements for aerodromes. These requirements can be allocated to the following categories: Infrastructure, Operation, Administration and Organisation, Economy. In addition, national legislation has been reviewed to analyse whether national governments have complied with the Paris Convention of 1919. France and Italy signed and ratified the Treaty. In both states, the national aviation legislation was in full compliance with the requirements for aerodrome planning laid down in the Paris Convention. Although Germany has not acceded to the Paris Convention, Article 319 of the Treaty of Versailles obliged Germany to take measures to ensure compliance with the Paris Convention. An analysis of Germany’s regulation at that time has clarified that Germany applied the international requirements of the Paris Convention. The same refers to other states that adhered to the provisions of the Paris Convention of 1919 but did not accede the Convention like the USSR. The aim was to establish nationally uniform aerodromes. In all those states, it is not reported that these states had to deal with heterogeneously built aerodromes. The national aerodrome regulations entailed requirements related to the following categories: National Aerodrome Categorisations, Roles and Responsibilities at an Aerodrome, Aerodrome Certification, Obstacles in the Vicinity of Aerodromes, Specific Aerodrome Facilities. The United States of America did not accede to the Paris Convention, although it had played a significant role in its creation. There was no national or federal act that included the provisions of the Paris Convention. The United States did not adhere to those provisions, and further did not provide any similar binding requirements. This shortcoming is considered to be one of the reasons why US aerodromes were not uniform nationwide which was a significant problem at that time. The inconsistency applied to both the technical characteristics as well as to the way these aerodromes have been managed and overseen. Aerodrome Planning requirements were only published by local interests and the Army without having any binding effect. The target of defining international requirements for aerodrome planning is to achieve standardisation as well as uniformity. Both ingredients are crucial to achieving aerodrome safety. Adherence to international aviation law has a positive impact on the development of technically homogenous aerodromes. It is therefore indispensable that aerodrome planning has to be regarded as a national concern and regulated by a responsible authority of the state.

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II. The role of the Paris Convention of 1919 is underestimated, it laid down many principles that are still relevant for aerodromes. The Chicago Convention of 1944 represents the umbrella of international aviation law and entails provisions for aerodrome planning in its Articles as well as in the draft Annexes. The CC enables the publication of technical provisions, established by the ICAO, and sets rules states have adhered to—although they did not develop them. However, there is still uncertainty related to the legal status of SARPs. Standards and Recommended Practices have to be analysed separately since the CC distinguishes between both terms. A first look at the decisive Articles 37 and 38 reveals that on the one hand there is no absolute binding effect of the Standards and on the other hand an analogy regarding the binding effect of Articles cannot be transferred to the Annexes. This is due to the fact that there is no regulative gap and SARPs are governed by both Articles. The binding effect of SARPs has been scrutinised based on the interpretation rules of Articles 31 and 32 VCLT. In result, states are obliged to adhere to Standards as per Article 37. If compliance is not possible notification as per Article 38 is binding. Recommended Practices do not have the same binding effect as Standards, but they are also not completely non-binding because they influence the objectives of the Convention, are located in the same way as Standards in the Annexes pursuant to Article 54 (l) and undergo the same approval process pursuant to Article 90. Therefore, the principle of quasilaw has been applied to Recommended Practices. Further, SARPs are only binding for aerodromes when the provisions have been integrated into domestic law, as the Annexes are not part of the CC. The analysis of aerodrome-related Articles of the CC derived that uniform conditions as per Article 15 are often disregarded, and foreign aircraft are not treated the same as national aircraft. Moreover, the obligation of uniform aerodrome conditions does not only have an economic and non-discriminating nature but also reveals technical facets. Aerodromes shall be open under uniform technical conditions, as well. It was questioned as to whether the CC ensures safe construction, maintenance and operation of international aerodromes. The examination of the Articles 69–75 reveals that the CC does not provide the ICAO with the required powers to exclude aerodromes that are not operated safely from serving for international air traffic. The CC does also not regulate when the ICAO has to consult states in case their aerodromes are deemed unsafe. Although the establishment of aerodromes in compliance with SARPs is defined in the binding Article 28, it is recognised that states can deviate from this obligation through Article 38 and use other guidelines which could be unsafe. States can construct and operate unsafe aerodromes because unreasonable deviation from SARPs is not considered as a treaty breach. From a legal aerodrome perspective, a comparison was also drawn between the Paris and Chicago Convention. The Paris model has more advantages compared to the Chicago model. The main reason for this is that the Annexes to the Paris Convention had a clear binding legal identity. Safe aerodrome construction and operation is ensured that way. Further, amendments are adopted on a more democratic basis by the plenary assembly and not only by a council.

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In addition, the research assessed whether it is necessary to amend the Chicago Convention 75 years after its development. Both opinions against and in favour of a profound amendment could be derived from jurisprudence. A profound amendment to the CC is endorsed. This is due to the fact that there should be a clear legal identity with regard to the binding effect of SARPs. In addition, aerodromes should not be built or operated under guidelines other than those promulgated by the ICAO except when these are considered as safe. Only in this case the targets of the CC manifested in the Preamble will not be infringed upon. In this context, proposals for an amendment of the Articles 37, 38 and 69, 70 have been provided. III. The twenty-first century should witness a profound amendment to the Chicago Convention based on flexibility options provided by European aviation regulation. ICAO’s regulatory framework comprises provisions on different levels characterised through different binding effects. Provisions for aerodromes are existent on every level. They are included in Annexes, PANS, SUPPs, ICAO Manuals and CIRs. Even within an Annex, there are different binding effects with regard to its content. There are parts of the Annex that consist of SARPs. The derived binding effect has to be applied here. However, there is also Annex content, which is not assigned to the SARPs, and therefore, neither adherence as per Article 37 nor the notification of a deviation according to Article 38 is mandatory. PANS, SUPPs, Manuals and CIRs are not explicitly mentioned in the CC. They do not fall under the obligations of Articles 37 and 38. However, their origin can be derived from Article 55 (c) and (d). Irrespective of their non-binding character, each of them represents different legal relevance for the states. All aerodrome provisions can be subdivided into essential requirements that have to be applied in almost all cases of aerodrome planning, and additional requirements that apply under certain circumstances when, for instance, non-essential systems are implemented. In both cases, successful aerodrome planning requires the knowledge of dimensions and performance characteristics of the critical aircraft types that will be accommodated at the aerodrome. ICAO defines legal requirements for aerodromes within its rulemaking process. In jurisprudence, it is manifested that ICAO has only quasi-legislative powers because states have the possibility to disapprove regulation in accordance with Article 90 of the CC. However, since the number of Member States has increased to 193, it is unlikely that half of them will disapprove the adoption of SARPs within a period of 3 months. Therefore, in practice, the veto power is rather granted through the right to notify differences as per Article 38 of the CC. An analysis clarified that Contracting States and notably Developing States do not participate sufficiently in the rulemaking process. Although regarded as an effective process, some reasons speak in favour of increasing the democratic legitimacy of the rulemaking process: States are still the main legal persons in international law and should have the right to decide which regulation will apply to them proactively and not reactively as per Article 38; the participation of Developing States will help these states to gain more knowledge with regard to SARPs and could enable them to implement more SARPs;

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PANS and ICAO Manuals do only require an approval by the ICAO Council and consequently even less states are deciding on the development of essential provisions. Different approaches have been introduced that could shift the balance towards the democratic-legitimacy and improve the performance of the rulemaking process. The most significant measure is the recomposition of the Council through amending the Category types and the ratio of seats between them. A draft was proposed to change the CC. The target of the proposal is to comply with ICAO’s motto “No Country Left Behind” which is currently not represented in its legislative and organisational structure. States are obliged to integrate the provisions of the CC and adopted SARPs into national law. Two basic methods have been used in this regard by the Contracting States of the Paris and Chicago Convention. Some states define a note in the Federal Law Gazette that announces immediate execution of international law and upcoming amendments. Others transform the international provisions into national acts and orders and grant an executive organ the right to introduce amendments. Regardless of the integration method, the provided national effectiveness does not necessarily lead to national applicability. An examination revealed that both aerodrome-related Articles in the CC, as well as Standards, can be non-self-executing. States are then required to provide national applicability through further acts. Most of the Contracting States incorporate Annex 14 based on the transformation theory. The Theory of Essentialness of Germany could demonstrate that delegating legislative function to an executive organ in order to implement Annex 14 and its amendments does not have a negative impact on democratic legitimacy. However, national aerodrome regulation would benefit more if the integration of Annex 14 is based on the on the delegation theory. In any case, the integration should always consider Standards unless a deviation is notified to ICAO. More stringent regulation than Standards could also be enacted because Standards will be covered by these provisions. The targets of the CC will be ensured this way. Inclusion of Recommended Practices would further enhance safety and efficiency, but their national absence should not endanger the targets of the CC. Moreover, vertical and horizontal law enforcement tools of ICAO have been analysed for their suitability for cases in which states neither implement Standards nor notify any differences. The vertical law enforcement mechanism has been determined to be more appropriate to enforce compliance with Standards. However, the procedure for transparency and disclosure should also include the reporting power of an infraction as per Article 54 (j) and not only the reporting power of a failure to carry out recommendations defined in the same Article. Currently, many states have not fulfilled the obligation of aerodrome certification. Reasons are inter alia a lack of qualified personnel and obsolete international guidance material. Further, ICAO foresees the certification to Standards and Recommended Practices. In order to ease the process, certification should be based on Standards only. This would already ensure the achievement of the targets of the CC.

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IV. From the development of international regulation until the practical enforcement on national level—States have to be active Rule Maker instead of passive Rule Taker. ICAO has been granted with all necessary powers by the CC to carry out the USOAP. However, states are not legally bound by an Assembly Resolution or by the MoU to participate in the USOAP. There is also no absolute obligation to implement the recommendations on non-compliances, which are specified in a corrective action plan. The entire USOAP process is rather based on the procedure for transparency and disclosure. ICAO uses the reporting power in Article 54 (j) to blame and shame states that do not participate or do not implement recommendations. The results of the USOAP—notably for aerodromes—do not reveal significant improvement starting from the publication of the first aerodrome-related results in 2010 and are still alarming. Therefore, the procedure for transparency and disclosure is not seen as a suitable measure to achieve more global compliance. It is only considered as a method to motivate states to participate in the USOAP. The same applies to training and assistance provided by ICAO. This type of support has up to now not improved the USOAP results significantly. The USOAP process itself should be restructured. It should concentrate on non-compliances with Articles of the CC and Standards as per Article 37 in the first instance. Non-compliance with ICAO guidance material should only have a subordinated priority. A serious challenge is that—as far as aerodromes are concerned—many states cannot follow the rigid prescriptive regulation. Therefore, it is highly recommended to change the way of rulemaking fundamentally. ICAO should develop more performance-based regulation in order to take into account the different infrastructural and operational circumstances of states and their aerodromes. Performance-based regulation defines a desired outcome and leaves the methods to achieve this outcome open. The major international aviation players such as ICAO, EASA and ACI as well as aviation stakeholders agree that performancebased regulation will be essential in the future. However, there are currently very few performance-based regulations stipulated for aerodromes. Further, there is no common understanding of the term performance-based regulation. For this reason, a definition was drawn up in this book that defines the target, but also identifies the responsibilities of service providers—in this case aerodromes—and competent authorities. In the course of the implementation of performance-based regulation, particular care must be taken to ensure that the personnel in the competent authorities are appropriately trained to evaluate the methods established by the aerodromes that shall lead to the desired outcome. At the moment, this could pose a problem because there is a worldwide lack of resources and lack of qualification in terms of authority personnel. In regard to the implementation of performance-based regulation, ICAO Annex 14 suits very well. A requirement that is not implemented by many aerodromes worldwide is related to the provision of a RESA. A RESA is an area in front of and behind of a runway that has certain dimensions and is intended to protect an aircraft from major damage during an overrun or an undershoot. Currently, aerodromes are obliged to maintain a RESA for almost all runway types without taking into account

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the operational parameters and other site-specific factors. That said, performancebased regulation was proposed for a RESA, which should achieve that an aerodrome assesses whether its operation really requires a RESA and if so, how its size could be shaped based on the operational characteristics of the aerodrome. The aim of the performance-based regulation is not to replace the current prescriptive regulation, but to provide an alternative for aerodrome operator that are unable to comply with the current requirements. V. Performance-based regulation will provide more flexibility for aerodromes, lead to significantly more international compliance, and increase the level of safety.

6.2

Recommended Actions

An aerodrome will be built in a high-population city in South-Asia serving 200 mppa. In order to achieve this target successfully, there has to be a mature and stable regulatory system in place. This system must comprise of rights and obligations of all participants. In summary, the whole system presented in this work comprises the development of international legal requirements, integration of international requirements into the national legislation, establishing a regulatory structure, providing applicability to the international requirements, enforcing aerodrome regulation, complying to the provision, certifying aerodromes, auditing states and aerodromes. VI. Efficient aerodrome regulation is only possible with the collaboration of ICAO, states, authorities and aerodrome operators—if one fails, the target is not achieved. The CC has served as a successful treaty for many years, and it will continue to do so also in the future. However, 75 years after its conclusion and with additional 100 Contracting States, it is the time for a substantial amendment. A flexible framework and a soft wording should not lead to a dangerous interpretation. An amendment to Articles 69 and 70 will be beneficial to establish safe aerodrome operation. Also, Articles 37 and 38 should be amended in order to provide SARPs with a clear legal identity. Furthermore, states should be engaged more in the rulemaking process. Especially, the role of Developing States shall be strengthened, as these states will profit from being integrated in the process early. Therefore, also, Article 50 (b) should be amended. The recomposition of the Council will have a positive effect on all subordinated organs of the organisation. ICAO will have to continue providing technical and financial assistance to the Contracting States. Nonetheless, more efforts should focus on promulgating appropriate, unambiguous, and flexible SARPs by focusing on the fact that safety-critical requirements must be enacted as Standards as per Article 37. ICAO should moreover develop performance-based SARPs to provide states with the required flexibility. In order

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to fulfil this important target, sufficient guidance material and in particular acceptable means of compliance have to be generated to support the implementation. Regarding guidance material, the associated ICAO Docs should be innovated, as some of these are obsolete. In addition, ICAO should ensure that the certification and auditing requirements are in line with the binding effect of the subjected ICAO provisions. VII. ICAO should develop performance-based regulation for current provisions that require high implementation costs, that need a lot of space for implementation, or that are not implemented by many aerodromes, as there is a common gap. States should have a solid regulatory system that enables the uncomplicated implementation of international requirements into the national legal system. Dynamic referencing as well as delegating legislative functions to an executive organ are more efficient than an enactment of acts through the parliament. Amendments of ICAO Annex 14 should be integrated and applied as soon as possible. This means that there has to be a mature process in place to investigate which SARPs are going to be implemented. After integration into national legislation, states should also scrutinise the self-executing character of SARPs before promulgating their applicability. This shall result in a clear definition of the rights and obligations of all stakeholders and notably aerodromes. Standards, and Recommended Practices that are not going to be implemented, should be notified immediately to ICAO— keeping in mind that Standards are binding and that the integration and application of Recommended Practises should be well considered by “good faith”. Particularly, states should deliver the reason for the deviation from SARPs. This would help ICAO in the future when new provisions are developed. Long-term success could be achieved this way. Especially, Developing States should demonstrate to ICAO their willingness to participate more in the rulemaking process. VIII. Dynamic referencing will unlock capacities for the essential tasks of regulation. The quality of a competent authority depends strongly on the qualification of its personnel and consequently on the existing know-how and experience. Personnel must be trained to be able to measure compliance of aerodromes and to provide assistance in understanding and fulfilling the international aerodrome requirements. This is necessary for the successful conduction of the aerodrome certification process. In particular, when performance-based regulations will be introduced, the competent authority must be aware of national and aerodrome-related specialities that must be considered when aerodromes apply performance-based SARPs. This is due to the fact that the competent authority will be the main entity which will approve measures conducted by the aerodromes to fulfil compliance. In this context, it is extremely useful to provide ICAO with acceptable means of compliance that are approved nationally. These should then be forwarded to other states by ICAO. Based on them, other CAAs—predominately in Developing States—could learn and profit.

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In fact, it is also important to be in a continuous information exchange with operators to gather needs, changes, and challenges of the aerodromes under its jurisdiction. IX. The operational interface between ICAO and the aerodrome—the competent authority is the most important stakeholder for the sake of achieving safe aerodromes. Aerodrome operator and aerodrome planner shall aim to adhere strictly to the international aerodrome requirements that had been integrated into national law. Further, they have to be aware of aerodromes’ performance figures when applying performance-based regulation. This comprises inter alia the current and expected operational capacity as well as the performance characteristics and dimensions of critical aircraft that operate on the aerodrome. There should be sufficient experience regarding the conduction of safety assessments since this will enable aerodromes to derive appropriate measures that allow deviation from regulations. The exchange of information with the competent authority is also essential to address changes related to the aerodrome characteristics that could have an effect on compliance. The recommendations for the aforementioned stakeholders are more than those for aerodrome operators. This is due to the fact that ICAO, states, and CAAs have to establish and implement a regulative environment that is suitable for aerodromes to expand, maintain and develop aerodrome facilities. All these stakeholders have to provide the appropriate means to allow aerodromes to meet the air traffic growth in a safe, efficient and regular manner. X. Aerodrome operators should oversee their own aerodromes through the management of safety.

6.3

List of Hypotheses

In the following the main hypotheses of this book are consolidated: I. Congestion, non-compliance, and a high rate of accidents and incidents in their vicinity—aerodromes are legal and safety-critical hotspots. II. The role of the Paris Convention of 1919 is underestimated, it laid down many principles that are still relevant for aerodromes. III. The twenty-first century should witness a profound amendment to the Chicago Convention based on flexibility options provided by European aviation regulation. IV. From the development of international regulation until the practical enforcement on national level—States have to be active Rule Maker instead of passive Rule Taker. V. Performance-based regulation will provide more flexibility for aerodromes, lead to significantly more international compliance, and increase the level of safety.

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VI. Efficient aerodrome regulation is only possible with the collaboration of ICAO, states, authorities and aerodrome operators—if one fails, the target is not achieved. VII. ICAO should develop performance-based regulation for current provisions that require high implementation costs, that need a lot of space for implementation, or that are not implemented by many aerodromes, as there is a common gap. VIII. Dynamic referencing will unlock capacities for the essential tasks of regulation. IX. The operational interface between ICAO and the aerodrome—the competent authority is the most important stakeholder for the sake of achieving safe aerodromes. X. Aerodrome operators should oversee their own aerodromes through the management of safety.