AVIATION LAW IN INDIA

    Yukta Bajaj

    Aviation is the activities surrounding mechanical flight and the aircraft industry. Aircraft includes fixed-wing and rotary-wing types, morphable wings, wingless lifting bodies, as well as lighter-than-air craft such as hot air balloons and airships.

    Aviation law is the branch of law that concerns flight, air travel, and associated legal and business concerns. In many cases, aviation law is considered a matter of international law due to the nature of air travel. However, the business aspects of airlines and their regulation also fall under aviation law. In the international realm, the International Civil Aviation Organization (ICAO) provides general rules and mediates international concerns to an extent regarding aviation law. The ICAO is a specialized agency of the United Nations. In many countries aviation law is to be considered as a federal or a state level concern and it works at that levels. Aviation law, however, is not in the United States held under the same Federal mandate of jurisdiction as admiralty law; that is, while the United States Constitution provides for the administration of admiralty. The main purpose of need of aviation law is that Meet the safety, regularity and economical air transport needs of the people around the world. It helps to Prevent unplanned economic decisions and in turn waste. It also Ensure that each Contracting State has an opportunity to operate international airlines.

    INTERNATIONAL CIVIL AVIATION ORGANISATION (ICAO)

    The International Civil Aviation Organization (ICAO) is a specialized agency of the United Nation. It changes the principles and techniques of international air navigation and fosters the planning and development of international air transport to ensure safe and orderly growth. Its headquarters is located in the Quartier International of Montreal, Quebec, Canada. ICAO defines the protocols for air accident investigation that are followed by transport safety authorities in countries signatory to the Chicago Convention on International Civil Aviation.

    In October 1947, ICAO became a specialised agency of the newly-established United Nations. The Chicago Convention set down the purpose of ICAO:

    “WHEREAS the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security; and WHEREAS it is desirable to avoid friction and to promote that co-operation between nations and peoples upon which the peace of the world depends; THEREFORE, the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically;”

    There are currently 191 Member States.

    ICAO is distinct from other international air transport organizations, particularly because it alone is vested with international authority (among signatory states): other organizations include the International Air Transport Association (IATA), a trade association representing airlines; the Civil Air Navigation Services Organization (CANSO), an organization for Air navigation service providers (ANSPs); and the Airports Council International, a trade association of airport authorities.

    The Structure of ICAO

     ICAO comprises an Assembly, a Council of limited membership with various subordinate bodies, and a Secretariat. The chief officers are the President of the Council and the Secretary General. The Assembly, composed of representatives from all Contracting States, is the sovereign body of ICAO. It meets every three years, reviewing in detail the work of the Organisation and setting policy for the coming years. The Council, the governing body which is elected by the Assembly for a three-year term, comprises 36 delegates. As the governing body, the Council gives continuing direction to the work of ICAO. It is in the Council that Standards and Recommended Practices are adopted and incorporated as Annexes to the Convention on International Civil Aviation. The Council is assisted by the Air Navigation Commission in technical matters, the Air Transport Committee in economic matters, the Committee on Joint Support of Air Navigation Services and the Finance Committee.

    History

    The forerunner to ICAO was the International Commission for Air Navigation (ICAN). It held its first convention in 1903 in Berlin, Germany, but no agreements were reached among the eight countries that attended. At the second convention in 1906, also held in Berlin, twenty-seven countries attended. The third convention, held in London in 1912 allocated the first radio callsigns for use by aircraft. ICAN continued to operate until 1945. Fifty-two countries signed the Chicago Convention on International Civil Aviation, also known as the Chicago Convention, in ChicagoIllinois, on 7 December 1944. Heavier than air flight had been achieved in 1903 by the Wright Brothers, and there had been a few half-hearted attempts to discuss flying internationally – although all had failed to agree on any rules so far. The 1910 Paris talks had 18 European states attend, and they discussed some initial principles governing air travel. But aviation governance would not become urgently required until World War One. In the war, aircraft flew for transport, scouting, and logistics – as well as being war machines.

    Different groups realized that for aviation governance to work, it had to be an international effort or not attempted at all. After the war, 38 states came together to create the International Commission for Air Navigation (ICAN). This body would convene to promote aviation, and went as far as to allocate the first radio callsigns to aircraft.

    INTERNATIONAL AIR TRANSPORT ASSOCIATION (AATO)

    The International Air Transport Association IATA is a trade association of the world’s airlines founded in 1945. IATA has been described as a cartel since, in addition to setting technical standards for airlines, IATA also organized tariff conferences that served as a forum for price fixing. Consisting in 2016 of 290 airlines, primarily major carriers, representing 117 countries, the IATA’s member airlines account for carrying approximately 82% of total available seat miles air traffic. IATA supports airline activity and helps formulate industry policy and standards. It is headquartered in Canada in the city of Montréal, with executive offices in GenevaSwitzerland. IATA is a private organisation consisting of members from nearly 120 countries. The aim of this organisation is working for the promotion of the interest of various airlines. IATA has devised several guidelines and recommended practices. IATA has recommended that every member should develop a company policy to deal with disruptive passengers. Further, it has also formulated a basic guide to deal with unruly passengers. The IATA Guidance on Unruly Passenger Prevention and Management, 2015 provides numerous ways on how airlines can deal with unruly passengers. This guide also recommends airlines to enforce their respective alcohol policy so that troublemaking passengers are identified at the outset.

    The International Air Transport Agreement goes further, allowing the carriage of traffic between the State of registration of the aircraft and any other signatory State. The third freedom allows passengers and freight from the home state to be set down in the state of arrival, the fourth freedom allows passengers and freight to be picked up for transport to the home state and the fifth freedom allows passengers to be picked up or set down from states other than the home state.

    • Third Freedom: The right of aircraft from State A to accept paying traffic from State A and put it down in State B.
    •  Fourth Freedom: The right of aircraft from State A to pick up paying traffic in State B and put it down in State A.
    •  Fifth Freedom: The right of aircraft from State A to take paying traffic from State B to State C.

    These freedoms are collectively known as the commercial freedoms.

    COBATAGE

    The two agreements containing the five freedoms effectively acknowledged that countries might need to land and overfly for technical and commercial reasons. But neither agreement specifically permits cabotage. Cabotage is the transport of passengers and goods by State A within State B. It’s a very sensitive subject and many states forbid it. Unless specifically permitted to do so an aircraft of State A operating on domestic routes within State B is committing an offence known as unlawful cabotage.

    The EUROPEAN AVIATION SAFETY AGENCY (EASA)

    The JAA used to operate by the joint agreement of the national authorities. In the EU context this is an unacceptable state of affairs because it doesn’t allow the EU to regulate and oversee aviation in its own right. As a result the European Aviation Safety Agency was formed. EASA is an organ of the EU and carries the full weight of legislative authority with it. Under the new regime the national authorities of EU states have ceased to have any competence for creating regulations. They instead have become agencies of EASA charged only with ensuring compliance with EASA regulations. Some functions, such as aircraft certification, previously carried out by the JAA, have already been transferred to EASA. Others will follow. When all functions have been transferred the JAA will cease to exist.

    EASA Regulations

    We saw that EASA is steadily assuming responsibility for certain areas of regulation. The first role it took from the JAA was the certification of aircraft. Consequently, two documents which were originally JAA regulations have now been renamed and re-branded as EASA regulations.

    J CS 23 and 25 are the new names for what used to be JARs 23 and 25. CS stands for Certification Specification. These two documents cover the regulations applying to small and large aircraft respectively. These are pan-European standards so an aircraft certified under either of these specifications is automatically acceptable to all European member states. EASA also has responsibility for commercial aircraft operations. The rules are covered in:

    J EU-OPS: this document specifies the rules and regulations governing commercial air transportation.

    CONCLUSION

    The 1944 Chicago convention gave the authority to set up ICAO. ICAO comprises an assembly of delegates from all member states and a governing council of 33 elected delegates from member states. The assembly meets every three years and elects a new council for the next three. ICAO has various committees advising on technical matters as well as nine regional offices. Remember that ICAO sets out two forms of regulation: Standards which ought to be adopted by all member states and Recommended Practices which are recommendations only. The Chicago convention also established two other agreements which set out the five principal freedoms for non-scheduled flight. You need to remember these: J The first freedom allows aircraft of one state to overfly another. J The second freedom allows aircraft of one state to land in another for technical reasons. J The third freedom allows the aircraft of one state to accept its own paying traffic and set it down in another state. J The fourth freedom allows an aircraft to pick up paying traffic and set it down in its own state. J The fifth freedom allows an aircraft to pick up traffic from one state and set it down in another. Issue 1 1.29 Air Law The Basis for International Legislation Cabotage is a commercial flight in which an operator of one state picks up and sets down paying traffic within another state. Cabotage is not one of the five freedoms and is not a right. Unless you have specific authorisation from that state to operate on its domestic routes you could be committing an unlawful act.