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The regulatory process governing Aerodromes
and Air Navigation Services involve State
responsibility/obligation.
Aerodromes and Air Navigation Services have
to be certified by appropriate authorities and
have to follow ICAO annexes especially 10
and 11.
The is state liability to quality air navigation
services which include runway incursions.
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Articles 22 & 28 of Chicago Convention obliges
Member States to facilitate and expedite navigation
by Aircraft between territories of contracting States
for which they can put a user charge on a nondiscriminatory basis. However, if the quality of Air
Navigation Service was insufficient or misleading,
can the State be held responsible and penalized? This
question remained unanswered as so far sovereign
immunity has been sought in most cases as State has
been a service provider but it is unlikely to be
accepted in future. However, with privatization of
air navigation services and switch over to satellite
based navigation, this is issue is gaining importance.
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Under Annex 17 Contracting States are obliged to
provide Security to Aviation over their area.
With increase in security issues especially after
9/11 when civil aircrafts were used as
instruments of destruction, there has been a
major shift to improvement of security. Annexed
17 lays down detailed security obligations.
ICAO is also conducting detailed audit on
security provided by each contracting State in
order to improve and harmonize the security
system the world over.
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While environment does not find a mention in
Chicago Convention, 1944, it has now become a
very important issue with ICAO. Annex 16 is
entirely for environment protection. As issues of
global warming come to the forefront, ICAO has
also been taking proactive action. Emissions at
airports are becoming an issue of obligation.
Emissions by aircrafts in flights are also
becoming an issue and ICAO has taken certain
steps to mitigate it. Meanwhile, European
Commission has gone beyond and enacted a
legal instrument bringing their domestic
emission trading scheme to cover international
flights into EU w.e.f. 01.01.2012.
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ICAO is much more than a watchdog.
It is a body that makes International Laws on
Aviation which are followed the world over
While it does not have any punitive authority
over its contracting states, it is becoming more
and more powerful to control violations.
Its Audit policy, though based on a voluntary
basis, is becoming a strong watchdog over
defaulting States
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ICAO has powers under Articles 84,85 and 86
has power to arbitrate in disputes between
states.
It has looked into disputes between India and
Pakistan, US and Cuba and US and EU
amongst other
Incase arbitration by ICAO is not found
acceptable the only recourse left is the
International Court of Justice
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While ICAO statutes are valid during war as
provided in Article 89 which states ‘In case of
war, the provision of this Convention shall not
affect the freedom of action of any state’.
It is however, expected that states will not
shoot at a civil aircraft even if it violates
another’s air space.
After shooting of a Korean civil aircraft by
Soviet Russia for violating Russian air space on
April 20th 1978 killing 113 passengers with 11
injured, ICAO amended its Article3 by adding
Article 3bis.
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Art 3 bis refrains States from using weapons
against civil aircraft in flight and also provides
that in case of interception, lives of persons on
board and safety of aircraft must not be
endangered.
ICAO Council did discuss the use of a civil
aircraft for criminal purposes like smuggling
drugs, gun running or illegal transport of
persons but offered no comfort to victim state
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Five aircrafts were hijacked on 11th Sept 2001
from Boston. One of these aircrafts was actually
shot down by US Government.
How legal was the shooting down?
First, it was a domestic flight and therefore
technically did not attract Art 3 Bis.
Otherwise also this aircraft was targeting the
White House, seat of the President of USA.
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Article 54 (J) makes it mandatory upon the Council of
ICAO to report to any contracting State any infraction of
the Chicago Convention as well as any failure to carryout
recommendations and determination of the Council.
They are also required under Article 54 (K) to report to
Assembly any infraction of the Convention by a
Contracting State. However, so far the Council has failed
to report any such infraction either to the country or to
the assembly.
This provision gives substance clout to ICAO to
discipline its members who are not implementing their
obligations but has never been used.