Encyclopedia of public international law 11: LAW OF THE SEA· AIR AND SPACE

ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW

11 LAW OF THE SEA AIR AND SPACE

EDITORIAL COMMIITEE

Rudolf Dolzer, Dr. iur., S.J.D. (Harvard) Robert E. Hollweg, J.D. (Univ. of Michigan) Steven Less, J.D. (Seton Hall Univ.), Dr. iur. (Heidelberg) Peter Macalister-Smith, B.A. (Kent), Ph.D. (Birmingham)

The articles in this Encyclopedia should be cited (until publication of the final edition) according to the following example: H.-J. Schlochauer, Arbitration, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Instalment 1 (1981), p. 13.

r

ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW PUBLISHED UNDER THE AUSPICES OF THE MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW UNDER THE DIRECTION OF RUDOLF BERNHARDT

ADVISORY BOARD RUDOLF L. BINDSCHEDLER . THOMAS BUERGENTHAL . KARL DOEHRING JOCHEN ABR. FROWEIN . GUNTHER JAENICKE, HERBERT MIEHSLER HERMANN MOSLER· FRITZ MUNCH· DANIEL P. O'CONNELL KARL JOSEF PARTSCH· PIERRE PESCATORE· HENRY G. SCHERMERS ULRICH SCHEUNER . HANS-JURGEN SCHLOCHAUER . MAX SORENSEN HELMUT STREBEL

11 LAW OF THE SEA· AIR AND SPACE

I

1989

NORTH-HOLLAND AMSTERDAM . NEW YORK . OXFORD . TOKYO

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Library of Congress Cataloglnll in Publication Data

Main entry under title: Encyclopedia of public international law. Issued in parts. Includes index. 1. International law - Dictionaries. I. Bernhardt, Rudolf, 1925II. Max-Planck-Institut fur auslandisches offentliches Recht und Volkerrecht (Heidelberg, Germany) JX1226.E5 341' .03 81-939 AACR2

ISBN: 0444 86242 0

© ELSEVIER SCIENCE

PUBLISHERS B.Y. -1989

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. Elsevier Science Publishers B.Y /Social Sciences and Humanities Section, P.O. Box 1991, 1000 BZ Amsterdam, The Netherlands. Special regulations for readers in the USA -- This publication has been registered with the Copyright Clearance Center Inc. (CCC), Salem, Massachusetts. Information can be obtained from the CCC about conditions under which photocopies of parts of this publication may be made in the USA. All other copyright questions, including photocopying outside of the USA, should be referred to the puhlisher. No responsibility is assumed by the Publisher for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any methods, products, instructions or ideas contained in the material herein. PRINTED IN THE NETHERLANDS

INTRODUCTORY NOTE The eleventh instalment of the Encyclopedia of Public International Law comprises 97 articles devoted to the law of the sea, air and space. Articles which might have been included in this volume but which relate to more than one subject area can be found in another appropriate instalment of the Encyclopedia. Thus, for example, the various articles concerned with air and marine warfare were included in Instalments 3 and 4 together with the other entries on the use of force. As a further example, decisions of international courts and tribunals relating to the law of the sea can be found in Instalment 2, but several recent cases decided since the publication of that instalment are included in the present volume. To facilitate the use of the Encyclopedia, two kinds of cross-references are used. Arrow-marked cross-references in the articles -themselves refer to other entries, and are generally inserted at the first relevant point in an article (e.g. The case was submitted to the ~ International Court of Justice). For other topics for which a separate entry might be expected but which are discussed elsewhere or under a heading which does not immediately suggest itself, the title of the topic appears in the alphabetical sequence of articles with a cross-reference to the article where it is discussed (e.g. INQUIRY see Fact-Finding and Inquiry). At the end of each instalment there is an updated list of articles for the entire set of instalments of the Encyclopedia. All articles which have already appeared have a number in brackets identifying the instalment in which they may be found. The manuscripts for this instalment were finalized in mid-1988.

----------------------------------

CONTENTS List of Entries for this Instalment (with Names of Authors) List of Abbreviations

.....

Articles in Alphabetical Order List of Articles for the Entire Encyclopedia

lX

Xlll

1 343

LIST OF ENTRIES Admiralty Law (Geoffrey Marston)

1

,

Air Law (Bin Cheng)

.....

5

Air Pollution (Alexandre Kiss)

12

Air Transport Agreements (Ludwig Weber)

15

Air Transport, Regulation of Liability (Michael Milde)

18

Aircraft (Michael Milde)

22

Airports (Peter Badura)

24

Airspace over Maritime Areas (Kay Hailbronner)

27

Amoco Cadiz Incident (Lothar Gundling)

31

Archipelagos (L.F.E. Goldie) . . . . . . .

33

Artificial Islands and Installations (Fritz Munch)

38

Astronauts (Bin Cheng)

40

Baselines (P.B. Beazley)

43

Bays and Gulfs (Leo J. Bouchez)

45

Cables, Submarine (Rainer Lagoni) .

48

Celestial Bodies (Sylvia Maureen Williams) .

51

Chicago Convention (Ludwig Weber) . . . .

54

Civil Aviation, Unlawful Interference with (Kay Hailbronner) .

57

Coastal Fisheries (Rudiger Wolfrum)

61

Collisions at Sea (LA. Shearer) . . .

63

Common Heritage of Mankind (Rudiger Wolfrum)

65

Conferences on the Law of the Sea (Renate Platzoder)

69

Conservation of Living Resources of the High Seas (Barbara Kwiatkowska)

76

Contiguous Zone (Frank Wooldridge) . .

78

Continental Shelf (Christos L. Rozakis) .

82

Continental Shelf Case (Libyan Arab Jamahiriya/Malta) (Karin Oellers-Frahm)

91

Continental Shelf Case (Tunisia/Libyan Arab Jamahiriya) (Karin Oellers-Frahm)

94

Continental Shelf, Outer Limits (Ulf-Dieter Klemm) . . . . . . . . . . . . . .

99

Exclusive Economic Zone (Shigeru Oda) . . . . . . . .

102

Fisheries, International Regulation (Rudiger Wolfrum)

109

Fisheries, Sedentary (Bernd Riister)

113

. Fishery Commissions (Rudiger Wolfrum)

117

x

LIST OF ENTRIES

Fishery Zones and Limits (Jean Carroz)

121

Fishing Boats (Gerhard Hafner) . . . . .

124

Flags of Convenience (Jonathan S. Ignarski)

125

Flags of Vessels (David D. Caron)

.

127

Free Ports (Wolfgang Graf Vitzthum)

128

Geneva Convention and Statute on the International Regime of Maritime Ports (Stefan Oeter). . . . . . . . . . . . . . . .

130

Gulf of Maine Case (Karin Oellers-Frahm)

131

Heleanna Incident (Stefan Oeter)

135

High Seas (Tullio Treves) . . .

136

Hospital Ships (Michael Bothe)

141

Hot Pursuit (Frank Wooldridge) .

145

Hovering Acts (Geoffrey Marston)

148

Innocent Passage, Transit Passage (D.H.N. Johnson)

150

Internal Waters (Rainer Lagoni)

.

153

Internal Waters, Seagoing Vessels in (Rainer Lagoni)

155

International Sea-Bed Area (Wolfgang Graf Vitzthum)

160

Islands (D.W. Bowett)

.

165

Korean Air Lines Incident (1983) (Joseph H.H. Weiler) .

167

Land-Locked and Geographically Disadvantaged States (Lucius Caftisch)

169

Law of the Sea (Giinther Jaenicke) ..

174

Law of the Sea, History (E.D. Brown)

191

Lighthouses and Lightships (Matthias Hartwig) .

196

Liner Conferences (Stefan Oeter)

197

.

Marine Environment, Protection and Preservation (Jean J .A. Salmon)

200

Marine Research (Tullio Treves)

207

.

Maritime Archaeology (Lyndel V. Prott and P.J. O'Keefe)

210

Maritime Boundaries, Delimitation (Lucius Caftisch) . . . .

212

Maritime Boundary between Guinea and Guinea-Bissau Arbitration (A. Pillepich)

219

Maritime Jurisdiction (Geoffrey Marston) . . . .

221

Maritime Safety Regulations (Gerhard Breuer) .

224

Merchant Ships (Rainer Lagoni)

.....

228

Navigation, Freedom of (D.H.N. Johnson)

233

Navigation on Rivers and Canals (Bela Vitanyi)

235

LIST OF ENTRIES

xi

Nuclear Ships (Werner Bischof) . .

240

Oil Pollution Conventions (Michael Bothe)

245

...

249

Onassis Incident (Matthias Hartwig)

Outer Space Treaty (Nicolas Mateesco Matte)

251

Overflight (Ludwig Weber)

253

.

Pearl Fisheries (Peter Macalister-Smith)

256

Piracy (Alfred P. Rubin)

259

Ports (Peter Badura) . .

262

Postal Ships (Michael J. Hahn)

266

Pueblo Incident (Juliane Kokott)

268

Red Crusader Incident (Jorg Polakiewicz)

271

Salvage of Ships (Hans-Heinrich Noll) ..

272

Satellite Broadcasting (Jochen Abr. Frowein) .

273

Sea Lanes (Gerhard Breuer)

276

.

Sea-Bed and Subsoil (Wolfgang Graf Vitzthum)

277

Seal Fisheries (Clemens Lerche) . . . . . . .

284

Ships in Distress (Alfred-Maurice de Zayas)

287

Ships, Nationality and Status (David D. Caron)

289

Sovereignty over Airspace (Michael Milde) . . .

297

Space Activities, Responsibility and Liability for (Bin Cheng) .

299

Space Law (Nicolas Mateesco Matte) . . . . . . . . .

303

Spacecraft, Satellites and Space Objects (Bin Cheng)

309

State Aircraft (Kay Hailbronner) . . . . .

317

State Ships (Gil Carlos Rodriguez Iglesias)

320

Straits (D.H.N. Johnson)

323

Submarines (LA. Shearer)

326

Territorial Sea (Surya P. Sharma)

328

Torrey Canyon, The (Robert H. Stansfield)

333

United States v. California (Monterey Bay Case) (Markus Georg Schmidt)

335

Warning Zones at Sea (Gerhard Breuer)

336

Weather Modification (Ray J. Davis)

339

Whaling Regime (P. Birnie) . . . . .

340

LIST OF ABBREVIATIONS ACHR AFDI AJCL AJIL AnnIDI Annual Digest Australian YIL AVR BFSP BILC BYIL CahDroitEur CanYIL CJEC Clunet CMLR CMLRev ColJTransL Comecon CTS DeptStateBull DirInt EC ECHR ECOSOC ECR ECSC EEC EFTA ESA ETS EuR Euratom Eurocontrol FAO Fontes GAOR GATT GYIL Harvard ILJ IAEA lATA IBRD ICAO ICJ ICLQ

American Convention on Human Rights Annuaire Francais de Droit International American Journal of Comparative Law American Journal of International law Annuaire de l'Institut de Droit International Annual Digest and Reports of Public International Law Cases Australian Yearbook of International Law Archiv des Volkerrechts British and Foreign State Papers British International Law Cases (c. Parry, ed.) British Year Book of International Law Cahiers de Droit Europeen Canadian Yearbook of International Law Court of Justice of the European Communities Journal du Droit International Common Market Law Reports Common Market Law Review Columbia Journal of Transnational Law Council for Mutual Economic Aid Consolidated Treaty Series (c. Parry, ed.) Department of State Bulletin Diritto Internazionale European Community or European Communities European Convention on Human Rights Economic and Social Council of the United Nations Reports of the Court of Justice of the European Communities (European Court Reports) European Coal and Steel Community European Economic Community European Free Trade Association European Space Agency European Treaty Series Europa-Recht European Atomic Energy Community European Organization for the Safety of Air Navigation Food and Agriculture Organization of the United Nations Fontes Iuris Gentium General Assembly Official Records General Agreement on Tariffs and Trade German Yearbook of International Law Harvard International Law Journal International Atomic Energy Agency International Air Transport Association International Bank for Reconstruction and Development International Civil Aviation Organization International Court of Justice International and Comparative Law Quarterly ~

XIV

ICRC ICSID IDA IDI IFC ILA ILC ILM ILO ILR IMCO IMF IMO Indian JIL IntLawyer IntRel ItalYIL JIR LNTS LoN Martens R Martens SR Martens R2 Martens NR Martens NS Martens NRG Martens NRG2 Martens NRG3 NATO NedTIR NILR NordTIR OAS OAU OECD PCU PolishYIL ProcASIL RdC Res. RevBelge Rev Egypt RevHellen RGDIP RIAA RivDirInt SAYIL SchweizJIR SCOR SEATO

LIST OF ABBREVIAnONS

International Committee of the Red Cross International Centre for Settlement of Investment Disputes International Development Association Institut de Droit International International Finance Corporation International Law Association International Law Commission International Legal Materials International Labour Organisation International Law Reports Inter-Governmental Maritime Consultative Organization International Monetary Fund International Maritime Organization Indian Journal of International Law International Lawyer International Relations Italian Yearbook of International Law Jahrbuch fiir Internationales Recht League of Nations Treaty Series League of Nations Martens Recueil de Traites Martens Supplement au Recueil des principaux traites Martens Recueil de Traites, 2me ed. Martens Nouveau Recueil de Traites Martens Nouveau Supplement au Recueil de Traites Martens Nouveau Recueil General de Traites Martens Nouveau Recueil General de Traites, 2me Serie Martens Nouveau Recueil General de Traites, 3me Serie North Atlantic Treaty Organization Nedcrlands Tijdschrift voor Internationaal Recht Netherlands International Law Review Nordisk Tidsskrift for International Ret Organization of American States Organization of African Unity Organisation for Economic Co-operation and Development Permanent Court of International Justice Polish Yearbook of International Law Proceedings of the American Society of International Law Academic de Droit International, Recueil des Cours Resolution Revue BeIge de Droit International Revue Egyptienne de Droit International Revue Hellenique de Droit International Revue Generale de Droit International Public Reports of International Arbitral Awards Rivista di Diritto Internazionalc South African Yearbook of International Law Schweizerisches Jahrbuch fiir intemationales Recht Security Council Official Records South-East Asia Treaty Organization

LIST OF ABBREVIAnONS

xv

Strupp-Schlochauer, Strupp-Schlochauer, Worterbuch des Volkerrechts (2nd ed., 1960/62) Worterbuch

Supp. Texas ILJ UN UN Doc. UNCTAD UNEP UNESCO UNIDO UNITAR UNTS UPU UST WEU WHO WMO YILC ZaoRV

Supplement Texas International Law Journal United Nations United Nations Document United Nations Conference on Trade and Development United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization United Nations Industrial Development Organization United Nations Institute for Training and Research United Nations Treaty Series Universal Postal Union United States Treaties and Other International Agreements Western European Union World Health Organization World Meteorological Organization Yearbook of the International Law Commission Zeitschrift fiir auslandisches offentliches Recht und Volkerrecht

ADMIRALTY LAW

particular case between the King of Portugal and an Englishman in respe ct of goods taken by the

1. Notion. - 2. Historical Evolution in England and

Scotland. - 3. Historical Evolution in the United States . - 4 . Historical Evo lution in O ther Co untries . 5. The Content o f Admir alty Law . - 6. Particular

Features of Admiralty Law: (a) Types of actions. (b) Ge ne ral ave rage . (c) Salvage . (d) Prerogative rights.

(e) Prize. (f) Collision. - 7. The Relationship ofAdmiralty Law to International Law.

1. No/ion In its narrowest and historical se nse , ad miralty law is the body of law applied, and the procedure used, by the tribunals exercising the jurisdictio n of the High Co urt of Admiralty in England and by the tribunals exercising the equivalent jurisdiction in coun tries to which English law in this respect was ta ken . It sho uld be distingui shed both from genera l maritime law _with which it is ofte n co nfused , and from the .... law of the sea applicable amo ng sove rei g n States

(~

Maritime Juris-

dicti on) . 2. Historical E volution in England and Scotlan d Because o f its international flavour. maritime

law in the countries of Western Europe has evolved on different lines from o the r laws . Rom an maritime law , for example , drew for its content o n the mari time law of R hodes , In the Digest of Justinian it was sta ted in respe ct of the plunder of a shipwreck: "This mail er must be decided by the maritime law of the Rhodians . provided no law of o urs is opposed to it" ( Digest, 14.2.1 ). Th e Euro pea n trading citie s formulated their o wn co dificatio ns of maritime laws anti cus to ms. the

best know n of which arc t he Rules of O lero n , the laws of Wisby, the Tables of Amalfi and the Co nsolato del I\IMe ( .... Histor y of the Law of Nation s). Althou gh rOe term " Ad miral" had been introduced a t ~Pll

.urher time to describe the pe rson,

or person s. in charge of the fleets around the English coasts . the orig in of the Admiralty Court ca n be trac ed " w ith tolerable certainty " according to Marsde n to the period between lJ40 and 1357.

Up to that time maritime disputes . civil and criminal. were heard by the o rdina ry co urts in England . o r hy the C hancellor or the King's Co uncil. In 1357 appeared the first re ferenc e to the Admi ral act ing as an ad judicator, in the

latter from a Fre nch ship which had previously seized them . In 1360 the King of England granted to the Admiral of the fleets a power to hear and det erm ine pleas secundum legem maritimam and to appoint a de puty, probably to act as a judge. From this time the Admiral o r his deputy heard criminal cases, mostly .... piracy, and civil cases arising out of maritime contracts and torts and charter-parties. It was the " law merchant" or lex m ercatoria as this had evolved through the various maritime codes, and not the English common law, which the court of the Admiral applied. In the words of Gilmore and Black : "[Tjhe administering of maritime custo mar y law by maritime tribu nals was at the most a special aspect of th at concession fro m local territorial jurisdiction which allowed to trading people the competency 10 iron ou t their own troubles am ong themselves." The judicial activity of the Ad mir al led 10 a conflict with the courts administering the English common law . By two statutes in 1389 and 1391 (13 Ric. II , c. 5 and 15 Ric. II , c.3 ), the are as of competence of the conflicting tribunals were demarcated, the Admiral being excluded from hcaring causes arising "within the realm", though with a concurrent jurisdiction with the common law courts in respect of certain serious crim inal matters taking place on board ships in river mouths and estuaries within the realm . In recent times the demarcati on set out in the above statutes has been interpreted, rightly o r wrongly, as proof that the realm of England (and by analogy British territories o ther than E ngland) does not extend at common law to any part of wha t is now kn own as the .... territorial sea and .... continental shelf ( R . v. Keyn (the Franconia) (1876 ) 2 Ex .D . 63, as appli ed by the Supreme Co urt of the Uni ted States in .... United States v. California (Monterey Bay Case) 332 U.S . 19 (1947), the Supreme Court of Can ad a in Reference re Offshore Mineral Rights of Briti sh Columbia (1967) 65 D.L.R. (2d .) 353 an d Reference re Continental Shelf Offshore Newfoundland ( 1984) 5 D.L.R. (4th)385, and the High Court of Au stralia in New South Wale s v . The Commonwealth of Australia (1975 ) 137 C. L. R. 337). A further dispute arose ill England between the

2

ADMIRALTY LAW

Admiral's court and the comrron law courts, this time in respect of the procedural law applicable in criminal trials which in the case of the Admiral's court was the civil law and not the common law of England. By a statute of 1536 (28 H. 8, c.15) the trial of major crimes cornrr.itted at sea was transferred from the Admira 's court to Commissioners who were to try the cases as if they had been committed on land. A later statute of 1799 (39 Geo. 3, c. 37) extended this procedure to all crimes, and later still in 1834 (4 & 5 Will. 4, c. 36) and 1844 (7 & 8 Vic., c. 2) the trial of crimes committed on board British ships at sea was transferred from the Commissioners to the regular courts of common law. The effect of the above statutory intervention was to deprive the criminal law of the international influence which marked uther areas of maritime law. An exception to this was piracy which retains its ancient links with international practice although triable in the common law courts (see Re Piracy Jure Gentium (1934) A.c. 586). Yet a further conflict developed in England between the Admiral's court and the common law courts. In the early 17\.h century Chief Justice Coke, in particular, denied that the Admiral's court had any jurisdiction over contracts made on land, in England or abroad, even if they were to be . performed at sea. Thus by the fiction that such contracts were deemed to have been made and performed in Cheapside (a district of London) the common law courts assumed jurisdiction over them. By the late 17th century ~ he jurisdiction of the Admiral's court had narrow ed rnd was confined to torts committed on the -+ high seas, contracts made at sea and to be performed there, proceedings in rem on bottomry bonds made in foreign ~ ports, salvage suits for seamen's wages and suits over the droits of wre ck at sea. pirate goods and royal fishes. The inconvenience caused to litigants by this limited jurisdiction led belatedly to a statutory countermovement. By a number of statutes beginning in 1840 (3 & 4 Vic., c. (5) some of the jurisdiction lost was restored to the Admiral's court, including title to or ownership of ships, damage to cargo and damage caused by ships. The existence of the High Cour t of Admiralty as a separate tribunal ended following the Supreme Court of !udicature Acts of 1873 (36 & 37 Vic., c.

66) and 1875 (38 & 39 Vic., c. 77) whereby its jurisdiction was transferred to the Probate, Divorce and Admiralty Division of the newly-formed High Court of Justice. The Admiralty court had already lost, in 1859, the distinction of having its own practitioners, called advocates and proctors, who also practised in the ecclesiastical courts and were distinct from the practitioners in the common law courts. By the Administration of Justice Act 1970 (1970, c. 31) the High Court's Admiralty and prize jurisdiction were transferred to a tribunal called the Admiralty Court, part of the Queen's Bench Division of the High Court. In Scotland there was from, at the latest, the 15th century the office of Lord High Admiral of Scotland with a jurisdiction covering civil and criminal maritime causes and applying the law merchant. The court survived the Treaty of Union with England in 1707 but its functions were later transferred by statute to other Scottish tribunals and it ceased to exist in 1830.

3. Historical Evolution in the United States In the British North American colonies, as in British colonies elsewhere, Vice-Admiralty courts were established by the Crown. These tribunals, which were separate from the regular courts of the colonies, administered the civil jurisdiction of the High Court of Admiralty in England and some criminal jurisdiction, in particular statutory offences under revenue legislation. They used the procedure of the civil law and not the common law and in particular did not employ juries in criminal cases. Their power, particularly in revenue prosecutions. became a source of local protest. Art. III, para. 2 of the Constitution of the independent United States provided that the judicial power of the United States, i.e. the federal authority, extended "to all cases of admiralty and maritime jurisdiction". An Act of Congress of 1789 interpreted this broad power by providing that the federal courts "shall also have inclusive original cognizance of all civil causes of admiralty and maritime jurisdiction ... saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it". This formulation has led to much judicial debate over the respective domains of federal and state laws in maritime matters (~ Federal States). A further question was whether the words "admiral-

3

ADMIRALTY LAW ty and maritime jurisdiction " meant the jurisdiction exercised by the High Court of Admiralty in England at the time of the independence of the United States, a jurisdiction which, as mentioned above, had been curtailed by the action of the common law courts. In practice , however, the United States courts have given the words a wide meaning as encompassing all maritime torts and injuries and all maritime contracts which relate to the navigation, business or commerce of the sea (De Lovio v. Boit, 7 Fed . Ca s. 418 ( 18 15 ) and Insurance Company v. Dunham , 78 U. S. 90 (1871» At the date of the Constitution it was doubtless '. assumed that there existed a body of ma ritime law to provide the substantive law to he a pplied by th e federal tribunals under the admiralty power. References to the lex m ercatoria are to be found in the early United States court decision s, but. as in the United Kingdom, this maritime law has been supplemented and replaced by statutory provisions .

4. Historical Evolution in Other Countries In countries which derive their legal system from England, such as Canada , Australia and New Zealand, and in some other former British possessions, such as South Africa, the jurisdiction of the Admiral was conferred on th e local courts by United Kingdom statute, in criminal matters by the Admiralty Offences (Colonial) Act 1849 ( 12 & 13 Vic., c. 96) and in civil matters by the Colonial Courts of Admiralty Act 1890 (53 & 54 Vic. , c. 27) . As these countries are no w ind ependent o f the United Kingdom it is inevitable that the jurisdiction will be increasingly affected by local legislation , e.g. the Admiralty A ct 1973 ( New Zealand) , the Crimes at Sea Act 1979' (A ustralia) and the Admiralty Jurisdiction Regulation Act 1983 (South Africa) .

in respect o f the possessi on or owne rship of a ship , a mortg age or charge on a ship, damage rec eived

by a ship o r done by a ship, loss of life or personal injury in conseq uence o f any defect in a ship, or of any wro ngful act , neglect o r default of the master , own ers, ch arterers or crew , loss o f o r da mage to any goods ca rr ied in a ship, salvage , towage, pilotage , goods o r materials supplied to a ship , general average , bottomry, and droits of Admiralty . Th e Act also preserves an y other Admiralty jurisdiction which th e High Co urt had , which would include, for example, priz e. One traditional head of Admira lty jur isd ictio n, wreck at sea , still falls under th e pro visio ns of th e Merchant Shipping Act 1894 (57 8: 58 Vict . , C. 60 ) ( ...... Collis ions at Sea). Gilmore and Black descri be the corresponding position in the Unite« Slates as follows: " T he resultant conception of our admiralty jurisdiction has been one of fairly complete coverage o f the primary operation al and service concerns o f th e shipping ind ust ry , with a few anomalous exceptions. " Issues still arise with regard to the extent of th e Admiralty jurisdiction conferred on the fed eral co urts . Thus in Foremost Insuran ce Co mpany v. Richardso n, 457 U .S. 668 ( 1982) , the Su preme Court held th at a collis ion be tween two pleasure boats o n a river was within the federal court's jurisdiction and not th at of the sta te court . It hJS long been clear that the Ad miralty jur isdicti on in the United States is not confined to tidal waters but exte nds to nav iga ble non-tidal waters (T he G enesee Chiefv. Fitzhu gh , 53 U .S. 443 ( ! 8~ 1 » ; in the Richardso n case It was decided t~a t it was uot con fined to com mercial maritime act ivity .

6. Panicutar

F£ al W~S

of Admiralty L a "

Certain feature s of .vdrniralty law nV d k it as distinct from o uter a"eas O f the law in the co unt ries in which it applies .

5. The Content of Admiralty Law

(a) Types o] ,c··,' ··..'5

The Admiralty jurisdiction of the High Court in England and the equivalent co urts in Scotland has been consolidated an d set out in a number of statutes since 1875, namely the Supreme Court of Judicature (Consolidation) Act 1925 (15 & 16 Geo . 5, c. 49), the Administration of Justice Act 1956 (4 & 5 Eliz . 2, c. 46) and the Supreme Court Act 1981 ( ' 'l81, c. 54) . It now includes an y claim

ill p ersonc oj : against a particular pp.r",.or.. c r in rem against a part icular object, usua uy a ve, ,<e1. The action in rem is the distinctive. (iS ~)l~ri of admiralty procedure and is dc.Igned to secure the interest of the plain tiff ir- the :ur.gihle thing 1,". Marine Environment, Protection and Preservation). The atmosphere is also the milieu in which pollution can be transported over the longest distances. One of the major environmental problems of present times, acid rain, is considered to be the result of pollution originating from sources which may be at a distance of many hundreds and even thousands of kilometers from the site where the damage is produced. Long-range -'J> transfrontier pollution of the air has been defined as "air pollution whose physical origin is situated wholly or in part within the area under national jurisdiction of one State and which has adverse effects in the area under the jurisdiction of

another State at such a distance that it is not generally possible to distinguish the contribution of individual emission sources or groups of sources" (Convention on Long-Range Transboundary Air Pollution, Art. l(b».

2. Historical Evolution Awareness of the complexity of air pollution is the result of recent scientific developments. What may be called an "ordinary" transfrontier air pollution was dealt with as early as 1928 by an international body, the International Joint Commission of the United States and Canada, in the first step towards the settlement of the well-known Trail Smelter case, later decided in the -'J> Trail Smelter Arbitration. The award given by the Arbitral Tribunal on March 11, 1941 declared that no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. However, compensation for damages caused by transfrontier air pollution has in fact mainly been paid directly by private polluters to the victims (see Oberlandesgericht of Saarbriicken, decision of October 22, 1957, Porro v. Houilleres du Bassin de Lorraine, Neue Juristische Wochenschrift, 1958, p. 752). In any event, the harm suffered by forests as a consequence of acid rain shows that compensation is not always possible in this field and even when possible, does not solve the problem. Thus, as the Council of the -'J> European Communities has stressed in its programmes of action on the environment: "The best environmental policy consists in preventing the creation of pollution or _.nuisances at source, rather than subsequently trying to counteract their effects" (Official Journal No. C 112, December 20,1973, p. 1). International action against air pollution has taken this direction by adopting international rules and by establishing continuous cooperation within international bodies.

3. Current Legal Situation International regulation as well as cooperation in the field of air pollution control are to be considered in the general framework of the international protection of the environment

AIR POLLUTION (~ Environment, International Protection). In particular, the principles of the 1972 Stockholm Declaration and of the World Charter for Nature (UN GA Res. 37/7 of October 29, 1982) are to be borne in mind. As far as more specific international regulation is concerned, the rules relating to transfrontier pollution, such as the duties to cooperate, to assess the impact of planned activities on the environment, to inform concerned States of such activities and to consult with them, as well as the principles of equality of access and non-discrimination, are applicable to air pollution which causes harm to the environment outside the limits of the jurisdiction of the State (~ International Law of Cooperation; ~ Notification; ~ Consultation; ~ States, Equal Treatment and Non-Discrimination). General rules concerning only air pollution at an international level were rather exceptional until recently. At a world-wide level Art. 212 of the UN Law of the Sea Convention is the first mandatory provision concerning air pollution. It provides that States are to adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or of their registry. Regulations have mainly been drafted in the framework of regional arrangements (Protocol of March 26, 1986 amending the Convention of Paris of June 4, 1974 on land-based pollution of the sea, British Command Papers, Cm 87 Mise 3 (1987». The Vienna Convention for the Protection of the Ozone Layer of March 22, 1985 (ILM, Vol. 26 (1987) p. 1529) is the first convention with a world-wide scope which is entirely devoted to air pollution but it only concerns one of its aspects. It is mainly a framework treaty providing for cooperation in the legal, scientific and technical fields. In order to implement these general rules a protocol on chlorofluorocarbons controlling the use of tnis substance was adopted on September 16, 1987 (ILM, Vol. 26 (1987) p. 1550). At a regional level the Committee of Ministers of the Council of Europe approved as early as in 1968 a Declaration of Principles on Air Pollution Control which chiefly provides guidelines for national legislation (Res. (68) 4 of March 8, 1968,

13

reproduced in Doc. 2388 of the Consultation Assembly of the Council of Europe of May 8, 1968, p.23). The most important international instrument in this regard is the Convention on Long-Range Transboundary Air Pollution, signed at Geneva on November 13, 1979, by 35 States, including practically all European States as well as Canada and the United States. This is another framework treaty providing mainly for cooperation among the contracting Parties, in particular, through exchange of information regarding measures aimed at combating the discharge of air pollutants which may have adverse effects (Art. 4), consultation upon the request of a signatory State concerned (Art. 5), establishment of cooperation in research, the exchange of scientific information and the implementation of a cooperative programme for the monitoring and the evaluation of the long-range transmission of air pollutants in Europe. A protocol which imposes upon the Contracting Parties the obligation to reduce their emissions of sulphur dioxide by 30% as soon as possible and at the latest by 1993 using the 1980 emissions as a base was adopted in Helsinki on July 8, 1985 (German Bundesgesetzblatt, 1986 II, p. 1117). Most of the international rules concerning air pollution control have been adopted in regional frameworks and follow various approaches. As a rule they do not only concern transfrontier pollution. Release of pollutants into the atmosphere may be limited when resulting from stationary sources (~ Organisation for Economic Co-operation and Development, Guidelines for Action to Reduce Emissions of Sulphur Oxides and Particulate Matter from Fuel Combustion, Recommendation C (74) 16 of June 18, 1974, Recommendation C (85) 101 of June 20, 1985 on the Control of Air Pollution from Fossil Fuel Combustion; EEC Council Directive on the combating of air pollution from industrial plants, June 28, 1984, Official Journal, No. L 188, July 16, 1984) or from vehicles (e.g. Economic Commission for Europe, Regulation No. 15 concerning the emission of gaseous pollutants by certain vehicles, March 20, 1958; EEC Council Directive on the same subject, March 20, 1970, Official Journal No. L 76, April 6, 1970). The use of certain products may be prohibited or limited (~ United Nations En-

14

AIR POLLUTION

vironment Programme, Governing Council, Decision 817B on the chlorofluoro-carbons, Environmental Policy and Law, Vol. 6, p. 101), or their composition may be subjected to standards (EEC Council Directive relating to the sulphur content of certain liquid fuels, November 24, 1975, Official Journal No. L 307, November 27, 1975, p. 22 and EEC Council Directive concerning the lead content in petrol, of June 29, 1978, Official Journal No. L 197, July 22, 1'.:'78, p. 19). Finally, air quality standards may also be set (EEC Council Directive on air quality limit values and guide values for sulphur dioxide and suspended particulates, July 15, 1980, Official Journal No. L 229, August 30, 1980, p. 30; Council Directive on a limit value for lead in the air, December 31, 1982, Official Journal No. L 378, December 31, 1982, p. 15; Council Directive on air quality standards for nitrogen dioxide, March 7, 1985, as amended, Official Journal No. L 372, Dec. 31, 1985). Continuous international cooperation is a constant requirement for air pollution control. Its terms of reference may be fixed in a technical way (EEC Council Decision establishing a reciprocal exchange of information and data from networks and individual stations measuring air pollution within the member States, June 24, 1982, Official Journal No. L 210, July 19, 1982, p. 1). International agreements may also simply provide guiding principles and an institutional framework for such cooperation. The most important examples are the Geneva Convention on Long-Range Transboundary Air Pollution and the Vienna Convention on the Protection of the Ozone Layer (supra). Such arrangements can also be operative at a bilateral level (Memorandum of Intent between the US and Canada concerning Transboundary Air Pollution, Washington, August 8, 1980, ILM, Vol. 20 (1981) p.69O). Whatever character a national or international regulation aimed at controlling air pollution may take, the two major accidents involving air pollution at Seveso in Italy (1976) and Bhopal in India (1984) show that this aspect of environmental legislation cannot be separated from others, especially the problems raised by the production, transport and disposal of chemicals. Thus, air pollution may be considered as a link in a chain between such pollutants on one hand and the

damage caused to soil, vegetation, lakes, seas and the ozone layer on the other. This interrelationship explains the legal difficulties which the control of air pollution poses. Convention on Long-Range Transboundary Air Pollution, November 13, 1979, ILM, Vol. 18 (1979) 1442-1455. United Nations Convention on the Law of the Sea, December to, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (l9R4) 151-221; PM, Vol. 21 (1982) 1261-1354). ILA, Report of the Sixty-First Conference Held at Paris, August 26th to September 1st, 1984 (1985), Committee on Legal Aspects of Long-Distance Air Pollution, First Report, 377 412. Convention for the Protection of the Ozone Layer, March 22, 1985, ILM, Vol. 26 (1987) 1519-1540. Problernes juridiques de la pollution de l'air, The Protection of the Environment and International Law, Hague Academy of International Law, Colloquium (1973) 145-237. A. KISS, La cooperation pan-europeenne dans Ie domaine de la protection de l'environnement, AFDI, Vol. 25 (1979) 719-725. I.H. VAN LIER, Acid Rain and International Law (1980). D.M. JOHNSTON and P. FINKLE, Acid Precipitation in North America: The Case for Transboundary Cooperation (1983). G.S. WETSTONE and A. ROSENCRANC, Acid Rain in Europe and North America: National Responses to an International Problem (1983). s. ELSWORTH, Acid Rain (1984). v. PRITTWITZ, UmweltauBenpolitik, Grenziiberschreitende Luftverschmutzung in Europa (1984). L. GUNDLING, Volkerrechtliche und europarechtliche Aspekte der Luftreinhaltung, Umwelt- und Planungsrecht, Zeitschrift fur Wissenschaft und Praxis, Vol. 5 (1985) 403-411. A. KISS, Du nouveau dans l'air: des "pluies acides" Ii la couche d'ozone, AFDI, Vol. 31 (1985) 812-827. J. SCHMANDT and H. RODERICK (eds.), Acid Rain and Friendly Neighbors, The Policy Dispute between Canada and the United States (1985). e. FLINTERMAN, B. KWIATKOWSKA and J.G. LAMMERS (eds.), Transboundary Air Pollution, International Legal Aspects of the Co-operation of States (1986). w. LANG, Luft und Ozon - Schutzobjekte des Volkerrechts, ZaoRV, Vol. 46 (1986) 261-285. P.e. MAYER·TASCH (ed.), Die Luft hat keine Grenzen (1986). A. KISS,

ALEXANDR~

KISS

AIR, SOVEREIGNTY OVER THE see Sovereignty over Airspace

AIR TRANSPORT AGREEMENTS

AIR TRANSPORT AGREEMENTS 1. Notion The term "air transport agreement" refers to agreements between States governing tne operation of international air services between their territories. The term "air services agreement" is also used. Under Art. 6 of the ~ Chicago Convention, scheduled international air service to a foreign State may only be operated with the prior permission of the State concerned. As a result, numerous bilateral air transport agreements have been coneluded between States, granting such prior permission in the form of "traffic rights" and regulating the terms and conditions for international scheduled air services between the respective countries. More than 1700 bilateral air transport agreements have to date been registered with the ~ International Civil Aviation Organization (ICAO) under Arts. ~1 and 83 of the Chicago Convention, and their total number has been estimated at more than 25UO. Besides these, a few multilateral agreements relating to international non-scheduled air services and to technical questions on international air services have also been concluded.

2. Historical Evolution of Legal Rules As early as 1913, France and Germany made an agreement concerning civil and military ~ aircraft by an exchange of letters (Martens NRG3, Vol. 7, p. 643). This agreement provided inter alia that each party had the power to delimit zones open or closed to ~ overflight, that pilots of civil aircraft should carry certain documents (some of which had to be certified by the other party for each specific flight), and finally that military aircraft could not fly into or overfly the other party's territory without prior permission. The principle of sovereignty over national airspace (~ Sovereignty over Air Space) was firmly established in the multilateral Paris Convention of 1919 (Convention on the Regulation of Air Navigation, October 13, 1919, LNTS, Vol. 11, p. 173). During the following two decades a number of scheduled international air services were established on the basis of concession agreements made between States and air carriers (e.g. between the USSR and Deruluft; between France

__

...

_-_..---_._----

15

and CIDNA). However, in most cases bilateral air services agreements between States were coneluded, e.g. the Agreement between France and the Netherlands of 1938 (LNTS, Vol. 192, p. 151). At the Chicago Conference, November 1 to December 7, 1944, several States attempted to exchange commercial rights for international air services multilaterally. The International Air Transport Agreement, signed on December 7, 1944 (UNTS, Vol. 171, p. 387), provided for such multilateral grant of rights, but was never applied and remained a dead letter. However, the Chicago Convention in Art. 6 provided an appropriate basis for the bilateral regulation of international air transport. The United States and the United Kingdom signed on February 11, 1946 the so-called "Bermuda Agreement" (Agreement relating to Air Services, UNTS, Vol. 3, p.253). It became the worldwide model for numerous other bilateral air transport agreements concluded during the postwar period. The "Bermuda Agreement" was superseded in 1977 by the so-called "Bermuda II Agreement" between the United States and the United Kingdom (Agreement concerning Air Services, June 22, 1977, British Command Papers, Cmnd. 7016, Treaty Series No. 76 (1977)). Bermuda II adapted the regulatory framework to the mass tourism over the North Atlantic and to the resultant demand for low-fare, high-capacity scheduled air transport.

3. Current Legal Situation (a) The Bermuda Agreement Most bilateral air transport agreements follow the pattern first established by the 1946 Bermuda Agreement. Typically, the following questions are regulated in the text of a bilateral agreement: (i) Exchange of traffic rights. The extent of these rights, the conditions attached to them, and the routes on which they may be exercised are usually spelled out in detail in an annex or schedule to the main agreement. Rights of overflight and transit rights (technical stop-over) may also be specified. (ii) Designation of air carriers. Under the dual designation concept, each State party may designate one air carrier to operate the route or routes specified in the agreement. The multiple designa-

16

AIR TRANSPORT AGREE\1ENTS

tion concept allows each State party to designate several air carriers, subject l.owever to the prior agreement of both parties for each new designation. (iii) Substantial ownership and effective control. The air carriers designated under the agreement must comply with the requirement that substantial ownership and effective control of the carrier must be in the hands of nationals of the designating State. This requirement effectively prevents -+ "flags of convenience" in international air transport. (iv) Compliance with national aviation regulations. Each State party undertakes to ensure that its designated air carriers will fully comply with the aviation laws and regulations of the other State party. (v) Mutual recognition of airworthiness certificates. This provision ensures the mutual recognition of airworthiness certificates and certificates of competency for crew, notwithstanding the standards referred to in Art. 33 of the Chicago Convention. (vi) Exemption from customs and duties. This exempts, on the basis of reciprocity and within certain limits, from customs, taxes and other duties, which would be otherwise payable each time an aircraft crosses national borders. (vii) Principles governing regulation of capacity. These principles govern the question how many seats and how much cargo space each party may offer on a given route within a given time. This is of great commercial importance for the operation of each designated air carrier. Three main types of clauses can be distinguished: - the Bermuda clause, which provides for "fair and equal opportunity" for each designated carrier to compete, subject to a periodic "ex post facto" review by both States parties; - the predetermination clause, which provides for a predetermined partition of capacity between the designated carriers of both parties, normally resulting in a 50/50 split for each side; - the liberal clause, which leaves the capacity of both sides essentially to market forces, subject however to periodic review by both States parties. (viii) Principles governing the establishment of tariffs. These principles provide for the procedure to be used for setting air fares and rates to be

charged on the routes covered by the agreement. Normally, it is stipulated that designated carriers shall coordinate fare and rate proposals and submit such proposals for approval to both governments concerned, making use whenever possible of the Conference system of the -+ International Air Transport Association (lATA). (ix) Consultation and information. Regular government contacts are provided to review the operation of the agreement. (x) Settlement of disputes. The usual method is -+ arbitration (France-United States Air Transport Arbitration (1963); France-United States Air Transport Arbitration (1978); Italy-United States Air Transport Arbitration (1965». In some cases, a special - consultation procedure is also used as a compulsory method for settling fare and rate disputes. (xi) Registration of the agreement in conformity with Art. 83 of the Chicago Convention. (b) Other bilateral agreements

Besides the "Bermuda-Agreement", other model clauses have also been developed. In 1959, the - European Civil Aviation Conference (ECAC) developed the so-called "Strasbourg Standard Clauses" (ECAC, Third Session, Records, Report, Vol. 1, pp. 35 et seq.), which have served as a model for many European bilateral air transport agreements. The ICAO has also elaborated and recommended several specific model clauses for use by States, e.g. concerning taxation, security and other matters. (c) Multilateral agreements

While the exchange of traffic rights is de facto arranged through bilateral agreements only, a number of multilateral agreements relating to other aspects of air transport have also been concluded. The most important one is the International Agreement Relating to the Procedure for the Establishment of Tariffs for International Scheduled Air Services, signed on July 10, 1967 in Paris (UNTS, Vol. 696, p. 31). The main purpose of the Agreement was to achieve uniforrruty and improve the consultation procedures in f..1re disputes between governments. The greatest pos, le uniformity has been achieved by the automatic replacement of all tariff clauses in bilateral air t

17

AIR TRANSPORT AGREEM ENTS

trans port

agr eements . concluded be twee n the

1967 Paris Agreement signat ories. with the te rms and provisions of the Pari s Agreement. Most ECAC member States have become parties to this agreement , which was superseded by a new agreement opened for signature in Paris on June

15. 1987 (Doc. ECAC /INT.S Il 6) embodying the same principles. but introducing a new " tariff zone" regime (see be low). On the same da y, a multilateral agreement on the sharing of capaci ty on intra-European scheduled air services ( ; 987, Doc. ECAC/INT.S/16) was also opened for signature. A Multilateral Agreement o ro Co mmercial Rights of Non-Scheduled Air Services in Europe was signed on April 30, 1956 in Paris (UNTS, Vol. 310, p, 229) . Its main object is to ensure a liberal legal framework for certain specific types of non -scheduled air services, e.g, air-taxi flights, humanitarian flights . own- use charter flights, freig ht-o nly flights and certain o ther charter flights. Scheduled air services are not covered by the agreement. 11 has served as a model for subsequent agreements signed o n March 13, 197J in Manila between States members of the ..... Association of South-East Asian Nations (UNTS, Vol. 894, p. 3) and in December 1978 between States members of the Arab Civil A viation Council (ACAC). Since 1982, the air tariff framework for No rth Atlantic air services has been governed by the "Memorandum of Understanding hetw een the U nited States and the Member States of the European Civil Aviation Conference o n North Atlantic Pricing", signed on Ma y 2, 1982 in Washington , D.C. , and renewed in October 1984 and April 1987. This memorandum of understanding build s upon the bilateral agreements existing between the U.S. and ECAC mem ber States. 11 int roduced for the first time a system of " tariff zo nes". Governments have agreed tha t for any tariff filings submitted by airlines individually or collectively a nd falling within the " tariff zones", government approval by all parties shall be automatic . This innovative regime has been int roduced also for intra-European scheduled air transport thro ugh the new 1987 Paris Agreement superseding the ea rlier Paris Agreement of 1967, and in the European Co mmunities through Council Directive 87/601 /87 of December 14. 1987

(Official Journal o f the E .C. , No. L 374/1 2) , relat ing to fares for scheduled air services between member States. 4. Ev aluation Given the worldwide ne two rk of international scheduled air services. it may at first sight appear surprising th at the exchange of traffic rights for such services is excl usively a matter of bilateral arrange ments, instead of bein g exchanged o r regulated multilaterally. Howe ver . the system of bilateral air transport agreements has historically grown as a result of strong aviatio n nation s separately bringing their stro ng positio n to bes.. in bilateral negot iations. Th e bilat eral framework has the adv an tage of being flexible and eas ily adaptab le to changing circumstances while allowing the ope ration of a coherent air I n '''''' 'r! system. In the field of air tariffs, State" nave demonstrated in the Multilateral Paris Agr ,, ·::It of 1967, and its 1986 successor agreement , a~ well as in the United States-ECAC Memornnc urn of Understanding of 1982, as revised, their continued support for a rnvttilateral approach. Agreement on Air Services ("Bermuda Agreement"), February 11 , 1946, UNTS , Vol. 3 (1947) 253-291. Agreement concerning Air Services ("Bermuda II Ag reement"}, June 22, 1977. British Command Papers,

Cmnd 7016. Treaty Series No. 76 (1977). Q uestions of Public Internation al Air Law. RdC, Vol. 81 (1952 11) 205- 307. AW. STOFFEL. American Bilateral Air Transport Agreements on the Threshold of the Jet Transpon Age, Journal of Air Law and Commerce. Vol. 26 (1959) 119-136. B. CHENG, The Law of Internatio nal A ir Transport ( 1962). D . GOEDHUIS.

H.A . WASSENBERGH ,

Po st War Internation al Civil A via-

tion Policy and the Law of the Air (1962). I .C. COO PER. The Bermuda Plan: World Pattern for Air Transport, in: LA . Vlasic '{ed. ), Explorations in

Aerospace Law, Selected Essays by John Cobb Cooper 1946- 1966 (1968) 381-394. F. DEAK. The Balance -She et of Bilaterali sm . in: E .

McWhinney and M.A. Bradley (eds.), The Freedom of the Air (1968) 159-1 73. W. GILllLLAND. Bilateral Agreements, in: E. McWhinney and M.A. Bradley (eds.), The Freedom of the Air (1968) 140-158. F.E. lOY,

Bilateral Air Transport Agreements: Some

Problems of Finding a Fair Route Exchange, in: E. McWhinney and M.A. Bradley (eds.), The Freecor.r of the Air (1968) 174-189.

18

AIR TRANSPORT AGREEMENTS

Bilateral Agreements as Regulatory Instruments in International Commercial Aviation, in: N.M. Matte (ed.), International Air Transport: Law, Organization and Policies for the Future (1976) 113-126. B.A. WASSENBERGH, Public Intern, tional Air Transportation Law in a New Era: Economic Regulation of International Air Carrier Operations (1976). J. NAVEAU, Droit du transport aerien international (1980). N.M. MATIE, Treaties on Air-Aeronautical Law (1981). w. SCHWENK, Handbuch des Luftverkehrsrechts (1981). L. WEBER, Die Zivilluftfahn im Europaischen Gemeinschaftsrecht (1981). P.P.c. HAANAPPEL, Pricing and Capacity Determination in International Air Transport (1984). W. GULDIMANN,

LUDWiG WEBER

AIR TRANSPORT, REGULATION OF LIABILITY 1. Introduction The international transportof passengers, cargo and mail by -+ aircraft involves many foreign elements. The contract of transport and the liability arising therefrom em create complex problems of conflicts of laws (-+ Private International Law) and conflicts of -~ jurisdiction. A certain degree of unification with regard to the regulation of these pronle ms was achieved by the so-called "Warsaw System" consisting of the original Warsaw Convention of 1929 and complemented by a series of protocols for its amendment. Furthermore, one convention supplementary to the Warsaw System has been adopted. In its practical application the Warsaw Convention was in 1966 de facto amended by a private agreement between the air ce rriers operating to, from or via the territory of the United States of America. Some component instruments of the Warsaw System are in force and belong to the most widely accepted unification efforts in the field of private law; others have not yet entered into force.

2. The Warsaw .tysten. The components of the Wa.: aw System include the following:

(a) Convention for the Unification of Certain Rules Relating to International Carriage by Air The main characteristics of the Convention

signed at Warsaw on October 12, 1929 (LNTS, Vol. 137, p. 11) are as follows. The definition of "international carriage" determines the scope of applicability of the Convention (Art. 1(2)). Under the Convention this expression means any carriage in which, according to the contract of carriage, the place of departure and the place of destination are situated either within the territories of two parties to the Convention or within the territory of a single Convention party, if there is an agreed stopping place within another territory, even though that territory is not subject to the -+ sovereignty of any Convention party. There is a unification of the rules concerning the documents of carriage (passenger ticket, baggage check and air waybill) including the particulars to be embodied in each of these documents and penalties for any irregularities in respect of such documents (Arts. 3 to 16). The rules concerning the liability of the air carrier are unified. The liability is based on the fault of the carrier. The fault of the carrier is presumed, i.e. the carrier bears the burden of proof (Arts. 17 to 21). The amount of liability is limited by a "gold clause" to 125000 French francs for each passenger, 250 francs per kilogramm of luggage and of goods and 5 000 francs for objects of which the passenger takes charge himself. These sums are deemed to refer to French (Poincare) francs consisting of 65 ~ milligrammes of gold of millesimal fineness 900. These sums may be converted into any national currency in round figures (Art. 22). In case of "wilful misconduct" of the carrier (vdol ou une faute qui, d'apres la loi du tribuna; saisi, est consideree comme equivalente au dol"), the limit of liability does not apply (Art. 25). The rules concerning jurisdiction, which determine before which courts an action for damages may be brought, stipulate the place of ordinary residence of the carrier, the place of the carrier's principal place of business, the place at which the contract has been made or the place of destination (Art. 2H). The Convention contains a specific provision on combined carriage performed partly by air and partly by any other mode of carriage. The Warsaw Convention applies only to the carriage by air (Art. 31). The provisions of the Convention are of impera-

AIR TRANSPORT. REGUL \TION OF LIABILITY

tive nature and the contract between the parties cannot infringe the rules thereof under the penalty of nullity (Art. 32).

(b) The Hague Protocol of 1955 The Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on October 12, 1929 was done at The Hague on September 28, 1955 (UNTS, Vol. 478, p. 371). This first amendment of the Warsaw Convention was prepared by the Legal Committee of the ~ International Civil Aviation Organization (lCAO) and adopted at the, Diplomatic Conference held under the auspices of ICAO. The main features of the amendments introduced by the Protocol are the following. The rules relating to the documents of carriage were substantially redrafted, modernized and simplified. While a deficiency in these documents under the original Convention deprived the carrier of the right to invoke the provisions excluding or limiting liability, the carrier is only deprived under the Protocol of the right to invoke the limits of liability. The limit of kit .lity in respect of "persons" was doubled to 250000 francs. The compl.c.ned and equivocal provision concerning "wilful misco: Juct" was redrafted. The carrier cannot invoke the limit of liability with respect to acts or omissions "done with intent to cause damage or recklessly with knowledge that damage would probably result" (Art. XIII of the Protocol). The limits of liability apply also to servants of agents of the carrier acting within the scope of their employment (Art. XIV of the Protocol).

(c) The Guadalajara Convention of 1961 The Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier was signed at Guadalajara on September 18, 1961 (UNTS, Vol. 500, p. 31). The purpose of the Guadalajara Convention was to extend the applicability of the provisions of the Warsaw Convention, or that Convention as amended, also to the "actual carrier", regardless of who entered into the contract with the pas-

19

senger or shipper of goods as the "contracting carrier". This extension was necessary because the original Warsaw Convention of 1929 governed relations based on the contract of carriage. However, in the modern modalities of air transport operations it frequently happens that one party enters into a contract of carnage with passengers of shippers as a charterer or freight forwarder, etc., while another party in fact pe rforms the actual carriage without being in direct contractual relationship with the passenger or shipper.

(d) The Guatemala City Protocol of 1971 The Protocol to Amend the Conver.tion for the Unification of Certain Rules Relating t _l International Carriage by Air Signed at 'varsaw on October 12, 1929 as Amended by .ie Protocol Done at The Hague on September 28, 1955 was signed at Guatemala City on March 8, 1971 (ILM, Vol. 10 (1971) p. (13). This amendment of the Warsaw System was introduced in the form of a "protocol-toprotocol", and between the parties the resulting instrument is to be read and interpreted together as a single instrument to be known as the "Warsaw Convention as Amended at The Hague, 1955, and Guatemala City, 1971". This amendment refers exclusively to provisions relating to the carriage of passengers and their baggage and does not cover the carriage of cargo. The main characteristics of this amendment are the following. The documents of carriage for passenger: and checked baggage have been considerably sim-· plified and allow the substitution of electronic data processing for the issuance of a passenger document of carriage or of baggage check. Noncompliance with the provisions does not affect the validity of the contract of carriage which will continue to be subject to the rules of the Convention, including those relating to limitation of liability. With respect to personal injury and dam..ge sustained in the case of damage, destruction or loss of baggage, the earner is subject to strict liability regardless of fault. Only in case of contributory negligence of the person claiming compensation can the carrier be partly or wholly exonerated (Art. VII of the Protocol). With respect to delay in the carriage of passengers or baggage, liability continues to be based on a rebuttable presumption of fault of the carrier

20

AIR TRANSPORT. REGULATION OF LIABILITY

with a reversed burden of proof (An. VI of the Protocol). The limit of liability in the carriage of persons is the sum of 1500 000 francs in respect of damage suffered as a result of the death or personal injury of each passenger. In the case of delay in the camage of persons, the liability of the carrier for each passenger is limited to 62 500 francs. With respect to baggage, the liability of the carfier in the case of destruction, loss, damage or delay is limited to 15000 francs for each passenger. These sums are deemed to refer to a hypothetical currency unit consisting of 65; milligammes of gold of millesimal fineness 900. At the time of the drafting of the Guatemala City Protocol, these sums were equivalent to US $ 100 DOO in the case of death or personal injury of a passenger, US $ 4 500 in the case of delay of a passenger and US $ 1000 for destruction, loss damage or delay of baggage. The !imits mentioned in the preceding paragraph are inflexible and cannot be exceeded even in case of acts or omissions done with intent to cause damage or recklessly and with knowledge that damage would probably result. Any action for damages, whether based on provisions of the Convention or on theories of contract, tort or other law, can only be brought subject to the conditions and limits of liability set out in the Protocol (Art. IX). The rules concerning jurisdiction have been amended by adding one additional court, namely thz m!rt within the jurisdiction of which the 7;arrier has an establishment, if the passenger has bl:, domicile or permanent residence in the temtory 3f the same State (Art. XII). The Protocol includes a "settlement inducement zmise" (Art. VIII, para. 3(b)) according to which the cost of the action, including the lawyers' fees, ?::Abe awai.kd if the claimant presents a written notice of the amount claimed and the carrier does not make :I. --fitten offer of settlement within six months I . .A- amount at least equal to the compemii..i!b; rvhich may be awarded within the applicah!. :is it. Unu::; 'IIC"roturol (Art. XIV) States are free to eas -0iik11 ar,d operate in their territories a sysmrit ;I ''iiruestic supplement" to the comp'ru~,sa!ivn payable to claimants in respect of death *PI penunal injury of passengers. Such a system atmld no;. impose on the carricr, its servants or

agents any additional liability or any financial or administrative burden other than collecting contributions from passengers if required to do so by the State in question. This provision foresees the possibility of a system of supplementary and compulsory domestic insurance which should not lead to any discrimination between carriers. The Protocol provides for a periodical adjustment of the limits of liability during the fifth and tenth years after the date of entry into force of the Protocol. During those years, a diplomatic conference may, by a two-thirds majority vote of the parties present and voting, increase the limits by no more than 187 500 francs (about US $12 500 at the time of the drafting of the Protocol) on each occasion. If such diplomatic conferences do not agree otherwise, the limits shall be automatically increased by the above-mentioned amount on December, 31, of the fifth and tenth years after the date of entry into force of the Protocol (Art. XV). The Protocol shall enter into force when ratified by 30 States, including 5 States whose total international scheduled air traffic expressed in passenger-kilometres, according to the statistics for the year 1970 published by ICAO, represents at least 40 per cent of the total international scheduled traffic of the airlines of the member States of the organization. The practical impact of this provision is that the Protocol will not enter into force without ratification by the United States (Art. XX). (e) Additional Protocol No. 1, Montreal, 1975 Additional Protocol No. 1 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929 was signed at Montreal on September 25, 1975 (British Command Papers, Cmnd 6480, Misc. 12 (1976)). Thesole purpose of this Protocol was to replace the limits of liability expressed by the "gold clause" in An. 22 of the original Warsaw Convention of 1929. The gold currency unit was replaced by Special Drawing Rights (SDR) as defined by the + International Monetary Fund because of the absence of an official price of gold and the fact that gold has ceased to be an objective, reliable and stable yardstick of values. The Protocol substituted 8 300 SDR for 125 000 Poincark francs, 17 SDR for 250 francs and 332 SDR for 5000 francs.

22

AIR TRANSPORT, REGULATION OF LIABILITY

the United States Civil Aeronautics Board on May 13, 1966 (Agreement of the CIvil Aviation Board No. 18900; 31 Fed. Reg. 7302 (1966». This document is not an international agreement but only a private arrangement among the air carriers operating passenger transport to, from or with an agreed stopping place in the territory of the United States. By this private arrangement the parties have de facto amended the application of the Warsaw Convention of 1929 as amended by The Hague Protocol of 1955 by agreeing to include in their tariffs, effective as of May ]6, 1966, a special contract permitted under Art. 22(1) of the Convention providing for a limit of liability in case of death or bodily injury of each passenger of US $ 75 ()()() inclusive of legal fees and costs and US $ 58 ()()() exclusive of legal fees and costs. Furthermore, the carriers must not avail themselves of any defence under Art. 20(1) of the Convention which provides that the carrier is not liable if it proves that the carrier and its agents have taken all necessary measures to avoid the damage or that it was impossible for them to take such measures. Thereby, the principle of strict liability regardless of fault has been introduced. This arrangement is not an international agreement or a formal revision of the Warsaw System, but it governs a significant segment of international carriage of passengers by air in the region with the heaviest traffic. Convention for the Unification of Certain Rules Relating to International Carriage by Air, October 12, 1929, LNTS, Vol. 137 (1933) 11-43. Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929 ("Hague Protocol"), September 28, 1955, UNTS, Vol. 478 (1963) 371-406. Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person other than the Contracting Carrier ("Guadalajara Convention"), September 18, ]961, UNTS, Vol. 500 (1964) 31-48. Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929 as Amended by the Protocol Done at The Hague on September 28, 1955 ("Guatemala City Protocol"), March 8, 1971, ICAO Doc. 8932/2, ILM, Vol. 10 (1971) 613-616.

Additional Protocol No.1 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12,1929 ("Montreal Protocol No. I"), September 25, 1975, British Command Papers, Cmnd 6480, Misc. 12 (1976) Additional Protocol N6. 2 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 19~9, as Amended by the Protocol Done at The Hague on September 28, 1955 ("Montreal Protocol No. 2"), September 25, 1975, ICAO Doc. 9146, British Command Papers, Cmnd 6481, Misc. 15 (1976) Additional Protocol No.3 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929 as Amended by the Protocol Done at The Hague on September 28, 1955 and at Guatemala City on March 8, 1971 ("Montreal Protocol No.3"), September 25, 1975, ICAO Doc. 9147, British Command Papers, Cmnd 6482, Misc. 16 (1976). Montreal Protocol No.4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929 as Amended by the Protocol Done at The Hague on September 28, 1955, September 25, 1975, British Command Papers, Cmnd 6483, Misc. 17 (1976) Agreement of the Civil Aviation Board No. 18900 of May 13, 1966, US Federal Register, Vol. 31 (1966) 7302. La Convention de Varsovie du 12 octobre 1929, Thesis Leiden (1933). H. DRION, Limitation of Liabilities in International Air Law, Thesis Leiden (1954). M. MILDE, Problems of Liabilities in International Carriage by Air, Acta Universitatis Carolinae, Prague (1962) w. GULDIMANN, Internationales Lufttransportrecht (1965). A.I. MENDELSOHN, The United States and the Warsaw Convention, Harvard Law Review, Vol. 80 (1966/ 1967) 497-602. A. TOBOLEWSKI, Monetary Limitations of Liability in Air Law (1986). D. GOEDHUIS,

MICHAEL MILDE

AIRCRAFT Aircraft are defined in the Standards adopted by the Council of the -+ International Civil Aviation Organization (lCAO) as "any machine[s] that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth's surface" (Operation of Air-

AIRCRAFT

craft, Annex 6, Third Edition of Part II, September, 1983, p.5); air cushion vehicles, such as hovercraft and ground effect machines, are not classified as aircraft. Aircraft may be lighter-thanair (balloon) and power-driven (airship) or heavier-than-air (glider). The most common aircraft is an aeroplane - a power-driven heavierthan-air aircraft, deriving its lift in flight chiefly from aerodynamic reactions on surfaces which remain fixed under given conditions of flight. Helicopters are heavier-than-air aircraft supported in flight chiefly by the reactions of the air on one or more power-driven rotors on substantially vertical axes. International ~ air law as codified in the Convention on International Civil Aviation of December 7, 1944 deals with civil aircraft and is not applicable to ~ State aircraft. The Convention does not define "civil aircraft" or "State aircraft" but in Art. 3(b) sets a presumption that "aircraft used in military, customs and police services shall be deemed to be state aircraft". Tp~ design, registration, ownership or markings of an aircraft do not in themselves determine whether it is State or civil; the determining element is the use to which the aircraft is put. Aircraft have the ~ nationality of the State in which they are registered and no .:ill'craft can oe validly registered in more thar.one State. However, registration may be changed from one State to another. The nationality and registration marks consist of a group of letters or numbers, or a combination of letters and numbers. The nationality mark is to be selected from the series of nationality symbols included in the radio call signs allocated to the State of registry by the ~ International Telecommunication Union and notice must be given to the International Civil Aviation Organization. A common mark may be assigned by the Council of the ICAO to a joint or international operating agency. Aircraft are subject to the ~ jurisdiction of the State of registry while in the airspace or on the ground in that State or above or on the territory of areas of undetermined ~ sovereignty (e.g. ~ high seas). In the sovereign airspace, or in the territory of another State, the aircraft is subject to the laws, regulations and jurisdiction of that State (~ Sovereignty over Airspace; ~ Airspace over Maritime Areas; ~ Territorial Sovereignty).

23

Investigation of accidents of aircraft is to be instituted by the State in which the accident occurs. The State of registry, the State of the operator and the State of manufacture of the aircraft are to be invited to appoint accredited representatives to participate in the investigation. Accidents outside the territory of any State are to be investigated by the State of registry. Each State is responsible to ensure that aircraft of its registry comply with the rules of the air, wherever the aircraft may be (~ Responsibility of States: General Principles). The State of registry is also responsible for the issuance of licenses to operate radio transmitting apparatus, certificates of airworthiness and certificates of competency and licenses for the pilot and other members of the operating crew. L.ternational Standards and Recommended Practices adopted by the Council of ICAO relating to aircraft and its operations in international navigation are contained in the following Annexes to the Convention on International Civil Aviation: Annex I - Personnel Licensing; Annex 2 - Rules of the Air; Annex 3 - Meteorological Service for International Air Navigation; Annex 4Aeronautical Charts; Annex 5 - Units of Measurement to be Used in Air and Ground Operations; Annex 6 - Operation of Aircraft, Part I - International Commercial Air TransportAeroplanes, Part II - International General Aviation - Aeroplanes, Part III - International Operations - Helicopter; Annex 7 - Aircraft Nationality and Registration Marks; Annex 8 - Airworthi-' ness of Aircraft; Annex 9 - Facilitation; Annex 10 - Aeronautical Telecommunications, Volume I: Part I - Equipment and Systems, Part II -Radio Frequencies, Volume II: Communication Procedures; Annex 11- Air Traffic Services; Annex 12 - Search and Rescue; Annex 13 Aircraft Accident Investigation; Annex 14 .Aerodromes; Annex 15 - Aeronautical Information Service; Annex 16 - Environmental Prote.tion, Volume I - Aircraft Noise, Volume 11Aircraft Engine Emissions; Annex 17 - SecuritySafeguarding International Civil Aviation Against Acts of Unlawful Interference; Annex 18 - The Safe Transport of Dangerous Goods by Air. Convention on International Civil Aviation, Chicago,

December 7, 1944, UNTS, Vol. 15 (1948) 295-375.

24

AIRCRAFT

Annexes to the Convention on International Civil Aviation [published since 1948 in loose-leaf by the International Civil Aviation Organization, Montreal, Quebec, Canada]. J.P. HONIG, The Legal Status of AIrcraft (1956). Z.J. GERTLER, Nationality of Airlines: A Hidden Force

in the International Air Regulation Equation, Journal of Air Law and Commerce, Vol. 48 (1982) 51-88. A.A. VAN WIJK, The Legal Status of the Aircraft Commander- Ups and Downs of .l Controversial Personality in International Law, Essays in Air Law (1982) 311-349.

Rights in Aircraft, A Nordic Lawyer Looks at Security in Aircraft, Annuals of Air and Space Law, Vol. 8 (1983) 233-262. K. EL-HUSSAINY, Registration and Nationality of Aircraft Operated by International Agencies in Law and Practice, Air Law, Vol. 10 (1985) 15-27. W. SCHWENK, Internationale Betriehsstellen nach Artikel 77 des ICAO-Abkommens und internationaler Luftverkehr- Das Ende der Staatszugehorigkeit vonLuftfahrzeugen?, Zeitschrift fiir Luft- und Weltraumrecht, Vol. 35 (1986) 294-308.

J.w.F. SUNDBERG,

MICHAEL MILDE

AIRPORTS 1. General Remarks An airport is an aerodrome which accommodates facilities for public air transport services. The carriers of national or international civil aviation provide scheduled air services or nonscheduled flight of -+ aircraft. They use the airports for taking on or discharging passengers, cargo and mail. The legal relations between the airport company or authority and the carrier are determined by the domestic -+ air law; these relations can be governed by private law or by public law. There is substantial variety in the legal subjects authorized to manage and operate an airport. The airport operator may be either a limited liability company under private law, having only public shareholders (public utility company) or a mixed private and public corporation. There may also be an airport authority, be it a government agency or an autonomous entity under public law, controlled by a ministry or by another government agency, as well as, finally, a local government municipal authority. The International Civil Airports As-

sociation is a -+ non-governmental organization with head office and secretariat in Orly Aerogare Cedex, France, and with regional sections. The airport is a part of the national traffic system and infrastructure. It is constructed and operated under the -+ territorial ~ove~·~:f.r,~;; anti -+ jurisdiction of the State on the I err: tG! y of which it is situated, notwithstanding :l1'\1 soecial agreements which may exist with -+ neighbour States. In so far as airports are a necessary element of international air traffic, their existence, facilities. operation and use are a matter of international air law. Besides the bilateral -+ air transport agreements, the Convention on International Civil Aviation (-+ Chicago Convention) is the main source of relevant obligations. To encourage the development of airways, airports and air navigation facilities for international civil aviation is among the objectives of the -+ International Civil Aviation Organization (ICAO). Under Art. 37 of the Chicago Convention ICAO may adopt inter alia international standards and recommended practices and procedures dealing with characteristics of airports and landing areas and matters concerned with the safety, regularity and efficiency of air navigation in general. By virtue of this provision ICAO has adopted the Annex 14 entitled Aerodromes. On a more technical level ICAO has issued several manuals on aerodrome design, airport planning and airport services.

2. Airport Construction and Operation (a) Domestic legislation The construction, extension, and operation of airports is a matter of domestic regulation. The main difference in airport legislation depends on whether the planning, constructing and managing of single airports is left to sepalate and autonomous entities or is reserved to a ministry or other State agency. In any case, the authorization of an airport will include a decision on the plan for the airport facilities, the number, situation and size of runways, etc. The procedure preceding authorization might give third parties, especially the affected owners of landed property, a formal opportunity to defend their legal position. A separate entrepreneur for the airport project, a private

25

AIRPORTS

corporation or a public entity may 5c an applicant for a concession to construct and operate :he airport. As a rule, there will be a nation-wide concept or p!an of the airport system.

( 6 ) Internationc: obligations The Chicago Convention creates no strict obligation ..i the cor~tractingStates to pr.-vide for airpr..rs or other air navigation facilities. Each contractin.. Stat: ~tndertakes,so far as it may find practicable, to pravicie, in its territory. airports, radio services, meteorological senices and other air navigation facilities to facilitate international air navigatir.n, in accordant- with the standards and prac:lcer: recommended or established from time to time pursuant to the Convention (Art. 38(a)). The ICAO Council has certain powers of consultation and mav make recommendations, if it is of the opinion that the airports or other air navigation facilities of a contracting State are not reasonably adequate for the safe, regular, efficient and cconomical operation of internatirnal air set-;