Air Transportation Management,

M.Sc. Programme

Air Law, Regulation and

Compliance Management

Course material:

Aviation Safety

Modules 9 & 10

From:
Paul Stephen Dempsey, Public International Air Law (Montreal: Centre for
Research in Air and Space Law, 2008)
 CHAPTER IV

SAFETY

SYNOPSIS
I. INTRODUCTION
II. THE DEVELOPMENT OF THE INTERNATIONAL LAW OF
AVIATION SAFETY
A. THE CONVENTIONAL LAW OF INTERNATIONAL CIVIL
AVIATION
B. INTERNATIONAL STANDARDS
C. BILATERAL REQUIREMENTS
III. DOMESTIC COMPLIANCE WITH INTERNATIONAL
AVIATION REQUIREMENTS
A. TO COMPLY OR NOT TO COMPLY . . . THAT IS THE
QUESTION
B. UNILATERAL OVERSIGHT OF STATE COMPLIANCE
WITH INTERNATIONAL OBLIGATIONS
1. THE COURTS CLIP THE WINGS OF THE UNITED
STATES: BRITISH CALEDONIAN v. BOND
2. UNITED STATES AIRPORT SECURITY AUDITS
3. UNITED STATES SAFETY AUDITS
C. MULTILATERAL OVERSIGHT OF STATE COMPLIANCE
WITH INTERNATIONAL OBLIGATIONS
IV. SUBSTANTIVE AVIATION SAFETY OBLIGATIONS UNDER
INTERNATIONAL AND DOMESTIC LAW
A. CIVIL AVIATION AUTHORITY: ESTABLISHMENT AND
ADMINISTRATION
B. AGENCY PROCEDURES
C. PERSONNEL LICENSING
D. AIRCRAFT AIRWORTHINESS CERTIFICATION
E. NATIONALITY, OWNERSHIP, AND REGISTRATION
REQUIREMENTS
F. AIR CARRIER OPERATOR CERTIFICATION
G. AIR CARRIER ECONOMIC REGULATION
H. SCHOOLS AND APPROVED MAINTENANCE
ORGANIZATIONS


Portions of this Chapter are adapted from Paul Stephen Dempsey, Compliance &
Enforcement in International Law: Achieving Global Uniformity in Aviation Safety, 30 N.C. J.
INT'L L. & COMM. REG. 1 (2004).
 I. AIR NAVIGATION FACILITIES
J. TRANSPORTATION OF DANGEROUS GOODS
K. PENALTIES FOR NONCOMPLIANCE
V. THE THEORETICAL PARADIGM OF COMPLIANCE WITH
AND ENFORCEMENT OF INTERNATIONAL LAW
VI. CONCLUSION
VII. APPENDIX

I. INTRODUCTION

aw without compliance and enforcement is like poetry – it is

L pleasing to the ear, but has little to do with the practical world in
which we live.1 The study of efforts to achieve uniformity in
international norms and compliance with international legal
obligations reveals mixed success, even in areas where there is
widespread consensus for the need to have international harmony.
Given the inherent sovereignty of States, the heterogeneous levels of
economic ability, and the diversity of political priorities, securing
compliance with international obligations is rarely an effortless task.2
This Chapter addresses legal norms governing international aviation
safety, as well as both unilateral and multilateral efforts to achieve State
compliance with those international legal obligations.

International commercial aviation provides a useful case study of

how the world community seeks to achieve mutual self-interest by
securing global harmony in law. The interplay between conventional
international law, quasi-legal standards promulgated by international
organizations, and national laws, regulations, and procedures offers

1 Professor John Norton Moore put it more eloquently:

For the rule of law is not simply normative systems and broad acceptance of the
authoritativeness of such laws. Rather, it is such systems coupled with patterns of
community compliance. And sadly, while many modern normative systems have
patterns of high community compliance, others still have failure rates with
catastrophic consequences for human dignity and progress. Surely, the greatest
weakness of the contemporary international system is not the absence of
authoritative norms, or underlying intellectual understanding about the need for
such norms, but rather the all-too-frequent absence of compliance.
John Norton Moore, Enhancing Compliance With International Law: A Neglected Remedy, 39
VA. J. INT'L L. 881, 884 (1999). Professor Dr. Michael Milde also put it well, writing that,
"without enforcement law tends to lose its binding nature and degenerates into a pious
Statement of principles detached from the reality." Michael Milde, Enforcement of Aviation
Safety Standards – Problems of Safety Oversight, 45 GER. J. AIR & SPACE L. 3, 15 (1996).
2
See Paul Stephen Dempsey, Compliance and Enforcement in International Law - Oil Pollution
of the Marine Environment by Ocean Vessels, 6 NW J. INT'L L. & BUS. 459 (1984).
insights as to how complex international enterprises, such as commercial
aviation, play on the world stage.

In 1944, the world community acknowledged the need to achieve

safety in international aviation through uniformity in law3 by
establishing an organization to govern international aviation, conferring
upon it quasi-legislative power to prescribe standards governing
international aviation safety, and obliging member States to implement
these standards through their domestic laws.4 Despite the efforts of
major aviation nations and international organizations, those goals are
only sluggishly being achieved. Thus, aviation safety can serve as a case
study to inquire into the ability and willingness, on the one hand, or
inability and unwillingness, on the other, of States to conform to their
international obligations and the means by which they can be
encouraged, or coerced, to comply.

This inquiry is important for another less theoretical and more

practical reason. Safety and security are two sides of the same coin. The
regulation of both is designed to avoid injuries to persons and property,
and the deprivation of man's most valuable attribute – life. Yet the two
are quite different, as well. Safety regulation focuses on preventing
accidental harm. Security regulation focuses on preventing intentional
harm. Like the common law difference between fault-based negligence
and intentional torts, the latter involves more culpability than the
former, and is deterred by more serious penalties.

Since the tragic events of September 11, 2001, security has become
a paramount concern in international aviation.5 Yet a passenger is ten
times more likely to lose his life in an aviation safety-related accident
than in an aviation terrorist event.6 Hence, the study of aviation safety is
of far more practical importance than the more emotionally driven study
of aviation security. Safety must be among the highest priorities in
commercial aviation.7

3 As Professor Dr. Michael Milde observed, "Civil aviation could not have evolved without
world wide uniformity in regulations, standards and procedures in relation of air
navigation." Milde, supra, at 4.
4 Paul Stephen Dempsey, The Role of the International Civil Aviation Organization on

Deregulation, Discrimination & Dispute Resolution, 52 J. AIR L. & COM. 529, 533 (1987).
5
See, e.g., Paul Stephen Dempsey, Aviation Security: The Role of Law in the War Against
Terrorism, 41 COLUM. J. TRANSNAT'L L. 649, 656 (2003) [hereinafter cited as Dempsey].
6
John Saba, Worldwide Safe Flight: Will the International Financial Facility for Aviation Safety
Help It Happen? 68 J. AIR L. & COM. 537, 538 (2003).
7
The Honorable L. Welch Pogue, US delegate to the Chicago Conference of 1944 and
Chairman of the US Civil Aeronautics Board, observed that "safety should be the
 All statistical evidence indicates that international aviation has
become decidedly safer in recent decades.8 Though much of that positive
result can be attributed to improvements in technology, much can also
be attributed to improvements in the law and its more universal
implementation. It is the latter subject that is the focus of this Chapter.

This Chapter will address the following questions:

1. What are the means by which legal obligations in the area of

aviation safety have become binding upon States?
2. What are the substantive conventional international laws and
standards governing international aviation safety?
3. What has been the level of national compliance with, and
implementation of, such laws and standards?
4. What means have been employed, unilaterally and multilaterally,
by which compliance has been monitored and encouraged, or
sanctions for noncompliance imposed?

The legal predicate for such bans is clear. Article 1 of the

Convention on International Civil Aviation [Chicago Convention], 9
recognized that each State holds "complete and exclusive sovereignty
over the airspace above its territory", while Article 6 provides that
commercial operations in another State's airspace are prohibited unless
permitted or authorized. Prohibiting one's domestic airlines from flying
remains within the exclusive prerogative of a State.10

preoccupation of everyone involved in the operation of an airline [including] those

engaged in manufacturing airline replacement parts and supplies, and . . . all employees of
governments engaged in the oversight or the regulation of airlines." L. Welch Pogue,
Personal Recollections from the Chicago Conference: ICAO, Then, Now, and in the Future, XX
ANNALS OF AIR & SPACE L. 35, 42 (1995).
8
John Saba, Worldwide Safe Flight: Will the International Financial Facility for Aviation Safety
Help It Happen? 68 J. AIR L. & COM. 537 at 655 (2003).
9 Convention on International Civil Aviation, done Dec. 7, 1944, 61 STAT. 1180, T.I.A.S. NO. 1591,

15 U.N.T.S. 295. See Paul Stephen Dempsey, The Role of the International Civil Aviation
Organization on Deregulation, Discrimination, and Dispute Resolution, 52 J. AIR L. & COM. 529
(1987).
10 For example, the US banned Frank Lorenzo from holding a certificate of public

convenience and necessity on the grounds that he was unfit to operate an airline. In
determining whether a new applicant is fit, willing and able to hold a certificate, the US
Department of Transportation (DOT) assesses whether the applicant: (1) has the
managerial and operational ability to conduct the proposed operations; (2) has sufficient
financial resources available to commence operations without undue risk; and (3) will
comply with its statutory and regulatory obligations under the law (or in the regulatory
language often used, has demonstrated satisfactory "compliance disposition"). See
Application of Air Illinois, Inc., DOT ORDER 86-2-25 (1986). Once issued, the certificate is not
 In addition to addressing the issue of aviation safety generally, this
Chapter also addresses the issue of the lawfulness of blacklisting airlines
(and often, all airlines of the State of registration) on the basis of safety-
and security-related deficiencies. This potentially confronts another
provision of the Chicago Convention – Article 33 – which requires that
the certificates of airworthiness of the registering State be recognized as
valid by other contracting States so long as the standards imposed by the
registering State "are equal to or above the minimum standards which
may be established from time to time pursuant to this Convention."

Any chronological review of the development of international

aviation law must begin with the "Constitution" of international civil
aviation, the Chicago Convention of 1944 [Chicago Convention].11 That
multilateral agreement created the International Civil Aviation
Organization [ICAO]12 and gave it quasi-legislative authority to
promulgate standards and recommended practices [SARPs] as Annexes
to the Chicago Convention.13 These standards are binding upon member

perfected until the applicant has been certified by the FAA to conduct operations (under
Part 121 of the Federal Aviation Regulations [FARs]) and has obtained adequate liability
insurance: 14 CFR Parts 121 and 205. The applicant must produce a Certificate of Insurance
on OST Form 6410 evidencing adequate liability insurance on all its aircraft; and an FAA
Certificate and Operations Specification authorizing such operations. In reviewing Frank
Lorenzo's fitness to operate a new airline, the Administrative Law Judge (ALJ) concluded
(ATX, Inc. Fitness Investigation, 1993 WL 534627, at 63 (1993)):
Mr. Lorenzo's companies have lived on the edge of the law and have not desisted
from improper conduct until lawsuits or governmental action deterred them from
further transgressions. Since air safety is of paramount importance, the Department
cannot take the risk of certifying an air carrier whose owner exhibits such manifest
contempt for the legal process.
On appeal, the DOT concurred with its ALJ, concluding that because of
Lorenzo's involvement with ATX, its managerial competence and compliance disposition
were lacking. This conclusion was based on DOT's review of safety, service and financial
failure at Lorenzo's prior airlines, as well as the widespread lack of personal good faith and
trustworthiness in his business dealings and legal and regulatory proceedings: ATX, Inc.,
Fitness Investigation, DOT ORDER 94-4-8 (1994). See PAUL STEPHEN DEMPSEY & LAURENCE
GESELL, AIR COMMERCE & THE LAW (COAST AIRE, 2005) at Ch. 4.
11
Convention International Civil Aviation, Art. 1, 61 STAT. 1180 15 U.N.T.S. 185 (Dec. 1944)
reprinted in XVIII ANNALS OF AIR AND SPACE L. 5 (1993) [hereinafter Chicago Convention.]
12
ICAO is composed of 190 contracting States, and thereby encompasses virtually the
entire civil aviation community. The basic aims and objectives of ICAO are to ensure the
safe and orderly growth of international civil aviation throughout the world and to
promote safety of flight in international air navigation. See Assad Kotaite, Security of
International Civil Aviation-Role of ICAO, VII ANNALS OF AIR & SPACE L. 95 (1982)
(discussing role of ICAO in the international aviation community).
13 R.I.R. Abeyratne, Some Recommendations for a New Legal and Regulatory Structure for the

Management of the Offense of Unlawful Interference with Civil Aviation, 25 TRANSP. L.J.115 at
146-47 (1998) [hereinafter cited as Abeyratne].
States that fail to notify ICAO of the differences in their domestic law. 14

Next, this Chapter will examine unilateral and multilateral efforts

to facilitate conformity with international legal obligations in the realm
of aviation safety. It will then turn to a substantive review of the
international and domestic aviation safety requirements, focusing on the
requirements as set forth in the Chicago Convention and its Annexes, the
U.S. model Civil Aviation Safety Act [CASA], and U.S. domestic law.
SARPs are effective only if implemented by member States usually
through their domestic laws, regulations and procedures. Finally, this
Chapter will examine the propriety and efficacy of those activities under
general theories of international relations and principles of international
law.

II. THE DEVELOPMENT OF THE INTERNATIONAL

LAW OF AVIATION SAFETY

A. THE CONVENTIONAL LAW OF INTERNATIONAL CIVIL

AVIATION

As World War II entered its final stages, several prominent

members of the international community expressed concern over the
postwar development of international civil aviation. 15 They realized that
this brave new world would require multilaterally negotiated solutions
to a growing number of political, economic and technical problems.16 In
response to these concerns, the United States hosted an international
conference in the hope that it would lay the foundation for the future

14
"Standards" are mandatory, and usually include the verb "shall" or "will." At the first
ICAO Assembly, the standards were defined as "any specification . . . the uniform
application of which is recognized as necessary for the safety or regularity of international
air navigation and to which Contracting States will conform . . . ; in the event of
impossibility of compliance, notification to the Council is compulsory under Article 38 of
the Convention." ICAO Ass. Res. A1-31. In contrast, a "recommended practice" only has
advisory or recommendatory connotations and includes the verb "shall." Abeyratne, supra,
at 144. ICAO also issues Procedures for Air Navigation Services [PANS] and Regional
Supplementary Procedures [SUPPS]. Id. These involve procedures that have not yet
reached a sufficient degree of maturity for adoption as SARPs or contain material of a more
permanent character that would warrant adoption of it as an Annex. Id. Another form of
rulemaking that has been employed by the Council are the Technical Instructions, which
provide detailed explanations of how Annexes are to be implemented. Id. ICAO was also
given quasi-judicial power to adjudicate disputes between States over the Chicago
Convention. See Dempsey, supra, note 4, at 561.
15
ANTHONY SAMPSON, EMPIRES OF THE SKY: THE POLITICS, CONTESTS AND CARTELS OF
WORLD AIRLINES 65-66 (1984).
16 Id.
growth of the industry.17

Although the Chicago Conference failed in its attempt to formulate

a comprehensive economic policy for international civil aviation, or to
effectuate an exchange of traffic rights,18 it laid the foundation for the
postwar establishment of the ICAO,19 headquartered in Montreal,20 and
gave the organization jurisdiction over the many technical aspects of
international civil aviation.21 Most of ICAO's work has been focused on
aviation safety, navigation, and security,22 though it also has been the

17 Id., 62-69. MCGILL CENTER FOR RESEARCH OF AIR & SPACE LAW, LEGAL, ECONOMIC AND
SOCIO-POLITICAL IMPLICATIONS OF CANADIAN AIR TRANSPORT 521-22 (1980) [citations
omitted]. The second World War not only transformed the scope of the airlines but
produced two contradictory political attitudes to the air. The horrors of air warfare,
culminating in the atomic bomb on Hiroshima, generated a new insistence that both
military and civil aircraft should be separated from national ambitions and put under
international control. Yet every government was more convinced that it must protect and
advance its own airlines, as the lifeline to its trade and security. SAMPSON, supra, at 57
18 Andras Vamos-Goldman, The Stagnation of Economic Regulation Under Public International

Air Law: Examining Its Contribution to the Woeful State of the Airline Industry, 23 TRANSP. L.J.
425, 431 (1996). However, the Chicago Conference drafted two side agreements – the
Transit Agreement and the Transport Agreement – and a draft bilateral air transport
agreement.
19 See ANDREAS LOWENFIELD, AVIATION LAW § II-5 (1972). Today, IACO is a member of the

United Nations' family of international organizations. Id.

20
Id. The participants in the Chicago Conference hoped to reach agreement with respect to
both (a) safety, communications and technology, and (b) economic regulatory issues of
entry, rates, frequency and capacity. The Convention created ICAO and gave it important
responsibilities over the former questions, which it has performed quite well. But ICAO
was given only limited general policy directions over the more controversial economic
issues, and until relatively recently, the organization steered clear of them. Id.
21 ICAO came into being on April 4, 1947, when the Chicago Convention entered into force.

It began operations in 1947 under the umbrella of the United Nations. GERALD F.
FITZGERALD, ICAO NOW AND IN THE COMING DECADES, IN INTERNATIONAL AIR TRANSPORT:
LAW ORGANIZATION AND POLICIES FOR THE FUTURE 47, 52 (N. Matte ed., 1976). Michael
Milde, The Chicago Convention—After Forty Years, IX ANNALS OF AIR & SPACE L. 119 (1984).
22
Chicago Convention, supra, Annex 17. Annex 17 is supplemented by the ICAO SECURITY
MANUAL FOR SAFEGUARDING CIVIL AVIATION AGAINST ACTS OF UNLAWFUL INTERFERENCE
(ICAO DOC. 8973) (6TH ED. 2002) and its STRATEGIC ACTION PLAN. Abeyratne, supra, at 121-
130. In addition, several multilateral conventions have been drafted under ICAO auspices,
including:
The Tokyo Convention of 1963 requires that a hijacked aircraft be restored to the
aircraft commander and the passengers be permitted to continue their journey. Convention
on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 U.S.T. 2941,
T.I.A.S. NO. 6768, 704 U.N.T.S. 219, reprinted in 58 AM. J. INT'L L. 566 (1959), and XVIII
ANNALS OF AIR & SPACE L. 169 (1993), and PAUL STEPHEN DEMPSEY, LAW & FOREIGN POLICY
IN INTERNATIONAL AVIATION 433 (1987).
The Hague Convention of 1970 declares hijacking to be an international "offense"
and requires the State to which an aircraft is hijacked to extradite or exert jurisdiction over
the hijacker and prosecute him, imposing "severe penalties" if he is found guilty.
Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U.S.T. 1641,
forum for updating liability and other Private International Law regimes
in civil aviation.23 Indeed, ICAO's principal objective is "ensuring the
safety of international civil aviation worldwide . . . ."24

Article 12 of the Chicago Convention requires every contracting

State to keep its regulations uniform, to the greatest extent possible, with
those established under the Convention. 25 Article 37 attempts to achieve
uniformity in air navigation, by requiring that every contracting State
cooperate in achieving the "highest practicable degree of uniformity in
regulations, standards, procedures, and organization in relation to
aircraft personnel, airways and auxiliary services in all matters in which
uniformity will facilitate and improve air navigation."26 The sentence
that follows provides, "[T]o this end [ICAO] shall adopt and amend from
time to time . . . international standards and recommended practices and

T.I.A.S. NO. 7192, reprinted in 10 I.L.M. 133 (1971), XVIII ANNALS OF AIR & SPACE L. 201
(1993), and PAUL STEPHEN DEMPSEY, LAW & FOREIGN POLICY IN INTERNATIONAL AVIATION
441 (1987).
The Montreal Convention of 1971 not only expands the definition of "offense" to
include communications of false information and unlawful acts against aircraft or air
navigation facilities, but also requires prosecution thereof. Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 567, 974 U.N.T.S.
177 (entered into force on Jan. 26, 1973, with 150 ratifications), reprinted in XVIII ANNALS OF
AIR & SPACE L. 225 (1993), and PAUL STEPHEN DEMPSEY, LAW & FOREIGN POLICY IN
INTERNATIONAL AVIATION 445 (1987). See PAUL STEPHEN DEMPSEY, ET. AL. AVIATION LAW &
REGULATION § 9.13 (1992).
The Montreal Protocol of 1988. Protocol for the Suppression of Unlawful Acts of
Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the
Suppression of Unlawful Acts Against the Safety of Civil Aviation (added airport security to the
international regime). ICAO DOC. 9518, reprinted in XVIII ANNALS OF AIR & SPACE LAW 253
(1993).
The Montreal Convention of 1991 prevents the manufacture, possession, and
movement of unmarked explosives. Convention for the Suppression of Unlawful Acts Against
the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570, reprinted in 10
I.L.M. 115, XVIII ANNALS OF AIR & SPACE L. 269 (1993)
For a review of the work ICAO has done in the area of security, see DEMPSEY, supra, and
Paul Stephen Dempsey, Aerial Terrorism: Unilateral and Multilateral Responses to Aircraft
Hijacking, 2 CONN. J. INT'L L. 427 (1987).
23 See, e.g., Paul Stephen Dempsey, Pennies From Heaven: Breaking Through the Liability

Limitations of Warsaw, XXII ANNALS OF AIR & SPACE L. 267, 271 (1997).
24
ICAO ASSEMB. RES. 32-11.
25
"The elimination of the multitude of conflicting national aeronautical regulations,
through the domestic implementation of the regulatory SARPs prescribed in the Annexes,
would be an immense step forward in facilitating international civil aviation." THOMAS
BUERGENTHAL, LAW MAKING IN THE INTERNATIONAL CIVIL AVIATION ORGANIZATION 102
(1969).
26
Chicago Convention, supra, art.1, 61 STAT. 1180 15 U.N.T.S. 185 (Dec. 1944) reprinted in
XVIII ANNALS OF AIR AND SPACE L. 5 (1993).
procedures" addressing various aspects of air navigation. 27 Therefore,
ICAO's 190 member States have an affirmative obligation to conform
their domestic laws, rules, and regulations to the international leveling
standards adopted by ICAO.28

In 1948, the ICAO Council adopted a resolution encouraging

contracting States to adopt "so far as practicable, the precise language of
those ICAO Standards that are of a regulatory character . . . ."29 ICAO
has drafted its Annexes in a way to "facilitate incorporation, without
major textual changes, into national legislation."30 Annex 1 (Personnel
Licensing),31 Annex 6 (Operation of Aircraft),32 and Annex 8
(Airworthiness of Aircraft)33 require ICAO's 190 member States to
promulgate domestic laws and regulations to certify airmen, aircraft, and
aircraft operators as airworthy and competent to carry out safe
operations in international aviation.34 Subject to the notification of
differences, the legal regime effectively assumes that States are in
compliance with these safety mandates.35 Thus, although member States
retain the right to restrict particular aircraft from their skies,36 they lose
the right to ignore the safety mandates of the relevant international
organization – ICAO.37 This assumption of universal compliance goes
further, with the Chicago Convention requirement that an airman or
operator certificate, or certificate or airworthiness, properly issued by

27 Id.
28
Id.
29
Id. Annex 1 (Personnel Licensing).
30
Id.
31 Id.
32 Id. Annex 6 (Operation of Aircraft).
33 Id. Annex 8 (Airworthiness of Aircraft).
34 Id.
35
However, Prof. Buergenthal insists no such presumption is warranted. BURGENTHAL,
supra, at 67.
36 BIN CHENG, THE LAW OF INTERNATIONAL AIR TRANSPORT 3 (1962); see SAMPSON, supra, at

69-70. Dr. Michael Milde summarized the principle of sovereignty as embraced by the
Chicago Convention:
The Convention on International Civil Aviation—the cornerstone of legal regulation of
international civil aviation for the past forty years—is based on the principle of
complete and exclusive sovereignty of States over their airspace. . ., except with
special permission or authorization. Consequently, the granting of the economic
rights to carry traffic remains a sovereign prerogative of each contracting State and
is dealt with in bilateral agreements on air services which take into consideration
mutual economic benefits of the States concerned and the proper balance of interest
between such States.
Milde, supra, at 121-22.
37 See SAMPSON, supra, at 69-70.
one contracting State shall be recognized as valid by all others.38

Under Article 33, States are obliged to recognize the validity of the
certificates of airworthiness and personnel licenses issued by the State in
which the aircraft is registered, so long as the standards under which
such certificates or licenses were rendered are at least as stringent as
those established under the Chicago Convention. 39 But this principle of
mutual recognition works only if all States are implementing the SARPs
with an equal degree of diligence. For much of the 20th century, too
often, it was too difficult or impossible to tell. 40 The negative
implications of Article 33 are that if a State fails to comply "with the
minimum standards which may be established from time to time
pursuant to this Convention", then other States are not obliged to
recognize the validity of the Certificates of Airworthiness issued by the
delinquent State, and may therefore ban its aircraft from their skies, even
when they have conferred traffic rights to the State pursuant to Article 6
of the Convention. This is an important incentive for compliance with
the international obligations established by ICAO.

B. INTERNATIONAL STANDARDS AS SOFT LAW, OR HARD

LAW?

The ICAO Council41 is authorized to adopt international standards

and recommended practices [SARPs] on issues affecting the safety and

38 Chicago Convention, supra, art. 33.

39 A similar provision was included in Article 13 to the Paris Convention of 1919, the
predecessor of the Chicago Convention. US courts have recognized the duty of the FAA to
abide by its Article 33 Chicago Convention obligation to recognize as valid licenses issued by
another signatory State, provided that the requirements underlying such licenses are equal
or superior to those required under the Annexes. Professional Pilots v. FAA, 118 F.3D 758,
768 (D.C. CIR. 1997); British Caledonian Airways v. Bond, 665 F.2D 1153, 1162 (D.C. CIR. 1981).
See also, In the Matter of Evergreen Helicopters, (2000 FAA LEXIS 247 (2000)).
40 As one scholar noted in 1995, "Very low levels of response by States to amendments to

annexes, completely inadequate response levels regarding the notification of differences to

standards, and perhaps even instances of misrepresentation of national regulatory
provisions and responsibilities, evidence shortcomings of the present ICAO framework in
the field of safety oversight." Roderick D. van Dam, Recent Developments in Aviation Safety
Oversight, XX ANNALS OF AIR & SPACE L. 307, 317 (1995). Dr. John Saba observed, "Many
States still fail to remedy aviation safety deficiencies, often due to a lack of will, means,
and/or ability to do so." Saba, supra, at 544.
41 The ICAO Council, not the Assembly, is the supreme body of the agency because it holds

the power to exercise both the quasi-legislative and quasi-judicial powers of the agency.
See Peter Ateh-Afac Fossungu, The ICAO Assembly: The Most Unsupreme of Supreme Organs
in the United Nations System: A Critical Analysis of Assembly Sessions, 26 TRANSP. L.J. 1, 2
(1998).
efficiency of air navigation42 and, for convenience, designate them as
Annexes to the Chicago Convention.43 Though designated as Annexes
for convenience, the SARPs do not actually become part of the
Convention.44 Thus, the question arises as to whether SARPs are "soft
law" or "hard law."45

Although there is an obligation to attempt to achieve uniformity in

law under Article 37, Article 38 of the Chicago Convention provides that
any State finding it impracticable to comply with SARPs, or which has or

42
SARPs, designated for convenience as Annexes to the Convention, shall be effective in a
period of time not less than three months after they are approved by a two-thirds vote of
the ICAO Council, unless a majority of States register their disapproval within that period.
Chicago Convention, supra, at Arts. 37, 54(l), 90.
43
Id., 54(l). The ICAO Council has adopted the following Annexes:
Annex 1: Personnel Licensing
Annex 2: Rules of the Air
Annex 3: Meteorology
Annex 4: Aeronautical Charts
Annex 5: Units of Measurement to be Used in Air-Ground Communications
Annex 6: Operation of Aircraft, International Commercial Air Transport
Annex 7: Aircraft Nationality and Registration Marks
Annex 8: Airworthiness of Aircraft
Annex 9: Facilitation of International Air Transport
Annex 10: Aeronautical Telecommunication
Annex 11: Air Traffic Services
Annex 12: Search and Rescue
Annex 13: Aircraft Accident Inquiry
Annex 14: Aerodromes
Annex 15: Aeronautical Information Services
Annex 16: Environmental Protection
Annex 17: Security—Safeguarding International Civil Aviation Against Acts of
Unlawful Interference
Annex 18: Safe Transport of Dangerous Goods by Air
DEMPSEY, supra, at 275.
44 Amendments to the Chicago Convention require a two-thirds vote of the members of the

ICAO General Assembly and ratification by not less than two-thirds of the contracting
States. Chicago Convention, supra, Art. 94. In contrast, the predecessor convention – the
Paris Convention of 1919 – created the Commission Internationale de la Navigation Aerienne,
and gave it power to promulgate Annexes thereto as binding amendments to the
Convention. That is one of the reasons the United States, unwilling to vest lawmaking
authority in an international organization, failed to ratify the Paris Convention.
45 Christine Chinkin writes: "The complexity of international legal affairs has outpaced

traditional methods of law-making, necessitating management through international

organizations, specialized agencies, programmes, and private bodies that do not fit the
paradigm of Article 38(1) of the Statute of the [International Court of Justice].
Consequently the concept of soft law facilitates international co-operation by acting as a
bridge between the formalities of law-making and the needs of international life by
legitimating behavior and creating stability." CHRISTINE CHINKIN, COMMITMENT AND
COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM
(DINAH SHELTON ED. 2000).
adopts regulations different therefrom, "shall give immediate
notification" to ICAO of the differences.46 The Council is then obliged
immediately to notify other States of such noncompliance.47 Thus, if a
State submits its objection in a timely fashion on grounds of the
impracticability of compliance, it may reject an Annex either in whole or
part.48 This "opt out" provision arguably makes the SARPs only "soft
law," for the SARPs can hardly be deemed binding if States are free to
reject them on the subjective self-determination that it would be
"impracticable to comply."49

SARPs become effective as Annexes to the Convention not less

than three months after they are approved by a two-thirds vote of the
Council, unless during that period they are disapproved by a majority of
the members of the ICAO General Assembly. 50 Typically, they are not
issued until after extensive consultation with member States, and
consensus is achieved, a process that takes two years or longer. Indeed,
member States are obliged by Article 37 of the Chicago Convention to
collaborate in achieving the "highest practicable degree of uniformity" in
the adoption of SARPs.

If the requirement for immediate notification of non-compliance is

triggered by the date on which the SARP becomes effective, or from the
date on which they are notified of its adoption,51 it would seem a State
would be bound if it failed to notify ICAO of the difference promptly, or
in fact, immediately. But if the immediate notification requirement is
triggered by the discovery by a State of the impracticability of
compliance with SARPs, then such notification can come at any time –

46 With respect to amendments to the SARPs, under Article 38 of the Chicago Convention,
any State that does not amend its own regulations to comply therewith, must notify ICAO
within 60 days; and the ICAO Council shall, in turn, notify member States of the
differences. Chicago Convention, supra, Art. 38.
47 Id. Art. 38.
48 BUERGENTHAL, supra, at 67. "With some exceptions . . . the Contracting States have no

legal obligation to implement or comply with the provisions of a duly promulgated Annex
or amendment thereto, unless they find it 'practicable' to do so." Id., 76. Burgenthal also
argues that "contracting States have retained the right to depart from the provisions of an
existing standard any time they decide to so, provided only that they notify the
Organization accordingly." Id., 78. This interpretation is inconsistent with the literal
language of Article 38, which requires "immediate notification" as to differences between
domestic law and the SARPs and notification "within sixty days" of differences between
domestic law and ICAO amendments to the SARPs. Chicago Convention, supra, art. 38.
49 Chicago Convention, supra, art. 38. Milde, supra, at 5. However, to date, no SARPs have

ever been rejected by the ICAO General Assembly. Id.

50
Chicago Convention, supra, art. 90(a).
51 Id. art. 90(b).
indeed, years or decades after the standards become effective. In
practice, States have notified ICAO of impracticality of compliance with
SARPs at any time, or indeed, not at all, thereby violating the plain
meaning of the phrase "immediate notification".52 Given the way Article
38 is worded, "immediate notification" of an inability to comply with
newly promulgated SARPs should mean immediately upon its
promulgation.

Article 38 also provides that notification of a difference between a

State's domestic law and an amendment to a SARP must be made within
sixty days of the adoption of the amendment. Failure to notify ICAO
within the 60 day period would therefore lead to a presumption of
compliance, and arguably, binding applicability. Why would a State
have an open window ad infinitum to opt out for any newly promulgated
SARP, and only a sixty-day opt out period for any amendment thereto?
Literally, Article 38 must mean that if a State finds it impracticable to
comply, it must immediately so notify the Council upon being notified
that a SARPs has been adopted by it, and within 60 days of an
amendment. It would have been cleaner draftsmanship and a far more
meaningful notification requirement, had the Convention explicitly
addressed the need to notify promptly after SARPs promulgation, and
provided that a State that failed to notify would be deemed in
compliance and bound thereby.

Blending the requirements of Articles 37 and 38, a State has an

affirmative duty to harmonize its domestic law with the SARPs.53 This
duty is emasculated by the ability of a State to opt-out if it deems it
impracticable to comply.54 If it finds impracticality, it has a duty to notify
ICAO immediately (though it is unclear whether it must notify
immediately after the promulgation of the SARPs or immediately upon
discovering the impracticality), unless it is an amendment to a SARPs, in
which case it must notify ICAO within 60 days.55 But in practice, these
notification requirements are hollow, as they have been ignored by most
States.

In effect, this peculiar process creates something of a paradox in

international law. Article 1 of the Chicago Convention recognizes that
all member States reserve complete and exclusive sovereignty over the

52
Id.
53
Id.
54
Id. arts. 37, 38.
55 Id.
airspace above their territories.56 Article 37 gives ICAO the authority to
promulgate Annexes to the Chicago Convention, and member States
must comply with the Annex standards and procedures57 unless they
promptly object under Article 38. Most do not exercise their right to
object, either because they agree to the standards imposed upon them, or
because their transport or foreign ministries lack a sophisticated
understanding of the obligations to which they have been subjected, or
of their duty to notify ICAO of the impracticability of compliance. In
fact, although States have an obligation to notify ICAO of differences
between the standards and procedures set forth in the Annexes and their
domestic legislation, and are encouraged to notify ICAO even if there are
none,58 the overwhelming majority of States do neither.59 As we shall see
below, the ICAO audit programmes have significantly elucidated the
degree of State compliance with certain Annexes. However, the failure
of States to notify ICAO of differences between their domestic laws and

56
In the Chicago Convention of 1944, the world community reaffirmed a basic principle that
had been the foundation of its predecessor, the Paris Convention of 1919: "The Contracting
States recognize that every State has complete and exclusive sovereignty over the airspace
above its territory." Chicago Convention, supra. PAUL STEPHEN DEMPSEY, LAW & FOREIGN
POLICY IN INTERNATIONAL AVIATION 387 (1987). See Abeyratne, supra, at 136 (1998).
57See DEMPSEY, supra, at 387; Abeyratne, supra, at 136. Compare Chicago Convention, supra,

art. 1. (In the Chicago Convention of 1944, the world community reaffirmed a basic principle
that had been the foundation of its predecessor, the Paris Convention of 1919: "The
contracting States recognize that every State has complete and exclusive sovereignty over
the airspace above its territory") with Paris Convention. DEMPSEY, supra, at 387.
58 Chicago Convention, supra, Annex 15.
59
With respect to the overwhelming number of Annexes, between 1984-1994, fewer than
half the States notified ICAO of differences to amendments of Annexes. Abeyratne, supra,
at 131. Dr. Abeyratne concludes, "It is impossible at the present time to indicate with any
degree of accuracy the State of the implementation of regulatory Annex material." Id., 132.
ICAO attributes this failure to notify to four causes:
Insufficient communication between ICAO and recipient States; loss of
documentation by recipients and delays in delivering the documentation to the
responsible party beyond the target date for replies; organizational structures of
civil aviation authorities which render difficulties n identification of, and routing
to, the responsible party;
Insufficient resources within States to expeditiously consider and process ICAO
documentation and to implement the relevant standards into their national
legislation;
Difficulty in comprehending and interpreting Annex material as well as subject
matter which is beyond the level of expertise of the recipient administration; and
Possible lack of understanding about the role of States in the consultation phase
of the development of ICAO Standards.
Id., 132-33. Dr. Abeyratne adds, "More fundamentally, it is always a possibility that States
may have insufficient resources either to implement Standards or to advise ICAO of non-
compliance with relevant Standards. Id., 133. He reaches identical conclusions in R.I.R.
Abeyratne, Prevention of Controlled Flight into Terrain: Regulatory and Legal Aspects, 27
TRANSP. L.J. 159, 167-68 (2000).
regulatory practices and the SARPs created tremendous uncertainty as to
whether uniformity is being achieved, a condition potentially dangerous
in an area such as aviation safety.60 There is no explicit sanction in the
Convention for failing to notify.61

But a State fails to comply with the SARPs at its own peril, for as
noted above, there are implicit sanctions that are potentially severe.
Pursuant to Article 33 of the Chicago Convention, a State that fails to
comply may find its airman, aircraft, air carrier, and/or airport
certifications and licenses not recognized as valid by a foreign
government, thereby terminating their operation to, from, or through
foreign territories, isolating it from the global economy.62 When
economically powerful States, such as the United States or the European
Union, blacklist a nation's carriers, the economic impact can be severe.
Under such circumstances, private sector insurance coverage for airlines
and airports may be impossible to obtain.63 Moreover, the delinquent
government would be responsible, and arguably liable, should an
aircraft collision or other aviation tragedy occur, the proximate cause of
which was the failure of the government to comply with a relevant
SARP.64 Hence, whatever de jure "soft law” attributes SARPs may have,
they appear to have corresponding de facto "hard law" attributes as
well.65

60
For example, as of 2000, 55 States had notified ICAO of the differences between their
domestic laws and Annex 1; 21 States notified ICAO that there were no differences; and 109
provided no notification whatsoever. See Chicago Convention, supra, Supplement to Annex 1
(Personnel Licensing). For an earlier summary of the poor response rates of member States
to their conformity with the requirements of the Annexes to the Chicago Convention,
Michael B. Jennison, The Chicago Convention and Safety After 50 Years, XX ANNALS OF AIR &
SPACE L. 283, 291 (1995). One should not assume that the failure of a State to report its
differences means that it has none. BUERGENTHAL, supra, at 99.
61
Chicago Convention, supra.
62
Id.
63
Id.
64 One might argue that the failure to notify ICAO of differences results in a presumption

of full compliance with the standards at issue, and that such States should bear full legal
liability for any harmful consequences of their non-compliance. See Michael Milde, The
Chicago Convention – Are Major Amendments Necessary or Desirable 50 Years Later?, XIX
ANNALS OF AIR & SPACE L. 401, 426 (1994). In the same way, States may also be liable for
the negligent provision of air traffic services. See Paul Stephen Dempsey, Privatization of
the Air: Government Liability for Privatized Air Traffic Services, XXVIII ANNALS OF AIR & SPACE
L. 95 (2003).
65 Herbert V. Morais, The Quest for International Standards: Global Governance vs. Sovereignty,

50 KAN. L. REV. 779, 780-81 (2002).

"For the most part, international standards have been developed and disseminated
as norms or principles for voluntary acceptance by countries and other persons. In
this sense, international standards would not be legally binding norms and would
 Finally, there is one major area in which the SARPs are decidedly
"hard law". Article 12 of the Chicago Convention provides, inter alia,
that: "over the high seas, the rules in force shall be those established
under this Convention."66 Hence, ICAO has lawmaking authority over
72% of the Earth's surface.67 This jurisdictional scope, which is
unparalleled by any other international organization, in effect, makes
ICAO a paradigm of global governance.68

C. BILATERAL REQUIREMENTS

Article 6 of the Chicago Convention provides, "No scheduled

international air service may be operated over and into the territory of a
contracting State, except with the special permission or other
authorization of that State, and in accordance with the terms of such
permission or authorization."69 The failure of the Chicago Convention to
address economic regulatory issues led to a series of bilateral
negotiations between States. In 1946, the United States and the United
Kingdom concluded a bilateral air transport agreement (popularly
referred to as Bermuda I) which exchanged traffic rights (sometimes
referred to as "hard rights") between the two States, and provided a
mechanism for regulating rates.70 For four decades, Bermuda I was the
template by which US bilateral agreements were negotiated, and for a
number of other nations as well.71

Bermuda I also addressed various "soft rights" issues.72 One such

issue addressed was safety. Bermuda I provides that the certificates of
airworthiness, competency, and licenses issued by one contracting State

be generally viewed as 'soft law.' However, it is important to recognize at the same

time that several standards have taken the form of binding legal rules established
by international treaty or national legislation, and, in these cases, the standards
constitute 'hard law."
Id. However, the SARPs over the high seas under Annex 2 apply without exception. See
Chicago Convention, supra, Annex 2.
66 Chicago Convention, supra, Art. 12.
67 Id.
68
Id.
69 Chicago Convention, Art. 6.
70 Id.
71 See Paul Stephen Dempsey, Turbulence in the 'Open Skies': The Deregulation of International

Air Transport, 15 TRANSP. L.J. 305, 314-18 (1987). The principal areas in which other nations
diverged from the Bermuda I model was on its absence of predetermination of capacity
and pooling provisions. Id.
72
Air Services Agreement, Feb. 11, 1946, U.S.-U.K., 60 STAT. 1499, T.I.A.S. NO. 1507; reprinted
in DEMPSEY, supra, at 419.
shall be honored as valid by the other.73 Subsequent agreements have
repeated, and elaborated on, this succinct clause.74

A typical, modern "open skies" bilateral agreement is the US-

Singapore bilateral air transport agreement.75 It repeats Bermuda I's
reciprocal recognition clause, but adds that such recognition is
contingent on the application by the State of registry of requirements for
such licensing or certification at least as stringent as those set forth in the
Chicago Convention and its Annexes, echoing Article 33 of the Chicago
Convention.76 It further provides that either State may request
consultations concerning the aviation safety standards maintained by the
other.77 Following such consultations, should one State conclude that the
other does not maintain safety standards at least as stringent as those
required under the Chicago Convention and its Annexes, the other State
shall be notified of the deficiency and the steps necessary to cure it.78
The State exhibiting the deficiency must then take appropriate corrective
action.79 In the event the other State fails to take such action in a
reasonable time, the State concerned about the deficiency may "withhold,
revoke, suspend, or limit the operating authorization or technical
permission" of the other's flag-carriers.80

There is no corresponding provision in the bilateral air transport

agreements to the Chicago Convention's "opt out" provision if a State
finds it impracticable to comply with a SARP. Hence, the impracticality
argument arguably is not a defense to noncompliance, allowing the
concerned State party to the bilateral to restrict the air services of the
noncompliant State over its territory.

The legal question boils down to a conflict between Article 33 of

the Chicago Convention, obliging a State to accept a foreign carrier's

73
Air Services Agreement, supra, at art. 4. "Soft rights" include such things as obligations
for nondiscriminatory treatment, and are distinguished from "hard rights" which include
such things as authorization to fly certain routes.
74 A typical, modern approach is found in the so-called multilateral "APEC Multilateral

Agreement”. It repeats Bermuda I's reciprocal recognition clause, but adds that such
recognition is contingent on the requirements for such licensing or certification are at least
as stringent as those set forth in the Chicago Convention and its Annexes, echoing Article
33 of the Chicago Convention.
75 Air Transport Agreement, Apr. 8, 1997, U.S.-Singapore, 3 CCH AVI. ¶ 26,495A.
76Id. arts. 1(d); 6(1).
77
Id.
78
Id.
79
Id.
80 Id., Art. 6(2).
certificate of airworthiness if the registering State has met or exceeded its
obligations as specified in the relevant SARPs (as amended by that
State's notification of differences on grounds of impracticability of
compliance under Article 38), and Article 6, prohibiting international air
service without the permission or authorization of the territorial State,
and only pursuant to the terms of such permission or authorization. If a
bilateral air transport agreement requires compliance with SARPs
irrespective of the State's impracticality of compliance therewith, flights
would not be pursuant to the terms of such permission or authorization.

So, would Article 33 trump Article 6, or would Article 6 trump

Article 33? One could argue that in the context of safety, Article 33
would take precedence, as it is located in Chapter V of the Chicago
Convention, "Conditions to Be Fulfilled with Respect to Aircraft". If
aircraft are unairworthy because of SARPs deficiencies, that question
would seem to be better addressed among the aircraft airworthiness
provisions of Chapter V. And there, certificates of airworthiness may
only be denied if the registering State falls below the minimum
standards established in SARPs. SARPs include the unilateral ability of
States to "opt-out" of whatever standards with which it finds
impracticable to comply under Article 37.

Article 6 is housed in Chapter II, "Flight over Territory of

Contracting States". Though several of its provisions address safety,81
Articles 5, 6 and 7 address traffic rights. Article 6 provides the
foundation for the exchange of traffic rights, usually accomplished
through bilateral air transport agreements. It is unclear whether a State
can amend its obligations under Article 33 to recognize the validity of
the certificates of airworthiness issued by another State in compliance
with the SARPs as promulgated under the Chicago Convention via what
is essentially a contract (i.e., a bilateral air transport agreement).

It would seem that its obligation to the Chicago Convention is one

to the world of 190 ICAO member States, one that could not be
abrogated by a separate bilateral agreement. It would also seem that
picking and choosing the States with which it will recognize certificates
of airworthiness under Article 33 would undermine the Convention's
repeated goals of achieving uniformity in safety standards worldwide –
a fundamental purpose of the Chicago Convention. Thus, a State could

81For example, Article 8 restricts pilotless flights, Article 9 allows establishment of

prohibited areas, Article 11 provides that the territorial State's air regulations govern flights
above it, and Article 12 requires the registering State ensure compliance with the territorial
State's regulations.
only legitimately deny another State's entry (so long as it held traffic
rights) if the registering State was failing to comply with its obligations
under the SARPs, which would be a factual question that would include
an assessment of which standards it had opted out. If a State wanted to
terminate traffic rights, the termination clause of the relevant bilateral air
transport agreement would provide the procedure. Usually, a bilateral
termination clause imposes a one year "wind down" after formal notice
of renunciation.

III. DOMESTIC COMPLIANCE WITH

INTERNATIONAL AVIATION SAFETY
REQUIREMENTS

A. TO COMPLY, OR NOT TO COMPLY: THAT IS THE

QUESTION

The system of universal trust and mutual recognition established

by the Chicago Convention was jeopardized by the fact that many States
were not conforming to the SARPs. 82 Some States were too poor to
establish effective air navigation and safety agencies or, if established, to
fund or staff them adequately so as to enable them to fulfill their
mandate.83 Others had not promulgated laws and regulations to fulfill
their obligations under the SARPs.84 In some States, civil aviation does
not receive the attention governmental leaders accord other ministries
and agencies deemed "more important."85 Like most specialized United

82 Professor Michael Milde observed that:

[T]he vast law-making work of the Council in the drafting of the [SARPs]
represents the most visible and monumental achievement of ICAO during its
existence, contributing significantly to safe and orderly air navigation. However,
the real and effective level of implementation of [SARPs] by the contracting States
on a global level is a matter of grave concern and doubt.
Milde, supra, at 425-26.
83
In 1992, the ICAO Assembly recognized that many States "may not have the regulatory
framework or financial and technical resources to carry out the minimum requirements of
the Chicago Convention and its Annexes." ICAO ASSEMB. RES. 29-13.
84
Id.
85
Dr. John Saba enumerates four major reasons why States fail to comply with their
obligations under the Chicago Convention Annexes:
Primary aviation legislation and regulations may be either non-existent or
inadequate (for example, a failure to provide adequate enforcement powers);
Institutional structures that regulate and supervise aviation safety often do not
have the authority and/or autonomy to effectively satisfy their regulatory duties;
Human resources in many States may be plagued by a lack of appropriate expertise
largely do to inadequate funding and training (and trained staff may leave
government jobs for better-paying jobs in the aviation industry); and
Financial resources allocated to civil aviation safety are insufficient since many
Nations agencies, ICAO possessed no enforcement power to sanction
violators.86

In 1992, the ICAO General Assembly explicitly called upon States

to reaffirm their safety obligations, particularly those in Annexes 1 and 6
of the Chicago Convention, and urged them to "review their national
legislation implementing those obligations and to review their safety
oversight procedures to ensure effective implementation . . . ."87 ICAO
encouraged member States to "promote global harmonization of national
rules" for the implementation of the SARPs and "to use in their own
national regulations, as far as practicable, the precise language of ICAO
regulatory standards in their application of ICAO standards and seek
harmonization of national rules with other States in respect of higher
standards they have in force or intend to introduce."88 Three years later,
the ICAO Secretariat reached the discouraging conclusion that it was
"impossible to indicate with any degree of accuracy or certainty what the
State of implementation of regulatory Annex material really is, because a
large number of contracting States have not notified ICAO of their
compliance with or differences to Standards in the Annexes for some
considerable time."89 Though ICAO had attempted to facilitate
compliance by the publication of numerous manuals instructing member
States on how to comply,90 many States either could not, or would not,
implement their international legal aviation safety obligations.

developing/LDC countries to not consider this a high priority compared to other

demands such as health care, education, irrigation and poverty.
Saba, supra, at 545.
86
Dennis Morris, Up in the Air: Can the Principle of National Sovereignty Underlying the
Chicago Convention Satisfy the Future Needs of International Aviation?, 20 L.A. L. REV. 34, 42
(1997). The only enforcement power ICAO has addresses the dispute settlement authority
of the Council under Chapter XVIII of the Chicago Convention. If an airline fails to comply
with a Council decision, its operations shall be suspended by all contracting States, and its
government shall lose its vote in the ICAO General Assembly. See Chicago Convention,
supra, art. 87-88. Because the Council has never rendered a decision on the merits, these
provisions have never been invoked.
87 ICAO ASSEMB. RES. 29-13.
88 ICAO ASSEMB. RES. 29-3.
89 C-WP/10218, ¶ 4.9, quoted in Milde, supra, at 8-9.
90 See, e.g., ICAO DOC. 8335 — Manual of Procedures for Operations Inspection, Certification

and Continued Surveillance; ICAO DOC. 8984 — Manual of Civil Aviation Medicine; ICAO
DOC. 9376 — Preparation of an Operations Manual; ICAO DOC. 9379 — Manual of Procedures
for Establishment and Management of a State's Personnel Licensing System; ICAO DOC. 9388 —
Manual of Model Regulations for National Control of Flight Operations and Continuing
Airworthiness of Aircraft; ICAO DOC. 9389 — Manual of Procedures for an Airworthiness
Organization; ICAO DOC. 9642 — Continuing Airworthiness Manual; ICAO DOC. 9734
— Safety Oversight Audit Manual, Part A — The Establishment and Management of a
State's Safety Oversight System; and ICAO DOC. 9735 — Safety Oversight Audit Manual.
B. UNILATERAL OVERSIGHT OF STATE COMPLIANCE WITH
INTERNATIONAL OBLIGATIONS: NAME AND SHAME

1. THE COURTS CLIP THE WINGS OF THE UNITED STATES:

BRITISH CALEDONIAN v. BOND

Unilateral enforcement of international obligations must follow the

procedural requirements embodied in those obligations. 91 This was the
lesson of British Caledonian Airways Ltd. v. Bond,92 the only case in which
the United States has been brought before a court for violating the
Chicago Convention.

On May 25, 1979, an engine fell off the wing of American Airlines
flight 191, a DC-10, shortly after take-off from Chicago O'Hare
International Airport.93 All 271 people on board the aircraft perished in
the crash.94 Three days later, the Federal Aviation Administration [FAA]
issued an Emergency Airworthiness Directive [EAD] requiring all US
operators of DC-10s to inspect engine pylons. The following day, the
FAA issued another EAD grounding all domestic DC-10s.95 On June 5,
1979, the FAA Administrator issued an Emergency Order of Suspension
(SFAR 40) for all airworthiness certificates for domestic DC-10 aircraft,
and also prohibited the operation in US airspace of all foreign-registered
DC-10 aircraft.96 While one can only speculate as to the motives, the
suspension of foreign-flag aircraft arguably enhanced the safety of US
residents who might board them and also equalized the relative financial
impact on US carriers.

91
Occasionally, a national court has to intervene to force a governmental unit to abide by
the nation's international obligations. Professor Kumm observes, "Whatever the reasons for
widespread State compliance with international law, however, problems of noncompliance
remain sufficiently widespread for national judicial actors to have a potentially significant
role in the enforcement of international law." Mattias Kumm, International Law in National
Courts: The International Rule of Law and the Limits of the Internationalist Model, 44 VA. J. INT'L
L. 19, 23 (2003). US courts have embraced various theories to enforce treaty obligations,
including honor, natural law, contracts, and national interest. Detlev F. Vagts, The United
States and Its Treaties: Observance and Breach, 95 AM. J. INT. L. 313, 324-29 (2001).
92
British Caledonian Airways v. Bond, 665 F. 2D 1153 (D.C. CIR. 1981). The case is discussed
in Troy A. Rolf, International Aircraft Noise Certification, 65 J. AIR L. & COM. 383, 400-02
(2000).
93
British Caledonian, 665 F.2D at 1155.
94
Id.
95
Id.
96 Id.
 Several foreign-flag carriers objected.97 In British Caledonian
Airways v. Bond,98 the US Court of Appeals for the District of Columbia
Circuit found that the relevant airworthiness standards were properly
promulgated by ICAO and set forth in Annex 8.99 The court also found
that Article 33 of the Chicago Convention requires that "the judgment of
the country of registry that an aircraft is airworthy must be respected,
unless the country of registry is not observing the 'minimum standards'
[of Annex 8]."100 It found that the requirements of Article 33 were self-
executing, requiring no implementing legislation by the US Congress. 101

97 Id., 1156.
98
British Caledonian Airways v. Bond, 665 F. 2D 1153 (D.C. CIR. 1981).
99 Id., 1160.
100 Id.
101 Certain provisions of the Chicago Convention impose direct obligations upon member

States and require no implementing legislation.101 According to the US Court of Appeals

for the District of Columbia, these include:
Article 5 – The right of non-scheduled aircraft to fly over another contracting State
or land for non-traffic purposes in another contracting State's territory, subject to
certain conditions;
Article 8 – Pilotless aircraft may not be flown in another State's territory without its
permission;
Article 15 – Airports shall provide uniform and nondiscriminatory conditions, fees,
and charges to aircraft of any contracting State;
Article 16 – Contracting States are free to search aircraft on landing or departure
and inspect the certificates and other documents required by the Convention;
Article 20 – All aircraft shall bear appropriate nationality and registration marks;
Article 24 – Fuel, oil, spare parts, regular equipment, and aircraft stores aboard an
aircraft shall be free from customs duties;
Article 29 – Specified documents must be carried aboard aircraft;
Article 32 – Pilots and operating crews must be licensed;
Article 33 – Certificates of airworthiness that satisfy the requirements of the Chicago
Convention issued by the State of registry must be recognized as valid by other
Contracting States.
However, other Articles require implementing legislation or regulations, including:
Article 12 – Each contracting State must promulgate rules and regulations
governing flight and the maneuver of aircraft, and such regulations must be
uniform, to the greatest possible extent, with those established under the Chicago
Convention;
Article 14 – Each State must take effective measures to prevent the spread of
communicable diseases;
Article 22 – Each State must adopt measures to facilitate and expedite navigation to
prevent unnecessary delays, particularly in implementing immigration, quarantine,
customs, and clearance procedures;
Article 23 – Each State must establish customs and immigration procedures
consistent with the practices established or recommended under the Chicago
Convention; and
Article 28 – Each State must provide air navigation facilities, operational practices
and rules, and aeronautical maps and charts.
British Caledonian Airways v. Bond, 665 F.2D 1153, 1161 (D.C. CIR. 1981).
Hence, States have much to do to fulfill their commitments under the Chicago Convention.
Nonetheless, the US Congress had mandated, under former Section 1102
of the Federal Aviation Act of 1958 that, in exercising and performing his
powers and duties, the FAA Administrator must "do so consistently with
any obligation assumed by the United States in any treaty, convention,
or agreement that may be in force between the United States and any
foreign country or foreign countries."102

The court concluded that:

[B]ecause the Administrator at no time questioned

whether the foreign governments met the minimum safety
standards set by the ICAO, his issuance of SFAR 40 and his
refusal to rescind the order after the foreign governments
had revalidated the airworthiness certificates for aircraft
flying under their flags would appear to have violated
Article 33 and, therefore, section 1102.103

There was but a single proper way for the FAA to restrict a
foreign-flag carrier based upon the airworthiness of its aircraft: "If
doubts about airworthiness exist, one country may refuse to recognize
another country's certificate of airworthiness, but only if the certificating
nation has not observed the minimum standards of airworthiness
established in Annex 8 pursuant to Articles 33 and 37 of the Chicago
Convention."104 The FAA Administrator had failed to do this. Ten years
later, the US would launch a program to ferret out those nations not in
compliance with Annex 8.105

2. US AIRPORT SECURITY AUDITS

102 Id., 1162, citing Section 1102 of the Federal Aviation Act of 1958, 49 U.S.C. § 1502 -1102, 49
U.S.C. § 40105(b).
103
Id., 1162-63. The FAA also argued that Article 9 of the Chicago Convention gave it the
authority to restrict the flight of foreign aircraft into the United States. Article 9(b)
authorizes a State "in exceptional circumstances or during a period of emergency, or in the
interest of public safety, and with immediate effect, temporarily to restrict or prohibit
flying over the whole or any part of its territory, on condition that such restriction or
prohibition shall be applicable without distinction of nationality . . . ." Chicago Convention,
supra, art. 9(b). The British Caledonian court held that "Article 9 is aimed at restricting the
territorial access of all aircraft, rather than restricting the movements of particular types of
aircraft. . . . Article 9 permits a country to safeguard its airspace when entry by all aircraft
would be dangerous or intrusive because of conditions on the ground. Article 9 does not
allow one country to ban landing and take-off because of doubts about the airworthiness of
particular foreign aircraft, in derogation of Article 33." British Caledonian, 655 F. 2D AT 1164.
104
British Caledonian, 665 F.2D AT 1164
105 49 U.S.C. § 44907(e).
 The Foreign Airport Security Act of 1985106 required the FAA to
assess the security procedures of foreign airports and foreign air carriers
that serve the United States. In order to be allowed to serve airports in
the United States, foreign airlines must adopt and implement security
procedures established by the US government. 107 Foreign airlines also
are required to maintain effective security programs.108

To be open to service to and from the United States, foreign

airports are assessed by the DOT to determine whether they satisfy the
requirements established by ICAO under Annex 17. The DOT conducts
a security audit of foreign airports, and if it finds that an airport has
failed to take appropriate security measures, it notifies the appropriate
authorities of its decision and recommends steps to achieve
compliance.109 If the airport fails to comply, the DOT publishes a notice
that the airport is noncompliant in the Federal Register, posts its identity
prominently at major US airports, and notifies the news media.110 It may
also "withhold, revoke, or prescribe conditions on the operating
authority" of an airline that flies to that airport, and the President may
prohibit an airline from flying to or from said airport from a point in the
United States.111

At various times, the DOT has decertified 112 and recertified113

106 PUB. L. 99-83. See PAUL DEMPSEY, WILLIAM THOMS & ROBERT HARDAWAY, AVIATION
LAW & REGULATION § 9.25 (BUTTERWORTH 1993).
107 49 U.S.C. § 44906.
108 49 U.S.C. § 44906:

The Under Secretary of Transportation for Security shall continue in effect the
requirement of section 129.25 of title 14, Code of Federal Regulations, that a foreign
air carrier must adopt and use a security program approved by the Under
Secretary. The Under Secretary shall not approve a security program of a foreign
air carrier under section 129.25, or any successor regulation, unless the security
program requires the foreign air carrier in its operations to and from airports in the
United States to adhere to the identical security measures that the Under Secretary
requires air carriers serving the same airports to adhere to. The foregoing
requirement shall not be interpreted to limit the ability of the Under Secretary to
impose additional security measures on a foreign air carrier or an air carrier when
the Under Secretary determines that a specific threat warrants such additional
measures. The Under Secretary shall prescribe regulations to carry out this section.
109 49 U.S.C. § 44907.
110 49 U.S.C. § 44907.
111 49 U.S.C. § 44907.
112 See e.g., DOT ORDER 98-1-24 (1998) (Port-au-Prince International Airport, Haiti); DOT

ORDER 92-10-17 (1992) (Murtala Mohammed International Airport, Lagos, Nigeria); DOT
ORDER 95-9-15 (1995) (Eldorado International Airport, Bogotá, Colombia); DOT ORDER 96-3-
50 (1996) (Hellenikon International Airport, Athens, Greece); DOT ORDER 95-8-12 (1995)
(Ninoy Aquino International Airport, Manila, Philippines); DOT ORDER 85-7-45 (1985)
various foreign airports—including Lagos, Bogotá, Athens, Manila, Port-
au-Prince, and Beirut—on the basis of FAA security audits. Where the
DOT Secretary has concluded that "a condition exists that threatens the
safety or security of passengers, aircraft, or crew traveling to or from that
airport; and the public interest requires an immediate suspension of
transportation between the United States and that airport,"114 the
Secretary has suspended US and foreign airlines from serving the United
States to or from that airport115 and has imposed fines upon carriers
violating the prohibition.116 The DOT also has denied code-sharing
approval117 to destinations in nations on the Department of State's list of
governments that support terrorism (e.g., Syria).118 Given the significant
economic penalty for denial of the opportunity to serve the US market,
these moratoria have been highly effective in encouraging governmental
and airport authorities to attain security compliance.

3. US SAFETY AUDITS

Airlines in certain developing nations have a higher accident rate

than in developed parts of the world. 119 The United States became
sufficiently concerned with the absence of universal norms in

(Lebanon).
113 See e.g., 2000 DOT AV. LEXIS 128, DOT ORDER 2000-2-6 (2000) (Port-au-Prince

International Airport, Haiti); DOT ORDER 99-12-19 (1999) (Murtala Mohammed

International Airport, Lagos, Nigeria); DOT ORDER 96-12-44 (1996) (Eldorado International
Airport, Bogotá, Colombia); DOT ORDER 96-5-18 (1996) (Hellenikon International Airport,
Athens, Greece); DOT ORDER 96-3-2 (1996) (Ninoy Aquino International Airport, Manila,
Philippines).
114
49 U.S.C. § 44907(e). DOT ORDER 93-8-15 (1993).
115
DOT ORDER (Murtala Mohammed International Airport, Lagos, Nigeria); DOT ORDER
94-12-22 (1994) (denial of application of Nigeria Airlines for an exemption to resume service
to the United States): DOT ORDER 85-7-45 (1985) ("Effective immediately, and until further
order of the Department, the holder and its agents shall not sell in the United States any
transportation by air which includes any type of stop in Lebanon."); DOT ORDER 85-7-14
(1985) ("Recent terrorist activities by groups based in Lebanon have brought into serious
question the security of aircraft transiting that country. Given the unstable State of events
in Lebanon, and the possibility of interference with U.S.-bound aircraft while on the
ground in that country, we find that the public interest requires us to terminate, effective
immediately, all the authority MEA currently holds to conduct scheduled operations to and
from the United States on its own behalf.").
116 DOT ORDER 93-10-26 (1993) (Middle East Airlines).
117 Code-sharing is a means whereby one airline offers seats on the two-letter airline code

and flight number of another, principally in order to deceive consumers that on-line, as
opposed to interline, service is being performed. See Paul Stephen Dempsey, Predation,
Competition & Antitrust Law: Turbulence in the Airline Industry, 67 J. AIR L. & COM. 685 (2002).
118
DOT ORDER 94-4-43 (1994) (Damascus, Syria).
119
Carole Shifrin, Unanimous Aviation Commission Lays Out Blueprint for Change, AVIATION.
WEEK & SPACE TECH. 42, 42 (1998).
international aviation that it established an International Aviation Safety
Assessment Program [IASA] in 1991.120

DOT Secretary Federico Pena announced that the IASA program

had been inaugurated "after a series of accidents and incidents arising in
the US involving foreign commercial aircraft . . . ."121 Ostensibly, the
IASA was launched in response to the incident involving Avianca
Airlines flight 52, which crashed at Cove Neck, New York, on January
25, 1990, after running out of fuel, killing all seventy-three people
aboard.122 Aviation defense attorney George Tompkins, points out,
however, that a closer look at that event reveals that US FAA Air Traffic
Control [ATC] may have been at least as culpable as the pilots flying the
aircraft for the miscommunication that caused the crash. In reaching this
conclusion, Tompkins notes the fact that the plane ran out of fuel after its
scheduled landing at New York Kennedy International Airport was
delayed for two hours subsequent to its initial landing clearance.123 True,
it may have been an old aircraft not maintained according to SARPs
requirements, but these deficiencies were not the proximate cause of the
crash.124

120
See generally, Shadrach Stanleigh, "Excess Baggage" at the F.A.A.: Analyzing the Tension
Between "Open Skies" and Safety Policing in U.S. International Civil Aviation Policy, 23 BROOK.
J. INT'L L. 965 (1998).
121 George N. Tompkins, Jr., Enforcement of Aviation Safety Standards, XX ANNALS OF AIR &

SPACE L. 319, 324 (1995). The US government often has been "reactive" rather than
"proactive" in addressing aviation safety issues. Three crashes between 1956 and 1958, one
involving a crash into a high school, prompted Congress to promulgate the Federal
Aviation Act of 1958, the prevailing US aviation safety legislation. See LAURENCE GESELL &
PAUL STEPHEN DEMPSEY, AIR TRANSPORTATION: FOUNDATIONS FOR THE 21ST CENTURY 419-
20 (COAST AIRE 2005).
122 Anthony Broderick & James Loos, Government Aviation Safety Oversight – Trust, But

Verify, 67 J. AIR L. & COM. 1035, 1039 (2002).

123 George Tompkins contends, "The accident could very likely have been avoided had the

Colombian airline been subject to the same standards of operation as a domestic U.S.
airline." Mark Lee Morrison, Navigating the Tumultuous Skies of International Aviation: The
Federal Aviation Administration's Response to Non-Compliance With International Safety
Standards, 2 S.W. J. OF L & TRADE AM. 621, 642 (1995). But Tompkins never identifies which
Annex or SARPS the Columbian government violated that would have averted the crash.
George Tompkins, Jr., Enforcement of Aviation Safety Standards, XX ANNALS OF AIR & SPACE
L. 319, 324-25 (1995). The only other crash of a foreign-flag aircraft in the US within the
preceding five years was a midair collision of an Aeromexico DC-9 with a small private
aircraft on approach to Los Angeles International Airport on August 31, 1986. Id. That too,
appeared to have been an ATC error. Id.
124 Id. This was also true after the ValuJet crash in the Everglades. The FAA grounded all

53 aircraft for violations having nothing to do with the explosion of improperly packed
oxygen canisters in the cargo hold of ValuJet's aircraft. One wonders whether, if ValuJet's
fleet was so unsafe that it had to be grounded, why did it take a crash to inspire the FAA to
order such suspension?
 Hence, when Secretary Pena was pointing to "a series of accidents
and incidents in the US involving foreign commercial aircraft" as the
predicate for inaugurating the IASA program, it appears the US
government should instead have focused at least as much energy on
FAA ATC errors.125 Other sources have revealed that before IASA was
inaugurated, certain US-flag carriers had complained to DOT that
"airlines operating under non-US flags were able to undercut the US
carriers because of the substantially lower costs of inadequate foreign
safety regulations."126 This implies that the policy issue may have been
driven by airline economics rather than airline safety.

Nevertheless, despite a weak factual predicate, the FAA began to

send out teams to meet with officials of the foreign Civil Aviation
Authorities [CAAs] and airlines and review relevant records. 127 They
would collect evidence to discern whether the foreign CAA and airlines
were in compliance with SARPs.128 Specifically, IASA focused on:

1. Whether the CAA has developed or implemented laws or

regulations in accordance with ICAO standards;
2. Whether it lacks the technical expertise or resources to license or
oversee civil aviation;
3. Whether it lacks the flight operations capability to certify, oversee,
and enforce air carrier operations requirements;
4. Whether it lacks aircraft maintenance requirements; and
5. Whether it lacks appropriately trained inspector personnel
required by ICAO standards.129

125 Tompkins, supra, at 324. See Paul Stephen Dempsey, Privatization of the Air: Government
Liability for Privatized Air Traffic Services, XXVIII ANNALS OF AIR & SPACE LAW 95 (2003).
126 Broderick & Loos, supra, at 1039.
127
Jennison, supra, at 621.
128
57 FED. REG. 38,342 (Aug. 24, 1992).
129
Mark Lee Morrison, Navigating the Tumultuous Skies of International Aviation: The Federal
Aviation Administration's Response to Non-Compliance With International Safety Standards, 2
S.W. J. OF L & TRADE AM. 621, 626 (1995). Another source summarized them differently:
Whether the State had promulgated a law authorizing the appropriate
governmental agency to adopt regulations necessary to satisfy the minimum
standards set forth in the Annexes;
Whether the current regulations meet ICAO standards;
Whether procedures exist to implement those regulations;
Whether air carrier certification, inspection, and surveillance programs meet those
requirements; and
Whether the State has sufficient organizational and personnel resources to
implement those functions.
Olga Barreto, Safety Oversight: Federal Aviation Administration, International Civil Aviation
 In 1994, the FAA fitted IASA with teeth. 130 The FAA announced
that it would publicly disclose the results of its audits, and would
classify countries into three categories, restricting the operations of those
airlines registered in noncompliant States:

 Category I (Acceptable) – these States were fully in compliance

with the SARPs;
 Category II (Conditional) – these States were not in compliance
with the SARPs, and their existing flag-carrier operations to the
US could not be expanded until they were;
 Category III (Unacceptable) – these States were also not in
compliance with the SARPs but had no flag-carrier service to the
US and could not begin such service until they were in
compliance.131

Of the first thirty countries audited, the FAA determined that nine

Organization, and Central American Aviation Safety Agency, 67 J. AIR L. & COM. 651, 656
(2002). The FAA summarizes IASA as follows:
Under the International Convention on Civil Aviation (Chicago Convention)
each country is responsible for the safety oversight of its own air carriers.
Other countries can only conduct specific surveillance activities, principally
involving inspection of required documents and the physical condition of
aircraft.
FAA conducts the International Aviation Safety Assessment Program
(IASA), assessing the Civil Aviation Authority (CAA) of each country that
has carriers operating to the United States. Because of the provisions of the
Chicago Convention and national sovereignty, FAA is not permitted to
evaluate a foreign carrier within its own sovereign state.
An IASA assessment determines if the foreign CAA provides oversight to its
carriers that operate to the United States according to international
standards. The International Civil Aviation Organization (ICAO), a United
Nations agency, and Annexes 1, 6, and 8 of the Chicago Convention develop
those standards.
If the CAA meets standards, FAA gives that authority a Category 1 rating.
Category 1 means the air carriers from the assessed state may initiate or
continue service to the United States in a normal manner and take part in
reciprocal code-share arrangements with U.S. carriers.
IASA ratings (MS Excel) are released to the public.
What happens if a CAA does not meet ICAO standards?
If the CAA does not meet standards, FAA gives that CAA a Category 2
rating.
Category 2 means the air carriers from the assessed state cannot initiate new
service and are restricted to current levels of any existing service to the
United States while corrective actions are underway.
http://www.faa.gov/passengers/international_travel/
130
59 FED. REG. 46, 332 (SEPT. 8, 1994) (to be codified at 14 C.F.R. pt. 129.
131 Id.
African and Latin American governments had inadequate oversight. 132
The US Secretary of Transportation encouraged Americans flying to
those counties either to use US-flag carriers or carriers of other countries
that provide adequate safety oversight.133 In other words, one could fly
safely on US-flag carriers, on an airline from a State that had passed its
IASA audit, or on foreign-flag carriers that had flunked their IASA audit
so long as they "wet-leased" their aircraft and crew from a US-flag
airline.134

The initial IASA audits revealed that two thirds of the countries
were not fully complying with ICAO standards. Deficiencies found in
FAA assessments were almost identical to the deficiencies found by
ICAO, during 1993, in its safety surveillance project surveying six Asian
countries. These deficiencies included:

 inadequate and in some cases nonexistent regulatory legislation; Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm +
 lack of advisory documentation; Indent at: 1.27 cm
 shortage of experienced airworthiness staff;
 lack of control on important airworthiness related items such as
issuance and enforcement of Airworthiness Directives,
Minimum Equipment Lists, investigation of Service Difficulty
Reports, etc.;
 lack of adequate technical data;
 absence of Air Operator Certification [AOC] systems,
 nonconformance to the requirements of the AOC System
 lack or shortage of adequately trained flight operations inspectors
including a lack of type ratings;
 lack of updated company manuals for the use by airmen;
 inadequate proficiency check procedures; and
 inadequately trained cabin attendants.135

Publicly announcing which States had deficient safety oversight

would have a deleterious economic impact upon their air carriers, and
their tourism industries, thereby encouraging, albeit grudgingly,
increased compliance with their legal obligations under the SARPs.136

132
Shirlyce Manning, The United States' Response to International Air Safety, 61 J. AIR L. &
COM. 505, 534 (1996). The nine countries were Belize, the Dominican Republic, Honduras,
Nicaragua, Paraguay, Uruguay, Ghana, Gambia, and Zaire. Morrison, supra, at 642.
133
Tompkins, supra, at 326.
134 Morrison, supra, at 624. A "wet lease" is the lease of an aircraft with crew. A "dry lease"

is the lease of an aircraft without crew.

135
http://www.faa.gov/safety (visited August 10, 2006).
136Id.
 The FAA subsequently reduced its compliance categories from
three to two:

 Category I – in compliance with the SARPs; Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm +
 Category II – not in compliance with the SARPs.137 Indent at: 1.27 cm

The consequences of being designated a Category II State are:

1. The air carriers from the assessed State are restricted to current Formatted: Numbered + Level: 1 + Numbering Style: 1, 2,
levels of any existing service to/from the United States; 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.63 cm +
Tab after: 1.27 cm + Indent at: 1.27 cm
2. No reciprocal code-share arrangements between air carriers for the
assessed State and U.S. carriers are allowed; and
3. The carrier’s aircraft are subject to additional inspections at U.S.
airports.

As revealed in Table 4.1, as of 2007, more than twenty States found

themselves on the FAA list of noncompliant States.

Table 4.1 - FAA Flight Standards Service: International Aviation Safety

Assessment (IASA) Program 03/07/2007

Country Category Country Category

Argentina 1 Denmark 1

Aruba 1 Dominican Republic 1

Australia 1 Ecuador 1

Austria 1 Egypt 1
Bahamas 1 El Salvador 1
Bangladesh 2 Ethiopia 1

Belgium 1 Fiji 1
Belize 2* Finland 1
Bermuda 1 France 1
-Guadeloupe

137 FEDERAL AVIATION ADMINISTRATION: INTERNATIONAL AVIATION SAFETY ASSESSMENT

(PHASE 2 ASSESSMENT RESULTS DEFINITIONS), at

http://www.faa.gov/avr/asa/iasadef5.htm (visited April 26, 2004). Category I States
were deemed in compliance with SARPs. Category II States were not in compliance. Id. If
a nation fell into Category II, it would not be allowed to expand service to the United States
until it achieved Category I status. A Category II nation that did not serve the United
States would be allowed to begin service only if it wet-leased aircraft from a Category I
nation. Id. Public Disclosure of the Results of Foreign Civil Aviation Authority Assessments, 59
FED. REG. 46,332 (SEPT. 8, 1994) (to be codified at 14 C.F.R. PT. 129).
Bolivia 1 -French Polynesia
Brazil 1
Brunei Darussalam 1 Gambia 2*
Bulgaria 2 Germany 1
Canada 1 Ghana 2
Cape Verde 1 Greece 1
Cayman Islands 1 Guatemala 1
Chile 1 Guyana 2
China 1 Haiti 2*
Colombia 1 Honduras 2*

Costa Rica 1 Hong Kong 1

Cote D' Ivoire 2 Hungary 1

Czech Republic 1 Iceland 1

Dem. Rep. of Congo 2* India 1
(Formerly Zaire) Indonesia 2

Ireland 1 Pakistan 1
Israel 1 Panama 1
Italy 1 Paraguay 2*
Jamaica 1 Peru 1
Japan 1 Philippines 1
Jordan 1 Poland 1
Kiribati 2* Portugal 1
Kuwait 1 Qatar 1
Luxembourg 1 Romania 1
Marshall Islands 1 Russia 1
Malta 1 Saudi Arabia 1
Malaysia 1 Singapore 1
Mexico 1 South Africa 1
Morocco 1 South Korea, Rep. of 1
Nauru 2 Spain 1
Netherlands 1 Suriname 1
Netherlands Antilles: 1 Swaziland 2*
-Curacau, Sweden 1
-St. Martin, Switzerland 1
-Bonaire, Taiwan 1
-Saba, Thailand 1
-St.Eustatius Turkey 1
New Zealand 1 Ukraine 2
Nicaragua 2* United Arab Emirates 1
Norway 1 United Kingdom 1
Oman 1 -Anguilla
Org. of Eastern 1 -British Virgin Islands
Caribbean States: Eastern -Montserrat
Caribbean CAA -Turks and Caicos
members: Uruguay 1
-Antigua & Barbuda,
-Dominica, -Grenada, Uzbekistan 2
-St. Vincent and The
Grenadines, -St. Lucia, Venezuela 1
-St. Kitts and Nevis Western Samoa 1
Zimbabwe 2*

Category I: Meets ICAO Standards

Category II: Does Not Meet ICAO Standards

Note - For those countries not serving the U.S. at the time of the assessment, an
asterisk "*" will be added to their Category II determination.

Note also that this process is dynamic. Between 2004 and 2007, Argentina,
Ecuador, Greece, Venezuela, and Uruguay were moved from Category II to
Category 1, while Ghana and the Ukraine fell from Category I to Category II.

By 2014, the following States were designated Category II by the

FAA:

Bangladesh
Barbados
Curacao
Ghana
India
Indonesia
Nicaragua
St. Maarten
Uruguay

The fact that the US has signed Open Skies agreements with
developing nations tilts the commercial benefits strongly in the US
direction when it blacklists that nation's air services. The case of
Venezuela is interesting. In 1995, the FAA flunked Venezuela's aviation
safety after the Avianca crash in New York three years earlier. The FAA
then failed to revisit the question, though the ICAO safety oversight
team twice examined Venezuela's safety regime and found
improvements. Meanwhile, the US-flag carriers (i.e., Continental and
Delta Air Lines) began to dominate the US-Venezuela market. In
January 2006, the Venezuelan government threatened to halt US carrier
flights to Venezuela. The FAA thus was incentivized to reevaluate
Venezuela's safety rating, and gave it a passing grade.138

4. EU BLACKLISTING OF AIRLINES

Blacklisting a State's aircraft from one's skies is nothing new.

During war, the airlines of a belligerent State are banned. During most
of the Cold War, the US refused to allow the world's largest airline,
Aeroflot, to fly to the US, while the Soviet Union banned most western
aircraft from its vast airspace. After Fidel Castro came to power in Cuba,
its airlines were banned from serving US cities.139 Hence, politically-
motivated bans have long been pursued.

A of crashes in 2004-2005 caused the European States to come

together to coordinate their independent lists of banned airlines:140

 In June 2004, an Egyptian Flash Airlines Boeing 737 aircraft with Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm +
133 French nationals on board crashed into the Red Sea. The Indent at: 1.27 cm, Tab stops: Not at 1.27 cm
carrier had been on Switzerland's blacklist.
 In August 2005, a West Caribbean Airways Boeing MD-82 crashed
in Venezuela killing all 160 passengers, 152 of them French
tourists.
 Also, in August 2005, a crash in Greece of a Helios Airways Boeing
737 killed all 121 people on board.141

Several European States had previously blacklisted certain airlines

from their skies:

 The United Kingdom had banned aircraft operated by airlines Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm +
from Equatorial Guinea, The Gambia, Liberia and Tajikistan, as Indent at: 1.27 cm, Tab stops: Not at 1.27 cm
well as Sierra Leone's Star Air and Air Universal, Cameroon
Airlines, Albanian Airlines and the Democratic Republic of
Congo's Central Air Express.
 France banned North Korea's Air Koryo, the United States' Air

138
Jim Landers, When the FAA Goes Abroad, It Returns with New Baggage, DALLAS MORNING
NEWS, JUNE 2, 2006.
139
Overflight rights also were denied Cuba's airlines until Cuba brought a complaint
before the International Civil Aviation Organization. Both the US and Cuba had ratified
the multilateral Air Transit Agreement, conferring First and Second Freedom rights to the
other; hence, the US ban on Cuban flights was unlawful. See Paul Stephen Dempsey,
Flights of Fancy and Fights of Fury: Arbitration and Adjudication of Commercial and Political
Disputes in International Aviation, 32 GA. J. INT'L& COMP. L. 231 (2004).
140
Ron Pradinuk, Why So Mum on Air Safety?, WINNIPEG SUN, APR. 2, 2006, at C11.
141
Dan Bilefsky, EU Puts 92 Foreign Airlines On Its First Safety Blacklist, INTERNATIONAL
HERALD TRIBUNE, MAR. 24, 2006, at 4.
 Saint Thomas, Liberia's International Air Services, Lineas Aer de
Mozambique, and Thailand's Phuket Airlines.
 Belgium banned airlines from the Ukraine, Republic of Central
Africa, Egypt, Armenia, Democratic Republic of Congo, Libya,
Nigeria, Ghana and Rwanda.
 Switzerland banned airlines from Azerbaijan, Egypt, Bulgaria,
Lebanon and Nigeria.142

The EU promulgated regulations governing operating bans on

foreign carriers in late 2005.143 The Regulation provides that bans are to
be imposed "according to the merits of each individual case", evaluating
"whether the air carrier is meeting the relevant safety standards". The
phrase "relevant safety standards" is defined as "the international safety
standards contained in the Chicago Convention and its Annexes as well
as, where applicable, those in relevant Community law."144

In other words, an air carrier may be banned from European skies

even if it meets the requirements of the Chicago Convention and its
Annexes, if it nonetheless violates the safety standards "in relevant
Community law." It is difficult to comprehend how the EU can lawfully
impose requirements beyond those contained in the Annexes to the
Chicago Convention, for its member States are parties to the Chicago
Convention and have an obligation to be bound by it. Though the EU
itself is not a party to the Chicago Convention, its members are and they
are bound by Article 33 to recognize as valid the certificates of
airworthiness issued by the registering State so long as they comply with
the SARPs, irrespective of whether they comply with "relevant
community law."

Three broad areas are assessed under the EU Regulation: (1)

evidence of serious safety deficiencies; (2) the lack or willingness of an
air carrier to address safety deficiencies; and, (3) the lack or ability or
willingness of the governmental authorities responsible for safety
oversight to address safety deficiencies. 145 Only the third of these criteria
correspond to a State's right to ban aircraft as formulated in the Chicago
Convention scheme. And only one of the three subcategories of item
three references that Convention: "audits and related corrective action
plans established under ICAO's Universal Safety Oversight Audit

142
EU Listed the Unsafe Airlines, Austria Today, Mar. 21, 2006.
143
REGULATION (EC) NO. 2111/2005 (DEC. 14, 2005).
144
Id., Art. 2(j).
145 Id, Annex.
Programme"; then it goes on to add "or under any applicable
Community law." Hence, under the Regulation, Community safety
standards hold a virtually equal status to SARPs. The EU concedes: “The
safety audits of the International Civil Aviation Organisation (ICAO)
constitute a pillar and one of the common criteria which are used to
impose an operating ban.”146 Excuse me. One of the criteria? Under the
Chicago Convention, the only legal mechanism for rejecting an air
carrier’s certificate of airworthiness is failure to comply with ICAO
standards. One wonders where EU aviation lawyers study Air Law.

On March 22, 2006, the European Union published a consolidated

blacklist of 92 airlines to be banned from EU skies. The blacklist is
updated every three months. The list is dominated by African airlines
and includes 50 carriers from the Democratic Republic of Congo, 13 from
Sierra Leone, 11 from Equatorial Guinea, 6 from Swaziland, 3 from
Liberia as well as airlines in Kazakhstan, Thailand, and North Korea.147
The following is the initial list of blacklisted airlines prohibited from
flying EU skies:

 Afghanistan: Ariana Afghan Airlines Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm +
 Comores: Air Service Comores Indent at: 1.27 cm
 Democratic Republic of Congo: Africa One, African Company
Airlines, Aigle Aviation, Air Boyoma, Air Kasai, Air Navette, Air
Tropiques, Air Transport Office, Blue Airlines, Business
Aviation, Butembo Airlines, Compagnie Africaine d'Aviation,
Cargo Bull Aviation, Central Air Express, Cetraca Aviation
Service, CHC Stelavia, Comair, Compagnie Africaine d'Aviation,
C0-ZA Airways, Das Airlines, Doren Aircargo, Enterprise World
Airways, Filair, Free Airlines, Galaxy Corporation, GR Aviation,
Global Airways, Goma Express, Great Lake Business Company,
International Trans Air Business, Jet Aero Services, Kinshasa

146
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1136&format=HTML&
aged=0&language=EN&guiLanguage=en “The key conclusions to be drawn from this
latest update of the list are twofold:
 a) the list acts a strong incentive to remedy safety deficiencies; withdrawal from the Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm + Tab
list is indeed possible, when the parties concerned put effectively in place sound
corrective action to comply with all relevant safety standards; after: 1.27 cm + Indent at: 1.27 cm
 b) the concept of a Community list is increasingly proving to serve as a preventive
rather than punitive instrument for safeguarding aviation safety. This is
illustrated by the numerous instances where the Community has successfully
addressed potential safety threats well ahead of resorting to the drastic measure
of imposing restrictions.”
Id.
147
Dan Bilefsky, EU Puts 92 Foreign Airlines On Its First Safety Blacklist, INTERNATIONAL
HERALD TRIBUNE, Mar. 24, 2006, at 4.
 Airways, Kivu Air, Lignes Aériennes Congolaises, Malu
Aviation, Malila Airlift, Mango Mat, Rwabika Bushi Express,
Safari Logistics, Services Air, Tembo Air Services, Thom's
Airways, TMK Air Commuter, Tracep, Trans Air Cargo Services,
TRACO, Uhuru Airlines, Virunga Air Charter, Waltair Aviation,
Wimbi Diri Airways
 Equatorial Guinea: Air Consul, Avirex Guinee Equatoriale,
Compagnie Aeree de Guinee Equatoriale, Ecuato Guineana de
Aviacion, Ecuatorial Cargo, Guinea Ecuatorial Airlines, Getra,
Jetline Inc, KNG Transavia Cargo, Prompt Air GE SA, Union de
Transport Aereo de Guinea Ecuatorial
 North Korea: Air Koryo
 Kazakhstan: BGB Air, GST Aero Air Company
 Kyrgyzstan: Phoenix Aviation, Reem Air
 Liberia: International Air Services, Satgur Air Transport, Weasua
Air Transport
 Rwanda: Silverback Cargo Freighters
 Sierra Leone: Aerolift, Afrik Air Links, Air Leone, Air Rum, Air
Salone, Air Universal, Destiny Air Services, First Line Air,
Heavylift Cargo, Paramount Airlines, Star Air, Teebah Airways,
West Coast Airways
 Swaziland: African International Airways, Airlink Swaziland, Jet
Africa, Northeast Airlines, Scan Air Charter, Swazi Express
Airways
 Thailand: Phuket Airlines
 The following air carriers were banned from flying certain types of
aircraft:
 Bangladesh: Air Bangladesh
 Democratic Republic of Congo: HBA
 Libya: Buraq Air148

The list is updated regularly. Airlines that can prove they meet EU
safety standards can have their companies removed from the list.149 The
impact of blacklisting is severe. It causes an airline to suffer:

 Loss of traffic in blacklisted markets; Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm + Tab
 Tarnished reputation in flown markets; after: 1.27 cm + Indent at: 1.27 cm
 Higher aircraft insurance rates, or inability to procure insurance
for blacklisted airlines or tour operators that book them;

148
http://ec.europa.eu/transport/air/safety/doc/flywell/2006_03_22_flywell_list_en.pdf
149
Christina Mackenzie, Testing takeoff for European Aviation Safety Agency, INTERNATIONAL
HERALD TRIBUNE, JUNE 5, 2006, at 11.
  Inability to lease aircraft; and
 Higher cost of capital by commercial banks.

In June 2006, the EU added two additional carriers (Surinam's Blue

Wing and Kyrgyzstan's Star Jet) to the no-fly list; restricted Sudan's Air
West to the limitation that it can fly only wet-leased aircraft to the EU;
and removed the restrictions on Mauritania's airlines and Libya's Buraq
Air.150 There were 176 carriers on the June 2006 list, all but 12 from the
five African States listed above. By 2008, the EU had blacklisted all the
airlines of the Democratic Republic of the Congo, Equitorial Guinea,
Indonesia, the Kyrgyz Republic, Liberia, Sierra Leone, and Swaziland, as
well as:

 AIR KORYO Democratic People Republic of Korea Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm + Tab
 AIR WEST CO. LTD Sudan after: 1.27 cm + Indent at: 1.27 cm
 ARIANA AFGHAN AIRLINES Afghanistan
 MAHAN AIR Islamic Republic of Iran
 SILVERBACK CARGO FREIGHTERS Rwanda
 TAAG ANGOLA AIRLINES Angola
 UKRAINE CARGO AIRWAYS Ukraine
 UKRAINIAN MEDITERRANEAN AIRLINES Ukraine
 VOLARE AVIATION ENTREPRISE Ukraine 151

The criteria employed by the EU for blacklisting included: (1) with

respect to Bangladesh, the Democratic Republic of Korea, Kyrgyzstan
and Libya a finding that they had "not exercised an adequate oversight…
in accordance with their obligations under the Chicago Convention"; (2)
with respect to the Democratic Republic of the Congo, Equatorial Guinea
and Swaziland, a finding that they did not "have the ability to provide
adequate oversight to…airlines and ensure that they operate in
accordance with ICAO standards"; and (3) with respect to Equatorial
Guinea, Kyrgyzstan and Sierra Leone, a finding was made that their
airlines had a principal place of business in another State, in
contravention of Annex 6 to the Chicago Convention.152 Many of the
criteria employed by the EU, however, were not Chicago Convention-
based; and some airlines were banned without a finding of any Chicago
Convention or SARPs deficiency.

By 2009, the EU had blacklisted more than 250 airlines. By 2011,

150
Martial Tardy, EU Updates Blacklist of Unsafe Carriers, AVIATION DAILY (JUNE 21, 2006) 2.
151http://ec.europa.eu/transport/air-ban/pdf/list_en.pdf
152 COMMISSION REGULATION (EC) OF 474/2006 (MAR. 22, 2006).
the EU had blacklisted. 273 airlines from 20 countries.153 By 2013, it had
blacklisted 295 airlines from the following States:

Afghanistan 5
Angola 13
Benin 9
Republic of Congo 9
Dem.Rep. of Congo 51
Djibouti 1
Equatorial Guinea 5
Eritrea 3
Ghana 1
Indonesia 52
Kazakstan 28
Kyrgyz Republic 14
Liberia 1
Gabon 7
Mozambique 16 Formatted: French (Canada)
Philippines 32
Sao Tome & Principe 11
Sierra Leone 7
Sudan 18
Surinam 1
Swaziland 1
Zambia 1
Kazakstan 28
Kyrgyz Republic 14 Formatted: French (Canada)
Liberia 1
Gabon 7
Mozambique 16
Philippines 32
Sao Tome & Principe 11
Sierra Leone 7
Sudan 18
Surinam 1
Swaziland 1
Zambia 1

Note that the EU blacklist is of airlines and is based principally on

ramp inspections of aircraft landing in EU member states. As the EU
concedes:

153
http://ec.europa.eu/transport/air-ban/doc/list_en.pdf
 The civil aviation authorities of Member States of the European
Union are only able to inspect aircraft of airlines that operate
flights to and from Union airports; and in view of the random
nature of such inspections, it is not possible to check all aircraft
that land at each Union airport. The fact that an airline is not
included in the Community list does not, therefore,
automatically mean that it meets the applicable safety standards.
Where an airline which is currently included in the Community
list deems itself to be in conformity with the necessary technical
elements and requirement as prescribed by the applicable
international safety standards, it may request the Commission to
commence the procedure for its removal from the List.154

In contrast, the US blacklist is of States, and is based on FAA

inspections of SARPs compliance in the State of registration. These are
vastly different approaches to addressing the problem of unsafe aircraft.

For example, if one airline of a registering State is blacklisted, a

presumption might be appropriate that the other airlines of that State
also have deficiencies, perhaps attributable to the deficiencies of
regulatory oversight by the registering State. Thus, if the EU blacklists
Air Phuket, why did it not also blacklist Thai International Airways?
The answer may lie in the fact that the EU blacklisting program does not
assess State compliance with SARPs, but instead focuses on ramp
inspections of aircraft. The State may be appropriately complying with
SARPs, but a particular aircraft may have "fallen between the cracks."

The net result may be that States will be incentivized to fly their
newest planes to the EU, and their older and more poorly maintained
aircraft to States without a blacklisting program. Already, the noise
regulations of developed States have moved the older-generation 707s
and 727s to the routes between developing countries. Thailand's Phuket
Airlines announced it was splitting itself into two companies, one of
which would fly domestic Thailand and southeast Asian routes with its
aging Boeing 737-200 aircraft. The EU banned all aircraft in Ariana
Afghan Airlines' fleet except one A-310, registration number F-GYYY
(registered in France). Hence, only the newer, safer planes of poorer
States will fly to the developed world, while the less developed world
will be left with aging, unsafe and noisy aircraft. Moreover, when a less

154 http://ec.europa.eu/transport/modes/air/safety/air-ban/doc/list_en.pdf
developed State's airlines are banned from Europe, only European
airlines will fly the routes in question. Some may object to the colonialist
look of all that.155

Moreover, one must note the incongruity of EU policy as reflected

in its approach toward Angola. In 2007, after a crash of TAAG, the
national carrier, the EU announced it was banning all flights of TAAG to
the EU. At the time, TAAG flew to Paris and Lisbon, while Air France,
British Airways and TAP Air Portugal flew to the Angolan capital,
Luanda. Angola retaliated by banning all EU carriers from flying to
Angola. The EU then reversed course, concluding, “Progress made by
the civil aviation authority of Angola and the air carrier TAAG Angola
Airlines to resolve progressively any safety deficiencies are recognised.
In that context, the cooperation and assistance agreement signed
between the civil aviation authorities of Angola and of Portugal allowed
the airline to operate again into Portugal only with certain aircraft and
under very strict conditions.”156 Excuse me. If TAAG is unfit to fly to all
EU member States but Portugal, then why is it fit to fly to Portugal?
Does Angola’s former status as a Portuguese colony somehow make
TAAG fit to fly to Lisbon but not Paris? Or was this just a political
compromise to avert a trade war in the air transport sector?

The US focus on States, rather than airlines, also poses a pragmatic

political problem. It is one thing to blacklist States in Latin America and
Africa. But it is doubtful that the US would have the courage to blacklist
all the carriers of Saudi Arabia, the Russian Federation or China, even if
significant SARPs deficiencies existed. Some speculate that the US
already succumbed to the energy politics of Venezuela and Ecuador by
elevating both to Category I following threats of economic retaliation.
Nonetheless, the US did at one point drop Israel to Category II, despite
the enormous political influence that State wields on the US government.

C. MULTILATERAL OVERSIGHT OF STATE COMPLIANCE

WITH INTERNATIONAL OBLIGATIONS

As it often does, US unilateralism did not sit well with the world
community.157 Indeed, certain nations responded with hostility to the

155 Created in 2002, the European Aviation Safety Agency took over the safety
responsibilities theretofore handled by the Joint Aviation Authorities of the EU member
States in 2007.
156
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1136&format=HTML&
aged=0&language=EN&guiLanguage=en
157 Jennison, supra, at 291-97
blacklisting of their airports and airlines, alleging that a desire for an
economic advantage motivated the United States158 to impose an unfair
trade practice.159 Some criticized the United States as having "unfairly
blemished all of Latin American aviation", while simultaneously
withholding condemnation of more politically important States, such as
Russia and China.160 Others complained of the "inconsistent application
of policy, an absence of transparency, a lack of coordination with ICAO,
and an absence of documented operating guidance to both inspectors
and those subject to assessment."161 Though the consensus was that the
SARPs should be honored, it was believed that no single nation should
be their policeman, since multilateral cooperation was preferable to
unilateral insistence.162 Article 55 of the Chicago Convention gives the
Council the authority to investigate "any situation which may appear to
present avoidable obstacles to the development of international air
navigation."163 The IASA program led to a growing chorus of nations
asking ICAO to step in and assume these duties.164

In response,165 in 1994, the ICAO General Assembly passed

Resolution A32-11, which established ICAO's Safety Oversight
Programme [SOP] to assess member State compliance with SARPs and to
assist States whose compliance was deficient. 166 Under the SOP, ICAO
began to review member States' aviation safety regulation and oversight
systems.167 By 1997, SOP assessments had revealed that although 75% of

158 Id. at 297.

159 Morrison, supra, at 638.
160
Manning, supra, at 638. There were "vocal protests by a number of Latin American
States that they had been victimized." Doug Cameron, Safer Than Ever, AIRLINE BUS. 62
(Oct. 1997). Many Latin American States "believed the FAA had unfairly picked them for
review, arguing that other countries, such as China and Russia, which reportedly had
serious problems complying with ICAO's international safety standards, were treated in a
better way because the United States considered them to be more important trading
partner." Barreto, supra, at 659.
161 Broderick & Loos, supra, at 1042. However, others believed that taking the issue to

ICAO would result in "enough veto, or stagnation, or simply inertia to kill th[e] initiative
stone dead." Comment, Safety in Isolation, 146 FLIGHT INT'L 3 (Sept. 14, 1994).
162
Safety in Isolation, supra, at 3.
163 Chicago Convention, supra, art. 55(e). The triggering language requires a request of the

Council by a contracting State. Id.

164 See Broderick & Loos, supra, at 1043.
165 "It is evident that the U.S. unilateral action became a potent catalyst for ICAO to

understand that continuing lethargic attitudes to aviation safety are not tolerable to a large
segment of the ICAO membership and to focus ICAO's attention to real priorities." Milde,
supra, at 12.
166
Jacques Ducrest, Legislative and Quasi-Legislative Functions of ICAO: Towards Improved
Efficiency, XX ANNALS OF AIR & SPACE L. 343, 357-58 (1995).
167 That same year the European Union began its Safety Assessment of Foreign Airlines
member States had laws establishing a CAA, only 51% had given it
adequate legal status, 29% had adequate funding, 22% had adequate
staffing and qualified inspectors, and 13% had adequate inspector
training.168

At the same time, however, the SOP was criticized because of its
voluntary, under-funded, and confidential nature.169 Yet ICAO was
reticent to publicize delinquency for fear that member States would
resist the voluntary audit program. Article 38 of the Chicago
Convention requires both member State notification of noncompliance to
the Council, and the Council's notification thereof to all member States.170
In addition, Article 54 requires the Council to notify member States of
"any infraction of this Convention, as well as any failure to carry out
recommendations or determinations of the Council."171 Thus, the
confidentiality of the SARPs delinquencies manifestly violated these
explicit requirements.172 Moreover, by 1999, The ICAO audit team had
concluded that 40% of the countries assessed had deficient safety
oversight systems.173

In response, ICAO replaced the SOP with a more meaningful

mandatory Universal Safety Oversight Audit Programme [USOAP] in
1999. USOAP safety audits began by evaluating member State
compliance with Annexes 1, 6, and 8.174 For example, the ICAO safety
audit of the United States government focused on the following issues
and found substantive deficiencies in US laws and procedures vis-à-vis
the SARPs obligations:

 Whether there is a clear policy covering the regulation of Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm +
airworthiness, operations, and personnel licensing; Indent at: 1.27 cm
 Whether an appropriate system is in place for the certification of
commercial aircraft operators and the approval of maintenance
organizations;
 Whether periodic training is given to inspectors and licensing
personnel, and whether appropriate training records are

[SAFA]. Cameron, supra. Two years earlier, ICAO had declined a US request that ICAO
perform safety audits of States whose flag carriers served the US Id.
168 Broderick & Loos, supra, at 1049.
169 Id.; Saba, supra, at 544.
170 Id.
171
Id., art. 54(j). Id. art. 54(k).
172
Id., arts. 38, 54(j), 54(k).
173
Saba, supra, at 542.
174 See SAFETY OVERSIGHT AUDIT MANUAL, ICAO DOC. 9735 (1ST ED. 2000).
 maintained;
 Whether appropriate reference material, including ICAO
documentation, is available;
 Whether provisions existed for the revocation of licenses and
certificates if unsafe conditions are identified; and
 Whether adequate budgetary arrangements exist to enable the
CAA to carry out its obligations and responsibilities in the most
efficient and effective manner.175

The following year, the FAA amended IASA to "make use of other
sources of information on CAA compliance with minimum international
standards for safety oversight."176 These "other sources" would include
ICAO and the European Joint Aviation Authorities (JAA), among
others.177 Hence, once ICAO finally began pursuing mandatory,
transparent safety audits, the United States was willing to pay them
deference. ICAO safety audits involve a three-stage process:

 Pre-audit phase. Information provided by the State in the State Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm + Tab
Aviation Activity Questionnaire (SAAQ) and Compliance after: 1.27 cm + Indent at: 1.27 cm
Checklists (CCs) is reviewed to analyze the type of organization
for safety oversight provided, the implementation of Annexes
provisions and the differences from SARPs identified by the
States.

 On-site phase. The State is visited by an ICAO audit team to

validate the information provided by the State and conduct an
on-site audit of the State’s system and overall capability for
safety oversight.

175 ICAO UNIVERSAL SAFETY OVERSIGHT AUDIT PROGRAMME: Confidential Final Audit Report
of the Federal Aviation Administration of the United States, at
http://www.faa.gov/avr/iasa/finrep.doc (last visited April 26, 2004). These, in fact, were
the criteria under which the US aviation safety program was evaluated. ICAO audits are
conducted under the procedures set forth in SAFETY OVERSIGHT AUDIT MANUAL, ICAO
DOC. 9735 (1ST ED. 2000) to determine whether the SARPs of Annexes 1, 6, and 8 as well as
related provisions in other Annexes and their relevant guidance material and practices are
being implemented. The audit team typically reviews the national legislation through
which Annexes 1, 6, and 8 are followed. In particular, they examine whether the State has
an adequate civil aviation safety organization, properly certifies and oversees flight
operations and aircraft airworthiness, ground and flight personnel qualifications, training
programs, and maintains a comprehensive safety awareness system and procedures for
accident prevention. Id.
176
Changes to the International Aviation Safety Assessment (IASA) Program, 65 FED. REG. 33,752
(MAY 25, 2000) (to be codified at 14 C.F.R. pt. 129).
177
The European Civil Aviation Conference also has implemented a program of ramp
inspections at the airports of its 41 member States.
  Post-audit phase. This includes preparation of the audit interim
report, the development by the State of its corrective action plan,
and the completion of the audit final report, which is made
available to Contracting States in their entirety through a secure
website.178

By 2004, ICAO had audited 181 States for safety compliance and
performed 120 audit follow-up missions. USOAP had significant impact
on the issue of filing of differences. In the bilateral Memorandum of
Understandings signed between the audited States and ICAO (as
approved by the Council), all audited differences "shall be deemed to
have been notified to ICAO", and ICAO incorporates these differences in
the Supplements to its Annexes, therefore notifying all ICAO member
States. ICAO now has a vast database with respect to conformity and
compliance with Annex 1 (Personnel Licensing), Annex 6 (Operation of
Aircraft), and Annex 8 (Airworthiness of Aircraft). This grew with the
expansion of USOAP to the other safety-related Annexes in 2005.
Specifically, the second round of USOAP audits focused on
implementation of the safety-related provisions in Annexes 1, 6 and 8, as
well as Annex 11 (Air Traffic Services),179 Annex 13 (Accident
Investigation),180 and Annex 14 (Aerodromes).181 Moreover, the 35th
meeting of the ICAO General Assembly in 2004 passed a resolution
requiring the Secretary General to make the results of the audit available
to all member States, and to post them on the secure portions of the
ICAO web site.182

In 2005, the ICAO Council approved a procedure for disclosing

information about a State having significant SARPs deficiencies in its
aviation safety obligations. Under Article 54(j) of the Chicago
Convention, the matter will be brought to the attention of the Council
and, after all other alternatives for States to rectify their deficiencies have
been employed, the Council may decide to make a recommendation or

178 Source: ICAO website.

179
Chicago Convention, supra, Annex 11.
180 Id., Annex 13. See generally, Samantha Sharif, The Failure of Aviation Safety in New

Zealand: An Examination of New Zealand's Implementation of Its International Obligations Under

Annex 13 of the Chicago Convention on International Civil Aviation, 68 J. AIR L. & COM. 339
(2003); Evan P. Singer, Recent Developments In Aviation Safety: Proposals to Reduce the Fatal
Accident Rate and the Debate Over Data Protection, 67 J. AIR L. & COM. 499, 506 (2002); and
Col. Luis E. Ortiz & Dr. Griselda Capaldo, Can Justice Use Technical And Personal Information
Obtained Through Aircraft Accident Investigations?, 65 J. AIR L. & COM. 263, 272-77 (2000)
(recommending certain amendments to Annex 13).
181
Chicago Convention, supra, Annex 14.
182 ICAO G.A. RES. 16.2/1 (superseding Assembly Res. 33-8).
determination.183

A more significant action was taken in 2006, when aviation

directors general from 153 of 190 member States agreed that by March
23, 2008, the names of those States that fail to agree to full transparency
of their USOAP audits will be posted on the ICAO website. By 2006,
more than 100 States agreed to transparency. 184 ICAO and the
International Air Transport Association [IATA] also signed a
memorandum of understanding, "to share safety-related information
from their respective audit programs to better identify potential safety
risks and prevent aircraft accidents", as well as share accident and
incident monitoring, and "experts from each organization will be
allowed to participate as observers in audit missions of the other, upon
request."185 IATA established an Operational Safety Audit [IOSA]
program for air carriers in 2003. Its audit standards focus on eight areas:

 Corporate Organization and Management Systems Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm +
 Flight Operations Indent at: 1.27 cm
 Operational Control – Flight Dispatch
 Aircraft Engineering and Maintenance
 Cabin Operations
 Ground Handling
 Cargo Operations
 Operational Security186

The principal deficiencies discovered by the initial FAA and ICAO

safety audit programmes involved: (1) the absence of basic aviation laws;
(2) the failure of CAAs to enforce safety laws and regulations; and (3) the
failure of national laws to conform to the standards set forth in the
Chicago Convention Annexes.187 Deficiencies related to the SARPs
included:

Improper and insufficient inspections by State

authorities before the certification of air operators,
maintenance organizations and aviation training schools;
licenses and certificates improperly issued, validated, and

183
ICAO, ANNUAL REPORT OF THE COUNCIL, DOC. 9862 (2005).
184 The Net Tightens, FLIGHT INT'L (JULY 18, 2006). By September 2006, 79 States had made
their USOAP audits publicly available on the ICAO web site. By Nov. 2008, 161 State audit
results were posted at: http://www.icao.int/fsix/auditRep1.cfm
185
Airline News, AIRGUIDE MAGAZINE (APR. 24, 2006).
186
IATA, IATA OPERATIONAL SAFETY AUDIT: DESIGNED FOR THE AVIATION INDUSTRY (2007).
187 Cameron, supra, at 62
 renewed without due process; procedures and documents
improperly approved; failure to identify safety concerns;
and failure to follow-up on identified safety deficiencies and
take remedial action to resolve such concerns.188

It remains to be seen what will result should the US or EU find a

particular State deficient, when, conversely, ICAO's audits concludes it is
reasonably compliant with SARPs. In such a situation, it might be
argued that a refusal to allow the entry of such a State into another's
airspace would violate Article 33 of the Chicago Convention, which
requires that certificates of airworthiness issued by the State of registry
are to be recognized as valid by other contracting States if issued
pursuant to requirements equal to or above the SARPs. Having
promulgated the SARPs, it would seem that ICAO would be in a
superior position to determine compliance with their requirements.

As can be expected, a catastrophic turn of events often leads to the

quick passage and implementation of changes to existing laws. "In the
aftermath of the tragic events of September 11, 2001, the 33rd ICAO
General Assembly passed several resolutions strongly condemning the
use of aircraft as weapons of mass destruction."189 One such resolution
called upon ICAO to establish a security audit program modeled on
USOAP.190 As a result, ICAO inaugurated the Universal Security Audit
Programme [USAP] to assess State compliance with Annex 17
(security).191 By 2008, 90 member States had been audited; 41.6% of
audited States lacked implementation of Critical Elements of Safety
Oversight.

ICAO has recognized that, for economic reasons, many States

simply cannot comply without significant technical and economic
assistance dedicated to improving navigation facilities and equipment, 192
training and personnel, and laws and regulations.193 Some States lack the
economic ability to comply; others lack the will. ICAO has attempted to
facilitate improvements in safety by establishing the International

188 Saba, supra, at 544.

189
ICAO ASSEMB. RES. A33-1, A33-2, A33-3 AND A33-4, ICAO, 33RD SESS., at 1-13. It was
also recommended that Annex 17 be applied to domestic air transportation, the first time
that ICAO had strayed into the domestic arena. See Dempsey, supra, at 689-90.
190
See Michael Milde, Aviation Safety Oversight: Audits and the Law, 26 ANNALS OF AIR &
SPACE L. 165, 175 (2001).
191
Chicago Convention, supra, Annex 17; see Milde, supra, 177.
192
BUERGENTHAL, supra, at 112.
193 Saba, supra, at 549-51.
Financial Facility for Aviation Safety [IFFAS]. IFFAS seeks to provide
developing nations with financial assistance in meeting their
international legal obligations in the arena of aviation safety, particularly
those deficiencies identified in the USOAP audits.194 However, the major
problem with getting IFFAS up and running was funding.195 The World
Bank also has taken a fresh look at the air transport sector and begun to
inject capital into developing States to improve safety and navigation.
Some States also began to pool their resources, creating regional
organizations (such as the Central American Corporation for Air
Navigation Services [COCESNA] to oversee safety.196

In 2014, ICAO adopted Annex 19 – Safety Management Systems.

An SMS is a management system for the management of safety by an
organization. Safety management System should, at minimum:

a) identify safety hazards;

b) ensure the implementation of remedial action necessary to
maintain agreed safety performance;
c) provide for continuous monitoring and regular assessment of the
safety performance; and
d) aim at a continuous improvement of the overall performance of
the safety management system.197

The SMS framework includes four components and twelve elements

representing the minimum requirements for SMS implementation:

1. Safety policy and objectives:

 Management commitment and responsibility Formatted: Indent: Left: 0.63 cm, Bulleted + Level: 2 +
 Safety accountabilities Aligned at: 1.9 cm + Indent at: 2.54 cm, Tab stops: Not at
2.54 cm
 Appointment of key safety personnel
 Coordination of emergency response planning
 SMS documentation

2. Safety risk management:

 2.1 Hazard identification Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm + Tab
 2.2 Safety risk assessment and mitigation after: 1.27 cm + Indent at: 1.27 cm

194 ICAO, ASSEMB. RES. A33-10, ICAO, 33RD SESS., at 35-37. See Saba, supra; R.I.R.
Abeyratne, Funding an International Financial Facility for International Safety, XXVIII ANNALS
OF AIR & SPACE L. 1, 5 (2002).
195 Saba, supra, at 573.
196 On the development of regional initiatives to address aviation safety, see Saba, supra, at

548; Barreto, supra, at 672-75; Abeyratne, supra, at 133.

197
Source: ICAO.
3. Safety assurance”
 3.1 Safety performance monitoring and measurement Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm + Tab
 3.2 The management of change after: 1.27 cm + Indent at: 1.27 cm
 3.3 Continuous improvement of the SMS

4. Safety promotion
 4.1 Training and education Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm + Tab
 4.2 Safety communication after: 1.27 cm + Indent at: 1.27 cm

IV. THE SUBSTANTIVE AVIATION SAFETY

OBLIGATIONS UNDER INTERNATIONAL AND
DOMESTIC LAW

SARPs are effective only if they are embraced in the domestic law
and governmental institutions and procedures. As we have seen,
member States have an obligation to follow SARPs to the maximum
practicable extent. This section examines how States do that.

As noted above, soon after the United States and ICAO began to
audit State compliance, it was discovered that some States either had not
established a civil aviation code or regulatory agency, or had
promulgated legal and regulatory requirements that fell short of the
SARPs.198 ICAO noted that States should develop comprehensive
legislation and regulations implementing the SARPs or "select a
comprehensive and detailed code established by another Contracting
State."199

The U.S. Department of Transportation has the authority to assist

foreign nations in improving aviation safety.200 In order to assist States
in achieving compliance, the FAA drafted a model Civil Aviation Safety
Act [CASA] and model aviation regulations,201 based in part on U.S.
aviation statutes202 and regulations.203 The model CASA and model

198 Chicago Convention, supra, Annex 8.

199 Id.
200
49 U.S.C. § 40113(e).
201
Barreto, supra, at 662-64.
202
The principal aviation statutory provisions of the United States are found in Title 49 of
the United States Code, known as the Federal Aviation Act of 1958. The relevant statutory
provisions governing civil aviation are set forth in 49 U.S.C. §§101-727; 49 U.S.C. §§1101-
1155, (Subtitle II - Other Government Agencies, Chapter 11 - National Transportation
Safety Board [NTSB]); 49 U.S.C. §§5101-5127, (Subtitle III - General and Intermodal
Programs, Chapter 51 - Transportation of Hazardous Material); 49 U.S.C. §§40101-46507,
regulations are both posted on the FAA website. 204

Model statutes are often a means of achieving uniformity. In few

areas is the achievement of uniformity as important as in international
civil aviation. Two aircraft operating in the same airspace, under two
different standards, procedures, rules and regulations, could collide,
killing the crew and passengers aboard.

Subtitle VII - Aviation Programs (Part A - Air Commerce and Safety).

203
In part, these model regulations tracked many of the requirements set forth in the FAA's
own comprehensive safety regulations:
4 C.F.R. Part 1 (Definitions and Abbreviations)
14 C.F.R. Part 21 (Certification Procedures for Products and Parts)
14 C.F.R. Part 23 (Airworthiness Standards: Normal, Utility, Acrobatic, and Commuter
Category Airplanes)
14 C.F.R. Part 25 (Airworthiness Standards: Transport Category Airplanes)
14 C.F.R. Part 27 (Airworthiness Standards: Normal Category Rotorcraft)
14 C.F.R. Part 29 (Airworthiness Standards: Transport Category Rotorcraft)
14 C.F.R. Part 31 (Airworthiness Standards: Manned Free Balloons)
14 C.F.R. Part 33 (Airworthiness Standards: Aircraft Engines)
14 C.F.R. Part 35 (Airworthiness Standards: Propellers)
14 C.F.R. Part 43 (Maintenance, Preventive Maintenance, Rebuilding, and Alteration)
14 C.F.R. Part 45 (Identification and Registration Marking)
14 C.F.R. Part 47 (Aircraft Registration)
14 C.F.R. Part 61 (Certification: Pilots, Flight Instructors, and Ground Instructors)
14 C.F.R. Part 63 (Certification: Flight Crewmembers Other Than Pilots)
14 C.F.R. Part 65 (Certification: Airmen other than Flight Crewmembers)
14 C.F.R. Part 67 (Medical Standards and Certification)
14 C.F.R. Part 91 (General Operating and Flight Rules)
14 C.F.R. Part 97 (Standard Instrument Approach Procedures)
14 C.F.R. Part 119 (Certification: Air Carriers and Commercial Operators)
14 C.F.R. Part 121 (Operating Requirements: Domestic, Flag, and Supplemental Operations
14 C.F.R. Part 125 (Certification and Operations: Airplanes Having a Seating Capacity of 20
or more Passengers or a Maximum Payload Capacity of 6,000 Pounds or more; and Rules
Governing Persons On Board Such Aircraft)
14 C.F.R. Part 129 (Operations: Foreign Air Carriers and Foreign Operators of
U.S.-Registered Aircraft Engaged in Common Carriage)
14 C.F.R. Part 133 (Rotorcraft External-Load Operations)
14 C.F.R. Part 135 (Operating Requirements: Commuter and On Demand Operations and
Rules Governing Persons On Board Such Aircraft)
14 C.F.R. Part 137 (Agricultural Aircraft Operations)
14 C.F.R. Part 141 (Pilot Schools)
14 C.F.R. Part 142 (Training Centers)
14 C.F.R. Part 145 (Repair Stations)
14 C.F.R. Part 147 (Aviation Maintenance Technician Schools)
14 C.F.R. Part 183 (Representatives of the Administrator)
204 The model CASA is at: Civil Aviation Safety Act of 2002, version 2.3 (Oct. 2002),

http://www.faa.gov/safety/programs_initiatives/oversight/iasa/model_aviation/media
/CAL.doc (visited August 10, 2006) [hereinafter CASA]. The model regulations are at:
Model Aviation Regulatory Document, version 2.3,
http://www.faa.gov/avr/iasa/calr.htm (visited April 26, 2004).
 The following is a descriptive summary of the international legal
requirements in the Chicago Convention and Annexes, the model
domestic legislation of the CASA, and the requirements under U.S.
domestic law.

A. CIVIL AVIATION AUTHORITY: ESTABLISHMENT AND

ADMINISTRATION

The CASA establishes an autonomous Civil Aviation Authority

[CAA]. Most States have a department of civil aviation, or a ministry of
transport, or an equivalent governmental institution. Under the CASA,
the CAA shall exercise its responsibilities consistent with the "public
interest," defined as "the promotion, encouragement, development and
regulation of civil aviation so as to best promote safety."205

The CAA is headed by a Director of Civil Aviation appointed by

the head of State with the advice and consent of the legislative body for a
term of years, removable only for cause.206 Qualifications of the Director
are: (1) fitness for the discharge of the agency's responsibilities; (2)
"significant management or similar technical experience in a field
directly related to aviation"; and (3) the absence of any financial interest
in any aeronautical enterprise, and other employment.207 No CAA
employee may participate in any proceeding in which the Director has a
financial interest.208

The Director's primary responsibility is to "encourage and foster

the safe development of civil aviation . . . ."209 The Director has specific
authority to:

 "Develop, plan for, and formulate policy with respect to the use of Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm +
the navigable airspace;"210 Indent at: 1.27 cm
 acquire, establish, operate, and improve air navigation facilities;211

205 CASA § 202.

206 Id. § 201(a). Protecting the Director of Civil Aviation from removal prior to the end of
his term is necessary to ensure that he is free to make decisions shielded from political
retribution.
207
Id. § 203. These requirements attempt to ensure that the person chosen for the position
is qualified and less likely to have ethical problems while in office.
208
Id. § 801(b). These ethical requirements are designed to ensure that decision-making is
objective, and not influenced by the decision maker's financial benefit.
209
Id. § 406.
210
Id. § 407(a).
211 Id. § 408.
  prescribe air traffic rules and regulations;212
 regulate aviation security;213
 establish training schools;214
 investigate accidents and take any corrective action necessary to
prevent similar accidents in the future;215
 certificate and inspect aircraft, airmen, and air operators;216
 validate the certification and inspection actions of another State;217
 prevent flights by unairworthy aircraft or unqualified airmen;218
 regulate the transportation of dangerous goods;219 and
 maintain a system of the national registration of civil aircraft.220

The Director is given certain administrative authority on behalf of

the CAA to acquire property,221 enter into contracts for services,222
exchange information with foreign governments,223 and delegate
authority to a subordinate.224

The U.S. aviation market is sufficiently large that it requires four

agencies to administer various aspects of aviation.

 The National Transportation Safety Board [NTSB]225 handles aircraft Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm +
accident investigations mandated under Annex 13226 and Indent at: 1.27 cm, Tab stops: Not at 1.27 cm

212 Id. § 409.

213 Id. § 410.
214 Id. § 411.
215
Id. § 412.
216 Id. § 413.
217 Id. § 414.
218
Id. § 416.
219
Id. § 417.
220
Id § 501(a).
221 Id § 302.
222 Id § 303.
223 Id § 304.
224 Id § 305.
225
Federal Aviation Act 49 U.S.C. § 1101 Annex VI. 49 C.F.R PARTS 800-831.
226
49 U.S.C. §§ 1131-32. The NTSB describes its responsibilities as follows:
The [NTSB] is the agency charged with fulfilling the obligations of the United States under
Annex 13 to the Chicago Convention on International Civil Aviation (Eighth Edition, July
1994), and does so consistent with State Department requirements and in coordination with
that department. Annex 13 contains specific requirements for the notification,
investigation, and reporting of certain incidents and accidents involving international civil
aviation. In the case of an accident or incident in a foreign State involving civil aircraft of
U.S. registry or manufacture, where the foreign State is a signatory to Annex 13 to the
Chicago Convention of the International Civil Aviation Organization, the State of occurrence
is responsible for the investigation. If the accident or incident occurs in a foreign State not
 administrative appeals of decisions of the Administrator of the
FAA.227 Though it has no authority to issue regulations, the
NTSB does have the responsibility to make regulatory
recommendations to the FAA to avoid future accidents.228
 The Transportation Security Administration of the US Department of
Homeland Security regulates aviation security.229
 The Office of the Secretary of Transportation has jurisdiction over
economic regulatory issues such as airline financial fitness,
competition policy, and consumer protection.230 The Secretary of
Transportation is statutorily commanded to assign and maintain
safety as "the highest priority in air commerce."231
 The Federal Aviation Administration [FAA] was established by the
Federal Aviation Act of 1958 and subsequently became a part of
the U.S. DOT upon its creation in 1967.232 The FAA is headed by
an Administrator, appointed by the President with the advice
and consent of the Senate, and serves for a term of five years.233
The FAA Administrator is required to consider the maintenance

bound by the provisions of Annex 13 to the Chicago Convention, or if the accident or

incident involves a public aircraft (Annex 13 applies only to civil aircraft), the conduct of
the investigation shall be in consonance with any agreement entered into between the
United States and the foreign State.
Accident/Incident Investigation Procedures, 62 FED. REG. 3806 (JAN. 27, 1997); 49 C.F.R. PT. 831
227
49 U.S.C. § 1133.
228
DEMPSEY, ET AL, supra, at § 12.67
229
Dempsey, supra, at 717-19.
230
For a review of the legislation passed by the United States to address aviation security,
see Dempsey, supra, at 427.
231 49 U.S.C. § 40101(a)(1).
232
49 U.S.C. subtitle I. In the mid-1950s, a series of accidents brought to the surface an
underlying need for significant safety enhancement in aviation. In 1956, a Trans World
Airlines Constellation collided with a United Airlines' DC-7 over the Grand Canyon. In
early 1957, a Douglas Aircraft company-owned DC-7 collided with an Air Force F-89 over
Sunland, California. The DC-7 crashed into a junior high school, killing three and injuring
seventy others. In 1958, a third significant accident involved the collision of a United
Airlines' DC-7 and an Air Force F-100 near Las Vegas, Nevada. Congress reacted with the
promulgation of the Federal Aviation Act of 1958, PUB. L. 85-726; 49 U.S.C. § 1300 et seq.,
and the creation of the Federal Aviation Agency (later to become the Federal Aviation
Administration (FAA) under the Department of Transportation Act of 1966). The accident
investigation and recommendation responsibilities of the U.S. Civil Aeronautics Board
(which had been created in 1938) were transferred to the FAA initially and were re-
delegated to the National Transportation Safety Board, made independent in 1974. PAUL
STEPHEN DEMPSEY & LAURENCE GESELL, AIR TRANSPORTATION: FOUNDATIONS FOR THE 21ST
CENTURY 229-31 (1997); ROBERT HARDAWAY, AIRPORT REGULATION, LAW AND PUBLIC
POLICY 19, 21 (1991).
233 The five-year term was added in an FAA Appropriations bill in 1996 in order to give the

agency some stability. Theretofore, the agency had been headed by a string of
Administrators, and therefore been denied continuity of leadership.
 and enhancement of safety and security as among the highest
priorities in the public interest.234 The FAA is charged with
promoting aviation safety, ensuring the safe and efficient
utilization of the national airspace,235 and providing oversight of
the U.S. airport system.236 Although it does not own and operate
airports (they are owned and operated by local institutions,
usually governments),237 the FAA issues airport operating
certificates, regulates them, and provides financial support to
them.238 The FAA handles all other aspects of airman, aircraft,
airport, and airline safety as well as providing air traffic control
and navigation services.239 Under U.S. law, actions of the
Secretary of Transportation and of the FAA Administrator must
be consistent with the international obligations imposed by the
Chicago Convention.240

The FAA has broad authority to conduct investigations. 241 The

Administrator may delegate authority for issuance of pertinent orders,
directives, and instructions.242 Given the size of commercial and general
aviation in the United States, many investigatory and oversight functions
have been delegated, of necessity, to subordinate institutions 243 and

234 49 U.S.C. VII, 49 U.S.C. § 40101 et seq.

235
Navigation of U.S. airspace by foreign air carriers is governed by 40 U.S. § 41703.
236
The FAA Administrator is charged with:
promoting aviation safety;
promoting aviation security;
ensuring the safe and efficient utilization of the national airspace;
overseeing of the US airport system; and
supporting national defense requirements.
237See, e.g., Paul Stephen Dempsey, Local Airport Regulation: The Constitutional Tension

Between Police Power, Preemption & Takings, 11 PENN ST. ENVT'L L. REV. 1 (2002) (discussing
the tension between local and federal regulation of aviation and airports.)
238 49 U.S.C. § 44706; 14 C.F.R PARTS 71-109.
239 DEMPSEY ET AL, supra, at §§ 12.48-12.54.
240 49 U.S.C. § 40105(b).
241 DEMPSEY, ET AL, supra, at § 12.04.
242
49 U.S.C. § 106(f)(2)(c); 14 C.F.R Part 11-B Procedural Rules.
243
Within the FAA, the safety oversight activities have been delegated to the Associate
Administrator for Regulation and Certification (AVR). Its principal organizational units
are:
Flight Standard Services (AFS)—personnel licensing, certification and surveillance of
operators and the airworthiness related to air carrier operations and aircraft maintenance;
Aircraft Certification Services (AIR)—airworthiness activities related to design and
manufacturing;
Office of Aviation Medicine (AAM)—medical certification of aviation personnel, research,
occupational health, and substance abuse abatement.
The AFS oversees the region's airlines, establishes requirements for instrument procedures
private persons.244 The FAA Administrator also holds broad rulemaking
authority.245

B. AGENCY PROCEDURES

Under the CASA, the Director of Civil Aviation is given broad

legal authority.246 Subject to the requirements set forth in the national
Administrative Procedure Act,247 the Director has the authority to
conduct investigations,248 take depositions and other evidence, 249 and
issue subpoenas.250 The Director may also issue orders, rules, and
regulations (so long as they meet the minimum requirements of the
Chicago Convention Annexes),251 to take effect within a reasonable
time.252 Before the Director amends, modifies, suspends, or revokes any
certificate, the Director must notify the holder thereof and afford him the
opportunity to be heard.253 The right to be represented by an attorney is
also conferred.254 Adverse decisions may be appealed by the certificate
holder.255

and flight inspection and coordinates these requirements with FAA headquarters in
Washington, D.C. The AFS secures compliance with FAA regulations, programs,
standards, and procedures governing the inspection, certification, and surveillance of
commercial and general aviation. It also examines, certifies and oversees flight and ground
personnel, examiners, and air agencies. Within each region, field activities are performed
by the Flight Standard District Offices (FSDO), which are responsible for the day-to-day
administration of the licensing process. See generally, DEMPSEY, ET AL, supra, at § 12.04.
244
The FAA delegates certain certification and surveillance responsibilities to private
persons under 14 C.F.R. PART 183. The FAA Administrator has broad authority to enter
into contracts to fulfill its mandate. 49 U.S.C. § 106(l)(6).
245 The FAA Administrator has discretion to issue such regulations, standards, and

procedures as the agency deems appropriate. 49 U.S.C. § 40113(a). The Administrator is

authorized to issue, rescind, and revise such regulations as may be necessary to carry out
the FAA's mission. 49 U.S.C.§ 40106(f)(3).
246 CASA, supra, 84.
247 Id. § 403.
248
Id. § 802(b).
249
Id. § 803(d).
250 Id. §§ 401(c), 803(b).
251 Chicago Convention, supra.
252 CASA, supra, at § 402(a). Procedurally, the FAA usually prepares a Notice of Proposed

Rule Making setting forth the proposed rule and reasons therefore. The NPRM is then
published in the Federal Register to allow public comment during a period of 60 to 120 days.
Thereafter, a final rule is published in the Federal Register at least thirty days before its
entry into force. Exceptions to this process may be imposed in emergency situations. 49
C.F.R Part 11.
253 CASA, supra, at § 610(c).
254
Id. § 801(c).
255
Id. § 601(d), 806. The decision shall be stayed unless the Director informs the court that
an emergency exists and safety requires the immediate effectiveness of the order. CASA §
 The Director also has broad authority to temporarily dispense with
due process requirements under circumstances when it is essential in the
interest of safety to meet an emergency.256 The Director also possesses
the authority to grant exemptions from the CAA's rules and regulations
if such exemption is consistent with the "public interest."257 The Director
may exempt foreign aircraft and airmen from certification requirements
or operating restrictions.258

The Director has certain transparency requirements, including the

responsibility to publish "all reports, orders, decisions, rules and
regulations" issued under the CASA. 259 Every official act must be
entered into the record, and the proceedings must be open to the public,
unless the Director determines that public disclosure would be contrary
to the national interest.260

In the United States, federal agencies are subject to the

Constitutional requirement of providing due process of law prior to the
deprivation of liberty and property.261 The Administrative Procedure
Act262 requires notice and an opportunity to be heard (usually) before
one is deprived of a governmental entitlement, such as an operating
license.263 With some exceptions, federal agencies such as the FAA are
also subject to certain transparency laws. This includes the Government
in the Sunshine Act,264 which requires their meetings ordinarily be open
to the public, as well as the Freedom of Information Act,265 which
requires that agencies ordinarily make available their internal documents
available to the public upon demand.266 Exceptions exist for various
reasons, including national security.267

The FAA also holds broad emergency powers to suspend or

601(d). Upon review, the facts shall be conclusive if supported by substantial evidence.
CASA § 806(d).
256 Id. § 402(b).
257
Id. § 405(a).
258
Id. § 611(b).
259
Id. § 401(b).
260 Id. § 801(d).
261 U.S. CONST. AMEND. V.
262 5 U.S.C. §§ 551-59, 701-06.
263 Id.
264
5 U.S.C. § 552b.
265
5 U.S.C. § 552(b).
266
Id.
267 Id.
revoke various operating and airworthiness licenses and certificates. 268
At various times, it has used such power to suspend operations of a
certain aircraft type,269 to suspend operations of an airline,270 or to
suspend the operations of the entire airline industry.271 Certain decisions
rendered, or sanctions imposed, in the United States by the
Administrator may be appealed to the NTSB.272 For example, the FAA
Administrator's decision to deny airman certification may be appealed to
the NTSB.273 Decisions of the NTSB may, in turn, be appealed to a U.S.
Court of Appeals.274 The FAA Administrator may promulgate
regulations, and grant exemptions from them.275

C. PERSONNEL LICENSING

Article 32 of the Chicago Convention requires that member States

issue certificates of competency and licenses to the pilot and operating
crew of every aircraft registered in said State and flown in international
aviation.276 With respect to flights above its territories, each State may
refuse to recognize such certificates and licenses issued by another State
to its own nationals.277

Article 33 provides that certificates of competency and licenses

268
49 U.S.C. § 40106 ("Emergency Powers").
269
Id. For example, in 1979, after a crash in Chicago, the FAA grounded all DC-10 aircraft
until it could determine the cause and prescribe a remedy.
270 ValuJet began operations in October 1993 with three aircraft. By 1996, it flew a fleet of

53 aircraft. On May 11, 1996, an oxygen canister exploded in the cargo hold in ValuJet
Flight 592, causing it to crash in the Everglades and killing all 110 persons aboard. The
FAA then accelerated and intensified its Special Emphasis Review of the carrier's
operations which had begun the preceding February. In June 1996, ValuJet entered into a
Consent Order with the FAA under which ValuJet agreed to suspend its operations and
provide information demonstrating its qualifications to hold FAA operating authority. On
August 29, 1996, the FAA returned the carrier's FAA operating certificate to it. See
Application of ValuJet Airlines, DOT Order 96-9-36 (1996); Paul Stephen Dempsey,
Predation, Competition & Antitrust Law: Turbulence in the Airline Industry, 67 J. AIR L. & COM.
685, 688 (2002).
271 After four commercial aircraft were commandeered by Al-Qaeda operatives on the

morning of September 11, 2002 (two were flown into the New York World Trade Center
and one into the Arlington, Va., Pentagon) the FAA issued an emergency order grounding
all commercial aircraft from flying for three days.
272 49 U.S.C. § 1133.
273 49 U.S.C. § 44703; DEMPSEY ET AL, supra, at §§ 12.02, 12.08
274
49 U.S.C. § 1153; DEMPSEY, ET AL, supra, at § 12.09.
275 49 U.S.C. § 44701(a)(2).
276
Article 29 requires that flight crew members carry their licenses on board the aircraft
they fly. Chicago Convention, supra, art. 29.
277 Id. art. 32
shall be recognized as valid by other contracting States so long as the
requirements under which they were issued were equal to or greater
than the minimum standards established by ICAO.278

First adopted in 1948, Annex 1 to the Chicago Convention

addresses personnel licensing.279 Under it, no one may act as a flight
crewmember without a valid license in compliance with the Annex.280
To secure a license or type rating,281 the applicant must satisfy age,282
knowledge,283 experience,284 flight instruction,285 and skill286
requirements. 287 The licensing process also must include a medical
fitness evaluation.288 Similar requirements are established for flight
navigators, flight engineers,289 and aircraft maintenance personnel.290

The CASA defines an "airman" as a flight crew member (the

person in command of the aircraft, the pilot, or navigator), mechanic (the
person in charge of the inspection, maintenance, overhaul, or repair of
aircraft or aircraft engines, propellers, or appliances), and the flight
operations officer.291 No one may serve in any capacity as an airman
unless he holds an airman certificate and, once issued, the holder may
not violate its terms and conditions.292 An airman certificate may be
issued "if the Director finds, after investigation, that such person
possesses the proper qualifications for, and is physically able to, perform
the duties pertaining to the possibility for which the airman certificate is

278 Id. art. 33.

279 Id. Annex 1
280 Id. § 1.2.1.
281 Type ratings are established for aircraft and for operating an aircraft under instrument

flight rules [IFR]. The second-in-command of an aircraft requiring more than a single pilot
must also hold a type rating for that aircraft. Id. § 2.1.7.
282 The minimum age is 17 years. Id. § 2.3.1.1. The minimum age for commercial pilots is

18 years. Id. § 2.4.1.1. The minimum age for an airline transport pilot license is 21 years.
Id. § 2.5.1.1.
283
Id. §§ 2.3.1.2, 2.4.1.2, 2.5.1.2.
284 The applicant may not have less than 40 hours of flight time. Id. § 2.3.1.3. Applicants

for a commercial pilots' license must have 200 hours of flight time, or 150 hours if
completed during a course of approved training. Id. § 2.4.1.3.1. Applicants for an airline
transport pilot license must have 1,500 hours of flight time.
285 Id. §§ 2.3.1.4, 2.4.1.4, 2.5.1.4.
286 Id. §§ 2.3.1.5, 2.4.1.5, 2.5.1.5.
287 Id., §§ 2.1.1.3, 2.4.1.6, 2.5.1.6.
288 Id. § 1.2.4, and Ch. 6.
289
Id. Ch. 3.
290
Id. Ch. 4.
291
CASA, supra, § 102(b)(6).
292 Id. § 611(a)(2). Certificates need not be issued to foreign nationals. Id. § 608(c).
sought . . . ."293 The airman certificate shall contain such terms and
conditions as necessary to assure civil aviation safety.294 Airmen have an
affirmative obligation to comply with the requirements of the CASA and
the rules and regulations promulgated thereunder.295

In the United States, the FAA issues all licenses specified in Annex
1 and validates foreign licenses.296 After investigation, if it is found that
the applicant is physically able297 to perform the duties required for the
airman certification and possesses the appropriate qualifications, the
Secretary will issue a certificate designating the capacity in which the
applicant is authorized to operate and the class, restrictions, and aircraft
types for which certification is valid. 298 The certificate specifies its terms,
conditions, duration, physical fitness test, and any other qualifications
deemed necessary in the interest of safety.299 The FAA may prohibit a
foreign national from receiving an airman certificate, or condition receipt
upon reciprocal foreign treatment.300

D. AIRCRAFT AIRWORTHINESS CERTIFICATION

Article 31 of the Chicago Convention requires that every aircraft

flown internationally must carry a certificate of airworthiness by the
State in which it is registered.301 Under Article 33, such certificates of
airworthiness must be recognized by other States, provided that the

293 Id. § 601(b).

294 Id. § 602(c).
295 Id. § 608(c).
296
In the United States, certification of airmen is governed by 14 C.F.R Part 61.
(Certification: Pilots, Flight Instructors, and Ground Instructors), Part 63 (Certification:
Flight Crew members other than Pilots), Part 65 (Certification: Airmen Other Than Flight
Crew members), Part 67 (Medical Standards and Certification), and 14 CFR 141 (Pilot
Schools). These are complemented by FAA handbooks, such as FAA ORDER 8710.3C —
Pilot Examiner's Handbook, FAA ORDER 1380.53.D — Staffing Guide: Certification
Engineers & Flight Test Pilot; FAA ORDER 3000.22 — Air Traffic Services Training; FAA
Order 3120.4J — Air Traffic Technical Training; FAA ORDER 3140.1 — Flight Standards
Service National Training Program; FAA ORDER 3930.3 — Air Traffic Control Specialist
Health Program FAA ORDER 7220.1A — Certification and Rating procedures (ATC) FAA
Order 8080.6B — Conduct of Airmen Knowledge Tests. FAA designated Aeronautical
Medical Examiners (AME) conduct medical certification pursuant to 14 C.F.R. § 97, and the
FAA Aeromedical Certification Manual.
297
The applicant must hold an FAA airman medical certificate. DEMPSEY, ET AL, supra, at §
12.11-12.13.
298
49 U.S.C. § 44703. For example, mechanics and repairmen hold a different certification
than do pilots. DEMPSEY, ET AL, supra, at § 12.32-12.34.
299
49 U.S.C. § 44703. DEMPSEY, ET AL, supra, at § 12.02.
300
49 U.S.C. § 44711.
301 Chicago Convention, supra, art. 31.
requirements under which they were issued met or exceeded ICAO
SARPs.302 Article 12 of the Chicago Convention requires every State to
adopt rules of the air to insure that aircraft flying over its territory, and
aircraft carrying its nationality mark, will comply with the laws
regulating the flight and maneuver of aircraft there in force. 303

Article 83bis of the Chicago Convention entered into force on June

20, 1997. It provides that when the operator of a leased, chartered, or
interchanged aircraft has his principal place of business or permanent
residence in another State, the State of registry may delegate to the State
of the operator those functions that that State of registry can more
properly perform, if it so consents to such delegation.304 For example,
Ireland could delegate to Australia the responsibility to oversee the
airworthiness of aircraft owned by Irish leasing companies, but operated
by Qantas.

Annexes 6 and 8 address aircraft operation and airworthiness.305

First adopted in 1948, Annex 6 addresses the "Operation of Aircraft."306
Its provisions go beyond flight operations,307 however, and include
aircraft instruments and equipment,308 maintenance,309 and security.310

Annex 8 addresses "Airworthiness of Aircraft" in detail.311 In it,

ICAO acknowledges that its requirements:

302 Id. art. 33.

303 Article 30 of the Chicago Convention provides that aircraft operating in international
aviation may carry radio equipment only if a license to install and operate it has been
issued by the State in which the aircraft is registered, and only used by flight crew. The use
of such equipment shall be governed by the State over which the aircraft is flown. Id. art.
30.
304
Protocol Relating to an Amendment to the Convention on International Civil Aviation [Art.
83 bis] (Oct. 6, 1980), ICAO Doc. 1318, reprinted in XVIII ANNALS OF AIR & SPACE L. 149
(1993). See generally, RUWANTISSA ABEYRATNE, AVIATION IN CRISIS 109-12 (ASHGATE 2004);
Benoit Verhaegen, The Entry Into Force of Article 83bis: Legal Perspectives in Terms of Safety
Oversight, XXII ANNALS OF AIR & SPACE L. 269, 271-73 (1997).
305
Id. Annexes 6, 8.
306
Annex 6 is divided into three parts: Part I — International Commercial Air Transport —
Aeroplanes; Part II — International General Aviation — Aeroplanes; and Part III — International
Operations — Helicopters. In the United States, 14 C.F.R PART 121- Operating Requirements:
Domestic, Flag, and Supplemental Operations implements the requirements of Annex 6, Parts I
and III ¶¶ 4.2.1.6 and 2.2.16. Id.
307 Id.
308
Id.
309 Id.
310
Id.
311
Annex 8 is divided into four parts: Definitions; Administration; Aeroplanes; and
Helicopters. Id. Annex 8.
 would not replace national regulations and that national
codes of airworthiness containing the full scope and extent
of detail considered necessary by individual States would be
necessary as the basis for the certification of individual
aircraft. Each State would establish its own comprehensive
and detailed code of airworthiness, or would select a
comprehensive and detailed code established by another
Contracting State.312

The model CASA is such a code.

Annex 8 addresses flight performance, 313 aircraft structures,314

design and construction,315 engines,316 propellers,317 powerplants,318
instruments and equipment,319 operating limitations,320 and continuing
airworthiness requirements.321 It requires that a Certificate of
Airworthiness be issued by the State on the basis of satisfactory evidence
that the aircraft complies with the relevant airworthiness
requirements.322 To demonstrate airworthiness, there must be an
"approved design" comprised of drawings, specifications, reports,
inspections, and flight testing.323 When a certificate of airworthiness is
based upon satisfactory evidence, a subsequent State may rely on the
earlier State's certification. When a particular type of aircraft is first
registered, the State issuing the certificate is required to so advise the
nation in which the aircraft was designed, which shall, in turn, forward
to the State of registry any information it has found necessary to ensure
continued airworthiness or safety of that type of aircraft.324 Aircraft that
have been damaged, have fallen into disrepair, or have otherwise
become less than airworthy shall not be flown until they are made
airworthy again.325

312
Id.
313 Id. Ch. 2.
314 Id. Ch. 3.
315
Id. Ch. 4.
316
Id. Ch. 5.
317
Id. Ch. 6.
318 Id. Ch. 7.
319 Id. Ch. 8.
320 Id. Ch. 9.
321 Id. Ch. 10. Similar requirements are imposed on helicopters. Annex 8.
322
Id. § 3.1.
323
Id. §§ 3.1, 3.2, and 3.3.
324
Id. §§ 4.2.1, 4.2.2.
325 Id. 8 § 6.2.
 Under the CASA, no one may lawfully operate an aircraft that
does not have an airworthiness certificate, nor may a certified aircraft be
operated in violation of its terms and conditions. 326 An airworthiness
certificate may be issued if the aircraft conforms to the appropriate type
certificate and, after inspection, is found to be in a safe condition.327 The
Director of Civil Aviation has the responsibility to inspect aircraft,
engines, propellers, and appliances, and, if they are found not to be
airworthy, to prohibit their use in civil aviation.328

The FAA holds broad authority to prescribe minimum standards

for the design, material, construction, quality of assembly and
performance of aircraft, engines, and propellers; it may also issue type,
production, and airworthiness certificates.329 The FAA also certifies the
airworthiness of aircraft,330 and provides comprehensive inspection of
aircraft and air operators.331

E. NATIONALITY, OWNERSHIP, AND REGISTRATION

REQUIREMENTS

The nationality of aircraft is addressed in Articles 17-21 of the

Chicago Convention.332 Aircraft have the nationality of the State in
which they are registered333 and may not be registered in more than a
single State.334 Aircraft must bear appropriate registration and
nationality marks.335

326
CASA, supra, § 611(a)(1).
327 Id. § 603(b).
328 Id. § 608.
329
49 U.S.C. §§ 44702 & 44704. DEMPSEY, ET AL, supra, at §§ 12.22-12.23.
330
Airworthiness functions of the FAA are provided by two services. The Aircraft
Certification Service (AIS) issues: (a) initial airworthiness certificates; (b) type certificates,
for new aircraft designs; (c) supplemental type certificates (STCs), for design modifications
to existing aircraft; and (d) Production Certificates, to authorize a manufacturer to build an
aircraft in accordance with an approved design. The Flight Standards Service (AFS): (a)
establishes certification standards for air carriers and commercial operators; (b) provides
certification inspection and surveillance activities to ensure proper aircraft maintenance;
and (c) manages the systems for registry of civil aircraft. DEMPSEY, ET AL, supra, at §§ 12.18-
12.21.
331
The FAA has developed two comprehensive handbooks - FAA ORDER 8400.10, Air
Transportation Operations Inspector's Handbook, and FAA ORDER 8700.1, General Aviation
Operations Inspector's Handbook – to guide its Aviation Safety Inspectors (Operations).
332
Chicago Convention, supra, arts. 17-21
333
Id. art. 17.
334
Id. art. 18.
335 Id. art. 20.
 Aircraft nationality and registration marks are addressed by
Annex 7, first adopted by ICAO in 1949. It requires that nationality,
common, and registration marks be affixed to the fuselage of the aircraft,
and be visible at all times.336 The nationality or common mark must be
listed before the registration mark.337 The letters must be in capital
Roman type, numbers must be in Arabic, of equal height, and without
ornamentation.338

The CASA requires the Director to establish and maintain a system

of aircraft registration.339 An aircraft may be registered if it is owned by
citizens or the government of the country where registry is sought and is
not registered in another country.340 The Director must also establish a
national system for recording title in aircraft and aircraft parts.341

In the United States, no aircraft may be operated unless it is

registered at the FAA's Aeronautical Center in Oklahoma City.342
Eligibility for registration is limited to aircraft not registered in another
country,343 and aircraft owned by U.S. citizens, permanent residents, and
U.S. corporations.344

F. AIR CARRIER OPERATOR CERTIFICATION

Under the CASA, in promulgating standards, rules, and

regulations and in certificating air operators, the Director of Civil
Aviation must take into account the carrier's responsibility to perform air
transportation consistent with the "highest possible degree of safety in
the public interest."345 One may not operate an airline without an air
operator certificate.346 Such a certificate shall be issued if the applicant "is
properly and adequately equipped and has demonstrated the ability to
conduct a safe operation" consistent with the procedures, rules, and

336 Id. § 3.1.

337 Id. § 2.2.
338
Id. § 4, 5.1.
339
CASA, supra, at § 501(a)
340
Id. § 501(c).
341 Id. § 502. An international registry has been established under the Cape Town

Convention.
342 49 U.S.C. § 44101 et. seq..
343
See IAL Aircraft Holding v. Federal Aviation Administration, 206 F. 3RD 1042, 1043 (2000).
344
49 U.S.C. § 44102. DEMPSEY, ET AL, supra, at § 12.30.
345
CASA, supra, at § 601(b).
346 Id. § 611(a)(4).
regulations established by the CAA.347

Aircraft operators have an affirmative duty to maintain, overhaul,

and repair their equipment in a manner consistent with CASA and the
rules and regulations promulgated thereunder.348 They also have a duty
to maintain operations consistent with such regulatory requirements and
the "public interest."349 They may not employ an air operator who does
not have a proper airman certificate,350 nor may they operate aircraft in
contravention of any rule, regulation, or conditions set forth in its
certificate.351

The FAA issues air carrier operating certificates.352 The FAA has
established a Certification, Standardization, and Evaluation Team
[CSET] for the certification of commercial airlines.353 An air carrier
operator has significant responsibility to "inspect, maintain, overhaul,
and repair all aircraft . . . in its fleet."354

G. AIR CARRIER ECONOMIC REGULATION

In the Chicago Conference of 1944, the United States strongly

resisted conferring economic regulatory authority to an international
body. However, Article 44 of the Chicago Convention provides that
among ICAO's "aims and objectives" is a responsibility to "Prevent
economic waste caused by unreasonable competition". By and large, this
mandate has lain dormant, and ICAO has instead focused its efforts on
the technical issues of navigation, safety and security.

The SARPs do not address economic regulatory issues. 355 The

CASA expresses ambivalence about economic regulation. It not only
includes a provision requiring air carriers to establish fitness as a
condition of entry, but CASA also encourages States to vest such

347 Id. § 604(b).

348 Id. § 608(a).
349
Id. § 608(b)
350
Id. § 611(a)(3).
351
Id. § 611(a)(5). Air operators must designate an agent for service of process. Id. § 804.
352 49 U.S.C. § 44705; 14 C.F.R PART 121.
353 Airline oversight is provided by a dedicated Certificate Management Office (CMO).

The CMO oversees the Airline Transport Pilot License [ATPL] and Type Ratings issued
under 14 C.F.R PART 121. DEMPSEY, ET AL, supra, at § 12.40.
354
DEMPSEY, ET AL, supra, at § 12.27.
355 CHINKIN, supra.
responsibility in an agency separate from the CAA.356

The term "airline" used to describe air carriers stems from

economic regulation. A line was a route between two cities authorized
by the appropriate governmental institution in an air carrier's certificate
or permit. Traditionally, economic regulation consisted of the regulation
of entry (routes), pricing (rates), intercarrier agreements, and in some
States, frequency and capacity.

In some States, the Department of Civil Aviation, or its Director

General, would designate which carrier(s) would be authorized to serve
domestic or international routes in comparative route proceedings.
Typically, air carriers would offer evidence as to how many carriers the
route could profitably support, and why its competitive offering would
serve the public interest. International route designation typically would
be authorized under a bilateral air transport agreement. In the United
States, from 1938 to 1978, certificates for operating authority were issued
if the proposed operations were "consistent with the public convenience
and necessity" and the air carrier applicant was "fit, willing and able" to
provide the proposed operations – financially and managerially – and
comport with the law; rates filed by carriers in their tariffs were
approved if "just and reasonable" and "nondiscriminatory." Carrier
selection is still a function of the U.S. Department of Transportation in
those markets not under an "open skies" bilateral air transport
agreement.

Although the Airline Deregulation Act of 1978 [ADA] eliminated

the requirement that an applicant for domestic operating authority prove
the consistency of its proposed operations with the "public convenience
and necessity,"357 the ADA in no way reduced the statutory burden that
an applicant prove that it is "fit, willing, and able to perform such
transportation properly and to conform to the provisions of this chapter
and the rules, regulations, and requirements of the [DOT]. . . ."358 In
determining whether a new applicant is fit, the DOT assesses whether
the applicant: (1) has the managerial and operational ability to conduct
the proposed operations; (2) has sufficient financial resources available
to commence operations without undue risk; and (3) will comply with its

356
CASA, supra.
357 Paul Stephen Dempsey, The Rise and Fall of the Civil Aeronautics Board - Opening Wide the
Floodgates of Entry, 11 TRANSP. L.J. 91, 137 (1979).
358 The Federal Aviation Act requires DOT to find a carrier fit, willing, and able before it

issues it an operating certificate. 49 U.S.C. §§ 41101-41112; See 14 C.F.R. § 204. Fitness

remains an ongoing requirement even after initial certification. 49 U.S.C. § 41110(e).
statutory and regulatory obligations under the law (or, in the regulatory
language often used, has demonstrated a satisfactory "compliance
disposition").359 In initial certification of an airline, the DOT Office of the
Secretary evaluates the financial, managerial, and operational fitness of
an applicant in determining whether it will issue it a Certificate of Public
Convenience and Necessity.360 The fitness of foreign airlines is also
evaluated before they are issued a permit to serve points in the United
States.361

Under what is commonly referred to as "Section 402" of the Federal

Aviation Act, in order to serve the United States, a foreign carrier must
secure a permit.362 In order to receive a permit, an applicant must
demonstrate that it is "fit, willing, and able" to perform the proposed
service, that it has been designated by the government where it is
registered to serve the route in question under an applicable bilateral air
transport agreement (or, in the absence of bilateral rights, on the basis of
comity and reciprocity), and that issuance of the permit would be in the

359 See Application of Air Illinois, Inc., DOT ORDER 86-2-25 (1986).
360 DEMPSEY ET AL , supra, at §§ 12.41-12.44
361 Id., § 12.45
362
49 U.S.C. §§ 41301-07. The FAA regulations specifically require compliance with Annex
6 to the Chicago Convention. 14 CFR §§ 211.20, 211.21, 294.83. The FAA describes the
process as follows:
The international requirements governing air safety are contained in the Convention
on International Civil Aviation, 61 STAT. 1180 (Chicago Convention) and its related
Annexes, primarily Annex 6 and Annex 8. A basic precept of the international
scheme is that sovereign States that accept the Convention's obligations will comply
with them.
If a particular foreign air carrier of a sovereign State desires to conduct foreign air
transportation operations into the United States, it must file an application with the
Office of the Secretary of Transportation (OST) for a foreign air carrier permit under
section 402 of the Federal Aviation Act of 1958, as amended, or for an exemption
under section 416(b) of the Act. Parts 211 and 302 of the Economic Regulations of
OST (14 CFR parts 211 and 302) prescribe the requirements for issuance of these
authorities. Consistently with international law, certain safety requirements for
operation into the United States are prescribed by the FAA's part 129 (14 CFR part
129). Before OST issues a foreign air carrier permit or exemption, it notifies the
FAA of the application and request the FAA's evaluation of the applicant's
capability for safe operations. This practice and procedure has been in effect for
many years. OST does not issue a foreign air carrier permit or exemption, and FAA
does not issue part 129 operations specifications unless the FAA is satisfied that a
foreign air carrier is capable of conducting safe operations within the United States.
Information Concerning FAA Procedures for Examining and Monitoring Foreign Air
Carriers, 57 Fed. Reg. 38342 (August 24, 1992) (to be codified at 14 C.F.R. Pt. 119). In
issuing a § 402 permit, or an exemption to provide service under 49 U.S.C. § 41301. The
DOT issues a boiler-plate order requiring that all aircraft serving the United States satisfy
Annex 6 requirements. See, e.g., Saudi Arabian Airlines, 2004 DOT AVIATION LEXIS 270 ; Air
Jamaica Ltd., 2004 AVIATION LEXIS 189 (MAR. 8, 2004).
"public interest."363 The DOT may impose any reasonable conditions,
amendments, or modifications to such permit once issued, or it may
simply suspend or revoke it.364 Once certificated, the FAA Administrator
has the authority to evaluate the ongoing technical and financial
capability of commercial airlines.365

H. SCHOOLS AND APPROVED MAINTENANCE

ORGANIZATIONS

No ICAO Annex presently addresses aviation training

organizations.366 The CASA authorizes the examination and rating of
civilian flight, repair, and maintenance schools, as well as Approved
Maintenance Organizations.367

I. AIR NAVIGATION FACILITIES

Air traffic control and flight information services are governed by

Annex 11 to the Chicago Convention – Air Traffic Services.368 Under the
CASA, the Director of Civil Aviation may prescribe "minimum safety
standards for the operation of air navigation facilities."369 The Director is
authorized to issue certificates to airports and establish minimum safety
standards for their operation.370 An airport certificate shall be issued
when, after investigation, it is determined that the applicant "is properly
and adequately equipped and able to conduct a safe operation in
accordance with [CASA] and the rules, regulations, and standards
promulgated thereunder."371 In the United States, the FAA provides air
navigation and air traffic control services.372

J. TRANSPORTATION OF DANGEROUS GOODS

Annex 18 of the Chicago Convention details the requirements for

"The Safe Transport of Dangerous Goods by Air."373 Under the CASA,

363
49 U.S.C. § 41302.
364
49 U.S.C. § 41304.
365
14 C.F.R PART 119 (2001).
366 CASA, supra.
367 Id. § 605.
368 Chicago Convention, supra, Annex 11 (Air Traffic Seminars).
369 CASA, supra, at § 607(a).
370
Id. § 607(b)(1).
371
Id., § 607(b)(2).
372
DEMPSEY, ET AL, supra, at §§ 12.48-12.50.
373 Chicago Convention, supra, Annex 18 (The Safe Transport of Dangerous Good by Air)
the transportation of dangerous goods must conform explicitly to the
requirements of Annex 18.374 This is the only place in which CASA
expressly refers to an Annex.375 Civil and criminal penalties may be
imposed for their violation.376

In the United States, the transportation of hazardous material is

subjected to comprehensive regulation.377 The Associate Administrator
for Hazardous Material Safety, in the DOT's Research and Special
Programs Administration, has jurisdiction over the transportation of
dangerous goods by air.378 The regulations incorporate the ICAO
Technical Instruction by reference.379

K. PENALTIES FOR NONCOMPLIANCE

The requirements established in the CASA, together with the

orders issued and rules and regulation promulgated thereunder may be
enforced in the domestic courts.380 The Director may establish and
impose civil penalties for the violation of the CAA or any rules,
regulations, or orders issued thereunder.381 The number of penalties
imposed in any case shall be governed by the "nature, circumstances,
extent, and gravity of the violation committed and . . . the degree of
culpability, history of prior offences, ability to pay, effect on ability to
continue to do business, and such other matters as justice may
require."382 Aircraft may be subject to the imposition of liens for penalty
payment383 and, if necessary, seizure.384

Under the CASA, criminal penalties, including imprisonment, may

be imposed upon any person who knowingly forges, counterfeits, or
alters a certificate, or knowingly uses a fraudulent certificate. 385 Fines
may be imposed upon anyone who fails to keep or preserve, or

374 CASA, supra, at § 608(e); Chicago Convention, supra, Annex 18 (The Safe Transport of
Dangerous Goods by Air).
375
CASA, supra, at § 608.
376
Id., 701(f), 702(l).
377
49 U.S.C. §§ 5101-27 (2003).
378 49 C.F.R. Pts. 171-80 (2001). DEMPSEY ET AL, supra, at §§ 12.53-12.57.
379 49 C.F.R. Pt. 171.11 (2001)
380 CASA, supra, at § 807.
381 Id at § 701(a). Penalties shall be adjusted for inflation periodically. Id., § 701(d).
382
Id., § 701(c).
383
Id., § 701(e).
384
Id., § 808(b).
385 Id., § 702(a).
mutilates, alters, or even fails to keep or preserve reports, records, and
accounts in the manner prescribed. This includes the filing of false
reports or records.386 Fines and imprisonment may be imposed upon
anyone who refuses to testify or produce records in response to a
subpoena issued by the Director,387 or anyone who removes any part of a
civil aircraft involved in an accident or any property aboard said
aircraft.388

Fines and imprisonment may be imposed upon one who:

 intentionally interferes with air navigation by establishing a false, Formatted: Bulleted + Level: 1 + Aligned at: 0.63 cm +
light or signal;389 Indent at: 1.27 cm
 conveys false information,390
 interferes with an aircraft crew member in the performance of his
responsibilities while in flight391 or with aircraft operations;392 or
 assaults, intimidates or threatens any flight crewmember,
including flight attendants and stewards.

More serious penalties are prescribed for any such act involving
the use of a deadly or dangerous weapon.393 Possession of a concealed
deadly or dangerous weapon, or placement of a bomb or other explosive
or incendiary device, aboard an aircraft, or an attempt thereto, shall
result in fines and imprisonment. 394 Where the act results in the death of
another person, imprisonment for life may be imposed upon one who
commits or attempts to commit aircraft piracy.395

In the U.S., The FAA Administrator has been given comprehensive

licensing396 and enforcement responsibilities.397 A certificate may be
modified, amended, suspended, or revoked in the interest of safety.398

386 Id., § 702(c).

387
Id., § 702(d).
388
Id., § 702(k).
389
Id., § 702(b).
390 Id., § 702(j).
391 Id., § 702(f)(1).
392
Id., § 702(i).
393 Id., § 702(f)(2).
394
Id., § 702(h)(1). An explicit exception exists for law enforcement officers under certain
circumstances. Id., § 702(h)(3).
395 Id. § 702(e)(1). Jurisdiction may exist even if the aircraft is not in flight at the time the act

or aerial piracy was committed, so long as the aircraft would have been in the jurisdiction
of the State seeking to exercise it had the act of piracy been completed. Id.
396
49 U.S.C. § 44702.
397
49 U.S.C. § 106.
398 49 U.S.C. §§ 44709, 44710; DEMPSEY, ET AL, supra, at § 12.06.
Civil399 and criminal400 penalties may be imposed by the FAA
Administrator in an administrative adjudication.401 The FAA
Administrator may bring a civil action in federal court seeking judicial
enforcement of a regulation or the terms of a certificate. 402

V. THE THEORETICAL PARADIGM OF COMPLIANCE

WITH AND ENFORCEMENT OF INTERNATIONAL
LAW

Most States comply with most of their international obligations in

the commercial arena.403 Some do so out of a desire to enjoy reciprocal
benefits.404 Since international treaties are concluded on the basis of
consent, most nations find compliance in their self-interest.405 Where
they have had a role in the process of law-making, and where they
perceive the process to have been fair, nations are more likely to abide by
their internal obligations.406 Voluntary compliance with international
legal obligations is sometimes obtained by virtue of the moral force of
the rule.407 If the substantive law is deemed fair and just and reflective
of widely accepted norms of conduct, it will receive more universal

399
49 U.S.C. § 1155(a); DEMPSEY, ET AL, supra, at § 12.62.
400
49 U.S.C. § 1155(b); Dempsey, et al, supra, at § 12.65.
401
49 U.S.C. § 46301 et seq.; 14 C.F.R § 13.11. DEMPSEY, ET AL, supra, at § 12.05
402 49 U.S.C. § 46106.
403 Under a "managerial model," Abram and Antonia Chayes embrace a cooperative

problem-solving approach as preferable to the enforcement model of compliances. They

contend that the willingness of States to comply with principles of international law is
attributable to three factors: (1) compliance reduces transactions costs by avoiding the need
to recalculate the costs and benefits of a decision; (2) treaties are consent-based instruments
that serve the interests of the participating States; and (3) a general norm of compliance
advances State compliance in any particular instance. ABRAM CHAYES & ANTONIA
HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL
REGULATORY AGREEMENTS 3 (1995).
404
H A N S M ORGENTHAU , POLITICS AMONG NATIONS 283 (3D ED. 1960).
405
John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations
Theory and International Law, 37 HARV. INT'L L.J. 139, 147 (1996); John K. Setear, Responses to
Breach of a Treaty and Rationalist International Relations Theory: The Rules of Release and
Remediation in the Law of Treaties and the Law of State Responsibility, 83 VA. L. REV. 1, 123
(1997).
406
Thomas Franck has advanced "legitimacy theory" as an explanation for compliance with
international law – the notion that States will obey rules they perceive to have "come into
being in accordance with the right process." Thomas M. Franck, Legitimacy in the
International System, 82 AM. J. INT'L L. 705, 706 (1988).
407 Franck insists the principal reason that States comply with international law is the

perceived fairness of the rules. THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND
INSTITUTIONS (1995).
acceptance.408 Other nations comply out of enlightened self-interest in
preserving stability, order, and predictability in an increasingly
interdependent global economy.409 Still others weigh the benefits of
compliance against the costs of non-compliance, including the retaliatory
conduct of other States.

Under the Chicago Convention, SARPs may be adopted by two-

thirds of the ICAO Council, which is itself comprised of only thirty-six
member States.410 Thus, twenty-four member States – less than 13% the
190-member ICAO Assembly – can promulgate SARPs.411 Other States
are given the right to participate in the Council's deliberations,412 though
relatively few actually do.413 But, ICAO's process includes providing
draft SARPs to all member States, inviting their comments and

408
Some observers contend that State compliance with international law depends upon its
perceived legitimacy, which in turn depends on the process by which created, its
consistency with generally accepted norms, and its perceived fairness and transparency.
Phillip R. Trimble, International Law, World Order, and Critical Legal Studies, 42 STAN. L. REV.
811, 833 (1990). According to Professor Hathaway, "The fairness model, like the managerial
model, thus points not to State calculations of self-interest as the source of State decisions to
act consistently with international legal obligations, but instead to the perceived fairness of
the legal obligations. Compliance with international law, in this view, is traced to the
widespread normative acceptance of international rules, which in turn reflects the
consistency of the rules with widely held values and the legitimacy of the rulemaking
process." Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J.
1935, 1958 (2002).
409
See generally, ROGER FISHER, IMPROVING COMPLIANCE WITH INTERNATIONAL LAW 127-140
(1982) (discussing rationales behind compliance with international laws, treaties, and
agreements).
410
Chicago Convention, supra, art. 50(a). Originally, the ICAO Council had 21 members.
With the growth of ICAO membership, and the fact that the Council is the dominant body
within the agency, the Convention has been amended on several occasions to increase the
size of the Council. Id.
411
Id., arts. 54(l), 90(a), 94. In the ICAO Assembly, each State has one vote. Id. art. 48(b).
However, the 25-member European Union tends to vote as a bloc, effectively giving Europe
25 votes.
412 Id. art. 53.
413 Professor and former ICAO Legal Advisor, Michael Milde observes:

The leadership of the advanced States asserts itself convincingly in the elaboration
of the international Standards while many other States are relegated to the position
of onlookers hardly able to openly oppose the 'motherhood' initiatives aimed at
enhancement of aviation safety and hardly ready to implement them. The result is
a continuing, creeping stagnation in the process of law-making in ICAO. While on
the surface the evolution of the Standards continues, fewer States (as percentage of
the total membership) participate in the relevant meetings, fewer States send timely
substantive comments on the proposed amendments to Annexes and, worst of all,
only very few States communicate to ICAO whether they are in fact in compliance
with the new Standards . . . .
Milde, supra, at 7.
objections, and attempting to achieve consensus.414 In practice, SARPs
are adopted unanimously by the Council.415

Some have been troubled by the process of law-making by elites;416

however, one must also recognize that the Chicago Convention includes
an "opt-out" process whereby individual States can refuse to adopt an
Annex they find impracticable.417 Theoretically, a majority of States
could effectively veto a SARP, though this has never occurred.418 The
Assembly also has the power to amend the Chicago Convention419 and to
elect the Council members who adopt SARPs.420 Thus, representative
democracy is at play. Moreover, proposed SARPs are widely circulated
for comment, not only to member States, but also to regional and
industry organizations, in an attempt to achieve consensus before the
Council formally votes. The process is time-consuming, and may
sometimes result in less stringent obligations than if the Council were
unilaterally to promulgate SARPs without input and consensus-building.

Institutions like ICAO not only promulgate standards governing

national behavior, but they also are participatory institutions in which
members are given an opportunity to debate the relevant issues of the
day.421 Their members are educated by ICAO on how to comply, and
encouraged regularly to comply.422 Hence, institutionalism itself – the
existence of an organization with a well defined mission and focused
agenda – can facilitate compliance with international legal obligations.423

414 Id.
415 Id.
416 See Peter Ateh-Afac Fossungu, The ICAO Assembly: The Most Unsupreme of Supreme

Organs in the United Nations System: A Critical Analysis of Assembly Sessions, 26 TRANSP. L.J. 1
(1998).
417
Id.
418 Id.
419 Chicago Convention, supra, art. 94. The Convention has only rarely been amended,

however.
420
Chicago Convention, supra, art. 49(b).
421
Institutionalist theory is among the most prominent of international relations theories.
It begins with the recognition of the anarchic nature of the international system, and posits
that institutions can improve the likelihood of cooperation. Institutionalists believe
institutions can promote cooperation even in the absence of a common government or
other formal governance structure by providing "a stable environment for mutually
beneficial decision-making as they guide and constrain behavior." William J. Aceves,
Institutionalist Theory and International Legal Scholarship, 12 AM. U.J. INT'L L. & POL'Y 227, 235-
245 (1997) (quoting Duncan Snidal, Political Economy and International Institutions, 16 INT'L
REV. L. & ECON. 121, 127 (1996)).
422
Id.
423 Id.
Ideally, an international organization can channel conflict so as to permit
settlement with minimal disruption.424 It is important that the leaders of
an international organization provide leadership so that its essential
purposes and mission are fulfilled. 425

The U.S. model CASA and draft aviation regulations stand on a

different footing from the SARPs.426 Although, in essence, the CASA
embraces the most important requirements established by the SARPs, no
nation other than the United States participated in the drafting of the
model statute.427 Some nations will, nonetheless, adopt CASA purely on
administrative efficiency grounds. It is simpler, quicker and easier to use
the model statute as a template for a developing nation's aviation laws
and regulations than drafting such legal material from scratch.
Economists characterize it as an effort to reduce transactions costs.428
Other nations will respond politically and reject the CASA model
outright because of the identity of its author.429 The CASA largely
follows the Federal Aviation Act of 1958.430 Ostensibly, some nations
will be more comfortable adopting a U.S.-drafted model statute than
adopting a U.S. law.

Looking beyond the legislative process, however, when examining

the substantive law, it is clear that the Annexes address technical issues
of aviation navigation and safety in a relatively objective and neutral
way.431 These issues themselves tend not to be politically contentious.432
Therefore, one would rate them highly for fairness. The achievement of
aviation safety is clearly in the self-interest of all States.433 The Annexes

424 Dempsey, supra, note 4, at 561.

425 Id.
426
Id.
427
Id.
428 See Paul Stephen Dempsey, Market Failure and Regulatory Failure As Catalysts for Political

Change: The Choice Between Imperfect Regulation and Imperfect Competition, 46 WASH. & LEE L.
REV. 1 (1988). Aceves argues that "transaction costs affect all contractual arrangements,
including the development and operation of international institutions." William J. Aceves,
The Economic Analysis of International Law: Transaction Cost Economics and The Concept of State
Practice, 17 U. PA. J. INT'L ECON. L. 995, 1003 (1996).
429
Aceves, supra, at 1004.
430 CASA, supra, at84.
431 Chicago Convention, supra.
432 Technical issues of aviation navigation and safety can be contentious, such as during the

height of the Cold War, a Soviet Sukhov military aircraft shot down Korean Airlines flight
007.
433 Rules should be fashioned with a view to assuring compliance with them, so that the

enforcement issue is never reached. ROGER FISHER, IMPROVING COMPLIANCE WITH

INTERNATIONAL LAW (1981). David S. Ardia, Does The Emperor Have No Clothes?
are also drafted in a way to encourage their adoption into each
contracting State's domestic law.434 Hence, on these grounds, one would
anticipate a high degree of compliance.

There are also instances of compliance inspired by the desire to

avoid the costs of noncompliance such as, for example, the adverse
publicity and negative world opinion to which the uncooperative nation
may be subjected if it is perceived as a delinquent.435 Rational, self-
interested States436 comply with international obligations because of a
concern for both the adverse reputational impacts and direct sanctions
that might be triggered by violations of law.437 Even absent an explicit
threat of sanctions, the mere possibility of reciprocal noncompliance or
retaliation often has a prophylactic effect in dissuading delinquency.438
Exposing the wrongdoer, such as by blacklisting its commercial
enterprises, may lead others to isolate or punish the recalcitrant State
until the delinquency is remedied.439

Initially the United States, and then ICAO, monitored State

Enforcement of International Laws Protecting the Marine Environment, 19 MICH. J. INT'L L. 497
(1998).
434
Chicago Convention, supra.
435 Dr. Milde observes that "Enforcement need not be perceived as a 'policing' or punitive

measure; full transparency and publicity of the relevant facts may create pressure of the
public opinion prompting a corrective action by the government concerned with ICAO
assistance." Milde, supra, at 15.
436
Rational choice theory posits that, "individuals engage in purposive, means-ends
calculation in order to attain their goals—that is, they select actions so as to maximize their
utility." Alexander Thompson, Applying Rational Choice Theory to International Law: The
Promise and Pitfalls, 31 J. LEGAL STUD. 285, 287 (2002). Some scholars have applied game
theory to the issue of compliance with international legal obligations. See, e.g., Brett
Frischmann, A Dynamic Institutional Theory of International Law, 51 BUFFALO L. REV. 679
(2003).
437
Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 CALIF. L. REV.
1823 (2002). Neorealists maintain international law has little or no impact on State
behavior, and that compliance with international law can be explained as accidental
coincidence between international law - whose content is defined by powerful States - and
national self-interest. Francis A. Boyle, The Irrelevance of International Law: The Schism
Between International Law and International Politics, 10 CAL. W. INT'L L.J. 193 (1980).
438
DEMPSEY, ET AL, supra, at 312. The impact upon a State arising from its loss of reputation
as a result of violating legal obligations may be sufficiently significant to deter delinquency.
Aceves, supra, at 254.
439
"If rule violations cannot be effectively identified, the incentives to transgress from such
rules are significant. Like the Law Merchant of medieval Europe, there must be a
mechanism that paints the scarlet letter of noncompliance on rule violators. . . . [I]f parties
are provided with adequate information regarding rule violations, there may be no need
for formal sanctioning mechanisms to ensure cooperation. Compliance can be gained
through decentralized punishment by informed parties." Aceves, supra, at 251-52.
compliance with the SARPs.440 More recently, the EU began to
consolidate member States' findings of deficient aircraft, and blacklisted
the operating airlines. The US and EU published the report cards
(known more commonly as "blacklists"). Many ICAO member States
also published their USOAP audit report cards. The economic impact
was immediately felt by the airlines and tourism industries of the failing
nations.441 If it isn't safe to fly somewhere, or on some airline, consumers
will vote with their feet, so to speak, and purchase travel elsewhere.
Hence, efforts by the US, ICAO, and more recently the EU, to "name and
shame" are important measures to expose delinquencies and thereby
encourage compliance.

What if States still do not comply with their international

obligations? The fundamental problem of enforcement of international
legal obligations is that there is nothing comparable to the domestic
courts and their police enforcement mechanism at the international
level.442 Domestically, nations usually play the paternalistic role of
maintaining law, order, and domestic tranquility within their borders;
but internationally, their conduct has been likened to that of "primitives,
warring [tribes], juvenile delinquents, or other uncivilized groups."443
The conceptual domestic model of courts and sheriffs which efficiently
determine legal rights and obligations and execute judgments is
inappropriate in the community of nations, where authority and power
are dispersed among numerous actors, and the legal system is essentially
primitive in nature.444 A nation which seeks implementation of its legal

440 Chicago Convention, supra.

441
Aceves, supra.
442
William Reisman, The Role of Economic Agencies in the Enforcement of International
Judgments and Awards: A Functional Approach, 19 INT'L ORG. 921, 932 (1965). Nevertheless,
the absence of a formal sheriff or his equivalent at the international level does not mean
that there is no public order system of law. Indeed, while it is difficult to organize the
consensual coercive and retaliatory mechanisms of compliance and enforcement into a
conceptual framework, there nevertheless exists "an international public order system and
it is sustained by a complex web of sanction expectations of varying degrees of intensity."
Id.
443
Lauri McGinley, Ordering a Savage Society: A Study of International Disputes and a Proposal
for Achieving Their Peaceful Resolution, 25 HARV. INT'L L. J. 43, 47 (1984). Hans Morgenthau
has written of international law, "[T]here can be no more primitive and no weaker system
of law enforcement than this, for it delivers the enforcement of the law to the vicissitudes of
the distribution of power between the violator of the law and the victim of the violation."
HANS MORGENTHAU, POLITICS AMONG NATIONS 312 (6TH ED. 1985). According to
Morgenthau, "It is an essential characteristic of international society, composed of
sovereign States, which by definition are the supreme legal authorities within their
respective territories, that no such central lawgiving and law-enforcing authority can exist
there." Id., 296.
444 McGinley, supra, at 46; Reisman, supra, at 932; WILLIAM REISMAN, SANCTIONS AND
rights in the international arena cannot rely upon some higher authority
to enforce them.445

Yet that does not mean that international law is unenforceable.446

A State seeking to force another State to comply with its international
legal obligations may, instead, rely on various means of "self-help"
remedies, including coercion.447 From the earliest early days of "classic
international law," and its expression in the writings of Hugo Grotius
and other scholars, to contemporary international legal system, coercion
and reprisals have played a fundamental role in nation-State dispute
resolution.448

ENFORCEMENT, IN 3 THE FUTURE OF THE INTERNATIONAL LEGAL ORDER 282 (C. BLACK & R.
FALK ED. 1971).
445 DEMPSEY ET AL, supra, at 312.
446 As Professor Zoller observes:

[T]he main difference between internal and international society lies in the fact that
in the latter physical coercion is not organized and has never been transferred to a
State system. In other words, the law is not enforced by an officer. This does not
mean, however, that it is not enforced at all. It is therefore misleading to believe
that international law is not "guaranteed law" on the ground that there is no
enforcing authority above the State. International law is indeed guaranteed mainly
by self-interest without the help of a specialized enforcing agency.
ELISABETH ZOLLER, PEACETIME UNILATERAL REMEDIES: AN ANALYSIS OF COUNTERMEASURES.
xii-xiii (1984).
447
The use of reprisals has been historically justified on the basis of compelling another
State to consent to a satisfactory settlement of a dispute created by its own international
delinquency. Reprisals are admissible not only, as some writers maintain, in case of denial
or delay of justice or other ill-treatment of foreign citizens prohibited by international law
but in all other cases of an international delinquency for which the injured State cannot get
reparation through negotiations, or other amicable means, be it noncompliance with treaty
obligations or any other internationally illegal act. Professor Schachter noted that "in the
absence of a system of community enforcement, international law has traditionally
sanctioned coercive measures by the successful party as "self-help" to compel the
recalcitrant party to carry out the judicial decision or arbitral award imposing obligations
upon it." Oscar Schachter, The Enforcement of International Judicial and Arbitral Decision, 54
AM. J. INT'L L. 1, 6 (1960). See JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICT
90 (1954). Whilst the use of force by one State against another State to obtain execution is
now generally regarded as illegal, there appears to be no bar to a creditor State taking
diplomatic measures or employing economic sanctions to obtain satisfaction. J.L. SIMPSON
& HAZEL FOX, INTERNATIONAL ARBITRATION 264, 268 (1959). See BURLEIGH CUSHING
RODICK, THE DOCTRINE OF NECESSITY IN INTERNATIONAL LAW 55-57 (1928).
448 See HERSCH L AUTERPACHT , OPPENHEIM'S INTERNATIONAL LAW 136 (7TH ED. 1952). See

also L. PFANKUCHEN, A DOCUMENTARY TEXTBOOK IN INTERNATIONAL LAW 637 (1940); and

JOHN BRIERLY, THE LAW OF NATIONS (6TH ED. 1963).
Prior to the development of modern international law, the principle of complete
national sovereignty dominated international relations, such that nations were free to act
autonomously or independently of other States, with an exclusive right to judge the
lawfulness of their own conduct. For purposes of this analysis, the period coinciding with
the term "modern international law" is used to refer to the post-World War I era, which
 Some commentators have posed the question of whether the use of
economic coercive means may be deemed illicit when directed against a
State for purposes of achieving political ends.449 The fundamental rights
of nations are founded upon the idea of natural equality, a residuum of
the state of nature existing among human groups before their entry into
the collective body politic.450 Yet, the very efficacy of international law is,
itself, jeopardized in the absence of effective sanctions by which its
requirements can be enforced.451 Hence, there should be standards by
which one assesses the legitimacy of coercion. In assessing the law-
fulness of economic reprisals,452 one source identified three succinct

expressed the explicit denunciation of the use of force. The Covenant of the League of
Nations clearly forbids the use of force by nations, and subsequent international
conventions and treaties explicitly limited the nature of State sovereignty vis-à-vis a State's
responsibility to other nations in the international community. Inevitably, conflicting
economic and political objectives resulted in conflict and confrontation. However, there
was no alternative but to accept forceful aggression, violent coercion and retaliation as
legitimate instruments of dispute resolution. Until the strongly worded prohibition on
violent coercion of Article 2(4) of the Charter of the United Nations, the use of force was the
common means of obtaining redress and ensuring enforcement in the international legal
order. Dempsey, supra, at 319; Zoller, supra, at 4.
449 J. Depray Muir, The Boycott in International Law, 9 J. INT'L L. & ECON. 187, 192 (1974); see

also Derek Bowett, Economic Coercion and Reprisals by States, 13 VA. J. INT'L L. 1, 5 (1972). As
this author noted elsewhere: "It does appear desirable . . . in an efficient system of world
public order, that forms of coercive activity which might be unnecessarily or unreasonably
destructive to the essential values of an innocent target State, or which might significantly
endanger international peace and security, be effectively regulated or even prohibited."
Paul Stephen Dempsey, Economic Coercion and Self-Defense in International Law: The Arab Oil
Weapon and Alternative American Responses Thereto, 9 CASE W. RES. J.INT'L L. 253, 261 (1977).
See generally, James Boorman, Economic Coercion in International Law: The Arab Oil Weapon
and the Ensuing Judicial Issues, 9 J. INT'L & ECON. 205 (1974). (analyzing the demand and
need for oil as a device whereby other nations may be coerced into compliance.)
450 BRIERLY, supra. CHARLES DE VISSCHER, THEORY AND REALITY IN PUBLIC INTERNATIONAL

LAW 18 (P. CORBETT TRANS. 1957).

451 Dempsey, supra, note 4, at 560.
452 Coercive enforcement mechanisms which classic international law designated as

"reprisals" derived from the acts of withholding, taking or destroying any form of property
of a foreign State or its nationals. They could be carried out for a variety of reasons: as a
show of strength in foreign policy, to punish another State for any action judged to be
reprehensible, or in warfare to compel an enemy to respect certain basic rules and to
punish it for not having respected them. Zoller, supra, at 37. The premise or theory behind
early public reprisals was that the international system must be based on a just and equal
social order. A breach of law always disrupts that order and is likely to lead to injustice
among nations. Justice rests upon a foundation of equality of nations. Should this equality
be distorted by a breach of law, justice calls for its reestablishment. Thus, the injured State
has the natural right to retaliate in order to restore equality, or to punish in order to return
the "status quo ante." The early scholars and philosophers of international law found
violent reprisals to be permissible and necessary tools of law enforcement. Id.
According to Grotius, the law of nations has two components: the jus natural or
requirements:

1. A prior international delinquency against the claimant State; Formatted: Numbered + Level: 1 + Numbering Style: 1, 2,
2. Redress by other means must be either exhausted or unavailable; 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.63 cm +
Indent at: 1.27 cm
and
3. The economic measures must be limited to the necessities of the
case and proportionate to the wrong.453

As to the requirement of a prior international delinquency, in the

British Caledonian case, the court held that the United States may not
unilaterally suspend the aircraft of foreign-flag airlines unless the States
in which they are registered have not abided by their obligations under
the Chicago Convention and it Annexes. 454 Otherwise, the US is
obligated to accept that State's certificate of airworthiness.455 Hence,

natural law of nations, which is a secularized law of nature, and the jus gentium or
voluntary law of nations. The natural law of nations is based on reason; the voluntary law
is based on will, i.e., the consent of States. See R. BRYANT, A WORLD RULE OF LAW, A WAY
TO PEACE 38 (1977). Referring to nation-State conflict, Grotius saw peace as the only
worthy end for which war should be waged. In his conclusion, he claims that man must
never resort to simple barbarism but must fight only to enforce principles of justice which
spring from man's rational nature. Grotius developed the concept of "Just War;" that is,
that international law determines the principal cases of resort to war, such as punishment
of a State which violates the basic principles of international law. See, JULIUS STONE, LEGAL
CONTROLS OF INTERNATIONAL CONFLICT 14 (2D ED. 1959). Dempsey, supra, at 319. In
addition, Grotius argued that war could be legitimately waged and hostages taken as
security for the fulfillment of a treaty. HUGO GROTIUS, DE JURE BELLI AC PACIS Ch. XX §
LIII. Grotius argued that law without sanctions would fail. Thus, Grotius recognized the
permissibility of reprisals and sanctions used to enforce international obligations. Id.
A later critic of Grotius, Samuel von Pufendorf (1632-1694), stressed that the availability of
overwhelming coercive force is the most effective means to encourage lawful behavior of
States. For example, Pufendorf argued, "Those who cannot be brought to a better way of
life by reason, can be kept in order only by terror." SAMUEL VON PUFENDORF, VII THE LAW
OF NATIONS Book § 11 (1672).
Emerich de Vattell (1714-1767), in his THE LAW OF NATIONS, espoused the right of reprisal
even more strongly than either Grotius or Pufendorf. Thus, from the 16th to the mid-18th
centuries, an effort was made to construct a conceptual legal framework around the use of
armed might as a legitimate means of enforcing standards of international behavior. See B.
FERENZ, ENFORCING INTERNATIONAL LAW (1983).
453 Derek Bowett, Economic Coercion and Reprisals by States, 13 VA. J. INT'L L. 1, 9-10 (1972)

[citations omitted]. This author has taken a similar position: "A determination that the
predominant purpose of the acting State was to cause an illegitimate deprivation or
destruction of values of the target State, rather than a virtuous attainment of ends (that is,
maximization of legitimate values) might be considered as prima facie . . . evidence of
illegality." Paul Stephen Dempsey, Economic Coercion and Self-Defense in International Law:
The Arab Oil Weapon and Alternative American Responses Thereto, 9 CASE W. RES. J.INT'L L. 253
at 261-62 (1977); see DEMPSEY ET AL, supra, at 330.
454
British Caledonian, 665 F.2D 1153 (D.C. CIR. 1981)
455 Id.
before a State prohibits the operations of an air carrier within its borders,
it must first legitimately conclude that the registering State has failed in
its obligations under the Chicago Convention and the Annexes thereto.

As for the exhaustion of alternative remedies requirement, the

modern bilateral air transport agreements lay out a process of
notification and consultation prior to suspension.456 Failing a negotiated
settlement, an aggrieved State may file a formal complaint with the
ICAO Council for adjudication under Article 84 of the Chicago
Convention.457 In the six decades since its promulgation, the ICAO
Council has exhibited no enthusiasm for adjudicating disputes and, in
fact, has never reached the merits on any adjudication (though it has
successfully used its 'good offices' to help mediate several).458

Finally, regarding proportionality, the prohibition of an unsafe

aircraft from one's airspace, or the suspension of service to and from an
unsafe airport, appears tailored to the wrong and designed to secure a
precise, and proportionate, remedy.459 The imposition of sanctions is
designed to cause sufficient economic stress on the delinquent State's
airlines and its economy so that it sees the utility of complying with the
SARPs.460 The ultimate remedy, of course, is compliance, whether
achieved through enthusiastic endorsement of the principles codified in
the international rule, or through reluctant and grudging acquiescence to
achieve relief from real or potential coercion.461

Still some States do not comply because, quite frankly, they

cannot.462 Some States are simply too poor to adequately fund their
aviation ministries, to hire technically competent inspectors and
regulators, or to invest in airport and air navigation infrastructure.463
Some States simply lack the financial or human resources to comply.464
This is where the developed world needs to help the developing world,
in providing grants, loans and technical assistance to facilitate
compliance.465 No level of coercion can compel a nation to do something

456
Dempsey, supra, at 330
457
Chicago Convention, supra, Art. 84. Dempsey, supra, at 330.
458 Dempsey, supra, at 330.
459 Id.
460 Id.
461 Id.
462
Id.
463
Id.
464
Id.
465 Id.
it cannot.466 The IFFAS program is a step in the right direction.467 So too,
is the development of regional air transport organizations that pool
resources and share expertise to facilitate regional compliance. 468

VI. CONCLUSION

Like a constitution, the Chicago Convention created a quasi-

legislative body, ICAO. The Convention gave ICAO the power to fill in
the details by promulgating requirements, and giving contracting States
the responsibility to implement them. 469 For decades, ICAO successfully
promulgated standards, fulfilling the first part of the mandate.470 But
many contracting States ignored their responsibilities to fulfill the second
part of that mandate, and promulgate domestic laws, and implementing
procedures to fulfill their international obligations.471 ICAO blithely
turned a blind eye to such delinquency.472 The fundamental objective of
achieving uniformity in international aviation safety and navigation – an
area where uniformity is manifestly desirable - was thwarted for many
years.

The story of the development of uniform international rules

governing aviation safety by the relevant international organization and
the means by which they were initially ignored, and then gradually
implemented, can serve as a useful case study of how compliance is
pragmatically achieved in international law – through encouragement,
persuasion, assistance, investigation, publicity, and, if all else fails,
reprisals. The interplay between recalcitrant States and economically
powerful States determined to investigate, expose, and sanction
delinquency, is the classic conflict between a powerful State determined
to exert its will over a weaker State. Here, that dynamic prompted target
States to ask the relevant international organization – ICAO – to exert its
authority to monitor and facilitate compliance – in effect, to fulfill its
constitutional mandate under the Chicago Convention to achieve safety
in international aviation by creating uniform standards adopted
universally. Consensus was achieved that ICAO oversight was needed,
and highly preferable to the unilateral monitoring and sanctions

466
Id.
467 See Saba, supra, at 537; Ruwantissa Abeyratne, Funding an International Financial Facility
for International Safety, XXVIII ANNALS OF AIR & SPACE L. 1 (2002).
468 See Abeyratne, supra, at 133; Barreto, supra, at 672-75.
469
Chicago Convention, supra.
470
Abeyratne, supra.
471
Id.
472 Milde, supra, at 16.
imposed by a single powerful nation like the United States. Global
compliance with international regulations is more universally accepted
when mandates are a product of an international organization, rather
than products of a single, albeit powerful, nation.

As a consequence, ICAO, today, is a much more effective

organization than it was a decade or two ago, and the Chicago
Convention's goal of achieving uniformity in international aviation
safety and navigation is becoming more universally achieved. This is a
development in the traveling public's best interest. The interplay
between unilateral and multilateral enforcement roles revealed here
offers useful lessons which can help facilitate the success of global
governance in other contexts.

VII. APPENDIX

A. BRITISH CALEDONIAN AIRWAYS v. BOND

665 F.2d 1153 (D.C. Cir. 1981)

ROBB, Circuit Judge:

On the afternoon of May 25, 1979, American Airlines DC-10 Flight 191
crashed on take-off from Chicago's O'Hare International Airport, killing all 271
persons on board. Early reports indicated that the left wing pylon and the
engine attached to it had separated from the wing as the aircraft took off. Later
investigations showed that as the engine-pylon assembly tore loose from the
wing, it severed hydraulic and electrical lines, which caused one set of wing slats
to retract. The retraction of these slats, which govern slow speed lift, in turn
caused asymmetrical lift of the aircraft. The crew responded by slowing the
aircraft speed, which normally is the appropriate remedial measure for loss of
engine power. However the crew did not know that the damage had raised the
stall speed. Therefore, as the crew reduced the speed, the left wing stalled-lost
the ability to sustain lift-and the airplane rolled and fell to the ground.
On May 28, 1979, in response to a recommendation of the National
Transportation Safety Board, the FAA [Administrator Langhorn Bond] issued an
Emergency Airworthiness Directive to all operators of U.S.-registered Model DC-
10 aircraft, instructing them to inspect the pylon attach points on their aircraft.
In keeping with agency practice, the FAA dispatched that directive to all foreign
operators of DC-10 aircraft as well. The inspections undertaken in response to
the May 28 directive revealed cracks in the pylon mounting assemblies of certain
airplanes, . . . and other defects, including a failure of the spar web (a major
structural component of the pylon) in a United Airlines DC-10 aircraft. . . .
Accordingly, the FAA issued another Emergency Airworthiness Directive on
May 29, 1979, requiring more thorough inspections at more frequent intervals. In
addition, the Administrator of the FAA grounded all domestic DC-10s, pending
the more thorough investigations, and again notified foreign operators of the
latest developments.
By June 2 the Safety Board had identified a relationship between a pattern
of cracks in the pylons and a maintenance technique that violated the procedure
recommended by McDonnell Douglas, the designer and manufacturer of the
aircraft. McDonnell Douglas recommended removing the engine from the pylon
before removal and reinstallation of the pylon to the wing attachment fittings. . . .
However, the Safety Board discovered that some maintenance personnel
removed the pylon and the attached engine as a unit, using a forklift to transport
the pylon-engine assembly away from the wing for inspection and repair. When
reinstalling the pylon-engine assembly, the forklift operator had limited control
over the precise placement of the pylon aft bulkhead into the wing structure.
Vertical misalignment of even a fraction of an inch was thought to have caused
the pylon flange to strike the forward lug of the wing fitting, which cracked the
flange
On June 6, 1979, the Administrator of the FAA determined that the public
safety required him to issue an Emergency Order of Suspension, which
prohibited the operation of all U.S.-registered Model DC-10 aircraft by
suspending the type certificate for all DC-10s and terminating the effectiveness of
the individual airworthiness certificates for each U.S.-registered DC-10 aircraft.
Later that day the Administrator issued SFAR 40, which expanded the scope of
the earlier prohibition by prohibiting the operation within U.S. airspace of all
foreign-registered DC-10 aircraft. . . .
On June 25, 1979, representatives of member states of the European Civil
Aviation Conference met in Paris with a delegation from the United States and
requested rescission of SFAR 40 as to those DC-10 aircraft for which certificates
of airworthiness had been re-issued. . . . In a statement issued June 25 the
representatives of the European States took the position that
According to Article 33 of the Chicago Convention,
certificates of airworthiness issued by the State of registry have to
be recognized by the other Contracting States. There is no doubt
that the requirements under which these certificates were issued
are equal to or above the minimum standards established under the
Chicago Convention. . . . No evidence has been presented by the
United States authorities to the effect that the requirements under
which European States have issued their certificates of
airworthiness fall short of . . . minimum standards. . . .
[Under Article 33 of the Chicago Convention], the judgment of the
country of registry that an aircraft is airworthy must be respected, unless the
country of registry is not observing the "minimum standards." Annex 8 to the
Chicago Convention contains the international standards of airworthiness
contemplated by Article 33 and specifically provided for in Article 37. Annex 8
was adopted and is periodically amended by the Council of the International
Civil Aviation Organization (ICAO), pursuant to Article 90 of the Chicago
Convention.
Because the Chicago Convention itself provides that the ICAO, and not
the individual contracting states, will adopt the airworthiness standards now
contained in Annex 8, we cannot say that Article 33 requires legislative
implementation by Congress. In contrast, several provisions of the Chicago
Convention clearly require the contracting states, as distinguished from ICAO, to
take the necessary steps under national law to implement the purposes of those
provisions. For example, pursuant to Article 22:
Each contracting State agrees to adopt all practicable
measures, through the issuance of special regulations or otherwise,
to facilitate and expedite navigation by aircraft between the
territories of contracting States, and to prevent unnecessary delays
to aircraft, crews, passengers and cargo, especially in the
administration of the laws relating to immigration, quarantine,
customs and clearance.
See also Articles 12, 14, 23, and 28. Other provisions of the Convention,
such as Article 33, set forth rights or obligations of the contracting states and
their flag carriers that require no legislation or administrative regulations to
implement them. For example, the first paragraph of Article 5 provides that
"(e)ach contracting State agrees that all aircraft of the other contracting States,
being aircraft not engaged in scheduled international air services shall have the
right, subject to the observance of the terms of this Convention, to make flights
into or in transit non-stop across its territory. . . ." See also Articles 8, 15, 16, 20,
24, 29, 32, and 35. We think these provisions state rules that may not be qualified
or modified through legislation or administrative regulations enacted by the
individual signatory nations, consistent with the international obligations
undertaken by each nation that is a party to the Convention. Article 33 is such a
provision and we therefore hold that it was intended to operate upon ratification
of the Convention and promulgation of the minimum airworthiness standards-
that is, we conclude that Article 33 is self-executing. . . .
Section 1102 of the Federal Aviation Act of 1958, 49 U.S.C. § 1502 (1976),
requires the Administrator, in exercising and performing his powers and duties,
to "do so consistently with any obligation assumed by the United States in any
treaty, convention, or agreement that may be in force between the United States
and any foreign country or foreign countries." As we have said, Article 33 of the
Chicago Convention requires each contracting state, including the United States,
to recognize as valid the certificates of airworthiness issued by the other
contracting states, as long as those certificates are issued under requirements that
are equal to or above the minimum standards established by the International
Civil Aviation Organization. Section 1102 of the FAA requires the Administrator
to discharge his duties consistently with the obligation assumed by the United
States in Article 33. Because the Administrator at no time questioned whether
the foreign governments met the minimum safety standards set by the ICAO, his
issuance of SFAR 40 and his refusal to rescind the order after the foreign
governments had revalidated the airworthiness certificates for aircraft flying
under their flags would appear to have violated Article 33 and, therefore, section
1102. . . .
For authority to issue SFAR 40 the Administrator relies in particular on
section (b) of Article 9, which allows each contracting state to restrict or prohibit
flying over all or any part of its territory "in exceptional circumstances or during
a period of emergency, or in the interest of public safety." We agree with the
petitioners and amicus Northwest Airlines, however, that the government's
interpretation of Article 9(b) disregards the context of that provision and hence
does not reflect its true meaning.
Article 9 appears in Chapter II of the Convention-"Flight Over Territory of
Contracting States"-while Article 33 is in Chapter V-"Conditions to Be Fulfilled
With Respect to Aircraft." In addition, Article 9 is marginally annotated with the
phrase "Prohibited Areas". We think Article 9 is aimed at restricting the
territorial access of all aircraft, rather than at restricting the movements of
particular types of aircraft. Thus, Article 9(a) authorizes a permanent prohibition
on flight over "certain areas" (strategically sensitive areas), while Article 9(b)
permits a government, in "exceptional circumstances", temporarily to restrict or
prohibit "flying over the whole or any part of" that country's territory. In short,
Article 9 permits a country to safeguard its airspace when entry by all aircraft
would be dangerous or intrusive because of conditions on the ground. Article 9
does not allow one country to ban landing and take-off because of doubts about
the airworthiness of particular foreign aircraft, in derogation of Article 33. If
doubts about airworthiness exist, one country may refuse to recognize another
country's certificate of airworthiness, but only if the certificating nation has not
observed the minimum standards of airworthiness established in Annex 8
pursuant to Articles 33 and 37 of the Chicago Convention. As we have
emphasized, the Administrator at no time questioned the foreign governments'
compliance with the minimum standards of airworthiness. . . .
The government further argues that a provision of the various bilateral
aviation agreements authorized the FAA Administrator to take emergency action
banning landings and take-offs in the United States by foreign-registered DC-10s.
The standard form of bilateral air transport agreement used by the United States
provides in Article 4 as follows:
1. Each Party may revoke, suspend or limit the operating authorizations or Formatted: Numbered + Level: 1 + Numbering Style: 1, 2,
technical permissions of an airline designated by the other Party where: 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.63 cm +
a) substantial ownership and effective control of that airline are not Indent at: 1.27 cm
vested in the other Party or the other Party's nationals; Formatted: Numbered + Level: 1 + Numbering Style: a, b,
b) that airline has failed to comply with the laws and regulations c, … + Start at: 1 + Alignment: Left + Aligned at: 0.96 cm +
referred to in Article 5 of this Agreement (Application of Laws); or Indent at: 1.6 cm
c) the other Party is not maintaining and administering the Standards
as set forth in Article 6 . . . (Safety and Airworthiness).
2. Unless immediate action is essential to prevent further non-compliance Formatted: Numbered + Level: 1 + Numbering Style: 1, 2,
with subparagraphs (1)(b) or (1)(c) of this Article, the rights established 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.63 cm +
by this article shall be exercised only after consultation with the other Indent at: 1.27 cm
Party. . . .
We agree that this provision allows the United States to take immediate
action, without consultations, if such action is necessary to prevent further non-
compliance with U.S. laws and regulations (subparagraph (1)(b)) or with the
applicable airworthiness standards (subparagraph (1)(c)). However this
provision cannot help the Administrator here, for the reason that none of these
alleged justifications for revoking, suspending or limiting operating
authorizations was identified or relied on by the Administrator when he issued
SFAR 40 or when he refused to recognize the foreign airlines' revalidated
certificates of airworthiness. We recognize the diplomatic sensitivity of an
allegation that a foreign nation has been derelict in complying with law or
relevant standards; but if the government wishes to rely on the dereliction it
must grasp that nettle. . . .
The DC-10 aircraft was type-certificated in the United States according to
Federal Aviation Administration regulations. 14 C.F.R. Part 25 (1979). On June 6,
1979, shortly before the issuance of SFAR 40, the FAA Administrator issued an
Emergency Order of Suspension, which suspended the DC-10 type certificate.
According to the government, as long as the U.S.-type certificate was suspended,
the FAA could refuse to recognize foreign certificates of airworthiness, since
those certificates were based on the U.S.-type certificate. . . .
Annex 8 of the Chicago Convention provides that a contracting state may
recognize as valid an airworthiness certificate of a foreign contracting state if the
foreign state issued the certificate on the basis of satisfactory evidence that the
aircraft is in compliance with appropriate airworthiness requirements, that is, a
comprehensive and detailed national airworthiness code that is consistent with
the standards of Annex 8. Annex 8 includes requirements relating to the design,
construction, material, specifications, and performance for safe operation. Id.
Specifically, Part II, sections 3.1, .2, and .3, require an "approved design"
consisting of drawings, specifications, reports and other appropriate
documentation, inspections during construction, and flight testing to show
compliance with the applicable airworthiness requirements. Id. When a
certificate of airworthiness is based upon such satisfactory evidence, Annex 8
permits a subsequent state of registry to rely on this original certificate of
airworthiness for the particular type of aircraft as "satisfactory evidence" upon
which it can predicate its own certificate of airworthiness. If the original or
"type" certificate is suspended, then, according to the government, the
"satisfactory evidence" upon which subsequent certificates of airworthiness were
issued by foreign nations no longer exists, and the certificates need not be
recognized as valid. We express no opinion as to the validity of this argument.
It is enough to say that the record does not show that the foreign nations which
issued certificates of airworthiness to the petitioners based those certificates on
the U.S.-type certificate for the DC-10. Indeed, the British Civil Aviation
Authority expressly stated that in re-issuing its certificates of airworthiness, it
"took account of FAA type certification as a useful basis, but called for additional
substantiation in a number of areas, including fail safe and fatigue and made use
of Douglas fatigue test information not required by FAA in their evaluation."
The FAA has characterized this type of independent determination of
airworthiness as "considerably risky." We believe however that the multilateral
and bilateral agreements intend the states of registry to resolve questions of
safety and continuing airworthiness that may arise after the original
airworthiness and type certificates were issued. Therefore, we reject this
justification for the Administrator's action in issuing SFAR 40 and in refusing to
recognize the re-issued certificates of airworthiness. . . .
For the foregoing reasons we conclude that the Administrator's action in
issuing SFAR 40 violated various multilateral and bilateral civil aviation
agreements, which in turn violated section 1502 of the Federal Aviation Act of
1958. Accordingly, that action must be set aside under 49 U.S.C. § 1486(d) (1976).

B. AIR NEW ZEALAND v. DIRECTOR OF CIVIL AVIATION

 New Zealand High Court
Auckland

[2002] 3 NZLR 796

BARAGWANATH, J.
This case raises an important question of the practical and principled
operation of the International Convention on Civil Aviation 1944, known as the
Chicago Convention (the convention), as it is expressed in the domestic law of
New Zealand by the Civil Aviation Act 1990. The international authorities
conflict.
Air New Zealand seeks an order requiring the New Zealand Director of
Civil Aviation to register on the New Zealand register a Fokker 27-500 aircraft
which has been physically in New Zealand for nearly six years although it
remains registered on the Indian register. The High Court of New Zealand . . .
has declared that the owner of the aircraft is Air Wisconsin, a subsidiary of the
international carrier, United Airlines, and that Air New Zealand is entitled to a
lien over the aircraft for the sum of $810,410.63 plus interest. Air Wisconsin
supports Air New Zealand's claim. The Director resists the claim on the grounds
that he is prohibited from registering the aircraft by § 6(2) of the (New Zealand)
Civil Aviation Act 1990 which provides:
(2) No aircraft shall be registered in . . . New Zealand if it is
registered in any other country.
Air New Zealand contends that the continued Indian registration is
contrary to the law of India and should be disregarded, as being a nullity. The
Director responds that this Court neither has, nor should purport to exercise,
jurisdiction to review what is in law an Act of State of the Indian Government
which is immune from consideration by the Courts of New Zealand. . . .
The fundamental question is whether a New Zealand Court has any
authority to assume jurisdiction to examine the operation in India of the activities
of that sovereign state and whether to do so would infringe basic precepts of
international law. There is usually very good reason for Courts of one state to
exercise great care when invited to adjudicate in a manner touching upon the
function of the Executive of another state. The authorities employ a range of
concepts, variously termed and sometimes overlapping, including state
immunity, non-justiciability, Act of State and judicial abstention. In Rahimtoola v
Nizam of Hyderabad [1958] AC 379 at p 422 Lord Denning adopted the statement
of Sir Robert Phillimore in The Charkieh (1873) LR 4 A & E 59, 97:
'' 'The object of international law, in this as in other matters, is not
to work injustice, not to prevent the enforcement of a just demand,
but to substitute negotiations between governments, though they
may be dilatory and the issue distant and uncertain, for the
ordinary use of courts of justice in cases where such use would
lessen the dignity or embarrass the functions of the representatives
of a foreign State.' Applying this principle, it seems to me that at
the present time sovereign immunity should not depend on
whether a foreign government is impleaded, directly or indirectly,
but rather on the nature of the dispute. Not on whether 'conflicting
 rights have to be decided', but on the nature of the conflict. Is it
properly cognizable by our courts or not? If the dispute brings into
question, for instance, the legislative or international transactions of
a foreign government, or the policy of its executive, the court
should grant immunity if asked to do so, because it does offend the
dignity of a foreign sovereign to have the merits of such a dispute
canvassed in the domestic courts of another country: . . . .''
Professor Malcolm Shaw has observed (Malcolm N Shaw, International
Law (4th ed), p 129):
''[t]he concept of non-justiciability applies with regard to . . .
foreign executive acts.''
[S]imilar policy is to be found in the US, notably in the decision of the
Supreme Court in Banco Nacional De Cuba v Sabbatino 376 US 398 (1964) which
concerned Cuban retaliatory appropriation of assets of US citizens. In holding
that the lawfulness of this expropriation could not be examined in the US Courts,
Harman J traced the American Act of State doctrine back to an English case of
1674, Blad v Bamfield (1674) 3 Swans 604. He cited as the leading US statement of
principle Underhill v Hernandez 168 US 250 (1897) at p 252 per Fuller CJ:
''Every sovereign State is bound to respect the independence
of every other sovereign State. . . . Redress of grievances by reason
of such acts must be obtained through the means open to be availed
of by sovereign powers as between themselves.'' . . .
The high water mark of Air New Zealand's case is the evidence of its
expert as to the law of India, Mr Mitter, who presciently stated:
''In a situation where there is no cooperation from the old
owner or a legal contest by the old owner, the DGCA is likely to
require a court of law to declare the ownership of the aircraft. This
stand of the DGCA would be in conformity with the declared
policy of the Central Government which is stated in the CAR
Notification . . . . Notwithstanding the validity of the judgement of
a foreign court of law, in this regard, the DGCA could well ask the
new owner to obtain an identical judgement from an Indian Court
of Law.'' . . . ''It is well known that courts in India are
overburdened and a matter of this nature could take up to 3 - 4
years to be decided.''
But the consequences of resource difficulty in processing cases, within a
legal system whose Judges are internationally respected, come nowhere near the
kind of evidence of gross breach of international law norms that under current
doctrine is required in order to override the application of the Act of State
principle as a matter of the public policy of the Court of the forum. In the US
Federal cases I respectfully prefer the dissenting judgments, which recognise the
principle of international comity underlying the Act of State doctrine, to the
majority opinions.
In the current state of New Zealand statute law, to allow the present
application would . . . cross the boundary between interpretation and
amendment of legislation by departing substantially from a fundamental feature
of the Civil Aviation Act with important practical repercussions which the Court
is not equipped to evaluate. Any change that could accommodate Air New
Zealand's claim is in my opinion one to be made by Parliament, which would be
unlikely to do so except in conjunction with the other States members of the
International Civil Aviation Organization.
Moreover Air New Zealand's pleaded claim to a mandatory order against
the Director faces very powerful policy arguments against change of the current
law which are fatal to such argument in the present case. For the New Zealand
Court to order the entry of the aircraft on the New Zealand register would give
rise to conflicting registrations in two sovereign states, contrary to the scheme of
the convention that there should be single registration. The result would be
chaotic. Which state's certificate of airworthiness would be carried by the aircraft
in terms of arts 29(b) and 31 of the convention? Which state would provide the
certificate of airworthiness and licences of personnel required by arts 31 and 32?
It is likely that in the future means will be found to enable the Courts of
one state to act in concert with those of another; there is an emerging doctrine of
cooperation among judiciaries in transnational matters. While states are rightly
protective of their own independence and the legitimacy of their government,
which in most cases will enjoy the legitimacy of the democratically expressed
will of its people, there is increasing recognition of the need for states to act in
aid of one another in respect of cross-border transactions . . . .
[W]hatever may occur in the future, as current law and convention stand,
to accept jurisdiction, even for the limited purpose of making an interim
declaration as to the New Zealand situation with a view to assisting the Indian
Courts, would go beyond the authority of the New Zealand Court and trespass
upon the territory both of the New Zealand Executive, which is responsible for
our dealings with other states, and that of the sovereign State of India. The
present case must be determined under the current law, which includes the Act
of State doctrine. Whatever other avenues may exist, no relief is available from
this Court.
For these reasons the application fails and is dismissed. Costs are
reserved.

C. R v. SECRETARY OF STATE FOR TRANSPORT

United Kingdom Queen's Bench Division (Crown Office List)

[1989] 2 All ER 481, [1988] 1 WLR 990

SCHIEMANN J.
Pegasus Holidays (London) Ltd are travel operators. They are in the
business of arranging holidays for people going abroad from this country. They
made arrangements for their clients to travel on chartered Romanian aeroplanes
flown by Romanian pilots. This is only possible under our law if they have a
permit from the Secretary of State for Transport. They have such a permit. It
came to the ears of the Secretary of State, after this permit had been operating for
a while, that five of the Romanian pilots who were flying in this country (in part
under permit and in part under other similar permits) had failed a test which
they had voluntarily undertaken which is conducted by the Civil Aviation
Authority (the CAA) to test the competence of pilots. When the Secretary of State
heard this, he provisionally suspended the permit that he had given, causing of
course a fair amount of chaos to the holiday-makers who were on the point of
leaving to go to their destinations because the plane could not fly, the permit
having been suspended. It is the suspension of that permit which is under attack
in these proceedings for judicial review . . . .
The decision to suspend is under attack on three grounds: the first one is
unfairness; the second is irrationality; and the third is non-compliance with the
Chicago Convention [of] 1944 . . . .
The parts of the convention on which counsel for the applicants relies are
essentially arts 32 and 33. Article 32(a), headed 'Licences of personnel' . . . .
In essence counsel says that it would be contrary to the convention for a
state to impose a system of double checking on the competence of pilots of a
certain nationality as a condition of permitting flights. This he says would be
discrimination contrary to the terms of art 11 of the convention and contrary to
the purposes of the convention [which prohibits discrimination as to nationality]
....
The submission by counsel for the applicants is that by his decision and
subsequent statements the Secretary of State is calling into question and refusing
to recognise the validity of Romanian crew licences and that this can be the only
explanation of the total ban on Romanian pilots which in substance is the result
of the temporary revocation.
In reply to that, on the face of it, forceful submission, counsel for the
Secretary of State makes a number of points, the first one of which was that the
Romanians themselves have not complained. I am not impressed by that because
it is clear from the correspondence that in any event the Romanians are not
happy with it and that they are concerned. Indeed, we have been told that they
are flying over to London to try and sort the matter out on Monday. A more
impressive point is that it is legitimate for the Secretary of State to draw a
provisional inference that all Romanian pilots are not competent because he has
seen that such of them as have taken the test have failed it in one respect or
another. I emphasise that we are dealing here with a provisional inference made
on very limited information for a very short period of time. Counsel says that the
Secretary of State had to act in a hurry. I am not very much impressed by that,
although of course one has considerable sympathy with the Secretary of State. It
would not give him powers which he otherwise did not have, so one has to see
whether or not he has those powers. Is there anything in art 33 which prevents
him from exercising the power of provisional suspension which he has
purported to exercise? It is clear from art 33 in its proviso that in relation to any
particular pilot or any particular certificate or licence, power is foreseen in the
convention for the appropriate authority, which in this case is the Secretary of
State, to see whether a particular requirement, under which certificates or
licences were issued, is up to the appropriate standard. . . .
The real complaint that counsel for the applicants has is that in effect all
Romanian pilots are being blacked in this way. It is a forceful submission, but, in
my judgment, it is wrong and for this reason, that what has been suspended in
the present case is a licence under which any Romanian pilot was entitled to fly.
It was reasonable, in my judgment, to suspend the licence to fly in the case of the
pilots who had failed the test and since the licence that was being suspended
applied to all Romanian pilots, the only way that licence could be dealt with was
by suspending it in its totality. . . .
I remind myself that I am dealing here with a provisional action on behalf
of the Secretary of State and I do not see anything in the convention which
prevents him from taking this provisional action in these particular
circumstances. Whether he is entitled to go further and take a more permanent
form of action it is not for me to say, but I have given some indication, which I
hope will be of help to the parties of my view as to the relevance of the
convention.
For the reasons which I have given, this challenge fails. In consequence I
have not had to consider the arguments on discretion and I say nothing in this
judgment about them.
Application dismissed.

D. HONDURAS AIRCRAFT REGISTRY, Ltd. v. GOVERNMENT OF

HONDURAS

129 F.3d 543 (11th Cir. 1997)

WOOD, Jr., J.
At first glance one may wonder how plaintiffs, a Honduran corporation
and its subsidiary, a Bahamian corporation, can bring a suit against the
defendants Government of Honduras and Director General [of Civil
Aeronautics] Chirinos (collectively, "Honduras") in the Southern District of
Florida. In fact, that is the issue we must decide in this case. Honduras filed a
motion to dismiss, claiming immunity under the Foreign Sovereign Immunities
Act ("FSIA") and on other grounds. The district court denied defendants' motion
to dismiss and ordered the case to proceed. . . . Honduras appeals. . . .
Plaintiff Honduras Aircraft Registry, Ltd., is a Honduran subsidiary
corporation, fifty-one percent of which is owned by Hondurans. Plaintiff
Honduras Aircraft Registry Bureau, Ltd., a Bahamian parent corporation, owns
the remainder. The subsidiary company was incorporated in Honduras in May
1992. Two Miami-based businessmen with airline knowledge, one of whom had
Honduran contacts, established these two closely related corporations to
facilitate negotiating with Honduran officials the contract at issue in this appeal. .
..
The negotiations resulted in a contract . . . [that] provided that the
Government of Honduras would upgrade and modernize the Honduran civil
aeronautics program to comply with international aviation laws, and that the
plaintiff companies would provide goods and services to aid Honduras in
achieving this goal. . . .
Under the Chicago Convention of the International Civil Aviation
Organization (ICAO), to which Honduras and the United States are both
signatories, nations may delegate to private entities the authority to issue
Certificates of Airworthiness on behalf of the authorizing government. Those
private entities . . . known as Designated Airworthiness Representatives ("DAR").
To fulfill the contract at issue here, plaintiff companies recruited DARs in the
United States, Kenya, Switzerland, South Africa and the United Kingdom.
Plaintiffs also provided the equipment and economic assistance to inspect planes
outside Honduras.
In 1994, the leadership of Honduras changed. In August of that year
Honduras, without prior notice to plaintiff companies, abrogated the contract. . . .
The plaintiff companies claim they fully performed under the contract during its
existence, but allege that Honduras breached the contract and was unjustly
enriched because it did not pay plaintiffs for the goods and services that they had
already furnished under the contract. Plaintiffs also allege that [DG] Chirinos
tortiously interfered with plaintiffs' business relationships by advising third
parties that the aircraft already registered by plaintiffs' efforts were not properly
registered and that the contract with plaintiffs was unlawful. The plaintiffs claim
this interference caused the grounding of a minimum of twenty aircraft that they
had previously processed, and they seek damages in excess of one million
dollars. . . .
The FSIA regulates subject matter jurisdiction and provides the only basis
for courts in this country to acquire jurisdiction over a foreign state. It provides
that a foreign state is immune from the jurisdiction of the United States unless an
FSIA statutory exemption is applicable. . . . The only statutory exemption to
foreign sovereign immunity at issue in this case is the commercial activity
exemption at 28 U.S.C. § 1605(a)(2). It provides that:
(a) A foreign state shall not be immune from the jurisdiction of
courts of the United States or of the States in any case-- . . .
(2) in which the action is based upon a commercial activity
carried on in the United. States by the foreign state; or upon
an act performed in the United States in connection with a
commercial activity of the foreign state elsewhere; or upon
an act outside the territory of the United States in connection
with a commercial activity of the foreign state elsewhere and
that act causes a direct effect in the United States;
28 U.S.C. § 1605(a)(2). The statute defines a "commercial activity" as:
Either a regular course of commercial conduct or a particular
commercial transaction or act. The commercial character of an
activity shall be determined by reference to the nature of the course
of conduct or particular transaction or act, rather than by reference
to its purpose.
28 U.S.C. § 1603(d). Honduras claims the commercial exemption does not
apply because plaintiff companies' causes of action are based upon the sovereign
acts, not commercial acts, of Honduras. For sovereign acts the defendants
presumptively enjoy immunity. . . .
The Supreme Court explained the FSIA statutory definition of commercial
activity in [Saudi Arabia v. Nelson, 507 U.S. 349 (1993)] when it noted that a state
engages in commercial activity "where it exercises only those powers that can
also be exercised by private citizens, as distinct from those powers peculiar to
sovereigns. Put differently, a foreign state engages in commercial activity . . .
only where it acts in the manner of a private player within the market." . . . .
Honduras argues that the inspection and registration of aircraft are powers
peculiar to sovereigns, as private persons cannot grant airworthiness certificates
and register aircraft. . . .
Only Honduras could actually admit aircraft to its registry--that is a part
of sovereignty upon which others may not encroach. But this case involves more
than the exercise of that sovereign right. Apparently Honduras did not have the
resources or the technical expertise to conduct its own aircraft inspections or to
set up a registry. Its civil air program needed people with the know-how, ability
and the economic resources to establish a data bank, write regulations, train
government people, and do and provide the other things needed to register,
inspect and certify aircraft. Honduras therefore ventured into the marketplace to
find the expertise and resources needed to accomplish those tasks. All of those
underlying activities were commercial in nature and of the type negotiable
among private parties. After receiving the plaintiff companies' proposal,
Honduras first directed that one of the companies be incorporated in Honduras,
and it then contracted with the plaintiffs for certain goods, services, and other
economic assistance to support its new civil air program. Contracting with the
plaintiff companies was, in context, an easy way for Honduras to not only
upgrade and expand its civil air program even outside Honduras, but also to
derive a profit in the process. By hiring the plaintiffs, Honduras overcame its
own economic and expertise deficiencies. Honduras could have stayed out of the
marketplace by keeping this project all under the sovereignty umbrella. It could
have explored the possibility of hiring plaintiffs and plaintiffs' personnel as
government employees. Instead, however, Honduras exercised its business
judgment and contracted in the marketplace with non-government companies to
do and supply what it needed. Without plaintiff companies' private help
Honduras likely would not have had a new aircraft inspection and certification
service.
The foregoing discussion serves only to clarify and put in context why
and how the parties came to the contract. The FSIA limits what we may consider
in determining whether an activity is commercial in character. Only the "nature"
of the act, not the "purpose" or "motivation" for the act, is determinative. For
example, in ascertaining whether the FSIA commercial exception applies, it is
irrelevant that Honduras may have had a possible profit motive or that
Honduras may have intended only to fulfill its unique sovereign objectives. . . .
Within those limitations, therefore, we must determine whether the FSIA
commercial exception applies. It is undisputed that a foreign sovereignty is
"absolutely immune" from the jurisdiction of foreign courts for its sovereign and
public acts. See Restatement (Third) of the Foreign Relations Law of the United States §
451 (1987). A foreign state loses its immunity if it engages in commercial activity,
however, because then it is exercising the same powers that a private citizen
might exercise. . . . That is, a foreign state is commercially engaged when it acts
like an ordinary private person, not like a sovereign, in the market.
The plaintiff companies state that this is exactly what Honduras did--it
entered the marketplace to shop for goods and services in connection with
setting up the desired new civil aviation program. Honduras disagrees, and
argues that it would be impossible for a private person to contract with another
private person to establish a government aircraft registry. Private entrepreneurs
could not register aircraft under their own "private flag" as Honduras can under
the Honduran flag. It is not disputed that sovereign states have sovereign rights
not only over their physical territory, but also in the airspace above. We agree
that actually registering aircraft under the Honduras flag is an act peculiar to its
sovereignty and cannot fall within the FSIA commercial activity exception.
Plaintiffs, however, are not contending that the contract gave them the right to
register aircraft, and they are not bringing this lawsuit to obtain that right.
Instead, they contracted to provide goods and services to Honduras in
connection with its expanded civil air program by inspecting and certifying
aircraft airworthiness so that Honduras would be able to appropriately register
the aircraft under its flag. They merely seek to enforce that contract.
The complicated part about this particular contract, though, is that it
involves both commercial rights and Honduras' sovereign right to register
aircraft. If possible, we must attempt to determine if these two distinct rights are
separable. Honduras cannot plausibly argue that purchasing such things as office
equipment, manuals, training, personnel, promotional and similar services, and
being supplied even financial help, are exclusively sovereign tasks and that
Honduras may thus escape its contractual duty to pay for them. [The contract
acknowledges it] was for "technical assistance." . . . [T]he agreement does not
give plaintiffs the sovereign right to register aircraft under the Honduran flag. It
provides only that plaintiffs would provide the means and do the technical work
so that Honduras itself could then register the aircraft in accordance with the
contract. Any party, sovereign or not, could contract for those goods and
services. When Honduras commercially entered the market it did so as a private
player to secure certain technical assistance and whatever else it needed to
upgrade and expand its civil air program. Honduras did not enter the technical
assistance market to regulate that market as a sovereign, but to participate in it as
an individual could. The Weltover court in making that distinction contrasted a
government's regulation of the currency market with a government's contract "to
buy army boots or even bullets" for its army which the court labeled commercial
activity. See [Republic of Argentina v. Weltover, 504 U.S.607, 614 (1992)] That same
distinction applies to the present case. . . .
Honduras seeks in the alternative to have the case dismissed under the act
of state doctrine. . . . The act of state doctrine limits, for prudential rather than
jurisdictional reasons, the courts in this country from inquiring into the validity
of a recognized foreign sovereign's public acts committed within its own
territory. . . . [U]nderlying the doctrine are "international comity, respect for the
sovereignty of foreign nations on their own territory, and the avoidance of
embarrassment to the Executive Branch in its conduct of foreign affairs." . . .
Accepting jurisdiction of this issue, our standard of review is different from that
applied under the FSIA in the denial of the motion to dismiss. More is involved
than accepting what the complaint alleges as true. The act of state doctrine does
not limit courts' jurisdiction as the FSIA does, but it is flexibly designed to avoid
judicial action in sensitive areas. . . .
The district court found Honduras' act of state doctrine argument to be
without merit. The court discussed some of the underlying principles of the
doctrine, but its reason for finding the doctrine inapplicable appears to be that
this case involves a perceived commercial exception to the doctrine as under the
FSIA. However, there is no commercial exception to the act of state doctrine as
there is under the FSIA. The factors to be considered . . . may sometimes overlap
with the FSIA commercial exception, but a commercial exception alone is not
enough. The district court may have been correct in holding the doctrine was no
bar to this case, but whatever the result may be it must be reached only after
consideration of the pertinent factors. On this issue, therefore, we must vacate
the result reached and remand to the district court for further consideration
under the controlling factors mentioned above. . . .
The district court's decision as to the application of the FSIA is
AFFIRMED, as to the act of state doctrine it is VACATED and REMANDED for
further consideration, and the appeal as to forum non conveniens is DISMISSED
without prejudice.

E. THE CONVENTION ON INTERNATIONAL CIVIL AVIATION:

ANNEXES RELEVANT TO SAFETY
(Adapted from the summary prepared by the International Civil Aviation
Organization)

1. ANNEX 1: PERSONNEL LICENSING

As long as air travel cannot do without pilots and other air and ground
personnel, their competence, skills and training will remain the essential
guarantee for efficient and safe operations. Adequate personnel training and
licensing also instill confidence between States, leading to international
recognition and acceptance of personnel qualifications and licences and greater
trust in aviation on the part of the traveller.
Standards and Recommended Practices for the licensing of flight crew
members (pilots, flight engineers and flight navigators), air traffic controllers,
aeronautical station operators, maintenance technicians and flight dispatchers ,
are provided by Annex 1 to the Convention on International Civil Aviation.
Related training manuals provide guidance to States for the scope and depth of
training curricula which will ensure that the confidence in safe air navigation, as
intended by the Convention and Annex 1, is maintained. These training manuals
also provide guidance for the training of other aviation personnel such as
aerodrome emergency crews, flight operations officers, radio operators and
individuals involved in other related disciplines.
Today's aircraft operations are so diverse and complex that protection
must be provided against the possibility, however remote, of total system
breakdown due to either human error or failure of a system component. The
human being is the vital link in the chain of aircraft operations but is also by
nature the most flexible and variable. Proper training is necessary so as to
minimize human error and provide able, skilful, proficient and competent
personnel.
Annex 1 and ICAO training manuals describe the skills necessary to build
proficiency at various jobs, thereby contributing to occupational competency.
The medical standards of the Annex, in requiring periodic health examinations,
serve as an early warning for possible incapacitating medical conditions and
contribute to the general health of flight crews and controllers.
The Human Factors programme addresses known human capabilities and
limitations, providing States with basic information on this vital subject as well
as the material necessary to design proper training programmes. ICAO's
objective is to improve safety in aviation by making States more aware of, and
responsive to, the importance of human factors in civil aviation operations.
 Licensing is the act of authorizing defined activities which should
otherwise be prohibited due to the potentially serious results of such activities
being performed improperly. An applicant for a licence must meet certain stated
requirements proportional to the complexities of the task to be performed. The
licensing examination serves as a regular test of physical fitness and performance
ensuring independent control. As such, training and licensing together are
critical for the achievement of overall competency.
One of ICAO's main tasks in the field of personnel licensing is to foster the
resolution of differences in licensing requirements and to ensure that
international licensing standards are kept in line with current practices and
probable future developments. This is ever more crucial as the flight crew will be
exposed to increasing traffic density and airspace congestion, highly complicated
terminal area patterns and more sophisticated equipment. To accomplish this
task, Annex I is regularly amended to reflect the rapidly changing environment.

2. ANNEX 7: AIRCRAFT NATIONALITY AND REGISTRATION MARKS

How are aircraft classified and identified, and how can you tell aircraft
nationality?
These are but two of the questions answered in the briefest ICAO Annex,
which deals with aircraft nationality and registration marks, and, in a separate
table, classifies aircraft by how they maintain sustained flight in the air.
The Annex is based on Articles 17 to 20 of the Chicago Convention. The
ICAO Council adopted the first Standards concerning this issue in February
1949, based on recommendations from the first and second sessions of the
Airworthiness Division, held in 1946 and 1947 respectively. Since then only four
amendments have been made to the Annex. The latest edition is the fifth one,
issued in 2003.
The first amendment introduced the definition of a "rotorcraft", and
modified requirements related to the location of nationality and registration
marks on wings. The second amendment redefined the word "aircraft", the use of
which became effective in 1968; it also implemented a decision that all air-
cushion-type vehicles, such as hovercraft and other ground-effect machines,
should not be classified as aircraft.
Since Article 77 of the Convention permits joint operating organizations,
Amendment 3 was introduced to define "Common Mark", "Common Mark
Registering Authority" and "International Operating Agency", to enable aircraft
of international operating agencies to be registered on other than a national basis.
The determining principle of the related provisions is that each international
operating agency must be assigned a distinctive common mark by ICAO, this
being selected from a series of symbols included in the radio call signs allocated
by the International Telecommunication Union (ITU).
The fourth amendment, adopted in 1981, introduces provisions related to
registration and nationality marks for unmanned free balloons.
The fifth amendment, adopted in 2003, introduces a new requirement for
the Certificate of Registration to carry an English translation if issued in a
language other than English.
The Annex sets out procedures for selection by ICAO Contracting States
of nationality marks from the nationality symbols included in the radio call signs
allocated to the States of Registry by the ITU.
It sets standards for the use of letters, numbers and other graphic symbols
to be used in the nationality and registration marks, and spells out where these
characters will be located on different types of airborne vehicles, such as lighter-
than-air aircraft and heavier-than-air aircraft.
This Annex also calls for the registration of the aircraft, and provides a
sample of this certificate for use by ICAO Contracting States. This certificate
must be carried in the aircraft at all times, and an identification plate, bearing at
least the aircraft's nationality, or common mark and registration mark, must be
affixed in a prominent position to the main entrance.
Years of considerable effort permit the classification of aircraft to be as
simple as possible, and yet encompass as many types of flying machines as the
human mind can devise.

3. ANNEX 8: AIRWORTHINESS OF AIRCRAFT

In the interest of safety, an aircraft must be designed, constructed and

operated in compliance with the appropriate airworthiness requirements of the
State of Registry of the aircraft. Consequently, the aircraft is issued with a
Certificate of Airworthiness declaring that the aircraft is fit to fly.
To facilitate the import and export of aircraft, as well as the exchange of
aircraft for lease, charter or interchange, and to facilitate operations of aircraft in
international air navigation, Article 33 of the Convention on International Civil
Aviation places the burden on the State of Registry to recognize and render valid
an airworthiness certificate issued by another Contracting State, subject to the
condition that the airworthiness requirements under which such a certificate is
issued or rendered valid are equal to or above the minimum standards which
may be established by ICAO from time to time pursuant to the Convention.
These minimum standards are contained in Annex 8, the first edition of which
was adopted by the Council on 1 March 1949.
Annex 8 includes broad standards which define, for application by the
national airworthiness authorities, the minimum basis for the recognition by
States of Certificates of Airworthiness for the purpose of flight of aircraft of other
States into and over their territories, thereby achieving, among other things,
protection of other aircraft, third parties and property. It is recognized that ICAO
Standards would not replace national regulations and that national codes of
airworthiness containing the full scope and extent of detail considered necessary
by individual States would be required as the basis for the certification of
individual aircraft. Each State is free to develop its own comprehensive and
detailed code of airworthiness or to select, adopt or accept a comprehensive and
detailed code established by another Contracting State. The level of
airworthiness required to be maintained by a national code is indicated by the
broad standards of Annex 8 supplemented, where necessary, by guidance
material provided in ICAO's Airworthiness Technical Manual (Doc 9760).
Annex 8 is divided into four parts. Part I includes definitions; Part II deals
with procedures for certification and continuing airworthiness of aircraft; Part III
includes technical requirements for the certification of new large aeroplane
designs; Part IV deals with helicopters.
One of the supporting clauses in the definitions used in the Annex defines
the environment in which an aircraft is expected to perform as "anticipated
operating conditions". These are conditions which are known from experience or
which can be reasonably envisaged to occur during the operational life of the
aircraft, taking into account the operations for which the aircraft is made eligible.
They also include conditions relative to the weather, terrain surrounding the
aerodromes from which the aircraft is expected to operate, functioning of the
aircraft, efficiency of personnel and other factors affecting safety in flight.
Anticipated operating conditions do not include those extremes which can be
effectively avoided by operating procedures and those extremes which occur so
infrequently that higher levels of airworthiness to meet them would render
aircraft operations impracticable.
Under the provisions related to continuing airworthiness of aircraft, the
State of Registry must inform the State of Design when it first enters in its
register an aircraft of the type certified by the latter. This is to enable the State of
Design to transmit to the State of Registry any generally applicable information it
has found necessary for the continuing airworthiness and for the safe operation
of the aircraft. The State of Registry must also transmit to the State of Design all
continuing airworthiness information originated by it for transmission, as
necessary, to other Contracting States known to have on their registers the same
type of aircraft.
To assist States in establishing contact with appropriate national
airworthiness authorities, necessary information has been provided in an ICAO
circular (Circ 95) which is available on the ICAO-Net.
The technical standards dealing with certification of aeroplanes are
limited at present to multi-engined aeroplanes of over 5700 kg maximum
certificated takeoff mass. These standards include requirements related to
performance, flying qualities, structural design and construction, engine and
propeller design and installation, systems and equipment design and
installation, and operating limitations including procedures and general
information to be provided in the aeroplane flight manual, crash worthiness of
aircraft and cabin safety, operating environment and human factors and security
in aircraft design.
The performance standards require that the aeroplane shall be capable of
accomplishing the minimum performance specified in the Annex at all phases of
flight, in the event that the critical power-unit has failed and the remaining
power-units are operated within their take-off power limitations, be capable of
safely continuing or abandoning its take-off. After the initial take-off phase, the
aeroplane must be capable of continuing climb up to a height at which the
aeroplane can continue safe flight and landing, while the remaining power-units
are operating within their continuous power limitations.
The aeroplane must be controllable and stable under all anticipated
operating conditions without exceptional skill, alertness or Strength on the part
of the pilot, even in the event of failure of any power-unit. Furthermore, the stall
characteristics of the aeroplane must be such as to give the pilot clear warning,
and it should be possible for the pilot to maintain full control of the aeroplane
without altering engine power.
 Requirements for detailed design and construction provide for a
reasonable assurance that all aeroplane parts will function reliably and
effectively. Functioning of all moving parts essential to safe operation must be
demonstrated by suitable tests, and all materials used must conform to approved
specifications. Methods of fabrication and assembly must produce a consistently
sound structure which must be protected against deterioration or loss of strength
due to weathering, corrosion, abrasion or other causes, which could pass
unnoticed. Means must be provided which will automatically prevent
emergencies or enable the crew to deal with them effectively, and design should
minimize the possibility of in-flight fires, cabin depressurization and toxic gases
in the aeroplane and the aircraft against lightning and static electricity.
Special consideration is given to requirements dealing with design
features which affect the ability of the flight crew to maintain controlled flight.
The layout of the flight crew compartment must be such as to minimize the
possibility of incorrect operation of controls due to confusion, fatigue or
interference. It should allow a sufficiently clear, extensive and undistorted field
of vision for the safe operation of the aeroplane.
Aeroplane design features also provide for the safety, health and well
being of occupants by providing an adequate cabin environment during the
anticipated flight and ground and water operating conditions, the means for
rapid and safe evacuation in emergency landings and the equipment necessary
for the survival of the occupants following an emergency landing in the expected
external environment for a reasonable time-span.
Requirements for the certification of engines and accessories are designed
to ensure that they function reliably under the anticipated Operating conditions.
An engine of the type must be tested to establish its power or thrust from
characteristics, to ensure that operating parameters are satisfactory and to
demonstrate adequate margins of freedom from detonation, surge or other
detrimental conditions.
Tests must be of sufficient duration and must be conducted at such power and
other operating conditions as are necessary to demonstrate the reliability and
durability of the engine.
Following the recent events of hi-jacking and terrorist acts on board
aircraft, special security features have been included in aircraft design to
improve the protection of the aircraft. These include special features in aircraft
systems, identification of a least-risk bomb location, and strengthening of the
cockpit door, ceilings and floors of the cabin crew compartment.

4. ANNEX 12: SEARCH AND RESCUE

Search and rescue services are organized to respond to persons apparently

in distress and in need of help. Prompted by the need to rapidly locate and
rescue survivors of aircraft accidents, a set of internationally agreed Standards
and Recommended Practices has been incorporated in ICAO's Annex 12 - Search
and Rescue (SAR).
The Annex, which is complemented by a three-part Search and Rescue
Manual dealing with SAR organization, management and procedures, sets forth
the provisions for the establishment, maintenance and operation of search and
rescue services by ICAO Contracting States in their territories and over the high
seas. Proposals for Annex 12 were originally made in 1946. By 1951, the
proposals had been reviewed and revised to meet international civil aviation
requirements, and were embodied as Standards and Recommended Practices in
the first edition of Annex 12.
Containing five chapters, the Annex details the organization and
cooperative principles appropriate to effective SAR operations, outlines required
necessary preparatory measures and sets forth proper operating procedures for
SAR services in actual emergencies. One of the first aspects addressed in the
organizational chapter is the requirement for States to provide SAR services
within their territories and over those portions of the high seas or areas of
undetermined sovereignty as determined in Regional air navigation agreements
and approved by the Council of ICAO. This chapter also deals with the
establishment of mobile SAR units, the means of communication for these units
and the designation of other elements of public or private services suitable for
search and rescue activity.
Provisions concerning equipment requirements of rescue units reflect the
need to give adequate assistance at the scene of accidents, due regard being
given to the number of passengers involved. Cooperation between the SAR
services of neighbouring States is essential to the efficient conduct of SAR
operations.
This important aspect is covered in depth in Chapter 3, which requires
ICAO Contracting States to publish and disseminate all information needed for
the expeditious entry into their territories of rescue units of other States. It is also
recommended that persons qualified in the conduct of aircraft accident
investigation accompany rescue units in order to facilitate accident investigation.
Chapter 4, which deals with preparatory measures, sets forth the
requirements for collation and publication of information needed by SAR
services. It specifies that detailed plans of operation must be prepared for the
conduct of SAR operations and indicates the necessary information for inclusion
in the plans.
Preparatory measures required to be undertaken by rescue units, training
requirements and removal of aircraft wreckage are also covered. A search and
rescue operation is a dynamic activity requiring uniformly comprehensive
operating procedures that are sufficiently flexible to meet extraordinary needs.
Beginning with the requirement to identify and categorize the emergency
situation, Chapter 5 details action to be taken for each category of event.
Three distinct phases categorize emergency situations. The first is the
"Uncertainty Phase" which is commonly declared when radio contact has been
lost with an aircraft and cannot be re-established or when an aircraft fails to
arrive at its destination. During this phase the Rescue Coordination Centre (RCC)
concerned may be activated. The RCC collects and evaluates reports and data
pertaining to the subject aircraft. Depending on the situation, the uncertainty
phase may develop into an "Alert Phase", at which time the RCC alerts
appropriate SAR units and initiates further action.
The "Distress Phase" is declared when there is reasonable certainty that an
aircraft is in distress. In this phase, the RCC is responsible for taking action to
assist the aircraft and to determine its location as rapidly as possible. In
compliance with a predetermined set of procedures, the aircraft operator, State of
Registry, air traffic services units concerned, adjacent RCCs and appropriate
accident investigation authorities are informed; a plan for the conduct of the
search and rescue operation is drawn up and its execution is coordinated.
Procedures are detailed in Chapter 5 for SAR operations involving two or
more RCCs, for authorities in the field and for terminating or suspending SAR
operations. Other procedures deal with actions to be taken at the scene of an
accident and by a pilot-in-command intercepting a distress transmission.
An Appendix to the Annex provides three sets of signals, the first of
which are signals for use by aircraft and surface craft during the conduct of a
SAR operation. The second and third sets consist of ground-to-air visual signals
for use by survivor and ground rescue units.

5. ANNEX 13: AIRCRAFT ACCIDENT AND INCIDENT INVESTIGATION

The causes of an aircraft accident or serious incident must be identified in

order to prevent repeated occurrences. The identification of causal factors is best
accomplished through a properly conducted investigation. To emphasize this
point, Annex 13 states that the objective of the investigation of an accident or
incident is prevention.
Annex 13 provides the international requirements for the investigation of
aircraft accidents and incidents. It has been written in a way that can be
understood by all participants in an investigation. As such, it serves as a
reference document for people around the world who may be called on, often
without any lead time, to deal with the many aspects involved in the
investigation of an aircraft accident or serious incident. As an example, the
Annex spells out which States may participate in an investigation, such as the
States of Occurrence, Registry, Operator, Design and Manufacture. It also defines
the rights and responsibilities of such States.
The ninth edition of Annex 13 consists of eight chapters, an appendix and
four attachments. The first three chapters cover definitions, applicability and
general information. Chapter 3 includes the protection of evidence and the
responsibility of the State of Occurrence for the custody and removal of the
aircraft. It also defines how that State must handle requests for participation in
the investigation from other States.
All States that may be involved in an investigation must be promptly
notified of the occurrence. Procedures for this notification process are contained
in Chapter 4. The same chapter outlines the responsibilities for conducting an
investigation depending on the location of the occurrence, e.g. in the territory of
an ICAO Contracting State, in the territory of a non-contracting State, or outside
the territory of any ICAO State. Following the formal notification of the
investigation to the appropriate authorities, Chapter 5 addresses the
investigation process.
Responsibility for an investigation belongs to the State in which the
accident or incident occurred. That State usually conducts the investigation, but
it may delegate all or part of the investigation to another State. If the occurrence
takes place outside the territory of any State, the State of Registry has the
responsibility to conduct the investigation.
 States of Registry, Operator, Design and Manufacture who participate in
an investigation are entitled to appoint an accredited representative to take part
in the investigation. Advisers may also be appointed to assist accredited
representatives. The State conducting the investigation may call on the best
technical expertise available from any source to assist with the investigation.
The investigation process includes the gathering, recording and analysis
of all relevant information; the determination of the causes; formulating
appropriate safety recommendations and the completion of the final report.
Chapter 5 also includes provisions regarding: the investigator-in-charge,
flight recorders, autopsy examinations, coordination with judicial authorities,
informing aviation security authorities, disclosure of records, and re-opening of
an investigation. States whose citizens have suffered fatalities in an accident are
also entitled to appoint an expert to participate in the investigation.
Chapter 6 contains the Standards and recommended practices dealing
with the development and publication of the final report of an investigation. The
recommended format for the final report is contained in an Appendix to the
Annex.
Computerized databases greatly facilitate the storing and analysing of
information on accidents and incidents. The sharing of such safety information is
regarded as vital to accident prevention. ICAO operates a computerized database
known as the Accident/Incident Data Reporting (ADREP) system, which
facilitates the exchange of safety information among Contracting States. Chapter
7 of Annex 13 addresses the reporting requirements of the ADREP system which
is by means of Preliminary and Accident/Incident Data Reports.
Chapter 8 of Annex 13 deals with accident prevention measures. The
provisions in this chapter cover incident reporting systems, both mandatory and
voluntary, and the necessity for a non-punitive environment for the voluntary
reporting of safety hazards. This chapter then addresses database systems and a
means to analyse the safety data contained in such databases in order to
determine any preventive actions required. Finally, it recommends that States
promote the establishment of safety information sharing networks to facilitate
the free exchange of information on actual and potential safety deficiencies. The
processes outlined in this chapter form part of a safety management system
aimed at reducing the number of accidents and serious incidents worldwide.

6. ANNEX 18: THE SAFE TRANSPORT OF DANGEROUS GOODS BY AIR

More than half of the cargo carried by all modes of transport in the world
is dangerous cargo – explosive, corrosive, flammable, toxic and even radioactive.
These dangerous goods are essential for a wide variety of global industrial,
commercial, medical and research requirements and processes. Because of the
advantages of air transport, a great deal of this dangerous cargo is carried by
aircraft.
ICAO recognizes the importance of this type of cargo and has taken steps
to ensure that such cargo can be carried safely. This has been done by adopting
Annex 18, together with the associated document Technical Instructions for the
Safe Transport of Dangerous Goods by Air. Other codes have existed for regulating
the carriage of dangerous goods by air, but these did not apply internationally or were
difficult to enforce internationally and, moreover, were not compatible with the
corresponding rules of other transport modes.
Annex 18 specifies the broad Standards and Recommended Practices to be
followed to enable dangerous goods to be carried safely.
The Annex contains fairly stable material requiring only infrequent amendment
using the normal Annex amendment process. The Annex also makes binding
upon Contracting States the provisions of the Technical Instructions, which
contain the very detailed and numerous instructions necessary for the correct
handling of dangerous cargo. These require frequent updating as developments
occur in the chemical, manufacturing and packaging industries, and a special
procedure has been established by the Council to allow the Technical
Instructions to be revised and reissued regularly to keep up with new products
and advances in technology.
The ICAO requirements for dangerous goods have been largely
developed by a panel of experts which was established in 1976. This panel
continues to meet and recommends the necessary revisions to the Technical
Instructions. As far as possible the Technical Instructions are kept aligned with
the recommendations of the United Nations Committee of Experts on the
Transport of Dangerous Goods and with the regulations of the International
Atomic Energy Agency. The use of these common bases by all forms of transport
allows cargo to be transferred safely and smoothly between air, sea, rail and road
modes.
The ICAO requirements for the safe handling of dangerous goods firstly
identify a limited list of those substances which are unsafe to carry in any
circumstances and then show how other potentially dangerous articles or
substances can be transported safely.
The nine hazard classes are those determined by the United Nations
Committee of Experts and are used for all modes of transport.
Class 1 includes explosives of all kinds, such as sporting ammunition,
fireworks and signal flares. Class 2 comprises compressed or liquefied gases
which may also be toxic or flammable; examples are cylinders of oxygen and
refrigerated liquid nitrogen. Class 3 substances are flammable liquids including
gasoline, lacquers, paint thinners, etc. Class 4 covers flammable solids,
spontaneously combustible materials and materials which, when in contact with
water, exit flammable gases (examples are some powdered metals, cellulose type
film and charcoal). Class 5 covers oxidizing material, including bromates,
chlorates or nitrates; this class also covers organic peroxides which are both
oxygen carriers and very combustible. Poisonous or toxic substances, such as
pesticides, mercury compounds, etc., comprise Class 6, together with infectious
substances which must sometimes be shipped for diagnostic or preventative
purposes. Radioactive materials are in Class 7; these are mainly radioactive
isotopes needed for medical or research purposes but are sometimes contained in
manufactured articles such as heart pacemakers or smoke detectors. Corrosive
substances which may be dangerous to human tissue or which pose a hazard to
the structure of an aircraft are dealt with in Class 8 (for example, caustic soda,
battery fluid, paint remover). Finally, Class 9 is a miscellaneous category for
other materials which are potentially hazardous in air transport, such as
magnetized materials which could affect the aircraft's navigational systems.
 Annex 18 and the Technical Instructions became effective on 1 January
1983 and applicable on 1 January 1984 when all of the Contracting States of ICAO
were expected to conform to the ICAO requirements and to give them legislative
recognition.