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MODULE 3

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 MODULE – III

CHICAGO CONFERENCE,
ANNEXES &AVIATION
DISPUTE SETTLEMENT

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 MODULE III: CHICAGO CONFERENCE, ANNEXES & AVIATION DISPUTE
SETTLEMENT

Events Leading to the Chicago Conference

Background: The idea of freedom to fly over the other countries is based on the principle
which was published by Hugo Grotius, defending the rights of the Dutch Indian Company to
trade with the Far East which is also called as freedom of seas which stated that any countries
can sail on the seas without the restrictions by the other nations. The question of the national
air space arose when the balloons were used during the France-Persia war in 1870-71. After
the end of the war there was a question as to whether the air should be treated like the high
seas, or should be free for the use for all. Or weather a nation should have control to use it.
The issue became more relevant after the powered flight in 1909, when the French Pilot
Louis Bleriot crossed the English Channel to England.99 The Paris AirNavigation Conference
of 1910, diplomats failed to reach an agreement on thequestion.

In 1911, the British Parliament passed the Aerial Navigation act, which gave Britain the
power to close the British airspace, including the parts of the English Channel, for all the
foreign aircrafts100. At that point of time, Europe was going in the preparation mode for the
WWI and many European countries followed the same suit in order to protect themselves
from their enemy. After the end of the WWI, 26 countries met in Paris in 1919 and drew the
convention in relation to the regulation of Air Navigation and a number of basic principles
were laid down. Majority of the nations voted for the complete and exclusive sovereignty
over the airspace above its territory. Neither the United States nor Russia signed the
agreement.101 The delegates also established the International commission of Air Navigation
as a platform to discuss the rules for allowing foreign aircraft to use its sovereignairspace.

Then, Even the Havana convention on Civil Aviation was drafted in 1928 and was ratified by
21 Western Hemisphere countries, the convention gave the right of innocent passage of
aircraft by 21 Western Hemisphere countries, the convention formulated the rules of
international air navigation between the contracting states in relation to the aircraft
identification, landing facilities and with regard to the standards for the pilots. It also stated
the right of each country to set the route to be flown over itsterritory.

In 1910, a conference on international air law code, attended by representatives of 18

European nations, was convened in Paris, France. In 1919, following World War I, the Paris
Peace Conference created the International Air Convention to govern aspects of civil
aviation. The Convention, ratified by 38 nations, began the process of creating an
International Commission for Air Navigation (ICAN); ICAN established headquarters in
Paris in December 1922, with Albert Roper as general secretary. The commission was to
meet at least once a year and concern itself with technical matters. An international
committee of jurists was also established, to concern itself with the intricate legal questions
created by cross-border aviation. In 1928, a Pan-American convention on commercial
aviation was adopted at a conference held in Havana to deal with problems then emerging as
international flights became more frequent in the Western Hemisphere. Although some
progress in obtaining agreement on international flight regulations had been made bythe end
99
Anthony Sampson, Empires of the Sky: The Politics, Contests and Cartels of World Airlines , 1984,65.
100
Ibid.
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101
www.icao.int

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of the 1930s, most nations still granted very few concessions to each other's airlines, and no
agreement existed permitting foreign planes to fly nonstop over the territory of one country
en route to anothercountry.

The tremendous development of aviation during World War II demonstrated the need for an
international organization to assist and regulate international flight for peaceful purposes,
covering all aspects of flying, including technical, economic, and legal problems. For these
reasons, in early 1944, the United States conducted exploratory discussions with its World
War II allies, on the basis of which invitations were sent to 55 allied and neutral states to
meet in Chicago in November 1944.The Convention on International Civil Aviation, drafted
in 1944 by 54 nations, was established to promote cooperation and “create and preserve
friendship and understanding among the nations and peoples of the world.” Known more
commonly today as the ‘Chicago Convention’, this landmark agreement established the core
principles permitting international transport by air, and led to the creation of the specialized
agency which has helped States to cooperate together under it ever since – the International
Civil Aviation Organization(ICAO).

The Second World War was a powerful catalyst for the technical development of the
aeroplane. A vast network of passenger and freight carriage was set up during this period, but
there were many obstacles, both political and technical, to evolving these facilities and routes
to their new civilian purposes. Subsequent to several studies initiated by the United States, as
well as various consultations it undertook with its Major Allies, the U.S. government
extended an invitation to 55 States to attend an International Civil Aviation Conference in
Chicago in 1944. These delegates met during a still-violent period of WWII and travelled to
Chicago at great personal risk. Many of the countries they represented were still occupied. In
the end, 54 of the 55 States invited attended the Chicago Conference, and by its conclusion,
on 7 December 1944, 52 nations had signed the new Convention on International Civil
Aviation which had beenrealized.

The Chicago conference ran from November 1 to December 7, 1944 and was attended by 700
delegates from 52 States. Known then and today more commonly as the ‘Chicago
Convention’, this landmark agreement laid the foundation for the standards and procedures
for peaceful global air navigation. It set out as its prime objective the development of
international civil aviation “…in a safe and orderly manner”, and such that air transport
services would be established globally “on the basis of equality of opportunity.” The Chicago
Convention also formalized the expectation that a specialized International Civil Aviation
Organization (ICAO) should be established to organize and support the intensive
international cooperation which the fledgling global air transport network would require. It
was this conference that framed the constitution of the International Civil Aviation
Organization—the Convention on International Civil Aviation, also called the Chicago
Convention. This convention stipulated that ICAO would come into being after the
convention was ratified by 26 nations. To respond to the immediate needs of civil aviation, a
provisional organization was created and functioned for 20 months until, on 4 April 1947,
ICAO officially came intoexistence.

In essence, the conference was faced with two questions: (1) whether universally recognized
navigational signals and other navigational and technical standards could be agreed upon, and
(2) whether international rules concerning the economics of air transport could be
established. One group of countries, led by the United States, wanted an international
organization empowered only to make recommendations regarding standard technical
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procedures and equipment. In its economic aspects, these countries believed, air
transportation should be freely competitive. This policy would also best serve the interests of
the "consumer nations" that had no international airlines of their own. Another group of
countries, led by the United Kingdom, favored a stronger organization, which would have a
great deal to say about the economics of civil aviation. It would be empowered to allocate the
international routes that the airlines of different countries would be allowed to fly, regulate
the frequency of flights, and fix rates. A radical proposal, advanced by New Zealand and
supported by Australia, called for international ownership and operation of international air
transport.

ICAO’s core mandate, then as today, was to help States work together to achieve the highest
possible degree of uniformity in civil aviation regulations, standards, procedures, and
organization. Because of the usual delays expected in ratifying the Convention, the Chicago
Conference presciently signed an Interim Agreement which foresaw the creation of a
Provisional ICAO (PICAO) to serve as a temporary advisory and coordinating body while
ratifications proceeded. The PICAO consisted of an Interim Council and an Interim
Assembly, and from June 1945 the Interim Council met continuously in Montreal, Canada,
and consisted of representatives from 21 Member States. The first Interim Assembly of the
PICAO, the precursor to ICAO’s triennial Assemblies in the modern era, was also held in
Montreal in June of 1946. On 4 April 1947, when sufficient ratifications to the Chicago
Convention had been submitted, PICAO became ICAO and the international civil aviation
era was officiallyinaugurated.

During this march to the modern air transport era, the Convention’s Annexes have increased
in number and evolved to include more than 12,000 international standards and
recommended practices (SARPs). Each and every one of these have been agreed on a
consensus-basis by ICAO’s Member States, which at the present time total 193 countries in
every corner of the world. These SARPs, alongside the tremendous technological and other
progress achieved in the intervening decades on behalf of air transport operators and
manufacturers, helped humanity to realize what is now well-recognized as a critical driver of
socio-economic development and one of our greatest collective and cooperativeachievements
– the modern and truly global air transportnetwork.

In 1929, the Delegates of the Warsaw Convention, which included the United States, agreed
upon to limit the passenger compensation for the loss of property or harm to a passenger by
an airline to $8,300.102This amount was measured gold based on the value of the French
Franc. However Aviation during the WWII resulted in a lot of tragic loss of the human
resource but the silver lining in the dark cloud was that it made the technical as well as
operational possibilities at an advanced stage in terms of air transport which finally found the
peace again. On the contrary, for the first time large number of people and goods were
transported for long distances and ground facilities were developed to permit this in an
orderly and expeditious manner. In 1943 US initiated the studies for the development of
aviation post war however there were problems which were to be tackled on an international
scale otherwise it would not have been possible to use it as one of the main principle
elements for the economic development of the world and the first available means to start
healing the wound of the war as President Roosevelt had put in.103As a part of the efforts,
thethenUSpresidentRooseveltinvitedtherepresentativeforaconferenceonthe
102
Tory A. Weigand, Accident, Exclusivity, and Passenger Disturbances Under the Warsaw Convention, 16 Am. U. Int'l L.
Rev,2001, 891
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103
History of Civil Aviation, Encarta Encyclopedia, www.enacarta.com

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international civil aviation in Chicago. In response to the invitation of the U.S government, in
total representatives from 54 nations met at Chicago from 1 st November to 7th December,
1944.104

In November 1944, in response to the British initiative, the US president invited the allied
powers and a few of the neutral governments for a conference at Chicago in regard to the
regulation of the civil aviation. The background work was done by the Paris Peace
conference and the other regional conferences during the previous 2 decades, the countries
have very high expectations from this conference. During the conference there were 4 crucial
theories on rather than that school of thought prevailing on the regulation of civilaviation.

1. American School of Thought which was for the motion of complete freedom of the
competition in airtransport
2. The British School of thought suggested the creation of an international organization in
regard with the coordination of air transport and assume the duties of apportioning the
world’s air routes and making on frequencies as well astariffs.
3. The Canadian Trend which supported the proposal which was put forth by the British
but also suggested a more elaborate version with regard to thesame.
4. The Australia and New Zealand which proposed internalization of major airlines under
the direction of a single authority in which all the states wouldparticipate.

However, none of the proposals could work which resulted ultimately in the Chicago
conference which was adopted by the principle of complete as well as exclusive sovereignty
over the air space above its territory which was articulated in the Paris Peace conference.

Significance of Chicago Conference: The International Civil Aviation conference turned out
to be one of the most successful, productive as well as influential conference ever held, at the
Stevens Hotel in Chicago which had been the host. As a result, ICAO became the main
universal institution of the international public aviation rights, which were superseding the
Paris convention on 1919 as well as the Havana convention of 1928. As a result, ICAO
became the sole universal institute of the international public aviation rights, superseding the
Paris Convention of 1919 and the Havana Convention of 1928. For the first time in the
history of the international aviation, an authority would facilitate the order in the air,
introduce the maximum standardization in the technical matters to unify the methods of the
exploitation and settle any differences that may occur. The convention of International Civil
aviation was established to promote the cooperation and create and preserve friendship and
understand among the nations and peoples of the world known more commonly as the
Chicago Convention. This Landmark agreement established the core principles which
permitted international transport by air, and led to the creation of the specialized agency
which has been overseen since then- The International Civil AviationOrganization.

Outcomes of Chicago Conference: Among the major achievements of the Conference were
the drafting, adoption and opening for signature of one major convention, three Agreements,
a standard form of bilateral for provisional air routes and the text of 12 technical Annexes.
The Convention was intended to formulate certain agreed principles and agreements to ensure
safe and orderly development of the international civil aviation on the basis of equality of the
opportunity and to ensure that air transport operates Sound, safe as well as economically. The
Chicago constitution became a viable constitution for the post war global air world. TheFinal

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104
Ibid.

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act of the Chicago conference was adopted as well as signed by the 52 states. The Final Act
contained 12 Resolutions and the following six appendices.

The interim agreement on the internationalCivilAviation

The convention on the international CivilAviation
The international air service transit agreement (TwoFreedomsAgreement)
The international air transport agreement (Five FreedomsAgreement)
Drafts of TechnicalAnnexes
A standard form of BilateralAgreement

The Interim Agreement on the International Civil Aviation: The interim agreement on the
international civil aviation was for the setting up of for the provisions of the international
civil aviation organization and it also established rules for international aviation in the period
before the commencement of ICAO it became effective in 6thJune 1945 and expired on
4thApril 1947. PICAO had the organs similar to those of the ICAO such as the Interim
Assembly, the Interim Council, the Secretary General as well as the CanadianHeadquarters.

The Convention on International Civil Aviation: The convention on International Civil

Aviation is the result of the conference and is generally referred to as the Chicago
Convention 1944. The most significant result of the conference was with the drafting and
adoption of the convention, which was signed by 35 states participating in the conference on
7th December, 1944. The Convention came into picture on 4 th April 1947, after ratification of
the 26 States. At present there are 185 parties to the Chicago Convention and these states also
form the membership of the ICAO aswell.

The Convention has been one of the most widely ratified international multilateral
instruments. The Chicago Convention, 1944 has been divided into four parts through 22
chapters and 96 articles. Part I on air navigation, Part II, is devoted to the International Civil
Aviation Organization, Part III on International Air Transport and Part IV devoted to the
FinalProvisions.

Part I on Air Navigation has sub divided into 6 chapters from article 1-42: Chapter I
General principles and application of the convention discussed above the state sovereignty,
territory, civil and state aircraft as well as the use of civil aviation. Whole air law is
developed on the concept of the state sovereignty in civil aviation. According to Article I the
contracting states recognizes that every stats has complete as well as exclusive sovereignty
over airspace above itsterritory.

Chapter II Flight over territory of contracting states Article (5-16) with the issues relating to
the scheduled and non-scheduled air services, Cabot age , pilotless aircrafts, prohibited areas
landing at custom airports, air rules and regulations, airport charges and so on. According to
article 6 it does not permit scheduled international air services which may be operated over or
into the territory of a the contracting state, except with regard to the special permission or
authorization of the state, and in accordance with the terms of permission as well as
authorization, The Nationality of the aircraft is an important issue in the international civil
aviation, which is dealt in chapter III from article 17 to 21 of the Chicago Convention. The
Article 17 says that aircraft have the nationality of the state in which they are registered
however other important provisions with regard to the nationality of the aircrafts includes the
dual registration, national laws which govern registration , display or marks as well as reports
of registration.
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Chapter IV from articles 22-26 of the Chicago Convention deals with the measures to
facilitate air navigation. There were provisions made for the facilitation of the flight of the
aircrafts, giving assistance to the aircraft in the time of distress , aiding in investigations of
accidents, exempt aircraft from seizure by reason of patent claims or with regard to
infringements , and by the adoption of the standards as well as the recommended practices in
respect to the airports, radio services , meteorological services as well as other air navigation
services facilities, standard communication procedures , codes, markings, signals, lighting as
well as publication of charts as well as maps.

Conditions to be fulfilled with respect to aircraft including documents carried in aircraft,

aircraft radio equipment, certificate of airworthiness, licenses of personnel, recognition of
certificates and licenses, journey log books, cargo restriction and photographic apparatus are
covered in Chapter V from articles 29-36 of the convention. Adoption and implementation of
International Standards and Recommended Practices (SARPs) in international civil aviation
is very essential because of technical nature of civil aviation. These international Standards
and recommended practices are covered in Chapter VI from articles 37 to 42 covered the
adoption and departures of international standards, procedures, endorsement of certificates
and licenses and their validity, recognition of airworthiness and so on are covered in this
Chapter.

The Chicago Convention has also established principles, structures and procedures for the
International Civil Aviation Organization (ICAO) have been covered in Part II from Articles
43 to 66 of the Convention: The ICAO has been the one for establishing the guidelines for
the navigational aids, technical rules foe landing areas, aircraft certification, licensing for
pilots and the other specialized areas in terms of flight operation. The Chicago convention
was the one which was the main base for the development of the International civil aviation
and its established principles, its structures as well as procedures for the working of the
ICAO. Under article 44 of the convention, the ICAO aims to develop the main principles as
well as techniques for the international air navigation as well as airtransport.

Various Provisions relating to International air transport are covered in part III from
articles 67 to 79 of the Chicago Convention: Under chapter 14, the states have to file their
reports with the council, Chapter 15 covers the various airports as well as air navigation
facilities which includes the designation of routes and airports, pumping of money in air
navigation facilities , improvement of air navigation facilities, acquire of land as well as its
use, expenditure and the assessment of revenue and so on. Joint operating organizations
have pooled services which are covered chapter 16 of the convention as well.

Part IV the Financial Provisions of the convention from articles 80-96 are covered other
aeronautical agreements as well as arrangements including the Paris as well as Havana
convention , registration of existing agreements , abolition of inconsistent arrangements and
registration of new arrangements. Settlements of disputes through arbitration and so on are
covered in chapter 17 of the convention. Other provisions in relation with the settlement of
the disputes include appeals, penalty for non-conformity of airlines as well as non-conformity
of states and soon.

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With the adoption as well as amendment of annexes are covered under chapter 20. The ICAO
aim is to maintain and improve safety, security and so on cover personal licensing which aim
to maintain and improve safety, security and so on. The ICAO ensures the highest degree of
air safety on global bases. Chapter 21 of the convention covers the adherence, amendments as

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well as denunciation. Chapter 22 of the Chicago convention defines the air services, Airlines,
international air services as well as stop for non-traffic purposes and so on.

The International Air Service Transit Agreement: This agreement is also known as the
two – freedom agreement, which gives: The privilege to fly across the territory of a state
without landing and the privilege to land for non-traffic purposes (right to stop for refueling,
repairs, or emergency on board medical ortechnical).

The above mentioned picture is the example of an airline route from Singapore to Zurich
where the flight flies over the airspace of countries like Malaysia, Thailand, India, Pakistan,
Afghanistan, Turkmenistan, Turkey, and Romania onwards to Switzerland. This is the
example of the two freedom agreement to overfly airspace of different country in order to
reach the flights designated destination.

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The above mentioned picture is of the Indigo A321NEO which flies the Delhi to Istanbul
Route however when the Tensions with Pakistan had escalated to all time after the air strikes
it resulted in Pakistan closing its airspace which made flight carry additional fuel as it had to
take a longer route in order to reach Delhi and flight time had to increase. So this particular
aircraft had to make a technical stop at Doha Qatar for refueling purpose which is an example
of the privilege for landing for non-trafficpurpose.

The International Air Transport Agreement: This agreement is known as the Five Freedom
agreement. The first two being for the air transit agreement. The other three freedomsare

1. The Right to Discharge passenger, mail and cargo taken from the homeports
2. The Right to pick up passengers , mail and cargo taken from the homeports
3. The Right to pick up as well as discharge passengers, mail as well as Cargo to and
from any other contractingstates.

The Drafts of Technical Annexes: The Final act of the Chicago convention contains the
draft of the technical annexes. It does not require signature. It covers the different phases of
technical field of aviation, being exposition of suggested technical matters for further study in
international aviation. It contains various recommendations which were studied, revised as
well as agreedupon.

The Chicago Convention, the ICAO and the Development of International Standards and
Recommended Practices (SARPs): Recommended practices in order to deal with a wide
range of matters which are concerned with the safety, regularity as well as efficiency of the

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air navigation, the current standards and the recommended practices are published by the
ICAOasannexestotheChicagoConvention.Thereisastandardwhichisdefinedbythe

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ICAO assembly, is specifications for the physical characteristics, configuration , material ,
performances , personal as well as procedural the uniform application of which is recognized
as necessary for the safety as well as regularity of the international air navigation and to
which all members will adhere to. Standards include specifications for matters such as the
length of the runways, the materials which should be used for the manufacturing of the
aircrafts, the basic minimum universal qualifications which are required to become a pilot
flying an international route. A recommendation in any such specification, the uniform
application which is recognized in the interest of safety, regularity as well as efficiency of the
international air navigation and to which the member states willconfirm.

Preparation as well as revision of standards as well as recommendations is largely responsible

for the ICAO’S Air Navigation commission, which planes, coordinates and examines all of
the ICAO’S activities in the field of air navigation. The commission consists of 15 persons,
who are appointed by the council which approves the text; it is submitted to the member
states. While recommendations are not binding, standards automatically become the binding
factor on all states, except for the ones who find it impracticable to comply and file a
difference under article 38 of the Chicago convention.

The various standards and recommendations that have been adopted by ICAO are grouped
into 18 annexes to the Chicago Convention. The aim of most of the annexes is to promote
progress in flight safety, particularly by guaranteeing satisfactory minimum standards of
training and safety procedures and by ensuring uniform international practices. The 18
annexes are the following:

1. Personnel Licensing—licensing of flight crews, air traffic controllers, and aircraft

maintenance personnel.
2. Rules of the Air—rules relating to the conduct of visual and instrumentflights.
3. Meteorological Services—provision of meteorological services for international air
navigation and reporting of meteorological observations fromaircraft.
4. Aeronautical Charts—specifications for aeronautical charts for use in international
aviation.
5. Units of Measurement—dimensional systems to be used in air-ground
communications.
6. Operation of Aircraft. Part I: International Commercial Air Transport; Part II:
International General Aviation; Part III: International Operations–Helicopters. These
specifications will ensure in similar operations throughout the world a level of safety
above a prescribedminimum.
7. Aircraft Nationality and Registration Marks—requirements for registration and
identification ofaircraft.
8. Airworthiness of Aircraft—certification and inspection of aircraft according to
uniformprocedures.
9. Facilitation—simplification of customs, immigration, and health inspection
regulations at internationalairports.
10. Aeronautical Telecommunications—standardization of communications equipment
and systems and of communicationsprocedures.
11. Air Traffic Services—establishment and operation of air traffic control, flight
information, and alertingservices.
12. Search and Rescue—organization and operation of facilities and services necessary
for search andrescue.

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 13. Aircraft Accident Investigation—uniformity in the notification, investigation, and
reporting of aircraftaccidents.
14. Aerodromes—specifications for the design and equipment ofaerodromes.
15. Aeronautical Information Services—methods for the collection and dissemination of
aeronautical information required for flightoperations.
16. Environmental Protection. Vol. I: Aircraft Noise—specifications for aircraft noise
certification, noise monitoring, and noise exposure units for land-use planning; Vol.
II: Aircraft Engine Emissions—standards relating to vented fuel and emissions
certificationrequirements.
17. Security—specifications for safeguarding international civil aviation against acts of
unlawfulinterference.
18. Safe Transport of Dangerous Goods by Air—specifications for the labeling, packing,
and shipping of dangerouscargo.
19. Safety ManagementSystem

The Relationship between the Convention and its Technical Annexes: Many of the
American republics, including the United States, have strict constitutional and legislative
provisions applicable to the ratification of a treaty and of any amendment to it before the
same can become effective. One of the major objectives of the Chicago Convention is, as
stated in the preamble, to agree on "certain principles and arrangements in order that
international civil aviation may be developed in a safe and orderly manner . . . ." To meet
similar objectives the Paris Convention had contained technical annexes designed to assure
uniform regulations wherever the Convention was in effect. These annexes were parts of the
Convention, but nevertheless could be modified by the internal machinery provided in the
Convention without the amendments going back to states for formal ratification. A weakness
of the Havana Convention was that it had no adequate machinery for the adoption of uniform
regulations.

One of the major problems behind the scenes at Chicago was how to provide practical
international uniformity of flight regulations without infringing on the constitutional
procedures of those states which require formal ratification of treaty amendments. A
compromise was finally adopted which I believe has worked well. Article 37 contains a
statement that each contracting state undertakes to collaborate in securing 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. ICAO is then directed to adopt and
amend from time to time international standards and recommended practices and procedures
dealing with such matters as communications systems and air navigation aids, characteristics
of airports, rules of the air and traffic control practices, licensing of operating and mechanical
personnel, air worthiness of aircraft, registration and identification of aircraft, meteorological
information, maps, customs and immigration procedures, aircraft in distress and investigation
of accidents and "such other matters concerned with the safety, regularity and efficiency of
air navigation as may from time to time appearappropriate."

Article 38 requires member states of ICAO to notify it when any state finds it impracticable
to comply with such standards or to bring its own regulations or practices into full accord
therewith. Article 54 directs the Council of IACO to adopt such international standards and
recommended practices and "for convenience designate them as annexes to this Convention."
It was fully understood at Chicago, and is apparent from the test of the Convention, that the
annexes when adopted do not thereby become parts of the Convention. But in practice, soI
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understand, wide uniformity of regulations has nevertheless resulted. At the same time the
convention has been ratified by many states which would have had difficulty in accepting it
with a delegation of power to ICAO which might have resulted in modifying the annexes as
parts of the Convention without re-ratification. I believe that the compromise arrived at in
Chicago was wise and has been successful.

In the Department of State Bulletin of March 11, 1945, published shortly after the Chicago
Conference, Mr. Stephen Latchford, then air law adviser in the aviation division of the State
Department and one of the advisers to the United States delegation at Chicago, wrote:

“Although it is evident from the proceedings and Final Act of the Chicago Aviation
Conference that it is expected and urged that all the countries becoming parties to the
Convention shall cooperate with a view to attaining the highest degree of uniformity
with reference to the application of international standards and practices, it was
realized by the delegates at Chicago that there might be some exceptional cases where
a particular country would find it highly desirable and necessary to adopt some
departure from an international standard. This, it is believed, will not constitute any
serious impediment to the general acceptance and application of uniform international
standards and practices and it is thought that the various states will accept and apply
them to the greatest extent possible. After twenty years I am convinced that Mr.
Latchford's statement was sound.”

Annexes to the Chicago Convention: The Convention on International Civil Aviation,

signed in Chicago on 7 December 1944 (the Chicago Convention), came into force on 4 April
1947. The Convention established certain principles and arrangements so international civil
aviation can develop in a safe and orderly manner, and that international air transport services
be established on the basis of equality of opportunity and operated soundly and economically.
Recommended practices dealing with a wide range of matters concerned with the safety,
regularity and efficiency of air navigation. The current standards and recommended practices
are published by ICAO as Annexes to the Chicago Convention. This list also shows the
agency responsible for each Annex.

A standard, as defined by the first ICAO Assembly, is "any specification for physical
characteristics, configuration, material, performance, personnel, or procedures, the uniform
application of which is recognized as necessary for the safety or regularity of international air
navigation and to which member states will conform." Standards may thus include
specifications for such matters as the length of runways, the materials to be used in aircraft
construction, and the qualifications to be required of a pilot flying an international route. A
recommendation is any such specification, the uniform application of which is recognized as
“desirable in the interest of safety, regularity, or efficiency of international air navigation and
to which member states will endeavor to conform."

Preparing and revising these standards and recommendations is largely the responsibility of
ICAO's Air Navigation Commission, which plans, coordinates, and examines all of ICAO's
activities in the field of air navigation. The commission consists of 15 persons, appointed by
the council from among persons nominated by member states. If the council approves the
text, it is submitted to the member states. While recommendations are not binding, standards
automatically become binding on all member states, except for those who findit impracticable
to comply and file a difference under Article 38 of the Chicago Convention.
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ThevariousstandardsandrecommendationsthathavebeenadoptedbyICAOaregrouped

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into 19 annexes to the Chicago Convention. The aim of most of the annexes is to promote
progress in flight safety, particularly by guaranteeing satisfactory minimum standards of
training and safety procedures and by ensuring uniform international practices.

Annex 1: Personnel Licensing: Standards as well as recommended practices for the

licensing for the flight crew members such as Pilots, Flight Engineers as well as flight
navigators, air traffic controllers, aeronautical station operators, maintenance technicians as
well as flight dispatcher, are provided by Annex 1 of the convention on International civil
aviation. Training manuals provide the guidance for the states for the scope as well as depth
of training which will ensure the confidence in safe air navigation, as intended by the
convention as well as annex 1, is maintained. These manuals provide guidance for the
training of other aviation personnel such as aerodrome emergency crews, flight operations
officers, radio operators as well as individuals involved in other relateddisciplines.

Annex 1 and the ICAO manuals describe the necessary skills to build the proficiency at
various levels of Jobs, thereby contributing to the occupational competency. The medical
standards of the annex, in requirement of the periodic health examinations, which serve as an
early warning for the possible incapacitating medical conditions and contribute towards the in
general well-being of flight crews as well as controllers. The ICAO’S objective is to improve
safety in aviation by making states more aware of it and be more responsive towards the
importance of human factors in the civil aviation operations. To accomplish this task, Annex
I is regularly amended to reflect the rapidly changing environment.

Annex 2: Rules of the Air: Air Travel must be safe as well as efficient, this requires, a set of
internationally agreed rules of the air. The rules developed by ICAO- consists of the general
rules, visuals flights rules as well as instrument flight rules which are contained in the Annex
2- apply without the exception over the high seas and over the national territories to the
extent that they do not conflict with the rules of the states being overflown. The pilot in-
command of an aircraft is the one who is responsible with the compliance of the rules once
the aircraft is airborne. The Visual flight rules permits the flight crew to remain clear of
clouds by a distance of over 1500 meters horizontally and at least 300 meters (1000feet)
vertically and there should be forward visibility of about at least 8km. However for flights in
some parts of the airspace and even at low altitudes there are exceptions, the requirements are
less stringent. The aircraft cannot be flown under the Visual flight rule at night or above 6
feet 100 meters except by special permissions. Even the balloons are classified as aircrafts,
but unmanned free balloons can be flown under specified conditions which are detailed in the
annex. With regard to the interceptions of civil aircrafts as in all cases, potentially hazardous,
the council of the ICAO has formulated special recommendations in annex 2 in which states
are urged to implement through the appropriate regulatory as well as administrative actions.
These special recommendations are contained in attachment A to the Annex. All these rules
are complied with all concerned, which help make our flight safe andcomfortable.

Annex 3 : Meteorological Service for International Air Navigation : Meteorological

service for the International Air Navigation pilots are supposed to be informed about the
Weather conditions in route and at the destination airport as well. The objectives of the
meteorological services have been outlined in Annex 3 which contributes to the safety,
efficiency as well as regularity of air navigation. Necessary meteorological information is to
be provided to the airport operator, flight crew members, air traffic service units, search
rescue units, airport management and other concerned with aviation. Coordination is a must
between those giving the meteorological information and those using it. Close coordinationis
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a must between those who are giving the meteorological information and those who are using
it. Then telecommunications between the meteorological office and control towers or
approach control offices should be in such a manner that the required points may be normally
contacted within the span of 15 seconds. Then airport report includes surface wind, visibility,
runway visual range, present weather, cloud base, air and dew-point temperature and
atmospheric pressure and is issued either half hour or hourly. To provide aircraft in flight
with information about significant changes in weather, meteorological watch offices are
maintained. The weather offices give warnings of hazardous weather conditions, including
thunderstorms, tropical cyclones, severe squall lines, heavy hail, severe turbulence, severe
icing, mountain waves, sandstorms, dust storms as well as volcanic ash clouds. These offices
issue airport warnings of meteorological conditions which could affect aircrafts as well as
facilities on the ground: for example, warning of expected snowstorms. Then warnings are
also issued for climb out as well as approach paths. Furthermore , aircraft in flight are
required to report the ATC if they encounter any weather in route at a particular flight level
for example A flight has planned to fly at 36,000 feet however due to weather being reported
by other aircrafts at flight level 360 then it will help the pilots of the particular flight to fly at
a lower altitude where chances of encountering weather arelow.

These reports are disseminated by the air traffic services units to all aircraft concerned. In
order to provide for the observation and reporting of volcanic ash clouds and the issuance of
warnings to pilots and airlines, ICAO, with the assistance of other international organizations,
has established an international airways volcano watch(IAVW).

The above mentioned picture is the example of the weather radar which is present in all the
aircrafts so the green as well as red patches indicate that the flight may run into bad weather
if it flies through that route so if the flight initial planned route has weather warning it can
deviate from its original route and take a longer route by notifying the ATC citing reason for
weatherDeviation.
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Annex 4: Aeronautical Charts: Aeronautical charts not only provide the two dimensional
information in most maps, nut alongside also portrays three dimensional air traffic service
systems. Almost all the ICAO states produce the aeronautical charts and most segments of
aviation make reference to planning, air traffic control as well as for the navigation purpose.
Without the global standards of aeronautical charts it would be very difficult for the pilots
and other chart users to effectively find as well as interpret important navigation information
as well. The safe as well as efficient flow of air traffic is facilitated by the aeronautical charts
which are drawn to accept ICAO standards. The goal is to satisfy the requirement for
uniformity and consistency for the provisions of aeronautical charts which contain
appropriate information of a definedquality.

When a published aeronautical chart contains “ICAO” in its title, this indicates that the chart
producer has conformed to both general Annex 4 Standards and those pertaining to a
particular ICAO chart type. The ICAO series of aeronautical charts now consists of twenty-
one types, each intended to serve specialized purposes. The World Aeronautical Chart —
ICAO 1: 1 000 000 charts provide complete world coverage. The Aeronautical Chart —
ICAO 1:500 000 series supplies more detail and provides a suitable medium for pilot and
navigation training. Type of charts are- The in route Chart, the Plotting Chart, the Plotting
Chart, Standard Departure Chart, The Instrument Approach Chart, The Aerodrome/Heliport
Chart, Aerodrome Obstacle Chart. Annex 4, Chapter 20 Electronic Aeronautical Chart
Display — ICAO provides basic requirements aimed at standardizing electronic aeronautical
chart displays while not unduly limiting the development of this new cartographic
technology.

Annex 5: Units of Measurement to be used in Air and Ground Operations: A special

committee was established to look into the questions as a result of the first assembly of ICAO
in 1947 which adopted a resolution recommending a system of units to be issued as an ICAO
standard as soon as possible. The first edition of annex 5 was adopted in the year 1948. This
contained an ICAO table of units which were based essentially on the metric system, but it
also contained the four additional interim table of units for use by those states which were
unable to us the primary table. Annex 5 was initially applicable only for those units used in
communications between aircrafts and the ground stations. By 1961 the number of table of
units in the annex had been reduced to two, which remained until the time of amendment 13
which was adopted in March 1979. Amendment 13 extended the all possible considerable
scope of ICAO’s rule in terms of standardizing units of measurements to cover all the aspects
of air as well as ground operations and it should be not only limited to air ground
communications. It also introduced the International System of Units, known as SI from the
"Système International d’Unités", as the basic standardized system to be used in civil
aviation. In addition to the SI units the amendment recognized a number of non-SI units
which may be used permanently in conjunction with SI units in aviation. These include the
liter, the degree Celsius, the degree for measuring plane angle, etc. Amendments 14 and 15 to
Annex 5 introduced a new definition of the meter, and references to temporary non-SI units
were deleted.

Annex 6: Operation of Aircraft (Parts I, II and III): The essence of annex 6, simply put is
that with the operation of the aircraft engaged in international air transport must be
standardized to the highest levels of safety as well as efficiency. The standards as well as the
recommended practices with relation to the operation of aircrafts are engaged in international
commercial air transport on the basis of part 1 of annex 6. The second part to annex 6, which
dealt exclusively with the international general aviation, became applicable in September
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1969. Then the third part of the annex 6, deals with all the international helicopter operations,
which became applicable from November 1986 onwards. Then another major development
has been the introduction of provisions generally referred to as the ETOPS which is to
basically ensure safe operation by twin engine aero planes which are operative over extended
ranged , often over water. This type of operation has arisen because of attractive economics
of the large twin-engined aircrafts which are nowavailable.

The above mentioned image is of the British Airways A318 which operates from London
City Airport to New York JFK with a stop at Shannon Ireland for refueling purpose and even
for passengers U.S Immigration which happens at Shannon itself wo when passengers land at
New York they disembark from the aircraft as a domestic passenger where there is no
requirement for immigration. This aircraft is also the example ofETOPS.

Annex 7: Aircraft Nationality and Registration Marks: How are aircraft classified as well
as identified, and how to determine the nationality of the aircraft? These are the two questions
which are answered in the briefest of ICAO annex, which deals with the aircrafts nationality
as well as the registration marks and also classifies aircraft that how they can sustain flights
in the air. The annex is based on article 17 to 20 of the Chicago convention. Since article 77
of the convention permits joint operating organizations, the amendment3 was introduced to
define the common mark, common mark registration authority as well as international
operation agency, to enable aircraft of international operating agencies to be registered on
other than the national basis. This principle determines that each provisions of the
international operations agency must be assigned as a distinctive common mark by the ICAO,
being selected from a series of symbols included in the radio call signs allocated by the
International telecommunication Union(ITU).

Annex 8: Airworthiness of Aircraft: In the interest of safety of the aircrafts it must be

designed as well manufactured in such a manner that it is eligible to be operated in
compliance with the appropriate airworthiness requirements of the state of registry of the
aircraft. Then consequently the aircraft is issued with the certificate of airworthiness
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declaring that the aircraft is fit to fly .Annex 8 is divided into four parts. Part Iincludes

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definitions; Part II deals with procedures for certification and continuing airworthiness of
aircraft; Part III includes technical requirements for the certification of new large aero plane
designs; Part IV deals with helicopters. 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 t ime to
time pursuant to theConvention.

Annex 9: Facilitation: The Standards and Recommended Practices (SARPs) on Facilitation

(FAL) are derived from several provisions of the Chicago Convention. Article 37 obliges
ICAO to adopt and amend from time to time international standards and recommended
practices and procedures dealing with, inter alia, customs and immigration procedures.
Article 22 obliges each Contracting State to adopt all practicable measures 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. Article 23 of the
Convention expresses the undertaking of each Contracting State to establish customs and
immigration procedures affecting international air navigation in accordance with the practices
established or recommended pursuant to the Convention. A number of other articles have
special pertinence to the provisions of the FAL Annex and have been taken into account in its
preparation. These include: Article 10, which requires all aircraft entering the territory of a
Contracting State to land at, and depart from, an airport designated by that State for customs
and other examination; Article 13, which require compliance of a Contracting State’s entry,
clearance, immigration, passports, customs and quarantine laws and regulations, by or on
behalf of passengers, crew or cargo; Article 14, which obliges each Contracting State to take
effective measures to prevent the spread by means of air navigation of communicable
diseases; and Article 24 (customs duty), Article 29 (documents carried in aircraft) and Article
35 (cargorestrictions).

Annex 10: Aeronautical Telecommunications (Volumes I, II, III, IV and V)

Three of the most complex and essential elements of international civil aviation are
aeronautical communications, navigation and surveillance. These elements are covered by
Annex 10 to the Convention. Annex 10 is divided into five volumes:
Volume I — Radio Navigation Aids
Volume II — Communications Procedures including those with PANS status
Volume III — Communication Systems
Part 1 — Digital Data Communication
Systems Part 2 — Voice Communication
Systems
Volume IV — Surveillance Radar and Collision Avoidance
Systems Volume V — Aeronautical Radio Frequency Spectrum
Utilization
The five volumes of this Annex contain Standards and Recommended Practices (SARPs),
Procedures for Air Navigation Services (PANS) and guidance material on aeronautical
communication, navigation and surveillance systems.

Volume I of Annex 10 is a technical document which defines for international aircraft

operations the systems necessary to provide radio navigation aids used by aircraft in all
phases of flight. The SARPs and guidance material of this volume list essential parameter
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specifications for radio navigation aids such as the global navigation satellite system (GNSS),
instrumentlandingsystem(ILS),microwavelandingsystem(MLS),veryhighfrequency

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(VHF) omnidirectional radio range (VOR), non-directional radio beacon (NDB) and distance
measuring equipment (DME). The information contained in this volume includes aspects of
power requirements, frequency, modulation, signal characteristics and monitoring needed to
ensure that suitably equipped aircraft will be able to receive navigation signals in all parts of
the world with the requisite degree of reliability. Volumes II and III cover two general
categories of voice and data communications that serve international civil aviation. They are
the ground-ground communication between points on the ground and the air-ground
communication between aircraft and points on the ground. An important element of the
ground-ground communication is the aeronautical fixed telecommunications network
(AFTN), a worldwide network organized to meet the specific requirements of international
civil aviation Volume IV of Annex 10 contains SARPs and guidance material for secondary
surveillance radar (SSR) and airborne collision avoidance systems (ACAS), including SARPs
for SSR Mode A, Mode C and Mode S, and the technical characteristics of ACAS. Volume V
contains information on the assignment planning of individual aeronautical radio stations
operating or planned to operate in different frequencybands.

Annex 11: Air Traffic Services: The world’s airspace is divided in a series of contiguous
flight information regions within which all the air traffic services are provided. The main
objective of the air traffic services, as defined in the annex is to prevent the collisions
between aircraft, whether taxing on the ground, taking off, landing, in route or during the
time of holding pattern at the destination airport. The annex also deals with the ways in which
it can be expedited as well as orderly flow of air traffic can be maintained for air traffic and
also to provide advice as well as information and advice for the safe and sound efficient
conduct of flights and alerting the aircraft is distress. To meet these objectives, ICAO
provisions call for the establishments of the flight information centers as well as air traffic
units. All aircraft have to fly in accordance with either instrument flight rules (IFR) and air
traffic control units. Under IFR, the aircraft fly from one radio aid to the next or by reference
to self- contained airborne navigation equipment from which the pilot can determine the
aircraft’s position at all times. VFR flight also receives information on weather conditions
which would make visual flight impractical. Annex 11 contains specifications for operational
flight information services broadcasts, including automated terminal information service
broadcasts.

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Annex 12: Search and Rescue: The Annex, which is complemented by a three-part search
and Rescue Manual which deals with the SAR organizations, managements as well as
procedures, sets forth the provisions for the establishment, maintenance as well for operation
of search and rescue services by ICAO by contracting state in their territories as well as over
high seas. Three distinct phases categorize emergency situations. The first is the uncertainty
phase which commonly is declared when radio contact with the aircraft gets lost and re-
establishment of it becomes difficult or when the aircraft fails to arrive at its destination. For
example the sudden MH370 disappearance in which search and rescue operations was carried
out by various countries such as. Then AI 182 crash which happened in the year 1985 when
the aircraft was flying over the Irish airspace over Shannon then it had lost contact with the
Shannon ATC which made the Irish authorities do a search and Rescue operations and
ultimately a Canadian Cargo ship found the wreckage of the Air India this crash is one of the
worst air crashes which has occurred over the Irish Air Space. 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 iscoordinated.

Annex 13: Aircraft Accident and Incident Investigation: The Annex spells out that which
states may participate in the investigation, such as the states of the occurrence, Registry,
OPERATOR, Design and the Manufacturer. Then even the rights as well as responsibility of
the States are also defined. The 9th edition of the Annex 13 consists of eight chapters, an
appendix as well as four chapters. The first 3 chapters include the protection of evidence as
well as the responsibility of the state of occurrence for the custody as well as the removal of
the aircraft. Then definition regarding the handling of the state must be requested for the
custody as well as the removal of the aircraft. Then it also defines that how state must handle
request for participation in the investigation from the other states. All the states can be
involved if an investigation is properly notified for the occurrence. Then procedures for this
notification are given in chapter 4. Chapter 5 addresses the investigation process. Then
Chapter 6 contains the standards as well as the recommended practices which deal with the
development as well as publication of the final report of the investigation. Then chapter 7
addresses the reporting requirements of the ADREP system which is by the means of
preliminary and accident/ incident data reports. The Chapter 8 deals with the accident
prevention measures.

Annex 14: Aerodromes (Volumes I and II): It extends from the planning of airports and
heliports to such details as switch over times for the backup power supply: from civil
engineering to illumination engineering; from provisions of having proper rescue as well as
firefighting equipment to even have simple requirements for keeping airports clear of birds.
Volume I deal with the airport design as well as operations and volume II deals with the
heliport design. In recent years more focus has been given towards the operations of the
airports. The current addition of the Annex 14, Volume I include the specifications on the
maintenance of airports, then particular focus is also given to the pavement areas as well as
visual aids. Attention is also given for the eliminating features of airports such as birdsas
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they possess significant amount of threat to the aircrafts and even endanger aircraft
operations as well. Then the rescue as well as firefighting service which , according to Annex
14, its mandatory for all the International Airports to have. The Annex sets forth the agents to
be used, their amounts and the time limits in which they must be delivered to the scene of an
aircraftaccident.

Provisions for heliports are included in Volume II of Annex 14. These specifications
complement those in Volume I which, in some cases, are also applicable to heliports. The
provisions address the physical characteristics and obstacle limitation surfaces required for
helicopter operations from surface level and elevated on-shore heliports and helidecks, under
both visual and instrument meteorological conditions. Material dealing with the marking and
lighting of heliports, as well as rescue and firefighting requirements for heliports, also has
been included in Volume II. Although specifications on marking and lighting of heliports are
only applicable to operations in visual meteorological conditions, work is under way on the
development of appropriate visual aids for helicopter operations in instrument meteorological
conditions.

Annex 15: Aeronautical Information Services: The object of the aeronautical information
service is for the insurance of information which is necessary for the safety, in order to ensure
regularity as well as efficiency of international air navigation. Annex 15 defines how an
aeronautical information service shall receive and to originate, collate as well as assemble,
edit, format as well as specified aeronautical information/ data. The goal is to satisfy the need
for uniformity and consistency in the provision of aeronautical information/data that is
required for the operational use by international civil aviation.

Annex 16: Environmental Protection (Volumes I and II): Annex 16 deals with the various
aspects of aircraft noise problems which were adopted in 1971 on the basis of the
recommendations of the 1969 Special meeting on the aircraft noise in the vicinity of the
airports. These included procedures for describing as well as measuring aircraft noise, human
tolerance to the aircraft noise, then certification for aircraft noise, criteria for the
establishment of aircraft noise abatement procedures, land use control as well as ground run-
up noise abatement procedures. The noise evaluation measures are effective with a perceived
noise level, expressed in EPNDB. In the volume I, different aircraft are classified in terms of
the basis of noise certification. These classifications included the supersonic jet aero planes
for which the application for the prototype was accepted before 6thOctober 1977. For those
accepted on or after the date for the propeller driven aircrafts over 5700 kg for those which
are not exceeding the mas,even supersonic aero planes for which application for the
certification of the prototype was accepted before 1st January 1975 and for helicopters for
which the application for certification of the prototype was accepted on or after 1 January
1980. In Volume II of Annex 16, there are Standards which prohibit the intentional venting of
raw fuel to the atmosphere from all turbine engine powered aircraft manufactured after 18
February1982.

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The above mentioned picture is of the Sydney Airport in Australia which is the major
gateway however the airport despite being one of the busiest has a night time curfew hours
because of the location of the Airport which is in the near the residential area and due to the
complaints of the increased aircraft noise this decision was taken in the year 1995 where the
Australian government passed the Sydney Airport Curfew act. Airlines which violate the
curfew hours are heavily penalized aswell.

Annex 17: Security - Safeguarding International Civil Aviation against Acts of Unlawful
Interference: Annex 17 is primarily concerned with the administrative as well as the co-
ordination aspects, as well as with the technical measures for the protection of the security of
the international air transport, requiring each contracting states to establish its own civil
aviation security programmes where additional security measures may be proposed by the
other appropriate bodies as well. The Annex is maintained under the constant review to
ensure that the specifications are current as well as effective. This document sets the
minimum standards for the aviation security worldwide, it is subject to careful scrutiny before
undergoing any changes, additions as well as deletions. Since its publications, annex 17 has
been amended ten times in response to the needs which are identified by the states and is kept
under review by the Aviation security panel. This group of experts are appointed by the
council which includes the representatives from Argentina, Australia, Belgium, Brazil,
Canada, Ethiopia, France, Germany, Greece, India, Italy, Japan, Jordan, Mexico, Nigeria, the
Russian Federation, Senegal, Spain, Switzerland, the United Kingdom and the United States,
as well as international organizations such as the Airports Council International (ACI), the
International Air Transport Association (IATA), the International Federation of Airlines
Pilots Association (IFALPA) and the International Criminal Police Organization (ICPO-
INTERPOL). The aviation security specifications in Annex 17 and the other Annexes are
amplified by detailed guidance material contained in the Security Manual for Safeguarding
Civil Aviation against Acts of Unlawful Interference which was first published in1971.

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Annex 18: the Safe Transport of Dangerous Goods by Air: 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

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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 nine hazard classes are those determined by the United
Nations Committee of Experts and are used for all modes oftransport.

Annex 19: Safety Management Systems (SMS): Performance based approaches to

management of safety are best exemplified by Safety Management Systems (SMS) and the
maturity achieved by the SMS concept allows for its implementation on global basis. Certain
approaches for the management of safety are set in motion only after some triggering event,
such as an accident, incident or reportable event, discloses a safety concern. For this reason,
such approaches may be considered outcome-driven and reactive. They need an outcome in
order to react and engage the safety management process. In these approaches, responsibility
for monitoring outcomes and the remedial action to the safety concerns that are underlying
such outcomes may be scattered within the organization, depending on the sector(s) involved
(flight operations, maintenance, ramp, cabin and so forth) in the event leading to the outcome.
Furthermore, lines of accountability for safety monitoring and safety responses may not
always be clearly articulated and, if they are, safety accountability generally stops at the
middle management. SMS, on the other hand, involve the on-going and routine collection and
analysis of safety data during the course of the activities that an organization must pursue
every day while conducting its core business functions, in addition to reacting to outcome
data. For this reason, SMS may be considered process-driven and proactive. They
continuously collect and analyze big volumes of data that provides for a principled basis to
the definition of activities and the allocation of resources to address safety concerns in a
proactive manner. The term system conveys the notion of an integrated set of processes
aimed at managing safety that crosses departmental boundaries, thus addressing safety
concerns from an integrated, broad perspective. An SMS is thus a systemic approach to the
management of safety, that includes the necessary organizational structure, accountabilities,
policies and procedures. In order to reinforce the notion of safety management being a
managerial business process, SMS requirements include provisions for an organization to
establish lines of safety accountability throughout the organization, as well as at the senior
management level. IATA is an active participant of the ICAO Safety Management Panel and
was involved in the drafting of the newest ICAO Annex, namely Annex 19 – Safety
Management, which became applicable on 14 November 2013.A Safety Management System
(SMS) is a systematic approach to managing safety, including the necessary organizational
structures, accountabilities, policies and procedures. As per ICAO requirements, service
providers are responsible for establishing an SMS, which is accepted and overseen by their
State.

Types of service providers

 Approved training organizations that are exposed to safety risks during the provision of
theirservices
 Aircraftoperators
 Approved maintenanceorganizations
 Organizations responsible for type design and/or manufacture ofaircraft
 Air traffic servicesproviders

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 Certifiedaerodromes

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Under the requirements, the service provider must implement an SMS accepted by their State
that, as a minimum
 Identifies safetyhazards
 Ensures that remedial action necessary to maintain an acceptable level of safety is
implemented
 Provides for continuous monitoring and regular assessment of the safety levelachieved
 Aims to make continuous improvement to the overall level ofsafety

Alongside the ICAO requirements, SMS requirements have been incorporated into the IATA
Operational Safety Audit (IOSA). Industry has been implementing the Safety Management
System (SMS) framework elements for a number of years. As demonstrated through IOSA
audit results, there are varying degrees of implementation to date. Recognizing the need to
progress the implementation of SMS by Industry, in April IATA introduced the IOSA SMS
Strategy. This Strategy provides:

Bilateral Air Transport Agreements: Bilateral regulations are the regulations which are
undertaken jointly by two parties or mostly by two states in terms of the development of
international civil aviation. The main objective of the bilateral agreement is the conclusion,
implementation or the continuance of some kind of the intergovernmental agreement as well
as understanding concerning air services between the territories of the two parties. A
significant amount of the intergovernmental bilateral regulatory activities involves the formal
consultations which are undertaken to concluded as well as interpret , expand as well as
amend or resolve a dispute under an intergovernmental agreement or understanding
concerning international air services. Unlike national as well as multilateral regulation, the
bilateral regulation of international air transport does not have an organizational structure.
However, it does have a legal regulatory structure which is composed of several thousand
bilateral agreements as well as understandings.

Evolution of the Bilateral Regulations: Although international air transport services were
first developed in the early 1920s, few bilateral intergovernmental agreements were
concluded in those early decades due to the small volume of international air transport
activities and then to the virtual cessations of many commercial flights during the 1939-1945
(World War I) period. Bilateral agreements now in force, largely date from after the 1944
Chicago Convention. The Chicago Convention established the rules under which
international aviation operates. It also established the International Civil Aviation
Organization (ICAO), the United Nations organization responsible for fostering the planning
and development of international air transport. In the aftermath of war, with many nations
struggling to rebuild their shattered economies, it is easy to understand why protectionist
elements were incorporated into the drafting of the Chicago Convention. The treaty
determined that no scheduled international air service may be operated over or into the
territory of a contracting state without their express permission. Over the following years,
ICAO developed a series of traffic rights, known as freedoms of the air. These freedoms
continue to form the basis of rights exchanged in air services negotiations today.
Governments must continually negotiate new treaties to allow international aviation to grow
and to expand their carriers' access to new and emerging markets. This type of trade
arrangement does not exist in any other sector. The Australian Government is working to
move beyond the bilateral system through multilateral organizations including ICAO, the
World Trade Organization and APEC (Asia Pacific Economic Cooperation). This is a long
term goal, but an importantone.

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In the meantime, many countries are working within the bilateral system to liberalize air
services arrangements and progressively remove restrictions on routes, capacity and airline
ownership. The bilateral system has its weaknesses, but it can also be flexible and allow rapid
change, where parties agree. Despite its limitations, the bilateral system has allowed
international aviation to grow into the vibrant industry we have today.

Why Bilateral Agreements? Article 1 of the Chicago convention states has complete as well
as exclusive sovereignty over the territory. Agreement on the requirement for special
permission or other authorization to operate the schedule international air services over or
into the territory of a contracting state. Then lack of success for efforts to establish a
multilateral regime foe the commercial aspects for the international airtransport.

The Bermuda I Agreement of 1946 between UK &USA: This agreement was the result of
the compromise which took place between two broad approaches in regard with the
regulation of international air services which had emerged out of the Chicago conference and
are yet to beresolved.

i) At one extreme it was held that there should be no regulation of capacity or tariffs
nor narrow definitions ofroutes.
ii) The opposite view was that capacity should be pre-determined, tariffs regulated by
an international agency and routesspecified.
iii) Under the compromise agreement, tariffs were to be established by the Airlines
through IATA, subject to the approval of both parties. Capacity was to be
determined by the Airlines and routes werespecified.

Typical Provisions of Bilateral Air Transport (Services) Agreements

1. The Preamble, which is the initial part of the agreement, identifies the contracting
parties or simply parties (the two involved governments), presents their reasons for
entering into the agreement, and declares that they have agreed to what will follow in
subsequent parts of theagreement.
2. A definitions article, often the first article of the agreement, assigns meanings for the
purposes of that agreement to terms used in the text, typically those used more than
once.
3. A grant of rights article expresses the main purpose of the agreement, that of the
grant by each contracting party to the other contracting party of rights specified in that
article or elsewhere, such as in the Route Schedule(s), to operate the agreed air
services.
4. A fair and equal opportunity article (or some variant thereof such as “fair and
equitable” or “fair”) sets forth a general principle which each party to an agreement
may rely upon to ensure against discrimination or unfair competitive practices
affecting its designated carrier(s). Alternatively, the principle may be stated in a
clause in the capacity article or elsewhere in the agreement. The article is sometimes
expanded to specifically require consideration of the interests of the other party and
its air carrier(s). The opportunity provided is for the designated carrier(s) of each
party and may be stated as “to compete” or “tooperate.”
5. A designation and authorization article grants the right to name an air carrier, or
more than one air carrier, to operate the agreed services and establishes the limited
conditions under which the other party may deny an operating authorization to such
carrier(s). The conditions for denying (including withholding) of an operating
authorization are typically those of substantial ownership and effective controlnot
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 being vested in the designating party or in its nationals, and/or an insufficient
disposition to conform to the laws and regulations of the receiving party and/or an
inability to meet airworthiness standards.
6. A revocation or suspension of operating authorization article grants each party a
right to revoke or suspend the operating authorization already granted to an air carrier
of the other party if the carrier no longer meets a specified condition, usually one of
the same conditions established for the grant of suchauthorization.
7. A capacity article lays down the agreed principles or method for regulation of the
amount(s) of services offered or to be offered under the agreement. Detailed models
of a pre-determination type capacity article, a Bermuda I type capacity article, and a
free-determination type article were developed by ICAO to provide guidance on three
alternative regulatory approaches to capacity clauses and may be found in ICAO Doc
9587.
8. A tariff article establishes procedures for the establishment and regulations of prices
on the agreed air services. Detailed models of a double approval clause, a country of
origin clause and a dual disapproval clause were developed by ICAO to provide
guidance on three alternative regulatory approaches to tariff clauses or articles and
may be found in ICAO Doc 9587, along with discussion of further alternative
approaches to tariff regulation, such as “tariff zone” and “country ofdesignation.”
9. A statistics article typically provides for exchange of airline traffic data related to the
agreed services, either periodically or as needed for the regulation of capacity, for
route evaluations, or for otherpurposes.
10. A Commercial operations article or commercial opportunities article (or articles)
specifies the rights granted to each party’s designated air carries(s) to carry out
commercial activities in the territory of the other party. These rights are sometimes
referred to as “doing business rights” or “soft rights” and are likely to include the
establishment and extent of foreign staffing of airline offices, sales in local or
convertible currency, ground handling options, currency conversion and remittance of
funds by airlines, and in some cases, access to landing and take-off slots at airports
and/or use of computer reservation systems (CRS). An airport slots article and/or a
computer reservation systems article are sometimes used to cover the latter two
“soft rights” separately. “Hard rights” has come into some use as a collective term of
contrast to include route, traffic, operational and capacity rights which are considered
more valuable and enduring, hence “hard”. Pricing rights are sometimes in the other.
In some agreements, one or more of the “doing business rights” listed above are given
their own distinctarticles.
11. An airworthiness article typically provides for the mutual recognition by the parties
of each other’s certificates of airworthiness, certificates of competency andlicences.
12. An aviation security article, an addition in recent years to many bilateral air
transport agreements, sets forth procedures for co-operation between the parties to
avoid or deal with situations involving acts or treats of unlawful interference with the
security of civil aviation. In 1996 the Council of ICAO adopted a model bilateral
aviation security clause for the use of Contracting States (see Appendix I to the
manual).
13. A customs duties and taxes article requires each party to exempt from duties, taxes
and charges, the aircraft fuel, spare parts and supplies used by the other party’s air
carrier(s) (see also ICAO’s Policies on Taxation in the field of International Air
Transport, Doc8632).
14. A taxation article (in the absence of a separate tax agreement) exempts from taxation
thecorporateearningsoftheaircarriers(s)oftheotherpartyandmay,insomecases,
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 extend to cover the earned incomes of air carrier employees (see also ICAO Doc
8632).
15. A user charges article sets forth agreed principles regarding charges for the use of
airports and route air navigation facilities by the designated air carrier(s) of the other
party (see Statements by the Council to Contracting States on Charges for Airports
and Air Navigation Services, ICAO Doc9082).
16. An application of laws article establishes that the national laws of one party related
to the operation, navigation, and admission and departure of aircraft apply to the air
carriers(s) of the other party.
17. A consultation article sets forth the agreed procedures for consultation between the
parties or their aeronautical authorities (often with a time requirement for the
consultation to take place) and may include an amendment clause (sometimes a
separate amendment article) which establishes procedures for amending or
modifying theagreement.
18. A settlement of disputes article sets forth agreed measures for resolving disputes
between the parties. Such measures routinely include consultation and sometimes
arbitration.
19. A termination article or denunciation article specifies how a party may end its
commitments under the agreement, typically one year after receipt by the other party
of a formal notice to that effect. Some agreements provide for a shorter notice period,
such as six months, or in exceptional cases, allow for denunciation or termination of
only parts of theagreement.
20. A multilateral agreement article provides that if a multilateral agreement accepted
by both parties, concerning any matter covered by the agreement, enters into force,
the agreement shall be amended so as to conform with the provisions of the
multilateralagreement.
21. A registration article reiterates the obligations of the contracting parties (when both
are Contracting States of ICAO) to register the agreement with ICAO, as required
under Articles 81 and 83 of the ChicagoConvention.
22. An entry into force article establishes how and when the agreement will take effect,
typically upon the conclusion of an exchange of diplomatic notes. It may specify
provisional effectiveness and may or may not anticipate a process of ratification by
either or bothparties.
23. The signature provisions at the end of the agreement indicate the date and place of
signature and specify the language versions. Although most agreements having more
than one language version provide that each version is equally authentic, agreements
can provide that in the event of conflict between the language versions, the text of one
specified language willprevail.

International Civil Aviation and Dispute Settlement: Dispute means disagreement on a

point of law or fact, a conflict of legal views or of the interests between two persons. The
term international disputes has a wider connotation that includes within it the interstate
dispute as well as dispute which arises between the states as well as individuals, corporate
bodies as well as non-state entities which are subject to international regulations. Then
settlement means the act or the instances of being settled or in settlement mode. Dispute
settlement is an ambiguous term; it may refer to the settlement in the sense that that the
disputing parties agree to end their dispute, with the assistance of the 3rdParty, or alternatively
that it may refer to the mechanism for a decision by the court, arbitral tribunal as well as a
comparable body. Therefore with respect to international dispute it must have a wider
connotation that covers within its ambit the interstate disputes as well asdisputes
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which happen between states as well as individuals, the corporate bodies as well as non-state
entities which are subject to the international regulations.

Under the International law it is mandatory for the parties to settle the dispute in peaceful
means. Article 2(3), the U.N charter enjoins the members to settle their international disputes
by peaceful means. The peaceful means are given under article 33 for the charter as
negotiations, enquiry, mediation, conciliation, arbitration. Judicial settlement, resort to the
regional agencies as well as other peaceful means. The international disputes which are
related to aviation have mostly been resolved through arbitration. This chapter covers a
discussion on various disputes that have arisen under various bilateral and multilateral
international agreements including the ChicagoConvention.

Aviation laws and the regulations govern the national as well as international issues which
affect the operation of aircrafts, flights, air travel, and maintenance of aviation facilities as
well as airport matters. Aviation laws as well as regulations monitor the duties, the rights as
well as liabilities of the commercial businesses as well as private individuals. The settlement
of international aviation disputes takes place under the multiple umbrellas of the convention
on the international civil aviation as well as multilateral and bilateral agreements between
states including the bilateral air services agreements. Whenever there is trade, the potential
for conflict arises. In no other industry is this assertion more common than aviation, where
the government policies traditionally has been very severe and the trade relations are based
on the bilateral agreements rather than one big multilateral treaty.

Before 1970 aviation disputes were very few as well. During the first 30 years of the
international aviation the aviation industry, both domestic as well as international, was
subsidized as well as regulated to such a degree that disputes were unheard of. Several
legislations were successfully deregulated the US’s domestic market which prompted to
seek deregulationinternationally.

Bermuda I, a bilateral air service agreement, which took place in 1946 between the United
States as well Great Britain, , which provided the model for most bilateral air service
agreements that the USA had subsequently negotiated. While majority of the states sought to
apply these agreements which were designed for only one carrier per route, in majority of
the cases the carter administration used to designate many new carriers for the routes as
well. This approach allowed the existing airlines to expand their routes and open the markets
for many new operators aswell.

Aviation disputes may be classified as either:

Commercial, that is arising out of the application and interpretation of bilateral
agreements.
Non-commercial, that is, between states and involving interpretation of obligations
under the ChicagoConvention.
Non-commercial aviation disputes:
Non-commercial air transport dispute generally involves the application as well as
interpretation of the Chicago conventions with article 9 which includes prohibited zonesand
15 airport and similar charges, which generate inter-state disputes which suggest that
conflicts involve article 15 of the Chicago convention which often result from the revenue
generating actions, with the state whose designated airline is subjected to the increased
charges which object on the grounds that are discriminatory in nature. Sometimesthese
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kinds of dispute have a lot of political differences. Commercial aviation disputes major
commercial aviation disputes which revolve around the bilateral air transport agreements
which incorporate provisions from the Chicago convention. Major commercial aviation
disputes around the bilateral air transport agreements which themselves incorporate the
provisions from the Chicago convention.

While many of these agreements are very similar in important respects, there may be
differences in how they handle the disputes resolutions. Back in 1952, then main Secretariat
of the ICAO has analyzed over two hundred such agreements and classified them according
to their provisions on dispute settlement. While some failed to address dispute resolution at
all, others provided for the recognition of the competence of a tribunal for the exclusive
competence of the ICAO in all the events of the dispute. Then in 1962, the eminent scholar
Bin Cheng found that almost all the contained dispute settlement provisions , principally
providing for the arbitration and the UK, provides an example of dispute resolutions under a
bilateral agreement structure. In the event of a disagreement it provides for

(1) Formal consultationsor

(2) If formal consultations fail, arbitration by a tribunal of threearbitrators.

If arbitrators are not appointed then either party may request the President of the
International Court of Justice (ICJ) to make such appointment. The approach embodied in
the Agreement is one of negotiation and if that fails, arbitration. Parties to aviation disputes:
states carrying the interests of national carriers Although the formal parties to disputes
relating to bilateral agreements may be two states, it is quite possible that the dispute may
have initially existed between an airline of one state (a private entity) and an airport
authority, which possesses appropriate regulatory powers, including power to increase
airport fees. Where informal settlement attempts fail, the airline involved may request that
its government involve itself in the dispute. In this way what begins as a private dispute
becomes an inter-state dispute, ‘a dispute between sovereign authorities’. Whether or not
that dispute is resolved according to the procedures laid down in Bermuda type bilateral
agreements is very much in the hands of the disputing states. In practice, states may resort to
a number of approaches. In the absence of a universal mandatory approach they may, for
example, resort tousing

(1) Unilateral coercive means;or

(2) Political means;or
(3) Legal means to resolve thedispute.

Arguably, some states demonstrate a preference for political/diplomatic means of settlement.

This tends to preserve the relative power relationship between the parties to a dispute and is
often preferred by the more powerful states because it advances their interests. Where
unilateral or political means of resolution are not employed, states may engage in a variety
of dispute resolution techniques when faced with bilateral aviationdisputes.

The significant disputes arisen under Bilateral Air Transport Agreements are:

United States v.France(1963)

United States v.Italy(1965)
United States v.France(1978)
Belgium v. Ireland(1981)
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 United States v. UnitedKingdom(1992)
Australia v. United States(1993)

The significant disputes placed before the ICAO Council as per the provisions of the
Chicago Conventionare:
India v. Pakistan (1952)
United Kingdom v.Spain(1969)
Pakistan v. India(1971)
Cuba v. United States(1998)
The United States v. The European Union(2000)
The significant disputes placed before The International CourtofJustice
Libya v. United States(1992)
Iran v. UnitedStates(1996)
Pakistan v. India(2000)
International Aviation Disputes have been resolved by primarily two methods i.e.
Political means of DisputeResolution;and
Legal Means of DisputeResolution

Alternate means to Dispute Resolution under Chicago

Negotiation: Negotiation is the most common used method in terms of dispute resolution.
Mostly states are placed under the obligation to go by the Chicago convention’s article 84,
which requires them to do prior judicial proceedings before the ICAO council. In point of
fact, most bilateral air transport agreements also stipulate that the parties should first
negotiate before taking the next step. Main characteristics of negotiation are that it is
restricted to the parties which are involved in the dispute. There is no recourse to either the
third party at all. The main apparent disadvantage of negotiation is that it can be very time
consuming with the parties sometime acting difficult in respect to certain entrenched
positions. Where the parties wish to achieve the maximum outcome of temptation for the
negotiators to exaggerate as well as overstate positions as well. Further, the large amount of
trade disputes as well as the detail associated with each dispute renders negotiations between
states an impractical as well as expensive approach for each dispute as well. States are
involved on behalf of carriers, and negotiations don’t go well, there is also a possibility of
certain dispute for example airport access or additional charges which are placed on flag
designated carriers which widening to encompass the broader bilateral relationship which
exist between two states.

Fact-finding: Fact-finding provides a preliminary mechanism for the subsequent resolution

of disputes using other dispute resolution techniques. Fact-finding, through Commissions of
Inquiry, paves the way for such resolution by correctly identifying the relevant facts in
dispute. A standard approach for employing fact-finding is for the parties to the dispute to
agree on the formation and composition of a panel of individuals whose role it is to make
enquiries to identify the relevant facts surrounding the dispute or incident. This panel does
not make recommendations or suggestions; it merely identifies the salient facts. The notion
is that this process speeds up the resolution process with the facts no longer subject to
dispute. While accident investigation of an aircraft disaster, under Article 26 of the Chicago
Convention, may be conducted by the state where the disaster took place, or the state of
registry of the aircraft if the disaster did not occur within a particular state’s territory, there
isatleastonemajorexampleofICAObecominginvolvedinamajoraircrashbywayof
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completing not one but, eventually, two fact finding enquiries into the event. I refer to the
infamous incident in which a Soviet jet fighter shot down a Korean Airlines flight (KE007)
over the Sea of Japan in 1983. Against the backdrop of a situation where the Republic of
Korea could not avail itself of Article 26 to launch an investigation because ‘the Soviet
Union insisted that the aircraft had invaded, and was shot down inside Soviet airspace,’
ICAO initiated its own investigation.

While the ICAO role in relation to Article 26 is limited to laying out the procedure to be
followed by the contracting state taking jurisdiction, in the light of this dispute, the ICAO
Council adopted a resolution empowering the Secretary- General ‘to institute an
investigation to determine the facts and technical aspects’ associated with the KAL flight
and its destruction. The ICAO Council, in empowering the Secretary- General to investigate,
relied on Article 55(e) of the Chicago Convention which permits ICAO investigation to take
place where there is an ‘avoidable obstacle to the development of international air
navigation’. Due to the uncooperativeness of Soviet authorities, the 1983 ICAO
investigation has been described by Tompkins and Harakas as ‘cursory at best and deficient
in many respects’. Critical evidence was not available to the ICAO, such as wreckage lost at
sea and cockpit and control tower voice recordings. Although the Secretary-General’s
investigative team presented two possible explanations for the course deviation taken by
Flight KE007, each of the two scenarios presented in the 1983 report, despite being
ostensibly findings of fact, lacked the certainty that could only be provided by the missing
data.

A feature of the ICAO investigation was that, although ICAO possesses the authority to
mandate that parties to the Chicago Convention empower the investigative process, ICAO
has no such investigative procedures of its own. For example, it lacked the power to
subpoena documents, require individuals to testify or obtain state compliance. The novel
situation encountered in this instance was not a situation envisaged by the founders of ICAO
or the drafters of the Chicago Convention. Subsequently the ICAO Council referred the
Secretary-General’s report to the Air Navigation Commission (ANC), ‘the highest technical
body of ICAO’. The subsequent report prepared by the ANC noted the ‘incomplete and
contradictory elements’ of the 1983 report, its reliance on ‘unverified facts and
assumptions’, especially relating to its flight path, and the ANC failed to endorse the
findings of the 1983 report. As a consequence the ICAO Council did not adopt the 1983
report of theSecretary-General.

Although ICAO never adopted the 1983 report, the disintegration of the old Soviet Union
led to the eventual availability of the Cockpit Voice Recorder (CVR) and DFDR tapes. On
the recommendation of representatives of the Republic ofKorea, the Russian Federation, the
United States of America and Japan, and on receipt of the original CVR and DFDR tapes
ICAO undertook, in 1992, to complete its investigation into the crash of Flight KE007. The
1993 ICAO report that resulted, given its access to evidence concealed in 1983, did contain
findings of fact relating to this air crash. Tompkins and Harakas remained critical of aspects
of the 1993 report, suggesting that assumptions were still made in it that were not explained.
Given the essential fact-finding brief, it would seem necessary for any assumptions made to
be supported by findings of fact. Arguably, from a structural point of view, the KE007 fact-
finding investigations of ICAO lay bare more deficiencies, in the processes and procedures
surrounding these investigations, than strengths. How then, can the system be improved? Or
should ICAO not take up the challenge of such investigations? Is there a need to empower
someotherbodyinlikecircumstances?GiventhatICAOmayagainmeetasimilar
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challenge a minimum reform would be for member states to confer full authority on ICAO
to ‘search out all of the relevant factors’ so that the complete record is scrutinized and
provides a sound basis for fact-finding. An argument could be mounted that the Chicago
Convention ought to be amended to decree the mandatory cooperation of states involved in
the disaster, placing upon them the obligation to invest the ICAO investigative team with
such powers. Another related lesson to be learned is that international politics do not mix
well with meaningful aircraft accident investigation, which has as its goal the search for the
ultimate truth so as to prevent, as far as humanly possible, a recurrence. Although even the
ICAO Council has lamented the sluggish movement of states when it comes to reform of the
Chicago Convention, the need for reform to deal better with KE007-like circumstances
remains.

Good offices: Good offices has been characterized as a moderately valuable ADR technique
that is sometimes employed by, among others, ICAO. It involves the use of a third party to
improve communication between the parties. The third party may, for example, encourage
the parties to the dispute to communicate in a more constructive manner than they had prior
to the third party’s involvement. Generally, this role has occurred where there is a clear need
to improve communication prior to engaging in mediation or negotiation to resolve the
dispute.

While ICAO has been infrequently involved in the settlement of ‘commercial disputes
between states trading in air services’ it has exercised its good offices on a number of
occasions in the context of disputes falling under the umbrella of the Chicago Convention.
First, where ICAO is performing its judicial role in respect of a dispute its own Rules of
Procedure for Settlement of Differences (Article 14) permit it to provide its good offices to
states in dispute to expedite settlement. Despite the fact that ICAO has only exercised its
good offices on three occasions in this judicial context it has received credit for using its
good offices, along with mediation, to bring India and Pakistan to the point where settlement
of their 1952 dispute regarding the erection of a ‘prohibited zone’ took place. Maniatis
suggests46 that Articles 54(j) and 54(k) of the Chicago Convention may provide a basis for
ICAO exercising its good offices where there is a dispute between two member states of
ICAO.

Mediation: Mediation has been variously described as (1) a process in which ‘the
participants, together with the assistance of a neutral person or persons, systematically
isolate disputed issues in order to develop options, consider alternatives and reach a
consensual settlement that will accommodate their needs’ and as (2) a structured negotiation
in which a neutral third party, the mediator, uses a number of techniques to assist the parties
to the dispute to frame their own agreement to resolve the dispute’. Court-ordered or court-
annexed mediation in the context of private international air law disputes, most often
between individuals (passengers) and airlines, occurs in a number of common law
jurisdictions. Court ordered mediation has been defined as ‘a process by which disputants
pursuant to an order of the court engage the assistance of a neutral accredited mediator to
help them resolve their dispute by negotiated agreement withoutadjudication’.

As mentioned above, along with negotiation, mediation played a role in the settlement of the
1952 India–Pakistan dispute. As mediation is generally voluntarily entered into by states it is
indicative of a desire to resolve the impasse or differences between states. It complements
negotiations in particular and may be ‘needs based’ (i.e. it focuses on the real needs of each
party to the dispute as against ‘positional based’ negotiation) and the parties themselves play
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a pivotal role in shaping a resolution as against having a solution imposed upon them by an
arbitral tribunal or third party expert.

There are different types of mediation with the following types most likely to draw scrutiny
in the context of international aviation disputes:

(1) Facilitative mediation, where the dispute is defined in terms of the parties’
underlyinginterests;
(2) Settlement mediation (or ‘compromise mediation’) in which a ‘high status’
mediator determines the parties’ ‘bottom line’ and attempts to achieve
compromise;and
(3) Evaluative mediation, where the mediator provides additional information and
advice to the parties in attempting to influence the parties in their negotiations
through the use of his/her professionalexpertise.

Advantages of mediation include:

(1) Speedy settlement of disputes with reducedcosts;
(2) Flexibility in the shaping of a settlement that is not found inlitigation;
(3) Elimination of the chance of an unacceptable and unpredictableresult;
(4) Avoidance of public disclosure of privateinformation;
(5) Facilitation of a real understanding of the ‘other’ party’s position and promotion of a
reasonable compromise in structuring an agreement for resolution of the matter in
dispute;
(6) Retention by the parties of some control over the process which, of itself, promotes
ownership over the process;and
(7) Elimination of the opportunities for coercion and nullification of power imbalances
between theparties.

It has been argued that there are five elements that are common to all forms of mediation.
They are, its voluntariness, its confidential nature, that it involves negotiation to reach a
consensus, its involvement of a neutral third party, and that the mediator acts as a facilitator,
encouraging the parties to reach agreement but not adjudicating on the dispute. While
mediation has been widely adopted in many situations and by many legal systems and is
generally seen as a valuable additional means of seeking a speedy and cost effective
resolution to disputes, it has been infrequently employed in the ‘big picture’ aviation
disputes. Is there then a need to build in a mediation phase prior to ICAO or ICJ
involvement?

Such an early dispute procedure would match those practiced in a number of common law
jurisdictions where court annexed or court referred mediation is widely practiced. Because
ultimately the success of mediation is based on the voluntariness of states it will only ever
be practically activated where states are prepared to compromise. If state parties are not
really prepared to submit their dispute to mediation, that is, to accept the process, then the
mediator will make the appropriate recommendation and the dispute will rapidly move to the
next stage. At present asking the question, ‘Will you submit the dispute to mediation?’ is not
built into the ‘big picture’ systems or conventions. While mediation is an extremely valuable
tool, it is by no means a panacea to all aviation disputes, in particular aviation disputes
between states. It should be acknowledgedthat

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Mediation is least effective where:

(1) There is intense hostility and distrust between parties to thedispute;

(2) The parties refuse to assume responsibility for a negotiated resolution;or
(3) There is an extreme powerimbalance.

Where extreme hostility exists between the parties this severely limits the possibilities for
rational and honest discussion between them. In order for a mediation to lead to an
acceptable outcome there is a clear need for parties to assume responsibility for an
acceptable outcome.

Conciliation: Conciliation has been defined as ‘a method of alternative dispute resolution in

which a third party attempts to facilitate an agreed resolution of a dispute in accordance with
relevant legal principles, and as a process in which a conciliation commission ‘proceeds to
the impartial examination of the dispute and attempts to define the terms of settlement
susceptible to being accepted by them’.

A conciliation commission actively enquires into the facts of the dispute and advances
proposals for its resolution. Although conciliation has occasionally been employed in the
context of Chicago Convention disputes its use has been infrequent. However, in 1958
conciliation was selected as the settlement option for an incident in which France diverted an
aircraft carrying leaders of the Algerian revolt. The aircraft was, at the time of interception,
flying in international airspace (and, thus, subject to the provisions of the Chicago
Convention) in route from Morocco to Tunis. Maniatis observes that conciliation ‘plays a
greater role in politically motivated disputes’.

Despite its acceptability as a dispute settlement mechanism in ‘big picture’ disputes with
political content, conciliation, nevertheless, has certain drawbacks that make it less
appealing in a commercial context, such as its costliness and its ‘time-consuming formal
process’. While conciliation may have had a very limited role in resolving aviation law
disputes it still enjoys significant support in the trade law context of complex, multiparty
disputes with the United Nations Commission on International Trade Law (UNCITRAL)
recently producing a Model Law on International Commercial Conciliation. One feature of
the UNCITRAL Model Law on Conciliation is its preservation of confidentiality at the
request of parties in respect of sensitive information provided to the Conciliation
Commission through its Articles (Disclosure of Information) and(Confidentiality).

Arbitration and the Chicago Convention: As previously referred to, the Chicago
Convention it-self provides a unique procedure for the handling of disputes. Article 84
provides a procedure for settlement of disputes between two or more contracting states
relating to the interpretation and application of the Chicago Convention. Under this
provision the Council of the International Civil Aviation Organization (ICAO) performs an
adjudicative function. However, such decision by the ICAO Council may be appealed either
to an ad hoc arbitral tribunal or the Permanent Court of International Justice (ICJ). Article 85
uniquely provides for this appeal. If a member state involved in a dispute does not accept
the Statute of the International Court of Justice and the contracting parties are unable to
reach an agreement as to the choice of the arbitral tribunal, each of the disputing states
names a single arbitrator from a list of arbitrators maintained by the ICAO Council. If the
disputing parties cannot agree on someone from this list the President of ICAO choosesan

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‘umpire’ from the list. The arbitrators and the umpire then constitute the arbitral tribunal
hearing the appeal.

Significantly, Article 84 decrees the binding nature of the decision of the ICJ or the arbitral
tribunal. Because of the binding nature of this process it carries with it the advantage of
traditional legal processes in the certainty of the result achieved. The decisions rendered are
also likely to be rule based and so it serves to equalize power imbalances between states.
There is a disadvantage in this equalizing effect for the more powerful states that may not
wish to lose their relative strength in negotiation. To further endorse the binding nature of
the decision the Convention addresses the issue of enforcement in Article 88, with the ICAO
Assembly having the right to suspend the recalcitrant state’s voting rights. Balfour notes the
silence of the Convention as to the procedure when both parties agree to ICJ jurisdiction but
cannot agree on the forum. He notes also the silence of the Convention on the issue of the
scope of the appellate review; for example, whether or not new matters may be introduced.
These arguably minor issues point to the need for the ‘system’ to be further refined and
developed. Arbitration under bilateral air services agreements Balfour reports that a 1952
ICAO study of more than 200 such agreements revealed significant differences in their
dispute resolutionprovisions.

The Secretariat found ten major variants, ranging from agreements which recognized the
exclusive competence of the ICAO Council, through agreements which recognized the
competence of another arbitral tribunal, to those which contained no provisions concerning
dispute resolution. Subsequently, a study by Buergenthal indicated a shiftaway from
providing the ICAO Council with exclusive competence. Bin Cheng, in his seminal study of
air law, indicates the significant role that arbitration plays under a range of bilateral air
services agreements. The reality of the current structure is that there is, at ICAO level, a
significant emphasis on the resolution of disputes through negotiation prior to their reaching
the point that arbitration is necessary.

Although arbitration is a favoured source of dispute resolution by virtue of its inclusion in

the bilateral agreements, in practice it is used relatively infrequently. Thus far arbitration
under the bilateral agreements has only been used five times, in the followingdisputes:

The issue in the 1963 arbitration was whether or not a US carrier could rightfully operate
between the US and Turkey via Paris and whether or not it could carry non-US originating
or destined passengers between Paris and Turkey. Specifically, the question to be resolved
was did the words ‘Near East’ in the France/US Air Services Agreement of 1946 include
Istanbul, Beirut and Tehran. While each party appointed an arbitrator there was no
agreement as to who should be the third arbitrator. A referral to the President of ICAO took
place, in accordance with the procedure outlined in the bilateral agreement between the
disputing parties, and the President of ICAO then appointed the third arbitrator who was
Professor Robert Ago of Italy.

The final outcome of the arbitration was a unanimous decision that favored the US on many,
but not all, issues. However, the path to this final decision was circuitous. It was initially
ruled that the French were correct in arguing that the intention of the parties to the 1946
Agreement was not to include Istanbul and Tehran in the Near East. However, Professor
Ago held that the US had acquired rights through ‘uscapio’, because of the belated protest
andbecauseFrancehadallowedPanAmtooperatenonetheless.Thearbitraltribunalruled

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that Pan Am, the US carrier involved, could continue to fly to Turkey via Paris ‘as a result
of French consent to the service, confirmed by an exchange ofnotes’.

The 1965 dispute between Italy and the US resulted from US attempts (again involving Pan
Am) to operate an all-cargo service between the two countries. The Italian concern was for
the position of its carrier, Alitalia, and its inability to cope with the increased competition
represented by the all-cargo service.23 The Italian view was that the bilateral agreement
between the two countries, the US–Italy Air Transport Services Agreement 1948, did not
permit such a service. Once again, negotiations in 1964 failed to resolve the disagreement.

In this instance the parties agreed on the third arbitrator. The arbitration resulted in a
favorable outcome for the United States with the tribunal considering ‘that the Agreement
was intended to govern all kinds of scheduled air transport between the two countries in a
flexible manner and that the Bermuda Agreement does not contain any express provision
excluding all-cargo services.’ However, after the then Civil Aeronautics Board (CAB)
authorized a third carrier to provide an all-cargo service in 1966, Italy reacted by
denouncing the bilateral agreement between the two countries. Only after rounds of
negotiation, during which strictly limited services between the two countries were
maintained, was a new bilateral between the two statestransacted.

The 1978 dispute, between France and the US, once again involved a Pan Am service, this
time between San Francisco and Paris via London. Pan Am wanted to change gauge in
London, that is, to change the type of aircraft in London, offloading B747 passengers onto a
B727 aircraft for the final leg of the journey. France objected to this change of gauge on the
basis that it was contra the bilateral air services agreement between the two states. The US
argued that it was permissible under the bilateral. At issue also was the US right to take
retaliatory measures when France imposed a restriction on Pan Am’s service. In fact, France
had seized Pan Am’s B727 at Paris Orly Airport in May 1978. In subsequent events the US
had threatened to suspend Air France’s Los Angeles service in order to pressure France into
arbitration proceedings to resolve the dispute. Once again, the outcome of the arbitration
was favorable to the US with the tribunal holding that a change of gauge was permitted as
long as the continuous service wasmaintained.

It also held that retaliatory measures were justified, as long as they were proportionate. Both
parties to the dispute then requested the arbitral panel to clarify the meaning of the ruling.
Was the confirmation of Pan Am traffic rights with (the French view) or without (the US
view) limitation of the frequency of the services? The arbitrators’ ruling was that this meant
‘with capacity limitation’, which resulted in the parties resuming negotiations. In delivering
the decision, Dutch arbitrator Rifkind opined that ‘all that is not prohibited is permitted’
instead of ‘all that is not permitted is prohibited’. It is ironic that, subsequent to this
favourable decision, Pan Am did not take advantage by way of resuming its service until
some years later. And when they did resume this service it was without change of gauge in
London.

This is not an example of arbitration operating at its most effective. At least one
commentator described the process as ‘lengthy, cumbersome and expensive’ and noted that
the drafting of the Arbitration Compromise to refine the issues between the parties takes
weeks. The 1981 dispute between Belgium and Ireland concerned interpretation of the
capacity clauses in the bilateral air services agreement between the two countries, the issue
beingwhethertheBrussels-Dublinroutewassufferingfromexcesscapacity‘andwhether
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Sabena enjoyed fair and equal access to the market’. A single arbitrator, Mr Henry Winberg,
elected by the parties in accordance with the bilateral, conducted the arbitration and
determined that there was excess capacity on the route, ordering Sabena to discontinue one
weekly round trip service and Aer Lingus to discontinue two weekly round trips. This was a
very successful arbitration with both parties accepting the conclusions of the arbitrator. The
1992 arbitration involved a dispute between the US and the UK, specifically that user
charges imposed by the British Airports Authority on US airlines were in breach of the
bilateral air services agreement between the two countries. In this instance, in accordance
with the procedure outlined in the bilateral, each state nominated an arbitrator and then the
arbitrators themselves agreed on the third arbitrator. The decision of the arbitral tribunal
was that the UK had ‘infringed certain obligations under the bilateral in respect of airport
charges’.

Overview of use of arbitration procedure under the bilateral agreements: Although the
bilateral agreements grasp at achieving a uniform approach, attested to by the prevalence of
arbitration clauses, the use of arbitration tends to be the last recourse and variations in
procedure for choosing the third arbitrator, for example, persist. Balfour writes of ‘the great
variety of models which appear, both in multilateral agreements and in bilateral agreements
… This would seem to suggest that no particular preferable formula has yet evolved, and
that there are certainly many options from which tochoose.’

There is an ongoing debate in respect of the role of arbitration in resolving disputes under
the bilateral agreements. One view is that the bilateral agreements focus heavily on self-
enforcement, which is achieved through consultation between aeronautical authorities.
Where disputes escalate through the negotiation/consultation stage, states can act to
terminate the bilateral agreement in question. A referral to arbitration, in the context of a
particular dispute, may simply not occur. The political dimension of bilateral air services
agreements, in that they also represent an aspect of the relations between states, is ever
present and appears to be the only explanation for overlooking the possibilities for
arbitration in the context of manydisputes.

The route from the consultation phase to the point of termination of the agreement leaves, in
fact, no room for arbitration. Mr Balfour explains this on the basis that states are reluctant to
risk a breakdown in their relations. It would seem that the sensitive nature of the bilateral
agreements stands in the path of more widespread use of arbitration. Although arbitration
has been used infrequently under the bilateral agreements, it has demonstrably been
successful in each case at fashioning an acceptableoutcome.

The 1981 Belgium/Ireland dispute exemplifies arbitration at its most effective in the context
of bilateral air services agreements. Belgium argued over-capacity and for equal distribution
of opportunities for capacity and the avoidance of undue effect on the other carrier’s
services, while Ireland argued that there was no over-capacity and that a reduction in
capacity was against the public interest. Given the respective positions of the parties, the
subsequent arbitral award was timely, in that it was delivered within two months. The
decision, which held that each airline should reduce its capacity with the least possible effect
on the other’s services, was based upon the concepts of passenger capacity and profitability
of airline services. The issue of ‘acceptable load factor’ was dealt with on the basis of
evidence of traffic potential. Thus, the decision didnot limitfuture capacity or its distribution,
but established platforms so that a balance could be achievedgradually.

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The outcome was, as Naveau asserts, extremely pragmatic. An issue of considerable
importance is the role of ICAO. To date the arbitrations conducted under the bilateral
agreements have mostly been on an ad hoc basis, which inevitably result in a lack of
legal certainty in terms of their non-binding effect on subsequent ad hoc arbitral
tribunals. While greater certainty would result if ICAO exercised its arbitration
function under the bilateral agreements it has been quite reluctant to embrace this role,
preferring to emphasize the political/diplomatic solution of disputes through
negotiation and its own brand of mediation. Not all commentators agree that the
approach of ICAO on this issue is the best one:

The best interests of international civil aviation are not served by the Council’s
generally negative attitude towards the arbitral functions assigned to the ICAO by
various multilateral and bilateral agreements. … The present practice, which puts a
premium on negotiated settlements that often leave the underlying legal issues
unresolved, is certainly far from satisfactory …Perhaps both ICAO and those who are
critical of ICAO over its reluctance to use arbitration as a dispute resolution
mechanism are right. Mediation, properly used, tends to structure a win-win outcome
around the parties’ willingness to compromise. The best arbitrations also achieve a
pragmatic outcome, as the 1981 Belgium/Ireland arbitration demonstrates. Most
significantly, as already noted, this arbitration involved but one arbitrator. Perhaps the
diplomatic window dressing that is the three member panel approach needs to be
dropped in favor of one person arbitration. Concurrently, the ideal of a uniform
approach is not evident in practice.

Conclusion:

In disputes between states we have noted a clear preference for political and
diplomatic means of settlement, for negotiated settlement without recourse to a neutral
third party. Nevertheless the ICAO Council possesses certain fact finding and dispute
resolution powers under Article 84 of the Chicago Convention. Further, ICAO’s own
rules of Procedure for Settlement of Differences, Article 14, permits it to exercise its
good offices to expedite the settlement of differences between states. Arbitration is
perhaps the most frequently used form of ADR in the context of aviation related
disputes between states and it is sanctioned under both Article 84 of the Chicago
Convention and under the bilateral air services agreements between states. However,
the requirement for three adjudicators to sit on the bench of arbitral tribunals is a
wasteful exercise where each state involved in the dispute makes its own appointment.
In effect, the decisive views then become those of the third, and only independent,
panel member. Under these circumstances it may be argued that the state- appointed
representatives are no longernecessary.

One of the little really successful arbitration was in the Irish/Belgium dispute in the
1970s where the states parties chose, by common agreement, a high ranking
Scandinavian civil aviation official resulting in resolution of the matter within weeks
and in both parties accepting the conclusions. One observer of this dispute argued that
‘in order to be accepted, arbitration must be quick, cheap and … the most important
thing is that both parties trust the Arbitrator.’ Under this view a single arbitrator would
provide an effective, less expensive and timely approach – all outcomes that are
acceptable to states. Further, the formal dispute resolution system for dispute
resolution of these big picture disagreements between states allows no recourse to
other additional or alternative dispute resolution techniques, such as mediation or early
case appraisal. ICAO itself needs to realise there is a need to develop this
underdeveloped part of the governing regime.

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