AIR LAW

Introduction to Aviation Law

The importance of modern aviation was recognized during World War II - regulation of postwar international civil aviation.
– Safeguarding post-war materials
– Cross-border rights
– Economic/commercial rights
– Legal conflicts among member states
– Conduct of aircraft accident investigation
Contracting nations adopted international regulations, standards, and procedures for:
– the use of communication systems and air navigation aids;
– airport characteristics;
– rules of the air and air traffic control;
– airworthiness of aircraft;
– licensing of operating and mechanical personnel;
– aeronautical maps and charts;
– log books and aircraft documentation
– measures to facilitate air navigation.
The resulting Chicago Convention of 1944:
– established the principle that every nation has complete and exclusive sovereignty over the airspace above its territory
– Every civil aircraft in international aviation must be registered, carry the nationality of the country of registration, and bear
appropriate identification markings.
– granted transit rights
– the International Civil Aviation Organization [ICAO
What is Aviation Law?
Aviation law is the branch of law that governs the legalities and business aspects of flight and air transport, such as:
a) air traffic rights,
b) aviation safety
c) Aviation security,
d) economic regulations of airlines,
e) Regulations for the design and operation of airports.
Purpose
To provide a framework that keeps the aviation industry:
a) safe,
b) fair,
c) Reliable, and
d) Efficient
The first attempt to set the air law was made around 1910, when German air balloons repeatedly trespassed over French territory.
a) Aviation law is considered a matter of international law due to the nature of air travel. However, the business aspects of airlines and
their regulation also fall under aviation law.
b) The International Civil Aviation Organization [ICAO] provides general rules and mediates international concerns to an extent
regarding aviation law.
c) The ICAO also regulates the procedures for air accident investigations in countries that are party to the Convention on International
Civil Aviation, or Chicago Convention.
Aviation law covers:
a) Airports and ground aids
b) Aircraft design and manufacturing
c) aircraft navigation and maintenance,
d) air traffic control and safety,
e) pilot and maintenance engineers licensing requirements.
f) Facilitation
 g) flight inspections,
h) Development of air transport standards,
i) prevention unlawful interference,
j) Facilitation of border-crossing protocols for international civil aviation.
k) Aircraft accident investigations
l) Human factors
m) Environmental aspects
Air law vs Space law
• Air law, the older of the 2, is the body of public and private law, both national and international, that regulates aeronautical activities
and other uses of airspace.
• Space law, on the other hand, regulates activities of states and private entities in outer space, primarily the use of satellites.
• The essential difference between air law and space law stems from the legal status of airspace and of outer space.
• Whereas airspace, except over the high seas and Antarctica, is under the sovereignty of subjacent states, outer space is governed by the
regime of freedom.
• The origin of space law can be traced to the launching on 4 October 1957 of Sputnik I, the first artificial Earth satellite. Since that time
the legal regulation of outer-space activities has been largely centered in the UN Committee on the Peaceful Uses of Outer Space.

SOURCES OF AIR LAW

Three levels:
a) International
b) National
c) Local

1.International Level
• jurisdiction over:
– persons,
– territory and
– airspace,
• law of treaties,
• settlement of international disputes,
• incidents of statehood,
• law of international organizations
Sources
a) International conventions
b) Treaties - means that agreements must be honoured and adhered to
c) Customary laws
d) Bilateral Agreements (e.g., Traffic Rights, Safety, Security)
e) multilateral groupings
f) Commercial/economic groupings
g) Political groupings
h) Civil aviation organizations
i) Law making groups
j) jurisprudence of courts interpreting all cases and controversies brought before them
k) Legal responses to aviation terrorism
l) ICAO Standards and Recommended Practices
m) Contracts (e.g., air carrier alliance agreements, airport agreements)
2. National Level
• Adoption of International laws
• Promulgation through parliament
While the ICAO helps govern international law, the majority of aviation law is handled at the state level:
– FAA - Federal Aviation Administration
– EASA - European Aviation Safety Association (EASA) in Europe.
– KCAA - Kenya
Responsibilities
– ensuring the safe design of aircraft, engines, and components,
– establishing navigational aids,
– maintaining aircraft and equipment,
– licensing pilots controllers, and aircraft maintenance technicians,
– certifying airports, and
– issuing standards for air traffic control.
– Accident/incident investigation
– Security of aircraft, passengers and airport facilities
3. Local level
• By-laws – County Assemblies
• Pressure groups
• Activists
Because of the essentially international character of aviation, a large part of air law is either international law or international uniform law (rules
of national law that have by agreement been made internationally uniform).
Insofar as international air law is concerned, it need hardly be mentioned that an international agreement or an amendment thereto is binding only
on states that are parties to it.

Sovereignty
• A basic principle of international air law is that every state has complete and exclusive sovereignty over the airspace above its territory,
including its territorial sea.
• The principle of airspace sovereignty was unequivocally affirmed in the Paris Convention on the Regulation of Aerial Navigation (1919) and
subsequently by various other multilateral treaties. The principle is restated in the Chicago Convention on International Civil
Aviation (1944).
• Airspace is now generally accepted as an appurtenance of the subjacent territory and shares the latter’s legal status.
• Thus, under the Geneva Convention on the High Seas (1958) the freedom of the high seas applies to aerial navigation as well as to maritime
navigation.
• Vertically, airspace ends where outer space begins.
• It follows from the principle of airspace sovereignty that every state is entitled to regulate the entry of foreign aircraft into its territory and
that persons within its territory are subject to its laws.

Treaty
• Treaties are written agreements that state willingly sign and ratify and as such are obliged to follow. Such agreements, which are also called
statutes or protocols, govern the mutual relations between states.
• Treaties are, however, only binding on those states that have signed and also ratified the particular treaty (The Vienna Convention of the Law
of Treaties of 1969, sets out the fundamental legal rules relating to treaties).
• The Vienna Convention defines a treaty, identifies who has the capacity to conclude a treaty, and outlines treaty interpretation, disputes, and
reservations.
Reservations
A unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.
Declarations
Are often made when a State expresses its consent to be bound by a specific treaty. The State uses the declaration to explain or clarify its
understanding of particular aspects of the treaty text.
Derogations
• A situation where a state party temporally suspend or limit their legal obligations in exceptional circumstances, e. g. during armed conflict or
national emergency, the freedom of assembly may be limited during times of armed conflict. However, some rights can never be derogated
from under any circumstances, notably the prohibition on torture, inhumane and degrading treatment.

Rights of Overflight and Traffic Rights

Scheduled Aircraft. No scheduled international air service may be operated over or into the territory of a contracting State, except with the
special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.” This provision is
the foundation for the negotiation of air transport agreements between nations, for without permission to fly across another’s territory, a
scheduled aircraft may not enter another’s airspace
Non-scheduled Aircraft. Aircraft engaged in non-scheduled flights enjoy the right to fly into or across the territory of another State, and to make
stops for non-traffic purposes (first and second freedom rights). However, the State flown over has the right to require the non-scheduled aircraft
to land, and to follow prescribed routes, or obtain special permission for such flights.
State Aircraft. State aircraft may not fly over or landn on the territory of another State “without authorization by special agreement or otherwise,
and in accordance with the terms thereof.”
Pilotless Aircraft. These aircraft may not fly over the territory of a contracting State “without special authorization and in accordance with the
terms of such authorization.” Such flights must be “controlled as to obviate danger to civil aircraft.”

THE FIVE FREEDOMS OF THE AIR/“ORDER IN THE AIR”

For scheduled air services, the privilege of operating commercial services through or into a foreign country was, at the time of the 1944 Chicago
conference, split into five so-called freedoms of the air.
Objectives
These agreements seek to:
• Fix the routes to be served,
• Fix the principles governing the capacity of the agreed services (frequency of the service multiplied by the carrying capacity of the
aircraft used), and
• Fix procedures for the approval of fares and tariffs by the respective governments.
The right to carry domestic traffic between points within a state is normally reserved to that state’s own airlines. A bilateral agreement signed at
Bermuda in 1946 set a pattern that has generally been followed.

THE FIVE FREEDOMS OF AVIATION & WHY THEY MATTER

Aviation is a uniquely regulated industry like few others. Regulated by states at the international, transnational, bilateral, and national levels,
every single flight that takes off is subject to international laws and regulations in some way
i) The first freedom allows a state’s aircraft (A) to fly over another state’s airspace (B) while the aircraft is on its way to another
destination (C).
ii) The second freedom allows state A’s aircraft to land in state B while on its way to state C for noncommercial purposes, such as
refueling or technical stops.
The first and second freedoms are known as non-commercial / non-traffic privileges (technical rights)
The first set of commercial rights freedoms, aptly called privileges, are the third and fourth freedoms which allow airlines to embark and
disembark passengers and cargo to, from, and within a given state.
The third freedom allows state A’s airline to carry passengers from state A to state B, while the fourth freedom allows the return from state B
back to state A.
iii) Third Freedom
• The freedom to carry traffic from a home country to another country [A] for purpose of commercial services.
• To carry freight and passengers from the home country to another country.
• The third freedom was the first commercial freedom.
iv) Fourth Freedom.
• The freedom to pick up traffic from another country [A] to a home country for purpose of commercial services.
 • Third and Fourth Freedoms are the basis for direct commercial services, providing the rights to load and unload passengers, mail and
freight in another country.
• To carry freight and passengers to the home country from another country.
The presence of the fourth ensures that an airline does not have to make the return journey with an empty plane.
v) Fifth Freedom
• The fifth freedom allows an airline to carry revenue traffic between foreign countries as a part of services connecting the airline's own
country. It is the right to carry passengers from one's own country to a second country and from that country to a third country [and so
on
• To carry freight and passengers between two countries by an airline of a third country on route with origin / destination in its
home country.
• Fifth Freedom rights were instrumental to the economic viability of long-haul flight until the early 1980s when advances in technology
and increases in passenger volume allowed the introduction of more non-stop services. It was not uncommon for carriers to schedule
multiple stops in foreign countries on the way to a direct flight's final destination, especially those connecting Europe with Africa,
South America and the Far East.

Sixth Freedom
• The right to carry passengers or cargo from a second country to a third country by stopping in one's own country.
• To carry freight and passengers between two countries by an airline of a third country on two routes connecting in its home
country
Seventh Freedom
• The freedom to base aircraft in a foreign country for use on international services, establishing a de facto foreign hub. Covers the right
to operate a passenger services between two countries [A and B] outside the home country.
• To carry freight and passengers between two countries by an airline of a third country on a route with no connection with its
home country.
Eighth Freedom or Cabotage
• The unofficial eighth freedom is the right to carry passengers or cargo between two or more points in one foreign country and is also
known as cabotage.
• To carry freight and passengers within a country by an airline of another country on a route with origin / destination in its
home country
Ninth Freedom
• The freedom to carry traffic between two domestic points in a foreign country. Also referred to as "full cabotage" or "open-
skies" privileges. It involves the right of a home country to move passengers within another country [A].
• To carry freight and passengers within a foreign country with no connection with the home country. Example: All European
airlines may use this right within the EU countries.

THE CIVIL AVIATION CONVENTIONS

Paris Convention of 1919

• The first international convention to address the political difficulties and intricacies involved in international aerial navigation. The
international use of aircraft brought up questions about air sovereignty. The argument was: either no state had a right to claim
sovereignty over the airspace overlying its territory, or every state had the right to do so. It was decided that each nation has absolute
sovereignty over the airspace overlying its territories and waters. The treaty came into force in 1922.
Chicago Convention 1944
• The Convention on International Civil Aviation (Chicago Convention 1944)
• Created the International Civil Aviation Organizatio
• Created the Freedoms of the Air
Rome Convention (1952)
• Dealt with damage caused by foreign aircraft to third parties on the surface
• Provided for the compulsory recognition and execution of foreign judgments
Hague Convention 1963
Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963)
• Convention for the Suppression of Unlawful Seizure of Aircraft
• Convention for the Unification of Certain Rules for International Carriage by Air
• Unlawful Interference and General Risks Convention
• Convention on the International Recognition of Aircraft

ICAO ANNEXES

Here is the list of International Civil Aviation organisation (ICAO) annexes

Annex 1-Personnel Licensing
Annex 2 -Rules of the Air
Annex 3 -Meteorological Service for International Air Navigation
Annex 4 -Aeronautical Charts
Annex 5 -Units of Measurement to Used in Air and Ground Operations
Annex 6-Operation of Aircraft
Annex 7-Aircraft Nationality and Registration Marks
Annex 8-Airworthiness of Aircraft
Annex 9-Facilitation
Annex 10-Aeronautical Telecommunications
Annex 11-Air Traffic Services
Annex 12-Search and Rescue
Annex 13-Aircraft Accident and Incident Investigation
Annex 14-Aerodromes
Annex 15-Aeronautical Information Services
Annex 16-Environmental Protection
Annex 17-Security: Safeguarding International Civil Aviation Against Acts of Unlawful Interference
Annex 18-The Safe Transport of Dangerous Goods by Air
Annex 19 Safety Management

Annex 1-personnel Licencing

• Air travel cannot do without pilots and other air and ground personnel.
• Their competence, skills and training will remain the essential guarantee for efficient and safe operations.
• Adequate personnel training and licensing instill confidence between States, leading to international recognition.
• The human being is the vital link in the chain of aircraft operations
• Proper training is necessary so as to minimize human error and provide able, skilful, proficient and competent workers
• Licensing is the act of authorizing defined activities which should otherwise be prohibited due to the potentially serious results of such
activities being performed improperly.
• ICAO ensures that international licensing standards are kept in line with current practices and probable future developments.
• flight crew members(pilots, flight engineers and flight navigators),
• air traffic controllers,
• aeronautical station operators,
• maintenance technicians
• flight dispatchers ,
• flight operations officers, and
• radio operators

ANNEX 2 - Rules Of The Air

 • Air travel must be safe and efficient;
• This requires a set of internationally agreed rules of the air:
- general rules,
- visual flight rules, and
- instrument flight rules as contained in Annex 2
• The Five Freedoms of The Air
• An aircraft must be flown in accordance with the general rules, visual flight rules (VFR) or the instrument flight rules (IFR).
• VFR- remain clear of clouds by at least 1 500 m horizontally and at least 300 m (1 000 ft) vertically and to maintain a forward visibility
of at least 8 km.
• Instrument flight rules must be complied with in weather conditions
Instrument Flight Rules
• To fly under IFR, an aircraft must be equipped with suitable instruments and navigation equipment appropriate to the route to be
flown.
• the aircraft must maintain precisely the route and altitude that have been assigned to it and keep air traffic control informed about its
position
• Regardless of the rules, the principle of see-and-avoid must apply.
• The aircraft must maintain precisely the route and altitude that have been assigned to it and keep air traffic control informed about its
position
• Regardless of the rules, the principle of see-and-avoid must apply.
Right-of-way rules
 When two aircraft are converging at approximately the same level, the aircraft on the right has the right of way
 except that aeroplanes must give way to airships, gliders and balloons, and to aircraft which are towing objects.
 An aircraft which is being overtaken has the right of way and the overtaking aircraft must remain clear by altering heading to the right.
 When two aircraft are approaching each other head on they must both alter heading to the right.
 All these rules, when complied with by all concerned, help make for safe and efficient flight.

ANNEX 6 -Operation of Aircraft

• aircraft engaged in international air transport must be as standardized as possible to ensure the highest levels of safety and efficiency.
• The very international nature of commercial aviation, and of general aviation to a lesser degree, requires pilots and operators to
conform to a wide variety of national rules and regulations.
Annex 6 provides criteria for :
- safe operating practices,
- efficiency and regularity of international air navigation by encouraging States to facilitate the passage over their territories of
commercial aircraft belonging to other countries that operate in conformity with these criteria.
• The advent of high performance aircraft designs necessitated new techniques, and they in turn created the need for international
regulations to provide for safety and efficiency.
• The introduction of high-speed, long- and short-range aircraft, for example, created problems associated with endurance at relatively
low altitudes, where fuel consumption becomes a major factor.
• The annex provides for:
- rules limiting the flight time and flight duty periods for flight crew members
- the operator to provide adequate rest periods so that fatigue occurring either on a flight, or successive flights over a period of time,
does not endanger the safety of a flight.
- operating limits of each particular type of aircraft
ANNEX 7- Aircraft Nationality and Registration Marks
How are aircraft classified and identified, and how can you tell aircraft nationality?
• introduced the definition of a "rotorcraft",
• Redefined the word "aircraft“
• sets out procedures for selection by ICAO Contracting States of nationality marks from the nationality symbols
• sets standards for the use of letters, numbers and other graphic symbols to be used in the nationality and registration marks, and spells
out where these characters will be located on different types of airborne vehicles, such as lighter-than-air aircraft and heavier-than-air
aircraft
 • Certificate of registration must be carried in aircraft at all times
ANNEX 8- Airworthiness of Aircraft
 an aircraft must be designed, constructed and operated in compliance with the appropriate airworthiness requirements of the State of
Registry of the aircraft.
 Consequently, the aircraft is issued with a Certificate of Airworthiness declaring that the aircraft is fit to fly.
 Requirements for detailed design and construction provide for a reasonable assurance that all aeroplane parts will function reliably and
effectively
 Aeroplane design features also provide for the safety, health and well being of occupants
 Due to events of hijacking and terrorist acts on board aircraft, special security features have been included in aircraft design to improve
the protection of the aircraft. These include special features in aircraft systems, identification of a least-risk bomb location, and
strengthening of the cockpit door, ceilings and floors of the cabin crew compartment
ANNEX 13- Aircraft Accident and Incident Investigation
• The causes of an aircraft accident or serious incident must be identified in order to prevent repeated occurrences.
• The identification of causal factors is best accomplished through a properly conducted
investigation. To emphasize this point, Annex 13 states that the objective of the investigation of an accident or incident is
prevention.
• Annex 13 provides the international requirements for the investigation of aircraft accidents and incidents.
• the Annex spells out which States may participate in an investigation, such as the States of Occurrence, Registry, Operator, Design and
Manufacture.
• Chapter 8 of Annex 13 deals with accident prevention measures
Annex 19 — Safety Management
Definitions
Safety. The state in which risks associated with aviation activities, related to, or in direct support of the operation of aircraft, are reduced and
controlled to an acceptable level.
Safety management system (SMS). A systematic approach to managing safety, including the necessary organizational structures,
accountabilities, policies and procedures.
Safety performance. A State or a service provider’s safety achievement as defined by its safety performance targets and safety performance
indicators. Safety performance indicator. A data-based parameter used for monitoring and assessing safety performance. Safety performance
target. The planned or intended objective for safety performance indicator(s) over a given period. Safety risk. The predicted probability and
severity of the consequences or outcomes of a hazard.
Serious injury. An injury which is sustained by a person in an accident and which:
a) requires hospitalization for more than 48 hours, commencing within seven days from the date the injury was received; or
b) results in a fracture of any bone (except simple fractures of fingers, toes or nose);
c) involves lacerations which cause severe haemorrhage, nerve, muscle or tendon damage; or
d) involves injury to any internal organ; or
e) involves second or third degree burns, or any burns affecting more than 5 per cent of the body surface; or
f) involves verified exposure to infectious substances or injurious radiation.
State of Design. The State having jurisdiction over the organization responsible for the type design.
State of Manufacture:
State of registry:
ICAO