© The Author(s) 2015Ruwantissa AbeyratneRegulation of Commercial Space TransportSpringerBriefs in Law10.1007/978-3-319-12925-9_4
4. ICAO for Commercial Space Travel?
Global Aviation Consultancies Inc., Cote Saint Luc, Québec, Canada
4.1 Background Activity
The Conference on the Regulation of Emerging Modes of Aerospace Transportation (REMAT), held on 24–25 May 2013 in Montreal, discussed among other issues the subject of ICAO for space, with special focus on commercial space transportation. REMAT recognized ICAO as having a structured framework of Standards and Recommended Practices (SARPs) on various areas of aviation such as air traffic management, personnel licensing, rules of the air and airport planning, with a view to determining whether these SARPs could be extended to encompass principles that could be applied to the regulation of commercial space transport. Organized by McGill’s Institute of Air and Space Law, the International Civil Aviation Organization, and the International Association for Advancement of Space Safety, in collaboration with the International Foundation for Aviation, Aerospace & Development, the Conference aimed at assessing the current situation and future plans for aerospace transportation; critically examining and identifying precisely the regulatory challenges to operation of aerospace vehicles; and suggesting viable policy and regulatory steps (mechanisms) that may be considered by States and other stakeholders to facilitate aerospace transportation, thus ensuring the safety of global aviation.
REMAT had some interesting presentations on the scientific issues of commercial space transportation on the Rocket Plane, Virgin Galactic and other aero-spacecraft as well as the conditions that would apply to space tourists during sub orbital flights. Interesting questions were raised; concerning such issues as what type of insurance regime would apply to commercial space travel and space tourists; whether insurers would insist on such travellers using outfits worn by astronauts; and whether space tourists would need intense training such as the training which astronauts undergo prior to space flight.
Although there was an impressive ICAO presence among the presenters, who generally discussed the fact that existing SARPs of the Annexes to the Convention on International Civil Aviation (Chicago Convention) may be stretched to apply to commercial space travel, no specifics were discussed. There was only one ICAO lawyer who was relegated to the final Panel of discussion and he was asked two mundane questions on aviation. The author expected some discussion on the modalities of transition of ICAO as a specialized agency of the United Nations on aviation towards becoming an agency for space travel as well, and asked the Conference the following questions: can we just simplistically say that this issue could be addressed just by extending ICAO’s “mandate” (pointing out that ICAO does not have a mandate but aims and objectives under the Chicago Convention which were purely on aviation)?; if not, how could this be done?; what about Article 37 of the Chicago Convention which exclusively dealt with SARPs on aviation? Are we just discussing ICAO’s role in ensuring the safety of aviation when it came to sub orbital flights or are we talking about ICAO as an Organization addressing near space and outer space issues? No answers came forth.
The above notwithstanding, REMAT came across as a proactive first step towards further discussion and if one were to take just one consensual point from the conference it was that there was much to be discussed among all key stakeholders before such an issue could be brought before the ICAO Council.
4.2 Amending the Chicago Convention
Assad Kotaite, a former President of the ICAO Council, in his Foreword to the Study which was referred to in the Preface has said that merely by changing ICAO’s “mandate” the regulation of commercial space transport could be taken over by ICAO. What Kotaite probably meant (although he did not explicitly say so) was that Article 44 of the Chicago Convention which spells out the aims and objectives of ICAO could have an Article 44 bis that added on to the list of Annexes to the Convention an Annex on commercial space transport. However, it is not as simple as that. Article 44 would have to be amended by including in ICAO’s aims and objectives one that would cover meeting the needs of the people of the world for safe, regular, economic and efficient commercial space transport. In addition, as discussed above, under safety of commercial space transport, and unless a new Convention for commercial space transport is adopted, almost the entirety of the Chicago Convention may have to be adapted by having alternate provisions for safety. Firstly, amending the Chicago Convention could prove to be a tedious process. Article 94 of the Chicago Convention, which addresses the issue of amendment of the Convention states:
Amendment of Convention
Any proposed amendment to this Convention must be approved by a two-thirds vote of the Assembly and shall then come into force in respect of States which have ratified such amendment when ratified by the number of contracting States specified by the Assembly. The number so specified shall not be less than two thirds of the total number of contracting States.
If in its opinion the amendment is of such a nature as to justify this course, the Assembly in its resolution recommending adoption may provide that any State which has not ratified within a specified period after the amendment has come into force shall thereupon cease to be a member of the Organization and a party to the Convention”.
As one can readily note, there are some key considerations in limine. Firstly, an amendment to the Convention must be approved by two thirds vote of the members present and voting at the Assembly. Thereafter it has to be ratified by a number of States as specified by the Assembly and such amendment will be applicable to those States that voted for it. The Assembly cannot specify for ratification any number less than two thirds of the membership of ICAO (which at the present time would be 127 States).1 Amendment to Article 50(a), signed at Montreal on 21 June 1961; Amendment to Article 48(a), signed at Rome on 15 September 1962; Amendment to Article 50(a), signed at New York on 12 March 1971; Amendment to Article 56, signed at Vienna on 7 July 1971; Amendment to Article 50(a), signed at Montreal on 16 October 1974; Amendment (final paragraph referring to the authentic Russian text), signed at Montreal on 30 September 1977; Amendment (Article 83 bis), signed at Montreal on 6 October 1980; Amendment (Article 3 bis), signed at Montreal on 10 May 1984; Amendment to Article 56, signed at Montreal on 6 October 1989; Amendment to Article 50(a), signed at Montreal on 26 October 1990; Amendment (final paragraph referring to the authentic Arabic text), signed at Montreal on 29 September 1995; Amendment (final paragraph referring to the authentic Chinese text), signed at Montreal on 1 October 1998. Of these only the last two amendments have not come into force. Would such ratification practically attain fruition? And, more ominously, the Assembly Resolution recommending adoption of an amendment could provide that any State that does not ratify within a specified time would cease to be a member of ICAO and a party to the Convention.
Would States jeopardize their membership of ICAO for issues of space regulation? Would they harken to the prospect of mixing aeronautics with space transport in the same provision of the Chicago Convention or an Annex thereto?
If space transportation regulations were to be introduced within the ICAO umbrella as suggested, in practicality, the initial work would fall upon the Legal Committee of the Council of ICAO. The ICAO Assembly, at its 7th Session (Brighton 16 June–6 July 1953) adopted Resolution A7-5 (Revised Constitution of the Legal Committee) which resolved that the Legal Committee shall be a permanent Committee of ICAO constituted by the Assembly and responsible to the Council except as otherwise specified. The duties of the Committee are to advise the Council on matters relating to the interpretation and amendment of the Chicago Convention referred to it by the Council; to study and make recommendations on such other matters relating to public international air law as may be referred to it by the Council or Assembly to study problems relating to private air law affecting international civil aviation as directed by the Council or Assembly of ICAO and to make recommendations on participation of non-Contracting States and other international Organizations at meetings of ICAO. As to how the Legal Committee—a body of experts on air law—would be constituted to cope with space transportation issues would be another matter for consideration.
ICAO has another fundamental problem. An aircraft has been explicitly defined.2 Although there is no accepted definition of a spacecraft, it could be taken to be a manned or unmanned vehicle designed to orbit the earth or travel to celestial objects for the purpose of research, exploration. The Study3 states that under the definition of “aircraft” an aerospace vehicle launched by a rocket would not be considered an aircraft on the ascent phase of its flight, but might well come within the definition during its descent phase as it glides towards its destination.4 There is also some confusion as to what a space object is which is governed by the principles of space law as none of the 5 Space Law Conventions mention such an object. On the other hand, there could be an “aerospace vehicle” which is a hybrid aerospace object that is capable of achieving lift and flying in airspace as well as in outer space. How would the Chicago Convention or any of its Annexes handle such a complex array of “objects”?
The Study makes a clear distinction:
But it is unclear whether a commercial aerospace vehicle constitutes a civil aircraft…During the ballistic portions of its flight, while not supported by the reactions of the air, a spacecraft would not fall under this peculiar definition. However, upon descent, after it has re-entered the earth’s atmosphere and as it is gliding on its return to Earth, it could be considered an aircraft in flight, and therefore subject to the Chicago Convention.5
This only makes confusion worse confounded. If an aerospace vehicle (or spacecraft) can only be identified as an aircraft in its descent phase when it is guiding towards its destination on the ground, would it be prudent to amend drastically the Chicago Convention and its Annexes as relevant to apply to all phases of a spacecraft? For instance, How would flight information regions (FIRs) which are governed by the principles contained in Annex 11 to the Chicago Convention on air traffic services be affected? Would they be relevant only at the descent phase of the spacecraft or would the entirety of Annex 11 be extended to cover communications regarding navigation in space? All aircraft fly in accordance with either instrument flight rules (IFR) or visual flight rules (VFR). 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. Would this practice be extended to outer space transportation?
Annex 3 to the Chicago Convention provides in Standard 2.1.1. that the objective of meteorological service for international air navigation shall be to contribute towards the safety, regularity and efficiency of international air navigation. This objective is achieved by supplying the following users: operators, flight crew members, air traffic services units, search and rescue services units, airport managements and others concerned with the conduct or development of international air navigation, with the meteorological information necessary for the performance of their respective functions.6 How would this Annex accommodate meteorological conditions in outer space?
Annex 2 to the Chicago Convention prescribes rules of the air. The Annex requires that an aircraft must be flown in accordance with the general rules and either the visual flight rules (VFR) or the instrument flight rules (IFR). Flight in accordance with visual flight rules is permitted if a flight crew is able to remain clear of clouds by a distance of 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. For flights in some portions of the airspace and at low altitudes, and for helicopters, the requirements are less stringent. An aircraft cannot be flown under VFR at night or above 6,100 m (20,000 ft) except by special permission. Balloons are classified as aircraft, but unmanned free balloons can be flown only under specified conditions detailed in the Annex. Would there be an extension to this Annex on rules of outer space? Or would there be a new Annex to the Chicago Convention on this subject?
The ICAO Council, in adopting Annex 2 in April 1948 and subsequently in November 1951 when Amendment 1 to the Annex was adopted, resolved that the Annex constitutes rules relating to the flight and manoeuvre of aircraft within the meaning of Article 12 of the Convention. Therefore, the Council explicitly recognized that the rules in the Annex applied to the manoeuvre and operation of aircraft without exception. Annex 2, in its Foreword, states that the Standards in the Annex, together with the Standards and Recommended Practices of Annex 11, govern the application of the Procedures for Air Navigation Services Rules of the Air and Air Traffic Services, and the Regional Supplementary Procedures. The Regional Supplementary Procedures are subsidiary procedures of regional applicability. It is clear that by this introduction, there is established a distinct disparity between Annex 2 and Annex 11 where the provisions of the former remain unquestionably mandatory, and the provisions of the latter remain subject to Article 38 of the Chicago Convention and capable of being deviated from. However, it is clear that the purpose of Annex 11 is to ensure that flying on international routes is carried out under uniform conditions designed to improve the safety and efficiency of air operation and, therefore, provisions relating to air traffic control services, flight information services, and alerting services of Annex 11 when linked to the provisions of Annex 2, have a coercive effect that may in certain circumstances, transcend the parameters set in Article 38 of the Convention. In this context, ICAO may wish to give careful consideration to the adaptability of both Annex 2 and 11 to fit into a regime of commercial air transport.
Another key issue in this context would be accident investigation. Article 26 of the Chicago Convention provides that, in the event of an accident to an aircraft of a contracting State occurring in the territory of another contracting State, and involving death or serious injury, or indicating serious technical defect in the aircraft or air navigation facilities, the State in which the accident occurs will institute an inquiry into the circumstances of the accident, in accordance, so far as its laws permit, with the procedure which may be recommended by ICAO. Article 26 goes on to say that the State in which the aircraft is registered shall be given the opportunity to appoint observers to be present at the inquiry and the State holding the inquiry shall communicate the report and findings in the matter to that State. Would this principle be extended to cover spacecraft accident investigation under ICAO or the Chicago Convention? These provisions will have to be considered against existing accident provisions in the space law regime, which will be discussed later.
Article 32 of the Chicago Convention provides that the pilot of every aircraft and the other members of the operating crew of every aircraft engaged in international navigation shall be provided with certificates of competency and licenses7 issued or rendered valid by the State in which the aircraft operates. The provision also states that each ICAO member State reserves the right to refuse to recognize, for the purpose of flight above its own territory, certificates of competency and licences granted to any of its nationals by another member State. Member States of ICAO, at the 21st Session of the ICAO Assembly in Resolution A21-21, which has been alluded to earlier, in Appendix A resolves that certificates of airworthiness and certificates of competency and licenses of the crew of an aircraft issued or rendered valid by the ICAO member State in which the aircraft is registered shall be recognized as valid by the other States for the purpose of flight over their territories, including landings and take offs subject to the provisions of Articles 33 and 32(b) of the Chicago Convention.
Article 33 provides that Certificates of airworthiness and certificates of competency and licenses issued or rendered valid by the contracting State in which the aircraft is registered, shall be recognized as valid by the other contracting States, provided that the requirements under which such certificates or licences were issued or rendered valid are equal to or above the minimum standards which may be established from time to time pursuant to the Convention. Article 32(b) provides, as mentioned earlier that each ICAO member State reserves the right to refuse to recognize, for the purpose of flight above its own territory, certificates of competency and licences granted to any of its nationals by another member State. How would corresponding astronauts’ licences be incorporated under ICAO or the Chicago regime?
One of the suggestions in the Study alluded to earlier is that:
…ICAO could promulgate a new Annex on “Space Standards”. There is precedent for this as well. Article 37 of the Chicago Convention vests in ICAO the authority to promulgate Standards and Recommended Practices as Annexes to the Convention.8
The fundamental flaw in this argument is that the precedent cited pertaining to Article 37 pertains purely to aviation and there could not be “space standards” in an Annex unless these standards relate to the decent phase of a spacecraft as the Study itself suggests. A Convention solely dedicated to international civil aviation cannot include “space standards” pertaining to navigation in outer space.
4.3 Adapting the Annexes to the Chicago Convention
The next issue to consider is, would one composite Annex, say, Annex 20 to the Convention cover all aspects of safety, economics and social needs of people relating to commercial space transport. Or, would there have to be separate Annexes? Let us take the latter scenario with a few examples.
Annex 1 contains Standards and Recommended Practices adopted by the International Civil Aviation Organization as the minimum standards for personnel licensing. The Annex is applicable to all applicants for and, on renewal, to all holders of the licences and ratings specified herein. The ICAO Council has decided that, in principle, amendments affecting existing licensing specifications are applicable to all applicants for, and holders of, licences but, in considering their application to existing holders of licences, the assessment, if necessary, by re-examination of the knowledge, experience and proficiency of individual licence holders is left to the discretion of Contracting States.
As long as air travel cannot do without pilots and other air and ground personnel, their competence, skills and training will remain the essential guarantee for efficient and safe operations. Adequate personnel training and licensing also instil confidence between States, leading to international recognition and acceptance of personnel qualifications and licences and greater trust in aviation on the part of the traveller. Standards and Recommended Practices for the licensing of flight crew members (pilots, flight engineers and flight navigators), air traffic controllers, aeronautical station operators, maintenance technicians and flight dispatchers, are provided by Annex 1 to the Chicago Convention.
Related training manuals provide guidance to States for the scope and depth of training curricula which will ensure that the confidence in safe air navigation, as intended by the Convention and Annex 1, is maintained. These training manuals also provide guidance for the training of other aviation personnel such as aerodrome emergency crews, flight operations officers, radio operators and individuals involved in other related disciplines. In the context of personnel licensing of spacecraft crew, provisions such as Standard 2.5 of the Annex 2 which states that no person whose function is critical to the safety of aviation (safety-sensitive personnel) shall undertake that function while under the influence of any psychoactive substance, by reason of which human performance is impaired, and no such person shall engage in any kind of problematic use of substances, will have to be adapted.. Furthermore, Standard 220.127.116.11 of Annex 1 on personnel licensing provides that holders of licences provided for in the Annex shall not exercise the privileges of their licences and related ratings while under the influence of any psychoactive substance which might render them unable to safely and properly exercise such privileges. This will also have to be adapted.
Then of course comes the issue of cabin attendants in the spacecraft. Would there be any? and if so, the current dilemma facing commercial air transport will haunt commercial space travel as well. There is no doubt that cabin crew form an integral part of commercial aviation, and they should also come under universal training methods and codes of conduct as do the pilots, mechanics, aeronautical engineers and other professionals who are involved with the successful operation of a commercial flight. There is a compelling need for the international aviation community to require a serious study relating to the feasibility of introducing a unified system of rules relating to the conduct of cabin crew, which could inter alia, include principles of protection of cabin crew and provide for compensation in case of injury. After all, they are the only ones who deal with the “human factor” of a flight, which could be most unpredictable at the best of times. In light of this lapse, would ICAO have to think about a separate Annex for both types of cabin crew? It must be mentioned that the lack of attention paid by the aviation community to the importance of the flight attendant’s role in a commercial flight has led to recurring instances of breakdown of communication between cabin crew and technical crew. Inevitably, this anomaly may pose serious problems in the area of air carrier liability.
Aircraft operations are addressed in Annex 6 to the Convention and is a vital regulatory aspect of safe aircraft operations. Prudent operation of aircraft is vital in avoiding accidents and incidents. Annex 6 addresses aeronautical aspects of the operations of aircraft. The essence of Annex 6, simply put, is that the operation of aircraft engaged in international air transport must be as standardized as possible to ensure the highest levels of safety and efficiency. Incontrovertibly, this would form a key focus in commercial space transport. In all phases of aircraft operations, minimum standards are the most acceptable compromise as they make commercial and general aviation viable without prejudicing safety. The Standards accepted by all Contracting States cover such areas as aircraft operations, performance, communications and navigation equipment, maintenance, flight documents, responsibilities of flight personnel and the security of the aircraft. The advent of the turbine engine and associated high performance aircraft designs necessitated a new approach to civil aircraft operation. Aircraft performance criteria, flight instruments, navigation equipment and many other operational aspects required new techniques, and they in turn created the need for international regulations to provide for safety and efficiency.
Annex 12 to the Chicago Convention requires Contracting States to coordinate their search and rescue (SAR) organizations with those of neighbouring Contracting States9 with a recommendation that such States should, whenever necessary, coordinate their SAR operations with those of neighbouring States10 and develop common SAR procedures to facilitate coordination of SAR operations with those of neighbouring States.11 These provisions collectively call upon all Contracting States to bond together in coordinating both their SAR organizations and operations. In the air transport field, the dilemma facing many States extending both to airports and airlines, relates to the lack of rapid response, adequate equipment and well-trained crews, all of which are critical to passenger survival in the event of an aircraft disaster. Would these principles be adapted to cover spaceports? As a later discussion will address, there are corresponding provisions in the space law regime as well, regarding SAR. Although most States are particularly mindful of these compelling needs, they are by no means confined to the a particular region. An example of this crisis can be cited with the 1980 incident of a Saudi Arabian Airlines L-1011 catching fire shortly after leaving Riyadh Airport. Although the pilot turned back for an emergency landing and made a perfect touchdown, nearly 30 min passed before firemen managed to go in, by which time all passengers and crew had perished. This could have been a survivable accident.12 To the contrary, a hijacking incident involving a Boeing 767 aircraft on the shores of Comoros, in November 1996, when the aircraft crashed due to lack of fuel, showed how spontaneous reaction from even non-trained professionals at rescue efforts could help. In this instance, the quick response of tourists at the scene ensured that 51 of the 175 passengers on board were saved.13
Another example would be accident investigation in space flight. Annex 13 to the Chicago Convention covers accident investigations regarding aircraft. The Annex provides the international requirements for the investigation of aircraft accidents and incidents. It has been written in a way that can be understood by all participants in an investigation. As such, it serves as a reference document for people around the world who may be called on, often without any lead time, to deal with the many aspects involved in the investigation of an aircraft accident or serious incident. As an example, the Annex spells out which States may participate in an investigation, such as the States of Occurrence, Registry, Operator, Design and Manufacture. It also defines the rights and responsibilities of such States.
Fatigue risk management and its regulation would form an integral part of safety in commercial air transport. Its adaptability from corresponding regulatory standards in the air transport field would be a key consideration. Appendix 8 to Annex 6 Part 1, gives detailed requirements that the operator is expected to comply with. At the outset, the Appendix requires the operator to define its FRMS policy, with all elements of the FRMS clearly identified.14 The next provision—para 1.1.2—provides that the operator’s FRMS policy require that the scope of the FRMS operations be clearly defined in the Operations Manual. Paragraph 1.1.3. prescribes various elements to be included in the policy where the policy should: reflect the shared responsibility of management, flight and cabin crews, and other involved personnel; clearly state the safety objectives of the FRMS; be signed by the accountable executive of the organization; be communicated, with visible endorsement, to all the relevant areas and levels of the organization; declare management commitment to effective safety reporting; declare management commitment to the provision of adequate resources for the FRMS; declare management commitment to continuous improvement of the FRMS; require that clear lines of accountability for management, flight and cabin crews, and all other involved personnel are identified; and require periodic reviews to ensure it remains relevant and appropriate.
The Appendix also requires an operator to develop and keep current FRMS documentation that describes and records: FRMS policy and objectives; FRMS processes and procedures; accountabilities, responsibilities and authorities for these processes and procedures; mechanisms for ongoing involvement of management, flight and cabin crew members, and all other involved personnel; FRMS training programs, training requirements and attendance records; scheduled and actual flight times, duty periods and rest periods with significant deviations and reasons for deviations noted; and FRMS outputs including findings from collected data, recommendations, and actions taken.
Space crew integrity would be another issue for consideration. Annex 6 (Operation of Aircraft) to the Chicago Convention provides that:
The pilot-in-command shall be responsible for the operation and safety of the aeroplane and for the safety of all persons on board, during flight time.15
This presumption of responsibility has influenced some States which have signed or ratified the Convention and is reflected clearly in their air navigation laws.16 These laws have been have been observed to list requirements which any pilot with a sense of good airmanship would naturally comply with. Failure to comply with such regulations has been clearly interpreted to be bad airmanship which renders the pilot liable for prosecution on a criminal charge.17 In any event, the fundamental postulate which imposes prima facie responsibility on the pilot has been accepted as a general principle of liability of the pilot which sets the base for determining his legal status and responsibility.18
The legal responsibility placed on the commander of the aircraft is therefore inextricably linked with the expectation of good airmanship. Airmanship has been regarded as an indefinable quality and has been used to describe the intuitive faculty of the pilot where he concerns himself with what is right or wrong in the operation of an aircraft which is acquired by sustained experience in flying.19 Needless to say, a pre-existing medical condition such as depression could adversely affect the judgment of a pilot and preclude him from exercising good airmanship.
On to the subject of another important consideration in commercial space transport—spaceports. The subject of aerodromes is addressed in Annex 14 to the Chicago Convention. A distinction of Annex 14 is the broad range of subjects it contains. It extends from the planning of airports and heliports to such details as switch-over times for secondary power supply; from civil engineering to illumination engineering; from provision of sophisticated rescue and fire fighting equipment to simple requirements for keeping airports clear of birds. The impact of these numerous subjects on the Annex is compounded by the rapidly changing industry which airports must support. New aircraft models, increased aircraft operations, operations in lower visibilities and technological advances in airport equipment combine to make Annex 14 one of the most rapidly changing Annexes.
In addition to the obligation of the State to provide certain services as enumerated in Article 28 of the Chicago Convention, responsibility of the State would also extend to the provision of accurate air traffic control services at the aerodrome. States have to be mindful of the fact that their overall responsibility under the Chicago Convention in providing air navigation services extends to the air traffic controller, whose service is of a unique nature. The special feature in the provision of air traffic control is brought to bear by the nature of the service provided, be it in the relaying of information on meteorology or on traffic. Globally, air traffic control services offer information relayed by people by means of radio communication involving extremely short time periods and using a standard set of terminology in the English language, even in regions of the world where English is not the first language.20
The provision of meteorological information to airports and aircraft about to land or take off is also part of State responsibility. Annex 3 to the Chicago Convention provides in Standard 2.1.1. that the objective of meteorological service for international air navigation shall be to contribute towards the safety, regularity and efficiency of international air navigation. This objective shall be achieved by supplying the following users: operators, flight crew members, air traffic services units, search and rescue services units, airport managements and others concerned with the conduct or development of international air navigation, with the meteorological information necessary for the performance of their respective functions.21
State responsibility for the provision of meteorological information is provided for in Standard 2.1.4. where each Contracting State is required to ensure that the designated meteorological authority complies with the requirements of the World Meteorological Organization in respect of qualifications and training of meteorological personnel providing service for international air navigation.22
It is also provided in the Annex that close liaison shall be maintained between those concerned with the supply and those concerned with the use of meteorological information on matters which affect the provision of meteorological service for international air navigation.23 Furthermore, States have responsibility establish one or more aerodrome and/or other meteorological offices which shall be adequate for the provision of the meteorological service required to satisfy the needs of international air navigation.24
It is incontrovertible that the responsibility of the State is not extinguished merely because an airport is subject to private ownership or private management control. In international air transport, the mere fact that the State has to provide airport services under Article 28 of the Chicago Convention and indeed designate airports within its territory for landing purposes as per Articles 10 and 68 thereof imposes legal responsibility upon the State to be accountable at public international law for any liability incurred as a result of action on the part of airports within its territory.
Irrespective of the responsibility of a State with regard to airports within its territories, which is founded both at customary international law and at private law for liability incurred by airports, a privately run airport may incur tortuous liability on a private basis, as the occupier of the premises. In the instance of a privately managed airport where the entity charged with managing airport services is located within the airport premises, such an entity would be considered as a legal occupier for purposes of liability.
It is well known that both at present, and in the future, the carriage of cargo and equipment on board spacecraft is a regular activity. Annex 18 (The Safe Transport of Dangerous Goods by Air) to the Chicago Convention specifies the broad Standards and Recommended Practices to be followed to enable dangerous goods to be carried safely. The Annex contains fairly stable material requiring only infrequent amendment using the normal Annex amendment process. The Annex also makes binding upon Contracting States the provisions of the Technical Instructions, which contain the very detailed and numerous instructions necessary for the correct handling of dangerous cargo. These require frequent updating as developments occur in the chemical, manufacturing and packaging industries, and a special procedure has been established by the Council to allow the Technical Instructions to be revised and reissued regularly to keep up with new products and advances in technology.
The ICAO requirements for dangerous goods have been largely developed by a panel of experts which was established in 1976. This panel continues to meet and recommends the necessary revisions to the Technical Instructions. As far as possible the Technical Instructions are kept aligned with the recommendations of the United Nations Committee of Experts on the Transport of Dangerous Goods and with the regulations of the International Atomic Energy Agency. The use of these common bases by all forms of transport allows cargo to be transferred safely and smoothly between air, sea, rail and road modes.
The ICAO requirements for the safe handling of dangerous goods firstly identify a limited list of those substances which are unsafe to carry in any circumstances and then show how other potentially dangerous articles or substances can be transported safely. The nine hazard classes are those determined by the United Nations Committee of Experts and are used for all modes of transport.
Class 1 includes explosives of all kinds, such as sporting ammunition, fireworks and signal flares. Class 2 comprises compressed or liquefied gases which may also be toxic or flammable; examples are cylinders of oxygen and refrigerated liquid nitrogen. Class 3 substances are flammable liquids including gasoline, lacquers, paint thinners, etc. Class 4 covers flammable solids, spontaneously combustible materials and materials which, when in contact with water, exit flammable gases (examples are some powdered metals, cellulose type film and charcoal).
Class 5 covers oxidizing material, including bromates, chlorates or nitrates; this class also covers organic peroxides which are both oxygen carriers and very combustible. Poisonous or toxic substances, such as pesticides, mercury compounds, etc., comprise Class 6, together with infectious substances which must sometimes be shipped for diagnostic or preventative purposes. Radioactive materials are in Class 7; these are mainly radioactive isotopes needed for medical or research purposes but are sometimes contained in manufactured articles such as heart pacemakers or smoke detectors. Corrosive substances which may be dangerous to human tissue or which pose a hazard to the structure of an aircraft are dealt with in Class 8 (for example, caustic soda, battery fluid, paint remover). Finally, Class 9 is a miscellaneous category for other materials which are potentially hazardous in air transport, such as magnetized materials which could affect the aircraft’s navigational systems.
The security of cargo carried would also be a critical consideration in commercial space transportation and ICAO material could be considered relevant in formulating guidelines. In this regard Annex 17 contains extracts from Annex 18 which require each Contracting State to take necessary measures to achieve compliance with the detailed provisions contained in the Technical Instructions for the Safe Transport of Dangerous Goods by Air (Doc 9284), which are approved and issued periodically in accordance with procedure established by the ICAO Council. The requirement also covers compliance with any amendment to the Technical Instructions.25
Annex 17 to the Chicago Convention also contains some general provisions that may apply to the illegal carriage by air of infectious pathogens. Standard 5.1.2 devolves responsibility upon Contracting States to ensure that, when reliable information exists that an aircraft may be subject to an act of unlawful interference, that the aircraft is searched for illegal weapons, explosives and other dangerous devices. The main preventive objective contained in Standard 4.1 which ensures that States establish measures to prevent weapons, explosives or any other dangerous devices articles or substances which may be used to commit an act of unlawful interference and which are not authorized, from being carried on board.
Annex 18—on the safe transport of dangerous goods by air—applies to all international operations of civil aircraft and forbids, in Standard 4.1, the transport of dangerous goods by air except as established in the Annex and detailed specifications and procedures provided in the Technical Instructions. he Annex was developed by the Air Navigation Commission of the Organization in response to a need expressed by States for an internationally agreed set of provisions governing the safe transport of dangerous goods by air. The Annex draws the attention of the States to the need to adhere to Technical Instructions for the Safe Transport of Dangerous Goods by Air26 developed by ICAO, according to which packaging used for the transportation of dangerous goods by air shall be of good quality and shall be constructed and securely closed so as to prevent leakage27 and labelled with the appropriate labels.28
Annex 18 clearly identifies in Chapter 8 requirements that the carrier has to comply with when accepting dangerous goods for transport. According to these requirements the operator has to ensure that dangerous goods are accompanied by a completed dangerous goods transport document, except when the Technical Instructions indicate that such a document is not required.29 The carrier is also required not to accept dangerous goods until the package, over pack or freight container containing the dangerous goods has been inspected in accordance with acceptance procedures contained in the Technical Instructions.30
More specifically, the Annex has specific provisions concerning acceptance of radioactive materials, according to which there is a requirement presumably to be complied with by both the customs authorities and the carrier that packages and over packs containing dangerous goods and freight containers containing radioactive materials shall not be loaded into a unit load device or an aircraft for carriage before they have been inspected for evidence of leakage or damage31 It goes on to say that a unit load device shall not be loaded aboard an aircraft unless the device has been inspected and found free from any evidence of leakage from, or damage to, any dangerous goods contained therein.32
The Instructions are a critical contribution of ICAO to the subject of dangerous goods and safety in air transport. The provisions contained therein prescribe the detailed requirements applicable to the international civil transport of dangerous goods by air.33 The overarching principle of the Instructions is that any substance which, as presented for transport, is liable to explode, dangerously react, produce a flame or dangerous emission of heat or toxic, corrosive or flammable gases or vapours under conditions normally encountered in transport must not be carried in aircraft under any circumstances.34
One of the key issues for deliberation by the ICAO Council in the context of commercial space transport would be spaceports and surrounding noise. The balancing of airport development and ecological considerations i.e. city planning, noise pollution avoidance, is very much a part of ICAO’s regulatory role in issues related to the effects of international civil aviation on the environment. The ICAO Airport Planning Manual 35 ensures a balance between airport development and ecological considerations and includes findings of ICAO on aviation and the environment.
In its findings, ICAO records that studies of air quality at certain large airports and nearby areas reflect the fact that automobiles, airport ground vehicles and other urban pollution sources account for most of the atmospheric pollution36 and that airports may destroy the natural habitat and feeding grounds of wild life and may eradicate or deplete certain flora important to the ecological balance of the area.37 The Manual also considers the necessity to avoid contamination of rivers and streams by airport waste disposal and drainage systems,38 the avoidance of noise caused by aircraft to human habitation39 and highway planning.40 Finally, the document calls for a detailed study of the impact of airport development on the environment in the form of an environmental impact statement.41
In terms of noise, ICAO has been conscious of noise levels of sub sonic and supersonic aircraft in the vicinity of airports—a debate that might be renewed in the context of spaceports. At the 28th Assembly Sessions held in October 1990, the ICAO Assembly observed that while certification standards for subsonic jet aircraft noise levels are specified in Volume 1, Chapter 2 and Chapter 3 of Annex 16 and that environmental problems due to aircraft noise continued to exist in the neighbourhood of many international airports, some States were consequently considering restrictions on the operations of aircraft which exceed the noise levels in Volume I, Chapter 3 of Annex 16. The Assembly also recognized that the noise standards in Annex 16 were not intended to introduce operating restrictions on aircraft and that operating restrictions on existing aircraft would increase the costs of airlines and would impose a heavy economic burden, particularly on those airlines which do not have the financial resources to re-equip their fleets. Therefore, considering that resolution of problems due to aircraft noise must be based on the mutual recognition of the difficulties encountered by States and a balance among their different concerns, the Assembly, by Resolution A 28-3, urged States not to introduce any new operating restrictions on aircraft which exceed the noise levels in Volume I, Chapter 3 of Annex 16 before considering certain key issues.
The Assembly, while urging States, if and when any new noise certification standards are introduced which are more stringent than those in Volume I, Chapter 3 of Annex 16, not to impose any operating restrictions on Chapter 3 compliant aircraft, urged the Council to promote and States to develop an integrated approach to the problem of aircraft noise, including land-use planning procedures around international airports, so that any residential, industrial or other land-use that might be adversely affected by aircraft noise is minimal. The Assembly further urged States to assist aircraft operators in their efforts to accelerate fleet modernization and thereby prevent obstacles and permit all States to have access to lease or purchase aircraft compliant with Chapter 3, including the provision of multilateral technical assistance where appropriate.
With regard to emissions of spacecraft, this might be a consideration for the future in terms of regulation. One commentator opines:
Although the impacts are far fewer than those caused by the aviation industry, each object sent to space has an impact on Earth’s air quality and atmosphere. Launch activities and the propellants released can lead to environmental degradation. However, launching activities and rocket emissions generally are not included in environmental assessments; and new rocket propulsion systems, such as hybrid propellants and hypersonic propulsion, are being developed and promoted without due regard to their possible environmental impacts. The reason is that the contribution of space activities in atmospheric pollutions at the current rate does not alarm environmentalists so that they would take serious action.42
ICAO would be well advised to remand the issue of spacecraft emissions to its panel of experts in the Council’s Committee on Aviation Environmental Protection (CAEP) when the need arises for a technical assessment.
4.3.5 Responsibility of the Launching State for Private Acts of Individuals in Outer Space
One of the subjects that would be pertinent to the debate in expanding the scope of ICAO to commercial activities in outer space is the responsibility of the launching State (the State responsible for launching its spacecraft into outer space) for private acts of Individuals. Here, prevailing current international law principles would be relevant and persuasive. The State concerned will have to demonstrate that either it did not tolerate the offence or that it ensured the punishment of the offender. One view is that proof of such breach would lie in the causal connection between the private offender and the State. In this context, the act or omission on the part of a State is a critical determinant particularly if there is no specific intent. Generally, it is not the intent of the offender that is the determinant but the failure of a State to perform its legal duty in either preventing the offence (if such was within the purview of the State) or in taking necessary action with regard to punitive action or redress.
Finally, there are a few principles that have to be taken into account when determining State responsibility for private acts of individuals. Firstly, there has to be either intent on the part of the State towards complicit or negligence reflected by act or omission. Secondly, where condonation is concerned, there has to be evidence of inaction on the part of the State in prosecuting the offender. Thirdly, since the State as an abstract entity cannot perform an act in itself, the imputability or attribution of State responsibility for acts of its agents has to be established through a causal nexus that points the finger at the State as being responsible. For example, The International Law Commission, in Article 4 of its Articles of State Responsibility states that the conduct of any State organ which exercises judicial, legislative or executive functions could be considered an act of State and as such the acts of such organ or instrumentality can be construed as being imputable to the State. This principle was endorsed in 1999 by the ICJ which said that according to well established principles of international law, the conduct of any organ of a state must be regarded as an act of State.
The idea that States have a responsibility to ensure that victims of crime and other acts are compensated is not confined to Europe. The US Department of Justice has long had an Office for Victims of Crime [OVC] which oversees the schemes in individual States and in collaboration with the State Department, has compiled and updated a Directory of schemes in 35 countries principally for the information of US citizens who travel or reside overseas.
The law of State responsibility for private acts of individuals has evolved through the years, from being a straightforward determination of liability of the State and its agents to a rapidly widening gap between the State and non State parties. In today’s world private entities and persons could wield power similar to that of a State, bringing to bear the compelling significance and modern relevance of the agency nexus between the State and such parties. This must indeed make States more aware of their own susceptibility.
The fundamental issue in the context of State responsibility for the purposes of this article is to consider whether a State should be considered responsible for its own failure or non-feasance to prevent a private act or whether the conduct of the State itself can be impugned by identifying a nexus between the perpetrator’s conduct and the State. One view is that an agency paradigm, which may in some circumstances impute to a state reprehensibility on the ground that a principal-agent relationship between the State and the perpetrator existed, can obfuscate the issue and preclude one from conducting a meaningful legal study of the State’s conduct.43
18.104.22.168 The Theory of Complicity
At the core of the principal-agent dilemma is the theory of complicity, which attributes liability to a State that was complicit in a private act. Hugo Grotius (1583–1645), founder of the modern natural law theory, first formulated this theory based on State responsibility that was not absolute. Grotius’ theory was that although a State did not have absolute responsibility for a private offence, it could be considered complicit through the notion of patienta or receptus. 44 While the concept of patienta refers to a State’s inability to prevent a wrongdoing, receptus pertains to the refusal to punish the offender.
The 18th Century philosopher Emerich de Vattel was of similar view as Grotius, holding that responsibility could only be attributed to the State if a sovereign refuses to repair the evil done by its subjects or punish an offender or deliver him to justice whether by subjecting him to local justice or by extraditing him.45 This view was to be followed and extended by the British jurist Blackstone a few years later who went on to say that a sovereign who failed to punish an offender could be considered as abetting the offence or of being an accomplice.46
A different view was put forward in an instance of adjudication involving a seminal instance where the Theory of Complicity and the responsibility of states for private acts of violence was tested in 1925. The case47 involved the Mexico-United States General Claims Commission which considered the claim of the United States on behalf of the family of a United States national who was killed in a Mexican mining company where the deceased was working. The United States argued that the Mexican authorities had failed to exercise due care and diligence in apprehending and prosecuting the offender. The decision handed down by the Commission distinguished between complicity and the responsibility to punish and the Commission was of the view that Mexico could not be considered an accomplice in this case.
The Complicity Theory, particularly from a Vattellian and Blackstonian point of view is merely assumptive unless put to the test through a judicial process of extradition. In this Context it becomes relevant to address the issue through a discussion of the remedy.
22.214.171.124 The Condonation Theory
The emergence of the Condonation Theory was almost concurrent with the Jane case48 decided in 1925 which emerged through the opinions of scholars who belonged to a school of thought that believed that States became responsible for private acts of violence not through complicity as such but more so because their refusal or failure to bring offenders to justice was tantamount to ratification of the acts in question or their condonation.49 The theory was based on the fact that it is not illogical or arbitrary to suggest that a State must be held liable for its failure to take appropriate steps to punish persons who cause injury or harm to others for the reason that such States can be considered guilty of condoning the criminal acts and therefore become responsible for them.50 Another reason attributed by scholars in support of the theory is that during that time, arbitral tribunals were ordering States to award pecuniary damages to claimants harmed by private offenders, on the basis that the States were being considered responsible for the offences.51
The responsibility of governments in acting against offences committed by private individuals may sometimes involve condonation or ineptitude in taking effective action against terrorist acts, in particular with regard to the financing of terrorist acts. The United Nations General Assembly, on 9 December 1999, adopted the International Convention for the Suppression of the Financing of Terrorism,52 aimed at enhancing international co-operation among States in devising and adopting effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators.
The Convention, in its Article 2 recognizes that any person who by any means directly or indirectly, unlawfully or wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out any act which constitutes an offence under certain named treaties, commits an offence. One of the treaties cited by the Convention is the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997.53
The Convention for the Suppression of the Financing of Terrorism also provides that, over and above the acts mentioned, providing or collecting funds toward any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in the situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act, would be deemed an offence under the Convention.