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 1.2.7.1 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.

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