International Agreements and Organizations — Page 32, Lesson 51

Let’s start with the big picture. When a state becomes an ICAO Contracting State, it isn’t just signing a piece of paper — it’s agreeing to observe the International Standards that ICAO specifies. Those standards are the foundation from which the international rules and regulations governing civil aviation are drawn. So ICAO sets the baseline, and the member states commit to follow it. Now, here’s the key tension I want you to understand: national law versus international law. By accepting that contracted status, each state also accepts the responsibility for enforcing those rules and regulations within its own sovereign territory and airspace — and it does that through national law. So the international standards exist, but the enforcement happens at the national level, inside each state’s borders. Article 38 of the Chicago Convention is the mechanism that keeps this honest. It requires each Sovereign State to notify ICAO of any differences between its national regulations and the International Standards that were adopted. And it doesn’t stop there — the state must also publish those differences in its national Aeronautical Information Publication, which we call the AIP. So if a state deviates from the international standard, it has to say so, both to ICAO and publicly in its AIP. This creates a very specific legal situation. Within the territorial airspace of a state, national legislation and regulations take precedence over international rules. That’s a deliberate recognition — the state’s own law wins inside its own airspace. But the moment you’re over the high seas, that flips. Over the high seas, the international rules apply without exception. There’s no national sovereignty over the high seas, so the international rules are the only rules. Now, why do we have these international rules at all? The International Rules of the Air — which are promulgated as Annex 2 to the Chicago Convention — exist to standardize procedures for civil aviation, specifically for the safety of aircrew and passengers. That’s their purpose: safety. Beyond that, other regulations are established to facilitate the smooth and expeditious flow of air traffic, and they do this through the adoption of Standards and Recommended Practices — which we abbreviate as SARPs. So you have two distinct goals: safety, and keeping traffic flowing smoothly and efficiently. Let me also cover the right to prosecute offenders, because that’s the enforcement side of this. If an offence is committed in an aeroplane contrary to the international law, the state in whose airspace the offence occurs has the right to try and punish the offender. So it’s the airspace state that gets jurisdiction. But if the offence occurs over the high seas, that jurisdiction shifts — then it’s the state of registration of the aircraft that has the right to prosecute. So the rule is: airspace state over sovereign territory, state of registration over the high seas. One thing I want to make sure you hold onto: the distinction between where the rules apply and who enforces them. Within a state’s airspace, national law has precedence and the state enforces it. Over the high seas, international rules apply without exception, and prosecution falls to the state of registration. That’s the complete picture for this section.