Abstract
Annex 9 (Facilitation) to the Chicago Convention defines an international airport as “Any airport designated by the Contracting State in whose territory it is situated as an airport of entry and departure for international air traffic, where the formalities incident to customs, immigration, public health, animal and plant quarantine and similar procedures are carried out”. Annex 15 to the Chicago Convention has a similar definition. The main functions of an airport are activities concerned with: administration and finance; operation of airport facilities; engineering, construction works and maintenance; marketing and public relations; ground handling; air traffic operations; security, immigration, health and customs.
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- 1.
Convention on International Civil Aviation signed at Chicago on 7 December 1944. See ICAO Doc 7300/8: 2006. See also Abeyratne (2012).
- 2.
In June 2013, Edward Snowden, a former technical contractor to the National Security Agency (NSA) and the Central Intelligence Agency (CIA) leaked to the media (The Washington Post and The Guardian newspaper) details of top secret American and British mass surveillance programmes. The leaked material included a variety of classified intelligence programmes containing inter alia, intercepted telephone metadata and internet surveillance programmes. This act constituted a breach of United States law, making Snowden a felon.
- 3.
The film The Terminal, directed by Steven Spielberg and starring Tom Hanks, is partly based on the real-life story.
- 4.
Annex 9, Chapter 3 Section E, Standard 3.38.1.
- 5.
Id. Standard 3.39.
- 6.
859 F Supp. 2d. 353 (E.D.N.Y).
- 7.
From December 26th to 27th, 2010, during the height of the holiday travel season, the New York metropolitan area was—somewhat unexpectedly—blanketed with over a foot of snow. John F. Kennedy International Airport (JFK) was closed to air traffic for the worst of the storm. When it reopened, there were continuing problems. Passengers on arriving flights were forced to endure substantial waits after landing before they were able to disembark. Difficulties appear to have been particularly severe at terminals serving international flights.
- 8.
Convention for the Unification of Certain Rules for International carriage by Air, 1999. The Convention entered into force on 4 November 2003. It has been ratified by 105 State Parties.
- 9.
Quoting Reed v. Wiser, 555 F.2d. at 1089–1093.
- 10.
Havas v. Victory Paper Stock Co., 49 N.Y.2d. 381 (1980).
- 11.
Eiseman v. State of New York, 70 NY.2d. 175 (1987).
- 12.
Supra note 6 at 371.
- 13.
International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 at 673.
- 14.
Id. 678.
- 15.
Id. at 581.
- 16.
[1966] AC 552, [1966] 1 All ER 582, HL.
- 17.
In Fisher v. CHT Ltd. (No 2) [1966] 1 All ER 88, CA, the owners of a club and the defendants who ran a restaurant in the club under licence from the club were both held to be occupiers. In AMF International Ltd. v. Magnet Bowling Ltd. [1968] 2 All ER789, a contractor (as well as the owner) was an occupier of the whole building although part of the building was separated by a screen beyond which he went only to attend to heating and lighting. It is doubtful whether someone who has granted a right of way occupies that right of way: See Holden v. White [1982] QB 679, [1982] 2 All ER 328, CA. A highway authority which owns the land but has not adopted the highway is not an occupier of the highway. See Holmes v. Norfolk County Council (1981) 131 NLJ 401. A highway authority does not occupy a footpath on land owned by another although it has a statutory obligation to maintain it. See Whiting v. Hillingdon London Borough Council (1970) 68 LGR 437.
- 18.
Humphreys v. Dreamland (Margate) Ltd. [1930] All ER Rep 327, HL.
- 19.
Hartwell v. Grayson Rollo and Clover Docks Ltd. [1947] KB 901, CA. However, a contractor merely painting a house is not an occupier. See Page v. Read (1984) 134 NLJ 723.
- 20.
Hawkins v. Coulsdon and Purley UDC [1954] 1 QB 319, [1954] 1 All ER 97, CA.
- 21.
Greene v. Chelsea Borough Council [1954] 2 QB 127, [1954] 2 All ER 318, CA. See also Harris v. Birkenhead Corporation [1976] 1 All ER 341, CA where a local authority, having acquired a house by compulsory purchase, occupies it even before its staff enter it.
- 22.
Havas v. Victory Paper Stock Co., 49 N.Y.2d 381, 426 N.Y.S.2d 233, 402 N.E.2d 1136, 1138 (1980).
- 23.
Supra note 6 at 371.
- 24.
Doc 9082/6 Id. paragraph 14 vii).
- 25.
Airport Economics Manual, First Edition—1991, Doc 9562, Chapter 6, para 6.3 at p. 50.
- 26.
Id. paragraph 4.60 at p. 40. It should also be noted that certain concession type facilities are established at an airport to provide services considered necessary for passengers, visitors and/or persons working at the airport. Such facilities may include cafeterias, post offices and tourist information counters. See Airport Economics Manual, note 37 in Chap. 2, at paragraph 6.11.
- 27.
Doganis (1992) at 119.
- 28.
It is noteworthy that, in response to a request received from the International Air Transport Association (IATA), the Secretariat of ICAO (ICAO) has included “tsunami” in the draft amendment to Annex 3 to the Convention on International Civil Aviation which addresses meteorological services, as a phenomenon which should prompt the issuance of an aerodrome warning. It may be expected that within the global warning system for tsunami being established under the Intergovernmental Oceanographic Commission of UNESCO (IOC), the meteorological authorities will receive tsunami warnings in a timely manner and that they will be in a position to implement the proposed amendment, as far as aerodrome warnings are concerned, in time for its applicability date. See AN-WP/8086, Preliminary Review of a Proposed Amendment to Annex 3 and Consequential Amendment to the PANS-ABC.
- 29.
Standard 9.1.1. Annex 14 to the Convention on International Civil Aviation (Aerodromes), Fourth Edition, July 2004, at pp. 9–1.
- 30.
- 31.
Frank Carlson (1995), p. 9. The author discusses United States FAA regulations and certain regulations in the CIS States which apply standards for certification of aircraft to ensure they are equipped against extreme cold weather. See also generally, Woolley (1999), pp. 23–26; McKenna (1994), pp. 46–47; and Freedman (1994), pp. 53–78.
- 32.
Arpino (1994).
- 33.
- 34.
See Hood v. Dealers Transport Co., 459 F.Supp. 684. It is also noteworthy that one jurisdiction in the United States has followed the approach that the lack of a licence of competence per se does not give rise to liability if the absence of licence was not the proximate cause of the injury. See Laughlin v Rose, 200 Va. 127, 104 S.E. 2d 782 (1958) and White v Edwards Chevrolet Co. 186 Va. 669, 43 S.E. 2d 870 (1947).
- 35.
Department of Water and Power of City of Los Angeles v Anderson 95 F.2d 577. See also, Cox v Dubois, 16 F.Supp. 2d 861, Brantley v Vaughn, 835 F. Supp. 258.
- 36.
Airports Council International is the only global trade representative of the world’s airports. Established in 1991, ACI represents airports interests with Governments and international organizations such as ICAO, develops standards, policies and recommended practices for airports, and provides information and training opportunities to raise standards around the world.
- 37.
Becker (2002), at 7.
- 38.
Blaise Pascal, in his book Ars Cogitandi states that fear of harm ought to be proportional not merely to the gravity of the harm but also to the probability of the event. It is also a fact of risk management that, under similar conditions, the occurrence (or non-occurrence) of an event in the future will follow the same pattern as was observed in the past. For a discussion on risk assessment and risk management see Ferguson (2008) at 188 and Bobbitt (2008) at 98–179.
- 39.
Airport Planning Manual, Doc. 9184-AN/902, Parts 1 and 2.
- 40.
Id. Part 1, 2.9.1 (a).
- 41.
Doc. 9184-AN 902 Part 2, 1.3.1.
- 42.
Id. 1.3.2.
- 43.
Airport Planning Manual, Doc 9184-AN/902, Part 3.
- 44.
Id. 1.3.1–1.3.5.
- 45.
Id. Chapter 2.2.1.
- 46.
Id. 2.4.
- 47.
Id. 3.1.
- 48.
Id. Appendix.
- 49.
http://www.airbus.com/en/gmf2009/appli.htm?onglet=&page=. The forecast anticipates that in the next 20 years, passenger traffic RPK’s will remain resilient to the cyclical effects of the sector and increase by 4.7 % per year or double in the next 15 years. This will require a demand for almost 24,100 new passenger aircraft valued at US$2.9 trillion. With the replacement of some 10,000 older passenger aircraft, the world’s passenger aircraft fleet of 100 seats or more will double from some 14,000 in 2009.
- 50.
Id. The forecast states that the greatest demand for passenger aircraft will be from airlines in Asia-Pacific and emerging markets. The region that includes the People’s Republic of China and India accounts for 31 % of the total, followed by Europe (25 %) and North America (23 %). In terms of domestic passenger markets, India (10 %) and China (7.9 %) will have the fastest growth over the next 20 years. The largest by volume of traffic, will remain domestic US.
- 51.
See Naval Taneja, Technology enabled game changing models, http://www.airlineleader.com/_webapp_1098704/Technology-enabled_game-changing_airline_business_models.
- 52.
Michael Rogers’ Commentary on the 20th ACI World Annual General Assembly at http://www.airtransportnews.aero/analysis.pl?acateg+reports.
- 53.
Patrick Becker, Corporate Foresight in Europe: A First Overview, supra note 37 at 8.
- 54.
Airport Planning Manual, Doc 9184-AN/902, Part 3.
- 55.
Id. 1.3.1–1.3.5.
- 56.
Id. Chapter 2.2.1.
- 57.
Id. 2.4.
- 58.
Id. 3.1.
- 59.
Id. Appendix.
- 60.
Supra note 37 at p. 22.
- 61.
Standard 2.9.1, Annex 14 to the Convention on International Civil Aviation, Aerodromes, Volume 1 Fourth Edition: July 2004 at 2–4.
- 62.
Recommendation 10.2.9.
- 63.
Recommendation 10.2.11.
- 64.
For a discussion on this subject, See Abeyratne, Airport Business Law, Infra note 122, at pp. 106–108
- 65.
Article 68 provides that Each contracting State may, subject to the provisions of this Convention, designate the route to be followed within its territory by any international air service and the airports which any such service may use.
- 66.
ICAO’s Policies on Charges for Airports and Air Navigation Services Doc 9082/8 Eighth Edition-2009.
- 67.
FIDS communicates and supports most any type of display device such as CRT monitors, LCD flat panels, plasma displays, split flap boards and LED signage.
- 68.
Carey (2010).
- 69.
FIDS can also be accessed through the internet. For example see the FIDS at Hong Kong International airport at http://www.hongkongairport.com/flightinfo/eng/chkfltdep.html.
- 70.
Manual on the Regulation of International Air Transport, ICAO Doc 9626, Second Edition: 2004, at 4.9-1.
- 71.
Annex 9 to the Chicago Convention, Recommended Practice 6.1.1.
- 72.
Annex 9 to the Chicago Convention, Recommended Practice 6.11.
- 73.
Annex 9 to the Chicago Convention, Recommended Practice 6.12.
- 74.
Airport Planning Manual, Doc 9184-AN/902 Part 1, Master Planning, Second Edition, 1987.
- 75.
Id. at Section 9.4.25 at pp. 1–92.
- 76.
[1964] A.C. 465.
- 77.
[1995] 1 AER 691.
- 78.
Id. 671.
- 79.
- 80.
See Queen v. Cognos Inc., [1993] 1. S.C.R. 87.
- 81.
(2001) 184 D.L.R. (4 Th) 75 (B.C.C.A.).
- 82.
[1997] 2 S.C.R. 165.
- 83.
[1932] A.C. 562. See also Fleming (1977), p. 176.
- 84.
Supra note 76.
- 85.
[1981] 1 All E.R. 267.
- 86.
Id. at 276.
- 87.
Air transport plays a major role in driving sustainable economic and social development worldwide. It directly and indirectly supports the employment of almost 60 million people today, while contributing over $2 trillion to global gross domestic product (GDP) and carrying over 2.5 billion passengers and $5.3 trillion worth of cargo annually.
- 88.
Air traffic management is the dynamic, integrated management of air traffic and airspace—safely, economically and efficiently—through the provision of facilities and seamless services in collaboration with all parties. See Doc 9854 infra note 89, ibid.
- 89.
Global Air Traffic Management Operational Concept, Doc 9854, AN/458, First Edition—2005, Chapter 1 at 1-1.
- 90.
Performance-Based Navigation (PBN) is a framework for defining navigation performance specifications for an aircraft along a route, during a procedure, or in airspace. These navigation performance specifications have been defined and have specific operational performance requirements. PBN provides a simple basis for the design and implementation of automated flight paths, as well as for airspace design, aircraft separation, and obstacle clearance. PBN comprises both Area Navigation (RNAV) and Required Navigation Performance (RNP).
- 91.
The Air Navigation Commission is composed of members appointed by the Council from among persons nominated by contracting States. These persons are required to have suitable qualifications and experience in the science and practice of aeronautics. The Council requests all contracting States (to the Convention on International Civil Aviation) to submit nominations. The President of the Air Navigation Commission shall be appointed by the Council. See Chicago Convention, Article 56. Members of the Commission are deemed to have suitable qualifications and experience in the science and practice of aeronautics. The President of the Air Navigation Commission is appointed by the Council.
- 92.
The Chicago Convention (supra note 1) was signed on 7 December 1944 at Chicago and its provisions are contained in Doc 7300/8: 2006.
- 93.
PIRGs work in close conjunction with ICAO’s regional offices and Headquarters as it carries out its work programme responsibilities. The six ICAO PIRGs are: (a) APANPIRG (Asia/Pacific Air Navigation Planning and Implementation Regional Group); (b) APIRG (Africa-Indian Ocean Planning and Implementation Regional Group) ; (c) EANPG (European Air Navigation Planning Group); (d) GREPECAS (Caribbean/South American Planning and Implementation Regional Group) ; (e) MIDANPIRG (Middle East Air Navigation Planning and Implementation Regional Group) ; (f) NAT SPG (North Atlantic Systems Planning Group).
- 94.
For a detailed discussion on the nature and framework of the ASBUs see Working Document for the Aviation System Block Upgrades, The Framework for Global Harmonization, Issued by ICAO on 17 July 2012.
- 95.
GANP, GASP (Global Aviation Safety Plan) and Global Air Traffic Management Operational Concept.
- 96.
Global Navigation Satellite System (GNSS) is a key element of the Communications, Navigation, and Surveillance/Air Traffic Management (CNS/ATM) systems as well as a foundation upon which States can deliver improved aeronautical navigation services is fundamentally different from traditional navigational aids (NAVAIDs). It has the potential to support all phases of flight by providing seamless global navigation guidance. This could eliminate the need for a variety of ground and airborne systems that were designed to meet specific requirements for certain phases of flight. See Global Navigation Satellite System Manual, Doc 9849, AN/457, 5th Edition—2005 at Foreword and 1.1.
- 97.
ASBUs are divided, on a 5 year segment through the 15 years of their application into four blocks. Block 0 is for 2013–2018; Block 1 is for 2018–2023; Block 2 is for 2023–2028 and Block 3 is for 2028 onwards. See Global Air Traffic Management Operational Concept, supra note 95, at 26.
- 98.
GNSS specifications for precision approach operations.
- 99.
See Assembly Resolutions in Force (as of 8 October 2010), Doc 9958at II-32.
- 100.
The ICAO PBN Concept is laid down in the Performance Based Navigation (PBN) Manual, Doc. 9613.
- 101.
Article 38 provides: “Any State which finds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to ICAO of the differences between its own practice and that established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within 60 days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take. In any such case, the Council shall make immediate notification to all other states of the difference which exists between one or more features of an international standard and the corresponding national practice of that State”.
- 102.
Although Jacob Schenkman, in his well documented and logically reasoned treatise on ICAO states that “The Council has been entrusted with duties, powers and functions…” he does not give a single example of such a power. See Capt. Schenkman (1955) at 158.
- 103.
Article 49 of the Chicago Convention.
- 104.
Article 49 h) of the Chicago Convention.
- 105.
See Abeyratne (2011), pp. 427–440.
- 106.
Article 44 provides: “The aims and objectives of the Organization are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport so as to: (a) Insure the safe and orderly growth of international civil aviation throughout the world; (b) Encourage the arts of aircraft design and operation for peaceful purposes; (c) Encourage the development of airways, airports, and air navigation facilities for international civil aviation; (d) Meet the needs of the peoples of the world for safe, regular, efficient and economical air transport; (e) Prevent economic waste caused by unreasonable competition; (f) Insure that the rights of contracting States are fully respected and that every contracting State has a fair opportunity to operate international airlines; (g) Avoid discrimination between contracting States; (h) Promote safety of flight in international air navigation; (i) Promote generally the development of all aspects of international civil aeronautics.
- 107.
1949 ICJ Reports at 184.
- 108.
Article 28 provides: “Each contracting State undertakes, so far as it may find practicable, to: (a) Provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention; (b) Adopt and put into operation the appropriate standard systems of communications procedure, codes, markings, signals, lighting and other operational practices and rules which may be recommended or established from time to time, pursuant to this Convention; (c) Collaborate in international measures to secure the publication of aeronautical maps and charts in accordance with standards which may be recommended or established from time to time, pursuant to this Convention”.
- 109.
Article 28 provides: “Each contracting State undertakes, so far as it may find practicable, to: (a) Provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention; (b) Adopt and put into operation the appropriate standard systems of communications procedure, codes, markings, signals, lighting and other operational practices and rules which may be recommended or established from time to time, pursuant to this Convention; (c) Collaborate in international measures to secure the publication of aeronautical maps and charts in accordance with standards which may be recommended or established from time to time, pursuant to this Convention”.
- 110.
ICAO’s Policies on Charges for Airports and Air Navigation Services (Doc 9082).
- 111.
Id. paragraph 2 x) of Section II and paragraph 3 vii) of Section III.
- 112.
Chicago Convention, supra note 1, Article 1. The Convention applies only to State aircraft and not to military aircraft. However, it states, in Article 3 that no aircraft used in military, customs or police services shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof. It must also be borne in mind that United Nations General Assembly Resolution A/RES/46/182 of 19 December 1991 provides, in resolving clause 3 that the sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations. In this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country. In April 1992, the Secretary-General established the Department of Humanitarian Affairs (DHA), incorporating UNDRO, various UN units that had been dealing with specific emergency programs, and the secretariat for the International Decade for Natural Disaster Reduction. The Secretary-General appointed an Emergency Relief Coordinator to head the new department. The DHA has its headquarters in New York and an office in Geneva.
- 113.
Shaw (2003) at 120.
- 114.
de Lima (1971) at 16.
- 115.
Starke (1977) at 106.
- 116.
Article 31.1 of the Vienna Convention on the Law of Treaties provides that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. See Vienna Convention on the Law of Treaties 1969, done at Vienna on 23 May 1969. The Convention entered into force on 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331. The ordinary meaning of war can be considered as a behaviour pattern of organized violent conflict typified by extreme aggression, societal disruption, and high mortality. This behaviour pattern involves two or more organized groups. http://en.wikipedia.org/wiki/War.
- 117.
Id.
- 118.
Reuter (1989), at 16.
- 119.
ICAO Assembly Resolution A35-14, Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation, Appendix Q, Resolving Clauses 1 and 3. See Assembly Resolutions in Force, (as of 8 October 2004) ICAO Doc 9848 at II-13.
- 120.
See Chapters 6 and 7 of Annex 14 (Aerodromes) Volume 1 (Aerodrome Design and Operations), Annex 14 to the Convention on international Civil Aviation, Fourth Edition, July 2004, at 6-1 to 8-3. Also Chapter 5 of Annex 14 Volume II (Heliports), Second Edition—July-1995 at pp. 30–48 which has similar provisions for the operation of helicopters.
- 121.
Id. Annex 14, Chapter 10.
- 122.
The functions and responsibilities of an airport will vary according to its size, type of traffic and areas of responsibility. For example, some airports are responsible for air traffic control as well as for meteorological services, while at most other airports such services are provided by separate government entities. Many airports are involved in security functions in varying degrees and in providing facilities for customs, immigration and health authorities. Ground-handling services for the airlines, including terminal handling or ramp handling, or both, are provided by some airports, while at others they are provided by the airlines or by specialized agents or companies. Certain airports also perform functions that exceed the scope of conventional airport activities, such as consultancy services, public works, construction, and real estate development. See Abeyratne (2009) at 13.
- 123.
Puempol (2006) at 76.
- 124.
Ibid.
- 125.
ICAO Assembly Resolution A35-14, Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation, Appendix Q, Resolving Clauses 1 and 3. See Assembly Resolutions in Force, (as of 8 October 2004) ICAO Doc 9848 at II-13.
- 126.
See Chapters 6 and 7 of Annex 14 (Aerodromes) Volume 1 (Aerodrome Design and Operations), Annex 14 to the Convention on international Civil Aviation, Fourth Edition, July 2004, at 6-1 to 8-3. Also Chapter 5 of Annex 14 Volume II (Heliports), Second Edition—July-1995 at pp. 30–48 which has similar provisions for the operation of helicopters.
- 127.
Id. Annex 14, Chapter 10.
- 128.
Miyagi (2005), at 143.
- 129.
Standard 2.1.2.
- 130.
Requirements concerning qualifications and training of meteorological personnel in aeronautical meteorology are given in WMO Publication No. 49, Technical Regulations, Volume I—General Meteorological Standards and Recommended Practices, Chapter B.4—Education and Training.
- 131.
Standard 2.2.1.
- 132.
Standard 3.3.1.
- 133.
For liability of the State under administrative and tort law principles, see Abeyratne (2006), pp. 176–192 at 183–192.
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Abeyratne, R. (2014). The Airport and the State. In: Law and Regulation of Aerodromes. Springer, Cham. https://doi.org/10.1007/978-3-319-04780-5_1
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