The 1944 Chicago Convention on International Civil Aviation (which created the International Civil Aviation Organization, ICAO) generally and comprehensively sets forth international standards and recommended practices for aviation (as provided in Article 37). Consistent with Article 26 of the Convention, Annex 13 deals with aircraft accident and incident investigation. The Annex states that investigation of serious accidents and incidents is to be conducted by the State where the accident or incident occurs, or where the State of Registry when the location of the accident or serious incident cannot definitely be established as being in the territory of any State. In addition, a State may delegate the task of conducting the investigation to another State or request its assistance. By virtue of this Annex, EASA should be invited to participate in a safety investigation “… in order to contribute, within the scope of its competence, to its efficiency and to ensure the safety of aircraft design, without affecting the independent status of the investigation. National civil aviation authorities should be similarly invited to participate in safety investigations.”
The foregoing structure is similar to the United States’ system, where all aviation regulations and air navigation services fall under the purview of one agency, the Federal Aviation Administration (FAA), a subdivision of the US Department of Transportation (DOT). However, investigations of aviation accidents are solely vested in another agency, the National Transportation Safety Board (NTSB), an independent agency of the United States Government, and, unlike the FAA, is not a sub-agency of the Department of Transportation. The NTSB has no regulatory or enforcement powers. In addition to investigating transportation accidents, the NTSB also provides administrative, quasi-judicial review process for FAA enforcement actions by Administrative Law Judges (ALJs), who preside over a wide variety of FAA enforcement matters. In summary, the major difference between the European and American systems is that each EU Member State creates its own aviation regulations, and commits to harmonizing their domestic regulations with EASA and EU aviation safety standards, as well as remaining in compliance with the International Civil Aviation Organization’s requirements. In contrast, there is only one overarching set of aviation regulations in the US, and the individual states generally have little or no power to create their own regulations. The legal and policy tug-of-war between state, local, and federal government regulatory power over aviation activities is controversial, falling under the broad theme of “preemption,” but that is a discussion for another book. Some state and local governments have enacted legislation that impact low-level (generally below 400 ft AGL) unmanned aircraft operations, and the extent to which they can do so without running afoul of federal law, and the FAA’s declared policy, has yet to be definitively decided in US courts. There is no such gray area between EU Member State regulations and the rules of the road established and agreed upon by the members of EUROCONTROL and EASA.
Another major distinction between EASA and NTSB is that the former is only chartered to oversee aviation safety, whereas the NTSB also has more or less exclusive jurisdiction over other non-aviation transportation sectors, such as railway, highway, marine, and pipeline. NTSB investigators will respond anywhere in the world to aviation accidents involving products manufactured in the US. The NTSB “Go Teams” only respond to accidents that occur on US territory or in international waters. Elsewhere, the lead investigator is by default the government in whose territory the accident occurs, often assisted by a US “accredited representative” from the NTSB’s staff of “investigators in charge” (IICs) if a US carrier or US manufactured airplane is involved.
Virtually every member of the United Nations (currently numbering 193 Member States and 2 non-member observer states) has its own version of domestic aviation regulations, which for the most part is patterned after the Chicago Convention articles and annexes. As noted above, the Chicago Convention established the International Civil Aviation Organization as a means to secure international cooperation and the highest possible degree of uniformity in regulations and standards, procedures, and organization regarding civil aviation matters. The Convention produced the foundation for a set of rules and regulations regarding air navigation as a whole, with the intent to enhance safety in flying by laying the groundwork for the application of a common air navigation system throughout the world.
ICAO works in close cooperation with other members of the United Nations family, such as the World Meteorological Organization, the International Telecommunication Union, the Universal Postal Union, the World Health Organization, the International Maritime Organization and the Arctic Council. Aviation-related non-governmental organizations (NGOs) also participating in ICAO’s efforts include the International Air Transport Association, the Airports Council International, the International Federation of Air Line Pilots’ Associations, and the International Council of Aircraft Owner and Pilot Associations.
A comprehensive analysis of the aviation regulatory schemes in each and every country that publishes some form of regulation is beyond the scope of this book. However, since ICAO Member States contract to follow ICAO’s rules and supplementary material, and to publish for all to see any exceptions taken to any ICAO Article, Annex, Regional Supplementary Procedure (“SUPPS”) or Procedures for Air Navigations Services (PANS), the beginning point must be the aforementioned ICAO rules and procedures themselves, with particular focus on those provisions related to safe integration and management of domestic and international airspace.
The Chicago Convention and the International Civil Aviation Organization
The Aeronautical Commission of the Peace Conference of 1919 (otherwise known as the Versailles Treaty) created an international agreement (the Convention for the Regulation of Aerial Navigation) that recognized that the airspace above the high seas was not as “free” as the oceans beneath. The contracting States to that Convention agreed that the States had exclusive jurisdiction over the airspace above the land and territorial waters of the States, but agreed to allow, in times of peace, innocent passage of civil aircraft of other States through their sovereign airspace, so long as the other provisions of the Convention were observed. States still retained the right to create prohibited areas in the interests of military needs or national security. During the years leading up to World War II and throughout that conflict the United States initiated studies and later consulted with its major allies regarding further harmonization of the rules of international airspace, building upon the 1919 Convention. Anticipating the pending termination of the hostilities and desiring to re-establish international transport by air, the US government invited 55 states and civil aviation authorities to attend a meeting to discuss these issues and to promote cooperation and “create and preserve friendship and understanding among the nations and peoples of the world,” and in November 1944, an International Civil Aviation Conference was held in Chicago. Fifty-four nations (they are referred to as “States” in the Convention) attended this conference, and 52 of those nations signed the new Convention on International Civil Aviation. The convention created a specialized agency, the International Civil Aviation Organization (ICAO), to oversee the terms of the Convention, and as a means to secure international cooperation and the highest possible degree of uniformity in regulations and standards, procedures, and organization regarding civil aviation matters. The Chicago Conference laid the foundation for a set of rules and regulations regarding air navigation as a whole, which was intended to enhance safety in flying and construct the groundwork for the application of a common air navigation system throughout the world.
ICAO’s many objectives are set forth in the 96 Articles of the Chicago Convention and the 18 annexes thereto. Numerous published supplements (Standards and Recommended Practices, or SARPS) and Procedures for Air Navigation Services (PANS) (which are under continual review and revision) set forth additional standards and guidelines for Contracting States. These Contracting States may take exception to any element of the annexes, and those exceptions are also published. Contracting States are also responsible for developing their own aeronautical information publications (AIPs), which provide more detailed information to ICAO and other States about air traffic, airspace, airports, navaids (navigational aids), special use of airspace, weather, and other relevant data that are available for use by aircrews arriving into or transiting through the State’s airspace. The AIPs also contain
