From 30 November to 3 December 2015 the 36th Session of the Legal Committee of the International Civil Aviation Organization (ICAO) was held. ICAO Legal Committee has been established at the first session of the ICAO Assembly in 1947. Its mandate is to advise the Council and the Assembly of ICAO in the field of legal issues and prepare draft international conventions and their protocols in the field of aviation law. The Committee consists of all 193 Member States of ICAO and each Member State has one vote. According to its constitution, the Committee is composed of experts in law seconded by Member States. The Committee meetings may also be attended by organizations invited by the ICAO Council. The 36th Session of the Committee was attended by 61 Member States and 9 international organizations represented by 134 representatives and observers. On behalf of the Republic of Poland the meeting was attended by the Polish Delegation including Permanent Representative to the Council of ICAO.
The first Committee Meeting was opened by the First Vice-President of the ICAO Council, Mr. Englebert Zoa Etundi, who welcomed all delegates and observers on behalf of the Council, its President and Secretary General. After presenting the agreed work programme of the Committee, he expressed his confidence that the Committee during the few days of its session would perform its scheduled tasks and provide the Council with its recommendations for further decisions. As part of the opening session, the Chairman of the Legal Committee of ICAO Mr. Terry Olson, gave his speech. He asked gathered delegations to observe a minute of silence in memory of Ms. Hilma Hitula, who passed away on 17 April 2015. Ms. Hitula was appointed the Fourth Vice-President of the ICAO Legal Committee during its 35th Session. In her country - Namibia she held the position of senior lawyer in the General Directorate of Aviation of Namibia.
The Committee then approved the agenda of the meeting and decided that the Committee will hold 6 meetings. The Secretariat of the Committee was composed of employees of the Secretariat of ICAO. The first document presented at the meeting was a document concerning the acts and offences relevant to the international aviation community and not covered by existing international air law instruments. The document recalled the results of the Diplomatic Conference held under the auspices of ICAO on 4 April 2014, which approved the Protocol amending the Convention on Offenses and Certain Other Acts Committed on Board Aircraft (Montreal Protocol of 2014) and issued a resolution calling the ICAO to update the Guidance Material on the legal aspects relating to unruly passengers - the so-called Circular 288. In order to possibly develop a more detailed list of acts and other offenses and the need to make changes to the guidance material due to the acceptance of the Protocol, the Task Force on legal aspects relating to unruly passengers was established. Chairman of the Task Force Dr. Malgorzata Polkowska, the Permanent Representative to the Council of ICAO of the Republic of Poland reported on the work of the first meeting in September 2015. The Task Force decided to leave the list of offenses unchanged, as it coincides with cases of behavior of passengers that take place on board the aircraft. The group consists of three sub-groups, the task of every subgroup is to prepare the texts of respective chapter of a new guidance material. The subgroups are chaired by Singapore, Kenya and Finland. Many delegations supported the current work of the Task Force, which next meeting is scheduled on the end of March 2016. The next point of discussion was the document on the conflict of interest. The document presented by the Secretariat contained the results of a survey conducted among the Member States of ICAO. The report was prepared on basis of 43 responses, including from the response from Poland. Most of the countries participating in the survey reported that they have in place the legal instruments dealing with conflict of interest in their framework and consider it to be effective. The document stressed however the need to establishment of the legal framework for conflict of interest in all Member States in order to avoid situations where a conflict of interest could affect the safety or security of civil aviation. During the discussion, many delegations supported the report and expressed their support to prepare a resolution for approval by the ICAO Assembly, which would promote awareness about the potential hazards from the conflicts of interest in the airline industry. The Committee decided that the interested countries will prepare and submit the resolution Assembly, as well the other countries that had not yet taken part in a survey, would prepare answers in order to provide additional information and best practices regarding the conflicts of interest. The Secretariat was obliged to compile the data received from the Member States in the field: distribution and management of responsibility between regulators and service providers supervised by the state, migration of workers between supervisory institutions and entities supervised and the exercise of supervisory responsibilities by appointed or seconded staff.
Another point of discussion was the safety aspects related to liberalization and art. 83 bis of the Chicago Convention. The Committee acknowledged the document presented by the Secretariat, recalling the decision of the 35th Session of the Legal Committee in the field of formation of the Task Force on article 83 bis, which was accepted by the Council of ICAO. The Task Force, which was established in September 2014 developed a set of recommendations for changes to ICAO Circular 295 and identified opportunities for consideration by the ICAO on alternative system of registration of bilateral agreements in the field of art. 83 bis. Recommendations, which have been developed by the Group were presented by its Chairman Mr John Thachet of the Canadian delegation. One of the recommendations was the creation of the Manual amending Circular 295. The consolidated draft text of the manual should be ready in April 2016 for approval by the members of the Group, and then handed over to the Secretary General of ICAO in late summer 2016 and published in the autumn of 2016. One of the recommendations was the introduction of electronic system for recording and publishing agreements of art. 83 bis on the web-based portal. The system according to the recommendations could be later expanded to be used for registration purposes of other agreements and arrangements. Many delegations supported the five recommendations, particularly the one about creating a registration system, taking into account the fast transfers of aircraft based on so-called. wet-lease.
The next agenda item was a discussion of legal issues related to unmanned aircraft. The Secretariat presented a document to the Committee on an overview of existing international air law instruments in the responsibility for the use of remotely piloted aircraft (RPAS). The study consisted general summary and highlighted the current legal regime which according to the study was adequate to locate technology of remotely piloted aircraft. Committee during the discussion supported the work of the secretariat, however, pointed out the areas that still need to be identified: ie. registration process, cross boarder operations, operations over the open sea, as well as the possible change of control of remotely piloted aircraft in international flights. The Committee agreed that the item on RPAS should be backed up by detailed information from the Member States on national jurisdictions for comparative purposes and to identify other possible issues in the field of international operations which the national legal system could not cover. The questionnaire will be prepared and send during the first quarter of 2016. In the same paragraph the presentations on the work of ICAO in the field of RPAS, including the ICAO RPAS Seminar, which took place in March 2015 were presented. The participants were also briefed on the work of the ICAO RPAS panel. The third meeting of the RPAS panel will take place on 14-18 December 2015. Poland will participate as an observer in the panel. Polish delegation in his speech thanked ICAO for its efforts concerning RPAS aimed at the integration of manned air traffic and also thanked the Legal Affairs and External Relations Bureau of ICAO for preparing a comprehensive study on the responsibility (especially third party liability) associated with the use of unmanned aircraft. Poland supported the future efforts of ICAO to identify other possible gaps in the international legal system concerning the registration, safety, security and other areas. Poland supported the proposal to create a questionnaire, supported by other delegations from France, Belgium and the Czech Republic. Polish delegation further informed that in spite of scope of the work of ICAO focused on RPAS operating in international airspace that Poland welcomes the consideration on including "the small drones" into the working programme of ICAO and the possible development of guidance material for the member states, which have not yet regulated the operations of unmanned aircraft. The Polish delegation also underlined on the example of Poland that the regulation at the national level already exist and the task of ICAO and its Member States should be to raise public awareness about the risks associated with the performance of unmanned aircraft operations in an irresponsible and unlawful manner. As an example of such action was given an information campaign of the Civil Aviation Authority on good practices on safe flying drones.
The next point discussed by the committee was the issue related to the systems CNS/ATM including global navigation satellite system GNSS and to establish an international legal framework in this area. The committee was presented with a presentation by the Secretariat in the field concerned and decided on the need to continue to monitor this issue and take the necessary activity in the development of this point.
Within the next point of the agenda: promotion of the ratification of international legal instruments and the status of ratification of international air law instruments have been discussed. During this point the Committee agreed on a paramount role of international legal conferences aimed at promoting their ratification. After 35th Legal Committee several international conferences and seminars have been held. Among others the International Conference on Air Law, which was held in Warsaw in 2014 to commemorate the 85th anniversary of signing of the Warsaw Convention. Under this point the Korea's delegation presented a document to amend the Transit agreement from 1944, taking into account the changes of the past 70 years in reducing sovereignty over the airspace by the United Nations Convention on the Law of the Sea (1982) and the so-called Outer Space Treaty, as well as air transport policy towards an open skies aimed to use the shortest available routes. In summary Korean document stressed the need to continue the ICAO calling for universal ratification of the Transit Agreement, as noted by the Committee.
Next point of the Committee's work was to determine the status of civil/state aircraft. At this point the Polish Delegation presented the document on behalf of 10 Member States of the Central European Rotation Group (CERG). Presented document recalled the ICAO Secretariat Study Committee from 1993 concerning the clarification of issues related to the interpretation of Article 3 of the Chicago Convention. The document established three objectives related to civil/state aircraft and possible unusual use of an aircraft in a situation where its operation has a mixed character: 1. Definition of Civil/State aircraft; 2. establishing more precise criteria for qualification of civil, state or mixed character of aircraft and flights operated for unusual purposes; 3. recognition of the relevant rules by the International Aviation community for determining the aircraft status for each flight or flight series (who is competent to take such decision, how such determination has to be identified and notified to the parties concerned if flight planning rules are not sufficient).
The Committee was therefore asked to express an opinion on the possible achievement of objectives without changing the Chicago Convention. The document was supported by a delegation from the Czech Republic, Denmark, Greece and other countries from the regions of Africa, Asia-Pacific and the Arab States. A large number of delegations supported the necessity to clarify the definition of "state aircraft" contained in Art. 3 b) of the Chicago Convention and establish criteria to facilitate the determination of the status of the aircraft flying as a civilian or state. The majority of States also supported the Polish proposal to find a solution without changing the Chicago Convention and to address this issue through possible revision of its Annexes. During the discussions the delegations indicated that the lack of uniform practice in determining the status of the aircraft may cause a number of legal problems. One member gave the example of the use of aircraft to transport of convicts that have been recognized as civil aircraft, while their character could be presumed as state status of the flight and there need to obtain consent for entry into another country. Some delegations suggested the creation of a task force that could identify the legal issues and ways of addressing them. Several delegations also proposed the creation of a questionnaire, which would first identify the problems of individual countries with the existing legal regime and, subsequently, to determine the following activities of the committee. Poland supported both proposals. After an interesting and exhaustive discussion, the committee has decided to prepare a questionnaire and send it to the Member States in the summer of 2016.
Then, the ICAO Secretariat presented a document on commercial suborbital flights and provided the Committee with recent developments in the field of space law and the challenges faced by the airline industry that may arise with the development of suborbital space flights. The document informed about the creation of a joint sub learning group between ICAO and UNOOSA to compile the existing regulations for space transport. In order to broaden knowledge on the regulation of space activities, including suborbital flights the ICAO and UNOOSA jointly organized from 18 to 20 March 2015 the AEROspace seminar. During the seminar the participants attempted to resolve the pending question if legal framework for these flights should be governed by air law or space law. A second joint seminar of ICAO and UNOOSA will be held in Abu Dhabi in March 2016 and its main purpose is to increase the awareness of Member States on legal challenges and gather best practices on its operations in this growing sector. Polish delegation supported the initiative contained in the document and the need to continue discussions on the future regulation of sub-orbital and commercial space flights.
The Committee then reconsidered its General Working Programme. It was agreed that the legal aspects relating to commercial flights would not be at this stage placed on the agenda of the Committee because of the need to observe the directions of development of this new sector and then implement adequate actions concerning development the legal solutions. The Committee after an exhaustive discussion determined the General Work Programme of the Committee and the order of priority of individual items on the plan taking into account the progress of work on each items and the results of previous discussions. Prioritization of the agenda has been changed, ie. item related to Remotely Piloted Aircraft Systems has been changed from priority No. 4 to No. 1, and item related to the determination of status of civil/state aircraft have been increased from level 7 to point 5.
The Committee then considered the Agenda of the ICAO Legal Commission which meeting will be held at the 39th ICAO Assembly in September 2016. The Committee also approved amendments to the Rules of Procedures of the ICAO Legal Committee, adding the Chinese language to the official languages of the Committee and changing the procedure for succession of Vice-Chairmen of the Committee in the event of vacancy. The Committee also determined that the most appropriate date to convene the 37th Session of the ICAO Legal Committee will be 2017, while the final decision on specific date was left for the decision of the Council of ICAO.
As part of the AOB item, the Brazilian delegation presented a document concerning the interpretation of Article 12 of the Chicago Convention submitted during the session. After a discussion on the document and expressing support by several delegations, the Chairman of the Committee noted that due to the late submit of the document, delegations were not able to develop embodied positions on the matter. The Committee decided that due to raised interest, the issue should remain in attention of appropriate ICAO bodies for detailed analysis.
The last document presented at the 36th Session of the ICAO Legal Committee was presented by the delegation of the Netherlands which included the recommendations of the final report of the Dutch Safety Board after the downing of the Malaysia Airlines flight MH-17. The document also contained the results of the work of the Special Group on the review of international legal instruments in terms of their application to conflict zones. The Group decided among others, that there is currently no need to change the Chicago Convention, but possible changes might be required in the future. The Dutch delegation stressed out that the final report was published a few months after the end of the work of the group and because of this fact the Committee might put into consideration the possible need to re-examine the outcomes of the work of the group. Many delegations proposed to include the issue of conflict-risk zones to the overall work program of the Legal Committee. Polish delegation indicated that the Special Group during its meeting could not take into account the recommendations included in the future report of the Dutch Safety Board, therefore, re-convening of the Special Group might be considered. Chairman of the Committee summarizing the discussions determined that due to the ongoing work in ICAO on changes of SARPs, the Committee may inform the Council of its availability in terms of assistance on the issues of conflict risk zones, but also has determined that at this point there is no need for this point to be included in the General Work Programme of the ICAO Legal Committee.
The Committee has finished its work after the election of new Vice-Chairmen from Lebanon and South Africa.