(June 22, Montreal, Sri Lanka Guardian) On 19 October 2010, the Parliament of Sri Lanka passed a Bill pertaining to an Act to make provision for the regulation, control, and related matters of civil aviation and to give effect to the Convention on International Civil Aviation (Chicago Convention); and for matters connected therewith and incidental thereto. The Bill was approved by the Cabinet of Ministers on 15 September 2010 to be presented in Parliament for enactment. It is encouraging that the legislature has taken steps to “give effect” to the Chicago Convention, which is the cornerstone of air navigation and air transport treaty law, pertaining to which Sri Lanka deposited its instrument of ratification on 1 June 1948, thus formerly becoming a member of the International Civil Aviation Organization (ICAO). In this context the words “give effect” mean “to make valid; to carry out in practice; and to push to its results”. It also means that there is now a law in Sri Lanka that would execute, perform, and operate provisions of the Convention.
The significance of this piece of legislation is that Sri Lanka has not only recognized its formal and practical adherence to the Chicago Convention but has also incorporated the 18 Annexes to the Convention within its main aviation legislation. This essentially means that Sri Lanka has pledged to follow the Standards and Recommended Practices (SARPs) contained in the Annexes, the adherence to which forms the basis of safety and security audits conducted in its member States by ICAO to determine whether SARPs are being complied with.
This principle is explicitly recognized in the Civil Aviation Act which provides that the provisions of the Chicago Convention relating to safety, regularity, efficiency and security of civil aviation as are specified in the Schedule to the Act would govern all activities relating to civil aviation within the territory of Sri Lanka. The Act applies to aircraft registered in Sri Lanka and personnel licensed under the Act whether or not they are in Sri Lanka, as well as to aircraft registered outside Sri Lanka and to aeronautical services provided within Sri Lanka and users thereof.
An interesting feature of the Act is that it will not apply to aircraft or aerodromes that are exclusively used by the armed forces. However, and notwithstanding this provision, the Act applies to aircraft operated by the armed forces or in the use of the Government if such aircraft were to carry passengers or cargo for hire. This would mean that: a) the Act does not apply in limine to aircraft dedicated exclusively to military services; b) it would however, apply if such military aircraft were to be used to carry either civilians or armed forces personnel if they are carried for hire. This leaves the issue of the use of civil aircraft for military purposes wide open.
The use of civil aircraft for military purposes and the legal regime that would apply to it is extremely significant for any jurisdiction. Article 3 (a) of the Chicago Convention provides that the Convention will be applicable only to civil aircraft and not to state aircraft. It is an inclusionary provision which identifies military, customs and police service aircraft as being included in an undisclosed list of state aircraft. The Convention contradicts itself in Article 3 (c), where it says that no state aircraft of a contracting State 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. The question arises as to how an international treaty, which on the one hand prescribes that it applies only to civil aircraft, turns around and prescribes a rule for state aircraft. Article 3 (c) effectively precludes relief flights over the territory of a State by state aircraft if the State flown over or landed upon does not give authorization for the aircraft to do so. A State aircraft may be identified by the design of the aircraft and its technical characteristics; registration marks; ownership; and type of operation.
Article 33 on the status of military or State aircraft is somewhat oddly placed in that it provides that a) no foreign military or State aircraft may enter the territory of Sri Lank without a special permission or authorization of the Civil Aviation Authority of Sri Lanka; and b) no foreign or civil aircraft may enter the territory of Sri Lanka without a special permission or authorization of the Director General of Civil Aviation. The first inconsistency is that, under the Chicago Convention, which is given effect to by the Act, military aircraft are included in the category of State aircraft. The second anomaly is that a civil aviation legislative instrument is made applicable to military aviation, which should be governed by military laws. The third and more serious anomaly lies in the statement that no foreign civil aircraft may enter the territory of Sri Lanka without a special permission or authorization of the Director-General. This seemingly ascribes power to the Director General which otherwise is vested in the State, which under article 6 of the Chicago Convention is the ultimate authority in granting permission for foreign civil aircraft to enter or depart from the territory of the State. Although it is ultimately a State official such as the Director General which rubber stamps the flight schedule of a foreign carrier, this provision is misleading and leads one to assume that the Director General can act on a whim in allowing or disallowing a foreign carrier to enter or depart from the territory of Sri Lanka.
Another anomaly lies in Article 38 which vests authority on the Director General to direct the operator or the crew of an aircraft not to operate the aircraft when he/she has sufficient reason to believe that the aircraft is not airworthy; the crew is not qualified or able physically or mentally to operate the flight; the operation of the flight would cause imminent danger to persons or property; and the aircraft does not have an approved dispatch procedure or is not dispatched in accordance with approved dispatch procedures. Although some dispatch procedures may have the requirement of inspection of documentation carried in aircraft as per Article 29 of the Chicago Convention, this requirement, which should be a stand alone, should have been specifically mentioned in Article 38, giving the Director General authority to prohibit the operation of an aircraft if the necessary documentation were not carried in that aircraft. Although one can argue that Article 71 (2) of the Act requires a foreign aircraft to carry its certificate of registration, it is not the same as empowering the Director General to enforce the requirement.
The provision on the registration of aircraft – Article 40 – and the ones to follow do not unequivocally protect aircraft of spurious or dubious registration from operating in Sri Lankan skies. Article 40 provides inter alia that if an aircraft is not registered in Sri Lanka or in a State Party to the Chicago Convention, it cannot fly into or out of Sri Lanka. There is no provision in Chapter IV which deals with registration that gives the Director General the authority to disallow the operation of aircraft that carry dubious certificates of registration – a dangerous omission in the face of the practice of flags of convenience by carriers.
Other noteworthy provisions of the Act relate to the operation of pilotless aircraft which requires the authorization of the Director General; the carriage of dangerous goods; and the recognition that smoking in aircraft is an offence. Of these, the more contentious issue relates to unmanned aerial vehicles, which the Act covers adequately in terms of the authorization needed, but is restrictive in identifying the activities that are covered by the operation of such vehicles.
It is encouraging for civil aviation in Sri Lanka that the country now has an Act which keeps up with times, although, as has been discussed, some of its provisions could be improved with time, which the Sri Lanka Parliament will have to address.
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