Dr.Dr.J.L. Kneifel Bilateral Aviation Agreements of Mauritius and a comparison between the Mauritian Civil Aviation Act of 1974 and the Civil Aviation Regulations of the Federal Republic of Germany Verlag F. Steinmeier 1989
Bilateral Aviation Agreements of Mauritius and a comparison between the Mauritian Civil Aviation Act of 1974 and the Civil Aviation Regulations of the Federal Republic of Germany Introduction I. International Regulation of Civil Aviation after World War II 9 1. Chicago Conference 9 2. Convention on International Civil Aviation 11 3. Bermuda Agreement 11 4. Transit Rights 12 II. The Civil Aviation Act 1974 Regulations made by the Minister under Scction 11 of the Civil Aviation Act 1974 14 III. Comparison of the Mauritian Aviation Act of 1974 with the Aviation Law and Aviation Regulations of the Federal Republic of Germany 21 1. Aviation Laws and Aviation Regulations of the Federal Republic of Germany 21 2. The Mauritian Aviation Law 35 3. A Few Regulation Complexes Briefly Compared 26 a) Registration and Identification of Aircraft 36 b) Requirements for Registration of Aircraft 37 c) Licensing Requirements of Aircrafts 40 d) Documents and Records 45 e) Licensing Requirements for Flight Personnel 48 f) Responsibility of Flight Crew 54 g) Operation of Aircraft 57 h) Aircraft Accidents 59 IV. Content and Specific Regulations of the Bilateral Aviation Agreements 61 V. Agreements and Arrangements between States registered with ICAO as of 20 February 1989 87
VI. Route Schedule according to the Bilateral Agreements between Mauritius and other States 88 VII. Text of the Bilateral Aviation Agreements of Mauritius 102 Mauritius India, 28.1.1972 102 Mauritius Central African Republic, 13.5.1973 116 Mauritius United Kingdom, 12.7.1973 134 Mauritius Netherlands, 15.11.1973 150 Mauritius Soviet Union, 23.11.1973 165 Mauritius Federal Republic of Germany, 26.2.1974 184 Mauritius Kenya, 5.3.1979 199 Mauritius Switzerland, 14.11.1979 215 Mauritius Pakistan, 15.11.1979 233 Mauritius France, 22.11.1979 249 Mauritius United Kingdom, 20.8.1982 273 Mauritius United Kingdom, 13.10.1983 278 VIII. Suggested Readings 283
4 SUMMARY Introduction The President-Director General of AIR MAURITIUS, Sir Harry K. Tirvengadum, member of the Executive Council of the International Air Transport Association (IATA), stated during a Tourism Conference in March 1988 that: A typical Bilateral Air Services Agreement contains essentially three categories of provisions, namely, the administrative clauses, regulatory measures and dispute settlement provisions. During negotiations of Bilateral Air Services Agreements there is normally no great deal of difficulty in the adoption of the administrative clauses which include provisions for compliance with local laws, grant of auxilliary rights etc. There is also no great difficulty in adopting the provisions for disputes settlements. However, the regulatory measures concerning primarily commercial operations, routes, capacity and fares, are the most controversial provisions, for they represent the core of economic exchange between the two contracting states. Negotiations of these provisions are very hard and demand considerable experience and skill in order to achieve a balanced agreement. The author agrees with the statement of Sir Harry K. Tirvengadum, President-Director General of Air Mauritius. Our task is to discuss briefly the International Regulation of Civil Aviation after World War II, and the content of the Bilateral Air Agreements of Mauritius with other states. In addition, specifics of the Bilateral Air Agreements are analysed and some aspects of the Mauritian Aviation Law of 1974 and the Civil Aviation Regulations of the Federal Republic of Germany are compared. For those actively engaged in international civil aviation and international air law, we are enclosing for further comparison and analysis the texts of all Bilateral Aviation Agreements of Mauritius registered with the International Civil Aviation Organization (ICAO).
5 I. International Regulation of Civil Aviation after World War II During and after the Second World War a growing number of countries realized that air transport was an instrument of national policy. They were impressed with the importance of air transport in the maintenance of their national prestige and pride. Therefore, many states decided that it was necessary to engage in international air transport. There was an effort on the part of states worldwide to draw up certain general international principles which would govern postwar international air transport. A new multilateral convention was therefore conceived to take the place of the Paris (1919) and the Havana (1928) Conventions. Before World War II, there was no simple international convention for the regulation of air transportation. The Madrid Convention (1926) was never used as an instrument for this purpose. At the outbreak of World War I, the Paris Convention had been ratified by thirty-three states, but the United States of America, the Soviet Union and China, among others, were not parties to it. The United States together with eight Central American Republics and Chile ratified the Havana Convention (1928), which differed from the Paris Convention (1919) in that it provided international uniformity in technical matters. 1. Chicago Conference 1944 From November 1 to December 7, 1944, delegations from 52 states met in Chicago with a view to the regulation of civil aviation on a worldwide basis. At the Chicago Conference, different schools of thought were expressed: - those who took up an idealistic universal attitude and stressed the future of international transport in general; - those who thought only of their individual national interests;
- those who believed that they were serving both national and international interests at the same time. 6 Most states were seeking primarily to provide their own international civil aviation with as many guarantees as possible for its development. At the Chicago Conference the texts of 4 proposals were submitted: US Proposal: United Kingdom: Canada: Australia and New Zealand: Free competition on rates and services. The British wanted strict control of commercial aviation. An international aviation authority was suggested which would determine and distribute frequencies and capacity to allocate routes and fix rates. Proposal similar to the British position. However, Canada went further and wanted to provide the international authority with powers to issue permits for international air transport operators. The formation of an international air transport authority was suggested which would be empowered to own, control, and operate international air transport services on international trunk routes. The international aspects of air transport at the Chicago Conference fell into three categories: technical, economic and legal. Although, it was not difficult to reach a consensus at Chicago regarding technical issues, the Conference failed to reach an agreement on economic matters. From a legal viewpoint, the Chicago Conference has produced the most important written source of current international air law - the Chicago Convention.
7 2. Convention on International Civil Aviation The Convention on International Civil Aviation was finally adopted by the Conference as the outcome of a negotiation process, embracing in general most negotiations and complementary interests. It was the result of compromises and concession. It also created the International Civil Aviation Conference (ICAO), which is made up of an assembly of all parties to the Convention and a permanent body (Council). 3. Bermuda Agreement In January 1946, the US and the UK met in Bermuda to negotiate the exchange of commercial rights between their countries, and on February 11, 1946, they signed a bilateral agreement, generally known as the "Bermuda Agreement." The Bermuda Agreement was drawn up as a compromise between two conflicting philosophies. In essence it was agreed that each party grants to the "designated air carrier" of the other the use of airports and facilities on these routes. The exercise of these rights is subject to certain principles laid down in the Final Act. 4. Transit Rights The granting of transit rights (the first two freedoms of the air) and traffic rights (third, fourth and fifth freedoms) to foreign aircraft constitutes an act which is based on international agreements. The major rights that a state is entitled to exercise over its air space are as follows: 1. Any state has the right, under given circumstances, to close its air space to foreign flights. Traffic rights can only be based on a treaty or a permit (see Chicago Convention, Art. 5; 6; 9). The same rule applies to pilotless aircraft (Art. 8 of the Chicago Convention).
8 2. Each state has the right to impose certain limitations on the freedom of flights, e.g. by designating the routes to be followed, by prescribing flight altitudes (see Chicago Convention, Art. 9; 68). 3. Each state has the right to promulgate rules and regulations for air traffic (see Chicago Convention, Art. 11; 12). 4. Each state may designate customs airports for landing and departure (see Chicago Convention, Art. 10). 5. Each state may enact entry and clearance regulations and may take effective measures to prevent the spread of certain diseases resulting from air navigation (see Chicago Convention, Art. 13; 14). 6. Each state is competent to provide assistance to aircraft in distress and to investigate accidents (see Chicago Convention, Art. 25; 26). 7. Each state may prohibit the taking of photographs or making films, restrict the use of telecommunications means on board or exclude any dangerous cargo from air traffic (see Chicago Convention, Art. 36; 30; 35). 8. Any aircraft entering the air space of a state or violating its regulations may be forced to land. The aircraft violating the rules shall obey a command to land. 9. Each state shall have the right to refuse permission to foreign aircraft to transport passengers or freight between two points of the state territory (cabotage); (see Chicago Convention, Art. 7). 10. From the principle of territorial sovereignty it follows that within its limits a given state may exercise jurisdiction over all civil aircraft when such aircraft are within its territory (see Chicago Convention, Art. 11; 12). The 10 points show the state sovereignty over its air space.