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Air and Space Law: International Norms on Emergency Assistance in Aircraft Disasters.

Now although Annexure 13 has, as aforesaid, been adopted pursuant to Article 37, nevertheless
aircraft accident inquiry is itself subject to Article 26 of the convention. Thus, by the confluence
of the ordinary and teleological tools of interpretation it is imperative for us to construe Article
37 as the controlling article; however the same must not contravene the provision of Article 26 of
the convention. This is the only way through which the spirit and intent of the convention can be
upheld.
In colloquial terms, Article 26 of the convention provides for the obligation on the contracting
state, in which the accident to the aircraft occurs, to institute an inquiry into the circumstances of
the accident to the extent to which the national laws of that state permit; however the procedure
to be followed must be as per the International Civil Aviation Organization.
Although the obligation has been mandated on the contracting state in which the accident occurs
to institute an inquiry, Article 26 at the same time bestows the obligation on the abovementioned
state to allow the state in which the aircraft is registered to be given an opportunity of appointing
the “observers”; and it is finally the state conducting inquiry which will communicate its report
to the latter state.
In the most unambiguous and perspicuous terms, the ICAO convention provides that the
objective of the investigation of an accident or incident shall be the prevention of accident and
incidents. The convention in no way has the purpose to apportion blame or liability, which in
other words excludes in general, cases for the criminal prosecution of the guilty parties.
The convention has been divided into 8 chapters and the project would primarily deal with a
descriptive understanding of how the procedural law pertaining to the inquiry and investigation
has to be conducted by the contracting states.
The project would also deal with the aspect of compliance and working of the Annexure 13 with
reference to the “Republic of India”.
In Conclusion, the author would submit for the kind perusal of the reader, an opinion, albeit
recommendatory in nature, as to how limiting the scope of the convention merely to “minimizing

as the criminal liability can remarkably have ardent implications on the safety and efficient working of the aircrafts and thus the disclosures which are made in the midst of investigation by the “Inquiry Conducting State” should be allowed for the evidentiary purposes of the criminal prosecution as well. that allowing such disclosures would lead to tedious and lengthy court battles and would have a negative effect on the pilot’s concentration. in international regime different standards exist for punishing a convict. from the author’s perspective they do not hold much water. the raison d'être for such an investigation is to determine causal factors which acted as the catalyst for aviation accidents and then recommendations to avoid them. The author does not concede to such propositions. the author also counters the prevailing arguments surrounding the abovementioned propositions.such accidents” by a soft approach is an objective which is imperfect vis-à-vis the ultimate goal of the convention. My contribution: Further. decision making and ultimately their performance. as the trepidation of being convicted for such outrageous acts would create a tutelage of responsibility and accountability in the aviation industry. Also the stand taken by the scholars that. but also the manufacturing entities of . As far as deprivation of liberty and life are the prime considerations driving the wheel of criminal jurisprudence in different states. namely mitigating the accidents in aviation industry. which is clearly ousted by the convention. is not a plausible argument for not employing criminal prosecution. However. the author believes it will act as a positive deterrent for better performance of the aviation industry and in reduction of aviation accidents. As per the convention. which will be discussed in the project. Introduction: An aircraft accident is an unexpected and usually a catastrophic event which involves horrendous and ghastly damage. The criminal prosecution. because criminal jurisprudence in no way dictates that punishments need to be uniform. not just to the passengers involved. which is the need of the hour. holds substantial arguments for not being included in the convention.

The grail which led to the undertaking of this daunting task included the possibility of intiating a uniform procedure to be incorporated by the contracting states which would enable them to promptly disseminate aircraft accident investigations report. “In the event of an accident to an aircraft of a contracting State occurring in the territory of another contracting State. It was with the objective and the willingness of the contracting parties to mitigate such disasters/casualties that “Standards and Recommended Practices for Aircraft Accident Inquiries” were first adopted by the Council on 11 April 1951 pursuant to Article 37 of the Convention on International Civil Aviation (Chicago. nevertheless aircraft accident inquiry is itself subject to Article 26 of the convention. by the confluence of the ordinary and teleological tools of interpretation it is imperative for us to construe Article 37 as the controlling article. “ . however the same must not contravene the 1 Article 37 of the ICAO Convention states that. as aforesaid. and involving death or serious injury. been adopted pursuant to Article 37 1. In accordance.” Thus. so far as it8 laws permit. 1944) and were designated as Annex 13 of the Convention which is the prime document governing the International norms on emergency assistance in aircraft disasters. Article 26 of ICAO states that.aircrafts (contracting parties). Another major consideration for this convention was to enable the state of manufacture or state that certificated the aircraft type to make available competent experts advice or consultation in the investigation of accidents and as a result to determine and propose most efficient and practical means of ensuring safety of the air navigation. the State in which the accident occurs will institute an inquiry into the circumstances of the accident. or indicating serious technical defect in the aircraft or air navigation facilities. Now although Annexure 13 has. with the procedure which may be recommended by the International Civil Aviation Organization. The State in which the aircraft is registered shall be given the opportunity to appoint observer to be present at the inquiry and the State holding the inquiry shall communicate the report and findings in the matter to that State.

to institute an inquiry into the circumstances of the accident to the extent to which the national laws of that state permit. Although the obligation has been mandated on the contracting state in which the accident occurs to institute an inquiry. which can include. dealing with the rights and obligations of states other than the state of registry and the state in which the accident occurred. However. Article 26 at the same time bestows the obligation on the abovementioned state to allow the state in which the aircraft is registered to be given an opportunity of appointing the “observers”. The annexure at the same time. The annexure at the same time. In colloquial terms. Article 26 of the convention provides for the obligation on the contracting state. by virtue of article 38 of the convention provides a caveat to the contracting states for notifying the ICAO for the notification of differences between their national regulations and practices and the international standards contained in this annex and any amendments. the specification in the text were meant to apply to activities following accidents and incidents wherever they had occurred. and it is finally the state conducting inquiry which will communicate its report to the latter state. in which the accident to the aircraft occurs. This is the only way through which the spirit and intent of the convention can be upheld. This obligation extends to differences which may subsequently occur or of withdrawal of any differences which had been notified previously. the annexure can as well deal with the privileges which can be accorded to observers entitled by article 26. however the procedure to be followed must be as per the International Civil Aviation Organization. also on the same lines. Applicability of the Annexure: By virtue of Chapter 2 of the relevant text. by virtue of article 38 of the convention provides a caveat to the contracting states for notifying the ICAO for the notification of differences between their national regulations and practices and the international standards contained in this annex and any amendments. the annexure 13 is free to deal with any other relevant matter upon which article 26 is silent.provision of Article 26 of the convention. This obligation extends to differences which may subsequently occur or of withdrawal of any differences which had been notified previously. .

wing tips. except for engine failure or damage. “An occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked. or when the injuries are to stowaways hiding outside the areas normally available to the passengers and crew. as. self-inflicted or inflicted by other persons. and — would normally require major repair or replacement of the affected component. antennas. or — direct contact with any part of the aircraft. or — direct exposure to jet blast. or c) the aircraft is missing or is completely inaccessible. small dents or puncture holes in the aircraft skin. or for damage limited to propellers. its cowlings or accessories. including parts which have become detached from the aircraft. brakes. fairings. “Accident” has been defined under the chapter 1 of the annexure.” . or b) the aircraft sustains damage or structural failure which: — adversely affects the structural strength. except when the injuries are from natural causes.This calls for the analysis of two major keywords which are what is meant by accident and incidents as in the text they have been used constantly. when the damage is limited to the engine. tires. performance or flight characteristics of the aircraft. in which: a) a person is fatally or seriously injured as a result of: — being in the aircraft.

and the State of Manufacturer to acknowledge the receipt of the notification. “An occurrence. “State of Registry”. and “State of Manufacturer” the entitlement to appoint an accredited representative to participate in the investigation. It is this notification which sets the stage for the receiving party to appoint an accredited representative and as such person is appointed. State of Design. Apart from this. State of Design”. To add more substance and ensure prudence inter-se parties there is also an obligation on the receiving party of such notification. namely. chapter 5.However. the name and address of such person has to be sent to the “state of occurrence”. Fair play mechanism Annexure 13? The text endows the contracting party with the obligation to forward a notification of an accident or serious incident with minimum delay which has to be forwarded with the quickest means available to the. State of Operator. “Incident” has on the other hand been defined as. “State of Operator”. for the purposes of statistical uniformity the annexure mandates that an injury which has resulted in death within the 30 days of the date of the accident would tantamount to fatal injury. “State of Operator”. the aircraft is considered to be missing when the official search has been terminated and the wreckage has not been located. “incident” on the other hand is wider for it includes not just occurrences which affect the safety of air navigation operation but also includes. “State of Design”. State of Registry. or the “State of Manufature” (Hereinafter referred to as “Receiving Party” and to the ICAO in case the aircraft involved is of a maximum mass of over 2250 Kg. Also. associated with the operation of an aircraft which affects or could affect the safety of operation. other than an accident.18 also provides the “State of Registry”. This provides for another stage for a fair play mechanism so that all the interested parties could be involved in the investigation expedition.” On a plain reading one can construe that where accident primarily deals with occurrence which has taken place. . occurrences which could affect the safety of the operation.

5 obligates the state conducting the investigation to release the final report as soon as possible. it allows the state which has a special interest in an accident by virtue of fatalities or serious injuries to its citizens has the entitlement to appoint “Expert” and not just accredited representative to assist in the investigation. The “state of occurrence” in such a scenario also has the discretion to delegate the whole or any part of the conduction of investigation to another state by mutual arrangement and consent. In case this cannot complied with. although it only has persuasive value as the time period has been stated under the heading of “Recommendation”. Chapter 6.27 on the other hand provides which uses starkly different terms when it comes to participation in the investigation. The chapter also takes into regard the situation where the accident or incident might occur in a non-contracting state which does not intend to conduct an investigation in accordance with annexure 13.Also. In such a contingency. State of design.1 obligated the “state of occurrence” to institute an investigation into the circumstances of the accident and has the obligation for the orchestration of the investigation. but in case this fails. there is still a mandate of submitting a interim report every year. or in case of failure. “State of Operator”. Chapter 5. As the chapter deals with “Participation of States Having Suffered Fatalities or Serious Injuries To Its Citizens.23 obligates that any state which on request provides information. Procedure pertaining to Investigation: Chapter 5 of the annexure can be said to be the “heart of the text” as it deals with the responsibility for instituting and conducting the investigation as mandated by article 26 of the text. or State of Manufacturer has to intitate the institution and conduct of the investgaton in cooperation with the state of occurrence. the “State of Registry”. the former party . This has forthwith been coupled with the recommendation as well in chapter 6. facitlites or experts to the state conducting the investigation shall be entitled to appoint an accredited representative for particiapring in the inevsitgation. Chapter 5.6 which states that final report is to be released within 12 months from the date of the occurrence. Chapter 5.

It states that the possible conflicts between the investigations and judicial authorities regarding the custody of flight recorders and their recordings may be resolved by an official judicial authority who has to keep the custody. For instance. . To put it in colloquial terms. Such an endowment of power on the judicial authority creates an unbalanced favor against the investigator agency and thus by the discretion of the judicial authority.10 deals with coordination among judicial authorities.9 which deals with autopsy examinations to complete such examinations in an expeditious and complete manner. Expeditiousness in Investigation: The text also mandates in chapter 5. the “flight recorder” systems can be held by official judicial authority which can lead to a possible obstruction in the functioning of the investigative agency. Chapter 5. Areas of Dispute: Although the chapter sets commendable standards for fulfilling its objective at the same time it does suffer from certain conundrums which in practicability cause distress among the executors. which elucidates the procedure to be followed.has the obligation to itself conduct the investigation with such information as is available to them. the author would propose that the custody of such evidence materials should vest in the “investigative agency of the state as it would be in conformity with the objective and basic spirit of the Annexure which has the grail of preventing the accidents and incidents and not to apportion blame or liability something which is the basic function of a judicial authority. this abovementioned provision has the potential to put a halt or one can say give a greater say to the “state judicial authorities”. Thus. It is a settled understanding that “flight recorders” play an predominant role in investigative ventures as they provide first hand information as to what acted as the real catalyst for the relavant accident or incident.

Thus. As the text nowhere states. “The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation. Firstly. is not the power of discretion rather “how it is to be exercised”? The text plainly suggests-that judicial authorities have to determine whether disclosure of such records.12 which talks about “Non Disclosure of Records”. The words like. would outweigh the adverse domestic and international impact such action may have on that or any future investigation.Another provision which would catch the eyebrows of the legal scholars is the chapter 5. whether such determination needs to be a prima facie understanding or properly adjudicative process. judicial authority. which in simple terms means. The author thinks that the provision has been drafted vaguely and can lead to following possible quandary. unless the appropriate authority for the administration of justice. India’s Position Vis-à-vis Annexure 13 of ICAO: . whether disclosure of such records would outweigh domestic and international impact. the author supports the discretion which has been given to the judicial authority because the conferment of such discretion can in no way hamper the investigative function of the investigative agency. such action may have on that or any future investigation leaves room for a lot of lacunas which will act as conundrums when the judicial authorities actually have to execute the discretion. It states. The place where author does have problem. determines that their disclosure outweighs the adverse domeostice and international impacy such action may have on that or any future investigation. that the state investigative agency would not generally make certain records available for purposes other than accident of incident investigation. unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations… On a plain interpretation of this provision one can construe. providing an upper hand to the judicial authority is not a problem in such a case.

Section 1. “Prohibit the pending investigation access to or interference with the aircraft to which an accident has occurred and authorize any person so far as may be necessary for the proposes of .3 of the abovementioned manual explicitly states that the DGCA has the obligation to ensure that new or changed legialtion has to be in conformity with the relevant ICAO Standards and Recommended Practices (SARPs). Further Rule 29C of the Aircraft Rules 1937 also empowers the directorate General of Civil Aviation for laying down the standards and procedures not inconsistent with Aircraft Act 1934 which includes not just the Conevntion but also any annexures supplemental to it.India is a signatory to the convention on International Civil Aviation. more popularly known as Chicago Convention which obligates the Republic of India for complying with the International Standards and procedures as mandated by the International Civil Aviation Organisation (ICAO). However if for some reason the same is not been complied the significant differences are required to be published in the Aeronautical Information Publication (AIP). Compliance Position of the Republic of India: After meticulous perusal of the ICAO Annex Management Manual of India. The manual further states that as per section 7 of the Indian Aircraft Act central government may by notification in the official gazette. there is an obligatioin on the contrating state to notify the differences which they may have regarding their compliance with the international standard and practices. In furtherance of Section 4 of the Aircraft Act. Substance regarding such a proposition can be ascertained from the following observations. Edition 2012 the author holds the position that substantial parts of Annexure 13 has been complied by india. 1934 the central government has the power to make such rules as may appear necessary for carrying on the convention relating to the International Standard and Recommendatory Practices (ISRP) as per the Chicago Convention. The Annexure 13 obliagtes the contrating parties firstly try to comply with the ICAO Standards and in case of inability to comply.

The Aircraft Act.an investigation to have access to examine.3. Reminiscence of chapter 5.2 of the Procedure Manual of Accident/Incident Investigation.” To add tooth to the sanction for safety and mitigation of accident and damages. competency of flight crew and other safeguards.4. Similarly the chapter pertaining to carrying out of the investigation in the Non Contracting Party territory which is specified in chapter 5. Chapter 13 also has Accident Prevention Measures and specifically includes mandates of chapter 8 of Annexure 13 such as Incident Reporting Systems and Database Systems for effective analysis of information. Apart from this the chapter pertaining to Responsibility of the state of registry.2 which talks about the discretion of the receiving party of notification to appoint an accredited representative. As per this chapter which is in conformity with annexure 13 it adds a timeline within which the preliminary report is to be sent ICAO which is 30 days of the accident. Lastly the Indian Procedure Manual of Accident/Incident Investigation also has in chapter 12 the provisions relating to ADREP Reporting.3. .4. 1934. In addition it also states that where an inspector of accident carries out the investigation such person shall also ensure whether the performance of the functions of various wings of the directorate general of civil aviation as a regulatory organization was a catalyzing factor. the state of design and the state of manufacture in chapter 4.6 of Annexure 13 has been replicated in the manual in Section 6.2 has been incorporated as section 6. it also states that Aircraft Rules may also authorize or require cancellation of the licenses or certificate granted or recognized under the Indian Aircraft Act2.1 which deals with “scene of accident in international waters” and the obligation on the nearest state to the scene has been mentioned in section 6.4. the Manual explicityly states that the investigations shall include observations of the performace of air traffic services or navigational aids. the state of the operator. Unlike the Annexure 13 which gives abstract responsibility on the contracting states. take measures for the preservation of or otherwise deal with any such aircraft. Airworthiness of aircraft. 2 Section 7 (d). remove.

As per the convention. as to how limiting the scope of the convention merely to “minimizing such accidents” by a soft approach is an objective which is imperfect vis-à-vis the ultimate goal of the convention. namely mitigating the accidents in aviation industry. The criminal prosecution. the raison d'être for such an investigation is to determine causal factors which acted as the catalyst for aviation accidents and then recommendations to avoid them. The Necessary Change in Jurisprudence and Imminent Need for amending the Objective of the Annexure 13: In Conclusion. It is not the purpose of this activity to apportion blame or liability. From the author’s perspective such arguments do not hold much water. The primary argument for excluding the criminal liability includes the non uniformity of the criminal legal system in the global world and the tentative distress which might be caused to the victims and financial burden.1-“ The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. the author would submit for the kind perusal of the reader. which is the need of the hour. albeit recommendatory in nature. as the criminal liability can remarkably have ardent implications on the safety and efficient working of the aircrafts and thus the disclosures which are made in the midst of investigation by the “Inquiry Conducting State” should be allowed for the evidentiary purposes of the criminal prosecution as well. Further. that allowing such disclosures would lead to tedious and lengthy court battles and would have a negative effect on the pilot’s concentration. the author also counters the prevailing arguments surrounding the abovementioned propositions. an opinion. decision making and ultimately their performance. as the trepidation of being convicted for such outrageous acts would create a tutelage of responsibility and accountability in the aviation industry. holds substantial arguments for not being included in the convention.” . which is clearly ousted by the convention3. 3 This is evident by the Objective of the Annexure 13 in Chapter 3.Thus one can say major substantial portions of the Annexure 13 have been incorporated in the Procedure Manual of Accident/Incident Investiation. The author does not concede to such propositions.

because criminal jurisprudence in no way dictates that punishments need to be uniform. . As far as deprivation of liberty and life are the prime considerations driving the wheel of criminal jurisprudence in different states. in international regime different standards exist for punishing a convict. the author believes it will act as a positive deterrent for better performance of the aviation industry and in reduction of aviation accidents. is not a plausible argument for not employing criminal prosecution.Also the stand taken by the scholars that.