NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW Volume 30 Number 1 Article 1 Fall 2004 Compliance & Enforcement in International Law: Achieving Global Uniformity in Aviation Safety Paul Stephen Dempsey Follow this and additional works at: https://scholarship.law.unc.edu/ncilj Recommended Citation Paul S. Dempsey, Compliance & Enforcement in International Law: Achieving Global Uniformity in Aviation Safety, 30 N.C. J. INT'L L. 1 (2004). Available at: https://scholarship.law.unc.edu/ncilj/vol30/iss1/1 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Compliance & Enforcement in International Law: Achieving Global Uniformity in Aviation Safety Cover Page Footnote International Law; Commercial Law; Law This article is available in North Carolina Journal of International Law: https://scholarship.law.unc.edu/ncilj/vol30/ iss1/1 Compliance & Enforcement in International Law: Achieving Global Uniformity in Aviation Safety Paul Stephen Dempsey* TABLE OF CONTENTS I. Introduction .......................................................................... 2 II. The Development of International Aviation Safety Law ......... 6 A. The Conventional Law of International Civil A viation .......................................................................... 6 B. International Standards as Soft Law, or Hard Law? ........ 13 C. Bilateral Requirements ................................................. 19 III. Domestic Compliance with International Aviation Safety R equirem ents ...................................................................... 20 A. To Comply, or Not to Comply: That is the Question ....... 20 B. Unilateral Oversight of State Compliance with International Obligations ............................................. 22 1. The Courts Clip the Wings of the United States: British Caledonianv. Bond...................................... 22 2. United States Airport Security Audits ...................... 25 3. United States Safety Audits ..................................... 27 C. Multilateral Oversight of State Compliance with International Obligations ............................................. 33 IV. The Substantive Aviation Safety Obligations Under International and Domestic Law ........................................ 38 A. Civil Aviation Authority: Establishment and A dm inistration ............................................................. 41 B. Agency Procedures ...................................................... 45 C. Personnel Licensing ..................................................... 48 D. Aircraft Airworthiness Certification ........................... 51 Tomlinson Professor of Global Governance in Air & Space Law, and Director of the Institute of Air & Space Law, McGill University. A.B.J. (1972), J.D. (1975), University of Georgia; LL.M. (1978) George Washington University; D.C.L. (1986) McGill University. Member of the Colorado, Georgia, and the District of Columbia bars. The author would like to thank Dr. Michael Milde and Catherine Zuzak for reviewing an earlier draft of this article and providing invaluable comments thereon. The views expressed herein are solely those of the author, however. N.C. J. INT'L L. & COM. REG. [Vol. 30 E. Nationality, Ownership, and Registration Requirem ents ............................................................... 54 F. Air Carrier Operator Certification ................................ 55 G. Air Carrier Economic Regulation ............................... 56 H. Schools and Approved Maintenance Organizations ........ 58 I. Air Navigation Facilities ............................................. 58 J. Transportation of Dangerous Goods ............................ 59 K. Penalties for Noncompliance ........................................ 59 V. The Theoretical Paradigm of Compliance with and Enforcement of International Law ..................................... 62 V I. C onclusion ........................................................................... 73 "It is generally agreed that it is true, in the purely technical field, a considerable measure ofpower can be exercised by, and indeed must be granted to, a world body."' I. Introduction Law without compliance and enforcement is like poetry - it is pleasing to the ear, but has little to do with the practical world in which we live.2 The study of efforts to achieve uniformity in international norms and compliance with international legal obligations reveals mixed success, even in areas where there is I Proceedings of the International Civil Aviation Conference (Nov. I-Dec.7, 1944); R.I.R. Abeyratne, Some Recommendationsfor a New Legal and Regulatory Structurefor the Management of the Offense of Unlawful Interference with Civil Aviation, 25 TRANSP. L.J. 115, 141 (1998). 2 Professor John Norton Moore put it more eloquently: For the rule of law is not simply normative systems and broad acceptance of the authoritativeness of such laws. Rather, it is such systems coupled with patterns of community compliance. And sadly, while many modem normative systems have patterns of high community compliance, others still have failure rates with catastrophic consequences for human dignity and progress. Surely, the greatest weakness of the contemporary international system is not the absence of authoritative norms, or underlying intellectual understanding about the need for such norms, but rather the all-too-frequent absence of compliance. John Norton Moore, Enhancing Compliance With International Law: A Neglected Remedy, 39 VA. J. INT'L L. 881, 884 (1999). Professor Dr. Michael Milde also put it well, writing that, "without enforcement law tends to lose its binding nature and degenerates into a pious statement of principles detached from the reality." Michael Milde, Enforcement of Aviation Safety Standards - Problems of Safety Oversight, 45 GER. J. AR& SPACE L. 3, 15 (1996). 2004] AVIATION SAFETY widespread consensus for the need to have international harmony. Given the inherent sovereignty of states, the heterogeneous levels of economic ability, and the diversity of political priorities, securing compliance with international obligations is rarely an effortless task.3 This article addresses legal norms governing international aviation safety, as well as both unilateral and multilateral efforts to achieve state compliance with those international legal obligations. Commercial international aviation provides a useful case study of how the world community seeks to achieve mutual self-interest by securing global harmony in law. The interplay between conventional international law, quasi-legal standards promulgated by international organizations, and national laws, regulations, and procedures offers insights as to how complex international enterprises, such as commercial aviation, play on the world stage. In 1944, the world community acknowledged the need to achieve safety in international aviation through uniformity in law4 by establishing an organization to govern international aviation, conferring upon it quasi-legislative power to prescribe standards governing international aviation safety, and obliging member states to implement these standards through their domestic laws Despite the efforts of major aviation nations and international organizations, those goals are only sluggishly being achieved. Thus, aviation safety can serve as a case study to inquire into the ability and willingness, on the one hand, or inability and unwillingness, on the other, of states to conform to their international obligations and the means by which they can be encouraged, or coerced, to comply. This inquiry is important for another less theoretical and more 3 See Paul Stephen Dempsey, Compliance and Enforcement in InternationalLaw - Oil Pollution of the Marine Environment by Ocean Vessels, 6 Nw. J. INT'L L. & Bus. 459, 485 (1984) [hereinafter Dempsey, Compliance and Enforcement in International Law]. 4 As Professor Dr. Michael Milde observed, "[c]ivil aviation could not have evolved without world wide uniformity in regulations, standards and procedures in relation of air navigation." Milde, supra note 2, at 4. 5 Paul Stephen Dempsey, The Role of the International Civil Aviation Organization on Deregulation, Discrimination & Dispute Resolution, 52 J. AIR L. & COM. 529, 533 (1987) [hereinafter Dempsey, The Role of the InternationalCivil Aviation Organization]. N.C. J. INT'L L. & COM. REG. [Vol. 30 practical reason. Safety and security are two sides of the same coin. The regulation of both is designed to avoid injuries to persons and property, and the deprivation of man's most valuable attribute - life. Yet the two are quite different, as well. Safety regulation focuses on preventing accidental harm. Security regulation focuses on preventing intentional harm. Like the common law difference between fault-based negligence and intentional torts, the latter involves more culpability than the former, and is deterred by more serious penalties. Since the tragic events of September 11, 2001, security has become a paramount concern in international aviation community.6 Yet a passenger is ten times more likely to lose his life in an aviation safety-related accident than in an aviation terrorist event.7 Hence, the study of aviation safety is of far more practical importance than the more emotionally driven study of aviation