Malibuflyer wrote:
99% of the legal system is working with technically “non legally binding documents” – and 100% of discussions here. Every judge (in Germany but I guess it is the very same in Austria and any other country) has a code of law on his desk, that is published by some (private) publisher and hence is no “legally binding document”.
There is a major difference between the AIP and consolidated versions of e.g. the aircrew regulation. The consolidated version is a compilation of the exact text of the official, legally binding, regulations with references to each regulation.
This is (with few exceptions) not the case with the AIP. Also, many “regulations” in the AIP (such as the 2COM requirement I mentioned in my previous post) do not reference any law. They are just stated.
Does this statement indicate that EASA have lodged a differences statement with ICAO regarding the number of radios that should be carried?
Airborne_Again wrote:
Several European AIPs state that you need 2 COM radios for IFR. EASA has made an official statement with detailed reference to regulations which shows that this is wrong.
I hope we agree, that such an “official statement” is no legally binding document either, but the mere opinion of some staff at EASA – which in the case you quoted is even partly based on AMC documents that themselves are by no means legally binding.
gallois wrote:
Does this statement indicate that EASA have lodged a differences statement with ICAO regarding the number of radios that should be carried?
Where does ICAO state that more than one radio should be carried? It is not in Annex 6, as far as I can see.
(The question is not whether some aircraft, or some kinds of operation, need more than one COM radio. There is no doubt that is the case. The question is if more than one COM radio is always needed for IFR.)
Malibuflyer wrote:
I hope we agree, that such an “official statement” is no legally binding document either, but the mere opinion of some staff at EASA
Of course. But as EASA wrote the rules, I would say their interpretation carries great weight. Certainly greater weight than the opinion of people at an NAA who don’t want to give up the 2 COM requirement they had under national rules before EASA.
which in the case you quoted is even partly based on AMC documents that themselves are by no means legally binding.
I don’t see that. There are two mentions of AMC in the document. One is used to give the rationale for some of the rules in the Certification Specifications – but the opinion itself doesn’t rely on that AMC. The other one is used to answer the question if both radios must be 8.33 kHz in those cases where two radio are indeed required. The opinion that 2 radios are not generally needed does not rely on any AMC.
(Also, an AMC is legally binding in the sense that you must either follow it or follow some AltMOC.)
I asked the question about ICAO because that opinion statement says that the information in this statement does not apply to 3rd country operators who follow ICAO rules.
You have to consider what is reasonable to expect a pilot to do, especially in the context of normal aviation practice.
If the AIP was presumed to be garbage (as many have been in years past, especially from some countries in the south of Europe) then why publish it? The standard answer (“for ICAO compliance”) is bollocks which would never stand up in any civilised country, against a defence lawyer who has more than 2 braincells.
If I was a lawyer defending a pilot, I would have a pretty good time trawling through this “AIP is not law”. There are all sorts of angles – present in the UK but not some other countries – like:
gallois wrote:
I asked the question about ICAO because that opinion statement says that the information in this statement does not apply to 3rd country operators who follow ICAO rules.
It says that the reasoning (or “synthesis” as it’s called) doesn’t apply to third country operators. So the opinion doesn’t say anything either way about the required number of radios in such cases.
Malibuflyer wrote:
99% of the legal system is working with technically “non legally binding documents” – and 100% of discussions here. Every judge (in Germany but I guess it is the very same in Austria and any other country) has a code of law on his desk, that is published by some (private) publisher and hence is no “legally binding document”.
Let’s examine this from the other end? If none of the quoted documents are legally binding, then what actually IS legally binding?
If even the code of law books are not legally binding, then are we in a situation, where judges make decisions based on non-legally binding documents?
How should a person follow the law if none of the documents which are at his disposal have any legal binding?
If you say that EASA’s rule work is not legally binding then what the heck is? On what base should anyone make an educated decision as to what he is about to do is legal or not, if none of the available documents are legally binding?
Or does it amount to that laws per se are not binding without a legal opinion turned decision by the highest court before one can reasonably rely on it?
Malibuflyer wrote:
99% of the legal system is working with technically “non legally binding documents” – and 100% of discussions here. Every judge (in Germany but I guess it is the very same in Austria and any other country) has a code of law on his desk, that is published by some (private) publisher and hence is no “legally binding document”.
Surely the difference is that the privately-published code of law is intended to be a accurate representation what is actually legally binding, whereas an AIP makes not even the slightest pretence of being law or regulation. If it were, it would probably be called an Aeronautical Regulation Publication. The clue is in the name really, and your privately-published code of law doesn’t contain the court opening hours, the surface material of the car park or the wattage of the lightbulbs in the judge’s office, which is kind of what it would do if it were the equivalent of an AIP.
Again with your example of a privately-published code of law – yes they are the resources people use day-to-day, but if there’s somehow something in that publication that isn’t supported by the actual law then it is meaningless. In any civilised country when you are accused of a criminal offence you are entitled to be tried according to the law and only the law, not a bunch of add-on explanatory notes that someone added to aid the reader. There is a complication in Common Law jurisdictions that much relevant law is not actually written down and relies on precedent, in the use of which a judge has a degree of discretion.
The AIP is very definitely not law unless a country specifically legislates to make it so, and you cannot be prosecuted for doing something it advises against, or purports to ban, unless the underlying law also bans it. In many instances it does not – e.g. the UK AIP mentions the oft-quoted higher minima for IR(R) rated pilots as though they are rules, but these have no status in any law or regulation.
