Mooney_Driver wrote:
Let’s examine this from the other end? If none of the quoted documents are legally binding, then what actually IS legally binding?
I tried to answer the question already – but obviously not clear enough.
Legally binding documents are typically the laws passed by the legislation and publish in one specific source: In Germany it is the “Bundesanzeiger”, for the EU it is the “Official Journal of the European Union” (Amtsblatt der Europäischen Union). Everything else is just non binding for information.
These non binding texts, however, are required for practical purposes as the binding laws in the Official journey read like “In §3(1)II(c) of the UCC published in 952/2013 as amended in 876/2014, 132/2015, 653/2015, … the last sentence is deleted”
For all practical purposes (even formal practical purposes as in front of a code) these “non binding documents” are just fine to use as errors – if they occur – are quickly spotted and known.
Same with AIP: For all practical purposes the pilot can just stick to AIP. A court will have a hard time to punish you if you fully complied to AIP but another party argues that AIP is wrong.
Also the other way round: If you believe AIP is wrong and therefore do not comply with it, you need to have deep legal insights, deep pockets and much time for legal dispute.
AIP AUSTRIA 2021
GEN 1.6 SUMMARY OF NATIONAL REGULATIONS
AND INTERNATIONAL AGREEMENTS/
CONVENTIONS
1.2. Legal Acts of the European Union (according to the
consolidated version of the Treaty on the Functioning of the
European Union, Official Journal C 326 of 26.10.2012, Article
288 ex-Article 249 EGV)
https://eaip.austrocontrol.at/lo/211104/PART_1/LO_GEN_1_6_en.pdf
No, I’m afraid you’re not getting it.
Malibuflyer wrote:
For all practical purposes the pilot can just stick to AIP. A court will have a hard time to punish you if you fully complied to AIP but another party argues that AIP is wrong.
This much is correct. It is possible you might technically have breached some law yet complied with the AIP on the matter (I cannot think of an example) but the prosecution would have a very difficult time making anything stick because, with the AIP being an official publication, you would have a very good argument that you had performed all reasonable due diligence and were entitled to rely on the information in it. Mens rea would certainly be absent, so it would come down to whether or not it was a strict liability offence – and even if it was then a judge would still have ample discretion to find that, with conflicting information published in an official source, your transgression could be excused. Unless of course it was something really basic that it’s obviously your duty to know, like the limits of your licence privileges.
Malibuflyer wrote:
Also the other way round: If you believe AIP is wrong and therefore do not comply with it, you need to have deep legal insights, deep pockets and much time for legal dispute.
But the reverse does not hold true. There are no deep legal insights or pockets required. If the CAA were to write to me accusing me of ‘busting’ the IR(R) minima of 500ft AGL on an ILS, I would just write back asking them to cite the law or regulation that specified those minima. If they pointed to the AIP and tried to take me to court based on that, the judge would laugh at them.
The simple system we have here is that only the Air Navigation Order (the law) and the CAA regulations count – the latter because the ANO delegates the power to make legally enforceable regulations to the CAA. The AIP comes nowhere in all this and is a document produced to fulfil ICAO obligations. The ANO does not say you must comply with it, and nor do CAA regulations. I imagine most countries have a similar system and although I’m not aware of any where the legislation extends the power of law to the AIP, it’s entirely possible that it exists somewhere. It would be a bizarre way to do things because the AIP reads nothing like law or regulation – most of it just provides useful information. Again, the clue is in the name.
I don’t want to come close to an ad hominem, but in this and the Covid-19 debate you do seem prone to drawing equivalents which are not equivalent at all.
This much is correct. It is possible you might technically have breached some law yet complied with the AIP on the matter (I cannot think of an example) but the prosecution would have a very difficult time making anything stick because, with the AIP being an official publication, you would have a very good argument that you had performed all reasonable due diligence and were entitled to rely on the information in it.
I agree 100%, but this assumes what we call a “working” legal system, with the expected safeguards, etc 
Clearly this is not the case everywhere in Europe.
The basic idea is that if you don’t want a pilot to brief from the AIP, then don’t publish the AIP! Why? Because briefing from the AIP is standard in aviation. The precedent is that aviation is international and nobody is going to be digging around for some obscure national law, which in most cases even locals don’t know where to find.
The fact that AIPs contain a lot of garbage doesn’t change the argument that the AIP can be relied on for a defence; it just gives you more leeway
Graham wrote:
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.
In that case there is not a single civilized country in the world – and thinking about Goedel’s theorem I would argue there can’t even theoretically be one!
As laws use words in natural language, they always require interpretation by explanatory notes, prejudice, etc.
Malibuflyer wrote:
Same with AIP: For all practical purposes the pilot can just stick to AIP. A court will have a hard time to punish you if you fully complied to AIP but another party argues that AIP is wrong.
Right, what about that Swiss pilot in Germany & customs?
Malibuflyer wrote:
A court will have a hard time to punish you if you fully complied to AIP but another party argues that AIP is wrong.
In practice, I wouldn’t be so sure of that. The court will have no idea what “AIP” is. So in practice, it will be your burden of proof to convince the court that the AIP is “standard briefing in aviation”, is “an official publication intended to faithfully say what the law and regulations say” or something like that.
Malibuflyer wrote:
Also the other way round: If you believe AIP is wrong and therefore do not comply with it, you need to have deep legal insights, deep pockets and much time for legal dispute.
I did it, although I warned the CAA in advance. All it took was an email. As they should, they answered along the lines of “yes, the regulation has precedence over the AIP; your intended actions are legal, and we will cooperate in their implementation, although the AIP says they are forbidden”.
Malibuflyer wrote:
In that case there is not a single civilized country in the world – and thinking about Goedel’s theorem I would argue there can’t even theoretically be one!As laws use words in natural language, they always require interpretation by explanatory notes, prejudice, etc.
It depends whether the notes, appendices, whatever you want to call them are added by the publisher (to differentiate their publication) or actually form part of the statute.
I think you’d be surprised how often legal professionals refer to the raw statute. The various private publications with their myriad notes and explanations are useful for building a case, understanding wider implications, referring to other relevant statute, etc., but when it comes to point of law being argued in court it is only the statute itself that matters and the notes/opinions of a private publisher count for nothing.
the notes/opinions of a private publisher count for nothing
A private publisher; sure.
But the AIP is published by the national regulator i.e. by the same party who is running the prosecution
